Don’t slip up

By far the majority of workplace accidents are slips and trips. They are the compensation claims most likely to be ridiculed in the media. But, as Ben McBride explains, the law makes them no laughing matter.

Read the one about the so-called “killer petal”, where a man claimed £1.5m for a serious back injury after slipping on debris by a flower stall in a London station? What fun the media had with that one, warning the floodgates would open to a tide of copycat claims by commuters struck down by fallen blossoms.

The reality of course was rather more serious. There had been repeated complaints by the station that the flower shop was failing to keep the walkway free of hazards. Water and petals regularly littered the area.

The florist was found by the court to be in breach of its duty of care, which was higher because of its position on a station concourse, and that it had no safe and proper system of work.

It is rare that a slipping accident is unforeseeable for the purposes of risk assessments and prevention. However, the law gives defendants some significant ways of avoiding being found to be strictly liable for slipping accidents.

The Workplace (Health, Safety and Welfare) Regulations 1992, which cover workplace slips and trips, apply to anyone working in a workplace, not just employees.

So if a plumber called to fix a leaky pipe at a supermarket slips and is injured, they will be covered by the regulations. But a shopper who slips will not. They have to rely on the Occupiers’ Liability Act 1975, a law which is weaker than the workplace regulations and is far from the route to easy money that headlines such as the “killer petal” often portray slips and trips as.

The main “slipping” regulations

Regulation 12 of the regulations deals with the conditions of floors and “traffic routes”, stipulating that they must be of suitable construction for their purpose.

This includes that they must be suitably drained and have no holes, slopes or uneven or slippery surfaces that present a risk to health and safety. They should be kept clear of obstructions that could cause a slip, trip or fall.

However if adequate measures are taken to prevent a person falling, such as handrails, then the existence of hazards are not in themselves a breach of the regulations. The key to whether an employer can defend themselves against a compensation claim for a slipping injury is “suitable”.

In the case of Palmer -v- Marks and Spencer (2001) a water bar was about 9mm higher than the floor at the threshold of a door. The claimant tripped and it appeared that M&S would be strictly liable for their injury under regulation 12.

However, the Court of Appeal said questions of suitability and risk in this regulation involved consideration of the degree of risk and likelihood of harm before the accident.

In other words, it had to be possible to foresee the risk of accident in order for the defendant to be strictly liable.

In the recent case of Brandon -v- Herts County Council, the injured person alleged that the wooden parquet floor at her library was inherently slippery. Two colleagues had had similar slips. Risk assessments before and after the accident had noted that the floor was slippery.

But the defendant said the previous accidents had not been reported, so did not know about the risk, and tried to prove that the floor was not slippery. The judge used the decision in Palmer -v- Marks and Spencer to decide the case. He agreed that some quantifiable risk to health and safety before the accident must be shown in order for a defendant to be liable under the regulations.

But in this case the council was found liable for the accident because the risk could be shown and because the council had failed to act on the results of the risk assessment.

Temporary conditions

It is not necessarily the case that the condition of a floor must be permanently hazardous to make the employer liable for it.

In the 2007 case of Ellis -v- Bristol County Council the initial trial judge said that regulation 12 – that the surface of the work place floor must not be slippery – applied to the construction of the floor and not transient hazards.

But the Court of Appeal found the judge should have heeded the Code of Practice to the regulations, which supported the fact that the legislation was intended to cover states of slipperiness that occurred from time to time with frequency and regularity (in this case urine on the floor of the residents of an old people’s home, which had caused previous accidents and had labelled the home hazardous in an inspection report).

So, health and safety reps should refer to the code of practice alongside the regulations. It says in paragraph 93: “Surfaces of floors which are likely to get wet or be subject to spillages should be of a type which does not become unduly slippery. A slip resistant coating should be applied where necessary. Floors near to machinery which would cause injury if anyone were to fall against it should be slip resistant and.. be kept free from loose materials.”

And in paragraph 95: “where a leak occurs and is likely to be a slipping hazard immediate steps should be taken to... mop it up.”

Tripping hazards

In the case of Burgess -v- Plymouth City Council in which the claimant, a cleaner, was injured when she fell over a large plastic box, the court found it was irrelevant that the claimant was injured by an object she was paid to tidy away.

The court said the defendant should not have allowed the box, which was used to store children’s lunch boxes, to be on the floor in the first place. It was reasonably practicable, under regulation 12, to keep the box elsewhere them elsewhere.

It was also irrelevant that the box was big, bright blue and in front of the claimant.

So, with a little common sense and lateral thinking, it is reasonable for an employer to remove an object before a fall.

Other relevant slipping regulations

Suitable lighting, clean floors and sufficient space are all covered elsewhere in the Workplace Regulations. They are all important factors in claims for slipping and tripping accidents.

For example, Thompsons successfully secured compensation for a union member who over-balanced and hurt their elbow, but did not fall because their shoe had stuck to the sticky kitchen floor.

While the judge in the case found that this was not technically a slip or a trip and so Regulation 12 was not relevant, the employer was in breach of Regulation 9, which states that floors, walls and ceilings should be kept “sufficiently clean”.

Comment

There is a lot of literature on the HSE website about the predictability of slipping accidents. A slip is rarely a one off event which could not have been prevented by risk assessments, instructions to staff and forethought.

Given this, the Workplace Regulations should almost always be read with the Code of Practice and the HSE literature gives detailed, helpful advice as to where risks arise and how to prevent slips. www.hse.gov.uk/slips