Chip And Miss – Minor Defects And The Workplace

Was a minor defect on a floor sufficient to present a tripping hazard in terms of the Workplace (Health, Safety & Welfare) Regulations 1992?

The Case

Mark Shackleton v M-I Drilling Fluids UK Ltd [2016] CSOH 82

The Issue

Prior to the Enterprise and Regulatory Reform Act, pursuers often relied upon the application of strict liability under the Regulations to succeed.

Given this accident occurred prior to the Act coming into force, Mr Shackleton sought to do the same, arguing that his fall at work was caused by a small chip on the floor, which rendered the floor unsuitable and caused an obstruction. Thus liability ought to attach under regulations 12 (1), (2) and (3) of the Workplace (Health, Safety & Welfare) Regulations 1992.

The Facts

On 4 June 2013, Mark Shackleton returned to his office at M-I Drilling Fluids in Dyce, Aberdeen. He noticed some small boxes left in the corridor outside his office and decided to move them to an unused room.

The boxes were light and easy to lift, but as he was walking sideways carrying one, he fell to the ground. The reason, he claimed, was a small chip in the floor surface of the hallway. Croissant-shaped, the chip had a maximum width of 95mm and maximum length of 45mm. The depth of the chip varied between 1.6mm to 2.9mm.

Despite not being the most obvious of defects, Mr Shackelton argued that M-I Drilling were liable as the floor was not suitable (regulation 12(1)), and that the chip made the floor uneven and thus exposed him to a risk to his health & safety (regulation 12(3)). In addition, the chip was an obstruction in terms of regulation 12(3), meaning that it was for M-I Drilling to show that they had done everything reasonably practicable to avoid him tripping and falling (which, he argued, they had failed to do).

M-I Drilling referred to the decision of the Court of Appeal in Palmer v Marks & Spencer [2001] EWCA Civ 1528 which approach was followed in Stalker v Greater Glasgow and Clyde Health Board [2013] CSOH 194. Specifically, the regulations do not impose a duty to provide a perfect floor. Regulation 12(1) requires only that a floor be "suitable" for the purpose for which it is used. Suitability is assessed with reference to whether the floor poses a risk to health & safety. However, just because an accident occurs, and someone trips, that is not determinative that the floor was unsuitable.

It was not a question answered with the benefit of hindsight, following an accident. There had to be a "real...