Restaurant assistant who fell in kitchen has damages action dismissed after failing to prove claim he slipped on onion

A judge in the Court of Session absolved the defenders because he was “not persuaded on the balance of probabilities” that the pursuer’s accident was caused in the manner claimed.

Lord Turnbull heard that the pursuer Thomas Fleming was employed as a general assistant in the restaurant operated by the defenders Glendoick Gardens Limited at their garden centre between Perth and Dundee.

He sought damages for injuries sustained at his place of work on 20 June 2012, based upon the premise that he slipped on pieces of onion that had been left on the kitchen floor, causing him to fall and injure his left knee.

The pursuer’s case was based on breaches of his employer’s common law duties to take “reasonable care” to provide him with a safe place of work and to devise and enforce a safe system of work, along with breaches of regulations 9(1), 9(3) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

The issues were, first, whether the pursuer had established that the accident occurred in the way founded upon by him, secondly, if so, whether the accident was caused by breach of duty on the part of the defenders, and, thirdly, if so, whether the pursuer’s own negligence contributed to any extent to his accident.

The court was told that the pursuer’s work duties included clearing tables in the restaurant and removing dirty plates and cutlery to the dishwashing area in the kitchen, as well as taking various items from the kitchen to the restaurant.

On the day of his accident he was instructed by another employee to take two water jugs, each of which was almost empty, from the restaurant into the kitchen to be refilled and returned to the restaurant for use by customers.

The court heard that he carried the jugs on a tray through a short corridor in the kitchen, at which point he turned left to make his way towards the sink, but as he did so he slipped and fell to the ground injuring his left knee.

No one saw the pursuer fall but other members of staff who were nearby, or in other parts of the premises and heard a noise, came to help him.

Carol Hunter, the assistant manager of the restaurant, was in her office in the rear area of the kitchen when she was told that the pursuer had fallen.

The Accident Report Book, which was later completed by her in her office in the presence of the pursuer, described incident in the following terms: “Slipped on water from water jug that spilt. Hurt left knee”.

But in his evidence the pursuer explained that he did not spill any of the water and he denied that the information about the circumstances of his accident which had been entered into the Accident Report Book had been provided by him.

The evidence of another employee, Kirsten Duffy, who was in the dishwasher area of the kitchen at the time of the incident, was that when the pursuer was helped to his feet she saw about half of a handful of chopped onion on the ground in the area where he had been sitting.

However, the assistant manager and two other members of staff said there were no pieces of onion or for that matter any water in the area around where the pursuer fell, either while he was on the ground or after he had been helped up.

The pursuer argued that the defenders were in breach of their common law duties and the duties imposed by the regulations, while the defenders submitted that the pursuer had failed to prove there was any onion present on the floor, or that the presence of onion had caused him to slip.

In a written opinion, Lord Turnbull said: “Overall, the evidence satisfied me that the defenders’ kitchen premises were well-run and kept in a clean condition. There was good attention given to risk assessment and appropriate and effective training was given to employees. This view was reflected in the pursuer’s own evidence.

“There was no evidence of regular unattended accumulation of foodstuff or other conditions leading to risk. No witness spoke to seeing any pieces of onion on the kitchen floor near to where the pursuer slipped prior to his fall.

“In these circumstances I find that I prefer the evidence of the three competing witnesses to the evidence of Ms Duffy, with the consequence that am not persuaded on the balance of probabilities that there was any onion present on the floor in the area where the pursuer lost his footing.

“Accordingly, I am not persuaded on the balance of probabilities that his accident was caused in the manner claimed and I have to conclude that his action against the defenders must fail. In these circumstances it is not necessary to consider the question of whether the defenders would have been in breach of any duty had I been persuaded that the cause of the accident was as founded upon in the pursuer’s pleadings.

“For the reasons which I have outlined above I am not persuaded that the defenders are liable to make reparation to the pursuer and I will grant decree of absolvitor.”