Author(s)
The law in slipping cases is, in theory, settled and straightforward. One question that often arises in practice, however, is whether the defendant bears an evidential burden of proving that it had in place a proper and adequate system. It is a misconception that say that such a burden always arises in this context.
This short blog addresses the circumstances in which such a burden will arise.
The starting point is section 2(2) of the Occupiers’ Liability Act 1957. An occupier of premises owes a visitor 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.“
In the context of evidential burdens, the cases of Ward v Tesco Stores Ltd [1976] 1 WLR 810, Hufton v Somerset County Council [2011] ELR 482, Dawkins v Carnival plc [2012] 1 Lloyd’s Rep 1, Hassan v Gill [2013] PIQR P1 and Lougheed v On the Beach Ltd [2014] EWCA Civ 1538 require consideration.
The facts and decision in Ward are well known. In a “Ward-type case”, there is an evidential burden on the defendant to demonstrate the existence of a proper and adequate system. This represents a departure from the default position where the claimant bears throughout the burden of proving that the defendant failed to exercise reasonable care.
Turning to Hufton, a pupil slipped on water in a school assembly hall. The water had been ‘walked in’ when it started to rain during a break before the relevant system (warning signs etc.) had been implemented. The issue on appeal was whether there was a proper system in place for preventing the hall floor from getting wet and cleaning up water if the floor did become wet. As to the system, which offered a narrow window of opportunity for water to be walked into the hall after it started to rain, Jackson LJ held at [28] 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 the common law and Section 2 of the Occupiers’ Liability Act 1957, is the exercise of reasonable care.
The court found that reasonable care had been exercised. Further, the court did not “regard it as realistic to say that the school should have had a system in place whereby the small area of water should have been spotted and mopped up during the brief period of time between its arrival and the moment when the Claimant slipped“: see [37].
Hufton is significant because it was held to not be a Ward-type case. Distinguishing Ward at [36], Jackson LJ opined:
In this case, unlike Ward, the evidence does not show that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up. What the defendant put in place in the present case was a proper system to prevent water being deposited on the assembly hall floor. Unfortunately that system did not prove effective on [the date of the accident].
(See also Hassan at [11] et seq. per Lloyd LJ.)
In Ward itself, Megaw LJ held as follows at pp. 815H-816D:
It is for the [claimant] to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault; and to my mind the judge was right in taking that view of the presence of this slippery liquid on the floor of the supermarket in the circumstances of this case: that is, that the defendants knew or should have known that it was a not uncommon occurrence; and that if it should happen, and should not be promptly attended to, it created a serious risk that customers would fall and injure themselves. When the [claimant] has established that, the defendants can still escape from liability. They could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers.
According to Tomlinson LJ in Lougheed at [29]:
… the premise of [the decision in Ward] is that it was proved that the defendant “knew that during the course of a working week there was a likelihood of spillages occurring from time to time.” … The defendant also knew that the likelihood of spillage posed a danger to customers if the spillage was not dealt with quickly.
Thus, in that case – where a holidaymaker slipped on a patch of water on a flight of polished granite steps at a hotel – Tomlinson LJ concluded at [32] that Ward did not apply:
There was no finding that spillage or the presence of water was likely in this area. The judge did say that “there was a foreseeable danger arising from the use of the stairs by children or even adults who have come fresh from the pool”. That however falls far short of a finding that the hotel knew of the likelihood of a dangerous situation arising. Not everything which is foreseeable is likely. There was here no evidence that slipping at this place was a known likely risk, with sufficient frequency of occurrence that it required a system to remove it, so that an accident could be inferred to be the result of the absence of a system which ought to have been in place or a failure in the operation of the system.
Dawkins concerned a passenger on a cruise line who fell on water near a drinks dispensing station. The issue was how long the water had been there. According to Pill LJ at [18]:
There was, in my view, an evidential burden upon the [defendants] to show how long the water had been on the floor. On balance of probability, it can be inferred that it was a passenger rather than a member of staff who was responsible for the spillage. If, through another passenger’s lack of care, it had been there only for a very short time, the [defendants] may escape liability. If, on the other hand, it had been there for a significant period of time, they were negligent in failing to have taken remedial action.
The evidence in Dawkins showed that there were many staff present in the relevant area to assist passengers, with the expectation that any spillage would be picked up almost instantaneously. Pill LJ opined that the absence of evidence from one or more of the many members of staff claiming to be present in that area at the material time was “remarkable“: see [28].
Finally, in Hassan, Lloyd LJ held as follows at [24]:
The defendant is not under anything like a strict liability, but it is incumbent on the defendant to adduce evidence of what the system is, or rather what it was at the relevant time, and how it operated or was applied at the relevant time. What that evidence will be may depend on the circumstances, and as I say a claim notified late or very late may pose forensic problems for the defendant. Even in such a case, it is likely to be wise at the very least for the defendant to attempt to identify and trace relevant members of staff and, if unable to find any such person, to say so, in order to be able to rely convincingly on indirect evidence of the system which would have been in operation and would have been applied in such and such a way at the relevant time.
It is possible to distil the following points from the above authorities:
Against the above background, a key issue in any slipping case will be whether it is a Ward-type case or a Hufton-type case. That question will turn on the nature and context of the spillage. Following Lougheed, it is necessary to ask whether it can be inferred that the accident arose from the absence of a system that ought to have been in place or a failure in the operation of the system.
Another key question in any case will be how long the spillage had been present. This issue will arise regardless of where the evidential burden lies; but its resolution may well turn on which party bears that burden. In a Ward-type case, a failure by the defendant to address the issue will often be determinative. In a Hufton-type case, by contrast, unless the claimant is able to demonstrate fault on the defendant’s part, liability will not be established.
Finally, where the evidential burden does shift, the defendant will usually need to adduce evidence from the person(s) responsible for operating the relevant system at the material time. Failure to do this without proper explanation will usually mean that the burden is not discharged.
To view our March 2022 webinar ‘Slipping and Tripping in Premises and on the Highway‘, presented by Damian Powell and Thomas Herbert, please click here.
To read Thomas Herbert‘s article on this topic published in the September 2019 edition of the Personal Injury Law Journal, please click here.
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