Slips are the most common cause of accident, injury and claim in most sectors. More than 300,000 people a year go to A&E after a slip. One of the leading UK insurers spent nearly 80 million a year paying out claims resulting from trips and slips. Yet this number could be much, much higher. Claims that could be successful are being rejected and money for claimants is being left on the table because of the wrong approach by some Solicitors to making this type of claim.
In conversations with corporates and defendant lawyers, defensibility rates typically range from 40 to 70%. There is huge room for improvement.
The Hardening insurance market and the effect of the pandemic are placing risk management even higher up on boards ‘to-do-lists. As corporates and other organisations seeking to defend claims up their game, the old ways of seeking to win these claims are no longer the best ways.
Questions such as ‘Was there a yellow sign?’, ‘Can I see the cleaning records?’, ‘Are there any gaps in witness statements?’ will continue to win a certain proportion of claims. But diving a level deeper will uncover all sorts of failings that will not meet the test of reasonable practicality.
The ‘CHIMES’ technique
Christian Harris is the founder of Slip Safety Services and in his 10 plus years in the field of slip safety, more than 50% of floors I have reviewed have failed to meet the HSE benchmark for slip resistance.
‘CHIMES’ is an acronym that I have developed for the six causes of slips:
This is a roadmap for reducing the risk of slips in your building. Typically, our clients see at least 50% fewer accidents after using this model. Yet, I would estimate that over 80% of buildings have not done anywhere near well enough at tuning their chimes.
This is your opportunity. If you can focus your claims on evidence of compliance in these six areas, you will suddenly have a much broader and more detailed platform to convince a court to find in favour of your client.
Some starting points
Let’s dive in to ‘chimes’ and give you some tips and resources to use:
Contamination: If a floor is clean and dry, a slip will not occur. How well is the defendant managing contamination on its floors?
Some points to consider:
- Contamination can often be invisible to the naked eye. The floor may appear aesthetically clean yet be ingrained with invisible contamination. It is possible to scientifically test this. Quantifiable evidence is always more powerful than ‘I thought it was clean’.
- Building owners should recognise that, even if a floor is clean and kept dry, contamination can be brought in on clothing or on people’s feet.
- Many cleaning regimes are too generalist. You cannot use the same chemical to clean the kitchen floor, as you do around a swimming pool. Water-only cleaning regimes are increasingly popular for environmental reasons. Manufacturers of machinery sell these as effective but in my experience they simply are no, if put under any rigour.
Top tip: use hygiene testing to prove whether a floor is truly clean or not.
Heel: Without the foot striking a floor, there is no slip. To what extent can footwear be controlled.
There is a clear distinction here between employers’ and public liability cases.
- If you are dealing with a staff accident, it is certainly feasible for footwear to be controlled. But most ‘safety footwear’ is not actually ani slip. The EN standard for safety footwear is akin to an 11 plus; what HSE expects is a PhD. HSE does have its own footwear slip resistance testing scheme called GRIP. I suggest you seek to understand if staff footwear has got a grip rating, and if not, that is a huge area of weakness.
- For public liability claims, clearly, it is not possible for a building owner to control what is worn on a customers’ feet. However, an often-cited defence is a claimant’s choice of footwear. ‘Of course she slipped, she was wearing high heels. From a risk assessment basis, the defendant has an obligation to make their building sufficiently safe for its foreseeable users. Is it foreseeable that a lady will wear high heels in a pub? Yes. In which case the environment should be safe enough that she can do so without risk of injury.
Top tip: In EL cases check if footwear provided has a GRIP rating.
Individual: we all have different needs for slip safety, and different abilities to stop ourselves from slipping. What is the defendant doing to help or hinder this?
- Signage is often cited by defendants, but in my experience, signage is almost universally used inappropriately and ineffectively. If you know your floor is slippery when wet, putting a sign up to warn people about that is not sufficient. It is reasonable to have a floor that is safe-when-wet, or to ensure that the floor is kept dry and free of contamination.
- We require more friction if we are pushing, pulling, twisting, urning or carrying items. A diligent, conscientious employer would seek to mitigate these types of activities as much as possible in environments where slips can be likely, such as kitchens maintenance.
Top tip: look into the detail of signage. There is a huge difference between ‘caution cleaning in progress’ while cleaning is being done and ‘caution, slippery when wet’ when a floor Is wet in a washroom, for example, which is a foreseeably wet environment.
Maintenance: floors can and do change over time. How is this being monitored and managed?
- Floors’ slip resistance will change due to wear. A textured floor could have been anti-slip out of the box but has worn smooth. It may still ‘look’ anti-slip, but not have its anti-slip, but not have its anti-slip properties any longer.
- Ineffective cleaning causes around 33% of slip accidents according to a US study. The act of cleaning introduces risk as floors are made wet. But the bigger issue is that ineffective cleaning allows layers of residue to build-up on a surface producing a greasy barrier between the heel and the floor. An anti-slip floor badly cleaned will become a slippery-when-wet floor within days. It is surely reasonable for cleaning, which is defined as ‘the removing of soiling from a surface’, to be effective at removing soiling form a surface?
Top tip: scientifically assess if cleaning regimes are effective, and also use slip testing to check for wear.
Environment: things around us can affect our ability to walk without a slip. Are these being considered and controlled?
- Steps and stairs are a huge are of risk for falls though a debate rages as to whether you can actually slip on stairs or not. We have prepared a guide around this question that can be found here: https://slipsafety.co.uk/can-you-slip-on-stairs/.
- Slopes increase our requirement for friction quite significantly. An inclinometer should be used to check if floors are flat or sloped. If sloped, it is reasonable to take greater steps to minimise risk in other ways.
- Entrances to buildings are a common area of accidents. Matting is very common control measure. However, the vast majority of matting is totally inadequate in terms of its depth. For a peak traffic rate of 800 people per hour, HSE expects at least 8m of built-in matting. Most buildings have 1m or less.
Top tip: measure entrance matting depth. It is likely to be insufficient.
Surface: the floor is relevant in every single slip. Are floors safe enough when wet?
- In its criminal investigations and expert work, the HSE will inevitably do a slip test. For this, pendulum test is used. This gives a Pendulum Test Value. A PTV on 0 – 24 is high; 25 – 35 is moderate; and 36+ is low.
Floors need to be safe in the intended end use. Safe in the context of PTV is 36+. The question therefore is how foreseeable is it that a floor is wet or contaminated? Very, very few buildings have had a pendulum test done, and even fewer have them done within a timely enough period (typically annually) for the evidence of the test to carry sufficient weight.
- You sometimes see defendants relying on other types of slip test. This should not be accepted: HSE only recognises the pendulum test.
Top tip: most floors are very likely to fail a pendulum slip test.
Do you need this?
No doubt you have done more of these slip claims than most people have had hot dinners. But the above should give you some food for thought. Deniability rates are still high, irrespective of the huge gaps in CHIMES left by defendants, so a more focused and structed approach will pay dividends.
A real-life example
One of the most high-profile slip accident cases in recent years was the death of a gentleman in a CO-OP store in Truro (I acted on this case). This led to a civil claim but also a criminal £400,000 fine.
Summing up, Cornwall council said:
‘This case demonstrated the importance of slip risks being adequately controlled. It should serve a warning… that signage alone is not an adequate control. Proactive measures must be taken to either prevent floors becoming slippery or precluding public access.’
But the reality is people simply do not do this. Yet, if you as the claimant solicitor do not ask the right probing questions, you will not be able to use this information to your clients’ advantage.
Slips are overlooked by the majority of organisations. The perception is:
- They are not too important.
- They are not overly expensive.
- We have insurance to cover them.
Insurers look at this very differently, because the £10,000 average claim multiplied by hundreds or thousands of cases adds up to very significant sums of money. And the insurers are seeking to drive these kinds of improvements within their client base, but it is happening only slowly.
In conclusion, there is a good opportunity to take advantage of this information over the months and likely years to come.
Tune your CHIMES to increase the success of your clients’ cases.
If you have suffered a fall at work resulting injury please contact Richard Meggitt, Solicitor at ASD on 0114 2678780 or [email protected].