ELLIS V BRISTOL CITY COUNCIL 2007
Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992; floor and traffic-route safety; transient hazards, contributory negligence
In Ellis The Court of Appeal has considered the standard required of employers in relation to the condition of floors and traffic routes under Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and has come to a decision that significantly favours claimants.
Mrs. Ellis worked as a part time care assistance at a home for the elderly and mentally infirm. The home was L-shaped and there was a smooth vinyl corridor running through it. One of the residents had the tendency to urinate in the corridor, often at the former of the L. Two non-slip maters were placed there as a result. Other residents were also incontinent and it was not uncommon for staff to find urine on the floor of the corridor or of a room. Mrs. Ellis injured herself when she slipped on some urine on the vinyl floor, having gone round the corner and over the non-slip mats. Before Mrs. Ellis’s accident, there had been various falls over the years because of urine on the floor and staff were recorded as having to mop up urine several times daily. A risk assessment carried out in the month before this particular accident led to the mats being placed at the corner of the corridor and further warnings being given to staff about the need to be careful.
The Claimant relied on Regulations 12 (1), which provides that:-
Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of he traffic route is suitable fort the purpose for which it is used.
Her fallback case was Regulation 12(3):
So far as reasonable practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any particular or substance which may cause a person to slip, trip or fall.
A claimant is likely to prefer to rely upon Regulation 12(1) than to use Regulation 12(3) since the later obligation has a “reasonable practicability” defence and the former is a stricter standard: if the construction of the floor is not suitable for its purpose, then there is a breach of duty. In the end, she succeeded on Regulation 12(1) and so the Court of Appeal did not need to consider the fallback case.
Under Regulation 12(1), Mrs. Ellis said that a non-slip floor should have been installed: the vinyl flooring was unsuitable as it was slippery when wet and residents urinated upon it frequently. A report from the National Care Standards Commission prepared post-accident, but based on an inspection pre-accident, recommended the installation of a non-slip floor and this was later carried out. The defendant said that the fact that the floor was slippery when wet did not render it unsuitable for use. Urine on the floor was a transient problem. The presence of urine had no bearing on the suitability of construction of the floor. It was also argued that Regulation 12(1) was directed at construction and Regulation 12(3) at maintenance; transitory conditions should be considered under Regulation 12(3), not the stricter test of Regulation 12(1).
Smith LJ, giving the leading judgment, said that the trial judge had erred by failing to consider whether the floor was suitable for its use in the circumstances in which it was being used. She concluded that the Court had to consider suitability in context, including in circumstances that were temporary in nature so long as they arose ‘with a sufficient degree of frequency and regularity.’ Regulation 12(1) read together with Regulation 12(2), not only covered permanent slipperiness but also some temporary slipperiness, Smith LJ said that:-
If a smooth floor is frequently and regularly slippery, because of a substance which lied upon it, albeit only temporarily, the surface of the floor may properly be said to be unsuitable, if the slipperiness is such as to give rise to a risk to the health and safety of those employees using it.
In contract, Regulation 12(3) was there to cover transitory conditions that occurred less frequently and it would be a matter of judgment in each case whether the hazardous condition arose with sufficient frequency and regularity to make the floor unsuitable for use. In this case, in all the circumstances, the floor was not suitable as it was dangerous when wet, accidents had already occurred and further accidents, which could well be quite serious, were likely. The result of the judgment is that many claims that previously would only have been considered to fall under Regulation 12(34) will now need to be looked at under the stricter test of Regulation 12(1). There is the potential for considerable debate about whether any particular temporary condition has arisen with a sufficient degree of frequency and regularity to make it incumbent upon the employer to make the construction of the floor or traffic route more suitable. In each case, though, it will still be necessary to consider ‘suitability’ in the full context, including the degree of risk, the nature of the people exposed to the risk, the frequency of previous accidents and so forth. Not every flaw will render a floor unsuitable, as shown by the earlier Court of Appeal decision in Palmer v Marks & Spencer  (where a very small weather strip on the floor by a door, which had never caused any problems before, was not regarded as posing a risk to the ordinary person’s health and safety) Perhaps the only crumb of comfort for the employer in Ellis was the apportionment of one-third contributory negligence, for her:
….lack of concentration on the risk to be expected at the former [which] went beyond mere inadvertence.
Defendants may well fear that this case is the start of a ‘slippery slope’ where trial judges will be increasingly open to finding that the transitory condition was sufficiently common to require changes to the construction of the floor or traffic route – an obligation more onerous than merely taking reasonable practicable steps to keep the floor free of spillages and substances.
Credit for this article is given to Tim Petts, a barrister. The article was reported in the Personal Injury Law Journal.