ISSUE 54 EWJ web - Journal - Page 17
pery when wet. Sixthly, that area was also being used
as a thoroughfare between the bar, the outside of the
premises at the front and the garden of the premises
at the rear. Seventhly, the system described by Ms Osborne was not documented in terms of the checks
which were actually undertaken, where or when”
Julian Knowles J overturned this finding on appeal.
He held that unlike Ward and Dawkins: there was direct and detailed evidence of the system which was
being operated in the bar that night. Having regard to
the realities of running a late night bar, the system of
floor inspections by several members of staff as described by Ms Osborne – and which the judge accepted was being done – was sufficient to fulfil the
statutory duty lying upon the Defendant. Its system
was proactive and not reactive.
“At this stage it is appropriate to return to the language
used in Scott v. London and St. Katherine Docks Co.
(supra), and to observe that the vital condition for the
operation of the principle is that ” the accident is such
as in the ordinary course of things does not happen if
those who have the management use proper care” .
Indeed, to overlook or to exclude this requirement
might well be thought to produce the result that mere
proof of any occurrence causing injury will constitute
sufficient proof of negligence in any case where an object which physically has caused injury to the plaintiff
is under the control and management of the defendant and the actual cause is, therefore, not known to
the plaintiff and is, or should be known to the defendant. The requirement that the accident must be such
as in the ordinary course of things does not happen if
those who have the management use proper care is
of vital importance and fully explains why in such
cases res ipsa loquitur.”
[…]
I think Mr Hill was therefore right to submit that on
the judge’s approach, a system which in the judge’s
view would have complied with s 2(2), would effectively have placed the Defendant under a duty to have
had in place a system of continuous surveillance and
monitoring, so that no spilt drink could ever be present on the floor at all. Mr Hill said this would be unreasonable. It would, for example, have required
many more members of staff, with each person simultaneously being responsible for the continuous
monitoring of separate patches of floor (eg, one square
meter each across the two floors, as well as in the garden and on the stairs) and instantaneously reacting to
spilt drinks. That, I consider, would have gone far beyond that which was required by s 2(2) of the 1957 Act
and its doubly qualified duty.
The Courts in Australia have, therefore, been critical
of the decision in Ward, suggesting that it failed properly to grapple with the core requirement in Scott v
London and St Katherine Docks that a prima facie case
should include some evidence of negligence which
cannot normally be inferred from the mere presence
of the foreign substance: see for example Brady v
Girvan Bros (1986) 7 NSWLR 241 and In Strong v
Woolworths (2012) HCA 5.
Ward v Tesco in 2023
In February 2023 the English High Court handed
down judgment in Apres Lounge v Wade (2023) PIQR
P13. In the early hours of the morning the Claimant
had slipped on a spilled drink in a bar in the
Leicester city centre.
Conclusion
Insofar as Ward v Tesco gives rise to any distinct
principle of law, it is submitted that the case law set out
above demonstrates the need to satisfy two distinct
pre-conditions.
The evidence from the Defendant was that staff on
duty had included a manager, supervisor and two
‘spotters’ whose duty it was to continually walk around
the floor, collect glasses and check for safety issues.
First, there must be a likelihood of regular spillages
about which the Defendant has (or should have had)
knowledge. As Tomlinson LJ explained in Lougheed,
however, mere foreseeability is not enough, since ‘not
everything that is forseeable is likely’. This seems to suggest, and this is supported by the approach taken in
Holmes v Vange Scaffolding, that the occurrence of
spillages must create a real source of danger to users of
the premises, sufficient to require the Defendant to have
in place in a targeted system to deal with it. Spillages on
busy supermarket floors plainly satisfy this requirement,
but patches of oil in factories, ice in car parks, or water
around swimming pools, arguably do not.
The judge at first instance found in the Claimant’s
favour. Applying Ward, he held that “The bar was a
dark busy place where drinks were being obtained
and there were likely to be spillages”. Accordingly, he
accepted that the presence of the liquid created a
prima facie case of negligence and that the defendant
had not discharged the evidential burden placed on it.
He went on to give further reasons for his decision:
“First, as I have said, the accident occurred in place
close to the bar. This was an area where spillages of
drinks were likely. Secondly, this was a busy area, particularly on a Saturday night. Although there was evidence of a system in place, there was no evidence
from those who were implementing the system and
no evidence as to how long the liquid had been on the
floor. Fourthly, not only was the area where Ms Wade
fell close to the bar and the risk of spillage, it was, I
find, dark as Ms Wade describes. Fifthly, the floor was
wooden. Although, as Mr Dornan says, it was not slippery when dry, in my view it was likely to become slipEXPERT WITNESS JOURNAL
Secondly, there must be an evidential basis for finding
that the spillage had been present for long enough
that it should have been cleared away. It is perhaps
this requirement which is most problematic because,
as Tomlinson LJ noted in Lougheed, the answer requires a further question, namely whether the accident would have happened if the Defendant had
exercised reasonable care in dealing with the spillage.
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APRIL 2024