Keoghs Insight

Author

Stephanie Edwards

Mind your step

AWARE07/11/2019
Food for Thought Winter '19

We’re all aware of the duty imposed on our clients under the Occupier’s Liability Act 1957 to take such care to see that a visitor to their premises will be reasonably safe using the premises for the purpose in which they are invited or permitted to be there.

This duty extends to making sure the premises is safe from slip, trip and falling hazards. This could include a change in level or flooring which could become slippery when wet, or by its very nature present a trip hazard.

What constitutes making visitors aware? It is relatively common for visitors to be unaware of the potential risks they face when visiting a new premises. Our clients have a responsibility to eliminate or, at the very least, minimise the number of hazards. Recently, I successfully defended such a matter.

There was nothing unusual about this case. In fact it was a standard fall down a single step; claims we see pursued by claimants all the time. He had come onto the premises as a lawful visitor when he needed to use the toilet facilities. He made his way to the toilet, and upon doing so he opened the door to the toilets and fell down a step, sustaining a number of soft tissue type injuries. It was his pleaded case that he was unaware of the impending step due to lack of adequate or effective warning of the presence of the difference in levels. He alleged under the Occupiers Liability Act 1957 that breach of duty had been broken.

Is a warning sign required?

The first step in determining the effect a warning sign has on public liability claims is to determine whether a warning sign is required at all. If a warning sign is not required, then its presence (or absence) does not affect liability. Whether or not a warning sign is required is governed by a legal principle called ‘negligence’. It was established quite early on in this case that the warning sign(s) were required and quite rightly the defendent had already exercised that duty by placing a number of signs in the area on approach to the toilet, including the door itself. The effectiveness of those signs were questioned by the claimant. It was alleged that the defendent failed to adequately put the claimant on notice of the step by placing the sign on a wall which could not be clearly read or seen.

Is a warning sign enough to discharge the Occupier’s Liability?

Occupiers can discharge their common duty of care by properly warning visitors of potential dangers. The court will generally assess whether it was reasonable in the circumstances to provide a warning and whether the warning enabled the visitor to be safe. The regulations simply state that the occupier has to do what is reasonable and practicable to warn visitors that there is a hazard and quite often a sign isn’t enough. In this particular case the court was satisfied that the warning signage was more than adequate. The defendant had properly discharged their common duty of care by providing warning signs in multiple locations on approach to the toilet. The court found that the claimant was not paying attention to his surroundings and simply didn’t see them.

Assessing the risk.

We know risk assessments are an important part of any business and in cases like this they can be make or break. Counsel for the claimant strongly argued that the risk assessment had not been adequate and that had a better risk assessment been carried out, further precautions would have been put in place. The risk assessment had noted that there was a change in level going into the toilet, however there was a clear contrast between the carpeted step, a wooden threshold and the white tiles as you stepped down into the toilet area.

The court therefore determined that the client had correctly measured the risk by ensuring the difference in levels had been appropriately identified (together with the signage); that there was no reasonable foreseeability of harm to visitors. There was no further recommendation by the court, despite the claimant suggesting the step should have been highlighted with black and yellow hazard tape. It was found that the claimant would not have seen it in any event, given the lack of concentration towards the warning signs themselves.

Is there any expectation on the visitor?

Well, yes, in this case there was. The claimant made comments regarding the direction he was looking when he approached the door/step, and also appeared confused by his surroundings after failing to pay attention to the area. The claimant said he was looking straight ahead when he fell off the step rather than looking down. This was despite the main sign reading ‘Mind Your Step’ with an arrow pointing to the step. This was painted on a white wall in black paint, next to the door leading to the facilities.

As a further precaution there was an additional sign painted on the leading door directly as this was opened; it really was impossible to miss these! The risk assessment was clear – a hazard had been correctly identified and appropriate measures were taken to make visitors aware of it.

The ultimate importance of displaying warning signs of any impending risk or hazard is to prevent injury and ensure that staff and visitors are well aware of the possible dangers ahead in certain situations and environments. Signage is an important part of keeping visitors reasonably safe but it should never be assumed by an occupier that it is enough to discharge their liability. Risk assessments should be thorough and clear, identifying hazards and take precautionary measures to reduce any risk.

For more information, please contact Stephanie Edwards.