ISSUE 54 EWJ web - Journal - Page 16
tiles should be regarded as sufficient for dealing with
water of an occasional nature sufficiently dealt with by
drainage or removal”
seeable 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”
In Cook v Swansea City Council (2017) EWCA Civ 2142
the Court of Appeal had little difficulty rejecting the
application of Ward to a slip on ice in a small public car
park. Having noted that the car park was unmanned
and this was a natural substance, the court approved
the judge’s observation that “where proof of the circumstances leads to the conclusion that something has
gone wrong…it cannot seriously be said that something must have gone wrong to explain the presence
of ice on the ground in December”.
The underlined sentence above represents, in effect,
a direct application of Ormerod LJ’s dissenting reasoning in Ward (indeed, Tomlinson LJ made a point of
citing from Ormerod LJ’s judgment as well as the majority’s). His conclusion that the accident ‘could have
occurred despite the use of proper care…if the stairs
had become wet only very shortly before’ could be applied to virtually any situation at all involving random
spillages. He may have felt that there was a much
stronger evidential foundation for reaching that conclusion in Lougheed because spillages generally were
not a problem, but even in Ward there only approximately 10 per week in a large supermarket and, as
Ormerod LJ explained in his dissent, it was perfectly
possible that a customer had dropped the yoghurt pot
a matter of seconds before the accident.
Perhaps the apotheosis of the Court of Appeal’s reluctance to apply to Ward outside its specific factual
context (i.e. a busy public area with regular spillages)
is Lougheed v On the Beach (2014) EWCA 1538. Valerie
Lougheed travelled to Spain for a family holiday. On
16th August 2009 she slipped on water on a flight of
internal granite steps in her hotel. The steps had nonslip grooves cut into them. The evidence from the
hotel was that hundreds of guests had used the steps
before without any prior accident. Although they were
occasionally used by guests walking from the pool to
reception, this was not a common event. There was a
single clean at 8am, and for the rest of the day staff
were expected to keep an eye out for spillages and
clean them when they were identified.
Slipping down under
It is of particular interest that in the same year that the
Court of Appeal decided Ward v Tesco, the High Court
of Australia dismissed the Claimant’s appeal in Dulhulty v J B Young (1976) 7 ALR 409 against a finding
that the owner of a department store in Queensland
had no liability in circumstances where she slipped on
a solitary grape. The Court (Barwick CJ, Mason J concurring), echoing the approach taken by Ormerod LJ
in Ward, concluded that the mere presence of the
grape on the floor, in the absence of any evidence
about how long it had been there, did not create a
prima facie case:
“His Honour in his summary of judgment said this:”
In my opinion there is no evidence from which I can
draw any reliable conclusion as to how the grape came
to be where it was or how it had been there” (I think
he means how long it had been there).: It is perfectly
consistent with the evidence that the grape had been
dropped by a member of the public a very short time
before the plaintiff stepped on it … The fact that remains of the grape were still there some 10 minutes or
so after the occurrence raises a doubt in my mind as
to whether any system for keeping the department
clean was working adequately. It seems to me, however, that this throws no light on the crucial question
of how long the grape had been on the floor before
the plaintiff stepped on it …”
The Claimant sought to rely on Ward v Tesco and, in
particular, the passage from Lawton LJ’s judgment set
out in paragraph 5 above. Tomlinson LJ did not
conceal his scepticism about the reasoning in Ward
generally:
“I confess to having some difficulty with this passage.
Of course the accident would not have happened if
the spillage had been dealt with as soon as it occurred.
That however begs the question whether the staff
ought to have seen the spillage as soon as it occurred.
Perhaps in that case the inference that the spillage had
been on the floor long enough for it to have been
cleaned up by a member of the staff was justified
because of the frequency of spillages of sticky
substances and the number of staff on the premises”
He went on to hold that: In my judgment the judge in
our present case was not on the basis of the facts found
justified in concluding that this was an accident such as
in the ordinary course of things does not happen if
those who have the management of the hotel use
proper care. It was an accident which could have occurred despite the use of proper care, as would have
been the case, for example, if the stairs had become
wet only very shortly before Mrs Lougheed negotiated them and before the wetness had or ought reasonably have come to the attention of the hotel staff.
His Honour, in my opinion, was quite correct to say
that evidence of the time when the grape was dropped
on the floor and of the time it had been there was
indispensable in the appellant’s case … “
I do not consider that this was an appropriate case for
the invocation of the Tesco v Ward principle, if such it
is. 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 foreEXPERT WITNESS JOURNAL
The approach adopted in Dulhuty reflected earlier
decisions in Australia which have emphasised that,
taken to its logical conclusion, the principle followed in
Ward would mean that the mere presence of any foreign substance out of place in an area under the control and management of the Defendant would
immediately give rise to a presumption of negligence.
Accordingly, in Mummery v Irvings (1956) 96 CLR 99
the High Court sounded the following warning:
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APRIL 2024