Mere fact of tripping accident does not mean floor was unsafe, Scottish judge rules

Lady Wolffe's comments came in a Court of Session ruling against the former employee of an oilfield services company, who had claimed damages of £100,000 after a workplace accident. Pinsent Masons, the law firm behind Out-Law.com, acted for the employer in the case.

An expert witness on behalf of Mark Shackleton, the injured man, "started from the fact that there was an accident and then he looked for additional factors ... to 'build up' the risk", Lady Wolffe said in her judgment. In doing so, he took an approach that was the opposite of that in previous workplace health and safety cases, she said.

"As the cases make clear, the fact that there has been a tripping accident does not in itself mean that the floor is unsuitable or that there is any defect which poses a risk to health and safety," she said.

"The starting point … is to consider the features of the chip [in the floor] and to ask if it posed a real risk to health or safety of users. If the chip was of a minor character such that it posed no risk, or any risk it posed was of a 'de minimus' character and not a real one, there was no breach of the regulations," she said.

Shackleton had been a sales manager at M-I Drilling Fluids UK Ltd, based in Aberdeenshire, at the time of the accident. He had tripped and fallen while carrying some boxes on the premises, causing a back injury which kept him off work between the date of the accident, 4 June 2013, and 30 September 2014. His claim for damages included a claim for alleged loss of bonuses in 2013 and 2014, and an additional month's loss of earnings while he sought a new job.

The employee alleged that he had tripped and fallen over a 3mm croissant-shaped chip in the concrete flooring at his place of work. Had the floor been unsafe, this would have been in breach of the 1992 Workplace (Health, Safety and Welfare) Regulations, which require that every floor in a workplace be "suitable ... so as, in each case, to expose any person to a risk to his health or safety".

The regulations also require floors to be kept free of "obstructions" that may cause a person to slip, trip or fall. As well as presenting a general unsuitability argument, Shackleton's legal team had argued that the chip was also an "obstruction" for the purposes of this second regulatory requirement. The employer's liability had either of these breaches of the regulations occurred would have been 'strict', meaning it would not have been permitted to argue that it had complied to the extent that was reasonably practicable.

"The strict liability nature of the offence can be a difficult hurdle to overcome," said litigation and health and safety expert Natalie Walker of Pinsent Masons, who was part of the team that advised the successful employer. "In this case, the judge was able to determine by looking at the evidence that neither of the alleged breaches of the regulations had occurred."

In her judgment, Lady Wolffe said that the law did not require a floor to be "perfect". Rather, it simply had to be "suitable" for the purposes for which it was used, which meant showing that there was no "real risk" of "a person using the floor as a means of passage tripping and thereby sustaining injury". This was not a question to be answered "with the benefit of hindsight", as Shackleton's lawyers appeared to have done, she said.

"On the whole evidence I find that the depth of the chip is simply too shallow to pose any relevant risk to the health and safety of [Shackleton]," she said. "I therefore hold that the presence of the chip did not give rise to a risk of a person tripping and falling when walking, whether facing forwards or moving sideways, in either direction through the doorway and into the hallway. The presence of the chip did not render the floor unsuitable."

Similarly, the size and features of the chip meant that it could not be considered an "obstruction" for the purposes of the regulations, she said.