Aldenham School v Deacon

In assessing compliance with workplace safety duties, the relevant question is not simply how an individual accident could have been avoided. The court must balance the known risk against the effort and expense of eliminating or reducing it. Cleaning a wet floor during quieter periods may materially reduce the overall risk of injury because fewer people are exposed, even if the statistical risk during each individual visit remains unchanged. An appellate court reviewing a first-instance decision must review the decision rather than rehear the evidence. It may uphold factual inferences reasonably drawn from the evidence, including an inference that a workplace or route is less heavily used outside ordinary working hours.

The respondent, a school nurse, was injured after slipping on a wet floor in the medical centre of the appellant boarding school. The claimant alleged breaches of regulations requiring workplace floors and traffic routes to be kept free from substances likely to cause slipping, and requiring suitable construction where keeping the floor dry was not practicable.

The Recorder at Luton County Court found liability, awarded £2,947.58, and allowed for 50 per cent contributory negligence. The appellant challenged the finding that the floor should have been cleaned after 6 pm, when the corridor was said to be closed or less busy. Permission to appeal was granted by Openshaw J. The central issue was whether the Recorder was entitled to conclude that cleaning at a quieter time was reasonably practicable and would reduce the relevant risk.

1. The appeal was dismissed. The Recorder was entitled to find that the appellant had not established that cleaning the floor after 6 pm was not reasonably practicable.
2. The appellate task was one of review rather than rehearing. The absence of a transcript or agreed note of the evidence was a difficulty, but the Recorder had been entitled to assess the evidence before her, including evidence that the corridor was normally closed after 6 pm.
3. The applicable approach was to balance the known risk against the effort and expense of eliminating or reducing it. The question was not merely how the particular accident could have been avoided. The evidence supported an inference that fewer people would use the corridor after staff had finished work and that the claimant would be less likely to use it during her ordinary routine. Cleaning at that time would therefore reduce the overall risk of an accident.
4. The fact that an individual might face the same statistical risk on any particular visit did not answer the wider risk assessment. The number of people exposed remained relevant. The Recorder was entitled to reach her conclusion on the evidence and the appeal disclosed no error of law.
5. The alternative arguments in the respondent’s notice were not addressed because the Recorder had not determined them and the overall conclusion made it unnecessary to do so.

• Luton County Court: Miss Fine, sitting as Recorder, found for the claimant on 12 December 2007, awarded £2,947.58 and ordered payment of costs, subject to 50 per cent contributory negligence.
• High Court: Permission to appeal was granted by Openshaw J. Eady J dismissed the appeal.