Ellis v Bristol City Council: [2007] EWCA Civ 685

CA: Smith, Lloyd and Wilson LJJ: 5 July 2007

The claimant worked as a part-time care assistant at a home, operated by the defendant, for elderly persons suffering from dementia, most of whom were incontinent. Urine had to be cleared from the floor several times a week, and between August and October 2002 there were three accidents involving people stepping on urine on the floor of a corridor, though none resulted in serious injury. Thereafter, the defendant placed two non-slip mats in the corridor and displayed a notice warning residents and employees about the slipping hazard and requiring them to be extra careful to avoid patches of urine on the floor. In November 2002 the claimant slipped on a pool of urine and sustained serious injuries. In her claim for damages against the defendant, the claimant alleged, inter alia, that the defendant was in breach of its statutory duty under regulation 12(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992 by failing to keep the floor and surface of the workplace suitable for the purpose for which it was used. The defendant denied liability, contending that it was regulation 12(3) that applied and that it had, so far as was reasonably practicable, taken steps to ensure that the floor was free from any article or substance which might cause a person to slip or fall, and it also alleged contributory negligence by the claimant. The county court judge held that the defendant was not liable for the accident and dismissed the claim. She also refused to consider the practical guidance provided by the Approved Code of Practice and Guidance issued by the Health and Safety Commission pursuant to section 16 of the Health and Safety at Work etc Act 1974.

The claimant appealed.

The Court of Appeal held:
(1) A code of practice designed to give practical guidance to employers as to how to comply with their duties under statutory regulations could be taken as providing some assistance as to the meaning the regulations were intended to have, though it was always necessary to treat such guidance with caution. Regulation 12(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992 required that the surface of a floor or traffic route in a workplace must not be slippery, and, given that the purpose of the provisions was to promote the safety of workers, it could not have been the intention to restrict that requirement to permanent states of slipperiness. Accordingly, regulation 12(1) and (2) applied to states of slipperiness which, though temporary in nature, occurred with a sufficient degree of frequency and regularity to give rise to a risk to the health and safety of the employees using the floor. Since, on the facts, the floor was dangerous when wet and wetness occurred frequently and regularly and could not be avoided, it was unsuitable for the purpose for which it was used, and the defendant was in breach of its duty under regulation 12(1).

(2) There was no reason why the claimant could not have kept a special look out at a place where she knew there was an increased risk of a hazard, given warning notices in the staff room and the corridor, and her lack of concentration went beyond mere inadvertence, but the defendant's liability under a provision of strict liability connoted a higher degree of responsibility. The claimant should bear one-third of the responsibility for her accident.

The appeal was allowed.

Appearances: Anthony Reddiford (Wards, Bristol) for the claimant; Ronald Walker QC (Wansbroughs, Devizes) for the council.