Regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992


Home Office v Lowles [2004] EWCA Civ 985



The importance of this tripping case is that it confirms the qualitative approach to risk assessment carried out by Lord Justice Waller in the Court of Appeal's decision in Marks & Spencer PLC v Palmer [2001] EWCA 1528 in assessing 'suitability' of the floor surface.



He had stated that in assessing whether there was a breach of the workplace regulations - in a case in which a lady tripped over a weather board while exiting a Marks & Spencer store &150; the 'exercise to be performed is one of taking into account all relevant factors... that is to say the nature of the risk'.


In that case, the balance was between the following - on the one hand the weather strip was by a door, it was 8 to 9.5mm high and it was next to some steps down which people might fall if they tripped. On the other hand, the weather strip was obvious, it was in a place that is to be expected, the claimant knew of it and there had been no complaints despite the fact that there had been thousands of exits through the door.


The court was then to '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?' (from a health and safety perspective).


In the instant case, Mrs Lowles worked at Armley Prison, near Leeds. Twice before, she entered through a side entrance to the prison to a Portakabin inside which security procedures took place. There was a ramp between an internal and an external door on the top of which was a rise of two inches. As a result of a risk assessment, on the entrance there had been placed a coloured red notice stating 'Please mind the step'. However, there were several signs and the door was 'busy' with information. On the day of the accident, she entered while speaking to a colleague, tripped over the rise and fell, suffering injury.


The trial judge found for her but reduced the damages by 50% as she was partly to blame for failing to notice the sign, of which she was aware, because she was not concentrating through speaking to a colleague. The trial judge followed the approach of Lord Justice Waller in Palmer. In examining the suitability of the 'surface of the traffic route' under regulation 12(1) he identified the following:


  • Hundreds of people used the entrance every week;



  • l There had been no previous accidents or complaints;



  • The people using the entrance would include visitors, some with varying degrees of mobility, footwear and paying different degrees of attention.



    • On the other hand:


  • The two-inch step posed a 'substantial risk of tripping';



  • It was at the top of a ramp where one would not necessarily expect it, and;



  • A pedestrian's attention would be drawn to the window where the officer permitting entrance was placed.



    • Most important, there had been no evidence put forward by the defendants to suggest that it was not reasonably practicable to avoid the step up at all.


    In the Palmer case, Lord Justice Schiemann had stated: '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.'


    This approach, while not specifically mentioned in Lowles, highlights the reason why the claimant was successful on primary liability. A two-inch rise on a floor surface in the circumstances appertaining to this entrance to the prison premises would, readily, make the ordinary person concerned about a risk of tripping.


    Therefore, the court held that the judge had considered the relevant factors in line with the previous Court of Appeal authority in concluding that there was a breach of both regulation 12 (1) and (2).


    The claimant had been found 50% contributorily negligent. Both parties appealed, with the defendants seeking a 75% reduction and the claimant 15%. The court was unwilling to interfere as it was for the trial judge to 'form a judgment on these issues'. As he had not erred in principle, it maintained the 50% finding, with Lord Justice Mance giving the lead and only judgment, commenting: 'It is not too surprising to find people arriving for work deep in conversation with fellow employees or other visitors, and not paying full attention or not reading even the most prominent of notices on one of two visible doors which were in fact quite busy with notices'.



    The pragmatic approach of the appeal court adopted in Palmer constructs an escape from the intellectual exercise of defining what is a 'real risk' or a 'slight risk' in considering the definition of 'suitable' in the context of these regulations. While at the same time it maintains the test of 'realism' promoted in a number of appeal court cases, notably Koonjul v Thameslink Healthcare Service NHS Trust (CA) [2000] PIQR P123. Looking at slipping and tripping cases from the perspective highlighted by Lord Justice Schiemann appears to be the accepted method of interpreting regulation 12(1) of the workplace regulations within the appeal court.



    By Simon Allen, Russell Jones & Walker, Sheffield