Slipping, tripping and falling: are you liable?

/ Agents, Blocks of flats, Freeholders, Landlords, Leaseholders, News

Guest blog by Adrian Cormack *

Have you ever heard anyone sighing about “health and safety gone mad”? The Health and Safety Executive used to run a Myth of the Month page on its website to debunk the misrepresentations of health and safety legislation, including the banning of conkers, firemen poles and park benches.

You can still see the archive and look at cases the Executive’s Mythbusters Challenge Panel has dealt with here.  There still seem to be  school trips and fetes going on, so clearly someone is managing – and avoiding – the risks successfully. Common sense, with a measure of due diligence, prevails.

The same applies to the management of your building, including your block of flats.  In law, of course, we are ALL responsible for taking reasonable care to ensure that we do not endanger other people but, as the owner or manager of a block of flats, you have a special responsibility for common areas.

The duty to comply with the regulations falls on the landlord or person responsible for management, which could be a freeholder, an agent, or a director of a residents’ management or right to manage company.

If that’s you, then make sure you are taking adequate precautions and consider, insuring against your liability.

Some of the  most common type of accidents come under the ‘slipping and tripping’ heading.  Year on year, the Health and Safety Executive (HSE) reports  them to be the most common cause of accident in work and public places.

That said, if someone leaves a pram in the common hallway that causes a stumble, it will not be your responsibility as long as it has only recently been left there, is not allowed habitually to be parked in the passageway, you have made it clear to residents that they should not cause such obstructions (the lease may back you up on this), and you have evidence of the steps that have been taken to stop this reoccurring.

A torn carpet, on the other hand, would become your responsibility if you had not taken steps to reduce the risk immediately you became aware of it.  Such steps could be as simple as making good for the time being with a warning sign, and then calling in a carpet installer to effect repairs at the earliest possible opportunity.

It will usually be good practice, even in the smallest block, to undertake and document a risk assessment.  Look around the building and think about what could go wrong, note anything that looks as if it will need the urgent attention of your maintenance contractors, and ensure the work gets done.

A professional building survey may cover this as the surveyor will have a keen, trained  eye for hazards you may not notice. It will also make you aware of the risks posed by any loose tiles or tree branches that should give you concern etc. We recommend that you commission surveys every few years anyway, to ensure you are adequately insured.

Avoiding slipping, tripping and falling

The risk assessment is a moving target. Don’t just assess and file.  It’s a good idea to delegate someone to keep an eye on the situation and be ready to take action if a new hazard emerges.  Perhaps a new resident, with a designer bike he or she won’t leave outdoors, moves in or, say, the path ices up.

These volunteers do not take on sole liability: all of the directors and officers of the company still hold joint responsibility for accidents that could and should have been avoided.

We doubt that we can improve on the expert advice given by the Health and Safety Executive and there is plenty of useful information on their web site here as well as a hazard checklist with suggested action points.

The main way to avoid accidents is to encourage everyone to be vigilant and take common sense precautions.

As we said earlier, often a lease will prohibit blocking a hallway and passageway, which should make your life easier if you have leaseholders who try to insist on doing so.

Such problems, where residents want to safely store bikes and buggies – both of which can be expensive these days – are not uncommon.

So perhaps affected blocks of flats could collectively devise a solution? Maybe the hallway is wide enough to section off an area without compromising emergency exit routes, or perhaps a storage room could be allocated or a secure outhouse built?

Your liability

As a director of a residents’ management company you might be personally liable for injuries to residents and visitors to the building. The managing agents will have PI (professional indemnity cover), all you will have are your personal assets unless you have appropriate cover.

It may seem unfair, but that is company law.  As a director you take on personal liability, never mind that you are running a block of flats and not a multi-national.

If there was an accident on the premises the victim might have no choice but to seek recompense. If they broke a leg or dislocated a shoulder and were out of work for an extended period, they would need to cover their loss of income.

With so many people self-employed or working in the so-called “gig economy” these days, sick pay is not always available. They will still have bills to pay and may have no choice but to pursue you personally as a director.

Fortunately, most directors of residents’ management companies have the foresight to take out Directors and Officers Liability Cover. Policies written specifically for blocks of flats are very affordable, typically costing each leaseholder just a few pounds a year as part of their service charges.  If you don’t have it, then please call us and we could look to arrange cover regardless of whether your building is insured with us.

* Adrian Cormack is a Partner, Head of Personal Injury and a Specialist in Complex Brain Injury Cases and Catastrophic Injuries at Coles Miller Solicitors LLP, Poole.

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  The sole purpose of this article is to provide guidance on the issues covered. This article is not intended to give legal advice, and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and/or market practice in this area. We make no claims as to the completeness or accuracy of the information contained herein or in the links which were live at the date of publication. You should not act upon (or should refrain from acting upon) information in this publication without first seeking specific legal and/or specialist advice. Arthur J. Gallagher Insurance Brokers Limited trading as Deacon accepts no liability for any inaccuracy, omission or mistake in this publication, nor will we be responsible for any loss which may be suffered as a result of any person relying on the information contained herein.