ISSUE 54 EWJ web - Journal - Page 13
Ward v Tesco Stores Revisited
by Jack Harding - www.dekachambers.com
Ward v Tesco Stores (1976) 1 WLR 810 is regarded by
many personal injury practitioners as an effective
forensic weapon, allowing claimants to throw a burden of proof onto the Defendant which might otherwise represent an insurmountable obstacle to the
claim.
The underlined words have assumed particular
significance in the case law that has followed Ward, because they require a finding of fact to the effect that
the relevant spillage must have been present for long
enough to be identified by a reasonable system. Only
if that is the case can the presence of the spillage be
said to be more consistent with negligence than the
absence of negligence. In Ward v Tesco, the conclusion
of the majority was that such a spillage should, reasonably, have been dealt with ‘as soon as it occurred’.
This, combined with the known likelihood of spillages
on a smooth, tiled floor, created the rebuttable
presumption in favour of the claimant.
It is submitted, however, that properly understood,
the effect, and therefore the utility, of Ward, is more
limited and should not be regarded as creating any
freestanding principle of law applicable in every
slipping claim.
The facts of Ward are critical because they underscore
the very particular circumstances which led the Court
of Appeal to reach the decision that it did. Mrs May
Ward was shopping at a Tesco supermarket in in Liverpool on 21st February 1975. There were some 30
to 35 staff on duty. As she walked down an aisle she
slipped on some pink yoghurt which had spilled on
the floor. The upturned yoghurt pot was found
nearby. About three weeks later, she returned to the
store and gave evidence that she had observed some
spilled orange juice lying on the floor for 15 minutes
before anybody identified it and cleaned it away. The
Defendant called evidence about the cleaning procedures at the store (it was ‘brushed’ five or six times during the day, and if spillages were identified, someone
would stand by them until cleaned), but it was unable
to say when the store had last been cleaned before the
Claimant’s accident. The store manager accepted that
there were approximately 10 spillages every week.
Megaw LJ, giving a concurring judgment, stated as
follows: “It is for the plaintiff 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… [The Defendant] 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. That, in this case, they wholly
failed to do. Really the essence of Mr. Owen’s argument—and he did not shrink from it—was: ” Never
mind whether we had no system at all: still, as the
plaintiff has failed to show that the yoghurt was spilt
within a few seconds before the accident, she must
fail.” As I have said, in the circumstances of this case,
I do not think that the plaintiff, to succeed, had to
prove how long it was since the defendants’ floor had
become slippery”
The Defendant contended that it was for Mrs Ward to
demonstrate that the yoghurt had been on the floor
for long enough to be identified and cleaned away.
Unless she could do so, it was argued, there was no
‘prima facie case’.
The Court of appeal was split two to one in the
Claimant’s favour. Giving the lead judgment, Lawton
LJ based his decision on the well-known judgment in
Scott v London and St Katherine Docks (1865) 3 H & C
596, and the principle of res ipsa loquitur:
Ormerod LJ gave a trenchant dissent. He attacked the
core premise of both leading judgments, namely that
the mere presence of yoghurt (or indeed any spillage)
on the floor was itself intrinsically more consistent with
negligence that the absence of it:
“Starting from the beginning, I do not think that it
was established that this accident was caused by any
want of care on the part of the defendants. The accident described by the plaintiff—and she did no more
than describe the accident, namely, that she slipped
on some yoghurt which was on the floor of the supermarket—could clearly have happened no matter
what degree of care these defendants had taken. The
crucial question is how long before the accident the
yoghurt had been on the floor. Had some customer
knocked it off the shelf a few moments before, then
no reasonable system which the defendants could be
expected to operate would have prevented this
accident. So I think that the plaintiff fails at the outset”
“The accident was such as in the ordinary course of
things does not happen if floors are kept clean and
spillages are dealt with as soon as they occur. If an accident does happen because the floors are covered
with spillage, then in my judgment some explanation
should be forthcoming from the defendants to show
that the accident did not arise from any want of care
on their part; and in the absence of any explanation
the judge may give judgment for the plaintiff. Such
burden of proof as there is on defendants in such circumstances is evidential, not probative. The judge
thought that prima facie this accident would not have
happened had the defendants taken reasonable care.
In my judgment he was justified in taking that view
because the probabilities were that the spillage had
been on the floor long enough for it to have been
cleaned up by a member of the staff ” (emphasis
added).
EXPERT WITNESS JOURNAL
11
APRIL 2024