Munro v Aberdeen City Council [2009] CSOH 129

Review by Barry Berlow-Jackson, Digby Brown Solicitors LLP

The pursuer was injured after slipping on an icy car park at work. The car park was part of the workplace. This case featured a question of statutory interpretion. All matters of evidence and quantum were agreed by way of Joint Minute. The question in dispute was whether Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992 applied so as to give rise to liability in circumstances where a pursuer slipped on the icy surface of an otherwise structurally sound car park.

Regulation 12(3) was not pled by the pursuer, although the defender submitted that this was the appropriate regulation. Regulation 12(3) applies to floors and traffic routes, and provides that “So far as reasonably practicable, every floor 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”. This regulation is subject to the reasonably practicability defence – an employer would only be responsible for dealing with an icy car park so far as it was reasonably practicable to do so.

Instead of pleading Regulation 12(3) in the alternative, the pursuer sought to rely solely on the absolute nature of Regulation 5. This regulation applies to the maintenance of the workplace, equipment, devices and systems. There was no doubt that the surface of the car park was part of the workplace. The crux of the question was whether it had been “maintained” according to regulation 5(1).

The requirement within the regulation is for the car park to be “maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair”. It was accepted that Regulation 5(1) gives rise to strict liability and is not subject to a reasonable practicability defence. It was submitted on behalf of the pursuer that the presence of ice would speak for itself as being a lack of maintenance and there would be a breach of this regulation if it was proved that the pursuer had slipped as a result.

The defenders submitted that the Workplace Regulations as a whole are designed to strike at both structural defects as well as transient hazards, there being a difference between the two: absolute liability for structural defects, and liability for transient hazards qualified by the reasonable practicability defence.

This is not the first time such a question has been asked. In Latimer v AEC Limited [1953] AC 643 – a workman slipped on an oily residue that had been left after a flood in a factory. This was decided under the Factories Act of 1937, which featured a similar provision that floors should be “properly maintained”.

Although that Act no longer applies, its similar language allowed it to be used to interpret the regulations. The slippery floor in Latimer was held to be “a transient and exceptional condition” – and that maintaining a floor does not include “keeping dangerous things away from it”.

With such a strong authority still very much in force and in point, it was brave of the pursuer not to rely on Regulation 12(3).

The pursuer relied on the well known case of Gilmour v East Renfrewshire Council. In that case the pursuer had slipped on a potato on a sloping ramp, and this was held to fall within Regulation 5(1) due to both the nature of the flooring and the presence of the chip. The temporary judge in that instance noted that any personal injury litigation may involve more than one regulation being pled for an incident, as well as noting that over time the development of the law may have meant that the Factories Acts may no longer applied. This was, however, rejected by Lord Macolm in the present case – where current regulations use similar wording to the Factories Acts, the earlier cases such as Latimer continue to be relevant to matters of interpretation.

Furthermore, there had been obiter dicta by Lord Brodie in Cochrane v Gaughan to support the extension of the maintenance obligation. The words “including cleaned as appropriate” were added within the regulation and went beyond what had been decided in the earlier cases such as Latimer. However, Lord Malcolm opined that that these words extended the scope of Regulation 5, at most, to such non-constructional states as would be remedied by an appropriate cleaning regime. It was Lord Malcolms’s view that momentary or transient hazards would not be removed by even the most appropriate cleaning regimes and that therefore such hazards would remain outside the scope of Regulation 5(1).

Ultimately Lord Malcolm recognised that, although the Outer House has displayed a ‘divergence in view’ as to the approach of Regulation 5(1), the absolute duty does not apply to all possible conditions – this much was clear from EC Commission v UK [2007] ICR 1393.

Moreover, Lord Malcolm was of the view that should Regulation 5(1) be given the scope suggested by the pursuer, the effect would be to rob Regulation 12(3) of content – there would be no restriction on the scope of an employer’s liability. Should that be the case, “the qualification of reasonable practicability … might as well not be there at all”.

In this decision, Lord Malcolm does not exclude the possibility that a non-structural danger may fall within the scope of Regulation 5(1) – such as where the defect complained of is a regular and frequent occurrence. Lord Malcolm noted that he had heard no submission as to whether ice would fall into the category of being more than a transient and unexpected hazard affecting the maintenance of the workplace. It is suggested therefore that Lord Malcolm leaves the door open for employees to rely on Regulation 5(1) where the temporary hazard recurs frequently and is not entirely unexpected. However, it is arguable whether such a prospect would extend much by way of further protection to employees given that, in such circumstances, it would in any event be difficult for a defender to make out a tenable reasonable practicability defence under regulation 12(3).

This decision highlights the dangers of not pleading all of the relevant regulations. The inclusion of regulation 12(3) in this case would have, at the very least, shifted the onus to the defenders to prove that they had taken all steps reasonably practicable to avoid the hazardous state giving rise to the accident, which, as Lord Malcolm conceded, would have been difficult to disregard in the present case.