Lady Wolffe’s Opinion in Mark Shackelton v M-I Drilling Fluids UK LTD  CSOH 82 is a welcome reminder of how courts will approach the question of whether a workplace floor is suitable for its purpose under Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 [“the 1992 Regulations”].
The Pursuer, Mr Shackelton, had an accident at his place of employment on 4th June 2013. He was carrying a box through a doorway and into a hallway when he tripped and fell to his injury. There was a small croissant shaped chip in the floor in the area of Mr Shackelton’s fall.
A court action was raised by the Pursuer against his employers primarily for breaches of Regulations 12(1) to (3) of the 1992 Regulations. It was argued that the flooring was not suitable for its purpose and the chip or indent in the flooring caused the accident.
The Pursuer’s accident occurred in 2013 prior to the commencement of Section 69 of the Enterprise and Regulatory Reform Act 2013 which removed the principle of strict liability under the 1992 Regulations.
Addressing the question of whether a workplace floor is suitable, Lady Wolffe explained the 1992 Regulations do not impose an obligation on an employer to have a perfect floor. Whether or not a floor is suitable is to be determined by whether the features of the floor pose a risk to health and safety.
Simply because a tripping accident occurs does not necessarily mean a floor is unsuitable. Proof of unsuitability requires a real risk that a person using the floor would trip and thereby sustain injury.
In the present case Lady Wolffe explained there were two questions to answer. The first was whether the chip in the floor rendered the floor unsuitable in posing a real risk to the Pursuer’s health and safety. Secondly was the chip an obstruction which might cause a person to trip or fall?
Having heard evidence, including expert evidence, from both the Pursuer and Defenders on the features of the chip and health and safety guidance, Lady Wolffe decided the chip was too insignificant to impose any risk to the health and safety of users in the premises. It was simply too shallow to pose any relevant risk
Accordingly the presence of the chip did not render the floor unsuitable. It was also held the chip was not an obstruction in terms of Regulation 12(3) of the 1992 Regulations.
It was agreed the Pursuer’s common law case would stand or fall dependent on the case under the 1992 Regulations. In light of the decision Lady Wolffe absolved the Defenders from liability.
Whilst this determined the merits of the case, it was also noted that the court would not have been prepared to accept the Pursuer had proved the chip was the cause of his fall.
Furthermore with regard to contributory negligence, if the Defenders had been found liable to the Pursuer, on the evidence Lady Wolffe would have held the Pursuer to be at least two-thirds to blame for his accident.