Court Success: An Occupier's duty is one of reasonableness

Zurich Municipal welcomes the court success of Karen Maria O’Rafferty v London School of Economics at the Central London County Court.

This is another victory for common sense, coming hot on the heels of Edwards v Sutton, which confirms that an Occupier’s duty is one of reasonableness. It once again highlights the principle that not all accidents are the fault of another.

This was a claim for personal injury and associated losses arising from an incident where the claimant slipped in a shower room owned and maintained by the defendant (the Occupier). On the morning of the incident the claimant (a lawful visitor) was using the communal shower. As she was exiting the shower her right foot slipped, causing her to fall and injure herself.

The Law

A claim was brought under the Occupiers Liability Act 1957. Section 2(2) of the Act states that:

The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

The defendant drew the courts attention to the concept of reasonableness, which is referenced twice in the above paragraph.

Legal arguments

The claimant alleged that a towelling bath mat should have been provided. Had it been, the incident would not have occurred. The defendant had a system of installing bath mats. There was a dispute as to whether a mat was in place at the material time. The Court accepted the defendant’s evidence that a mat was available within the shower room, though the claimant was not aware, as it had been hung up to dry by a previous user.

The claimant described the shower room as a “trap”. The Court rejected this argument, stating that water on the floor is inevitable within a shower room. The water was visible, and seen by the claimant.

The claimant also argued that grab handles should have been in place, given the relatively high step down from the shower tray to the floor. The Court disagreed, holding that it was not a relatively high step down, and the shower tray was standard specification. A lip was required to retain water. To require handles would open the floodgates and impose these requirements in thousands of premises.

The claimant alleged that the defendant failed to carry out an adequate risk assessment of the shower room. The Court again rejected this argument, pointing out that there is no obligation under the OLA to engage in a formulaic written risk assessment. The Court quoted the recent Zurich case of Edwards v Sutton  “I do not see what a formal assessment would have produced (if anything at all) beyond a statement of the obvious..”.

Finally, the claimant alleged that the defendant failed to ensure that a safe and suitable floor surface was installed in the shower room. The Court rejected this, stating that the floor was slip-resistant. There had been no previous accidents of a similar nature. The claimant produced no evidence to support their arguments.

The Court’s decision

The Court found that the incident was sheer bad luck. The aim of slip-resistant surfaces is to reduce risk, not remove it completely. The risk of incident was small and that risk had been properly addressed by slip-resistant flooring, which did not eliminate the risk, but which had previously done its job before this incident.