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Contributory negligence -
justice or highway robbery

What Is Contributory Negligence?

This is an argument often raised by Lawyers acting for the other-side namely that you contributed to the fact that an accident occurred or to the injury you sustained. The most commonplace example of contributory negligence is not wearing a seat belt and to then be involved in a road traffic accident In general terms your Damages can then be reduced by 25% or more.

What Is The Effect Of A Finding Of Contributory Negligence?

If you are held to be partly responsible for your accident then this will reduce the Damages you receive. The compensation will be reduced on a percentage basis according to what percentage of the blame a Judge attributes to your own actions.

Where's The Justice?

The whole concept of contributory negligence can seem incredibly unfair to Claimants. Together with your Solicitors, you have worked hard to prove the negligence of your Employer in, for example, allowing a corridor to become wet and slippery without displaying any warning signs. Clearly, you would not have slipped if the corridor had been kept dry. Had warning signs been in place, you would have been alerted to the danger posed by the wet surface a lot sooner and taken appropriate action to avoid injury. So how can the Home Office, who have finally admitted primary responsibility for your accident, then turn around and seek to reduce your compensation by arguing that you were partly to blame?

Well, whilst your Employer is under a duty to minimise, so far as is reasonably practicable, the risk of injury to Employees, you are also under a duty to take as much care for your own safety as possible (enshrined in Section 7 of the Health and Safety at Work Act). There is a standard argument put forward by the Home Office in slipping cases, (such as the example above), to the effect that if an Employee slips on something which is significant enough to be a hazard, then it was a hazard which was there to be seen. This argument often finds favour with the Courts. So in our example, a judge could conclude that the Claimant would or should have seen the water on the floor surface of the corridor and should either have avoided walking on the surface at all or, proceeded with extra caution so as to prevent himself from slipping.

Relevant considerations here would be:

• The colour and composition of the flooring.
• The colour and nature of the spillage.
• The extent of floor area covered by the spillage.
• The distance already covered by the Claimant on a wet floor before he realised it was hazardous.
• The speed at which he was proceeding - we all know we are expected to respond to Alarm Bells briskly while never running.
• The extent to which, if at all, the Claimant knew or, should have known that Cleaning was due to take place at or about that time.

In What Circumstances Is Contributory Negligence Established?

In addition to slipping accidents described above, contributory negligence can also be found in cases involving:-

1. Manual Handling

In Goodchild v Organon Laboratories Ltd (2004), the Claimant Employee injured her back when she attempted to lift a box weighing approximately 52lbs onto a table. She established that her Employers were primarily responsible for her injury on the grounds that her Employer had failed to carry out any Risk Assessment had failed to give her any Manual Handling Training and had failed to provide her with any information with regard to the weight of the box.

The Defendant argued, however, that there should be a significant finding of contributory negligence against the Claimant on the basis that she failed to have regard to the medical advice of her Doctor to avoid lifting for a period of 5 months following a previous back injury, had failed to assess the weight of the box by looking at its contents, had failed to seek assistance that was readily available to her and that, in any event, there was no need for her to lift the box as she could have unpacked it whilst it was on the floor.

The Judge in this case found that the Claimant could not be criticised for failing to seek assistance and/or for deciding to lift the box onto the table to unpack it. This was due to the fact that there was no one around at the time of the accident who could have assisted her. Further, she was under extreme time constraints to unpack the box for a presentation and it was reasonable for her to lift the box onto the table in order to unpack it at waist height, which was a quicker method than unpacking at floor level.

However, the Claimant's conduct was criticised in that she did not stop to consider how heavy the box was likely to be. Her failure was akin to "momentary inattention or carelessness", but rendered all the more understandable because of the pressure of time she was under through no fault of her own. Her contributory negligence was therefore assessed at 10%.

Note: Clearly, if she had not been under such time pressure and/or there had been colleagues within the vicinity who could have assisted her, then a much greater percentage of contributory negligence would have been found. This scenario often arises in Cases referred to us when Staff is dealing with Inmate's Property in Reception as the bags or boxes are of variable weights, of unknown contents and often have to be stored on high & unsafe racking without proper ladders etc being available. Equally, we have dealt with Claims where internal Mail deliveries have given rise to injury, often on a cumulative basis.

2. Tripping

In the Court of Appeal case of Home Office v Lowles (2004), the claimant Prison Officer was injured when she tripped on an unmarked two-inch step-up to the level of a portacabin floor. The Trial Judge had found the Home Office to be liable for the accident in that the surface of the floor was not suitable for its purpose. However, he further found that the Claimant was 50% at fault for the following reasons:

a) She had used the entrance twice prior to the accident and so should have been aware of the step.

b) There was a warning sign present with the words in prominent capitals: "PLEASE MIND THE STEP", which she should have recalled from previous occasions and appreciated the warning it carried, even if she had not seen the warning sign at the time of the accident.

c) The claimant was not concentrating on what she was doing. On appeal, the Home Office argued that the Claimant should have been found 75% at fault. This was because, at the time of the accident, the Claimant had been engaged in deep conversation with a work colleague and not concentrating on what she was doing. The Home Office argued that the Claimant's fault must, in these circumstances, be regarded as overwhelming. However, the Court of Appeal supported the Trial Judge's opinion that it is not too surprising to find people arriving for work in deep conversation with fellow Employees or Visitors and not to be paying full attention to their surroundings. This was, on the other hand, an unusual and unexpected step-up. The initial finding of 50% contributory negligence therefore remained the basis on which the Claim was resolved.

3. Defective Equipment

In Knighton v Abington Brewery Co lid (1998) the Claimant had 6 weeks previously commenced employment as the Manager of a Public House. The Brewery ran a competition for the best Christmas decorations which, although not obligatory, most Public Houses entered. The decorations had to be in place by 1st December and on 30th November, since no step-ladders had been provided by the Brewery, (Editor: for Brewery substitute Prison Service...) the Claimant stood on a bar stool in order to place one of the decorations. She subsequently fell off the bar stool and sustained injury.

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