ISSUE 54 EWJ web - Journal - Page 15
nor where it came from. There was no history of
leakages or spillages. The Defendant adduced evidence of periodic inspections of the general structure
of building and routine cleaning of the staircase at the
end of the working day. However, there was no evidence at all of any regular cleaning of the staircase
during the course of the day, even on a reactive basis.
The Claimant invoked Ward v Tesco, but it was roundly
rejected by the Court on the facts:
“The judge in this case found it unnecessary to resort
to the principle in Ward v Tesco. In my judgment he
was right not to do so. There was no question that the
floor was wet. The issue then is what it is reasonable to
expect a shopkeeper to do about it. There is a distinction between particular dangers such as greasy
spillages, which it is reasonable to expect a shopkeeper
to deal with straightaway, and the general problem
posed by walked in water on a wet night, which can
never be completely avoided. Everyone coming in
from the wet outside to the drier inside brings water
with them on their feet”.
“Of course in many cases where spillages are frequent
and the dangers of slipping very real, it will be necessary for employers to instruct their staff very particularly to be alert to spot any danger and to deal with it.
Indeed, it may well be necessary to keep a constant
lookout and to instruct staff accordingly. Ward v Tesco
Stores Ltd [1976] 1 WLR 810 was clearly such a case,
the more particularly so because it is the public who
are put at risk by spillages in supermarkets.
It is difficult to understand why the uncontentious fact
that the floor was wet meant that Ward had no application at all and that the only question was what reasonable care required. After all, where Ward has been
applied, there has rarely been a dispute about a slippery substance being on the floor, but it is the very fact
that it has been present and caused an accident which
is relied upon to cast an evidential burden on the Defendant to adduce evidence of how it exercised reasonable care. It seems that Hale LJ’s real point was
that the mere presence of rainwater did not create a
prima facie case because it was not of itself more
consistent with the presence rather than absence of
negligence. She went on to explain that:
[…] In a case like the present, however, where spillage
and leakage is almost unheard of and where the
premises are used only by employees, it seems to me
absurd to think that an instruction of the sort suggested
here would in reality serve any useful purpose. If required here, it would be required in the case of every
single office premises and it would become merely an
incantation. I simply cannot accept that the giving of
such an instruction would contribute materially to
keeping surfaces free from the odd drop of water”
“At busy times in a business such as this, the defendant
must be right that it is simply not practicable to mop
up the water as it arrives. The only solution would be
to close the shop, which he can only be expected to do
if the customers cannot otherwise be reasonably safe.
In Holmes v Vange Scaffolding (1989) Lexis Citation
1167 the Claimant, a scaffolder, was working in a large
power station when he slipped on a patch of oil and
fell heavily to the ground. The Defendant accepted
that greasy substances such as oil did sometimes form
on construction sites such as this, but did not accept
that it gave rise to any sufficient danger to warrant a
specific system of inspection or removal. The trial
judge found for the Claimant and the Defendant appealed. The Claimant argued that the principles in
Ward applied and created a prima facie case which the
Defendant had failed to rebut. Staughton LJ, having
referred to the facts of Ward, held that:
The reality is that at such times the customers can be
reasonably safe if they take reasonable care for their
own safety. The unchallenged evidence of the
claimant’s two female companions was that it was obvious that the floor was wet. This cuts both ways. If the
floor had been swimming wet so that no−one could
walk on it with reasonable safety, then the shopkeeper
should undoubtedly have noticed and done something about it, even closing for a short time if necessary. But the evidence went nowhere near supporting
this. The judge himself wavered from ‘considerable’
to ‘significant’, to ‘substantial’ quantities of water. The
more obvious such water is, the greater the need for
the customer to take care. But all floors are to some
extent slippery when wet.”
“It is entirely another question whether there is a
rebuttable presumption of fact that small oil spillages
are not to be found on the floor of vast power stations
if the occupiers have exercised reasonable care. On
the evidence which we have read, I do not think that
there is any such presumption in the particular
circumstances of this case”
A further example is Tedstone v Bourne Leisure (2008)
EWCA Civ 654. The Claimant slipped on water in the
vicinity of a jacuzzi at a hotel. Again, she relied upon
the principle in Ward, arguing that the particular
amount and location of water created a prima facie
case in her favour. May LJ was prepared, for the sake
of argument, to accept that proposition, but noted that
the presence of non-slip tiles effectively rendered it
nurgatory:
A retreat from Ward?
A third category of case is discernible in which the
Court of Appeal has regarded the application of Ward
as simply unrealistic or a distraction from the proper
determination of the facts.
In Laverton v Kiapasha (2002) EWCA Civ 1656, for
example, the Claimant slipped on rainwater in the Defendant’s takeaway shop in the early hours of the
morning. The rainwater had been brought in on the
soles of customers’ shoes. The Claimant argued that
Ward v Tesco should be the starting point. Hale LJ (with
whom Peter Gibson LJ agreed; Mance LJ dissenting)
rejected this approach:
EXPERT WITNESS JOURNAL
“In the present case the area where Mrs Tedstone fell
was an area which had non-slip tiles. There will, of
course, be water from time to time around a swimming pool and around a Jacuzzi, most often when
people get out of the pool or the Jacuzzi and water
drips off them. But of course in those circumstances
the quantity of water will not be as great as that which
Mrs Goodwin described. Generally speaking, non-slip
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