Ice accident decisions: Consistency slips
The facts, in summary, were that in November 2010 M, a school janitor employed by IC, suffered injuries to his back when he slipped on ice on the top of a fire escape as he was collecting litter and helping to supervise pupils during the morning break. He suffered continuing pain in his back and leg and was unable to return to work as a janitor.
M had been asked to cover for a permanent janitor. He had continued his duties, which included salting paths and playgrounds which were covered in ice and snow. M stated that he did not know of any procedure set out by IC for the work. He proceeded as he had always done and salted the paths and footways, working his way around the school building. His routine was to prioritise the areas that made it safe for staff and pupils to enter the school in the morning. M claimed compensation from IC, alleging breaches of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (WHSWR) and regulation 4 of the Personal Protective Equipment at Work Regulations 1992 (PPE Regulations).
Regulation 5 of WHSWR states, in summary, that workplaces must be maintained in an efficient state, in efficient working order and in good repair.
Regulation 12 of WHSWR states, in outline, that workplace floors must be, so far as is reasonably practicable, kept free from substances likely to cause slips, trips or falls.
Regulation 4 of the PPE Regulations states, in summary, that except where risks are adequately controlled by other means, employers must provide suitable PPE to employees who may be exposed to those risks.
The decision of the Scottish Outer House was as follows.
- On the balance of probabilities, M’s version of events was accepted
- Ice had been present on the fire escape. IC was in breach of regulation 12 of WHSWR unless it could be shown that it had not been reasonably practicable to keep the fire escape free from ice
- IC had devised a system where janitors were instructed to treat pathways leading to the school as a priority and then to treat areas such as fire escapes. It had failed to institute or maintain that system. If the head teacher of the school had been aware of the system, she would have given the fire escapes higher priority. The fire escapes were safety exits
- IC should have had a system whereby janitors were instructed to use a scoop which was provided. This would have increased the melting of ice by salt over the whole flight of steps
- Regulation 5 of WHSWR did not apply to transient conditions, for example ice
- IC was not liable under regulation 4 of the PPE Regulations where he was supplied with safety boots and there was no evidence as to the type of the boots’ soles or as to whether metal grips would have provided better traction
- M had not been contributorily negligent. He applied salt using his own system without any instruction or training by IC. He had been under pressure of time and it was understandable that some areas were not effectively treated
- Compensation of £30,000 was awarded.
The issue of liability in relation to workers who have suffered injury from slipping on ice has been considered in a number of recent cases. One example is that of Pettie v Southampton University Hospitals NHS Trust (2002).
P was an administrative worker employed by S. She slipped on ice in the hospital car park and suffered a severe knee injury. She claimed compensation from S for a breach of WHSWR.
S denied liability on the basis that it had a gritting policy in place and the car park could not be regarded as S’s place of work. It was also argued on behalf of S that it was sufficient for it to grit the roadways between the car park spaces and that gritting the spaces was not a priority and would be a waste of resources. The county court decided that the claim succeeded. It would not take much longer to grit the car park spaces with the equipment that S had. Extra care was needed because the premises were a busy hospital car park, open to patients and staff. Also, the car park formed part of P’s workplace for the purposes of WHSWR.
The application of WHSWR to ice in car parks was also considered in the Scottish case of McCondichie v Mains Medical Centre (2004). M was a patient at the M Medical Centre. She slipped on ice in the Centre’s car park and claimed compensation under WHSWR for the medical centre’s failure to ensure that the surface of a traffic route within the workplace was kept free from any substance which might cause a person to slip. On behalf of the medical centre, it was argued that WHSWR only applied to employees.
The Scottish court ruled that the claim failed. WHSWR did not apply to persons who were not working on the premises, for example visitors or patients. Even if the regulations did apply, the medical centre had taken reasonable precautions to prevent persons using the car park from slipping on ice, by gritting the car park. Further, the Code of Practice related to WHSWR did not require the risk of slippage to be entirely eliminated, but that the employer should take reasonable steps to minimise any risk.
Inconsistency of interpretation
This restrictive interpretation of WHSWR does not reflect a consistent attitude on the part of the courts. The current position in relation to injuries caused by slipping is illustrated by the following decisions, which appear to be inconsistent.
- Ricketts v Torbay County Council (2003): WHSWR applies only to workers
- Banna v Delicato (1999): WHSWR applies to any person, including customers in shops
- Layden v Aldi GmbH & Co KG (2002): WHSWR applies only to workers
- Mathieson v Aberdeenshire (2003): WHSWR applies to members of the public
- O’Brien v Duke of Argyll’s Trustees Ltd (1999): WHSWR applies to a visitor to a hotel.