B3/2000/3434
Neutral Citation Number: [2001] EWCA Civ 1528
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LINCOLN COUNTY COURT
(MR. RECORDER COWARD Q.C.)
Royal Courts of Justice
Strand
London WC2

Tuesday, 9th October 2001
B e f o r e:

LORD JUSTICE SCHIEMANN

and

LORD JUSTICE WALLER

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MARKS AND SPENCER PLC
Appellant
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KATHLEEN PALMER
Respondent
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MR. STUART C. BROWN Q.C.  and MR. S. TURNER (instructed by Messrs. Beachcroft Wansborough, Leeds LS1 2LW) appeared on behalf of the Appellant.

MR. A. URQUHART (instructed by Messrs. James Smith Partnership, Skegness, Lincs. PE25 2AG) appeared on behalf of the Respondent.
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J U D G M E N T
Tuesday, 9th October 2001
1.	LORD JUSTICE WALLER: This is an appeal from the judgment of Mr. Recorder Coward Q.C., given on 25th October last year, by which he concluded that Marks and Spencer plc were liable for the injury caused to Mrs. Palmer when she, as a member of staff, tripped over a weather strip inserted in the floor of the doorway of the staff exit of their store in Boston. By his judgment he concluded that Marks and Spencer were not negligent. His conclusion, however, was that they were in breach of statutory duty, having regard to the absolute nature of that duty as he found it to be. 
2.	The appeal raises questions as to the proper construction of certain regulations. The relevant regulations are the Workplace (Health, Safety and Welfare) Regulations 1992, and the particular regulations are Regulations 12(1), 12(2)(a) and 12(3). The regulations state:
“12(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.
(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that --
(a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety
......
(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.” 
3.	The recorder held that there was no breach of Regulation 12(3). He held, however, that the simple fact that Mrs. Palmer had tripped over the weather strip demonstrated that the floor was unsuitable and thus that there was a breach of Regulation 12(1). He also held that the floor was uneven so as to expose the claimant to a risk to her health or safety and thus that there was a breach of Regulation 12(2). 
	The facts. 
4.	The material findings are these. Mrs. Palmer had worked for Marks and Spencer for 10 years. This exit used to be an emergency exit but it had been opened for staff for somewhere between 18 months and two years prior to the accident. Mrs. Palmer had used the exit many times during that period. She was aware of the weatherstrip, which was proud of the floor to the extent of some 8 to 9.5 mm. The route through the exit was well lit and was used by about 20 to 25 members of staff daily. That, as the recorder held, meant that there had been about 6,000 to 8,000 exits, depending on whether the period was 18 months or two years. There had been no incident prior to that on 12th December 1996 when Mrs. Palmer was injured and indeed there had been no complaint about the exit. It is right to say that the experts agreed that it would have been possible to have some form of weather protection at this exit without the necessity of this strip. 
5.	In any event, on this day Mrs. Palmer was making her way through the door. She was carrying some heavy shopping bags. She was wearing her usual footwear. She had to use her swipe card at a slightly inconvenient angle. She pushed the door open, tripped and fell down the steps that were immediately outside the door. She fractured her wrist and there is no doubt that she suffered a painful injury for which compensation would be agreed in the region of some £5,000 if liability was established.
6.	The recorder, as I have said, found against the claimant on whether this accident was foreseeable by Marks and Spencer and found against the claimant on her claim in negligence against them. He then turned to consider the regulations. In our bundle, consideration of the regulations starts at page 146, where they are set out. The recorder then noted on page 147 that the word used in regulation 12(1) is “suitable”. He then referred to the authority of Larner v. British Steel (1993) 4 All E.R. 102, and noted that that case was concerned with section 29(1) of the Factories Act 1961, that provision of the Factories Act being concerned with the safety of exits and entrances, so far as was reasonably practicable for the employer concerned. The recorder then noted that that authority, when considering section 29, had held that reasonable foreseeability did not arise so far as that section was concerned, and it was in those circumstances that he did not apply the requirement of foreseeability to the risk that he had to consider under either Regulations 12(1) or 12(2). He then concluded in this way: 
“It follows, therefore, in my view, that once I am satisfied that the claimant was on a traffic route, which she clearly was, that she came into contact with the weather strip, which was on the traffic route, and as a consequence of that she fell and injured herself, then in my judgment it follows, as day follows night, that the traffic route was not suitable for the purpose for which it was used. Equally, in relation to 12.2, I would say that the unevenness of the traffic route was such so as to expose the claimant to a risk to her health or safety. That being so, I reject any claim under 12.3 of the Regulations because I do not consider it has any direct relevance to the facts of this case, but I find the breach of statutory duty under 12.1 and 12.2 established.” 
7.	Mr. Stuart Brown Q.C., appearing for Marks and Spencer on this appeal, attacked the view of the recorder to the extent that he seemed to be saying that if someone trips on a floor that must show that the floor is unsuitable. That submission was clearly finding some favour before us, and we then pressed Mr. Brown to identify what the appropriate approach was. He did not wish to submit that foreseeability was the touchstone, having regard to the authority of Larner. He invited us to approach the matter by reference to a passage in Munkman, 12th ed., page 195, where the editors, having considered the case of Larner, said this: 
“Just as in relation to the question whether or not a place is 'safe', the test for 'suitability' should, it is considered, be determined without reference to reasonable foreseeability of injury [and then Larner is quoted.] Suitability involves an adequate risk assessment to determine any risks and identify measures against them.” 
8.	The basic reason for Mr. Brown's reluctance to press for foreseeability came, I think, to this. These regulations were brought into being pursuant to the United Kingdom's obligation under certain directives. We were shown what is described as the Framework Directive 89/391/EEC. That appears at page 308 of Redgrave, 3rd edition. The particular directive which gave rise to these particular regulations is Directive 89/654/EEC (“the Workplace Directive”) which begins at page 1190 of the same volume of Redgrave. 
9.	Mr. Brown reminded us that the regulations replaced the former section of the Factories Act under which it was provided that an employer, so far as practical, had to provide a safe exit or entrance to work. That was a provision to which he suggested Larner had a direct application. He reminded us (as did indeed Mr. Urquhart when he came to make his submissions) that the Workplace Directive was intended to bring about improvements. Certain paragraphs of the preamble indicate that, and paragraph 5 in particular. Thus he submitted it would not be right to construe the regulations as imposing a lesser obligation on employers than that imposed under the previous legislation, and he relied on what I said at page 112 in the judgment of this court in Stark v. Post Office (2000) P.I.Q.R. 105. 
10.	I am not sure that what I said goes quite as far as either Mr. Urquhart submits or as Mr. Brown was prepared to concede. But I do not believe that the point matters much, having regard to the way that argument has ultimately developed in this case. Albeit I think that Mr. Brown is right that foreseeability is not the touchstone, it is difficult to see how it does not play, as he submitted it should, some part in the exercise. 
11.	In any event, Mr. Brown was rightly rather anxious not to be forced into redefining the word “suitable”. He submitted it is a well-known English word and provides an objective standard. His submission was that the right answer would be provided by making the risk assessment referred to in Munkman and asking the question whether the floor here was suitable. 
12.	Mr. Urquhart in his submissions could not really defend the recorder's approach that once someone had tripped that must show the floor is unsuitable. 
13.	He rightly pointed out that the regulations are concerned with health and safety, that being their very title. He emphasised that this particular regulation was concerned with risks of injury to health and safety, those being the concluding words of 12(2)(a). Therefore (and again this is a submission which I would accept) it would follow that when considering suitability the court is concerned with suitability from the health and safety point of view. 
14.	Mr. Urquhart also suggested that Regulation 12(1) imposed an absolute obligation. He relied on the preamble to the Workplace Directive, where the word “guarantee” is used. He relied on Regulation 5 of the workplace regulations, which provides that the workplace and the equipment, devices and systems to which regulation applies shall be maintained in an efficient state, in an efficient working order and in good repair, which he suggested would impose an absolute obligation, particularly having regard to the decision in Stark to which I have previously referred. He also relied on Regulation 8, which provides that every workplace shall have suitable and sufficient lighting. He relied on the authority of Davies v. Massey Ferguson Perkins Ltd. (1986) I.C.R. 580. That was a case in which a light had ceased to work. The court held that it was an absolute duty to have lights working and that thus there was a breach if the light was not working. 
15.	Two points to make on those submissions are that first, of course, a word like “maintained”, as Mr. Brown submitted, can be tested by whether the end has been achieved, whereas a word like “suitability” seems on its face to involve a qualitative assessment. The second point is that it is not necessarily an answer to say that Regulation 12(1) imposes an absolute obligation. It may be absolute in terms of requiring a suitable floor but it does not assist in construing the word “suitable” unless one restricts the submission to saying that these regulations are intended to impose a very high degree of liability on the employer. 
16.	In my view, the provisions relied on by Mr. Urquhart do not really assist in answering the question we have to answer in this case. The key to answering that question is this. Both Mr. Urquhart and Mr. Brown were inclined to accept that the words at the end of Regulation 12(2) (which I have already quoted and which I emphasise -- “to expose any person to a risk to his health or safety”) were of assistance in identifying whether a floor was suitable. Suitability must be examined from a health and safety point of view. The question under that regulation is thus whether there is, in the construction of the floor, a risk to health and safety. 
17.	Before considering further the aspect of suitability in relation to that regulation, it is worth turning to Regulation 12(2) itself to see if it applies, because if it applies it seems to me that it would be convenient to consider both regulations together. 
18.	Mr. Brown submitted that the weather strip did not make the floor uneven. He submitted that it was Regulation 12(3) which was meant to deal with any possible obstruction and was thus the only regulation that would apply to a situation where a weather strip was standing proud of the floor. I do not agree. It seems to me that a weather strip which is just proud of the floor can and would make a floor uneven. 
19.	So, as I have indicated, it seems to me appropriate to approach both regulations together and to pose the question, under both Regulation 12(1) and Regulation 12(2), has the floor been constructed in such away as to expose any person to a risk to his health and safety? Was the unevenness of the floor such as to expose any person to such a risk? 
20.	As I say, I think ultimately both counsel accepted that was the right question. The difference between them was obviously in the way it should be answered, but ultimately the difference in the way they answered it depended on a different approach to the assessment of risk. Mr. Urquhart submitted that it was intended that the obligation on the employer would be a strict one, and thus he submitted that the risk with which one should be concerned could be a very small one. He cited from the judgment of Aldous L.J. in Hawks v. London Borough of Southwark, a Court of Appeal transcript dated 20th February 1998. Three pages from the end of that judgment Aldous L.J. said this: 
“Although there was evidence that the task was not easy with two people, I believe it to be self-evident that the risk of falling downstairs would be less with two people than with one. It is therefore necessary to weigh the slight risk of the Plaintiff falling, if he carried the doors himself, against the sacrifice to the Defendants of providing help.” 
21.	Thus Mr. Urquhart submitted that that supported his submission that the risk need only be a slight one. 
22.	Mr. Brown in response cited the passage in Aldous L.J.'s judgment at the previous page where he said this: 
“The Regulations place upon the Defendants the onus of showing that they had taken appropriate steps to reduce the risk to the standard required by Regulation 4(b)(2). To ascertain whether they had done that the Court has, as of the date of the accident, to assess the risk of the Plaintiff falling down the stairs and hurting his foot. If there was a real risk, then the Court must go on and decide whether that risk could have been reduced and if so, how it could have been done with the least sacrifice to the Defendants.” 
23.	Mr. Brown then also relied on passages in the judgment of Hale L.J. in Koonjul v. Thameslink Healthcare Services (2000) P.I.Q.R. 123. The headnote supports the proposition of a real risk, but the passage in the judgment where Hale L.J. deals with the matter is at page 126, where she says: 
“For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have.” 
24.	Mr. Brown then also showed us a passage in a judgment from a previous generation, which is the case of Rogers v. George Blair (1971) 11 K.I.R. 391, and the judgment of Salmon L.J. The case dealt with the question of whether goggles were suitable to protect the eyes of a plaintiff, and I need only cite one sentence from the judgment of Salmon L.J. at 395 where he said:
“The protection, to be suitable, need not make it impossible for the accident happen, but it must make it highly unlikely.” 
25.	I am not sure that language such as “real risk” or “slight risk” necessarily encapsulates the exercise that it seems to me must be performed. If the risk, however slight, is of a very serious injury or death in falling from a high-story building, then the fact that the risk is slight may not outweigh the cost and importance of taking adequate precautions. Equally no one would suggest that an employer should be entitled to have a seriously uneven floor if the risk is simply that someone may trip over -- i.e., that the risk is not of a very serious injury. It seems to me that the exercise to be performed is one of taking into account all relevant factors in this context; that is to say, the nature of the risk (i.e., here that the weather strip is by a door, that it is only 8 to 9.5 millimetres high, that it is next to some steps and that if the weather strip were tripped over a person may fall down the steps outside the door). But at the same time the assessment would hold that the weather strip was obvious, that it was in a place to be expected, and indeed this lady knew of it and there had been no complaints at all despite the number of exits that had taken place. 
26.	Then of course the assessment would take into account the nature of the persons who are exposed to any risk. This lady, for example, was 63. The evidence was that she did not always walk picking her feet up, as perhaps she should have done, and the presumption must be that there would be a number of employees in Marks and Spencer such as this lady. But again the assessment would be that persons such as this lady had managed to exit without any difficulty. Surely (it could be said) persons can manage a weather strip which is only 8 to 9 mm proud of the floor. 
27.	The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did. 
28.	I would therefore allow the appeal. I would of course say that one is sympathetic to the claimant who has suffered the injury which this lady has. But the position is that not every trip will entitle a claimant to compensation. 
29.	As I say, I would allow the appeal. 
30.	LORD JUSTICE SCHIEMANN: I agree that this appeal should be allowed, broadly speaking for the reasons articulated by Lord Justice Waller, although I would prefer to reserve my position in relation to the question of unevenness in Regulation 12(2) and whether or not this particular weather strip had the effect of making the floor uneven. 
31.	Regulation 12(2) is designed to help flesh out the meaning of the requirement of “suitability” in paragraph (1). It seems to me infelicitous, both in grammar and punctuation, but counsel are agreed what must have been aimed at was a floor which was so uneven as to expose any person to a risk to his health or safety. 
32.	One must bear in mind that these regulations are intended to guide an employer in the construction, in the first place, of a workplace, and thereafter its maintenance. It is common ground, and I agree, that notwithstanding the wide language and the reference to “any person” we are not here concerned with the blind or the drunk. The question of suitability is not to be decided in that context, unless one is dealing with an establishment for the blind or perhaps a place where alcohol is consumed in significant quantities. 
33.	In law, context is everything. The context here is a shop, with it being expected that many people of varying degrees of physical mobility, in varying footwear and varying degrees of tiredness and attention, with varying amounts of bags and so on on their persons, will use this floor to walk on. But one has to bear in mind that these will be people who live, by and large, in the ordinary world, who walk on ordinary roads and who live in ordinary houses and move about in the way that we all do. The sort of slight rise which we have here occurs everywhere. One can hardly move for more than a few minutes without being exposed to whatever threat to health and safety such a rise may be said to constitute. 
34.	The ordinary person would not, without the doubtful help of a lawyer or philosopher, regard his ordinary walking about in the course of an ordinary day on such a floor as that with which we are presently concerned as exposing him to a risk to his health or safety. Nor would the employer when constructing the floor. 
35.	I do not consider that the existence of this small rise means that it should be regarded as rendering the floor unsuitable for the purpose for which it is used; namely leaving or entering the shop. Another way of putting the point is to say that this degree of risk in this situation does not fall within the concept of constituting a risk to health and safety as used in this regulation. 
36.	The parties having agreed that if we came to the conclusion that the learned recorder approached the matter in the wrong way we should substitute our opinion for his. I would allow this appeal. 
ORDER: Appeal allowed with costs here and below.
(ORDER NOT PART OF APPROVED JUDGMENT)