Advancing and defending escalator claims

Notwithstanding that escalator claims rarely reach the higher courts, an estimated 2,000 such accidents are thought to occur in the UK each year (TfL, 2019; Beards, Frost, Healey et al., 2022). Escalator claims involve issues of negligence and occupiers’ liability that are routine for lawyers working with claimants and defendants alike. However, most escalator claims are advanced without recourse to the plethora of industry standards and guidance surrounding escalator design and operation. In this article, Dan Jacklin endeavours to show how to better leverage the industry guidance and data to improve prospects of succeeding or defending an escalator claim.

Transport for London (‘TfL’), which operates one of, if not the largest, networks of escalators in the UK at its London Underground stations, reports that 40% of accidents occur on escalators (TfL, 2017). Between 2015 and 2016, 403 escalator-related accidents required immediate hospital attendance for treatment, triggering a RIDDOR report to be filed (Beards et al., 2022). Obtaining the RIDDOR report and any investigation notes from the local Environmental Health team can provide important contemporaneous information on the circumstances of the accident.

Defendants will often rightly point to escalator accident statistics. Escalator accidents occur at a ratio of approximately 1:208,525 passenger journeys (TfL, 2019). The probability of a fatal accident at a TfL station is approximately 1:680 million passenger journeys, which is a testament to the work TfL puts into preventing escalator accidents on its network. Claimants will likely respond by pointing out the very large footfall that escalators often experience. The accident frequency ratio highlighted above would mean an escalator accident occurs on TfL’s network approximately once every 10.7 hours. It is no surprise that TfL has invested considerable resources into leading the way nationally on escalator safety by conducting research and trialling preventative measures to improve safety (TfL, 2018). As such, the prioritisation and investment associated with preventing escalator accidents should, therefore, be sizeable if an operator is to apportion its budget according to its biggest risks. Escalator operators may find they are underinvesting compared to the size of the risk presented by escalator accidents.

Slips, trips, and falls are the most common aetiology of escalator accidents. Analysis by TfL of Docklands Light Railway injuries in 2016-17 showed that 79% of slips, trips and falls were on escalators and platform areas (TfL, 2018). A 2022 study found that 93% of escalator accidents reported to the UK’s HSE involved falls (Beards et al., 2022). One of the key differentiating features of escalator falls is that they will often be considered under the HSE guidance as falls from height (HSE, 2024). Claimants may benefit from the additional emphasis HSE guidance places on the measures preventing falls from height. For example, the more stringent requirements around lighting, signage, surface design and quality.

The aetiology of escalator falls requires claimants and defendants to address issues ranging from mechanical defects, surface contamination, lighting conditions, signage, human factors, advertisement placement, emergency arrangements, cleaning, maintenance, and inspection regimes. Around 20% of accidents involve a passenger carrying out another task, and around 15% result from not holding the handrail (Xing et al., 2019). Some of the UK’s oldest escalators date back to the early twentieth century, which can make bringing claims involving design aspects challenging for claimants (Stannah, 2023). Defendants often benefit by relying on the much weaker industry guidance in place at the time of the escalator’s installation.

The escalator environment can also be a key source of fall risk. For example, escalators at Kings Cross experience more accidents involving luggage than those at St John’s Wood (TfL, 2016). Escalators exposed to the elements, either directly or indirectly, are likely to experience more slip accidents due to excess contamination and require more frequent cleaning (HSE, 2011). The difference in customer profile of those using escalators can be underutilised by claimants when challenging the adequacy of risk assessments. When pursuing escalator claims, it is important to obtain sufficient information from the escalator operator to understand its customer base and contextualise what is reasonably safe in the circumstances. For example, some escalator risk assessments fail to identify the groups most at risk, those being the over 60s and, more commonly, women (Xing, Dissanayake, Lu et al., 2019; Beards et al., 2022). It should not be assumed that because one escalator requires a particular preventative measure, so must another.

One of the challenges for escalator operators is that falls can result in the widest spectrum of injury, from trivial to fatal, and injury severity varies according to individual, task, and environmental factors. Whilst fatal accidents on escalators are vanishingly rare (TfL, 2019), the potential for serious injury cannot be understated. One of the most challenging aspects defendants face in such claims is demonstrating the cleaning regime has been executed effectively. In falls caused by slipping, claimants should request sufficient cleaning records to establish that the surface is not unduly affected by contamination. Carrying out a pendulum test for around £500 soon after the accident can provide compelling evidence that the cleaning regime or material selection for the floor surface is inadequate (UK SRG, 2024). Equally, positive pendulum test results obtained by the defendant can be highly persuasive in defending escalator slipping accidents. Escalator operators need to analyse the aetiology of escalator falls and design, implement and maintain a programme of controls to provide early warning of significant deteriorations in the quality of escalator cleaning regimes.

Operators should be mindful that escalator-related litigation can and does take place in the criminal and civil courts. In 2016, Multinational Otis Ltd and Complete Escalator Services were fined for putting an escalator with a missing step back into operation after maintenance (WBC, 2016). Escalator operators should consider, in their assessment of whether their preventative regime is proportionate, the unenviable possibility that following an escalator accident, an operator may have to litigate on three fronts if faced with a prosecution, enforcement activity, and a personal injury claim.

Personal injury claims are typically brought under negligence and occupier’s liability. Most personal injury claims involving escalators are pursued under the Occupier’s Liability Act 1957 and follow the principles set out in the context of slip cases (see Ward v Tesco (1976) 1 WLR 810; Aprés Lounge v Wade [2023] EWHC 190). Those principles are that the claimant must prove, on the balance of probabilities, that there was a danger. The defendant then has the evidential burden of showing they exercised reasonable care with respect to that danger on the day in question. The court will likely be assisted on the issue of what is reasonable by expert evidence and reference to the contemporaneous standards and guidance existing at the material time.

Broader consideration of lighting, advertisement, signage and other design and operational aspects are considered by the main industry standards for escalator safety. These can assist claimants to strengthen allegations of breach or provide robust evidence of compliance by defendants. Escalator standards and guidance play a key evidential role when bringing or defending escalator claims. British standards for escalator design and operation have been in place since at least 1958 (BS 2655), European standards from around 1995 (BS EN 115), and global ISO standards from around 2022 (ISO 16764). Various standards apply, such as BS 8300, BS 5656, BS 7801, EN 13015, ISO 14799, and the upcoming release of ISO 8103. The HSE published guidance on escalator safety in 2011, but guidance on fall prevention dates back much further (HSE, 2011). The Lift and Escalator Industry Association has also produced guidance on escalator safety (LEIA, 2009). Whilst standards and guidance set out what the industry deems reasonable in the circumstances, more research is still needed on the effectiveness of different types of preventative measures.

TfL has produced one of the few sources of data from the UK on the effectiveness of preventative measures (TfL, 2016). There is always a lag in the latest science making its way into industry standards. There is a further lag before widespread adoption by escalator operators occurs. Claimants may find themselves struggling to evidence that the orthodox position of escalator operators has fallen too far behind that of industry standards or the latest science. This frontier is particularly acute when it comes to claims by those with disabilities. Standards invariably have the typical user in mind when they set their requirements, leading to a net disadvantage in the safety coverage provided to those with different needs.

Recent research by TfL found that blue footprints, also known as passenger positional guides, were associated with a 27% reduction in accidents and a 21% increase in the frequency of desirable customer safety behaviours (TfL, 2018). A strong colour differential on the step edge reduced accidents by 36% and increased desirable behaviours by 15%. Messages embedded on the handrails led to a 24% reduction in accidents and a 17% increase in desirable behaviours. London City Airport achieved a 60% reduction in escalator incidents following a poster campaign and onsite Travel Safe Officers promoting using lifts for customers carrying luggage. Network Rail has also been proactive in setting out new station design guidance incorporating several important escalator safety controls (Network Rail, 2019, 2021). However, these specific controls are yet to be widely adopted by escalator operators. This is notwithstanding that these measures will likely improve safety the most amongst those with disabilities.

The lack of available data, case law from the higher courts, and academic research on escalator safety is part of the landscape of bringing or defending an escalator claim. In the last few years, the HSE and the ORR have shown interest in setting up better reporting and analysis of escalator incident data (Beards et al., 2022; TfL, 2018). Defendant escalator operators would be best advised to review their preventative measures against the available guidance to ensure they are not caught off-guard by future claims, enforcement action, or a prosecution following heightened regulatory attention. Likewise, legal professionals should familiarise themselves with the potential issues of bringing or defending an escalator claim/prosecution but also consider using the plethora of industry guidance available to improve prospects of a successful outcome.

With thanks to Dan Jacklin, a Pupil at Farrar’s Building. For further information or to instruct any of our Members, please contact our Clerking Team.

References

Aprés Lounge Limited v Nicolle Wade [2023] EWHC 190.

Beards, P., Frost, G., Healey, N., Yeomans, L., Shaw, R., Mills, C., Drahota, A. and Dicks, M. 2022. A new Human factors incident taxonomy for members of the public (HFIT-MP): An investigation of escalator incidents. Safety Science, 147, pp.1-11.

BS 2655. Specification for lifts, escalators, passenger conveyors and paternosters.

BS 5656. Safety rules for the construction and installation of escalators and moving walks.

BS 7801. Escalators and moving walks. Code of Practice for safe working on escalators and moving walks.

BS 8300-2:2018. Design of an accessible and inclusive built environment. Buildings – Code of Practice.

BS EN 115. Safety of escalators and moving walks.

BS EN 13015. Maintenance for lifts and escalators. Rules for maintenance instructions.

HSE and SAFed. 2011. Guidelines for the safe operation of escalators and moving walks. Issue 1, 24 May. Safety Assessment Federation, pp.1-51.

ISO 14799. Comparison of worldwide escalator and moving walk safety standards.

ISO/DIS 8103. Escalators and moving walks. Part 1: Safety requirements.

LEIA. 2009. Guidance on the management of lifts, escalators, and similar products. Published in April, pp.1-20.

Network Rail. 2019. Planning and designing for safer escalator use at stations. [online]. Available at: https://www.networkrail.co.uk/wp-content/uploads/2019/03/Planning-and-designing-for-safer-escalator-use-at-stations.pdf accessed 8 March 2024.

Network Rail. 2021. Inclusive Design – Design Manual NR/GN/CIV/300/04. [online]. Available at: https://www.networkrail.co.uk/industry-and-commercial/supply-chain/existing-suppliers/buildings-and-architecture-design-guidance/ accessed 8 March 2024.

Stannah. 2023. Escalator history and its inventors. [online]. Available at: https://blog.stannahlifts.co.uk/the-rise-of-escalators-a-history accessed 8 March 2024.

TfL. 2016. Safety, Accessibility and Sustainability Panel, Improving escalator safety, 30 June 2016. [online]. Available at: https://content.tfl.gov.uk/sasp-20163006-part-1-item10-improving-escalator-safety.pdf accessed 8 March 2024.

TfL. 2017. Written evidence from Transport for London (RLS0028). [online]. Available at: https://committees.parliament.uk/writtenevidence/79304/html/ accessed 8 March 2024.

TfL. 2018. Health, Safety and Environment Quarter 3 2017-18 Report, p.23. [online]. Available at: https://content.tfl.gov.uk/health-safety-and-environment-report-2017-18-q3.pdf accessed 8 March 2024.

TfL. 2019. FOI-3265-1819. FOI request detail. LU escalators. [online]. Available at: https://tfl.gov.uk/corporate/transparency/freedom-of-information/foi-request-detail?referenceId=FOI-3265-1819 accessed 8 March 2024. TfL reported 816 million passenger journeys on its network in 2017-18. During that period, TfL reported 3,913 escalator accidents across its 448 escalators and one fatal accident. Approximately 60% (816 million) of those journeys involved using an escalator. During the period 2017 to 2018, escalator accidents occurred at a frequency of 1:208,535 passenger journeys. TfL data shows that fatal accidents occurred at a frequency ratio of 1:680 million passenger journeys.

UKSRG. 2024. The BS 7976 Pendulum. [online]. Available at: https://www.ukslipresistance.org.uk/publication/introduction-to-the-pendulum-tester/ accessed 8 March 2024.

Ward v Tesco Stores Ltd (1976) 1 WLR 810.

Welwyn Hatfield Borough Council v Multinational Otis Ltd and Complete Escalator Services Ltd (2016) Unreported, St Albans Crown Court, 12 February.

Xing, Y., Dissanayake, S., Lu, J., Long, S. and Lou, Y. 2019. An analysis of escalator-related injuries in metro stations in China, 2013-2015. Accident Analysis & Prevention, 122, pp.332-341.

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