Ellis v Bristol City Council

Under regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, a floor’s suitability must be assessed objectively in the circumstances of its actual use. Regular and frequent transient hazards may render its construction unsuitable and engage the strict duty in regulation 12(1). Less frequent transitory hazards fall within the reasonably practicable duty in regulation 12(3).

The court must consider all relevant factors without hindsight. These include the floor’s surface, its use, the frequency of the hazard, the likelihood and gravity of injury, accident history and the characteristics and expected conduct of employees. An approved code of practice may assist statutory construction, but it must be treated cautiously and does not carry judicial authority.

A care assistant employed at a residential home slipped on urine left on a smooth vinyl corridor floor. Residents frequently urinated on the floor, which became slippery when wet. Previous falls had occurred, and the employer had introduced mats, warnings and rapid-cleaning arrangements.

Following a liability trial, the Bristol County Court dismissed her claims under regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and in negligence. The principal issue on appeal was whether regular and frequent transient wetness could render the floor unsuitable under the strict duty in regulation 12(1), or whether it fell exclusively within the reasonably practicable duty in regulation 12(3). Contributory negligence also required determination because the county court had made no finding upon it.

1. Appeal allowed unanimously. Regulation 12(1), read with regulation 12(2), requires the suitability of a floor to be assessed in the circumstances of its actual use. The provision is not confined to permanent defects or permanent slipperiness. A hazardous condition which recurs with sufficient frequency and regularity may render the floor unsuitable and engage the employer’s strict duty.

2. Regulation 12(3) deals with less frequent transitory conditions. It requires the employer to do everything reasonably practicable to avoid substances or articles which may cause a person to slip, trip or fall. Whether a recurring condition is sufficiently frequent and regular to engage regulation 12(1) is a question of fact in each case.

3. The assessment under regulation 12(1) is objective and must be made without hindsight. Applying Marks & Spencer plc v Palmer [2001] EWCA Civ 1528, the court must consider all relevant factors and then stand back to decide whether the floor was suitable. Relevant matters include its construction and surface, the purposes and circumstances of use, the frequency of intermittent hazards, the likelihood and potential gravity of an accident, the history of accidents or complaints, and the nature and expected conduct of the employees exposed to the risk.

4. The vinyl floor was slippery when wet. Urine appeared frequently and regularly because most residents were incontinent, and further incidents were to be expected. Accidents had occurred, potentially significant injuries were foreseeable, and staff could not reasonably be expected to maintain constant concentration upon a hazard which was difficult to see. The floor was therefore unsuitable and regulation 12(1) had been breached.

5. The approved code of practice could legitimately assist in construing the regulation. Such guidance must be used cautiously because it may be mistaken and lacks the authority of a judicial decision. Lady Justice Smith found that its guidance supported the construction adopted; Lord Justice Lloyd considered it legitimate but derived no additional assistance from it.

6. The employee was contributorily negligent because, despite recent warnings and the known increased risk near the corner, she failed to keep a special lookout. The employer’s breach of a strict statutory duty protecting employees carried greater responsibility. Damages were reduced by one third, and the claim was remitted to the county court for determination of quantum.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously in [2007] EWCA Civ 685. The court found a breach of regulation 12(1) of the Workplace (Health, Safety and Welfare) Regulations 1992, assessed contributory negligence at one third and remitted the claim for determination of quantum.

2. Bristol County Court: HH Judge Stuart-Brown dismissed the personal injury claim after a trial of liability only. The judge found no breach of regulation 12 or common-law negligence and made no finding on contributory negligence.