02 May, 2023
According to the HSE slips and trips are the most common cause of accidents at work, as well as injuries to the public. They also account for 40% of the major injuries reported to the HSE. As such the prevention of such incidents could provide major savings to any business. Unsurprisingly the main control mechanisms for these types of risks are a suitable cleaning regime and a sufficient system of inspection to deal with any spillages that occur, but there are currently no set rules to confirm what would constitute the same, to assist business owners.
The Occupiers Liability Act 1957 imposes a duty "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there." The Workplace (Health, Safety and Welfare) Regulations 1992 meanwhile state that "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." Both obligations are defined in terms of reasonableness, but neither provide clarity in terms of how practically that would translate for the purposes of creating your own cleaning and inspection regime, and if that duty would vary between an office, clothing store or a takeaway etc. In light of the recent decision regarding the requirements for a suitable inspection regime discussed in the case of Apres Lounge Limited v Nicolle Wade EWHC 190, we have reviewed the available case law to assist you in assessing the key factors required for a successful inspection and cleaning regime.
Many people may have some familiarity with Ward v Tesco Stores Ltd  1 All ER 219 as the claim which established the evidential burden on defendants to show that an accident did not occur through a want of care on their behalf, when there has been a spillage on a shop floor. You may however be less familiar with the specific detail of the Defendant's inspection regime involved in the claim. In that case the store was fully cleaned each night. During opening hours the floor was then brushed between 5-6 time a day. The times of those sweeps were not however recorded and so it was not clear exactly when the last clean had been done. Staff were trained to clean up any spillages spotted but the claimant presented evidence that she had seen other spillages unattended for at least 15 minutes. No one could prove how long the yoghurt spillage had been in place on the day in question and the court determined that the defendant had not shown that they had taken all reasonable precautions. As such the system of checking and cleaning every 1-2 hours was not sufficient to be reasonable when there was a clear risk of spillages from food items.
More recently in Allen v B&Q  WL 03937419 a court determined that the occupier was not liable for the injuries sustained by a Claimant, who fell on a spillage of Ronseal fence paint in the lighting aisle. In that matter the Defendant evidenced checks of the aisle at 8am, 11am and 3pm. On the day in question the last check pre-accident was reported to have been carried out by the Defendant at 11am and the accident occurred at about 11.15am, some 15 minutes later.
The Claimant was more successful in the case of Hassan v Gill  EWCA Civ 1291 after she slipped on grapes at the Defendant's greengrocers. Whilst the Defendant owner, and his manager son, gave evidence of training staff to clean as you go, dealing with spillages as they arose, on top of sweeping the entire floor of the store 4-5 times a day, neither of them actually worked the day of the accident. There were no written records of the checks or statements from the staff in duty that day and as a result there was no evidence before the court of the actual checks being carried out on the day in question. Lord Justice Lloyd stated within his leading judgment "It is not the law that anyone in charge of any retail premises to which the public are invited must have a proactive system of walking inspection or the like….The precautions required of a reasonable system must depend on the circumstances of the particular premises, including for example its size and other physical features, the nature of the goods stocked, the number and nature of the staff, and the number and perhaps nature of the customers." He went on to observe however that unless the instructions to staff were that the sweeping was to take place at set intervals, a very long time could elapse between any two sweepings, even assuming that it was done. Sir Stephen Sedley also commented that "the belatedly suggested system of sweeping up four or fives times a day, that is roughly every 2 hours, was less likely to prove adequate than a properly arranged and functioning reactive system."
Asda Stores Ltd were however able to successfully defend the claim brought in Chidgey  9 WLUK 387 in very similar circumstances where the customer again slipped on grapes in their fresh produce aisle. By contrast they provided evidence of a clean as you go policy supplemented by a cleaner inspecting the aisle every 30 minutes which the County Court accepted was sufficient to discharge their duty.
Further guidance can be found in Black v CB Richard Ellis Management Services Ltd  Rep LR 36. In this Scottish case a Defender (Defendant in English law) was found liable for a spillage caused by a leak in the shopping centre roof. The Defender was on notice that the roof leaked and had carried out previous repairs. They had instructed staff to be on the lookout, calling cleaners if they located a spillage, and argued that on the basis that the security guards were required to undertake foot patrols of the centre throughout the day there was a regular system of inspection. The judge however concluded that a reactive system was not adequate given the known leak, and noting that the security guards had other duties to undertake as well, presumably implying that they would be often distracted away from inspecting in reality.
Looking at case law beyond the retail environment, the court in Hogarth v Marstons Plc  WL 00966087 confirmed that, had the claim not been fundamentally dishonest due to exaggeration, liability would have been established on a 50/50 basis against the Defendant pub. The Claimant slipped on grease caused by a rotisserie that was not fully enclosed, and positioned within the customer area of the pub. The Defendant only had a clean as you go policy with no set scheduled inspections which was said to be inadequate to deal with the risks created by the rotisserie which foreseeably spat out grease whilst chickens were being cooked.
In Robinson v Bourne Leisure Limited  WL 06173577 the Defendant was not liable for a spilt drink on the dancefloor of its entertainment venue where there were signs up warning customers not to take drinks on to the dance floor, staff were trained to challenge customers who did and staff were required to inspect the area every 30 minutes. Bourne Leisure Ltd also managed to successfully overturn a first instance decision in the case of Tedstone  EWCA Civ 654 regarding a pool of water on the floor by a jacuzzi in their hotel. The Court of Appeal accepted that where the Defendant's evidence showed that, whilst only having an ad hoc system of checking, the water was not seen by staff 5 minutes before the accident, no reasonable system could have caught the issue in the time before the accident.
Finally in Apres Lounge Limited v Nicolle Wade the High Court agreed to overturn an initial finding of liability on a Defendant for a spillage where evidence was provided that the bar in question was checked continuously, meaning every area was seen at least every 10-15 minutes. When dismissing the claim it was reiterated in the judgment that an occupier is not required to prevent an accident from happening, they only need to show that they have exercised reasonable care.
So what conclusions can we draw from the previously reported decisions? Whilst there is no set requirement for a specific style of inspection regime, evidence is key in being able to successfully defend any claim regardless of the system adopted. As a result, even if you have great system, without documents or witnesses to show that it was implemented on the day in question, you will not be able to defend the claim. For this reason it is a good idea when accidents are reported to record the staff involved so that they can be traced should a claim arise later down the line. A formal recorded inspection system will also produce documents that can assist in this regard, giving an added benefit over an informal check as you go policy. Unless you are able to evidence a continuous ongoing system of inspection by staff, having scheduled checks at set times may also be more helpful than just a policy requiring a set number of checks per day as it will lend support to arguments about how long a spillage can have been present before an accident. When a claim is litigated 3 years after the accident witnesses may well not be able to remember exactly when they last checked an area if there are not scheduled times in place or a timed record of the inspection itself.
There is good support for a suggestion that checks every 15-30 minutes in a supermarket environment is likely to be determined as a reasonable system of inspection based on prior case law. Obiter comments by judges also give weight to the suggestion that less frequent checks are needed where there is less risk of spillages. As a result a clothing store, or even arguably the clothing department of a supermarket, would need to be inspected less often than the drinks aisle of a supermarket. That said in none of the reported decisions is there direct support for a defence when an inspection took place hours before an accident. Even in the successfully defended cases that have been reported where there was an inspection regime of checks every 3-4 hours, the last inspection before the accident had usually taken place around 15 minutes prior to the incident. This may well reflect an element of caution with parties running cases where there have been longer intervals, particularly given that since the implementation of QOCS a defendant's costs of successfully defending a claim are no longer recoverable. It does however leave us with limited reported precedents of where the court would consider the line to be in terms of a reasonable inspection regime for shops that are not supermarket environments.
The Court will also consider the source of the risk. If this is found to be something the Defendant was on notice of or that they could control they will be expected to take greater steps as in the case of Black, however more lenience may be shown if the danger does not come from the actions of the business. For example in Laverton v Kiapasha  EWCA Civ 1656 the Court of Appeal considered that there was a different obligation to mop a takeaway floor to deal with the grease created by their trade, than there was to deal with rainwater walked in by customers. As a result the Court accepted that it was not possible to mop up rainwater during peak times in a small crowded shop and that customers could be reasonably safe if they took reasonable care of their own safety. It probably assisted in that case that the Claimant was suspected to be drunk at the time of the incident and so likely not taking reasonable care.
In reality the frequency with which inspections may be carried out will likely be restricted by the volume of staff available, and the cost to the business of someone taking time to undertake such steps, as balanced against the likelihood of an accident/number of visitors. There is no prescribed level at which checks must be undertaken as confirmed in Hassan and it is best assessed by undertaking a risk assessment of your own business, the dangers posed by the premises and activities being undertaken as well as the frequencies of spillages and accidents. Regardless of the inspection regime set it is sensible to ensure that all staff are trained in cleaning as they go, and the appropriate way to deal with hazards as it may help support your policy, particularly if the frequencies of checks is less often. This way you may be able to obtain supportive evidence from staff to narrow down the time a spillage can have been present if they also check areas as they are passing. Realistically in an environment involving a risk of spillages however case law suggests that you will need to be able to show checks of at least every hour, if not under if there is a significant risk, in order to avoid liability based on previous decisions.
Learn more about our Insurance department here