Slippery slope

A recent Court of Appeal case looked at responsibility for an injury sustained by a 15-year-old school girl when she slipped in the assembly hall. Paul Stagg explains the judgment.

In the case of Hufton v Somerset County Council [2011] EWCA Civ 789 the Court of Appeal rejected an appeal by Ms Maddison Hufton, a former pupil at Ansford Community School in Castle Cary, against the dismissal of her claim for damages.  Ms Hufton suffered a knee injury when she slipped on a small area of water in the school assembly hall during breaktime. The trial judge had concluded that a reasonable system was in place for preventing water being brought into the hall during wet breaks.

Jackson LJ gave the only substantive judgment, with which Elias LJ and the Chancellor agreed. He concluded that although section 2(3)(a) of the Occupiers' Liability Act 1957 requires an occupier to be prepared for children to be less careful than adults, at the age of 15 the claimant was "almost an adult and would be expected to take reasonable care for her own safety" (para 6).

The court considered two substantive challenges to the judge's decision rejecting the claim (other grounds of appeal not having been seriously pursued).  The first was that there was an inadequate system for preventing water being brought in during wet breaks.  The judge had concluded that the system which had been put in place six years previously after a risk assessment undertaken when a teacher slipped in the hall kept pupils reasonably safe.  The court reminded itself that "it is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring" (para 28).  The judge had been entitled to reach the conclusions that he had reached (para 31).

The second ground of attack was the judge should have concluded that there was no reasonable system in place for clearing water from the floor when it was there.  The claimant relied on the well-known decision in Ward v Tesco Stores Ltd [1976] 1 WLR 810 and suggested that it was for the council to show that there was a reasonable system in place for clearing water, which they could not do.  Jackson LJ distinguished Ward in terms which may be of assistance to defendants in other cases.

• "36. .... In this case, unlike Ward, the evidence does not show that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up. What the defendant put in place in the present case was a proper system to prevent water being deposited on the assembly hall floor. Unfortunately that system did not prove effective on 11 October 2006.
• 37. The water on which the claimant slipped was about the area of an A4 sheet of paper and cannot have been on the floor for very long. The mid-morning break began at 10.45a.m. It was not raining then. The claimant's accident occurred about half way through the break. I do not regard it as realistic to say that the school should have had a system in place whereby that small area of water should have been spotted and mopped up during the brief period of time between its arrival and the moment when the claimant slipped."

It is often thought that Ward has the effect of placing a burden on the defendant to demonstrate the existence of a reasonable cleaning system whenever there is some substance on a floor. As these paragraphs show, that is not the case. It must be shown that spillages or deposits of the slippery substance are a frequent problem, such as to call for an adequate cleaning system.

Paul Stagg of 1 Chancery Lane represented Somerset County Council. He was instructed by Darren Salter of Veitch Penny LLP.