Contributory negligence

Sherlock v Chester City Council (CA) 26 February 2004

How do the courts deal with contributory negligence when there has been a breach of statutory duty? In Sherlock, the Court of Appeal reviewed the decision of Lord Justice Buxton in Toole v Bolton Metropolitan Borough Council, CA 18 April 2002 before finding the claimant 60% at fault for his accident.

He was a 28-year-old tradesman with many years' experience as a site joiner.

He lost his left thumb and index finger while using a circular saw to cut fascia board.

The boards, which were flexible and had a tendency to bow, extended beyond the length of the workbench.

The claimant did not seek the assistance of a colleague to secure the fascia board nor a second workbench to avoid the 'kick back' which may have been the cause of his accident.

The claim was pursued, among other things, on the basis of breaches of regulations 8(1) and 9(1) of the Provision and Use of Work Equipment Regulations (PUWER) 1998 in respect of lack of health and safety information about the work equipment and lack of adequate training.

Both engineering experts at the trial agreed that a risk assessment would have identified the need for a run off table or a second man.

No risk assessment was carried out.

What is interesting is that Lord Justice Latham stated: 'I cannot see that the risk assessment needed to have been a formal procedure envisaged by regulation 3 of the Management of Health & Safety at Work Regulations 1999; but at least there should have been some formal assessment...

identifying the need for the run-off table or the presence of the second man'.

One wonders why he took the view that the formal procedure could be avoided.

As he later went on to say: 'The purpose of a risk assessment in a case such as this is to ensure that what may appear to be obvious is, in truth obvious, in the sense that both parties have appreciated the risk'.

Precisely so.

That is the point of a proper formalised risk assessment structure.

This case involved a circular saw; the consequences of an accident with such a saw were likely to be serious.

For the Court of Appeal to suggest in such cases that informality in risk assessment is appropriate, is unfortunate.

One could ask, what is an 'informal' risk assessment?

The claimant succeeded, but was found to be contributorily negligent to the extent of 60%.

The court referred to the judgment of Lord Justice Buxton in the Toole case.

Unfortunately, Lord Justice Latham has only extracted a single sentence from the judgment and quotes Lord Justice Buxton as saying: 'It is not unusual for there to be marked findings of contributory negligence in a breach of statutory duty case'.

What he fails to do is complete that sentence, which should have continued '...

and it is, I am bound to say my experience, very unusual indeed for there to be a finding of contributory negligence at the level of 75%'.

Secondly, Lord Justice Latham suggests that there may be a higher level of contributory negligence found where the case is not one of 'momentary inattention' but where 'the risks have been consciously accepted by an employee'.

The fact is that in Toole the case was not one of momentary inattention.

The claimant knew that there were better gloves available (albeit they wouldn't have avoided the risk of injury) and chose not to wear them.

Mr Sherlock was held to be 60% to blame because he could have made himself a run-off bench or ensured that another employee was there when he cut the fascia board.

This decision seems unreason-able.

The defendants did not risk-assess the task.

The defendant's site supervisor stated that 'on most of the occasions' when he saw the appellant using the workbench saw he was being assisted by another worker.

The inference being that on some occasions he was not assisted.

The employers breached the PUWER 1998 and yet, despite this, are found less responsible than the claimant.

Lord Justice Buxton's approach does seem more appropriate.

It is difficult to understand why, when statute lays down an obligation on the employer, the employer's failure to carry out that obligation can result in an employee being found more responsible for an accident than the employer.

The concept of contributory negligence is becoming more and more unclear.

The Court of Appeal seems to provide inconsistency in its judgments.

However, claimants should still be reluctant to agree to a reduction by contributory negligence of more than 50% in a breach of statute case.

By Simon Allen, Russell Jones & Walker, Sheffield