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Contributory negligence in the workplace

Health and Safety and Contributory Negligence

Employment lawyers in Clifton, Bristol, have compiled a database of leading cases dealing with contributory negligence in the context of health and safety at work.

Contributory negligence means, in summary, that a person who suffers injury because of the fault of another person may have his/her compensation reduced where he/she has contributed to the cause of the injury.

Leading cases include:

Barclays Bank plc v Fairclough Building Ltd (No.2) (1995)

B engaged F as contractors to carry out maintenance work on two industrial warehouses occupied by B. The work of cleaning the asbestos roofs of the warehouses was subcontracted by F to C and by C to T. Neither T nor C had sufficient experience of the health risks of cleaning asbestos roofs. T used a high-pressure hose for the work. This caused asbestos slurry to enter the warehouses and to dry out, resulting in dangerous levels of asbestos contamination. An environmental health officer served a prohibition notice. Remedial works estimated to cost £4 million were required. The issue in the Court of Appeal was the extent of the liability of T and of C. The decision was as follows:

  • Neither T nor C could avoid liability for having failed to exercise reasonable care and skill.
  • Having regard to the weight of expert evidence on the publication of information about the risks of working with asbestos, any person cleaning asbestos with a high pressure hose had a duty to avoid extensive contamination of the surrounding area.
  • T’s liability to C should be reduced by 50 per cent by reason of C’s contributory negligence. This reflected the close relationship between T and C.

Fishwick v Lin Pac (1994)

F’s work involved loading large reels of paper into a machine. During the course of this operation, his thumb became trapped in the machine and was crushed. He claimed compensation from the employers.

The county court found that the accident had been entirely F’s fault. He, and other employees, had done the same job hundreds of times with no accidents. F had been in control of the operation and his injury had been caused by his own carelessness. It was possible, and usual, to do the job properly without risk to he arms or hands.

Sullivan v HWF Ltd (2001)

S was a director, shareholder and employee of H Ltd. His responsibilities included H Ltd’s health and safety procedures, including the preparation and implementation of the company’s safety assessments and work methods. One risk assessment had warned of the danger of bolts being left lying on the floor. S knelt and tripped on a bolt left on the floor by a colleague. He fell from a platform and suffered soft tissue injuries to his neck and left shoulder, a fractured elbow and a head injury. He claimed compensation from H Ltd. On behalf of the company it was argued that because S was responsible for health and safety matters, any breach of the legislation was his own fault. It was also argued that S’s level of contributory negligence was 100 per cent.

S’s claim succeeded. He had impressively and carefully prepared H Ltd’s health and safety documentation. It was his responsibility to ensure that methods and assessments were made and that H Ltd’s employees adhered to them.

S could not be expected to supervise workers for every minute of the day. There was a duty on all employees to take care of their own safety and that of fellow employees. S was not responsible for the presence of the bolt. S was contributorily negligent to the extent of one third because he had failed to see the bolt when he knelt down.

Binks v Securicor Omega Express Ltd (2004)

B was employed by D to load and unload parcels from box vans at its premises. The unloading process included the use of a retractable conveyor belt which moved into the rear of the van and speeded up the process of unloading. When the unloading was complete, the belt was retracted out of the van and B would also leave the van. The van driver would then be signalled to drive off. B alleged that he was injured when the belt was removed and the van drove off without warning, causing him to fall to the ground. On behalf of the employers it was argued that B had been riding on the belt as it was retracted, contrary to express prohibition, and that he had fallen off. This version of events was based on an entry in the accident book.

B claimed compensation for his injuries. At first instance his claim failed. Before judgment it was submitted on behalf of B that even if his version was disbelieved, he was entitled to put an alternative case in negligence, based on the employer’s version of events. The county court judge refused to allow this application on the basis that to do so would prejudice the employers, because they would have approached the evidence differently if they had known that the alternative case was to be put. B appealed to the Court of Appeal.

The appeal was allowed. The Court made the following points:

  • There was nothing objectionable in principle in a claimant putting forward a case based on material relied upon by a defendant, so long as there was evidence in support of it.
  • The judge’s approach had been flawed. No regard had been given to the wider interests of justice and how that could be achieved by consequential provisions as to costs. The issue of fact was whether the accident happened in the way described by the claimant or the defendant and permission to amend the statement of case should have been given, because there was no significant prejudice to the defendant.
  • Liability was found against the employer for driving off without giving proper warning to B. B was also to blame for riding on the conveyor belt, which he ought to have known was a foolhardy thing to do. B’s contributory negligence was assessed at 50 per cent.

Tasci v Pekalp of London Ltd (2001) 

T was employed by P as a wood machinist. He was a Kurdish refugee who spoke little English. He told P that he had experience of woodworking machinery. This was untrue. A director of P, who was aware of T’s background, showed him how to operate a bench-mounted circular saw, gave him seven specific safety instructions and walked past the machine at half-hourly intervals to ensure that T was following his instructions. Three weeks later T injured his left hand while operating the saw. He claimed compensation from P in negligence and for breach of statutory duty. At first instance it was held that P was not liable. The accident had occurred because T had operated the machine from the wrong side. T appealed to the Court of Appeal.

The appeal was allowed. Given T’s background, the degree of instruction and supervision and the system of work fell short of what was required by the common law.

It was not sufficient to have demonstrated how the work should be done. Explanation had to be given as to why it was to be done in that way and what dangers might arise if it was not done in that way. T must have been aware of the danger in which he was placing himself in working the machine from the wrong side and had to bear a substantial share of the blame for his accident which would be assessed at 60 per cent.         

Jayes v IMI (Kynoch) Ltd (1984)

J, a very experienced worker, used a rag to wipe grease from a moving part of a power press machine. The rag became caught up. He tried to pull the rag out bt the machine pulled his finger in and he lost the tip of his finger. He admitted that he had done a very foolish thing, a “crazy thing”. At first instance, the court found that there had been a breach of statutory duty but J had ben 100 per cent contributorily negligent. On appeal to the Court of Appeal, the appeal was dismissed.

Gunter v John Nicholas & Sons (Port Talbot) (1993)

G, an experienced wood machinist, operated the unguarded cutter of a woodworking machine which carried on revolving for some time after the stop control had been operated. As a result, he suffered injury to his hand. He claimed compensation from his employers on the basis of their negligence. At first instance the court found that the employers had been negligent in that they had failed to fit an effective stopping mechanism to the machine. G’s contributory negligence was assessed at 25 per cent. G appealed to the Court of Appeal.

That Court ruled that, in the light of G’s familiarity with the machine and the extent of his experience, the contributory negligence assessment had been wrong. G had been two-thirds to blame and contributory negligence should be assessed accordingly.

King v Smith and Another (1994)

K, an employed window cleaner, suffered serious injuries when he fell from a second floor window while leaning it. He had not been able to clean the window from the inside, nor to use the “housemaid” position (sitting on the sill with his legs inside the room). He stood on the outside sill, lost his balance and fell.

The employer’s rules stated that when employees were working on the outside of windows more than six feet above ground, then such windows must be cleaned as far as possible from the inside or by sitting on the window sill. If windows could only be cleaned by standing on the outside sill, then safety belts should be used. K claimed compensation from his employer.

The Court of Appeal found as follows:

  • The employer was 70 per cent to blame.
  • The rules were inadequate. They should have stated that employees were prohibited from going onto outside sills where windows were so constructed that they could have been cleaned from the inside if working properly.
  • It was well appreciated that standing on an outside window sill was a dangerous practice and the main cause of serious accidents involving window cleaners.  

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