The claimant slipped on the contents of a yoghurt pot which had spilled onto the floor of the supermarket. The defendants gave evidence of frequent inspection and sweeping of the supermarket floor with instructions to the staff to clear up spillages wherever they were noticed, but they did not adduce any evidence as to when the store had last been brushed before the plaintiff’s accident. There was no evidence before the Court as to whether the floor had been brushed a few moments before the accident or as long as an hour or an hour and a half earlier so that the Court was left without information on what was an important matter. In those circumstances the trial judge considered that prima facie the accident would not have happened, had the defendants taken reasonable care.
Held: It was not for the plaintiff to have to show how long it had been there. This sort of accident did not happen in the ordinary course of events if the floor was kept clean and spillages dealt with as soon as they occurred. The probability was that the spillage had been on the floor long enough to be dealt with. Hence there was an evidential burden on the defendant to show that accident did not arise from want of proper care on their part. Ormrod LJ dissented.
Megaw LJ said: ‘It is for the plaintiff to show that there has occurred an event which was unusual and which in the absence of explanation is more consistent with fault on the part of the defendants than absence of fault.’ and
‘When the plaintiff has established that the defendants can still escape from liability they 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 the 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 counsel for the defendant in any possible argument – and he did not shrink from it – was: ‘never mind whether we had no system at all; still, as the plaintiffs 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.’ Devlin J’s statement in Richards was not a statement of general principle.
Lawton LJ said: ‘Such burden of proof as there is on defendants . . is evidential, not probative. The trial 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.’
Judges: Megaw LJ, Lawton LJ , Ormrod LJ
References:  1 WLR 810,  1 All ER 219
- Richards -v- W F White and Co, , Restricted, ( 1 Lloyd's Reports 367)
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- Tedstone -v- Bourne Leisure Ltd (T/A Thoresby Hall Hotel & Spa), CA, Cited, (Bailii,  EWCA Civ 654)
- Harrison -v- Derby City Council, CA, Cited, (Bailii,  EWCA Civ 583)
- Hall -v- Holker Estate Co Ltd, CA, Cited, (Bailii,  EWCA Civ 1422)