Contributory negligence in work accident cases
Contributory negligence is an issue which can arise in many personal injury cases. Essentially, it means that the injured party’s damages may be reduced if they are found to be partly to blame for the accident itself or to have contributed to the severity of their injuries in some way.
The starting point is section 1 of the Law Reform (Contributory Negligence) Act 1945 which states:
‘Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage’.
Therefore, in road traffic accidents for example, failure to wear a seatbelt may result in a judge finding that the injured person was up to 25% to blame for their injuries and their damages will be reduced accordingly.
Contributory negligence is generally less clear cut in work based accidents however. When considering and assessing contributory negligence, the Court will consider whether the employee acted reasonably in taking the risk (AC Billings -v- Riden). The Court will also look at the age and experience of the employee as to what standard should be applied to them. For example, in general, less is expected of a young and newly qualified employee than of one who has many years of experience. However, regardless of age, if the employee shows a reckless disregard for their safety and their employer’s practices and procedures, it is far more likely that there will be a finding of contributory negligence.
In addition, a statutory duty is also placed on the employee to use equipment in accordance with their training and to report to their employers concerns about health and safety at work – see regulation 14 of the Management of Health and Safety at Work Regulations 1999.
It can therefore be difficult to assess at the start of a case whether your client may be subject to a finding of contributory negligence. I recently acted for a client who was employed to clean cars and other vehicles. His employers also sold vehicles from their yard and it was therefore part of my client’s job to move three very large and very heavy metal gates from the entrance of the yard in the morning and to replace them each evening so that the yard could be locked up. The gates were removed each morning to encourage passers by to view the vehicles for sale.
On the day in question, the gates had been removed in the morning and my client was due to replace them. He removed the plastic tie holding the gates together and as he waited for a colleague to assist him, the gates toppled forward and fell onto him. My client was trapped underneath for several minutes before help arrived, sustaining injuries to his shoulder and back. It was an extremely frightening experience for him and he suffered nightmares and flashbacks for some time after the accident.
I sent a letter of claim to his employer’s insurers who admitted primary responsibility for the accident but alleged that my client was 25% to blame. They stated that he had failed to adhere to the training and instruction he had been provided with and had attempted to move the gates on his own when he should have waited for assistance. In addition, they alleged that he had failed to take care for his own safety. They then made an offer on liability on the basis that my client was 25% to blame.
I took a detailed witness statement from my client in which he said that he had never received any formal training. He was simply told one day to help with the task and shown briefly what to do. The task involved lifting the gates on to a trolley which he would then wheel across the yard and the gates would then be fastened together and rested against the wall until the end of the day when the process would be reversed. My client said that he and several of his colleagues had complained about the job as being unsafe but that nothing had been done about it.
My client was a clear historian and I advised him that he should not accept any reduction for contributory negligence. My view was that the task was inherently dangerous and his employer had failed in their obligations under the Manual Handling Operations Regulations to minimise the risk of injury to him and to provide proper training and information on how to handle loads correctly.
The case progressed and was listed for trial in October of this year. At both disclosure and witness statement stage, the employers failed to provide any documentation to show that my client had received any formal training or that risk assessments had been carried out in respect of the task.
In view of this, the employers’ insurers eventually dropped their allegations of contributory negligence and after negotiations, I was able to achieve a favourable settlement for my client.
Contributory negligence can be a difficult issue in employer’s liability cases and it is therefore sensible to check carefully as to what training your client has received; what precautions were taken in the workplace and what documentary evidence of it is available before advising your client that they are likely to be subject to such a finding.