The law in slipping cases is, in theory, settled and straightforward. One question that often arises in practice, however, is whether the occupier bears an evidential burden of proving that it had in place a proper and adequate system. How does this evidential burden work.
The starting point is s2(2) of the Occupiers’ Liability Act 1957. An occupier of premises owes a visitor a duty:
…to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
In supermarkets slip cases there is an evidential burden on the defendant to demonstrate the existence of a proper and adequate system for inspection and cleaning. This represents a departure from the default position in a claim where the claimant bears the burden of proving that the defendant failed to exercise reasonable care.
Where the occupier was a school and a pupil slipped on water which had been ‘walked in’ when it started to rain during a break before the relevant system (warning signs etc) had been implemented the issue was whether there was a proper system in place for preventing the hall floor from getting wet and cleaning up water if the floor did become wet. As to the system, which offered a narrow window of opportunity for water to be walked into the hall after it started to rain, the Court held that:
…it is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring. What is required both by the common law and Section 2 of the Occupiers’ Liability Act 1957, is the exercise of reasonable care.
The court found that reasonable care had been exercised. Further, the court did not :
…regard it as realistic to say that the school should have had a system in place whereby the small area of water should have been spotted and mopped up during the brief period of time between its arrival and the moment when the Claimant slipped.
This case is significant because it was held to not be a supermarket-type case. Distinguishing the Judge held:
In this case the evidence does not show that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up. What the defendant put in place in the present case was a proper system to prevent water being deposited on the assembly hall floor. Unfortunately that system did not prove effective on [the date of the accident].
In the supermarket case:
It is for the claimant to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the [claimant] has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers.
…the premise is that it was proved that the defendant ‘knew that during the course of a working week there was a likelihood of spillage posed a danger to customers if the spillage was not dealt with quickly.
Thus where a holidaymaker slipped on a patch of water on a flight of polished granite steps at a hotel – the Court concluded that this was not a supermarket type case :
There was no finding that spillage or the presence of water was likely in this area. The judge did say that ‘there was a foreseeable danger arising from the use of the stairs by children or even adults who have come fresh from the pool’. That however falls far short of a finding that the hotel knew of the likelihood of a dangerous situation arising. Not everything which is foreseeable is likely. There was here no evidence that slipping at this place was a known likely risk, with sufficient frequency of occurrence that it required a system to remove it, so that an accident could be inferred to be the result of the absence of a system which ought to have been in place or a failure in the operation of the system.
In a case concerning a passenger on a cruise line who slipped on water near a drinks dispensing station. The issue was how long the water had been there. According to the Court:
There was, in my view, an evidential burden upon the [defendants] to show how long the water had been on the floor. On balance of probability, it can be inferred that it was a passenger rather than a member of staff who was responsible for the spillage. If, through another passenger’s lack of care, it had been there only for a very short time, the respondents may escape liability. If, on the other hand, it had been there for a significant period of time, they were negligent in failing to have taken remedial action.
The evidence in cruise liner case showed that there were many staff members present in the relevant area to assist passengers, with the expectation that any spillage would be picked up almost instantaneously. The Court opined that the absence of evidence from one or more of the many members of staff claiming to be present in that area at the material time was ‘remarkable’:
The defendant is not under anything like a strict liability, but it is incumbent on the defendant to adduce evidence of what the system is, or rather what it was at the relevant time, and how it operated or was applied at the relevant time. What that evidence will be may depend on the circumstances, and as I say a claim notified late or very late may pose forensic problems for the defendant. Even in such a case, it is likely to be wise at the very least for the defendant to attempt to identify and trace relevant members of staff and, if unable to find any such person, to say so, in order to be able to rely on convincingly on indirect evidence of the system which would have been in operation and would have been applied in such and such a way at the relevant time.
Against the above background, a key issue in any slipping case will be whether it is a supermarket type case or an occupier such as a school. That question will turn on the nature and context of the spillage. It is necessary to ask whether it can be inferred that the accident arose from the absence of a system that ought to have been in place or a failure in the operation of the system.
Another key question in any case will be how long the spillage had been present. This issue will arise regardless of where the evidential burden lies, but its resolution may well turn on which party bears that burden. In a supermarket-type case, by contrast, unless the claimant is able to demonstrate fault on the defendant’s part, liability will not be established.
It is possible to distil the following points from the authorities:
An evidential burden upon the defendant will only arise where the evidence shows that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up, such that it can be inferred that the accident was the result of the absence of a system that ought to have been in place or a failure in the operation of the system The burden of proving this lies on the claimant
This situation most commonly arises in the case of shops and supermarkets or bars and restaurants
A case is not a ‘supermarket’ tyoe case merely because it involves a person slipping on water or liquid on the floor. This is so even where the accident occurs in an environment containing vulnerable people such as children
Where the evidence demonstrates that the spillage had only been present for a short time, the defendant will likely escape liability; indeed, it is a counsel of perfection to hold that the defendant ought to identify and remedy a spillage as soon as it takes place
The duty on the defendant is only to take reasonable care, not to keep the claimant absolutely safe