All personal injury lawyers are familiar with the concept of "reasonable practicability", but are we truly comfortable with how to apply that concept to the facts of any particular case?
In a recent decision, Lord Boyd provides useful guidance on applying the "reasonable practicability" test in practice.
Linda Gillie worked as a janitor at Galashiels Academy. She was employed by Scottish Borders Council. She fell in an accident at the school in May 2009. It was the end of school term and, in keeping with a tradition which had been ongoing at the school for some time, sixth formers played pranks. In previous years, they had thrown food at outside windows, tampered with the toilets and blocked access to rooms by moving lockers in front of the doors.
On this occasion, Vaseline had been smeared on the bannisters of the stairs. Ms Gillie was cleaning it up when she slipped on another substance, also believed to be Vaseline, which had been smeared on the surface of the stairs. As her employers, Scottish Borders Council had an obligation to keep every floor of her workplace "free from a substance which might cause a person to slip". That duty is set out in Workplace (Health, Safety & Welfare) Regulations 1992.
The court considered how to assess that duty, and in doing so the following general observations were made:-
- It is for the defenders (Scottish Borders Council in this case) to prove it was not reasonably practicable to keep the stairs free from the substance on which the pursuer slipped.
- The assessment of what is reasonably practicable involves a balancing exercise of the degree of risk against the sacrifice in terms of the loss of money, time or trouble which would be required to avoid the risk occurring altogether. In this case the school had put in place some precautions, such as arranging an away trip to avoid pupils being in school on the last day before exam leave, in the hope that it would avoid any pranks being played, and monitoring the hall areas when pupils were there. The pursuer's Counsel suggested there should have been someone in the stairwell at all times. The Court was not persuaded that this would have been a proportionate step to take, given that would have involved a member of staff remaining on the stairs all day (and presumably other members of staff patrolling other areas of the school), when assessed against the risk of such a "prank" being played on the stairs.
- It is relevant to consider whether or not the risk was reasonably foreseeable. Although in this case the school had anticipated there might be some pranks played that day, they could not have anticipated that such a prank would be played on the stairs in particular.
- The assessment of what is reasonably practicable is a forensic one to be assessed by the court as at the point immediately before the accident. The benefit of hindsight is a wonderful thing, but the court needs to assess the position immediately prior to the accident happening.
After applying this four stage test, the court held that the school was not liable for Ms Gillie's accident. In Lord Boyd's words "the foreseeability of such an event occurring, as opposed to any other "prank" that day, viewed from immediately before the event was very low indeed…it was not reasonably practicable for the defenders to ensure that the stair was kept free of the substance which the pursuer slipped on". This is both an interesting decision and a useful one for guidance on how courts may apply the test of "reasonable practicability".