Lewis v Avidan Ltd (t/a High Meadow Nursing Home) [2005] EWCA Civ 670

Case No B3/2004/2259[2005] EWCA Civ 670IN THE COURT OF APPEALCIVIL DIVISIONVenue Royal Courts of JusticeStrandLondon WC2Date Wednesday 13 April 2005B E F O R E:LORD JUSTICE MAYandLORD JUSTICE RIX
Between
WENDY SUSAN LEWISClaimant-v-
Between
AVIDAN LIMITEDDefendantTRADING AS HIGH MEADOW NURSING HOMEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR N. SPENCER LEY appeared for CLAIMANTMR A. JEFFREYS and MR P. FREEMAN appeared for DEFENDANT
J U D G M E N T
[1]The claimant, Wendy Lewis, had in October 2000 worked as a care assistant at High Meadow Nursing Home for a long time. The nursing home is owned and run by the defendants. On 16 and 17 October 2000 the claimant was on night duty. Towards the end of her 12-hour duty, at about 6.00 o'clock in the morning of 17 October, she came down to a first-floor hallway, where she slipped on a patch of water on the linoleum floor. She was unfortunately injured.[2]She brought these proceedings against the defendants, claiming damages for her injury. She said that the defendants were negligent, in breach of the Occupiers Liability Act, and in breach of a number of regulations under the Workplace (Health, Safety and Welfare) Regulations 1992. These regulations were made to implement a European Framework Directive (Council Directive 89/391/EEC) of 12 June 1989 and a Workplace Directive (Council Directive 89/654/EEC) of 30 November 1989. There is, I think, nothing relevant to be derived from these directives except that they contain minimum requirements.[3]The defendants defended the claim. There was a split trial. The issue of liability was tried by Her Honour Judge Hallan in the Canterbury County court, sitting quixotically at Bromley. The Judge gave judgment on 14 October 2004, dismissing the claim. The claimant appeals with leave of the Judge herself. The appeal raises a single short but quite important point.[4]The water on which the claimant slipped was on the linoleum floor because a concealed water pipe had unexpectedly burst soon before the accident. No one knew about this before the claimant came upon the wet floor. The Judge held that the defendants were not at fault as to the wet state of the floor; nor were they negligent about the bursting of the water pipe; so the claimant's claims in negligence and under the Occupiers Liability Act failed. There is no appeal against any of this.[5]The Judge also made findings against the claimant, which resulted in her claim failing under regulations 8 and 12 of the 1992 regulations, and there is no appeal against that. Regulation 8 concerns lighting. Regulation 12 concerns the condition of floors and traffic routes. There was nothing wrong with the floor itself, so there was no breach of regulation 12(1) or 12(2). Regulation 12(3) provides:
"So far as is reasonably 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 article or substance which may cause a person to slip, trip or fall."
[6]The Judge, having acquitted the defendants of negligence, held that this regulation was not broken. There was no appeal against that finding. The critical words for the purpose of that finding were the opening words "so far as is reasonably practicable".[7]In the light of the Judge's findings of fact, which are not challenged, the appellant's case and this appeal turns on regulation 5. Regulation 5 provides: “(1) The workplace and the equipment, devices and system to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair. (2) Where appropriate, the equipment, devices and systems to which this regulation applies shall be subject to a suitable system of maintenance." This regulation, so far as it goes and if it applies, is absolute. See Galashiels Gas Company Ltd v. O'Donnell [1949] AC 275 and Stark v. The Post Office [2000]) PIQR 105. Stark shows that this is so even if the defect is not reasonably discernible.[8]The Judge held that regulation 5 did not apply. In essence she held(1) that a strict application of regulation 5 would produce unintended results;(2) that the pipe which burst did not cause the claimant's injury;(3) that if regulation 5 is as wide as the claimant contends, there was no purpose in regulation 12, or at least regulation 12(3). The two regulations could not both apply.[9]The Judge accepted that there was a defect in the pipe but the burst did not cause the injury. She decided that regulation 12(3) applied and that regulation 5 did not. She therefore dismissed the claim.[10]The claimant submits that on the facts which the Judge found, she should have found that regulation 5 applied and that the defendants were in breach of it. On the facts, the workplace, it is submitted, was not maintained in an efficient condition, in efficient working order and in good repair. The Judge was wrong to hold that the burst water pipe did not cause the accident; it plainly did. The Judge was also wrong to hold that regulations 5 and 12(3) were mutually exclusive, a finding for which there was no logic or authority. There could plainly be circumstances in which regulation 12(3) would apply but regulation 5 would not, as if the workplace including the floor was in good order but there was a spillage on the floor which ought to have been removed.[11]There is a respondent's notice, which emphasises more strongly the submission that regulations 5 and 12(3) are mutually exclusive and which contends that a water pipe is not equipment, a device or a system within regulation 5. Mr Jeffreys for the respondent submits in writing that regulation 12 constitutes a complete and coherent code, which covers all workplace dangers relating to floors and traffic routes. If it had been intended to impose absolute obligation in relation to floors, regulation 12 would not have been in its present form. Regulation 5 is restricted to the maintenance of the workplace and certain equipment, devices and systems, and the other regulations cover specific features including the floors. The pipe is not part of the workplace; nor is it equipment, a device or a system.[12]In my judgment, some of the wording of the regulations needs careful attention. First, there is in regulation 2 a definition of workplace. It is as follows:
"‘workplace’ means, subject to paragraph (2), any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes -- (a) any place within the premises to which such person has access while at work; and (b) any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with the place of work other than a public road;"
This definition obviously includes the floor on which the claimant slipped, but it does not include the enclosed pipe.[13]Mr Spencer Ley on behalf of the claimant accepts this. The enclosed pipe was not premises or part of premises made available to any person as a place of work. The claimant and her colleagues did not have access to it while at work. This construction is consonant with the Scottish decision in Beck v. United Closures and Plastics Limited (2001) SLT 1299, where it was held that two heavy doors in which the pursuer trapped his hand were not within the definition of workplace, which contemplated open spaces.[14]On the Judge's findings, the floor was maintained in an efficient state and in good repair. The trouble was that it was temporarily wet. There was no breach of regulation 5 because of the state of the floor taken alone; nor was there breach of regulation 5 because of the defective state of the pipe, on the footing that the pipe was part of the workplace, which it was not.[15]The question, to my mind, is whether the pipe was equipment, a device or system to which regulation 5 applied. As to that, regulation 5(3) provides:
"The equipment, devices and systems to which this regulation applies are -- (a) equipment and devices a fault in which is liable to result in a failure to comply with any of these Regulations."
Sub-paragraph (b) is concerned with mechanical ventilation systems.[16]I am prepared for the moment to assume that the pipe was equipment within this definition. It is also clear that, unknown to the defendants, the pipe was not in good repair. The single question then is whether a fault in the pipe would be liable to result in a failure to comply with any of the regulations. A fault in the pipe would be liable to produce a flood, which might make the floor wet and slippery, but that alone would not result in a failure to comply with regulation 12(3).[17]Breach of regulation 12(3) occurs not simply because the floor is slippery but when the employer has failed to take reasonable steps to prevent the floor being slippery or to mop it up. It would be that failure, not the bursting pipe, which would result in a failure to comply with the regulation.[18]I do not accept Mr Spencer Ley's half-hearted submission that a burst pipe would be liable to result in a failure to comply with regulation 12(1). That is concerned with the construction of floors and not with any temporary wet state. Accordingly, in my judgment, the single point boils down to the issue whether a burst water point is liable to result in a breach of regulation 5(1) and whether the workplace would then not be maintained in an efficient state. Efficient working order and good repair are obviously not in point.[19]Mr Spencer Ley submits there would be such a breach. I disagree. His submission requires, I think, an erroneous and strained construction of regulation 5(1). Perhaps it could be said that a flood could make the floor not in an efficient state; but those words have to be read in their context. The workplace, including the floor, has to be "maintained (including cleaned as appropriate) in an efficient state", and "efficient state" appears in conjunction with "efficient working order and good repair". The word "maintained" imports the concept of doing something to the floor itself, such as cleaning or repairing it. The mere fact of a flood does not mean that the floor is not maintained in an efficient state.[20]As Lord Oaksey said in Latimer v. AEC Limited [1953] AC 643 at 656:
"On the question of the construction of section 25(1) of the Factories Act, 1937, I am of the opinion that by virtue of that section and the interpretation section 152, the respondents were bound to maintain the floors and passages in an efficient state, but I do not consider that it was proved that they were not in an efficient state. A floor does not, in my opinion, cease to be in an efficient state because a piece of orange peel or a small pool of some slippery material is on it. Whilst I do not agree that the maintenance of the floors is confined to their construction, I think the obligation to maintain them in an efficient state introduces into what is an absolute duty a question of degree as to what is efficient."
Mr Spencer Ley suggests that this could mean that a small amount of water would not be a breach of the regulation but that a flood might be. I disagree. This again veers away from “maintaining”. The mere fact of an entirely unexpected and unpredictable flood does not mean that the floor is not maintained in an efficient state. There would, of course, be a breach of regulation 12(3) if the employer did not have the flood mopped up properly; but that is not the present case.[21]The construction which I favour means that the pipe which burst, although it may have been equipment, was not equipment a fault in which was liable to result in a failure to comply with any of the regulations, in particular regulation 5(1). This in turn means that the respondents in the present case were not, on the facts, in breach of regulation 5(1).[22]For these reasons, I would dismiss this appeal.

LORD JUSTICE RIX: I agree.