Was a minor defect on a floor sufficient to present a tripping hazard in terms of the Workplace (Health, Safety & Welfare) Regulations 1992?
Mark Shackleton v M-I Drilling Fluids UK Ltd  CSOH 82
Prior to the Enterprise and Regulatory Reform Act, pursuers often relied upon the application of strict liability under the Regulations to succeed.
Given this accident occurred prior to the Act coming into force, Mr Shackleton sought to do the same, arguing that his fall at work was caused by a small chip on the floor, which rendered the floor unsuitable and caused an obstruction. Thus liability ought to attach under regulations 12 (1), (2) and (3) of the Workplace (Health, Safety & Welfare) Regulations 1992.
On 4 June 2013, Mark Shackleton returned to his office at M-I Drilling Fluids in Dyce, Aberdeen. He noticed some small boxes left in the corridor outside his office and decided to move them to an unused room.
The boxes were light and easy to lift, but as he was walking sideways carrying one, he fell to the ground. The reason, he claimed, was a small chip in the floor surface of the hallway. Croissant-shaped, the chip had a maximum width of 95mm and maximum length of 45mm. The depth of the chip varied between 1.6mm to 2.9mm.
Despite not being the most obvious of defects, Mr Shackelton argued that M-I Drilling were liable as the floor was not suitable (regulation 12(1)), and that the chip made the floor uneven and thus exposed him to a risk to his health & safety (regulation 12(3)). In addition, the chip was an obstruction in terms of regulation 12(3), meaning that it was for M-I Drilling to show that they had done everything reasonably practicable to avoid him tripping and falling (which, he argued, they had failed to do).
M-I Drilling referred to the decision of the Court of Appeal in Palmer v Marks & Spencer  EWCA Civ 1528 which approach was followed in Stalker v Greater Glasgow and Clyde Health Board  CSOH 194. Specifically, the regulations do not impose a duty to provide a perfect floor. Regulation 12(1) requires only that a floor be “suitable” for the purpose for which it is used. Suitability is assessed with reference to whether the floor poses a risk to health & safety. However, just because an accident occurs, and someone trips, that is not determinative that the floor was unsuitable.
It was not a question answered with the benefit of hindsight, following an accident. There had to be a “real risk” of someone using the passage tripping and sustaining injury (McGhee v Strathclyde Fire Brigade 2002 SLT 680).
The evidence was that on the day following the accident when the area was inspected the depth of the chip was seen to be only 1-2mm. M-I Drilling’s health & safety manager didn’t view this as a trip hazard.
Similarly, neither did their expert, who had visited the premises and carried out more accurate measurements. He had produced a video of walking over the chip in several different ways. The only way a foot could be caught was to put it in an exaggerated and unnatural position. His view was that the chip was insignificant and was not large enough for a sufficiently large part of a shoe to catch. It was too shallow to present a trip hazard.
Mr Shackleton’s expert disagreed. Starting from the position that there had been a trip, he considered that was sufficient to identify the chip as a hazard, the risk of which had been increased by a number of factors, including Mr Shackleton walking sideways.
However on cross-examination he conceded that the correct starting point was to consider the chip itself; if it did not pose a risk, additional risk factors were irrelevant. He accepted that not every minor chip or indentation in a floor surface posed a risk. For such a chip to pose a risk, it would have to be 3mm or deeper.
The court had little hesitation in preferring the evidence of the expert for M-I Drilling. His measurements were more accurate, and his examination more thorough.
Lady Wolffe found that the chip did not pose a trip hazard. In particular, its depth was too shallow to present a risk, as even Mr Shackelton’s expert had conceded.
Mr Shackelton’s expert had proceeded on the basis that because there had been an accident, the floor must have been unsuitable (regulation 12(1)) and the defect must have posed a real risk (regulation 12(2)). That was not the correct approach. The matter is not to be approached with hindsight. Although the duties of regulations 12(1) and (2) are absolute, they still require a qualitative assessment of whether the floor was “suitable” and whether any specific feature posed a risk to health and safety. There was no such breach of the regulations here.
With regard to the argument that there was a breach of regulation 12(3), Lady Wolffe did not accept that the chip was an “obstruction”. An obstruction impedes progress. That was not the case with this chip.
Arguably the impact of the Enterprise and Regulatory Reform Act on the ability to successfully defend personal injury claims has not been as seismic as some had anticipated. The courts continue to consider previous case authority on the so-called six pack regulations, which informs their judgements.
However, even where duties are said to be absolute, this case is an important reminder that there can still be a defence.