Merseyside Fire and Civil Defence Authority v Bassie [2005] EWCA Civ 1474

Case No B3/2005/0677

[2005] EWCA Civ 1474

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LIVERPOOL COUNTY COURT

(HHJ PLATTS)

Venue Royal Courts of Justice

Date Tuesday, 1 November 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE WALLER

LORD JUSTICE TUCKEY

LORD JUSTICE NEUBERGER

Between

MERSEYSIDE FIRE AND CIVIL DEFENCE AUTHORITYAppellant

-v-

Between

GAVIN FRASER BASSIERespondent

(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR MARK TURNER QC AND MR SIMON GORTON (instructed by Messrs Weightmans) appeared for Appellant

MR FRANK BURTON QC AND MR PETER COWAN (instructed by Messrs Thompsons) appeared for Respondent

J U D G M E N T

LORD JUSTICE TUCKEY:

This

[1]is an appeal from a judgment of HHJ Platts, given in the Liverpool County Court in which he awarded the claimant, Gavin Bassie, £100,000 damages (which were agreed subject to liability) for a serious injury sustained to his left knee in the course of his employment with the defendant Fire Authority.

[2]The accident happened on 7 February 2001 in the appliance room at the Old Swan Fire Station in Liverpool. That room, as its name implies, usually houses fire appliances. But on the afternoon in question, it was being used, as it was most days, for firemen's fitness training. The claimant was one of three firemen taking part. In order to warm up, they were running at little more than jogging pace and changing direction from time to time on the command of the man in charge. On such change the claimant fell and suffered the injury to which I have referred. There was a hotly contested issue at trial as to why the claimant fell. The judge found that he had slipped and there is no appeal against this finding.

[3]The judge went on to find that the claimant had slipped on an invisible layer of fine dust and that the defendant was liable to him for breach of Regulations 5(1) and 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992 and at common law. The defendant challenges each of these findings.

[4]Returning to the facts, the claimant was wearing suitable footwear and there was nothing wrong with the floor as such, provided it was kept clean. It was thoroughly cleaned once a week, and before fitness training took place it was inspected and swept with a brush. This had been done by one of the three men on the day of the accident. Neither he nor the other man saw the claimant fall. The judge accepted that after the claimant had gone to hospital, the two men inspected the floor where he had fallen to see if they could discover why this had happened. There was nothing obvious to be seen and when one of them rubbed his foot over the area it did not feel slippery. However, when one of them ran his hands over the surface of the floor, he discovered that it was covered with a fine film of dust. A number of these additional facts were very much in issue at trial, but again are not challenged on appeal.

[5]The first challenge is to the judge's finding of causation. Did the dust, to which I have referred, cause the claimant to slip? Mr Turner QC for the claimant says that it was not open to the judge on the evidence to make a finding that it did; or at least that the judge did not deal with this issue satisfactorily. He made no finding that the dust was slippery and the mere fact that the claimant fell did not prove that it was. Mr Turner referred us to the report of the only expert in the case, Mr Holden, who inspected the premises and saw visible dust on the floor which he photographed. When he tested it, it caused only a marginal reduction in the floor's slip resistance. This obviously did not support the claimant's case, but Mr Holden was cross-examined about fine dust. The substance of his evidence can be gleaned from the followed passage:

"[It has] the same effect that you get from spreading French chalk on a dance floor, the most minute particles of solid matter help to create the slippery surface. If you had swept the floor and swept away as much of the road grime as you can the likelihood is you are going to leave the dust behind, a very fine dust, because the brush is not going to shift those fine particles off the floor ... If you introduce dry lubricant material to a floor of this nature you are going to introduce an element of slippiness which was not there before."

This evidence obviously did support the judge's conclusion. But Mr Turner argues that it was theoretical and the judge made no finding as to which type of dust was on the floor at the time of the accident. I do not accept this submission. The judge accepted the evidence that there was a fine film of dust on the floor, and that it was slippery when one ran one's hands over it. That is the kind of dust described by Mr Holden in the evidence which I have quoted.

[6]In his careful judgment, after dealing with a number of points on causation made by the defendant's counsel,

the judge concluded:

"I therefore find that the dust did cause the claimant to slip. I rely in part on the fact that I have found that there was a slip; that uncontaminated this floor was safe. Something must have caused the claimant to slip, otherwise it is unlikely that he would have slipped. It is clear, on the totality of the evidence, that the only factor was dust on the floor ... "

[7]The logic of this conclusion is, I think, irresistible. It was certainly a finding of fact which the judge was entitled to make on the evidence to which I have referred, and not one with which this court could or should interfere.

[8]I turn to the finding of breach of statutory duty. It is convenient to deal first with Regulation 12(3). That says, so far as relevant, that:

"So far as is reasonably practicable, every floor in a work place ... shall be kept free from ... any ... substance which may cause a person to slip ..."

The judge found:

"I am satisfied that it would have been reasonably practicable to remove such dust as there was before a physical training exercise by damp mopping, as suggested by Mr Holden and indeed was carried out by Mrs Jones regularly on a Thursday morning."

Mrs Jones was the cleaner who thoroughly cleaned the floor each week. Her cleaning took four hours and involved brushing, wet mopping, machine scrubbing and then another mopping. The accident happened on a Wednesday, the day before the next thorough clean was due to take place.

[10]The defendant had not pleaded the defence of reasonable practicability as it should have done. None of its evidence was specifically directed to this issue either, and in his closing submissions to the judge counsel for the defendant did not strongly dispute that if he lost on the hotly contested facts and the judge found that the accident happened because the claimant slipped on a dusty floor, a breach of Regulation 12(3) would be made out. Nevertheless, the judge dealt with the issue, and I think it is preferable that we should as well, despite what appear to be sound reasons why we should not.

[11]Looking at the language of the Regulation, it seems to me that the dust on the floor was a substance which might cause a person to slip. No question of knowledge or foreseeability is involved at this stage. The mere presence of a substance which may cause a person to slip is enough to engage the obligation imposed by the Regulation, subject to the reasonably practicable defence, which it is for the employer to prove.

[12]As I understood it, Mr Turner did not dispute this analysis. He focused on the reasonably practicable defence. This had to be judged at the moment before the accident; not with the benefit of hindsight after the accident. This is not therefore a question of how could this accident have been avoided; rather it is a question of balancing the known risk against the effort and expense of eliminating or reducing it.

[13]Here, he submits, before the accident the defendant had a system of cleaning which had prevented accidents, and it was unaware that there was anything on the floor which constituted a slipping hazard which could not be removed by brushing. On the other hand, additional mopping would have been possible but, according to the station officer, would have made it virtually impossible to use the appliance room for fitness training because of its size. So, Mr Turner submitted, performing the balancing act before this accident, the judge should have concluded that mopping was not reasonably practicable.

[14]I disagree. The defendant had a cleaning schedule for the floors in the fire station. This shows that the appliance room had a concrete floor with a lower slip resistance than the gym where fitness training or the like was also carried out. The appliance room floor was to be swept and damp mopped weekly, but the gym daily. The defendant also carried out risk assessments of various activities, including fitness training. This assessment said:

"Fitness training will be carried out in station appliance rooms, and as a consequence these will need to be kept to a high standard of cleanliness. All floor areas will need to be checked by the Watch Physical Training Instructor and Officer-in-Charge prior to the commencement of the activity. Special attention will need to be given to any water or oil which may be lying on floor surfaces and also any avoidable risks which may be apparent. The use of cones to nominate a safe area should be considered."

[15]As well as the defendant's knowledge to be gleaned from these documents, it knew that dust and dirt would be carried into the appliance room from vehicles and firemen coming in and out of this part of the station and crossing the area near the doors where the training was carried out. They knew that this area was only thoroughly cleaned once a week and so fitness training might take place, as it did in this case, six days after such cleaning. Against this there was really no evidence before the judge as to the effort and expense required to carry out wet mopping after brushing. But there is no reason to think that the fireman who carried out the brushing could not also carry out the mopping at no or no real expense to the defendant.

[16]In these circumstances I have no doubt that, on the facts of this case, it was open to the judge to find that it was reasonably practicable to keep the floor free from dust. What could they have done? Answer: mopping.

[17]So, for those reasons, I do not think that the judge's finding that there was a breach of Regulation 12(3) can be faulted. This makes it unnecessary to consider Regulation 5(1), or the finding that the defendant was in breach of the common law duty of care. We have had a short but interesting argument about the effect of Regulation 5(1) in a case of this kind. This is a matter which has recently been considered by this court and I do not think it would be appropriate (since it is academic in this case) to consider the matter further.

[18]However, for the reasons I have already given, I think this appeal should be dismissed.

LORD JUSTICE NEUBERGER: For the reasons given by my Lord, Tuckey LJ, I too agree that this appeal should be dismissed.

LORD JUSTICE WALLER: I also agree.

Order

Appeal dismissed with costs.