ISSUE 54 EWJ web - Journal - Page 14
Ormerod’s point, then, is that the majority reasoning
in Ward has an inherent circularity which lacks intellectual rigour. Spillages by their very nature are accidental and therefore occur randomly, without
warning. It is impossible for an interval-based cleaning
regime, however well implemented, to prevent every
spillage, since it is always possible that the spillage has
only just occurred.
slip on water in a restaurant (‘the Conservatory’) on
board a cruise ship. The only evidence of how long
the water had been there was that of fellow passengers
who said that it was not present when they arrived between 10 minutes to 30 minutes before the accident.
The Defendant called evidence of their inspection system which consisted of walking the floor, monitoring
its cleanliness. It was common ground that the restaurant was so busy that there was an expectation that
spillages would be dealt with almost ‘instantaneously’.
The trial judge accepted that the staff were properly
trained and very safety conscious. However, the Defendant only called evidence from the restaurant manager, not from any of the many staff who had been
present on the day of the accident. Nonetheless, the
judge at first instance found for Defendant, observing
that “The proper inference in all the circumstances is
that even with the best possible safeguards an accident
such as this is bound to happen occasionally”. The
Court of Appeal, applying Ward, accepted that the
presence of the spillage cast an evidential burden onto
the Defendant. Having done so, Pill LJ observed that:
“I accept that if the probability is of such contemporaneity between the spillage and the accident that remedial action could not reasonably be taken during
the gap between them, the claim would fail. The
Recorder did not make a finding as to time but, if the
defendants could demonstrate such contemporaneity,
the claim would fail.
Ormerod LJ went on to set out the evidential
implications of casting the burden on the Defendant
on the facts of such a case: “I ask myself what evidence
could they have called? It would have been fortunate,
perhaps, if they had been able to show that their
sweeper had passed over this bit of the floor five minutes before the accident. But it would not have shown
that their system was either better or worse than if the
sweeper had gone by that bit of the floor an hour earlier. I cannot think that the case would have been carried any further by calling evidence from such
employees as may or may not have been about. This
is a supermarket, not a place with counters and assistants behind the counters. I cannot imagine what E
evidence they could give except to say that they had
not noticed the spill; and the matter would have been
taken no further”
Whilst he did not say so explicitly, Ormerod LJ might
be taken to have concluded that the judgment of the
majority had, in effect, reversed the legal as well as the
evidential burden. Afterall, if a slip caused by a substance on the floor created a prima facie case of negligence, and that prima facie case could not be rebutted
by evidence of a regular cleaning system, the Defendant could not discharge the notional burden without
proof of evidence which positively negated negligence
or causation.
[…] The absence of evidence from one or more of the
many members of staff claimed to be present in the
Conservatory at the material time is remarkable. The
explanation for the lack of evidence from a member
or members of staff was, the Recorder found, that the
defendants “could not establish who it was.” In my
judgment, in the absence of evidence from members
of staff claimed to be implementing the system, the
judge was not entitled to infer from the existence of a
system that the spillage which led to the fall occurred
only a few seconds, or a very short time, before the
accident”
It is fair to say that Ward has received a mixed
reception from the Court of Appeal over the almost
five decades since it was decided. In some cases it has
been applied with full vigour, and in others distinguished or downplayed as a decision confined strictly
to its own facts.
On the facts of Dawkins, the presence of a spillage on
the floor for even a very short period of time created
an evidential burden precisely because of the agreed
position that the Defendant’s own properly implemented system required the almost instantaneous removal of spillages. That being so, the fulcrum of the
case became timing (i.e. on balance the spillage had
been present for long enough to shift the evidential
burden), and in the absence of any factual witnesses
for the defendant who were present on the day, it is
perhaps unsurprising that the Court of Appeal
allowed the appeal.
Large restaurants, shops and other high-spillage
areas
In cases on similar facts to Ward itself, the Court has
not demurred from its application.
An early example is Jacob v Tesco Stores (1998) ALL ER
(D) 609 in which the Claimant slipped on a small puddle of water in a large Tesco supermarket in Swansea.
The Court of Appeal regarded the principles set out
by the majority in Ward as a ‘useful’ blueprint and
accepted that the existence of the water on the floor
created a prima facie case which shifted the evidential
burden onto the Defendant. It was noteworthy, however, that it regarded as ‘crucial’ a finding of fact made
by the first instance judge that the spillage had been
present for ‘some considerable time’ because of its particular location in the store. Thereafter, it found no
reason to criticise the judge’s conclusion that Tesco’s
system of inspection, which was predominantly a reactive and unsupervised one (“all indians and no
chiefs”) was unreasonable in the circumstances.
Workplace accidents
By contrast, the Courts have adopted a less generous
approach in the context of workplace accidents, particularly where spillages are either not known to occur
with any regularity, or simply have to be accepted in
the particular context of the activity being caried.
In Furness v Midland Bank (2000) (Unreported) CA the
Claimant slipped on a water on a flight of internal
stairs in the office block where she worked. The steps
were constructed of smooth tiles. There was no evidence about how long the water had been present,
More recently, but in a similar vein, is Dawkins v
Carnival (2011) EWCA Civ 1237 which concerned a
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