In Sharp v Top Flight Scaffolding Ltd, the claimant was so badly injured in the accident that at trial he was a protected party represented by his brother as litigation friend.
Mr Sharp was a 43-year-old scaffolder employed by the defendant, who fell while attempting to climb down the outside of scaffolding that he himself had constructed because there was an absence of shorter ladders internal to the scaffolding, or a long external ladder. The latter was missing because it was impossible to manipulate such a ladder through the terraced property on which he was working.
The claimant’s case was that if the defendant had undertaken a risk-assessment pursuant to the Management of Health and Safety at Work Regulations 1999, or followed the guidance of the National Access and Scaffolding Confederation, then he would have been provided with a method statement identifying the need for the incorporation of internal ladder access within the scaffolding. The defendant’s argument was that the claimant was an experienced scaffolder, and perfectly capable of assessing the work and erecting a safe scaffold.
The claimant succeeded on primary liability mainly because the defendant had breached its common law duty of providing him with any adequate training. Incidentally, there is also a statutory breach of the Provision and Use of Work Equipment Regulations 1998 in this respect, which surprisingly does not feature in the judgment. Mr Sharp’s alleged previous qualifications in scaffolding construction were not verified by the employer, nor did the employer have any documented training records. In fact, the only document which the defendant could produce was a ‘user’s guide’ which had simply been placed in the claimant’s kit bag, but the defendant had no proof that the claimant had ever read it.
The issue of contributory negligence was less clear cut. The court held that the case was not one of ‘mere inattention’, a feature of so many contributory negligence cases, but a deliberate action on the claimant’s part to undertake an ‘inherently dangerous manoeuvre’. The judge simply lifted the 60% contributory negligence assessment from the Court of Appeal’s judgment in Sherlock v Chester City Council  EWCA Civ 201. That case adopted the assessment of judges in the High Court and Court of Appeal, who had previously looked at the ‘unpredictable and foolish’ actions of an employee (Duncan v Acrabuild Ltd  QBD), and where an employee had ignored ‘obvious and elementary safety precautions’ (McCook v Lobo  EWCA Civ 1760).
While an experienced claimant can be criticised for adopting a dangerous practice, it is disappointing that once more the High Court has pitched the extent of the claimant’s responsibility at higher than 50% when there was a breach of statutory duty. In Toole v Bolton Metropolitan Borough Council  EWCA Civ 588, Buxton LJ, in a case involving the Personal Protective Equipment at Work Regulations 1992, expressed concern about the attachment of a 75% contributory negligence finding to the claimant. He stated: ‘It is, I am bound to say in my experience, very unusual indeed for there to be a finding of contributory negligence at a level of 75%. If, in a statutory duty case, a judge finds himself driven in that direction, he should, in my judgment, seriously consider that he is not, in fact, finding that there has been no causal connection at all between the breach of statutory duty and the injury.’
A 60% finding is heading very much in that direction. This employer had ignored the Work at Height Regulations 2005, the Provision and Use of Work Equipment Regulations 1998, and the Management of Health and Safety at Work Regulations 1999. Additionally, he had failed to follow his own health and safety code of practice, as well as the external guidance from the governing body of the scaffolding industry. The judge even mocked the defendant’s director, who tried to argue that the claimant was better trained than he himself, by pointing out that in fact the director had had no training whatsoever. Despite this, and despite such stark omissions on the part of the employer, the judge found the claimant 60% to blame.
Palfrey v WM Morrisons Supermarkets PLC 
The Court of Appeal recently considered contributory fault in the occupier’s liability arena. Mrs Palfrey, a customer at Morrisons in Plymouth, tripped over a stacking trolley used by an assistant manager to stack shelves. The trolley was L-shaped in the sense that there was a raised vertical side and then a long low bed with wheels at each corner. The claimant, in attempting to alert her husband to the fact that she had found some pork pies, turned to shout to him, took a step or two towards the trolley, and misjudged its position before tripping and falling to the floor, breaking both her arms in the process.
The court had first to decide whether there was a foreseeable risk of injury and, if so, if the defendants had taken all steps to alleviate the danger. Moses LJ, in a unanimous appeal court, found that those walking up and down the aisles of a supermarket are attracted to, and are expected to be attracted to, what is on the shelves. Shoppers do not expect to have to look towards the ground. In addition, they will be distracted by fellow shoppers and, in this instance, the claimant was on a quest for pork pies.
The court suggested that the trolley in question was one that would normally be found in a do-it-yourself store, or near a carousel in an airport rather than in a supermarket. Supermarkets tend to have roll cages. The appeal court, therefore, found that there was a foreseeable risk of injury to the claimant, while accepting that there was not the obligation on the part of an employee of a supermarket to put someone on guard by the trolley to give formal warnings to those who strayed towards it. In terms of contributory fault, and in the view of the judge at first instance, the trolley was there to be seen.
But Moses LJ felt it was ‘plainly wrong’ to view Mrs Palfrey’s fault as equal to that of the supermarket. He said: ‘The whole point of a tripping hazard is that it presents a danger to one who might not expect to have it in mind as they move into a position of danger.’ He therefore substituted the judge’s findings of a 50/50 liability division with a finding of 80/20 in the claimant’s favour.
This decision is important. There are many potential tripping and slipping hazards in supermarkets. It is a common defence that the claimant is contributorily to blame for not seeing the hazard on which they slip/trip. The reality is, of course, as his lordship points out, that one visits a supermarket not to check for hazards that lurk on the floor surface, but to buy goods that are stacked on shelves rising, at times, above head height.
It is interesting to see this Court of Appeal reducing contributory fault to 20%. The contrast in the degree of blame attaching to the employee in Sharp is difficult to explain, especially as he ought to have had greater statutory protection than a customer in a supermarket.
These cases show that assessing contributory negligence remains somewhat arbitrary. Mr Sharp’s injuries were, sadly, extremely serious, but many such cases will fall within the new fast-track limit. As such, one wonders how much evidence can be adduced on an issue which potentially has a significant impact on the damages an injured claimant will recover, particularly if the courts continue to stray towards what some may think is a disproportionate assessment of blame on the part of injured claimants.
Simon Allen, Slater & Gordon