Ellis v Bristol City Council

The Court of Appeal allowed the appellant's appeal and found a breach of regulation 12(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992. The court held that the suitability of a floor must be assessed in the context of the circumstances in which it is used and that conditions which are temporary in themselves may, if they occur with sufficient frequency and regularity, render the construction of a floor unsuitable. The judge at first instance was wrong to treat regulation 12(1) as applying only to permanent features of the floor and to ignore the Approved Code of Practice as an aid to construction. On the facts, frequent deposits of urine by incontinent residents made the smooth vinyl corridor floor unsafe when wet, so the respondent breached the regulation. The court also found contributory negligence on the part of the appellant and apportioned blame one third to her, and directed that the case be listed for a hearing on quantum.

Background and parties: The appellant, a part-time care assistant employed at Gleeson House (a care home run by the respondent Bristol City Council), slipped on urine in a ground-floor corridor and sued for damages for personal injury. The claim was pleaded under regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and in common-law negligence.

Procedural posture: The judge at Bristol County Court (HH Judge Stuart-Brown) dismissed the claim after a liability trial (judgment dated 10 November 2006). The appellant appealed to the Court of Appeal.

Nature of the claim/application: Damages for personal injury. The legal issues were whether regulation 12(1) and (2) (an absolute duty as to suitability of floor construction) applied, or whether the matter fell under regulation 12(3) (a duty to keep floors free of substances so far as reasonably practicable); and whether there was common-law negligence and/or contributory negligence.

Issues framed by the court:

• whether the smooth vinyl corridor floor was unsuitable for its purpose because it became slippery when wet on account of frequent deposits of urine, engaging regulation 12(1) and (2);
• whether transient but frequent conditions must be considered in assessing suitability, or whether only permanent features are relevant;
• the relevance of the Approved Code of Practice and previous authorities (including Marks & Spencer plc v Palmer and Wenham v Bexley) as aids to construction;
• apportionment for contributory negligence.

Court’s reasoning and conclusions: The Court of Appeal held that the first-instance judge erred in construing regulation 12(1) and (2) as limited to permanent physical features of a floor. The correct approach is to assess suitability objectively by reference to the construction of the floor, its purpose and the circumstances of use, including regularly recurring transient conditions if they arise with sufficient frequency and regularity. The Approved Code of Practice is a permissible, though not conclusive, aid to construction. Applying that approach to the evidence (frequent and regular occurrence of urine on a smooth, slippery vinyl corridor floor, prior accidents, risk assessments and an NCSC inspection report), the court concluded the floor was unsuitable and the respondent breached regulation 12(1). The court allowed the appeal, found some contributory negligence by the appellant (one third), and remitted the case for a hearing on quantum.

Appeal allowed. The Court of Appeal held that Regulation 12(1) and (2) require assessment of the suitability of a floor in the context of its use and that conditions which recur with sufficient frequency and regularity (here, deposits of urine) can render a floor unsuitable. The first-instance judge erred by treating regulation 12(1) as confined to permanent features and by disregarding the Approved Code of Practice; there was therefore a breach of Regulation 12(1). The appellant was partly at fault and damages were reduced by one third; the matter was remitted for determination of quantum.

Appeal from Bristol County Court (HH Judge Stuart-Brown), judgment of 10 November 2006 dismissing the claimant's claim for damages; allowed by the Court of Appeal on 5 July 2007 ([2007] EWCA Civ 685).