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Ward v Tesco Stores revisited
- May 30, 2024
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by Jack Harding - www.dekachambers.com
Ward v Tesco Stores (1976) 1 WLR 810 is regarded by many personal injury practitioners as an effective forensic weapon, allowing claimants to throw a burden of proof onto the Defendant which might otherwise represent an insurmountable obstacle to the claim.
It is submitted, however, that properly understood, the effect, and therefore the utility, of Ward, is more limited and should not be regarded as creating any freestanding principle of law applicable in every slipping claim.
The facts of Ward are critical because they underscore the very particular circumstances which led the Court of Appeal to reach the decision that it did. Mrs May Ward was shopping at a Tesco supermarket in in Liverpool on 21st February 1975. There were some 30 to 35 staff on duty. As she walked down an aisle she slipped on some pink yoghurt which had spilled on the floor. The upturned yoghurt pot was found nearby. About three weeks later, she returned to the store and gave evidence that she had observed some spilled orange juice lying on the floor for 15 minutes before anybody identified it and cleaned it away. The Defendant called evidence about the cleaning procedures at the store (it was ‘brushed’ five or six times during the day, and if spillages were identified, someone would stand by them until cleaned), but it was unable to say when the store had last been cleaned before the Claimant’s accident. The store manager accepted that there were approximately 10 spillages every week.
The Defendant contended that it was for Mrs Ward to demonstrate that the yoghurt had been on the floor for long enough to be identified and cleaned away. Unless she could do so, it was argued, there was no ‘prima facie case’.
The Court of appeal was split two to one in the Claimant’s favour. Giving the lead judgment, Lawton LJ based his decision on the well-known judgment in Scott v London and St Katherine Docks (1865) 3 H & C 596, and the principle of res ipsa loquitur:
“The accident was such as in the ordinary course of things does not happen if floors are kept clean and spillages are dealt with as soon as they occur. If an accident does happen because the floors are covered with spillage, then in my judgment some explanation should be forthcoming from the defendants to show that the accident did not arise from any want of care on their part; and in the absence of any explanation the judge may give judgment for the plaintiff. Such burden of proof as there is on defendants in such circumstances is evidential, not probative. The judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff” (emphasis added).
The underlined words have assumed particular significance in the case law that has followed Ward, because they require a finding of fact to the effect that the relevant spillage must have been present for long enough to be identified by a reasonable system. Only if that is the case can the presence of the spillage be said to be more consistent with negligence than the absence of negligence. In Ward v Tesco, the conclusion of the majority was that such a spillage should, reasonably, have been dealt with ‘as soon as it occurred’. This, combined with the known likelihood of spillages on a smooth, tiled floor, created the rebuttable presumption in favour of the claimant.
Megaw LJ, giving a concurring judgment, stated as follows: “It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault… [The Defendant] could escape from liability if they could show that the accident must have happened, or even on balance of probability would have been likely to have happened, even if there had been in existence a proper and adequate system, in relation to the circumstances, to provide for the safety of customers. But if the defendants wish to put forward such a case, it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers. That, in this case, they wholly failed to do. Really the essence of Mr. Owen’s argument—and he did not shrink from it—was: ” Never mind whether we had no system at all: still, as the plaintiff has failed to show that the yoghurt was spilt within a few seconds before the accident, she must fail.” As I have said, in the circumstances of this case, I do not think that the plaintiff, to succeed, had to prove how long it was since the defendants’ floor had become slippery”
Ormerod LJ gave a trenchant dissent. He attacked the core premise of both leading judgments, namely that the mere presence of yoghurt (or indeed any spillage) on the floor was itself intrinsically more consistent with negligence that the absence of it:
“Starting from the beginning, I do not think that it was established that this accident was caused by any want of care on the part of the defendants. The accident described by the plaintiff—and she did no more than describe the accident, namely, that she slipped on some yoghurt which was on the floor of the supermarket—could clearly have happened no matter what degree of care these defendants had taken. The crucial question is how long before the accident the yoghurt had been on the floor. Had some customer knocked it off the shelf a few moments before, then no reasonable system which the defendants could be expected to operate would have prevented this accident. So I think that the plaintiff fails at the outset”
Ormerod’s point, then, is that the majority reasoning in Ward has an inherent circularity which lacks intellectual rigour. Spillages by their very nature are accidental and therefore occur randomly, without warning. It is impossible for an interval-based cleaning regime, however well implemented, to prevent every spillage, since it is always possible that the spillage has only just occurred.
Ormerod LJ went on to set out the evidential implications of casting the burden on the Defendant on the facts of such a case: “I ask myself what evidence could they have called? It would have been fortunate, perhaps, if they had been able to show that their sweeper had passed over this bit of the floor five minutes before the accident. But it would not have shown that their system was either better or worse than if the sweeper had gone by that bit of the floor an hour earlier. I cannot think that the case would have been carried any further by calling evidence from such employees as may or may not have been about. This is a supermarket, not a place with counters and assistants behind the counters. I cannot imagine what E evidence they could give except to say that they had not noticed the spill; and the matter would have been taken no further”
Whilst he did not say so explicitly, Ormerod LJ might be taken to have concluded that the judgment of the majority had, in effect, reversed the legal as well as the evidential burden. Afterall, if a slip caused by a substance on the floor created a prima facie case of negligence, and that prima facie case could not be rebutted by evidence of a regular cleaning system, the Defendant could not discharge the notional burden without proof of evidence which positively negated negligence or causation.
It is fair to say that Ward has received a mixed reception from the Court of Appeal over the almost five decades since it was decided. In some cases it has been applied with full vigour, and in others distinguished or downplayed as a decision confined strictly to its own facts.
Large restaurants, shops and other high-spillage areas
In cases on similar facts to Ward itself, the Court has not demurred from its application.
An early example is Jacob v Tesco Stores (1998) ALL ER (D) 609 in which the Claimant slipped on a small puddle of water in a large Tesco supermarket in Swansea. The Court of Appeal regarded the principles set out by the majority in Ward as a ‘useful’ blueprint and accepted that the existence of the water on the floor created a prima facie case which shifted the evidential burden onto the Defendant. It was noteworthy, however, that it regarded as ‘crucial’ a finding of fact made by the first instance judge that the spillage had been present for ‘some considerable time’ because of its particular location in the store. Thereafter, it found no reason to criticise the judge’s conclusion that Tesco’s system of inspection, which was predominantly a reactive and unsupervised one (“all indians and no chiefs”) was unreasonable in the circumstances.
More recently, but in a similar vein, is Dawkins v Carnival (2011) EWCA Civ 1237 which concerned a slip on water in a restaurant (‘the Conservatory’) on board a cruise ship. The only evidence of how long the water had been there was that of fellow passengers who said that it was not present when they arrived between 10 minutes to 30 minutes before the accident. The Defendant called evidence of their inspection system which consisted of walking the floor, monitoring its cleanliness. It was common ground that the restaurant was so busy that there was an expectation that spillages would be dealt with almost ‘instantaneously’. The trial judge accepted that the staff were properly trained and very safety conscious. However, the Defendant only called evidence from the restaurant manager, not from any of the many staff who had been present on the day of the accident. Nonetheless, the judge at first instance found for Defendant, observing that “The proper inference in all the circumstances is that even with the best possible safeguards an accident such as this is bound to happen occasionally”. The Court of Appeal, applying Ward, accepted that the presence of the spillage cast an evidential burden onto the Defendant. Having done so, Pill LJ observed that:
“I accept that if the probability is of such contemporaneity between the spillage and the accident that remedial action could not reasonably be taken during the gap between them, the claim would fail. The Recorder did not make a finding as to time but, if the defendants could demonstrate such contemporaneity, the claim would fail.
[…] The absence of evidence from one or more of the many members of staff claimed to be present in the Conservatory at the material time is remarkable. The explanation for the lack of evidence from a member or members of staff was, the Recorder found, that the defendants “could not establish who it was.” In my judgment, in the absence of evidence from members of staff claimed to be implementing the system, the judge was not entitled to infer from the existence of a system that the spillage which led to the fall occurred only a few seconds, or a very short time, before the accident”
On the facts of Dawkins, the presence of a spillage on the floor for even a very short period of time created an evidential burden precisely because of the agreed position that the Defendant’s own properly implemented system required the almost instantaneous removal of spillages. That being so, the fulcrum of the case became timing (i.e. on balance the spillage had been present for long enough to shift the evidential burden), and in the absence of any factual witnesses for the defendant who were present on the day, it is perhaps unsurprising that the Court of Appeal allowed the appeal.
Workplace accidents
By contrast, the Courts have adopted a less generous approach in the context of workplace accidents, particularly where spillages are either not known to occur with any regularity, or simply have to be accepted in the particular context of the activity being caried.
In Furness v Midland Bank (2000) (Unreported) CA the Claimant slipped on a water on a flight of internal stairs in the office block where she worked. The steps were constructed of smooth tiles. There was no evidence about how long the water had been present, nor where it came from. There was no history of leakages or spillages. The Defendant adduced evidence of periodic inspections of the general structure of building and routine cleaning of the staircase at the end of the working day. However, there was no evidence at all of any regular cleaning of the staircase during the course of the day, even on a reactive basis. The Claimant invoked Ward v Tesco, but it was roundly rejected by the Court on the facts:
“Of course in many cases where spillages are frequent and the dangers of slipping very real, it will be necessary for employers to instruct their staff very particularly to be alert to spot any danger and to deal with it. Indeed, it may well be necessary to keep a constant lookout and to instruct staff accordingly. Ward v Tesco Stores Ltd [1976] 1 WLR 810 was clearly such a case, the more particularly so because it is the public who are put at risk by spillages in supermarkets.
[…] In a case like the present, however, where spillage and leakage is almost unheard of and where the premises are used only by employees, it seems to me absurd to think that an instruction of the sort suggested here would in reality serve any useful purpose. If required here, it would be required in the case of every single office premises and it would become merely an incantation. I simply cannot accept that the giving of such an instruction would contribute materially to keeping surfaces free from the odd drop of water”
In Holmes v Vange Scaffolding (1989) Lexis Citation 1167 the Claimant, a scaffolder, was working in a large power station when he slipped on a patch of oil and fell heavily to the ground. The Defendant accepted that greasy substances such as oil did sometimes form on construction sites such as this, but did not accept that it gave rise to any sufficient danger to warrant a specific system of inspection or removal. The trial judge found for the Claimant and the Defendant appealed. The Claimant argued that the principles in Ward applied and created a prima facie case which the Defendant had failed to rebut. Staughton LJ, having referred to the facts of Ward, held that:
“It is entirely another question whether there is a rebuttable presumption of fact that small oil spillages are not to be found on the floor of vast power stations if the occupiers have exercised reasonable care. On the evidence which we have read, I do not think that there is any such presumption in the particular circumstances of this case”
A retreat from Ward?
A third category of case is discernible in which the Court of Appeal has regarded the application of Ward as simply unrealistic or a distraction from the proper determination of the facts.
In Laverton v Kiapasha (2002) EWCA Civ 1656, for example, the Claimant slipped on rainwater in the Defendant’s takeaway shop in the early hours of the morning. The rainwater had been brought in on the soles of customers’ shoes. The Claimant argued that Ward v Tesco should be the starting point. Hale LJ (with whom Peter Gibson LJ agreed; Mance LJ dissenting) rejected this approach:
“The judge in this case found it unnecessary to resort to the principle in Ward v Tesco. In my judgment he was right not to do so. There was no question that the floor was wet. The issue then is what it is reasonable to expect a shopkeeper to do about it. There is a distinction between particular dangers such as greasy spillages, which it is reasonable to expect a shopkeeper to deal with straightaway, and the general problem posed by walked in water on a wet night, which can never be completely avoided. Everyone coming in from the wet outside to the drier inside brings water with them on their feet”.
It is difficult to understand why the uncontentious fact that the floor was wet meant that Ward had no application at all and that the only question was what reasonable care required. After all, where Ward has been applied, there has rarely been a dispute about a slippery substance being on the floor, but it is the very fact that it has been present and caused an accident which is relied upon to cast an evidential burden on the Defendant to adduce evidence of how it exercised reasonable care. It seems that Hale LJ’s real point was that the mere presence of rainwater did not create a prima facie case because it was not of itself more consistent with the presence rather than absence of negligence. She went on to explain that:
“At busy times in a business such as this, the defendant must be right that it is simply not practicable to mop up the water as it arrives. The only solution would be to close the shop, which he can only be expected to do if the customers cannot otherwise be reasonably safe.
The reality is that at such times the customers can be reasonably safe if they take reasonable care for their own safety. The unchallenged evidence of the claimant’s two female companions was that it was obvious that the floor was wet. This cuts both ways. If the floor had been swimming wet so that no−one could walk on it with reasonable safety, then the shopkeeper should undoubtedly have noticed and done something about it, even closing for a short time if necessary. But the evidence went nowhere near supporting this. The judge himself wavered from ‘considerable’ to ‘significant’, to ‘substantial’ quantities of water. The more obvious such water is, the greater the need for the customer to take care. But all floors are to some extent slippery when wet.”
A further example is Tedstone v Bourne Leisure (2008) EWCA Civ 654. The Claimant slipped on water in the vicinity of a jacuzzi at a hotel. Again, she relied upon the principle in Ward, arguing that the particular amount and location of water created a prima facie case in her favour. May LJ was prepared, for the sake of argument, to accept that proposition, but noted that the presence of non-slip tiles effectively rendered it nurgatory:
“In the present case the area where Mrs Tedstone fell was an area which had non-slip tiles. There will, of course, be water from time to time around a swimming pool and around a Jacuzzi, most often when people get out of the pool or the Jacuzzi and water drips off them. But of course in those circumstances the quantity of water will not be as great as that which Mrs Goodwin described. Generally speaking, non-slip tiles should be regarded as sufficient for dealing with water of an occasional nature sufficiently dealt with by drainage or removal”
In Cook v Swansea City Council (2017) EWCA Civ 2142 the Court of Appeal had little difficulty rejecting the application of Ward to a slip on ice in a small public car park. Having noted that the car park was unmanned and this was a natural substance, the court approved the judge’s observation that “where proof of the circumstances leads to the conclusion that something has gone wrong…it cannot seriously be said that something must have gone wrong to explain the presence of ice on the ground in December”.
Perhaps the apotheosis of the Court of Appeal’s reluctance to apply to Ward outside its specific factual context (i.e. a busy public area with regular spillages) is Lougheed v On the Beach (2014) EWCA 1538. Valerie Lougheed travelled to Spain for a family holiday. On 16th August 2009 she slipped on water on a flight of internal granite steps in her hotel. The steps had non-slip grooves cut into them. The evidence from the hotel was that hundreds of guests had used the steps before without any prior accident. Although they were occasionally used by guests walking from the pool to reception, this was not a common event. There was a single clean at 8am, and for the rest of the day staff were expected to keep an eye out for spillages and clean them when they were identified.
The Claimant sought to rely on Ward v Tesco and, in particular, the passage from Lawton LJ’s judgment set out in paragraph 5 above. Tomlinson LJ did not conceal his scepticism about the reasoning in Ward generally:
“I confess to having some difficulty with this passage. Of course the accident would not have happened if the spillage had been dealt with as soon as it occurred. That however begs the question whether the staff ought to have seen the spillage as soon as it occurred. Perhaps in that case the inference that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff was justified because of the frequency of spillages of sticky substances and the number of staff on the premises”
He went on to hold that: In my judgment the judge in our present case was not on the basis of the facts found justified in concluding that this was an accident such as in the ordinary course of things does not happen if those who have the management of the hotel use proper care. It was an accident which could have occurred despite the use of proper care, as would have been the case, for example, if the stairs had become wet only very shortly before Mrs Lougheed negotiated them and before the wetness had or ought reasonably have come to the attention of the hotel staff.
I do not consider that this was an appropriate case for the invocation of the Tesco v Ward principle, if such it is. There was no finding that spillage or the presence of water was likely in this area. The judge did say that “there was a foreseeable danger arising from the use of the stairs by children or even adults who have come fresh from the pool”. That however falls far short of a finding that the hotel knew of the likelihood of a dangerous situation arising. Not everything which is foreseeable is likely. There was here no evidence that slipping at this place was a known likely risk, with sufficient frequency of occurrence that it required a system to remove it, so that an accident could be inferred to be the result of the absence of a system which ought to have been in place or a failure in the operation of the system”
The underlined sentence above represents, in effect, a direct application of Ormerod LJ’s dissenting reasoning in Ward (indeed, Tomlinson LJ made a point of citing from Ormerod LJ’s judgment as well as the majority’s). His conclusion that the accident ‘could have occurred despite the use of proper care…if the stairs had become wet only very shortly before’ could be applied to virtually any situation at all involving random spillages. He may have felt that there was a much stronger evidential foundation for reaching that conclusion in Lougheed because spillages generally were not a problem, but even in Ward there only approximately 10 per week in a large supermarket and, as Ormerod LJ explained in his dissent, it was perfectly possible that a customer had dropped the yoghurt pot a matter of seconds before the accident.
Slipping down under
It is of particular interest that in the same year that the Court of Appeal decided Ward v Tesco, the High Court of Australia dismissed the Claimant’s appeal in Dulhulty v J B Young (1976) 7 ALR 409 against a finding that the owner of a department store in Queensland had no liability in circumstances where she slipped on a solitary grape. The Court (Barwick CJ, Mason J concurring), echoing the approach taken by Ormerod LJ in Ward, concluded that the mere presence of the grape on the floor, in the absence of any evidence about how long it had been there, did not create a prima facie case:
“His Honour in his summary of judgment said this:” In my opinion there is no evidence from which I can draw any reliable conclusion as to how the grape came to be where it was or how it had been there” (I think he means how long it had been there).: It is perfectly consistent with the evidence that the grape had been dropped by a member of the public a very short time before the plaintiff stepped on it … The fact that remains of the grape were still there some 10 minutes or so after the occurrence raises a doubt in my mind as to whether any system for keeping the department clean was working adequately. It seems to me, however, that this throws no light on the crucial question of how long the grape had been on the floor before the plaintiff stepped on it …”
His Honour, in my opinion, was quite correct to say that evidence of the time when the grape was dropped on the floor and of the time it had been there was indispensable in the appellant’s case … “
The approach adopted in Dulhuty reflected earlier decisions in Australia which have emphasised that, taken to its logical conclusion, the principle followed in Ward would mean that the mere presence of any foreign substance out of place in an area under the control and management of the Defendant would immediately give rise to a presumption of negligence. Accordingly, in Mummery v Irvings (1956) 96 CLR 99 the High Court sounded the following warning:
“At this stage it is appropriate to return to the language used in Scott v. London and St. Katherine Docks Co. (supra), and to observe that the vital condition for the operation of the principle is that ” the accident is such as in the ordinary course of things does not happen if those who have the management use proper care” . Indeed, to overlook or to exclude this requirement might well be thought to produce the result that mere proof of any occurrence causing injury will constitute sufficient proof of negligence in any case where an object which physically has caused injury to the plaintiff is under the control and management of the defendant and the actual cause is, therefore, not known to the plaintiff and is, or should be known to the defendant. The requirement that the accident must be such as in the ordinary course of things does not happen if those who have the management use proper care is of vital importance and fully explains why in such cases res ipsa loquitur.”
The Courts in Australia have, therefore, been critical of the decision in Ward, suggesting that it failed properly to grapple with the core requirement in Scott v London and St Katherine Docks that a prima facie case should include some evidence of negligence which cannot normally be inferred from the mere presence of the foreign substance: see for example Brady v Girvan Bros (1986) 7 NSWLR 241 and In Strong v Woolworths (2012) HCA 5.
Ward v Tesco in 2023
In February 2023 the English High Court handed down judgment in Apres Lounge v Wade (2023) PIQR P13. In the early hours of the morning the Claimant had slipped on a spilled drink in a bar in the Leicester city centre.
The evidence from the Defendant was that staff on duty had included a manager, supervisor and two ‘spotters’ whose duty it was to continually walk around the floor, collect glasses and check for safety issues.
The judge at first instance found in the Claimant’s favour. Applying Ward, he held that “The bar was a dark busy place where drinks were being obtained and there were likely to be spillages”. Accordingly, he accepted that the presence of the liquid created a prima facie case of negligence and that the defendant had not discharged the evidential burden placed on it. He went on to give further reasons for his decision:
“First, as I have said, the accident occurred in place close to the bar. This was an area where spillages of drinks were likely. Secondly, this was a busy area, particularly on a Saturday night. Although there was evidence of a system in place, there was no evidence from those who were implementing the system and no evidence as to how long the liquid had been on the floor. Fourthly, not only was the area where Ms Wade fell close to the bar and the risk of spillage, it was, I find, dark as Ms Wade describes. Fifthly, the floor was wooden. Although, as Mr Dornan says, it was not slippery when dry, in my view it was likely to become slippery when wet. Sixthly, that area was also being used as a thoroughfare between the bar, the outside of the premises at the front and the garden of the premises at the rear. Seventhly, the system described by Ms Osborne was not documented in terms of the checks which were actually undertaken, where or when”
Julian Knowles J overturned this finding on appeal. He held that unlike Ward and Dawkins: there was direct and detailed evidence of the system which was being operated in the bar that night. Having regard to the realities of running a late night bar, the system of floor inspections by several members of staff as described by Ms Osborne – and which the judge accepted was being done – was sufficient to fulfil the statutory duty lying upon the Defendant. Its system was proactive and not reactive.
[…]
I think Mr Hill was therefore right to submit that on the judge’s approach, a system which in the judge’s view would have complied with s 2(2), would effectively have placed the Defendant under a duty to have had in place a system of continuous surveillance and monitoring, so that no spilt drink could ever be present on the floor at all. Mr Hill said this would be unreasonable. It would, for example, have required many more members of staff, with each person simultaneously being responsible for the continuous monitoring of separate patches of floor (eg, one square meter each across the two floors, as well as in the garden and on the stairs) and instantaneously reacting to spilt drinks. That, I consider, would have gone far beyond that which was required by s 2(2) of the 1957 Act and its doubly qualified duty.
Conclusion
Insofar as Ward v Tesco gives rise to any distinct principle of law, it is submitted that the case law set out above demonstrates the need to satisfy two distinct pre-conditions.
First, there must be a likelihood of regular spillages about which the Defendant has (or should have had) knowledge. As Tomlinson LJ explained in Lougheed, however, mere foreseeability is not enough, since ‘not everything that is forseeable is likely’. This seems to suggest, and this is supported by the approach taken in Holmes v Vange Scaffolding, that the occurrence of spillages must create a real source of danger to users of the premises, sufficient to require the Defendant to have in place in a targeted system to deal with it. Spillages on busy supermarket floors plainly satisfy this requirement, but patches of oil in factories, ice in car parks, or water around swimming pools, arguably do not.
Secondly, there must be an evidential basis for finding that the spillage had been present for long enough that it should have been cleared away. It is perhaps this requirement which is most problematic because, as Tomlinson LJ noted in Lougheed, the answer requires a further question, namely whether the accident would have happened if the Defendant had exercised reasonable care in dealing with the spillage. As the outcome in various cases set out above demonstrate, the answer to this question often depends upon the Court’s view on the overall merits of the case, rather than a genuine analysis of whether the spillage could have been cleaned away prior to the accident, which raises the question of whether Ward really adds anything at all.
In the final analysis, it is clear that Ward v Tesco Stores remains good law in this jurisdiction, and will continue to assist Claimants in various factual situations where it is appropriately deployed. Equally, however, a proper understanding of the decision means that Defendants should be ready to argue that Ward simply does not operate unless the preconditions set out above are satisfied.
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Jack Harding
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