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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Marks & Spencer Plc v Palmer [2001] EWCA Civ 1528 (9 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1528.html Cite as: [2001] EWCA Civ 1528 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LINCOLN COUNTY COURT
(MR. RECORDER COWARD Q.C.)
Strand London WC2 Tuesday, 9th October 2001 |
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B e f o r e :
and
LORD JUSTICE WALLER
____________________
MARKS AND SPENCER PLC | ||
Appellant | ||
- v - | ||
KATHLEEN PALMER | ||
Respondent |
____________________
Smith Bernal International
190 Fleet Street, London EC4A 2AG
Telephone 020 7404 1400 Fax 020 7831 8838
(Official Shorthand Writers to the Court)
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.
____________________
Crown Copyright ©
Tuesday, 9th October 2001
"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."
The facts.
"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."
"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."
"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."
"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."
"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."
"The protection, to be suitable, need not make it impossible for the accident happen, but it must make it highly unlikely."