Ellis v Bristol City Council [2007] EWCA Civ 685

[2007] EWCA Civ 685Case No B3/2006/2494
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM BRISTOL COUNTY COURT
HH JUDGE STUART-BROWN
5BS14537
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/07/2007
Before
LADY JUSTICE SMITHLORD JUSTICE LLOYDLORD JUSTICE WILSON
Between
SUSAN ELLISAppellantBRISTOL CITY COUNCILRespondent
Anthony Reddiford (instructed by Wards Solicitors) for AppellantRonald Walker QC (instructed by Wansbroughs Solicitors) for RespondentHearing Hearing date : 25 May 2007
Judgment

Introduction

[1]This is an appeal from the decision of HH Judge Stuart-Brown sitting in the Bristol County Court handed down on 10th November 2006. Following a trial of the issues of liability only, the judge dismissed the appellant’s claim for damages for personal injury sustained in an accident at work on 24th November 2002.

The Evidence

[2]The appellant was employed part time as a care assistant at Gleeson House, Bristol, a home for the elderly and mentally infirm run by the defendant, the Bristol City Council. She had been so employed since 1993. Many of the residents of the home suffered from incontinence. The appellant was injured when she slipped in a pool of urine left by one of the residents on the main corridor of the ground floor of the home.[3]The layout of the home, which was built in the 1950s, was L-shaped. The main corridor ran from the front entrance, past various communal rooms and some bedrooms, until it turned a 90-degree corner to the right and continued, through a pair of (open) fire doors and on past more bedrooms and various service facilities including a linen room. The surface of the floor was made of vinyl and was smooth. It was washed daily and buffed with a machine. It was slippery when wet.[4]At the time of the accident, two non-slip mats had been placed at the corner. They were arranged so as to abut each other, on the corner itself. The mat round the corner did not reach to the fire doors. The mats had been placed on the corner because a particular resident named Mrs C had a habit of urinating in the corridor; often she did it at or near the corner.[5]The appellant’s accident occurred when she was walking along the corridor towards the linen room. She fell just after she had turned the corner but before passing through the fire doors. It was not disputed that she slipped on urine and that the urine was lying on the smooth floor not on a mat. Eventually the judge found that the urine ‘extended’ beyond the mats; the appellant must have crossed the mats but slipped before passing through the fire doors.[6]There was some evidence as to the frequency with which residents urinated on the floor. There were about 30 residents; all suffered from dementia and most were incontinent. They were free to walk about the home unaccompanied and it was not at all uncommon for a member of staff to find that a resident had urinated on the floor, either in the corridor or in one of the rooms. The house rule was that, if a member of staff came across urine on the floor, she must either call for a cleaner to come immediately or, alternatively, clean it up herself. The appellant’s unchallenged evidence was that this would happen several times a week.[7]Notwithstanding the rule about immediate cleaning, a number of accidents had occurred due to the presence of urine on the floors. Accident records were available since 1999, not before. Since 1999 but before the appellant’s accident, 12 falls had been recorded and attributed to the presence of urine on floors. Of those, 8 had occurred on the corridor; the rest had occurred in bedrooms. Of the 12, 9 had involved residents; three had involved members of staff. The appellant herself had had a previous accident, in August 2002, when she had slipped in urine on the corridor. Ms Alyson Caddick (the manager of the home at the time of the trial) accepted that there had been similar falls in the years before 1999 when the current method of recording had begun.[8]At some time prior to the appellant’s accident in November 2002, the resident Mrs C had developed a habit of urinating in the corridor, mainly but not only near the corner. It was not clear from the evidence when this habit began. However, the first reference to it in the respondent’s documents was an accident report, dated 25th October 2002 when a resident, Mrs W, slipped in urine on the corridor and fractured her hip. The report said that Mrs W had been walking along the corridor behind Mrs C, who was urinating as she went.[9]Only 3 days later, on 28th October, another resident, Mrs T, fell in urine which had been passed by Mrs C. Mrs T cut her head and had to be taken to hospital. On the accident report form, Mrs Diane Holloway, then the manager of the home, recorded that there would be an investigation ‘to seek answers to this dangerous problem’. The investigation report stated that ‘it is known that a resident is passing urine in several places on the ground floor corridor. It has been witnessed by staff on several occasions’. Later on the form it said: ‘Staff are mopping up urine several times daily’.[10]On 31st October, a risk assessment was carried out by Mrs Holloway and Ms Caddick (who was then deputy manager of the home). It was apparently triggered by Mrs W’s accident and possibly also Mrs T’s. So far as relevant it said:
“LOCATION: Gleeson House – Corner of downstairs corridor. HAZARD/TOPIC/ACTIVITY: A resident chooses to frequently urinate in this area, floor particularly slippery when wet here. PERSONS AT RISK: all residents. (Staff made aware and are able to comprehend fully). DESCRIPTION OF HAZARD AND LIKELY CONSEQUENCES: There have already been a higher number of falls here, causing a particularly serious injury to one resident. EXISTING PREVENTATIVE AND PROTECTIVE MEASURES: Staff made aware and asked to be more vigilant. i.e.checks more frequent, resident taken to lavatory when seen in this area, resident now wearing pads back to front and trousers (removes pad and refuses lavatory). PROBABILITY/LIKELIHOOD: Likely. DEGREE OF INJURY: Major. ACTION REQUIRED – RANKING: 1st. FURTHER ACTION PROPOSED TO REDUCE THE RISK (CONTROL MEASURES): Non-slip mat moved to area warning sign put in area copy of assessment displayed in staff room fire doors kept closed. IMPLEMENTATION DATE: 31-10-02”
IMPLEMENTATION DATE: 31-10-02”[11]A footnote to the assessment form explained that ‘first rank action’ meant that:
‘action must be taken to reduce the risk and contact safety officer for further advice’
. On the following page appeared guidance as to the assessment of the probability or likelihood of the hazardous activity causing injury or damage. The term ‘likely’ was to be used if the hazardous activity occurred repeatedly and/or was an event ‘only to be expected’. Guidance was also given as to when the combination of likelihood and seriousness of injury gave rise to the requirement for a first ranking action.[12]Following this risk assessment, two non-slip mats were placed at the corner in the corridor. An order was placed for the purchase of two larger non-slip mats. The risk assessment was posted on the staff notice board and staff were asked to sign to say that they had read it. A notice was also placed in the staff room which said: HEALTH AND SAFETY WILL ALL STAFF BE EXTRA CAREFUL WHEN GOING AROUND THE UNIT TO AVOID PATCHES OF URINE ON THE FLOORS THERE HAVE NOW BEEN TWO ACCIDENTS THOUGHT TO HAVE HAPPENED BECAUSE OF THIS13. There was also a notice posted at the end of the corridor just before the corner which said: DANGER SLIPPERY FLOOR PLEASE TAKE CARE!14. Mr Kevin Alexander, a safety adviser employed by the respondent approved these measures.

OF THIS

[13]The risk assessment was reviewed a week or so later. The assessment form noted that the resident continued to urinate in inappropriate places. All residents were said to be at risk. Staff were said to be aware of the hazard. The floors were said to be slippery and could cause falls. The preventative measures mentioned in the earlier assessment had been taken.

CARE!

[14]On 11th and 12th November 2002, the home was inspected by employees of the National Care Standards Commission. This was the first such inspection under the Care Standards Act 2000. A written report was sent to the home in early 2003. However, the inspectors’ main requirements and recommendations were discussed with the manager of the home at the end of the inspection. The first requirement was that ‘ways to reduce the hazards posed by the corridor flooring when wet were to be reconsidered’. The body of the report contained the following passage:
“The floor covering used in the home is hazardous due to the loss of continence of a number of service users. Non-slip mats are used in bedrooms but these are not appropriate to be used in corridors. Corridor floors are frequently found to be wet due to service users with loss of continence. When wet, corridor floors are slippery and both staff and service users have been known to fall, as it is not easy to spot, and thus avoid, a wet patch on the floor due to the colour of the floor. The manager informed us that this has been referred to the Council’s Health and Safety officer who has visited the home. Corridor floor coverings should be changed to non-slip safety flooring or some other suitable flooring, which would greatly reduce the hazard and the number of falls.”
[15]Jumping ahead, the requirement and recommendation were accepted by the respondent and the floor was replaced in 2003.[16]The records completed following the appellant’s fall on 24th November 2002 stated that it was not thought to be Mrs C who had left urine on the floor of the corridor on this occasion; it was another resident. In evidence, Ms Caddick accepted that there were other residents besides Mrs C who caused this kind of problem.[17]Ms Caddick was also asked what precautions had been taken to avoid falls before the special measures were taken on 31st October. She said that staff were aware of the risks of urine on the floor and there was a system of rapid cleaning when a pool was found. She agreed that there had been accidents despite those measures. There had been no risk assessment until October 2002; nor had there ever been any discussion about the need for anything to be done about the problem of people slipping in urine. When asked why nothing more had been done before October 2002, Ms Caddick first said that she could not answer but then said that the home was 50 years old and funds were limited. It had been updated as and when possible. She said that it would not have been possible to put non-slip mats in every area. She agreed that the measures taken on 31st October were not ideal; they were temporary while an ideal solution was found. At that time, management had put mats at the corner because there was a particular problem there but she accepted that the problem of urine was not limited to that place. Mrs C and other residents urinated in other places too.

The Pleadings

[18]The appellant had pleaded her case under regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (the Regulations) and also common law negligence. Regulation 12 provides as follows: “12 Condition of floors and traffic routes(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that- (a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and (b) every such floor shall have effective means of drainage where necessary.(3) 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. (a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and (b) every such floor shall have effective means of drainage where necessary.[19]It appears that the words ‘shall not’ have been omitted from Regulation 12(2). It is common ground that the requirement should be that the floor or surface should not be uneven or slippery so as to expose any person to a risk to his health or safety.[20]Under Regulation 12(1) and (2) the appellant alleged that the floor was not suitable for the purpose for which it was used because it became slippery when wet and residents urinated on it frequently. A non-slip floor should have been installed. Further, under Regulation 12(3), it was alleged 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.[21]At common law, it was alleged that the respondent had failed to take adequate heed of previous accidents and to install a non-slip floor prior to the appellant’s accident in November 2002.[22]As for Regulation 12(1), the defence denied that the fact that the floor became slippery when wet rendered it unsuitable for the purpose for which it was used. The problem of one particular resident urinating had arisen only recently before the appellant’s accident and the floor had not become unsuitable merely because of a transient problem. The respondent had dealt with that problem and had taken steps to reduce the hazard that might arise if the resident urinated again so that the floor was compliant with the regulation.[23]As for Regulation 12(3), the respondent claimed to have done all that was reasonably practicable to keep the floor or traffic route clear of urine, which it was admitted was a substance which might cause a person to slip. Particulars were pleaded of the steps taken. These included the placing of non-slip mats at the corner, warning the staff of the likely hazard and directing them to clean up urine immediately if they found it.[24]In response to the allegation of common law negligence, it was said that the problem of urine on the floor had arisen only recently and it had not been possible or practicable to install a non-slip floor before the appellant’s accident. Also, the respondent had taken all reasonable steps to ensure that the mats were in their intended positions at the corner of the corridor.[25]The defence also alleged contributory negligence.[26]In argument, Mr Reddiford, for the appellant contended that under Regulation 12(1) the suitability of the floor for the purpose for which it was used should be considered in the light of the circumstances of its use. In this case, the circumstances were that the floor was frequently wet due to the presence of urine; when wet, the smooth surface became slippery and dangerous. Therefore the smooth-surfaced floor was of unsuitable construction. He drew attention to a case called Wenham v Bexley, decided in the Central London County Court and reported only (briefly) in Current Law for 1999 at page 2879. The judge had there held that there was liability under Regulation 12(1) because a smooth-surfaced floor (which was slippery when wet) was unsuitable for the kitchen of a care home because of the likelihood of spillages. Mr Reddiford also invited the court’s attention to Marks & SpencerPLC v Kathleen Palmer [2001] EWCA Civ1528, where the Court of Appeal considered whether a floor in which a weather strip had been inserted was of such construction as to breach Regulation 12(1). The Court gave guidance as to approach to be taken by a court to the question of suitability under Regulation 12(1). Mr Reddiford also invited the judge to have regard to Paragraph 93 of the Approved Code of Practice issued by the Health and Safety Commission pursuant to section 16 of the Health and Safety at Work etc Act 1974. In respect of Regulation 12, this advises: ‘Surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be of a type which does not become unduly slippery. A slip-resistant coating should be applied where necessary’.[27]Mr Walker QC for the respondent submitted that the presence of urine on the floor, even if frequent, had no bearing on the suitability of the construction of the floor. He also submitted that the Code of Practice was of no assistance to the judge.

The Judgment and the Appeal against it

[28]The judge found against the appellant on all issues of primary liability. She did not make any finding in respect of contributory negligence.[29]The main issue in the appeal before this court was the judge’s treatment of Regulation 12(1) and (2). It is necessary to set out the whole passage in which the judge considered these two regulations. Starting at page 10 of the judgment, she said: The Claimant relies on strict liability arising as a result of the Defendant being in breach of Regulations 12,(1) and(2) of the Workplace Regulations. Despite the submissions made by Counsel on her behalf and the authorities produced to support this content and in particular Marks and Spencer Plc –v- Kathleen Palmer 2001 EWCA CIV 152 and the proposition which the Court must consider in paragraph 19 “has the floor been constructed in such a way as to expose any person to a risk to his health and safety”. I do not accept that the corridor floor falls to be construed as being constructed as being caught by this Regulation. The issue in this case related to whether a weatherstrip formed part of the construction of the floor. The Regulation relates to the construction of the floor surface and not a transient hazard. There is no evidence from the Claimant relating to the unsuitability of the particular type of floor in use at that time, save reliance on a report that was available after the accident happened recommending that the floor be changed to a non-slippery type. Further, the particular cases cited on behalf of the claimant to support instances where Regulation 12 (1) and (2) have been engaged related to specific situations which in my Judgment are distinguishable and do not apply here. Wenham v Bexley Current Law 99/2879 relates specifically to a kitchen floor where evidence was adduced that the construction of the flooring was unsafe. The primary purpose of this corridor was to provide access to and from the various rooms appending the corridors. Further, the risk which needs to be evaluated is the risk of health and safety, in this instance, to staff not residents. The claimant in closing submissions referred me to paragraph 93 a Code of Practice in relation to Regulation 12 of the Workplace Regulations which provides that surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be of a type which does not become unduly slippery and further that a slip resistant coating should be applied where necessary. However, this Code of Practice and alleged breach of it was not a matter specifically pleaded or dealt with in evidence and have therefore disregarded this submission in my findings.”[30]Mr Reddiford submitted that the judge failed to apply the correct statutory test. She had applied her mind to the construction of the floor in isolation, instead of considering it in the context of the circumstances in which it was used. She ought to have considered all the evidence about the problems of incontinence in the home and should have stood back and asked herself whether, in all the circumstances, the smooth-surfaced vinyl floor was suitable (from a health and safety viewpoint) for the purposes of the staff, when going about their duties. Mr Reddiford submitted that it was clear from the words of Regulation 12(1) and (2) that the suitability of the surface of the floor had to be considered in the context of its actual use. But if there were any doubt about the matter, this was removed by consideration of the Code of Practice and also by reference to the judgments of this court in Marks & Spencer. Mr Reddiford submitted that the judge had wrongly refused to consider the Code of Practice and had misunderstood the effect of the judgments in Marks & Spencer.[31]Mr Walker submitted that the judge’s approach had been correct. The strict liability arising under Regulation 12(1) and (2) was concerned only with the construction of the floor and not with any transient conditions or hazards. They were to be dealt with under Regulation 12(3) where the employer’s duty was limited to doing that which was reasonably practicable to keep the floor free of substances likely to cause persons to slip. He submitted that the problems created by residents urinating on the floor were transient problems however frequently they occurred. Further he submitted that the question of whether the floor was suitable was a matter of judgment. The judge had made her own evaluation of suitability and this court should be slow to interfere with it.[32]I will deal first with the judge’s approach to the Code of Practice. As has been seen, she declined to take it into account. Mr Reddiford submitted that she should have considered it as an aid to construction of the regulation. It was not conclusive but was persuasive as to the intention of the legislature in passing this regulation. Mr Walker submitted that the judge had been right to ignore the Code. He had not objected to reliance on it on the grounds mentioned by the judge; his argument was that the Code threw no light on the meaning of the regulation. He accepted that, pursuant to Section 17 of the Health and Safety at Work etc Act 1974, the Code of Practice was of real significance in the context of criminal proceedings. Evidence of a breach of the Code created a presumption that there had been a breach of the relevant regulation. However, as section 16 of the 1974 Act showed, the purpose of the Code was to give ‘practical guidance with respect to the requirements’ of the health and safety regulations. The Code, he submitted, was of no assistance in construing the meaning of Regulation 12.[33]In my view, the judge was wrong to refuse to have any regard to the Code, as an aid to construction. It was, as Mr Walker accepted, of no significance that the Code had not been pleaded or put to the respondent’s witnesses. It is well established that official publications emanating from the relevant government department can be referred to in civil proceedings as an aid to construction: see the cases cited in Bennion on Statutory Interpretation 4th Edn at page 599. It seems to me that a Code of Practice which is designed to give practical guidance to employers as to how to comply with their duties under statutory regulations can be taken as providing some assistance as to the meaning it was intended those regulations should have. However, it is always necessary to treat such guidance with caution. It may be wrong. It does not carry the authority of a decision of the courts. Here, in construing the meaning of the regulation, the judge should have considered the meaning and purpose of the regulation, any relevant judicial authority and also the Code of Practice.[34]Mr Reddiford also submitted that the judge had misunderstood and misapplied the judgments in Marks & Spencer, apparently the only case in which this court has considered Regulation 12. She seemed (wrongly) to have treated the case as suggesting the conclusion she should reach rather than (correctly) providing her with guidance as to the general approach to the issue of suitability.[35]In Marks & Spencer, the claimant had tripped against a weather strip which protruded by less than 1 cm above the surface of doorway of the staff exit from one of the defendant’s stores. It was a permanent fixture and, as such, was part of the construction of the floor. It had never previously given rise to any accidents or complaints. At first instance, the recorder had found that the simple fact that Mrs Palmer had tripped over the weather strip showed that the floor was unsuitable and in breach of regulation 12(1).[36]Waller LJ, giving the first judgment, held that the right approach was to consider regulation 12(1) and 12(2) together. The test of suitability was to be an objective test. The question was whether the floor was constructed in such a way as to expose any person to risk to his health and safety. Was the unevenness in this doorway such as to expose anyone to such a risk? The next problem to be considered was how great the risk had to be before the floor was ‘unsuitable’. He cited briefly a passage from a judgment of Salmon LJ in Rogers v George Blair [1971] 11 K.I.R. 391, where the court had been considering the suitability of some goggles as a means of protecting a workman’s eyes. At page 395, Salmon LJ had said that, to be suitable, the protection need not make it impossible for an accident to occur but it must make it highly unlikely. Then, beginning at paragraph 25 of the judgment, Waller LJ said:
“I am not sure that language such as "real risk" or "slight risk" necessarily encapsulates the exercise that it seems to me must be performed. If the risk, however slight, is of a very serious injury or death in falling from a high-storey building, then the fact that the risk is slight may not outweigh the cost and importance of taking adequate precautions. Equally no one would suggest that an employer should be entitled to have a seriously uneven floor if the risk is simply that someone may trip over -- i.e., that the risk is not of a very serious injury. It seems to me that the exercise to be performed is one of taking into account all relevant factors in this context; that is to say, the nature of the risk (i.e., here that the weather strip is by a door, that it is only 8 to 9.5 millimetres high, that it is next to some steps and that if the weather strip were tripped over a person may fall down the steps outside the door). But at the same time the assessment would hold that the weather strip was obvious, that it was in a place to be expected, and indeed this lady knew of it and there had been no complaints at all despite the number of exits that had taken place. Then of course the assessment would take into account the nature of the persons who are exposed to any risk. This lady, for example, was 63. The evidence was that she did not always walk picking her feet up, as perhaps she should have done, and the presumption must be that there would be a number of employees in Marks and Spencer such as this lady. But again the assessment would be that persons such as this lady had managed to exit without any difficulty. Surely (it could be said) persons can manage a weather strip which is only 8 to 9 mm proud of the floor. The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did.”
[37]At paragraph 33 of the judgment, Schiemann LJ, agreeing with Waller LJ said:
“In law, context is everything. The context here is a shop, with it being expected that many people of varying degrees of physical mobility, in varying footwear and varying degrees of tiredness and attention, with varying amounts of bags and so on on their persons, will use this floor to walk on. …… The sort of slight rise which we have here occurs everywhere. ….. The ordinary person would not …. regard his ordinary walking about in the course of an ordinary day on such a floor as that with which we are presently concerned as exposing him to a risk to his health or safety. Nor would the employer when constructing the floor.”
[38]Helpful though those passages are as a general approach to Regulation 12, it will immediately be appreciated that, in that case, the court was dealing with a permanent feature of the floor or traffic route and not with an intermittent condition. The court did not consider the question which arises for determination in the present case which is whether or not, in making the assessment of suitability, the court should take into account conditions which, although not a permanent feature of the floor, occurred frequently and which, when they occurred, made the floor unsafe. Thus, the judgments in Marks & Spencer did not provide any help on the question of construction which the judge had to decide. They should have provided help as to the general approach the judge should take but I agree with Mr Reddiford that it does not appear that the judge regarded the case in that light.[39]In my view, the judge’s approach to the meaning of Regulation 12(1) and (2) was flawed. She seems to have accepted (without explanation) Mr Walker’s submission that only permanent features of the floor were relevant to consideration of its suitability. She did not consider whether Regulation 12 (1) requires the court to ask whether the floor is suitable for the use to which it is being put in the circumstances in which it is used.[40]In my judgment, Regulation 12(1) and (2) do require the court to consider suitability in the context of the circumstances of use, including circumstances which are temporary in nature, providing they arise with a sufficient degree of frequency and regularity. The paragraphs read together require that the surface of a floor or traffic route must not be slippery. The purpose of these provisions is to promote the safety of workers. I do not think that it can have been the intention of the legislature to restrict that requirement to permanent states of slipperiness. I think it must also have been intended to apply to states of slipperiness which occur with a sufficient degree of frequency and regularity. If a smooth floor is frequently and regularly slippery, because of a substance which lies upon it, albeit only temporarily, the surface of the floor may properly be said to be unsuitable, if the slipperiness is such as to give rise to a risk to the health and safety of those employees using it. To construe the words of the regulation in the limited way contended for by Mr Walker would be to provide scant protection for employees.[41]The Code of Practice supports this construction. As I have said, it states that surfaces of floors which are likely to get wet or to be subject to spillages should be of a type which does not become unduly slippery. That suggests that regularly and frequently occurring conditions should be taken into account when deciding whether a floor is suitable for its use within Regulation 12(1) and (2). As I have said, when treated as an aid to construction, guidance from a Code of Practice must be treated with caution. However, in this case, the guidance suggests that, of the two possible constructions contended for, the one providing the greater protection for employees is correct.[42]As I have said, Mr Walker’s argument was that all transient slipping hazards were to be considered under Regulation 12(3), however frequently they occurred. I cannot accept that that is the true meaning of the Regulation. In my judgment, Regulation 12(1) (as explained by way of example in Regulation 12(2)), is intended to cover permanent features of the floor and also regularly and frequently occurring hazardous conditions of which a slipping hazard is an obvious example. Regulation 12(3) is intended to cover transitory conditions which occur less frequently. Plainly, a judgment will have to be made on the facts of each case as to whether the hazardous condition arises with such frequency and regularity as to make the floor ‘unsuitable for its use’. If it does, the duty on the employer is strict. If the hazardous condition does not arise with sufficient frequency and regularity, the floor will be held to be suitable for its use but the less onerous duty under Regulation 12(3) will require the employer to do all that is reasonably practicable to avoid the presence of the slipping hazard.[43]Mr Walker submitted that the judge had made the judgment required by Regulation 12. She had decided that the floor was suitable for its use. We should be slow to interfere with her assessment. In my view, the judge had not made the judgment required. She had considered the suitability of the floor divorced from the conditions in which it was actually used. She did so, it appears, because she had accepted Mr Walker’s submission that the periodic presence of urine on the floor was irrelevant to the question of suitability.[44]In my view, it is necessary for this court to make that judgment. In so doing, I adopt the approach set out in Marks & Spencer. The court must consider all the relevant factors, as they would have appeared to an employer properly applying his mind to the question of suitability at a time before the relevant accident occurred. These factors will include the construction of the floor, including the nature or quality of its surface. They will include the purposes for which the floor was used and the circumstances of use. Although in Marks & Spencer, the court was not considering an intermittent condition, it is obvious that, if intermittent conditions are to be considered, the frequency and regularity with which the conditions occurred will be relevant to the issue of suitability. The factors will also include the likelihood of an accident occurring and the possible gravity of any injury which might occur. So, they will include the history of accidents or complaints and the gravity of injuries, if any, which have occurred. The court should then ‘stand back’ and decide objectively whether, in the light of those considerations, it can be said that the floor was ‘suitable for the purpose for which it was used’.[45]How would an employer have assessed the suitability of this floor prior to the appellant’s accident? The evidence was that the floor had a smooth surface which was slippery when wet. At one stage of her judgment, the judge observed that there was no evidence that the floor was dangerous when wet. Apparently she had in mind the absence of any expert evidence, providing a measurement of the coefficient of friction of the surface. However, such evidence was not necessary. There was an abundance of undisputed evidence to prove the point. The respondent’s own risk assessment and warning notices were clear; the floor was dangerous when wet. The National Care Standards Commission Report, which the judge seemed to think was irrelevant, made it plain that the surface of the floor was slippery when wet. This report was not irrelevant; its accuracy and its recommendations had been accepted by the respondent.[46]There was evidence about the frequency with which urine was deposited on the floor. The appellant said that her experience was that this happened several times a week. What she meant by ‘several’ was not further explored. The respondent’s evidence was that, in the few weeks before the appellant’s accident, staff had had to clear urine from the floor several times a day. The evidence suggested that for some time before the appellant’s accident there had been an exacerbation of the urine problem due to the activities of Mrs C. However, it was accepted that the problem of residents leaving urine on the floor was not a recent one and was not confined to Mrs C. Most of the residents were incontinent. The National Care Standards Commission Report observed that the floor of the home was hazardous due to the problem of urine. Also, the respondent’s first risk assessment described the likelihood of further hazards arising as ‘probable’ meaning ‘only to be expected’. In my view, the evidence was to the effect that although the periodicity at which urine was deposited might vary from time to time (according to the proclivities of individual residents), the fact that the majority of residents were incontinent meant that the presence of urine on the floor was a frequent and regular occurrence and would remain so.[47]I turn to the nature and frequency of previous accidents attributed to the presence of urine on the floor. Most of these had involved residents. When considering the suitability of the floor for the purposes of Regulation 12, it was necessary only to consider the risk to members of staff. There had been three falls in urine within the three year period preceding the index accident. None had resulted in serious injury. However, it must be accepted that the severity of injury resulting from a fall is largely a matter of chance. An injury caused by slipping in urine and leading to injuries of at least moderate severity would be entirely foreseeable.[48]Finally, I must consider the suitability of the floor in the light of the expected behaviour of the staff using it. In the respondent’s risk assessment, the assumption was made that staff would be safe even if there was urine on the floor because they were aware of the possibility that it might be there. However, the National Care Standards Commission Report observed that patches of urine were not easy to see due to the colour of the floor. In my view, it is not open to an employer to assume that employees in an establishment such as this will always be able to concentrate on the possible presence of a hazard such as urine on the floor. Sometimes, staff would be carrying things (such as a tray or bed linen) or pushing a trolley. Sometimes, they would be in a hurry or under pressure. Sometimes, they would be in charge of a resident. Sometimes, they might just not be concentrating.[49]Standing back and taking all these factors into account, it is my view that this floor was not suitable for the purpose for which it was used. The floor was dangerous when wet. Wetness occurred frequently and regularly and could not be avoided. Accidents had already occurred and were likely to recur; they might well be quite serious. Staff could not be expected at all times to concentrate on the possible presence of urine. Therefore the floor was unsuitable (from a health and safety viewpoint) for the purposes for which the staff used it. I note that this was also the view that was taken by the National Care Standards Commission. However, I place little reliance on that as their primary concern was for the safety of residents. It was not, however, their only concern as is apparent from the passage quoted in paragraph 14 above.[50]It follows that in my view there was a breach of Regulation 12(1) and the appeal must be allowed. It remains to consider contributory negligence. The judge made no finding. The parties have told us that, in the event that the appeal on primary liability is to be allowed, they do not wish the case to be remitted. Accordingly, although the situation is less than ideal, we agree that we will make the necessary ruling.[51]It was common ground that the appellant was not carrying anything as she was walking along the corridor. Nor was there any evidence that she was in a hurry or under pressure. The accident occurred at or very near to the corner where the particular problems with Mrs C occurred most frequently. Mr Walker stressed that the appellant had recently received particular warnings about the potential hazard at that corner. It was not too much to expect her to take extra care at that point. He submitted that there should be a high degree of contributory negligence. Mr Reddiford relied heavily on the National Care Standards Commission Report, which observed that it was difficult to see urine on the floor. If there were to be any finding at all, it should be modest.[52]I for my part would accept that there should be some finding of negligence on the part of the appellant. There was no reason why she could not have kept a special look out at the corner, where there was an increased risk of a hazard. There was a new warning notice in the staff room and a new warning sign near the corner. In my view, lack of concentration on the risk to be expected at the corner went beyond mere inadvertence.[53]I turn to apportionment. Both the respondent’s breach of statutory duty and the appellant’s negligence were causative of the accident. The appellant’s responsibility or culpability was that she failed to concentrate, when she should have done, which is a common human failing. On the other hand, the respondent has been found liable under a provision of strict liability. In my view, that connotes a higher degree of responsibility in that Parliament has imposed a duty for the protection of employees. In this case the breach also connotes some real culpability. This employer had failed to make any appropriate assessment of the risks to staff arising from the slippery state of the floor when wet. In those circumstances, the respondent should bear a greater degree of responsibility. I would assess the appellant’s contribution at one third.[54]I would allow the appeal to that extent and direct that the case must now be put before a district judge in the county court for directions as to a hearing on quantum.[55]Lady Justice Smith has set out the terms of regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, on which this appeal turns. The question is whether the situation which existed at the moment when the Appellant fell in the corridor of Gleeson House, slipping on urine left there by an incontinent resident, was within regulation 12(1), an absolute obligation that the construction of the floor of every workplace be suitable for the purpose for which it is used, or rather within regulation 12(3), an obligation limited by reasonable practicability to keep the floor free from substances which may cause a person to slip, trip or fall.[56]The Appellant’s contention that regulation 12(1) applied is supported by the words of regulation 12(2) with its requirement that the floor must not “be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety”. On the other hand, it is said for the Respondent that a puddle of liquid, such as urine, in a corridor, is exactly the sort of thing that regulation 12(3) is intended to deal with, and that to treat the wetness of a part of the floor of a corridor as showing that the floor is not suitable for its purpose would deprive regulation 12(3) of much of its content.[57]In terms, regulation 12(1) deals with the construction of a floor, or of the surface of a traffic route. Thus it is concerned with the materials used, and how they are laid or prepared. Paragraph 12(2)(b) refers to the need, in some cases at least, for the floor to have an effective means of drainage. This therefore shows that there are cases where the floor can be foreseen to be at risk of getting wet, and that in such a case, there must be suitable drainage to carry the water or other liquid away. It was not suggested that the present case was within that category.[58]Mr Walker for the Respondent submitted that the distinction between the proper ambit of regulation 12(1) and that of regulation 12(3) is that the first deals with construction and the second with maintenance. He argued that the absolute obligation in regulation 12(1) is directed at how a space is constructed and regulation 12(3) with how it is maintained. From this he went on to contend that, with only very limited exceptions, if the problem at issue is of a spillage or some other transitory occurrence, then this falls into the scope of regulation 12(3), not of 12(1), because it has nothing to do with the original construction of the floor, and everything to do with whether it is kept properly free from obstructions and other transient matters.[59]In response to the comment that this argument leaves very little scope for slipperiness to be the subject of regulation 12(1), even though the terms of regulation 12(2) show that it may be, he made two points. First he pointed out that the regulation is concerned not only with floors but also with a “surface of a traffic route”. A traffic route is defined as “a route for pedestrian traffic, vehicles or both and includes any stairs, staircase, fixed ladder, doorway, gateway, loading bay or ramp”: see regulation 2. Thus the regulation may apply to areas which are not properly called a “floor”, and which could be inherently slippery, such as an outdoor route over earth or grass. In itself that is a fair point, though it does not take the analysis of the issue very far.[60]Secondly, Mr Walker accepted, at least as a theoretical possibility, that there might be workplaces where the nature of the use of the space was such that it was highly likely that the floor would be wet on a very frequent basis – an example being the surroundings of a swimming pool – and that in such a place the stipulation that it be suitable for the purpose for which it is used might affect its construction, not just its maintenance. Other examples might arise in other workplaces where liquids were likely to be used and to be found outside their proper containers – perhaps bathrooms, kitchens or washing up areas.[61]So far as a corridor in a care home is concerned, Mr Walker contended that nothing in its construction would or could render it not suitable for the purpose for which it is used, namely the passage of (so far as relevant) employees to and fro in the course of their employment. Incidents would of course occur from time to time when liquids of one kind or another were spilled or otherwise came to be on the floor of the corridor. They should be cleaned up as soon as practicable, in order to comply with regulation 12(3) but, he said, the presence of such a substance had nothing to do with the construction of the floor.[62]The question might be asked, if this floor’s construction was such that it was unsuitable for its purpose, when did it become so? In a sense that is an irrelevant question, because the issue for the court is whether the construction is such that the floor is unsuitable at the time of the relevant accident. But the question may reveal a significant point, because it draws attention to the issue: what is it that makes the construction such that the floor is unsuitable? If neither the construction of the floor, nor the use to which it is put, has changed, then it must logically have been unsuitable for a long time.[63]The purpose to which a workplace is put could change significantly; such a change might lead to different requirements of suitability. Certainly different workplaces will have different requirements in this respect according to the use to which they are put. I have already mentioned the example of the swimming pool, and the area surrounding it. If the workplace in question were a rehearsal stage for employees who are classical ballet dancers, that would be subject to different requirements as regards slipperiness from those applying to a factory floor where the employees always wore special heavy protective footwear.[64]There is force in Mr Walker’s contention that transient problems are governed by regulation 12(3) and not by regulation 12(1). However, in agreement with Lady Justice Smith, I consider that if the transient problems recur sufficiently often and regularly, they may cease to be only the province of regulation 12(3), and instead become the subject-matter of the absolute obligation in regulation 12(1). That would be the case with the area surrounding a swimming pool. In my judgment it is also the case with a corridor in a care home where the incontinence of residents causes regular and frequent incidents of urine on the floor of the corridor.[65]The evidence in the present case goes back in detail only to 1999, nor is that surprising. However it is a legitimate inference (from the evidence of Alyson Caddick) that the same problem had existed for a considerable time before that. It may always have been the case since the home was first built. In those circumstances, Mr Walker’s proposition that the problem was purely transitory, and that the arrival of Mrs C, leading to an intensification of the occurrences, could not be regarded as transforming a floor whose construction was suitable for its purpose into one whose construction was not so suitable, is beside the point. I agree with Lady Justice Smith, in these circumstances, that the construction of the floor was not such that it was suitable for the purpose for which it was used. Possibly it never had been so suitable during the subsistence of the regulations. Certainly it was not suitable, and it had not become unsuitable merely upon the arrival of Mrs C, or the development of her incontinent tendency, nor her tendency to use this corridor in order to urinate.[66]I also agree with Smith LJ that the Approved Code of Practice was legitimate to be taken into account by the judge in a case such as this, though I derive no assistance from it, with its rather imprecise phrase “unduly slippery”, in addition to what can be learned from the text of the regulation itself.[67]I agree with Smith LJ that the judge did not approach the issue of the application, or not, of regulation 12(1) on the correct basis, and that, on the facts as they appear, the problem of urination on the floor of the corridor was sufficiently regular and frequent that the resulting slipperiness should be regarded as due to the unsuitable construction of the floor, rather than merely involving the obligation to take reasonable steps to clear up the resulting wetness of the floor under regulation 12(3).[68]I also agree with Smith LJ that the claimant contributed by her own fault to her injury, and that the damages should be reduced by one third on this account.[69]Thus, I agree that the appeal should be allowed, and the case remitted for the determination of quantum, if that cannot be agreed.[70]I agree with the judgments of Lady Justice Smith and Lord Justice Lloyd.

Cited in 6 later judgments