Contributory Negligence Negotiating the Best Deal

I currently act for a claimant who slipped on a wet floor at work and injured her back. The claimant was employed as a kitchen assistant and her workplace was in the kitchen area of a cafe inside a supermarket. The claimants employer operated under a contract to provide catering services to the supermarket. The employer was put on notice of the claim from the outset. Liability was denied and despite an application for pre-action disclosure, the employer was very unforthcoming in providing any evidence in support.
The accident book entry was however provided and in it the claimant was misquoted in saying the floor has been mopped and looked dry. The employer contended that the claimant was the author of her own misfortune because she had mopped the floor herself and then walked on it before the floor had dried. It was also said that there were no further documents available for disclosure because the supermarket had destroyed them all.

The claimant denied that she had ever mopped the floor. She advised that what she actually said was the floor was mopped and looked dry. According to the claimant there was a faulty tap that caused water to continuously leak onto the floor and a staff member had to regularly clean up the spillage.

Regulation 12 of the Workplace (Health and Safety and Welfare) Regulations 1992 states that no floor in a workplace shall be uneven or slippery so as to expose any person to a risk to his health and safety. It is further stated that, so far as reasonably practicable, the surface of every traffic route shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.

In addition to regulation 12 and following the case of Johnston v Caddies Wainwright [1983] ICR 407, CA the employer was under a duty to prove they had done all that was reasonably practicable to remove any dangerous substance from the floor and also to prevent such substances from getting there in the first place. However, the claimant might struggle to persuade a court that the employer was liable in the absence of any evidence to corroborate her claim that there had been continual leaks from the faulty tap. All of the claimants colleagues were current employees and therefore reluctant witnesses. However, provided the claimant could establish, through the service contracts between the two defendants if necessary, that the supermarket assumed control of the workplace, then by virtue of regulation 4(2) they too would be bound by the Workplace Regulations.

The supermarket was notified of the claim and a request was made for disclosure of the service contract, all cleaning records and repair/maintenance records for the tap. It became clear that no further disclosure was available. In the absence of any further evidence, the supermarket made an offer to split liability 70/30 in the claimants favour.

The claimant had very little evidence to support her argument that a faulty tap had caused continual spillages on the floor. However from the lack of disclosure provided by the supermarket it was apparent that there would be no evidence to rebut the argument that the supermarket had failed in its duty to the claimant under the Workplace Regulations. A far lower reduction was therefore considered appropriate to reflect, if anything, the potential litigation risk at trial given the lack of evidence to support the claimants argument. The claimant responded with a counter-offer of 90/10 in her favour which was accepted.

In relatively low value claims defendants can be quick to allege contributory against claimants for little or no reason. It remains important therefore for claimant representatives to keep an eye on the evidence at all times so as to ensure that excessive reductions in their clients overall damages are not agreed.

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