Contributory negligence and breach of statutory duty

Cooper v Carillion PLC; Court of Appeal, 2 December 2003; Lords Justice Keene and Scott Baker

With the proper application of the framework directive and the resulting health and safety regulations the task of deciding primary liability should be simpler, albeit that recent decisions of the Court of Appeal, for instance Yorkshire Traction v Searby (unreported) suggest otherwise.

The battle on liability is more likely to centre on the degree of contributory negligence which attaches to the claimant.

In recent years the Court of Appeal has stated that the description of 100% contributory negligence is 'unhelpful' (Lord Justice Sedley in Anderson v Newham College of Further Education, 2002 EWCA CIV 505), and that when there is a breach of statutory duty employers should maintain responsibility for at least 50% of the blame (Lord Justice Buxton in Toole v Bolton Metropolitan Borough Council, 2002 ECWA CIV 588).

In the present case, the trial judge found the claimant 10% to blame.

He appealed.

The facts were unambiguous.

There were holes in the floor of the work area/building site at which he was employed.

These holes were covered in wooden boards which were nailed down and marked with a sign.

There were lots of pieces of wooden boarding lying on the floor of the workplace.

He needed some wood and he and his foreman lifted an unsecured and unmarked wooden sheet off the floor and stepped forwards.

In doing so he fell into a hole which was beneath the sheet of wood.

The claimant succeeded in proving fault on the part of the employer because there were many sheets of such plywood board lying around, the board was not nailed down or marked with a sign, and the lift was made with his supervisor.

However, the judge found that he was 10% to blame because all he had to do was look underneath the piece of plywood to see whether there was a hole.

The Court of Appeal judges batted away the defendant's argument that they should not interfere with an apportionment of liability by fulfilling one of their primary functions, namely, drawing an inference from agreed facts.

They unanimously found for the claimant to 100%.

Of note is a comment by Lord Justice Keene building on the decision of Lord Justice Buxton, referred to above, that 'where there has been a breach of statutory duty by the employer, as in the present case, it is important to ensure that the statutory requirement placed on the employer is not emasculated by too great a willingness on the part of the court to find the employee has been guilty of contributory negligence'.

Whether a 10% finding is akin to inadvertence is debatable.

Interestingly, Lady Justice Hale (prior to her elevation to the House of Lords) granted leave to appeal on the basis that a 10% finding of contributory negligence was 'unusual'.

Therefore, it is my view that where there is a breach of statutory duty, contributory negligence - if it is found - will generally fall within the 20% to 50% bracket.

By Simon Allen, Russell Jones & Walker, Sheffield