Ellis v Bristol City Council [2007] EWCA Civ 685

This case relates to an appeal against the dismissal of the appellants claim for damages for personal injury sustained in an accident at work in an EMI home owned by Bristol City Council (Bristol) when she slipped in a pool of urine left by one of the residents in the main corridor of the home.  The claim was made under s12 Workplace (Health & Safety) Regulations 1992 and common law negligence.

E was a care assistant at the home and the accident occurred as she was walking along the corridor.  It was not uncommon for residents to urinate on the floor at that time. The surface of the floor was made of vinyl and was slippery when wet.  A number of accidents had occurred due to the presence of urine on the floors.  Risk assessments had been carried out prior to the appellant’s accident by the deputy manager at the home and as a result staff were made aware of the hazards and requested to be more vigilant.  Non-slip mats were placed in the corner in the corridor.  Although a NCSC inspection report had recommended that the flooring be changed to non-slip safety flooring this was not done prior to the appellant’s accident.  There was however a system of rapid cleaning in place when a pool of urine was found.

The appellant alleged a breach of regulation 12(1) and (2) on the basis that the floor was not suitable for the purpose for which it was used because residents urinated on it frequently and it became slippery when wet.   Secondly, a breach of regulation 12 (3) in that the respondent had not so far as was reasonably practicable kept the floor free of a substance (urine) likely to cause persons to slip.

The court of first instance found against the appellant on all issues of primary liability and did not make any finding on the issue of contributory negligence.  The main issue in the court of appeal was the judge’s treatment of Regulation 12(1) and (2).  The court was critical of the failure to use the Code of Practice to the Regulations as an aid to the construction.  It was well established that such publications could be referred to in civil litigation and although this type of guidance had to be treated with caution as it did not carry the authority of a decision of the courts, it should have been considered.  Guidance on the interpretation on the approach to “suitability” in s12 had been issued by the court in Marks & Spencer PLC v Palmer.  The test of suitability was an objective one and Regulation 12(1) and (2) should be considered together in the context of all the relevant factors.  The Marks & Spencer case could however only give guidance on the general approach rather than conclusion since the construction issue in that case was significantly different.   A court needed to consider “suitability” in context of circumstances of use, including any temporary conditions or states.   A judgment had to be made in each case as to whether a hazardous condition arose with such frequency and regularity as to make the floor “unsuitable for use”.  If it did, the employer’s liability was strict. If the hazardous condition did not arise with sufficient frequency or regularity the floor would be suitable for use but the less onerous duty under Regulation 12(3) would require the employer to do all that was reasonably practicable to avoid the presence of the slipping hazard.

In considering all relevant factors in this case, the court of appeal turned to the instant case in which it was a fact that there was a frequent and regular presence of urine on the floor due to the incontinence of residents.  There had been previous accidents due to this hazard and a fall by slipping in urine causing injury was an entirely foreseeable event.  It was not open to the Council to assume that staff within this environment would always be able to check carefully for such hazards.

Bristol’s floor was dangerous when wet and wetness occurred regularly and could not be avoided. Accidents occurred and were likely to re-occur.  The floor was therefore unsuitable for the purposes for which the staff used it.  There had been a breach of Regulation 12(1).  Appeal allowed.  Finding of contributory negligence was based on the fact that the appellant had been warned of the danger and her lack of concentration was more than mere inadvertence. Damages were therefore reduced by one third.

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