The case below failed. It shows the litigation risk in pursuing even what seemed to be a strict liability tripping at work case. It is followed by three successes.

The claimant was employed as a caretaker in a school. He tripped on a hole approximately one inch deep in the car park. We pleaded a breach of Regulations 5, 12 and 17 of the WHSWR 1992. In particular we said strict liability must arise under Regs 5 and Reg 12(1) as to the construction of the workplace.

Part of the claimant’s duties was to report any defect found and he had previously not spotted the hole as dangerous.

Both sides argued over Palmer -v- Marks and Spencer and whether the court was bound to consider whether the workplace was suitable for use and whether any accident is foreseeable even if it is proved there is some defect in the surface. The Judge found the hole was a slight blemish or minor indentation and the fact it had not been reported was evidence that it had not been perceived as presenting a foreseeable risk of injury.

He found the car park was suitably useful in terms of paragraphs 25-27 of Palmer -v- Marks and Spencer 2001 EWCA Civ 1528 :( extract):

“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?”

He applied this approach and used the vivid phrase that this was another case “where the claimant wants the surface of the planet to be polished so