23 March, 2023
When is an inspection regime of floor checks every 10-15 minutes insufficient to cover an occupier's duty under the Occupiers Liability Act 1957? When the accident location is a busy city centre bar on a weekend according to His Honour Judge Hedley at Leicester County Court! Perhaps unsurprisingly the defendant in the said case appealed his conclusions and the matter went before the High Court in February 2023 in the reported case of Apres Lounge Limited v Nicolle Wade EWHC 190 (KB).
The basic facts of the case were that the Claimant had visited the Defendant's bar and as she was going to leave at 12.30am, she slipped on some liquid, assumed to be a spilt drink, on the wooden floor near the inside bar. Her claim proceeded against the Defendant in negligence and under the Occupiers Liability Act 1957. The bar's assistant manager gave evidence on behalf of the Defendant. She confirmed that, in addition to the staff serving at the bar, there was herself as manager, a supervisor, a doorman and 2 spotters on duty. The spotters and supervisor would continually walk around the floor to collect glasses and check for any safety issues including spillages. The trial judge accepted her evidence in this regard but went on to conclude in his judgment that "having a system which involved checking areas every 10 to 15 minutes is simply not sufficient. In my judgment the following matters are important. First, as I have said, the accident occurred in a place close to the bar. This was an area where spillages of drinks were likely. Secondly, this was a busy area, particularly on a Saturday night. Thirdly, although there was evidence of a system in place, there was no evidence from those who were implementing the system and no evidence as to how long the liquid had been on the floor. Fourthly, not only was the area where Mrs Wade fell close to the bar and the risk of spillage, it was, I find, dark as Ms Wade describes. Fifthly, the floor was wooden. Although as Mr Dornan says, it was not slippery when dry, in my view it was likely to become slippery when wet. Sixthly, that area was also being used as a thoroughfare between the bar, the outside of the premises at the front and the garden at the rear. Seventhly, the system described by Ms Osbourne was not documented in terms of the checks which were undertaken, where or when." He therefore went on to find for the Claimant on the basis that the defendant had failed to discharge their duty of care.
The Defendant appealed on the basis that the judge was wrong to find that checking the floor every 10-15 minutes was not sufficient to discharge their duty, and that he had wrongly imposed an unreasonably high burden. They pointed out that 3 members of staff carried out continual floor checks so that every area was inspected at least every 10-15 minutes. To require more frequent inspections would be asking for constant monitoring of all the floor by a large volume of staff.
Thankfully for all Defendants to such cases on appeal, Mr Justice Knowles accepted the Defendant's arguments. He found that there was direct and detailed evidence of a system of floor inspections. The system was proactive and was one of continuous monitoring. The trial judge had erred when he described it as checks every 10-15 minutes as every area would have been checked at least with that frequency, but it was in effect a continuous monitoring. The trial judge's view would have required no spilt drink could ever be present on the floor at all. Mr Justice Knowles repeated Jackson LJ in that "It is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring. What is required both by common law and by section 2 of the Occupiers Liability Act 1957 is the exercise of reasonable care."
The appeal decision in this matter is perhaps unsurprising as it is difficult to see how the Defendant could have practically carried out a more thorough system of checks. To expect an occupier to always be present to check all areas of a floor is aiming for a level of perfection that is unrealistic in busy premises. The reasonable level of checks required by a court will depend on the type of premises, the volume of visitors and the risk of spillages. Occupiers of busy pubs and bars may wish to bear in mind though the comments in respect of the suitability of this system when considering their own processes. The case also provides a useful reminder that in all slipping cases, it is necessary to serve direct evidence of the system of inspection to ensure that the same is accepted. An overarching statement covering the theory of the inspection policy is not likely to be sufficient, and detail is required from someone present to confirm the steps taken on the day, whether the accident is at a retail environment or leisure facility.
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