Focus: Defending against liability claims
Services: Insurance
Industry Focus: Insurance

A recent case we successfully defended has provided reinforcement and guidance to employers regarding what needs to be proven by a plaintiff if they are to succeed in slip/fall cases. The outcome demonstrated that having a robust system in place, together with evidence of adequate enforcement of the system, can be paramount to effectively defend against liability claims.

While this case involved an employer-employee relationship, the issues considered by the court are also applicable for slip/fall claims to matters in the public liability sphere.

The case

The plaintiff, a casual weekend sales assistant, alleged that she suffered a personal injury during a fall at her employer's premises when she stepped on "an object or something". Although she had various hypotheses that it was gravel, a stone or a pebble, the plaintiff was never able to identify what caused her to fall.

She alleged that the state of the concrete floor area where she had fallen was dangerous and unsafe as a result of the employer's failure to have in place a proper cleaning system. In her evidence, the plaintiff alleged that the concrete pad was covered in rubble and gravel and that she had made numerous complaints to co-workers and her manager about the state of the concrete pad.

The employer had in place a system for clearing the area, including a junior employee hired on the weekends for the primary purpose of sweeping the area where the plaintiff fell. The employer had also instructed all employees to be vigilant about cleaning and to remove any objects on the floor during the course of their normal employment duties.

At trial, the plaintiff pleaded that the incident could have been prevented if the employer had used a blower vac to clean the area, instead of sweeping the area with a broom. Employees gave counter evidence stating that a blower vac was inappropriate and that using a broom was the most effective method of cleaning the concrete pad.

The plaintiff bore the onus of proof that the employer's cleaning system was less than what a reasonable employer would have provided when considering the risk of the plaintiff suffering an injury. In this circumstance, the plaintiff argued that the defendant provided a deficient cleaning system but did not argue that the junior, who was responsible for sweeping the area, had been negligent in missing a piece of debris in the area where she fell.

Judgement

The presiding judge noted that whilst an employer has a duty to take reasonable care for the safety of its employees, an employer need not safeguard an employee from all perils.

He held that a reasonable employer in the defendant's position should have foreseen that pebbles and debris on a concrete pad would involve a risk of injury to employees traversing the concrete area. However in terms of what a reasonable employer would do by way of a response to that risk, the judge noted that this involved considering the magnitude of the risk and the degree of the probability of the plaintiff being injured by such debris or rubble, and the expense, difficulty or inconvenience of removing such rubble and debris.

The judge accepted that around 1-2 hours prior to her fall, the area where the plaintiff suffered her injury had been swept by the junior employee. He accepted evidence from the defendant witnesses that the area was clean at the time of the fall. It was also accepted that the cleaning system in place relied on inspections by the weekend manager and the overarching manager, both of whom had given evidence that the area was clean before the incident.

The judge therefore held that he was not satisfied that the defendant employer had breached its duty of care by failing to provide an adequate cleaning system. He was also not satisfied that the plaintiff's fall was caused by a failure to take reasonable care to provide a safe place of work or an adequate cleaning system.

The plaintiff failed to establish that her injuries were caused by breach of duty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.