Legal services:
Contributory negligence -
justice or highway robbery

The Employer/ Brewery was found to be negligent in failing to provide a step ladder which was clearly required in order to hang the decorations. However, the Claimant was found to be 60% contributory negligent since the use of a bar stool was obviously dangerous and not just a momentary error on her part.

Note: This decision may seem harsh. We have dealt with many Cases where stools, ladders etc are either not available at all, are too far away, are under lock and key or are plain inadequate and liability has been established. Caution is, however, the best policy!

4. Defective Lighting

In Setts v Tokley (2002) the Employer's premises had two exits: the main exit through the front of the premises and a second exit through a canteen and via steps to a forecourt. The accident occurred after the Claimant returned from a delivery at 3am. She left the premises via the canteen exit as the front door was locked. The steps were not lit and the Claimant felt her way along the main wall as she negotiated the dark steps. She lost her footing and fell, thereby injuring her arm.

The Employer was found to be responsible for the accident in failing to install suitable lighting. The Claimant was, however, found to be 60% at fault because she had proceeded down the steps regardless of the risk of tripping or falling.

Note: This is particularly relevant for Staff working at night who go from one Wing to another or who are on external Patrol duties. The availability and use of torches is a critical issue. If they are available but you did not use one then a finding of contributory negligence is highly likely. In cases where you believe external lighting is either inadequate or non-existent please report this through your Branch Committee as this evidence (it must be documented) could assist a colleague who-later has an accident at that location where inadequate lighting is a key issue.

On A Brighter Note

Just in case you have been completely demoralised by this article and it now appears that Damages are always going to be reduced by the mere fact that you failed to somehow stop your accident, fear not! Below are some examples where arguments of contributory negligence advanced by a Defendant have failed:

1. In Gllespie v McFadden McManus Construction Ltd & Anor (2003), the Claimant worked as a tunnel miner. While working at night, a skip that stood on a four-wheeled cart moved so as to trap the Claimant's forearm, causing injury. There were no brackets of any sort to support the skip. The Defendants therefore admitted they were at fault. However, they argued that the Claimant should be found to be at fault for failing to notice the risk that the equipment posed to him. The Court, thankfully, rejected this argument stating that the Claimant was not at fault for failing to recognise that his Employer's failure to comply with their duty and good practice had put him in a difficult or dangerous position. It would be imposing far too high a burden upon the Claimant to find otherwise.

2. In Toole v Bolton Metropolitan Borough Council (2002) the Claimant, a supervising Council Worker, sustained a needlestick injury when attempting to safely remove a discarded syringe from the toilets. The Claimant had not worn the heavy-duty gloves provided by his Employer, but had worn rubber gloves instead. It was found that the heavy duty gloves provided by the Employer, which had not been worn by the Claimant, would not, in any event, have been sufficient to stop a pin prick. Accordingly the Employer was held to be responsible for failing to provide adequate equipment. The Trial Judge, however, found the Claimant to be 75% at fault for failing to take adequate care of himself by wearing only a rubber" glove for protection.

This decision was overturned by the Court of Appeal. Here, it was held that an Employee could not be held contributory negligent for failing to take a precaution (i.e. to wear the heavy-duty gloves provided) when the precaution was itself inadequate. It was impossible to say that the Claimant's actions caused the injury. Even if he had worn the gloves provided it was by no means certain that he would have avoided harm. Accordingly, the finding of contributory negligence was revoked and Damages were assessed on a 100% basis.

How to avoid being found "Contributory Negligent"

To avoid being held contributory negligent I suggest that you at all times wear a suit of armour, special hovercraft footwear to avoid slips/trips, carry a torch and pair of binoculars, and refuse to carry anything heavier than the standard bag of sugar! Only joking! It is impossible to avoid all accidents. Nevertheless, the Court expects a common sense approach to the carrying out of your employment activities so as to minimise any risk of injury to you.

In a perfect world there would be no risk to your health and safety at work. Unfortunately, the real world is far from perfect and your employment within the Prison Service or at a Special Hospital is inherently more dangerous than other occupations. It is therefore vital that you are alert to such dangers and act accordingly.

Conclusion

Whilst having a great chunk of your compensation taken away from you understandably feel like highway robbery, it can only be considered fair that, as competent adults, the Court expects you to take reasonable care for your own safety. Just as the Home Office are held accountable for their actions, so too are you for your own.

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