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Slipping claims – burden of proof

In general, the law on slipping cases is reasonably settled and straightforward. An interesting article considers a question which often arises in practice, namely whether the defendant bears an evidential burden of proving that it had in place a proper and adequate system.

The starting point is s2(2) Occupiers Liability Act 1957. An occupier of premises owes a visitor 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 article considers the development of the law in relation to evidential burden and summarises the applicable principles as follows:

  • An evidential burden upon the defendant will only arise where the evidence shows that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up, such that it can be inferred the accident was the result of the absence of the system that ought to have been in place or a failure in the operation of the system. The burden of proving this lies on the claimant.
  • This situation most commonly arises in the case of shops and supermarkets or bars and restaurants.
  • Generally, there is an evidential burden on the defendant to demonstrate the existence of a proper and adequate system. This represents a departure from the default position where the claimant bears the burden of proving that the defendant failed to exercise reasonable care. However, this evidential burden does not automatically arise merely because it involved a person slipping on water or liquid on the floor. This is so even when where the accident occurs in an environment containing vulnerable people (eg children).
  • Where the evidence demonstrates that spillage has only been present for a short time, the defendant is likely to escape liability (it is not realistic to require the defendant to identify and remedy a spillage as soon as it takes place).
  • The duty on the defendant is only to take reasonable care, not to keep claimants absolutely safe.

Source: [2019] 178 Personal Injury Law Journal 19.

 

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