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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGhee v Strathclyde Fire Brigade [2002] ScotCS 16 (18th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/16.html Cite as: [2002] ScotCS 16

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McGhee v Strathclyde Fire Brigade [2002] ScotCS 16 (18th January, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD HAMILTON in the cause ALEXANDER McGHEE Pursuer; against STRATHCLYDE FIRE BRIGADE Defenders:   ________________

 

 

Pursuer: Allardice; Thompsons

Defenders: Munday; Campbell Smith, W.S.

 

18 January 2002

1. On 15 October 1998 the pursuer was working in the course of his employment as a firefighter with the defenders at Greenock Fire Station. These premises were at the material time under their control. In the course of that day the pursuer, while on an upper floor of the premises, was with other firefighters summoned by tannoy to attend at the muster room. He responded to that summons and proceeded down a set of stairs in the west wing. At the foot of those stairs was a hallway (or corridor) from which access could immediately be gained to the muster room. As the pursuer, stepping from the lowest step of the stairs, placed his foot on to that floor area ("the floor") he slipped on it and fell heavily to the ground sustaining injuries in respect of which he now sues the defenders for loss, injury and damage. Parties have agreed damages in the sum of £51,300. Liability remains in issue.
2. The floor was laid, as were the stairs, with terrazzo tiles. Mr Duncan McIntyre, who had been employed at the fire station as a handyman and cleaner from about 1997, had as part of his duties the regular task of cleaning and polishing surfaces including the floor and the stairs. He carried out such work on the floor approximately every second day. This work involved first brushing and then washing the floor with a mop and water; having allowed it to dry, he would then with a separate mop apply to the floor liquid polish (in the form of "Buffable Floor Polish" manufactured by Paramount Products Limited) and, having allowed the polish to dry, buff it with a rotating brush machine. On the morning of 15 October 1998 Mr McIntyre carried out this work on the floor. He went home as usual at about 11.45am. He had completed the buffing exercise at about 11.20am.
3. None of the witnesses led by the pursuer spoke to the time of his accident. Mr John Slattery, who was in 1998 the Sub-Officer at Greenock Fire Station and at the time of the accident the officer in charge of the station, was in the general office when he heard the thump of the pursuer's fall. He testified in the course of the defenders' proof that the accident occurred at about 12.00 noon. That evidence was not challenged. Accordingly, a period of something between half and hour and an hour passed between the completion of Mr McIntyre's work on the floor and the pursuer's accident.
4. In this action the pursuer relies solely on Regulation 12 of the Work (Health, Safety and Welfare) Regulations 1992 with particular reference to paragraphs (1), (2) and (3) thereof. These paragraphs are in the following terms:

"(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -

(a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; ...

(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route 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."

It is perhaps also appropriate, for the purposes of interpretation, to set out Regulation 12(4), which is in the following terms:

"(4) In considering whether for the purposes of paragraph (2)(a) a hole or slope exposes any person to a risk to his health or safety -

(a) no account shall be taken of a hole where adequate measures have been taken to prevent a person falling; and

(b) account shall be taken of any handrail provided in connection with any slope."

5. It is not disputed that the floor was a "floor in a workplace" within the meaning of the Regulations. Its surface was also the surface of a "traffic route in a workplace" as defined. The pursuer's averments relative to fault and to causation are as follows:-

"[The area where the pursuer slipped] was not suitable for its purpose in respect that the terrazzo tiles there were worn and they were not of non-slip material. Further and in any event, it was slippery and thereby posed a risk to the health and safety of persons using the area. Further and in any event, the surface was not kept free from a substance which might (as it did) cause a person to slip, viz. the residue from the cleaning and polishing. In each and all of the above respects the defenders failed to comply with their statutory duties and so caused the pursuer's accident. Had they complied with those duties the pursuer's accident would not have occurred."

6. A number of legal issues arise out of those averments which it is convenient to address before turning to the detail of the evidence. The pursuer's case of breach of statutory duty, as presented by Mr Allardice on his behalf, fell under two heads - (1) that the floor was, by reason of the terrazzo tiles being worn, not of a construction which was suitable for the purpose for which it was used (namely, as a normal traffic route), that wear giving rise to a state of slipperiness, and (2) that the floor, by reason of its having on it at the time of the pursuer's accident "the residue from the cleaning and polishing", was not kept free from a substance which might cause a person to slip. These cases fell under Regulation 12(1) (as read with Regulation 12(2)) and Regulation 12(3) respectively. Mr Allardice observed that Regulation 12(1) (as read with Regulation 12(2)) was, in contrast to Regulation 12(3), not subject to any question of reasonable practicability. Insofar as slipperiness was concerned, it applied when its state was so as "to expose a person to a risk to his.... safety". Thus, if a person slipping was not at risk of injury because, for example, the floor surface was padded or he was supported by a safety harness, the provision would not apply. Subject only to such limitation the provision was absolute with no defence available founded on any aspect of reasonable foreseeability. It might be contrasted with a provision such as Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 (where "suitable" was defined as meaning "suitable in any respect which it is reasonably foreseeable will affect the.... safety of any person"). Regulation 12(3) was subject to a defence of reasonable practicability but no such defence had been pled or established in this case. The practical result was that, if the pursuer proved that he had slipped and by reason of slipping had sustained injury, he was entitled to decree. The fact of slipping imported in the circumstances a state of slipperiness by reason of the inherent state of the tiles or of the polish on them. In relation to the absolute character of the obligations Mr Allardice referred to Mains v Uniroyal Engelbert Tyres Ltd 1995 S.C. 518 (where section 29(1) of the Factories Act 1961 had been construed), especially per Lord Johnston at pp.536-7; reference was also made to Lord Sutherland's opinion at pp.530-1. It was significant to notice that regulations such as the present made in furtherance of the Workplace Directive were designed to improve (or at least not to detract from) pre-existing safety provisions. As to causation, it was unnecessary to establish discretely whether the cause of the slip had been the inherent state of the tiles, the polish on them or both - though on the evidence the polished state of the tiles was the main cause. Reference was made to Baker v Willoughby [1970] AC 467 especially at p. 476, McGhee v National Coal Board 1973 SC (HL) 37 especially per Lord Reid at pp. 53-4 and an article by Professor Glanville Williams entitled "Causation in the Law" published in [1961] Cambridge Law Journal at pp. 62 and following, especially at p.75. In the course of his submissions Mr Allardice also referred to Redgrave's Health & Safety (3^rd ed.) at paras. [2.9] and [2.18] - [2.19], the Workplace Directive, the relative Approved Code of Practice issued by the Health and Safety Commission (L24), Cullen v North Lanarkshire Council 1998 S.C. 451, Neil v Greater Glasgow Health Board 1994 S.C.L.R. 673 and Wenham v Bexley [1999] Current Law 2879.
7. Mr Mundy for the defenders, in response to Mr Allardice's submissions on the law, acknowledged that Regulation 12(1) (as read with Regulation 12(2)) was a continuing obligation. It was, however, concerned with the construction of the floor and the suitability of that construction for the relative purpose - here for safe pedestrian traffic. The fact that it was possible to slip on a surface did not of itself render it unsafe. A minimal risk (say, 1%) of slipping did not render a floor slippery in the sense of Regulation 12(2). What was envisaged was a state which was dangerous. Reference was made to paragraph 9.1 of Annex I to the Workplace Directive. A slippery surface was one on which a person might readily or easily slip (Shorter Oxford English Dictionary, sub nom. "slippery"). The relative Approved Code of Practice (paras. 93 and 95) envisaged a floor which did not become "unduly slippery" or where there was "likely to be" a slipping hazard. The whole of Regulation 12 should be construed in the context of there being an element of foresight of injury. It was inappropriate to rely for the purposes of construction of the Regulations on decisions made under former domestic provisions such as the Factories Act 1961, although it was acknowledged that the standard achieved by the new provisions should not be lower. In any event, the views of Lord Johnston on section 29(1) of the Factories Act 1961 in Mains v Uniroyal Engelbert Tyres Ltd should not be followed. Moreover, the application of Lord Macfadyen's test of a "foreseeable possibility" (Anderson v Lothian Health Board 1996 S.C. L.R. 1068 at p.1070) would create an unreality if that included a minimal risk. The concept of a "real" or "material" risk of injury was more appropriate. If, judged by accepted industry standards, the floor was safe to walk on, it was in terms of Regulation 12(1), as read with Regulation 12(2), not unsuitable by reason of slipperiness. The expression "may cause a person to slip..." in Regulation 12(3) also involved an element of foresight. Again it was to be tested by the application of accepted industry standards. The mere fact that a person happened to slip on a substance on a floor did not mean that it was a substance "which may cause a person to slip". Reference was made to Drage v The Grass Roots Group (an unreported decision of 5 September 2000 by his Honour Judge Viljoen sitting at Watford County Court).
8. I have narrated the legal submissions of counsel at this stage since before approaching further evidential aspects of the case it is important to have as clear a view as possible on the proper interpretation of Regulation 12. That Regulation falls within the Workplace (Health, Safety and Welfare) Regulations 1992, themselves made with the intention of the United Kingdom implementing the Workplace Directive (89/654/EEC), itself a "daughter" directive under the Framework Directive (89/391/EEC). It is trite law that a regulation so made must be construed purposively so as to give effect to the results envisaged in the Directive. The preamble to the Workplace Directive narrates, among other matters, that Article 118a of the Treaty provides that:

"the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers."

Later in that narrative it is stated -

"Whereas compliance with the minimum requirements designed to guarantee a better standard of safety and health at work is essential to ensure the safety and health of workers."

Article 6 of the Workplace Directive provides -

"To safeguard the safety and health of workers, the employer shall see to it that [various steps are carried out]."

Annex I to the Workplace Directive (referable in terms of the Directive only to workplaces brought into use after 31 December 1992) makes in paragraph 9 provision for floors, walls, ceilings and roofs of rooms. It provides - "The floors of rooms must have no dangerous bumps, holes or slopes and must be fixed, stable and not slippery".

No specific provision is made in Annex II for floors. The United Kingdom Regulations do not distinguish (as from 1 January 1996) between workplaces brought into use before and after 31 December 1992.

9. Although the European provisions envisage an improvement in existing standards in Member States, the task of interpretation is not, in my view, assisted, at least in the first instance, by considering the terms (as domestically interpreted) of previous and now repealed UK health and safety provisions. In English v North Lanarkshire Council 1999 SCLR 310 Lord Reed at p.319 expressed the view that an approach to interpretation of the Regulations which was based on the Factories Act 1961 was "fundamentally misconceived". Mr Allardice submitted that that view was mistaken since (1) the Directive envisaged that the system to be implemented would be an improvement on the old system and the latter was accordingly an appropriate starting point and (2) that some of the words and expressions used in the new regulations were the same as those in earlier provisions interpreted by the courts (as, for example, in Millar v Galashiels Gas Company 1949 SC (HL) 31) and accordingly ought to be interpreted to the same effect. I agree with Lord Reed to this extent. In my view the proper approach to such regulations is in the first instance to approach them untrammelled by superseded legislation and any interpretation of it. If, however, the result of that approach is to produce a situation in which the health and safety of workers appears to be less well provided for than under earlier equivalent provisions, this may cause the court to reconsider its initial interpretation. But, if on further consideration the initial interpretation continues to appear correct, it will fall to be applied even if a less advantageous system is the consequence. I also agree with Lord Reed's view that, for the reasons he gives, an approach to interpretation based on the Factories Acts is, or at least may be, misleading.
10. It is plain that Regulation 12(1) (as read with Regulations 12(2) and (4)) is concerned with the construction of the floor (or of the surface of the traffic route). The requirement is a continuing one, so that it will be necessary throughout the life of the floor to consider its suitability for the purpose for which it is at any time being used; any change to the state of the floor by, for example, the effect of wear will require to be kept under review. This requirement is not limited by any qualification as to reasonable practicability. Regulation 12(2) deals specifically with particular aspects of suitability which may affect health or safety. These include slipperiness. No floor shall be "slippery [as to its construction] so as... to expose any person to a risk to his health or safety". This phraseology envisages that a floor may, as to its construction, be slippery with one or other of two consequences, namely, first so as to expose any person to a risk to his health or safety, and second, so as not to so expose any person. It is only slipperiness of the first kind to which the requirement is directed. The phrase "to expose any person to a risk" to his health or safety, when applied to the state of a floor, imports, in my view, a state which prospectively gives rise to an adverse consequence for health or safety. Accordingly, the circumstance that a person in fact slipped on the floor, while it may be relevant evidence as to a state of slipperiness, is not determinative of that state. That state must be viewed from a point in time in advance of any accident in respect of which a breach of the regulation is alleged. Such an approach is also, in my view, consistent with the primary purpose of such regulations, namely, the avoidance of harm to workers by the taking of measures in advance (see the Preamble and Article 6 of the Workplace Directive). It is also, in my view, to be presumed that compliance with the requirements of the Regulations is humanly possible.
11. Regulation 4(1) of the Manual Handling Operations Regulations (made in furtherance of another "daughter" Directive) imposes obligations in respect of any manual handling operations at work "which involve a risk of [employees] being injured". That phrase was interpreted by Lord Macfadyen in Anderson v Lothian Health Board to the effect that "for there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability." That approach appears to have been approved by the Second Division in Cullen v North Lanarkshire Council at p.455. Although the phraseology is slightly different and a different regulation was being interpreted, these authorities are, in my view, of some assistance in the interpretation of Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992. The notion of risk imports a prospect and a prospect involves some measure of forseeability. What that measure is (or how in words or figures it should be expressed) may be debatable; but it appears to me to lie somewhere between a prospect of adverse affect to health or safety which is so remote as may properly be discounted and a likelihood in the sense of something which has a more than even change of coming to pass. For convenience I shall call that a "real risk" of injury.
12. Accordingly, I construe Regulation 12(1) (as read with Regulation 12(2)) as imposing in this case a requirement that the constructional state of the floor immediately prior to the pursuer's accident be suitable in the sense of there being at that time no real risk of a person using it as a means of passage from the stairs to the muster room slipping and thereby sustaining injury.
13. Regulation 12(3) is concerned not with the constructional state of the floor but with obstructions or any article or substance on it which may cause a person to slip, trip or fall. The requirement is limited by the qualification of reasonable practicability but that qualification, in my view, relates at least primarily to what practical measures can reasonably be taken to keep the floor free from such things, whether in advance or, as in the case, for example, of spillages, after they have come to be on the floor. It does not, in my view, relate to the question whether the substance can or cannot be anticipated as a cause of slipping. A measure of anticipation is, however, built into the words "may cause" - which may be contrasted with "causes" and "is likely to cause". In my view a similar measure of foreseeability is built into the requirement under Regulation 12(3) as is built into Regulation 12(1) (as read with Regulation 12(2)). In the present case to establish a breach of Regulation 12(3) the pursuer, in my view, must prove that immediately prior to his accident there was on the floor a substance, here polish, which presented a real risk that someone might slip. This is, or at least may be, from the employer's point of view a stricter requirement than that under section 28(1) of the Factories Act 1961, which it supersedes. There the requirement, also subject to the qualification of reasonable practicability, was to keep the floor free from any substance etc likely to cause a person to slip.
14. For completeness it may be added that Regulation 12(4) also appears to acknowledge the concept of foreseeability in respect that it requires account to be taken of protective measures which have been taken in advance.
15. I accordingly reject Mr Allardice's primary submission to the effect that, it having been admitted by the defenders that the pursuer slipped and fell at the bottom of the stairs, namely, on the floor, a breach of either or both of the Regulations founded on is thereby made out. After some earlier differences of view it was held in Mains v Uniroyal Engelbert Tyres Ltd that, on a sound construction and application of section 29(1) of the Factories Act 1961, reasonable foreseeability had no part to play in the initial consideration of whether a working place was safe, although it might be relevant to the qualification as to whether it was reasonably practicable to make it safe. A similar view had earlier been expressed by Lord Abernethy in Neil v Greater Glasgow Health Board. Those views turned substantially on an interpretation of the word "safe" in the context of section 29(1). Although safety in a general sense is the general purpose behind the Workplace Regulations, the decision in Mains is not directly in point; nor is its rationale (which is the rejection, in the context of that statutory provision, of the importation of "reasonable foreseeability" into the word "safe") applicable where the prospective expression "may cause" [an accident] is used. In any event, I do not suggest that "reasonable foreseeability" is necessarily the measure of the relevant prospect in the present context. As earlier noticed, Regulation 12(3), as well as Regulation 12(1) (as read with Regulation 12(2)) may well import a requirement of greater vigilance and anticipation on the part of an employer than that which is but reasonably foreseeable.
16. I turn now to give further consideration to the evidence. Each of the parties in this case led a witness with engineering qualifications. With regret I have to say that, for different reasons, I found much of the evidence led from each of them less than satisfactory. Mr Johnston, the pursuer's engineering witness, visited the premises in December 2000. Although it was part of the pursuer's case that the place where he had slipped had been cleaned and polished within about an hour prior to his accident, no attempt had apparently been made by Mr Johnston to arrange for any replication of such a state of affairs for his examination. So far as appears he gave no consideration whatsoever to the effect, if any, of the polishing the floor on its slipperiness. His examination was confined to consideration of the terrazzo tiles themselves and to the effect of wear by usage on their slipperiness. He testified that as a matter of subjective judgement, based on feeling the surface and walking across it, it was "very smooth, very shiny and very slippery". He was dismissive of any attempt to measure the state of slipperiness by any objective means. No report by him was lodged in process by the pursuer. A report by the defenders' engineering witness, Mr Glen, had been lodged by them some weeks in advance of the proof. Mr Johnston saw it about two days before he gave evidence. A large part of his testimony was directed to criticism of the methodology employed by Mr Glen. While some of that had force, I found Mr Johnston's dismissive attitude towards any objective evaluation of slipperiness unconvincing and unhelpful, particularly as the Guidelines (referred to hereafter) give apparently respectable support to the use of objectively obtained measurements. Moreover, he did not at all address in evidence the significance (or lack of it) of the application of polish to the floor within a relatively short time prior to the pursuer's accident. As it was a recently polished floor on which the pursuer slipped, the relevance of the constructional state of the floor, examined by Mr Johnston in a state which may well have been relatively remote from any polishing work, remains uncertain. I do, however, accept his evidence that parts of the terrazzo surface, including the place where the pursuer fell, had as a result of wear over the years became smoother than others.
17. The evidence of Mr Glen was also seriously flawed, though for quite different reasons. He had examined the premises on two occasions (on 8 January and 16 August 2001) and had prepared a report dated 17 August which was lodged in process. In anticipation of his second visit arrangements had been made to carry out a cleaning and polishing exercise in advance of his examination in an attempt to replicate the conditions relevant to the pursuer's accident. Mr Glen used a Stanley Pendulum to measure the coefficients of friction at three points on the surface of the floor. He recorded results of 0.58, 0.61 and 0.59. In the conclusions of his report he stated among other things -

"British Standard BS 5395 Part 1 1977 'Stairs Ladders and Walkways' gives guidance figures for slip resistance of floor surfaces, classifying coefficients below 0.2 as 'very poor', these between 0.2 and 0.4 as 'poor to fair' and coefficients above 0.4 as 'good'. Also quoted in this document is that 'a minimum coefficient of friction of 0.4 between the finishes of steps or landings and the sole of the shoe is required if slipping is to be avoided.'"

In the course of Mr Glen's evidence, however, it emerged that BS 5395 Part 1 1977 had been withdrawn by the issuing authority and had not been replaced by any standard which specified figures. This fact was known to Mr Glen at the time he prepared his report but was not referred to in it. Although Mr Glen protested that his omission to mention the withdrawal of the standard was not intended to deceive, I found this omission highly unsatisfactory in a lodged report whose purpose ought to be to give candid, as well as independent, expert assistance to the court. I trust it will not be repeated. Although Mr Glen insisted that notwithstanding its withdrawal the standard remained one which was widely used as an industry standard, I was not in the circumstances prepared, in the absence of documentary vouching to that effect, to accept that assertion. The rationale for the withdrawal was unexplained and in the absence of explanation the implication must be that the standard was no longer considered by the issuing authority to be one which should be relied on. I do not accept that any "industry standard" has been established.

18. A number of technical aspects potentially pertinent to this accident were not satisfactorily addressed by either of the technical witnesses. These included, first, the significance, if any, of the fact that at the time of the accident the pursuer was wearing slip-on, leather-soled and rubber-heeled shoes. He had many years before received permission from the defenders to wear such footwear since the "Doc Martens" regularly worn by firefighters adversely affected an athlete's foot condition from which he suffered. The pursuer testified that these shoes had less friction than "Doc Martens" but that he was unaware whether a person wearing them was more likely to slip. A fellow firefighter, Mr Brian Renfrew, thought that the "Doc Martens" he wore had a better grip than the shoes worn by the pursuer. So far as appears, however, the pursuer had not himself previously slipped when wearing them. Nonetheless, an expert view of the potential of such footwear to slip might have been helpful - particularly in circumstances where the wearer was stepping from stairs set, as they were, with anti-slip carborundum strips on to an open area without any such provision. Nor was there any evidence as to the physical effect on terrazzo tiles of the application to them of polish followed by buffing - in particular, whether the polish was wholly absorbed into (or removed from) the tiles or remained as a film, however thin, on their surface. Scuff marks noticed by Mr Slattery after the accident may be indicative of the latter.
19. In the course of the defenders' proof I allowed on their motion a further document to be lodged. It is entitled "The Measurement of Floor Slip Resistance - Guidelines Recommended by the UK Slip Resistance Group". It was issued in June 2000 by Rapra Technology Ltd, apparently a commercial testhouse, and circulated by it for the UK Slip Resistance Group, a body set up in 1986 by Rapra Technology Ltd and as at 2000 having 24 members drawn from various interests including the Health and Safety Executive. The guidelines are directed primarily to the evaluation of the slip resistance of wet floors, on which, it is said, more than 90% of slipping accidents occur, but deal to some extent also with dry floors, including the measurement of the slip resistance of such floors by instruments such as that used by Mr Glen, and the interpretation of the results of such measurement. I am prepared to accept on the basis of this document that the methodology of measurement adopted by Mr Glen was not inappropriate and that the results obtained by him provide at least some objective basis upon which an inference can be drawn as to the state of the surface on which the pursuer slipped. In the part of the document dealing with interpretation of test results (also spoken to by Mr Glen) four categories of potential for slip are identified, described respectively as "High", "Moderate", "Low" and "Extremely Low". The test results obtained by Mr Glen all fall within the "Low" category, albeit towards the lower (in terms of slip potential) end of that category. Mr Glen accepted in cross-examination that, in the case of a polished floor with coefficients of friction such as he had found on his test, there was always a risk that a person might slip - though such an event would not be the result purely of the state of the floor surface; other factors, such as the pedestrian's physical movements, would play a part. I construe this evidence as being to the effect that there was an appreciable, albeit a relatively low, risk that a person putting his foot on this surface might slip, whether or not he did slip being influenced also by other factors.
20. There is no doubt that the pursuer did in fact slip and fall on this surface. The defenders admit as much in their pleadings. The slip and fall were of a somewhat dramatic kind. The pursuer, whose evidence on this matter I accept, likened his experience to slipping on ice or on oil; he very rapidly lost his footing and was unable to regain it. He fell heavily on his back so that Mr Slattery, who was then in another room, heard the thump of his fall. There is no basis on averment or in evidence to the effect that the pursuer had proceeded down the stairs in any untoward manner. The floor had been recently washed and polished by Mr McIntyre, who impressed me as a man of meticulous habits who would have carried out his work thoroughly. I am satisfied that the floor was clean, that polish had been applied to it and that that polish had been thoroughly buffed. It was no doubt visually attractive and in keeping with the aesthetic standards of appearance regarded as appropriate by the Fire Service. The pursuer described it as "highly polished" and "shining"; I accept those descriptions. Subjective impressions as to its slipperiness, formed at or about the time of the accident, varied - perhaps inevitably. Mr Renfrew, who witnessed the accident, described the floor as slippery, although he had just traversed it without slipping. Mr McIntyre described its state when he left it at about 11.20am as being shining and dry but not slippery. Mr Slattery, who examined the floor some time after the accident, noted scuff marks as though a person had slipped but did not find the floor to be slippery - albeit as a precaution he instructed that it be re-cleaned.
21. No evidence was led of any prior accident on this floor. It seems plain that many firefighters, including the pursuer, had previously passed across it without incident. Nonetheless, I am satisfied that in a newly and well polished state there was a real and appreciable, albeit relatively low, risk that someone might slip on it. That is, in my view, consistent with Mr Glen's testimony (in so far as accepted by me), with the circumstances of the accident and with the shining appearance of the floor. The basic smoothness of the worn tiles may also have played some part in creating such slipperiness. I am also satisfied that because of that state the pursuer in fact slipped and sustained injury.
22. It is not possible to reach a wholly confident view as to whether Regulation 12(1) (as read with Regulation 12(2)) or Regulation 12(3) is in the circumstances applicable. I conclude, however, that Regulation 12(3) was breached as I am satisfied that the recent application of polish played a material part in the floor being in a state of slipperiness - whether because a film of buffed polish was on the surface of the tiles or because the application of polish (followed by buffing) had in some other way rendered that surface in such a state as might cause a person to slip. Alternatively, the construction of the polished tiles was by reason of slipperiness such as to expose a person alighting on to them from the stairs to a risk to his safety, resulting in a breach of Regulation 12(1) (as read with Regulation 12(2)).
23. No issue of negligence on the part of the pursuer was raised. In the whole circumstances I shall repel the defenders' pleas 1-5 inclusive, sustain the pursuer's first plea and grant decree in his favour in the agreed sum.