Chapter 6

CONTRIBUTORY NEGLIGENCE,
CONSENTING TO THE RISK OF
INJURY AND UNPAID VOLUNTEERS
David Rivers

CONTRIBUTORY NEGLIGENCE

6.1 In this chapter attention switches from the conduct of the defendant to the
conduct of the claimant. This can either serve to reduce the extent of the
defendant’s liability or alternatively in extremely rare cases even defeat a claim
for damages in its entirety. In the context of claims in which the defendant is in
breach of statutory duty, the second category is fairly described as at vanishing
point. Both the partial and complete defences described apply with more vitality
to all claims in negligence and many for breach of statutory duty outside of
employer’s liability claims; however, in this context special considerations apply
that restrict their operation.

6.2 The impact of s 69 of the Enterprise and Regulatory Reform Act 2013 has
still to become clear, although the potential effects will be indirect. It appears to
be clear that the removal of the cause of action for breach of many of the
Regulations that protect employees at work will not undermine the principles
that have developed, initially under the Factory Acts, that emphasise the
importance of not undermining Parliament’s intention by too readily identify-
ing some act or omission by the employee that might have avoided the accident.
That principle appears rooted in a wider common law principle that inattention
in the context of repetitive tasks should be excused and recklessness alone
penalised; however, as is set out below many of the statements of principle rely
upon the strict nature of the cause of action and its protective purpose.

It was stated in the last edition that on balance any change is likely to be limited
by the fact that the Regulations will remain in force and breach of them will
remain a criminal offence. This has proved to be correct. Even if the cause of
action is in negligence, the protective intent of Parliament remains and it will be
rare for a claim to succeed in negligence that would not also amount to a
separate breach of the Regulations.

The most noticeable change in this area has come about as a result of the
decision in the Supreme Court in Jackson v Murray [2015] UKSC 5, [2015]

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2 All ER 805 where there was extensive discussion of how to address the
balance between the causative effect of the claimant’s actions and his or her
blameworthiness. Although on its facts this was a child pedestrian road traffic
accident, it is the first case in a long time to go to the Supreme Court only on the
issue of apportionment and as a result it has had a significant impact.

The 1945 Act and historical perspective

6.3 To understand the modern position with regard to contributory negligence

it is necessary to appreciate that the law changed significantly with the enact-
ment of the Law Reform (Contributory Negligence) Act 1945, s 1(1), which
provides:
‘Where any person suffers damage as the 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 the responsibility for the
damage.’

That provision abolished the old common law rule that contributory negligence
and ‘common employment’ was a complete defence. Lord Atkin in Caswell v
Powell Duffryn Associated Collieries Ltd [1940] AC 152 explained the old
common law rule as follows:
‘The injury may . . . be the result of two causes operating at the same time, a
breach of duty by the defendant and the omission on the part of the plaintiff to use the
ordinary care for the protection of himself or his property that is used by the ordinary
reasonable man in those circumstances. In that case the plaintiff cannot recover
because the injury is partly caused by what is imputed to him as his own default.’

6.4 Prior to the abolition of the doctrine there had developed an elaborate body
of law relating to causation. The objective of much of that law was to
circumvent the rule and enable the claimant to succeed notwithstanding that
the claimant had himself been careless. The Act introduced the concept of
apportionment to address the justice of the situation.

6.5 Since the passage of the Act, employers’ negligence or breach of statutory
duty which might have been only a partial cause of the claimant’s injuries will
not be disregarded where the claimant or another employee has been at fault.
There may well be concurrent causes, one of which is the fault of the claimant.
In that case the court will find contributory negligence. Likewise where two or
more defendants are at fault the court will, in contribution proceedings, order a
contribution by one to the other.

6.6 The Law Reform (Contributory Negligence) Act 1945,1 in sweeping aside
the old law, did cause a shift in the practical application of the doctrine.
Denning LJ in Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 322
said:
‘The legal effect of the Act of 1945 is simple enough. If the plaintiff’s negligence was
one of the causes of his damage, he is no longer defeated altogether. He gets reduced
damages. The practical effect of the Act is, however, wider than its legal effect.

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 Contributory negligence 6.8

Previously, to mitigate the harshness of the doctrine of contributory number of

competing causes, which was the cause—the effect of a predominant cause—of the
damage, and to reject the rest. Now the courts have regard to all the causes and
apportion the damages accordingly.’
1
In Northern Ireland The Law Reform (Miscellaneous Provisions) Act 1948.

6.7 However, it is particularly important to note that the key concept is the
fault1 of the person suffering the damage as opposed to negligence simpliciter2
and that such fault must be considered in a comparative process with the fault
of the tortfeasor. One important consequence is that this allows acts or
omissions that would axiomatically be considered negligent in a third party and
sounding in damages, such as by way of momentary inadvertence, to be excused
by way of no deduction for contributory negligence. This distinction was drawn
by the learned previous author of this chapter in the 15th edition of this work
and should be better known. The assumption has developed that fault in this
context means the same as negligence, and the very name of the partial defence
does not help this. A reduction under the Act involves a finding that it is just and
equitable for the claimant’s fault to result in a reduction and that is not the same
thing as a finding that because the claimant’s actions or omissions show him or
her to have been negligent there should therefore be a reduction.

This is particularly true in this context. Tripping over a box that was there to be
seen on the floor in front of the claimant had he or she looked down is likely to
be negligent; however, it will not always justify an equitable reduction. Above
all, a finding of contributory fault depends on a comparison of the fault of the
claimant and the defendant and it is particularly important in the context of
cases in which liability is admitted that sufficient evidence is obtained to show
just how reckless or egregious the defendant’s conduct has been. It is particu-
larly common, in the experience of the current author, for the defendant who
has behaved extremely badly to simply admit breach and primary liability then
focus attention on all the alleged failures of the claimant. The claimant’s con-
duct must be seen in the context of the nature of the defendant’s breach in
order to assess blameworthiness, a point re-emphasised by Lord Reed in
Jackson at [40] of the judgment.
1
See definition in the Law Reform (Contributory Negligence) Act 1945, s 4.
2
As Lord Hope stated in Reeves v Metropolitan Police Comr [2000] 1 AC 360 at 383E–F: ‘one
should not be unduly inhibited by the use of word negligence in the expression contributory
negligence’.

6.8 However, at the outset this was not mirrored in the approach of the courts
and for many years after the passage of the 1945 Act some courts still managed
to achieve the same result as would have been achieved before the passage of the
Act. Those courts, while finding that the employer had been negligent and in
breach of statutory duty, nevertheless allowed the employer to escape liability
by finding that the claimant was 100% to blame. That approach is no longer
permissible. In Pitts v Hunt [1991] 1 QB 24 at 48 Beldam LJ said:
‘Section 1 of the Law Reform (Contributory Negligence) Act 1945 . . . begins with
the premise that the person suffers damage as a result partly of his own fault and
partly of the fault of any other person or persons. Thus before the section comes into
operation, the court must be satisfied that there is fault on the part of both parties
which has caused the damage. It is expressly provided that the claim should not be
defeated by reason of the fault of the person suffering the damage. To hold that he is

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himself entirely responsible for the damage effectively defeats his claim. It is then
provided that the damages recoverable in respect thereof (that is the damage suffered
partly as a result of his own fault and partly the fault of any other person) shall be
reduced. It therefore presupposes that the person suffering the damage would receive
some damages. Finally reduction is to be to such extent that the court thinks just and
equitable, having regard to the claimant’s share in the responsibility for the damage.
To hold that the claimant is 100 per cent responsible is not to hold that he shared in
the responsibility for the damage.’

6.9 Since the introduction of the Civil Procedure Rules 1998 a defendant in his
defence must state which of the allegations in the particulars of claim are
denied, which allegations he is unable to admit or deny, but which he requires
the claimant to prove, and which of the allegations he admits.1 The defence
must provide a comprehensive response to the claim. Further, as the burden of
proving contributory negligence is on the defendant, and since the defence must
be comprehensive, the defendant must plead the precise respects in which he
alleges the claimant has been guilty of contributory negligence.2 In Dziennik v
CTO Gesellschaft Fur Container transport MBH [2006] EWCA Civ 1456,
[2006] All ER (D) 157 (Nov) a finding of contributory negligence was set aside
by the Court of Appeal as the judge had based his finding on an allegation of
negligence that had been neither pleaded or argued at trial. Sir Igor Judge
(President QB) stated:
‘The decision on contributory negligence is not based on a mere pleading point, nor
can it be dismissed as an unmeritorious problem arising from a legal technicality. A
much more important principle is involved. As a matter of simple justice, and like any
litigant in civil proceedings, the Claimant was entitled to know of any misconduct,
including negligence, alleged against him and to be provided with a proper opportu-
nity to enable him to deal directly with and answer the allegation.’
1
CPR 16.5(1).
2
See also the pre-CPR procedure, and Fookes v Slaytor [1970] 1 WLR 1293 where the Court of
Appeal held that contributory negligence should be specifically pleaded, cf Biguzzi v Rank
Leisure plc [1999] 4 All ER 934, [1994] 1 WLR 1926, and the absence of any reference within
the Practice Direction for CPR Pt 16.

6.10 In Weir v Robertson Group (Construction) Ltd [2006] CSOH 107, Lord
Glennie, when considering the Scottish procedural rules, referred to the require-
ment for fair notice and stated:
‘The defences should aver the facts which the defender regards as necessary to
support his defence or plea of contributory negligence. Otherwise how is the pursuer
to know what investigations to make and what evidence to lead?’

This was expressly approved in McGowan v W & JR Watson [2006] CSIH 62,
IH (Ex Div).

What is contributory negligence?

6.11 Contributory negligence means some act or omission by the injured

person which constituted a fault, in that it was a blameworthy failure to take
reasonable care for his or her own safety and which has materially contributed
to the damage caused. In Froom v Butcher [1976] QB 286 at 291 Lord
Denning MR said:

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 Contributory negligence 6.15

‘Negligence depends on a breach of duty, whereas contributory negligence does not.

Negligence is a man’s carelessness and breach of duty to others. Contributory
negligence is a man’s carelessness in looking after his own safety. He is guilty of
contributory negligence if he ought reasonably to have foreseen that, if he did not act
as a reasonable prudent man, he might hurt himself.’

6.12 In Jones v Livox Quarries Ltd [1952] 2 QB 608 at 615 Denning LJ said:
‘Although contributory negligence does not depend on a duty of care, it does depend
on foreseeability. Just as actionable negligence requires the foreseeability of harm to
others, so contributory negligence requires the foreseeability of harm to oneself. A
person is guilty of contributory negligence if he ought reasonably to have foreseen
that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his
reckonings he must take into account the possibility of others being careless.’

6.13 Provided that the claimant can foresee that his conduct may expose him to
injury, it is not necessary that he should be able to foresee the precise manner in
which the injury will occur: Jones v Livox Quarries Ltd (above) per Single-
ton LJ at 613–614:
‘In so doing he was exposing himself to danger. It may well be that the chief danger
was that he might fall off, or be thrown off, or that he might become entangled in
some part of the machine on which he was riding; but those were not the only risks
to which he subjected himself . . . ’

There is an interesting question about whether the test for contributory negli-
gence is objective or subjective. In Froom (above) Lord Denning was clear that
this was an objective test and that the views of the driver on seatbelts were
irrelevant. However, there is no doubt that in terms of children subjective
features such as age are attributed to the objective person being considered.
There is a very interesting first instance decision of Spencer J in Spearman v
United Bath Hospitals [2017] EWHC 3027 (QB) refusing to disregard the
mental illness of the claimant in making an assessment on the basis that to
disregard it would be to require the impossible of the claimant. It is interesting
as there is no doubt it would have been taken into account in considering
whether a defendant was negligent, the test for which is objective, and it
demonstrates the importance attached to blameworthiness.

Causative negligence

6.14 In all cases where contributory negligence is alleged, the question to be

answered is: Whose negligence (or breach of statutory duty) caused the acci-
dent? Was it that of the defendant alone, or of the claimant alone, or of both
together or a combination of both and others? Lord Atkin in Caswell v Powell
Duffryn Associated Collieries Ltd [1940] AC 152 at 165:
‘I find it impossible to divorce any theory of contributory negligence from the concept
of causation . . . and whether you ask whose negligence was responsible for the
injury, or from whose negligence did the injury result, or adopt any other phrase you
please, you must in the ultimate analysis be asking who “caused” the injury.’

6.15 Whether the claimant failed to take such care as was reasonable in the
circumstances falls to be judged in the light of all the circumstances. The court
does not, usually, scrutinise in every last detail the circumstances of the accident

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in order to detect contributory negligence at the behest of a negligent employer:

Machray v Stewarts and Lloyds Ltd [1964] 3 All ER 716, [1965] 1 WLR 602.
In some cases the courts have held that the phrase ‘just and equitable’ in s 1(1)
of the Act enabled the court to refuse to make any reduction in the damages
even where causative contributory negligence had been made out.1 However
that view was subsequently rejected by the Court of Appeal in Bothman v
British Northrop (1972) 13 KIR 112.
1
See Hawkins v Eros (Castings) Ltd [1970] 1 All ER 180 at 188 and Stocker v Norprint Ltd
(1970) 10 KIR 10 at 14.

6.16 The real question in each case is whether the claimant’s conduct caused or
contributed to the damage. It is, thus, irrelevant that the claimant was guilty of
some blameworthy conduct if that conduct did not cause the injury. In West-
wood v Post Office [1974] AC 1 a man fell through a door in a room to which
entry had been prohibited. The notice prohibiting entry contained no warning
of the danger that lay on the other side and the House of Lords held that
disobedience to orders not to enter the room was not, in itself, negligent. In
Toole v Bolton Metropolitan Borough Council [2002] EWCA Civ 588,
[2002] All ER (D) 133 (Apr) an employee failed to heed a note that he should
use ‘heavy duty’ gloves when picking up litter and sustained a needle stick
injury, however the gloves made available by the employer would not have
prevented the injury and the Court of Appeal held that there was no contribu-
tory negligence in such circumstances.1

That case has come to underpin the principled basis on which modern assess-
ments at trial are made. It emphasises the gulf between causation (the claim-
ant’s actions or inactions having factually resulted in the accident) and fault.
1
The judge at first instance found the claimant to have been 75% to blame, which the Court of
Appeal stated was too high for a case of breach of statutory duty in any event.

6.17 If there is found to be some degree of causative fault and it is just and
equitable for damages to be reduced there must be an appropriate reduction in
the damages, however small. In past practice the courts have favoured a series
of conventional deductions in percentages: 10, 20, 25, 33, 50, 66, 75 and
(erroneously) 100%. Having reviewed the reported cases available over the last
ten years, there has not been found a higher court award in which a reduction
has been made that exceeded 75%. In Anderson v Newham College of Higher
Education [2002] EWCA Civ 505, [2003] ICR 212, [2002] All ER (D) 381
(Mar) the claimant’s cross-appeal against a finding of 90% in a case of blatant
recklessness was allowed and reduced to 50%. In the Toole case above,
Buxton LJ indicated that a 75% reduction was itself extremely unusual and at
such a level that for a judge to have considered making it would indicate that he
must effectively have considered the breach of statutory duty to have had
minimal causative role. In practice, the maximum reduction is now 75%.

6.18 At the other end of the scale, the courts increasingly deal with contribu-
tory negligence which is less than one-fifth by a finding that the claimant was
merely momentarily inadvertent1 or understandably disregarded what was not
a gross and obvious risk. It is only where inadvertence is such as to amount to
negligence that an apportionment is made: Mullard v Ben Line Steamers Ltd

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 Contributory negligence 6.19

[1971] 2 All ER 424. As Sedley LJ stated in Butcher v Cornwall County Council

[2002] EWCA Civ 1640, [2002] All ER (D) 274 (Oct):2
‘10% is so nearly a token figure that ones first reaction is that it betokens an absence
of significant fault on the claimant’s part’.3’
1
See para 6.48 ff below.
2
See also Cooper v Carillion [2003] EWCA Civ 1811, [2003] All ER (D) 31 (Dec): a successful
appeal against a finding of 10% contributory negligence.
3
Cf Goodchild v Organon Laboratories Ltd [2004] EWHC 2341 (QB), [2004] All ER (D) 262
(Oct) where Forbes J found 10% contributory negligence for an employee known to have a
vulnerable back problem lifting a heavy box. This may reflect the alternative view by which
factually the claimant played a significant role in the accident occurring, the court considers the
comparative fault slight, but finds that it should be recognised by some finding as a matter of
principle. A 10% reduction by the trial judge is difficult to appeal even if the aggrieved
defendant feels that the proper finding should have been a reduction of up to a third. A finding
that there is no contributory negligence in the face of real apparent fault is in general much
easier to appeal than the extent of the apportionment. The facts of this case did disclose
significant knowledge of her own vulnerability and therefore the risk taken in lifting a heavy
box without further assessment or assistance, and so is instructive. It also provides an excellent
if somewhat dated review of the law in respect of manual handling. The regulations no longer
give rise to a direct cause of action.

6.19 Addressing awards at the other end of the scale in Toole v Bolton
Metropolitan Borough Council [2002] EWCA Civ 588, [2002] All ER (D) 133
(Apr), Buxton LJ stated:
‘It is not usual for there to be marked findings of contributory negligence in a breach
of statutory duty case, and it is, I am bound to say in my experience, very unusual
indeed for there to be a finding of contributory negligence at the level of 75%. If in a
statutory duty case the judge finds himself driven in that direction, he should, in my
judgment, seriously consider whether he is in fact not finding that there has been no
causal connection at all between the breach of statutory duty and the injury’.

This reflected a long-established ‘rule of thumb’ that if a breach of statutory

duty by the employer was established any finding of contributory negligence
should not normally exceed 50%.1 In Ashbridge v Christian Salvesen [2006]
CSOH 79, OH, the claimant (pursuer) was a supervisor who was attempting to
drain down a tank when, after wrongly assuming it was empty, opened a door
and caustic solution poured out and he suffered burns on his feet. He succeeded
in establishing breaches of the Provision and Use at Work Equipment Regula-
tions 1998, SI 1998/2306 (PUWER 1998) and the Personal Protective Equip-
ment at Work Regulations 1992, SI 1992/2966 and liability at common law.
However, he was found to be ‘cavalier in the extreme’ in his attitude towards
checking the level in the tank before opening the door. Lord Glennie neverthe-
less rejected the submission that he should be found to be 90% contributorily
negligent and found instead 50%.
1
See eg Egan v Central Manchester and Manchester Children’s University Hospital NHS Trust
[2008] EWCA Civ 1424, [2009] ICR 585. For an example of a finding at this level a case where
the duty breached by the employer was at common law is Ellis v William Cook Leeds Ltd
[2007] EWCA Civ 1232, [2007] All ER (D) 24 (Nov). A finding of 25% contributory negligence
against an employee for standing too close to a crane was replaced with a finding of 50% despite
the fact that the employer’s working practices were found to be inherently dangerous.

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More than one defendant

6.20 Where there are several defendants, the claimant’s share of responsibility
against all of them must first be assessed and then the balance divided between
them: Fitzgerald v Lane [1989] AC 328. In that case the claimant was seriously
injured when struck by two cars when attempting to cross a pelican pedestrian
crossing when the lights were red for pedestrians. The trial judge, having held
that the claimant was equally to blame with the two motorists, then awarded
the claimant two-thirds of the total damages. The Court of Appeal allowed an
appeal against that decision. There was a further appeal to the House of Lords
which confirmed the result reached by the Court of Appeal. The House of Lords
held that the judge had confused the extent of the claimant’s contribution to his
own loss with the separate issue of the apportionment of the damages between
the defendants. Given his finding that the claimant had been equally to blame
with the motorists for the accident the judge should only have awarded the
claimant one-half that of his loss and not two-thirds. Lord Ackner said:
‘Apportionment of liability in the case of contributory negligence between plaintiff
and defendants must be kept separate from apportionment of contribution between
the defendants inter se. Although the defendants are liable to the plaintiff for the
whole amount for which he has obtained judgment, the proportions in which, as
between themselves, the defendants must meet the plaintiff’s claim do not have any
direct relationship to the extent to which the total damages have been reduced by the
contributory negligence.’

6.21 In so doing the House of Lords pointed to a rigorous separation between

the issues of the claimant’s own contributory negligence and the apportionment
of the damages as between the defendants themselves. Lord Ackner in Fitzger-
ald1 said that the judge had gone wrong in:
‘allowing his judgment of the issue of contributory negligence to be coloured by his
decision as to the proper apportionment of the claim between the defendants. While
stating in substance on the one hand that the plaintiff’s responsibility was no more
and no less than that of either of the defendants, his ultimate conclusion, as mirrored
in this Order, was that each of the defendants was twice as much to blame as the
plaintiff. This could not be right on the facts.’
1
[1989] AC 328 at 341.

6.22 As a result, ordinarily where a claimant successfully sues more than one
defendant for damages and there is a claim between co-defendants for contri-
bution, there are two distinct stages in the decision making process: first in the
main action between the claimant on the one hand and the defendants on the
other as to which side is to blame and in what proportions; and second in the
contribution proceedings between the defendants only as to what proportion
each defendant must bear.

6.23 The relationship between the claimant’s own conduct and the extent of
the liability of defendants when considering ‘the Fairchild exception’1 to the
ordinary rules of causation was addressed by the House of Lords in Barker
v Corus (UK) plc (formerly Saint Gobain Pipelines plc) [2006] UKHL 20,
[2006] 2 AC 572, [2006] 3 All ER 785. Their Lordships found that the Fairchild
exception could operate even though not all the potential causes of damage
were tortious, and a non-tortious source of risk could be the claimant himself.

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Treating the creation of the risk as the damage caused by the defendant involved
quantifying the likelihood that the damage that was known to have materialised
was caused by that particular defendant. It would then be possible to determine
the share of the damage that should be attributed to that defendant taking into
account the claimant’s own conduct and contribution to the risk. Hence the first
stage of attribution of liability according to relative degree of contribution to
the chance of the disease being contracted would not require consideration of
questions of contributory negligence. However, it could be considered in
relation any particular defendant’s ‘share’ by way of subsequent analysis, for
example if the claimant had failed to follow measures in place for his protec-
tion.2
1
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 3; see generally para
3.16 ff.
2
See judgment of Lord Walker at [118].

Assessment

6.24 Assessment of the injured person’s share in the responsibility is under-

taken first through consideration of his or her relative blameworthiness and
then of the causative potency of the relevant act/omission.1 However, as Lord
Walker stated in Corr (Administratrix of Corr decd) v IBC Vehicles Ltd [2008]
UKHL 13, [2008] 1 AC 884: ‘These are not precise or mutually exclusive tests.’

In Stapley v Gypsum Mines Ltd [1953] AC 663 at 682, Lord Reid stated:
‘A court must deal broadly with the problem of apportionment and in considering
what is just and equitable must have regard to the blameworthiness of each party, but
the plaintiff’s share in the responsibility for the damage cannot I think, be assessed
without considering the relative importance of his acts in causing the damage apart
from his blameworthiness.’
1
See Davies v Swan Motors Co Ltd [1949] KB 291 at 236.

6.25 As to the general approach Stanley Burnton J stated in Badger v Ministry

of Defence [2005] EWHC 2941 (QB), [2006] NLJR 65 (referring to the speech
of Lord Reid in Stapley v Gypsum Mines and the approach of the Court of
Appeal in O’Connell v Jackson [1972] 1 QB 270 at 277–78):
‘Once contributory negligence has been established, the court must take into account
both the extent of the claimant’s responsibility for his injury and damage and the
blameworthiness of his conduct as opposed to that of the defendant in deciding on the
reduction in damages that is just and equitable. The decision as to the appropriate
reduction in the claimant’s damages is to be dealt with in a broad, jury like and
common sense way’.

6.26 Looking at the apportionment of fault in particular cases, it must be

remembered that this is always comparative. Again, the decision in Jackson v
Murray [2015] UKSC 5, [2015] 2 All ER 805 has re-emphasised from all five
Supreme Court judges that the assessment of the right figure for an apportion-
ment is done broadly and with relatively little science to the answer. Indeed, two
of the judges in that case would not have disturbed the finding below on that
basis. The error which allowed the court to interfere came from the apportion-
ment in that case of more blame to the 13-year-old pedestrian that stepped out

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from her bus than to the driver who was travelling at an unsafe speed in his
approach to a school bus.

6.27 In Reeves v Commissioner of Metropolitan Police [2000] 1 AC 360 at

371, Lord Hoffmann pointed out that the Law Reform (Contributory
Negligence) Act 1945 requires the court to apportion not degrees of careless-
ness but the relative responsibility of the two parties, and that an assessment of
responsibility must take into account the policy of the rule, such as that of the
Factories Act, by which the liability is imposed.

6.28 In Egan v Central Manchester and Manchester Children’s University

Hospital NHS Trust [2008] EWCA Civ 1424, [2009] ICR 585 the Court of
Appeal when considering relative blameworthiness in a case where the defen-
dant was in breach of the Manual Handling (Operations) Regulations 1992, SI
1992/2793 found the claimant 50% to blame for a injury arising in part from
her failure to ensure the forks of a lifting device were sufficiently under a bath.
Smith LJ stated:
‘I find myself unable to distinguish between the two parties when considering
blameworthiness, it seems to me neither side could or should be heavily criticized.
Accordingly I find myself driven to conclude that they should bear the responsibility
equally.’

This was, with respect, a harsh assessment of the claimant’s degree of fault
when it is remembered that the defendant was in breach of a very strict statutory
duty and that the principles surrounding whether mere inadvertence should
constitute negligence applied with some force. If neither side could or should be
heavily criticised but the defendant was in breach of its statutory duty then
arguably the claim succeeded, but no sufficient fault could be shown by the
defendant to justify a case for any, let alone a 50%, reduction.

Breach of the employer’s statutory duties

6.29 In Boyle v Kodak Ltd [1969] 2 All ER 439 the House of Lords held that
a defendant employer could not exonerate itself from liability for a breach of
statutory duty unless the acts that constituted the entirety of the breach of
statutory duty were wholly brought about by the claimant employee. If they
were, there is no liability, so the question of contributory negligence does not
arise. If they were not wholly brought about by the claimant, there is auto-
matically fault on the part of the employer (whether negligent or not) from the
mere fact of breach of the duty, and there must be an apportionment to the
employer of some of the blame.1
1
This principle was applied by the Court of Appeal in McCreesh v Courtaulds plc [1997] PIQR
P 421, Thorpe LJ: ‘So the real question is, was the practice of permitting the use of an unguarded
blade also contributive to causation’. See also para 5.73 above.

6.30 In Jayes v IMI Kynoch [1985] ICR 155 the Court of Appeal reached a
contrary view, but without Boyle v Kodak being cited in argument before it.
This decision was not followed up to the point of its careful dissection and
laying to rest by the Court of Appeal in Anderson v Newham College of Further
Education [2002] EWCA Civ 505, [2003] ICR 212 as per incuriam. Sedley LJ,
referring to the binding decision in Boyle v Kodak, stated that the House of

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 Contributory negligence 6.33

Lords held that to escape a breach of a statutory duty, the defendant had to
establish that the claimant was wholly to blame and that the defendant had
done all that was reasonable to ensure compliance. Both limbs need to be
satisfied and the last edition of this chapter erroneously states that these were
alternatives (‘or’ being used in error). The case was authority for the high
standard required to shift the statutory duty from the defendant to the claimant
and that, where such a shift was achieved, there was no question of contribu-
tory negligence because there was no blame on the defendant to be appor-
tioned.1
1
See Sedley LJ at [7]–[18].

6.31 The imposition of such a high standard reflects the decision to impose
such a duty in the first place.1 Hence in a breach of statutory duty case the court
has to have very clearly in mind the reasons why the duties that go beyond best
endeavours are provided in the particular statute. In Staveley Iron & Chemi-
cal Co Ltd v Jones [1956] AC 672, Lord Tucker stated at 648:
‘In Factory Act cases the purpose of imposing the absolute obligation is to protect the
workmen against those very acts of inattention which are sometimes relied upon as
constituting contributory negligence so that too strict a standard would defeat the
object of the statute.’
1
See para 5.16 above.

Breach of the employee’s statutory duties

6.32 Section 1(1) of the Law Reform (Contributory Negligence) Act 1945
refers to damage ‘as a result partly of his own fault and partly of the fault of any
other person’. Therefore, a breach of the employee’s statutory duty, if it is a
cause of the accident, is equivalent to contributory negligence: Norris v Syndic
Manufacturing Co [1952] 2 QB 135 at 142. However whether breach of
statutory duty by the employee will amount to contributory negligence depends
on the nature of the respective duties of the employee and employer. In Arbuckle
v AH McIntosh & Co 1993 SLT 857n, OH, it was held that the employee’s duty
‘to use and keep in proper adjustment’ guards in pursuance of the Woodwork-
ing Machines Regulations 1947 only arose when the employer had fulfilled its
duty to provide a properly-guarded machine. Therefore there was no contribu-
tory negligence. In considering how far the breach by an employee of its
statutory duty should reduce the consequential damages, regard must be had, it
is suggested, to the publicity given to the order. In particular regard should be
paid whether the employers had taken adequate measures to bring the order to
the employee’s notice and to ensure that he complied with it. Another factor to
be taken into account is the workman’s knowledge, and whether he was
properly instructed and had sufficient experience.

6.33 There is a general duty imposed on employees by the HSWA 1974, s 7, to

take reasonable care for the safety of themselves and other people affected by
their acts or omissions at work and to ‘co-operate’ with employers and others in
carrying out the duties imposed upon his employers and others. Under the
Management of Health and Safety at Work Regulations 1999, reg 14 there is a
duty placed on employees to use equipment in accordance with training and
instructions given by the employer in compliance with the latter’s statutory

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6.33 Contributory negligence

duties and to report serious and immediate dangers to health and safety.
Although s 7 of the 1974 Act is unenforceable in civil law, following the coming
onto force of the Management of Health and Safety at Work and Fire Precau-
tions (Workplace) (Amendment) Regulations 2003, breach of reg 14 is now
actionable. Many other Regulations impose duties on employees, for example
the Personal Protective Equipment at Work Regulations 1992, reg 10(2). In
Henser-Leather v Securicor Cash Services Ltd [2002] EWCA Civ 816,
[2002] All ER (D) 259 (May) Kennedy LJ found that a defendant (having failed
to provide PPE in the first place) was also in breach of reg 10(1) for having taken
no steps to ensure than the claimant wore PPE. Having taken no steps to comply
with reg 10(1) it was not open to the defendant to argue that the claimant was
contributorily negligent as he might not have worn the PPE in breach of
reg 10(2).

Breach of employer’s statutory duty caused by the claimant alone

6.34 Difficulty has arisen in the past where the defendant employer has been
held to be in breach of its statutory duty but the reason why this has occurred
has been solely because of the conduct of the claimant employee. Where the
employer has taken all reasonable steps to ensure that its employees are safe and
the employee then, nevertheless, undertakes a course of action which negates
the employer’s efforts, basic common law principles would dictate that the
employee is responsible for any consequential damage. For example, where an
employee removes a fence from a machine contrary to express orders and
warnings, it would be unreasonable to attribute legal liability to his employer.1
1
If the employer has created the risk by a breach of statutory duty which the claimant has then
failed to rectify or adopted; the claimant’s fault will be seen as subsequent and separate and
although there may be a finding of contributory negligence primary liability will attach to the
acts or omissions of the employer: see Boyce v Wyatt Engineering [2001] EWCA Civ 692,
(2001) Times, 14 June, [2001] All ER (D) 16 (May).

6.35 However, where a statutory duty is involved, the position is somewhat

different and greater caution is needed before an employer can be absolved from
blame. The reason for this is that Parliament has placed directly on the
shoulders of the employer the responsibility for ensuring compliance with the
duty. Non-compliance with that duty, if it is a contributory cause, normally
establishes liability.

6.36 In Boyle v Kodak Ltd [1969] 2 All ER 439 the House of Lords held that
an employer could not exonerate itself from liability for a breach of statutory
duty unless the breach was wholly brought about by the claimant. If it was, no
liability would arise, so the question of contributory negligence would equally
not arise. The mere fact of breach by the employer gives rise to liability on its
part and there must be an apportionment to it of some of the damages. The
overriding principle is set out in the Law Reform (Contributory Negligence) Act
1945, s 1(1) where the court decides that the loss should be apportioned
between the parties. The result is that the claimant’s damages have to be
‘reduced to such extent as the court thinks just and equitable having regard to
the claimant’s share in the responsibility for the damage’. It is notable that the
Act of 1945 does not contain the word ‘cause’.1 Responsibility for the loss
should not be equated with causation of the loss. This is because if there is no

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 Contributory negligence 6.38

causation there is no tort. But if there is causation, and the claimant contributed
to the causation, then clearly the consequential damages to the claimant should
be reduced. The Act speaks of the damages being ‘reduced’. It therefore follows
that the court cannot refuse to make any reduction merely because it thinks it is
just and equitable to do so.2 It is necessary to consider not only the causation of
a particular act but also its blameworthiness.3 In road traffic cases, if a
pedestrian is struck by a car when both had a clear view of each other, in one
sense the factors are equal. However, the motorist may be held to be the greater
part to blame because he was in charge of a potentially lethal weapon, whereas
the pedestrian posed little danger to the motorist. In this context culpability
means not so much moral blameworthiness as a departure from the standard of
care to be expected from the reasonable man. The court must also consider in
addition to breach and causation the question of what is ‘just and equitable’.4 It
is for this reason that the precise percentage by which the award is reduced is a
question of fact in each case for the judge. The respective faults are to be
assessed by looking at the matter broadly.
1
As the late John Munkman wrote: ‘That Act, with which I had some slight connection as a
Member of the Law Revision Committee, carefully avoided all references to the word “causa-
tion”. While it was being finally prepared by Lord Simon, the then Lord Chancellor, I discussed
with him, and he emphasised that he was not going to allow any idea of causation to confuse the
issue’: Goodhart, ‘Appeals and Questions of Fact’ (1955) 71 LQR 402, 413–414.
2
Boothman v British Northrop Ltd (1972) 13 KIR 112 at 122.
3
See Keaney v British Railways Board [1968] 1 WLR 879 at 893; Froom v Butcher [1976] QB
286 at 292.
4
Turner v Ford Motor Co [1965] 1 WLR 948 at 953–954.

6.37 In Jayes v IMI (Kynoch) Ltd [1985] ICR 155 in an ex tempore judgment
the Court of Appeal upheld a finding by the judge that the claimant was 100%
negligent for ‘an act of folly’. The court based its reasoning upon Mitchell v W
S Westin Ltd [1965] 1 WLR 297. However, the decision of the House of Lords
in Boyle v Kodak Ltd [1969] 2 All ER 439 was not brought to the attention of
the Court of Appeal and criticism of Jayes in previous editions of this text were
adopted and approved and the binding force of Boyle v Kodak reiterated by
the Court of Appeal in Anderson v Newham College of Further Education
[2002] EWCA Civ 505, [2003] ICR 212, Sedley LJ stating that Jayes v IMI was
in percuriam.

6.38 In Boyle v Kodak Ltd [1969] 1 WLR 661 the appellant, an experienced
painter, was employed on the painting of an oil storage tank some 30 feet high.
He used the ladder in order to paint the top of the tank. By virtue of the Building
(Safety, Health and Welfare) Regulations 1948, both he and his employers were
under a statutory duty to secure the ladder by lashing it at the top before using
it. There was an iron staircase on the side of the storage tank which gave access
to the top of the ladder. However the workman did not use that means of access
to lash the top of the ladder. He had never been told by the respondents to do so.
He climbed the ladder in order to lash it to the top but the ladder fell before he
had accomplished his aim. The trial judge held that the workman was solely to
blame for the accident in that he had failed to use the staircase. The trial judge
held that whilst there had been a breach by the employer of reg 24(4), the
workman was not entitled to recover because he was wholly responsible for the
accident. The Court of Appeal affirmed the decision. On appeal to the House of
Lords it was held that the employers owed a duty to instruct even a skilled

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6.38 Contributory negligence

workman, concerning the application of the Regulations in situations where no

danger was apparent. The House held that the employer had not proven that it
had done all that could reasonably be expected of it to ensure compliance with
the Regulations. Lord Reid said at 667:
‘ . . . that, once the plaintiff had established that there was a breach of an
enactment which made the employer absolutely liable, and that breach caused the
accident, he need do no more. But it is then open to the employer to set up a defence
that in fact he was not in any way in fault, but that the plaintiff employee was alone
to blame. That does not mean that the employer must lead evidence, he may be able
to prove this from the evidence for the plaintiff, but I do not think that I went too far
in Ross’s case by saying at page 775, that he “cannot complain if in those circum-
stances the most favourable inferences were drawn from the appellant’s evidence of
which it is reasonably capable”.’

6.39 Lord Reid, in the same case, at 668 said:

‘Employers are bound to know their statutory duty and take all steps to prevent their
men from committing breaches. If an employer does not do that he cannot take
advantage of this defence. On the respondent’s admission there is a difference under
this Regulation between cases where there is another practicable means of access to
the top of the ladder, and cases where there is none or where there is nothing to which
the ladder can be lashed. In the former case the man must use alternative means of
access, here the stairway, to get to the top to lash the ladder and then return that way
before ascending the ladder; in the latter case he is permitted to ascend the ladder
without lashing it. I think the evidence shows that a skilled, practical man may easily
fail to appreciate this and that the respondent ought to have realised that and
instructed their men accordingly. So they have not proved that they did all they could
reasonably be expected to do to ensure compliance and they cannot rely on this
defence so as to avoid their absolute vicarious liability under the Regulations’.

6.40 Lord Diplock in the same case at 672 said:

‘The employer’s duty to comply with the requirements of the Regulation differs from
that of his employees. The employer, at any rate when he is a corporation, must if
needs perform his duty vicariously through his officers, servants, agents or contrac-
tors; but he does not thereby rid himself of his duty. He remains vicariously
responsible for any failure by any one of them to do whatever was necessary to ensure
that the requirements of the Regulations were complied with; and among those for
whose failure he is prima facie vicariously liable is any employee who is himself under
a concurrent statutory duty to comply with those requirements. The employee’s duty,
on the other hand, is in respect of and is limited to his own acts or omissions. He is not
vicariously liable for those of anyone else’.

He went on to say:
‘The plaintiff establishes a prima facie case of action against his employer by proving
the fact of non-compliance with the requirement of the Regulation and that he
suffered injury as a result. He need prove no more. No burden lies with him to prove
what steps should have been taken to avert the non-compliance, nor to identify the
employees whose acts or defaults contributed to it, for the employer is vicariously
responsible for them all. But if the employer can prove that the only act or default of
anyone which caused or contributed to the non-compliance was the act or default of
the plaintiff himself, he establishes a good defence. For the legal concept of vicarious
liability requires three parties; the injured person, a person whose act or default
caused the injury and the person vicariously liable for the latter’s act or default. To say
“you are liable to me for my own wrongdoing” is neither good morals nor good law.

220
 Contributory negligence 6.44

But unless the employer can prove this he cannot escape liability. If he proves that it
was partly the fault of the employee plaintiff, as ex hypothesi, it will be in the
postulated case, for the employee’s own breach of statutory duty is “fault” within the
meaning of s 1 of the Law Reform (Contributory Negligence) Act 1945, this may
reduce the damages recoverable but will not constitute a defence to the action’.

6.41 As set out above the Court of Appeal reaffirmed the importance of the
principle in Boyle in Anderson v Newham College of Further Education [2002]
EWCA Civ 505, [2003] ICR 212, O’Neill v DSG Retail Ltd [2002] EWCA Civ
1139, [2003] ICR 2221 and also in Sherlock v Chester City Council [2004]
EWCA Civ 210, [2004] All ER (D) 434 (Feb) (although the claimant was
sufficiently well trained and experienced to identify the need for either a run off
table or a second man when using a circular saw; the failure of the employer to
undertake an assessment and identify the need for such equipment amounted to
a breach of statutory duty, meant that it could not be absolved from liability).
1
See also Goodchild v Organon Laboratories Ltd [2004] EWHC 2341, [2004] All ER (D) 262
(Oct).

6.42 In Brumder v Motornet Service and Repairs Ltd [2013] EWCA Civ 195,
[2013] 3 All ER 412, [2013] 2 BCLC 58 the Court of Appeal applied Boyle to
a situation where the injured claimant was the sole director and shareholder of
the defendant company and the person through whom the company discharged
its health and safety obligations. The claimant had had a cavalier approach to
health and safety and was the very person who had breached the obligations
upon which he had sued.

Disease cases

6.43 In cases where injury has had a gradual onset, such as many forms of
occupational disease (and stress-related illness) the employee’s share in the
responsibility for the damage and hence what reduction, if any, may be just and
equitable may be very difficult to assess. The vulnerability and general circum-
stances of the employee at the relevant time have to be taken into account (there
is also the issue of the employee’s foreseeability of the harm1). In Rowntree
v Commissioner of Police for the Metropolis (26 October 2001, unreported),
QBD (Nelson J) the failure of the claimant to recognise the extent of and then
act upon and/or report her developing psychiatric problems, although caus-
ative, was held not to be blameworthy.2 In the absence of vulnerability at the
time, matters, although still difficult to assess with any precision, may be more
easily determined in the conventional way.
1
Foreseeability of harm being a requirement: see Jones v Livox Quarries [1952] 2 QB 608 at 615.
2
See also Young v Post Office [2002] EWCA Civ 661, [2002] IRLR 660.

6.44 In Barker v Corus (UK) plc (formerly Saint Gobain Pipelines plc) [2006]
UKHL 20, [2006] 2 AC 572, [2006] 3 All ER 785 the House of Lords (Lord
Rodger of Earlsferry dissenting) applied and further defined the exception to the
ordinary rule as to causation set out in Fairchild v Glenhaven Funeral Ser-
vices Ltd [2002] UKHL 22, [2002] IRLR 533 in relation to mesothelioma
cases.1 Their Lordships found that treating the creation of the risk as the
damage caused by the defendant involved quantifying the likelihood that the
damage that was known to have materialised was caused by that particular

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6.44 Contributory negligence

defendant. It would then be possible to determine the share of the damage that
should be attributed to him. On that approach questions of contributory
negligence and contribution would not normally arise. The three cases before
the court were remitted to redetermine the damages by reference to the
proportion of the risk attributable to the breaches of duty by the defendants.
However, it was explained that issues of contributory negligence did not fall out
of the picture as they could be considered in relation any particular defen-
dant’s ‘share’ by way subsequent analysis for example if the claimant had failed
to follow measure in place for his protection.2
1
See also Cookson v Novartis Grimsby Ltd [2007] EWCA Civ 1261, [2007] All ER (D) 465
(Nov).
2
See judgment of Lord Walker at [11].

6.45 In Barker v Corus (UK) plc (formerly Saint Gobain Pipelines plc) [2006]
UKHL 20, [2006] All ER (D) 23 (May) the deceased, who died of mesothe-
lioma, and who had been exposed to asbestos during his employment with the
defendant, had failed to take any precautions on just three known occasions
when he was heavily exposed to asbestos dust as a self-employed man. Moses J
found him to have been contributorily negligent and reduced the damages by
20% although it is difficult to determine upon what factors influenced this level
of deduction, a decision supported by the House of Lords as correct.

6.46 In Badger v Ministry Of Defence [2005] EWHC 2941 (QB), [2006] NLJR
65, a wife’s claim for damages, following the death of her husband through
exposure to asbestos was reduced by 20%, as her husband had contributed to
his own death by refusing to give up smoking, which also caused the lung cancer
that killed him. Stanley Burnton J held that the deceased had been guilty of a
fault that was partly responsible for his death. A reasonably prudent man,
warned that there was a substantial risk that smoking would seriously damage
his health, would stop smoking. This was a decision which attracted much
media comment at the time and was seen by many as unfair. However, the logic
is hard to impeach and there is little doubt that the claimant in continuing to
smoke knew the risks of doing so. On the medical evidence, a causative role was
established. However, in Cookson v Novartis Grimsby Ltd [2007] EWCA Civ
1261, [2007] All ER (D) 465 (Nov), another case concerning cancer and a
claimant who smoked, the issue of contributory negligence was never raised1
presumably due to a lack of foreseeability.2
1
The Court of Appeal held that the trial judge had been entitled to find that that the claim-
ant’s cancer had been caused by severe exposure to carcinogens in the form of aromatic amines
used in the production of dyestuffs during the course of his employment. The claimant had been
a moderate smoker (10–20 per day) for about 20 years, but stopped in 1980. It accepted
evidence that cigarette smoke, which also contains amines, also caused bladder cancer and that
the two forms of exposure would have acted in the same way and had at least an additive, if not
multiplicative, effect. The judge accepted expert evidence that occupational exposure was the
major contributing cause of the claimant’s illness, contributing 70% of the total risk or as more
than doubling the risk due to smoking.
2
Although quaere whether the precise form of cancer required to be foreseeable for the risk of
injury to be foreseeable, Miller v South of Scotland Electricity Board 1958 SC (HL) 20 and
Hughes v Lord Advocate (1963) AC 837; see generally para 2.22 ff. Cf McTear v Imperial
Tobacco Limited [2005] 2 SC 1, OH, concerning the fact that causation of lung cancer through
smoking was not something within judicial knowledge.

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 Contributory negligence 6.51

What conduct by a worker amounts to contributory negligence?

6.47 In the modern era virtually all aspects of most working lives are covered
by relevant safety regulation. It is important to note at the outset that an
employee is normally entitled to assume that his employer has complied with
relevant statutory duties (see Westwood v Post Office [1974] AC 1) and as a
result where there has been a breach of such duties it is important to ensure that
the statutory requirement placed on the employer is not emasculated by a
willingness on the part of the courts to find that an employee has been guilty of
contributory negligence. As Keene LJ stated in Cooper v Carillion [2003]
EWCA Civ 1811, [2003] All ER (D) 31 (Dec):
‘It is very easy for a judge with the advantage of hindsight to identify some act on the
part of the employee which would have avoided the accident occurring. That in itself
does not demonstrate negligence on the part of the employee. As Lord Tucker put it
in Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 at 648, one must avoid
treating every risky act by an employee due to familiarity with the work or some
inattention resulting from noise or strain as contributory negligence’.1
1
In relation to the importance of not overlooking the employer’s breaches of statutory duty, see
Nixon v Chance Option Developments [2002] EWCA Civ 558, [2002] All ER (D) 14 (Apr).

6.48 There are two points which are relevant in all cases of contributory
negligence. The first is that all the relevant circumstances must be considered,
such as the fact that an employee may have to give his attention to more than
one thing and should not be punished for momentary inattention.

6.49 Secondly, just as a defendant is entitled to balance the disadvantages of

safety measures against the risk involved, so too the claimant may expose
himself to some degree of risk rather than submit to the curtailment of his
activities. The question in every case is whether the claimant acted reasonably in
taking a risk: AC Billings & Sons Ltd v Riden [1958] AC 240 where an elderly
person was held justified in attempting to cross a contractor’s workplace to get
home for the night.1
1
See also Sayers v Harlow Urban District Council [1958] 2 All ER 342 (an attempt to escape
from a locked lavatory) and McCreesh v Courtaulds plc [1997] PIQR P 421 (experienced joiner
using an unguarded machine saw, failure to instruct and supervise).

Momentary inadvertence

6.50 When considering relevant conduct it is clear that mere inadvertence on

the part of an employee is not sufficient to amount to contributory negligence.
In Flower v Ebbw Vale Steel, Iron and Coal Co Ltd [1936] AC 206 Lawrence
J said:
‘The tribunal of fact has to take into account all the circumstances of work in a
factory and it is not for every risky thing which a workman in the factory may do in
his familiarity with the machinery that a plaintiff ought to be held guilty of
contributory negligence.’

6.51 Lord Atkin in Caswell v Powell Duffryn Associated Collieries Ltd

[1940] AC 152 expressed agreement with Lawrence J:
‘I am of the opinion that the care to be expected of the plaintiff in the circumstances
will vary with the circumstances; and that a different degree of care may well be

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6.51 Contributory negligence

expected from a workman in a factory or a mine from that which might be taken by
an ordinary man not exposed continually to the noise, strain and manifold risks of
factory or mine.’

Lord Wright said in the same case (at 176–178):

‘The jury have to draw the line where mere thoughtlessness or inadvertence ceases,
and where negligence begins—what is all important is to adapt the standard of what
is negligence to the facts, and to give due regard to the actual conditions under which
men work in a factory or mine, to the long hours and the fatigue, to the slackening of
attention which naturally comes from constant repetition of the same operation, to
the noise and confusion in which the man works, to his preoccupation in what he is
actually doing at the cost perhaps of some inattention to his own safety.’

6.52 Contributory fault should not be found in cases of momentary inadver-

tence. In Lawrence v Syndic Manufacturing Co Ltd [1952] 1 All ER 935
employees were engaged in repetitive and monotonous work. The court held
that they were likely to be ‘foreseeably’ inadvertent from time to time.

6.53 The argument against finding contributory negligence for such conduct is
even stronger if the employer is under a relevant statutory duty, even though it
no longer gives rise to a direct cause of action. In John Summers & Sons Ltd v
Frost [1955] AC 740 Lord Keith of Avonholm stated1 that the employers in that
case had failed to prove contributory negligence against the workman. He said:
‘The type of accident that happened here is just the type of the accident against which
section 14 [of the Factories Act 1937] is directed. There is no question here of
disobedience to orders, or of reckless disregard by a workman of his own safety. At
most there was a mere error of judgment by the plaintiff as to how the work on which
he was engaged could best be carried out, and possibly only a mere momentary
inadvertence.’

In McNeil v Roche Products Ltd [1989] SLT 498. Lord McCluskey said ‘The
whole purpose of a provision such as section 14 of the Factories Act 1961 is to
avoid the risk of accident to the inadvertent workman or passer-by’.2
1
Paragraph 777.
2
See also Mitchell v North British Rubber Co 1946 SLT 129; R v Sanyo Electrical Manufacturing
(UK) Ltd (1992) 13 Cr App Rep (S) 657, CA.

6.54 Certainly mere inadvertence has been excused in many cases, eg Hunter v
Glenfield and Kennedy 1947 SC 536 (workman on scaffold put hand through
factory wall and was injured by crane); McArdle v Andmac Roofing Co [1967]
1 All ER 583 (walked backwards pouring bitumen on roof—man behind had
gone without warning and left hole); Ryan v Manbre Sugars Ltd (1970) 114 Sol
Jo 492 (man knew of slippery step but forgot to put foot down carefully);
Stocker v Norprint Ltd (1970) 10 KIR 10 (man collecting tags from guillotine
machine put hand too far in inadequately guarded opening); John v Martin
Simms (Cheltenham) Ltd [1983] 1 All ER 127 (excavator driver looking for
leak in engine put hand near unfenced radiator fan).1 Indeed inadvertence has
been excused even in the case of skilled workers carrying out their skilled work
without any special hurry or fatigue.2 In Richard Thomas and Baldwins Ltd v

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 Contributory negligence 6.56

Cummings [1955] AC 321 a skilled worker trapped his fingers by pulling on a

belt at a point too near to the pulley.
1
The cases of Thornton v Swan Hunter (Shipbuilders) Ltd [1971] 1 WLR 1759, CA and Gunter
v John Nicholas & Sons (Port Talbot) Ltd [1993] PIQR P 67 seem at first sight out of kilter with
this line of authorities. However, in the first case though the claimant’s negligence seemed slight,
the breach by the employer was even slighter (fence removed for repairs, finger crushed whilst
testing the repairs: 75% contribution). In the second case neither Frost nor Cummings nor the
earlier House of Lords cases of Flower or Caswell were cited in argument or judgment (skilled
woodworking machinist familiar with unguarded cutter and with knowledge that it had no
brake).
2
See eg Betts v Tokley [2002] EWCA Civ 52, [2002] All ER (D) 99 (Jan).

6.55 These authorities may be seen as merely reflecting the fact that when
considering issues of contributory fault all the circumstances must be taken into
account. However, it may equally be said they properly reflect a more lenient
standard than that expected of the reasonable employer or the reasonable road
user with regard to momentary inadvertence or carelessness. Although inci-
dents of inadvertence in failing to give attention to what one is doing must imply
to some degree a lack of due care, they may be considered to be what was
described by Lord Read in Staveley Iron and Chemical Co Ltd v Jones
[1956] AC 627 as ‘excusable lapses’. The key lies in understanding that it is
foreseeable on the part of an employer that workmen may from time to time be
inadvertent. In General Cleaning Contractors Ltd v Christmas [1953] AC 180
at 189 Lord Oaksey stated:
‘It is . . . well known to employers . . . that [in] their work people very
frequently, if not habitually, careless about the risks their work may involve.’

Lord Tucker in Staveley Iron and Chemical Co Ltd v Jones [1956] AC 627
seemed to recognise this when he said:
‘Whilst accepting without question this and other dicta to a similar effect . . . in
relation to cases under the Factories Acts and other statutes imposing an absolute
obligation . . . I doubt very much whether they were ever intended or could
properly be applied to a simple case of common law negligence . . . where there is
no evidence of work people performing repetitive work under strain for long hours at
dangerous machines.’

6.56 The excusability is potentially all the greater if the employer is or ought to
be aware of the an increased potential for carelessness or lack of concentration
for example due to the monotony of the work or likely level of distraction or
competing factors diverting attention. As Lord Glennie stated in Ashbridge v
Christian Salvesen [2006] CSOH 79, OH, in a case in which he found, in
contrast to momentary carelessness, that the pursuer’s (claimant’s) attitude to
his own safety was ‘cavalier in the extreme’:
‘The question of contributory negligence involves not only a consideration of the
conduct of the pursuer but also an analysis of what it is that the statutory regulations
and the common law duty of care are designed to guard against. I propose to consider
this question by reference to the Regulations. The regulations with which I am here
concerned are designed to protect the employee against the dangers inherent in
working with machinery and equipment of various kinds. It is a feature of every
working environment that there will be moments of carelessness or lack of concen-
tration. It is in part to guard against danger arising in such an environment from such
carelessness or lack of concentration that the Regulations assume a role of great
importance. It follows that the purpose of the Regulations would be defeated if a

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6.56 Contributory negligence

finding of contributory negligence were made whenever an employee was careless

and by his carelessness contributed to the accident. This applies a fortiori to careless
or sloppy practices which have become rife and of which the employers are, or ought
to be, aware. It is, therefore, the exceptional case rather than the norm where a
finding of contributory negligence will be made.’

6.57 In another Scottish case, this time the Inner House (McGowan v W & JR
Watson [2006] CSIH 62, IH (Ex Div)) the court was concerned with a joiner
who had to cut wood on a circular saw provided by the defendants. There was
no clamp on the saw. He kept it in position by using his left hand, a finger of
which came into contact with the rotating blade. The trial judge found a breach
of PUWER. Lord Nimmo Smith, in rejecting an appeal against the finding that
there was no contributory negligence, stated:
‘counsel sought to build a case of contributory negligence on the Lord Ordi-
nary’s conclusions that the accident happened as a result of human fallibility,
aberration or lapse in attention, or inadvertence on the part of the pursuer. The
authorities quoted above are ample support for the proposition that such a failure
does not form the basis for a finding of contributory negligence on the part of an
employee who has been injured as a result of a breach by his employers of an absolute
statutory duty such as that imposed by Regulation 11(1) of the 1998 Regulations.
The reason for this is that statutory provisions of this kind are intended to protect
employees against inter alia accidents caused by inattention or inadvertence. The
protection does not extend only to employees who are fully alert. A momentary lapse,
such as occurred in the present case, falls short of being described as a lack of
reasonable care on the part of the pursuer.’

6.58 If the employer has failed to consider the possibility of such inattention or
inadvertence then not only is primary liability likely to be established1, but the
court should be slow to consider the eventuality of such foreseeable conduct as
equating to fault properly sounding in a deduction in damages.
1
In Koonjul v Thameslink Healthcare Services NHS Trust [2000] PIQR P 123, the Court of
Appeal pointed out that in carrying out a risk assessment under the Manual Handling
Regulations 1992 the employer was not entitled to assume that all its employees would on all
occasions behave with full and proper concern for their own safety (however there is no basis
for anticipating that an employee will ‘press on regardless of a risk’ when there is nothing to stop
an alternative course of action). See also Robb v Salamis (M & I) Ltd [2006] UKHL 56, [2007]
2 All ER 97.

6.59 As for conduct beyond mere inadvertence justifying a deduction for

contributory negligence, this can arise in light of knowledge of the existence of
warnings, instructions or knowledge of some risk. In Sowmez v Kebaberry
[2008] EWHC 3366 (QB), [2008] All ER (D) 326 (Oct), an employee was 20%
contributorily negligent when cleaning a mixing machine, which started to
operate, resulting in his arm being amputated. He had not used the machine in
the way he had been shown and had overridden a protective interlock which he
knew was there to prevent access to the moving parts and he was able to clean
the machine while it was stationary. Although he did not regard the slow-
moving arm as dangerous, he knew it would at some stage speed up. However,
the dividing line may be a fine one. In Robb v Salamis [2006] UKHL 56, [2007]
2 All ER 97 the claimant was living in accommodation on an offshore oil
platform. When he attempted to descend from the top bunk using the ladder, it
dislodged as it had not been properly engaged within the retaining bars and he
fell to the floor The House of Lords held that there was a legal basis for a finding

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of contributory negligence as the claimant had known that the ladders were
removable and were frequently removed and replaced, and he had accepted that
he ought to have checked the ladder. Their Lordships did not overturn what
appear to have been a harsh assessment in the Extra Division of 50% stressing
that the issue was very much based upon findings of fact, although Lord Roger
expressed the view that he would have chosen a lower percentage.

Balancing risks

6.60 The second material consideration referred to at para 6.49 above is

whether there has been a balancing of risks. The fact that there may be
disadvantages as well as advantages in any particular course of action by the
employee is particularly important in connection with failure to use equipment.
In Gibson v British Insulated Callenders Construction Co Ltd 1973 SLT 2 the
House of Lords held that, on the evidence, there was no contributory negligence
in failing to wear a safety belt on top of an electricity pylon ‘for though it could
prevent a fall to the ground, it could in some circumstances cause a fall and
might not prevent serious injury’. This may be important in the context of a
failure to use unsuitable work equipment under reg 4 PUWER.

6.61 Similarly, it may be legitimate to take a risk for the protection of other
persons put in danger by the defendants’ negligence: Ward v T E Hopkins &
Sons Ltd [1959] 3 All ER 225 where a doctor descended a well full of dangerous
fumes in order to rescue workers; and the same principle may apply to a worker
taking a risk for the protection of the employers’ property, or otherwise in the
employers’ interests. It is rare that a court will hold that the rescuer was acting
unreasonably. In McFarlane v EE Caledonian [1994] 2 All ER 1 at 10 Stuart-
Smith LJ referred to the case of a rescuer who came into the area of danger after
the event. Cardozo J in Wagner v International Rly Co 232 NY Rep 176 (1921)
said that ‘danger invites rescue’. That was cited with approval by Lord Oliver in
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Thus, it
is unlikely that workers such as policemen, firemen and others involved in
emergency services will be held to be contributorily negligent when they
deliberately enter an area of danger in order to rescue others.

Other relevant circumstances

6.62 As for other relevant circumstances, the experience and age of the worker
involved are also relevant factors: Gunter v John Nicholas & Sons (Port
Talbot) Ltd [1993] PIQR P 67 (skilled woodworking machinist, contribution
increased from 25% to 75%); McCreesh v Courtaulds plc [1997] PIQR P 421
(experienced joiner aged 53 using an unguarded machine, 100% contribution
replaced with a finding of 75%);1 Wilson v Rolls Royce plc 1998 SLT 247
(experienced worker choosing to walk over floor he knew to be covered in ice,
50% contribution); Blanchflower v Chamberlain [1996] CLY 2997 (worker
with 20 years’ experience fell while putting tarpaulin on lorry, 50%
contribution); Fraser v Winchester HA (1999) Times, 12 July (21-year-old
resident support worker promoted solely so she could take residents on a trip,
but who knew of the dangers of changing a gas cylinder too near a naked flame,
one third contribution); Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ

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6.62 Contributory negligence

412, [2003] All ER (D) 167 (Mar) (experienced operator failed to hold a gun
used to secure bolts with care when knew it was liable to kick back, 50%
contribution); Butcher v Cornwall [2002] EWCA Civ 1640, [2002] All ER (D)
274 (Oct) (experienced storeman failed secure a door which was blown open by
the wind, one third contribution); Sherlock v Chester City Council [2004]
EWCA Civ 201, [2004] All ER (D) 434 (Feb) (joiner with many years experi-
ence used bench saw without a run off table or additional support when cutting
a long piece of wood, 60% contribution). In Laszczyk v National Coal Board
[1954] 3 All ER 205 a young trainee miner was found to be 5% contributorily
negligent; but such a ‘token’ finding would now be unlikely to be made as the
reality is that the decision made was that there was no significant fault on the
part of the young employee. Special protection has been afforded to young
workers both historically2 and under the Young People at Work Directive and
the Management of Health and Safety at Work Regulations 1999, SI
1999/3242.
1
Cf McGowan v W & JR Watson [2006] CSIH 62 (IH (Ex Div)): no finding of contributory
negligence despite a functioning guard and a failure of the claimant to find and use a clamp.
2
Eg the Factories Act 1961, s 20, Denyer v Charles Skipper and East Ltd [1970] 2 All ER 382.

6.63 The obligation to adapt the work to the worker set out in the Framework
Directive and the Management of Health and Safety at Work Regulations 1999
and since carried through in, for example, the Manual Handling Operations
Regulations 1992, must affect the weight to be given to the employee’s capacity
as a factor in the apportionment of damages, so tending to diminish the degree
of contributory negligence in cases where the employer appoints an insuffi-
ciently trained, inexperienced or immature worker to undertake the task.1
1
See also Neil v Harland and Wollf (1949) 82 Ll L Rep 515, referred to under ‘volenti’ at para
6.80 below (workman working on electrical cables without removing fuses to avoid need to
shut down production).

Conduct which is not contributory negligence: illustrations

6.64 These cases are cited as illustrations of the principles to be applied. They
are not ‘precedents’ in the true legal sense. The court’s task in each case is to find
the facts upon the evidence, identify the relevant legal principles and apply
those to the facts as found. Lord Steyn in Jolley v Sutton London Bor-
ough Council [2000] 1 WLR 1082 at 1089 said:
‘ . . . in this corner of the law the results of decided cases are inevitably very
fact-sensitive. Both counsel nevertheless at times invited your Lordships to compare
the facts of the present case with the facts of other decided cases. This is a sterile
exercise. Precedent is a valuable stabilising influence in our legal system. But,
comparing the facts of and outcomes of cases in this branch of the law is a misuse of
the only proper use of precedent, viz to identify the relevant rule to apply to the facts
as found.’

6.65 Many of these cases are illustrations of situations which the court have
recognised that the employee is not placed in the same circumstances as the
employer. That principle was memorably articulated by Lord Oaksey in Gen-
eral Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189–190:
‘Employers are not exempted from this duty by the fact that the men are experienced
and might, if they were in the position of an employer, be able to lay down a

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reasonably safe system of work themselves. Workmen are not in the position of
employers. Their duties are not performed in the calm atmosphere of a boardroom
with the advice of experts. They have to make their decisions on narrow sills and
other places of danger and in circumstances where the dangers are obscured by
repetition’.

6.66 It has to be recognised that the employer creates the circumstances and
environment in which the employee has to take decisions as to precise modes of
carrying out his duties and the court should be slow to be overly critical. In
Cross v UGC Ltd (t/a Oxford Automotive) [2001] EWCA Civ 685,
[2001] All ER (D) 35 (Apr) the claimant was an experienced employee who was
cleaning a paint spray booth which involved spraying the booth with a solution
of water and cleaning fluid from up a step ladder, as a result of which the floor
would become slippery and wet. He went back up it to retrieve a piece of
equipment and on descent slipped. The system employed to prevent slipping,
the spreading of sawdust, was haphazard. A decision that the claimant, who
had failed to move the ladder before ascending to get the equipment or to have
cleaned the sole of his boots on the bottom rung before ascending, was found
not to have been contributorily negligent was upheld on appeal.

6.67 It is also not necessarily negligent for a worker to follow the method of
work accepted by the employer, even if it involves obvious risk. It is not the duty
of a worker to break way from the employer’s methods and devise a safer
system, although he may have as much skill and experience as the employer. In
Ireland the Supreme Court in Stewart v Killeen Paper Mills Ltd [1959] IR 436
has held that where the injury could not have occurred but for the breach of
statutory duty on the part of the employer the court, according to Kingsmill
Moore J at 449:
‘ . . . is entitled to take into account that the action was taken by the workman in
furtherance of the interest of his master and that zeal may have dulled the edge of
caution: that the action was one undertaken to meet a situation where if anything was
to be done it had to be rapidly and without deliberation: and that, if the act was one
which was customarily performed, the master ought to have been aware of the
practice and its danger, and ought to have taken steps to forbid it. Where it can be
shown that a regular practice exists unchecked it is difficult to convict of contributory
negligence a workman who follows such practice . . . ’.

6.68 In Moffat v Atlas Hydraulic Loaders Ltd 1992 SLT 1123, OH, an
employee was injured whilst cleaning an unguarded machine in motion in
accordance with usual practice. The pursuer was found to be ‘a keen and willing
employee who had been anxious to get on with his job, as best he could, and
who had not, at the time, given any great deal of thought as to how or why he
adopted a particular method of work . . . Such employees must, of course, be
protected against the consequences of their own zeal and enthusiasm . . . ’
(per Lord Mainoch at 1124), hence no contributory negligence.1
1
See also Dziennik v CTO Gesellschaft Fur Containertransport MBH [2006] EWCA Civ 1456,
[2006] All ER (D) 157 (Nov).

6.69 By way of further examples, in McNeill v Roche Products Ltd (No 2)

1988 SCLR 629 an employee was not negligent when he followed the estab-
lished practice of manually cutting off the petrol supplied to a machine instead
of electrically switching off. Likewise in Moffatt v Atlas Hydraulic Loaders Ltd

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6.69 Contributory negligence

1992 SLT 1123, OH, where the employee followed an ongoing practice of
cleaning the machine whilst in motion though it had been unguarded for at least
four months. Similarly, it is not negligent to disregard personal danger because
the worker is absorbed in work, nor to take a deliberate risk in the employ-
er’s interests: Neil v Harland & Wolff Ltd (1949) 82 Ll L Rep 515, CA (man
worked on cables without removing fuses, because removal of fuses would have
stopped factory); Woods v Durable Suites Ltd [1953] 2 All ER 391 (workman
provided his own makeshift staging); Machray v Stewarts & Lloyds Ltd [1964]
3 All ER 716 (rigger used makeshift tackle for urgent job, proper tackle not
available).

6.70 However, deliberate disobedience of regulations which the employer

expects to be obeyed and of the employer’s own orders which it enforces is not
to be excused by impatience to get on with the works: ICI Ltd v Shatwell
[1965] AC 656.1
1
See also Sonmez v Kebaberry [2008] EWHC 3366 (QB), [2008] All ER (D) 326 (Oct).

6.71 It is not necessarily negligent if a worker takes things for granted, where
there is nothing to put him on inquiry. In Grant v Sun Shipping Co Ltd
[1948] AC 549 a workman went into an unlighted part of a ship, where
repairers had been doing work, and stepped into an uncovered hatchway. The
House of Lords held that, though this was not a case of inadvertence, the
workman had acted ‘without conscious thought’, taking it for granted that the
statutory duty to cover the hatchways had been complied with, and that in the
circumstances this was not negligence. Lord du Parcq said, at 567:
‘Almost every workman constantly, and justifiably, takes risk in the sense that he
relies on others to do their duty, and trusts that they have done it. I am far from saying
that everyone is entitled to assume, in all circumstances, that other persons will be
careful. On the contrary, a prudent man will guard against the possible negligence of
others, when experience shows such negligence to be common. Where, however, the
negligence is a breach of regulations, made to secure the safety of workmen, which
may be presumed to be strictly enforced in the ordinary course of a ship’s discipline,
I am not prepared to say that a workman has been careless if he assumes that there has
been compliance with the law.’

In Cooper v Carillion [2003] EWCA Civ 1811, [2003] All ER (D) 31 (Dec)
Keene LJ referred to the employee’s legitimate expectation that his employer has
complied with its statutory duties (not contributorily negligent to fail to look
underneath a piece of plywood on a building site before placing feet on the area
previously concealed by it).

6.72 As set out above at paras 6.50–6.59 momentary carelessness or inadver-

tence without more on the part of a worker should be viewed as ordinarily
falling short of amounting to contributory negligence, although consideration
of the full circumstances may justify a finding.

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 Contributory negligence 6.74

Conduct which is contributorily negligent: illustrations

Disobedience of orders

6.73 A decision to breach or ignore instructions, warnings or orders will often

result in a significant finding of contributory negligence. Examples are: Smith v
Chesterfield and District Co-operative Society Ltd [1953] 1 All ER 447 (worker
put hand under guard of pastry machine); Stapley v Gypsum Mines Ltd
[1953] AC 663 (miner disobeyed orders to make roof safe); Tearle v Cheverton
and Laidler Ltd (1970) 7 KIR 364 (chief maintenance engineer, contrary to own
instructions, switched off starter button only, not power switch, then acciden-
tally caught button: two-thirds blame); Storey v National Coal Board [1983]
ICR 156 (there was 75% contributory negligence when an experienced miner
rode on a conveyor (not a man-riding) belt though he knew this was prohibited
and dangerous).1 In Williams v Port of Liverpool Stevedoring Co Ltd [1956]
2 All ER 69 a gang of six disobeyed the foreman’s orders as to the method of
unloading bags from a hold: one of the dockers was injured by the fall of a bag
and his damages were reduced by 50%; Sonmez v Kebaberry [2008] EWHC
3366 (QB), [2008] All ER (D) 326 (Oct) (an employee was 20% contributorily
negligent for failing to clean a machine as instructed, cleaning and overriding a
protective interlock).
1
See para 6.19 above in relation to the rarity of such a high finding in a case of breach of statutory
duty.

Disregard of obvious dangers

6.74 Disregard of obvious dangers was held to be negligent in Storey v

National Coal Board [1983] ICR 156 (riding on non-man-riding conveyor in
coal mine contrary to orders and warning notices, 75% fault); Gunter v John
Nichols & Sons (Port Talbot) Ltd [1993] PIQR P 67 (cleaning unguarded cutter
without a brake, fully conversant with machine and the danger); Quintas v
National Smelting Co Ltd [1961] 1 All ER 630 (on roof in track of aerial
ropeway with back turned); Johnson v J Stone & Co (Charlton) Ltd [1961]
1 All ER 869 (putting work-piece too near moving pulley); Uddin v Associated
Portland Cement Manufacturers Ltd [1965] 2 All ER 213 (climbing on top of
machine, where he had no right to be, to catch pigeon, 80% blame); Upton v
Hipgrave Bros [1965] 1 All ER 6 (carelessly aligning wheelbarrow on hoist so
that it was caught by a ledge and tipped); Lovelidge v Anselm Odling & Sons
[1967] 2 QB 351 (tie hanging over grinding tool with unfenced shaft, 50% to
blame); Leach v Standard Telephones and Cables Ltd [1966] 2 All ER 523
(using machine without authority and not adjusting fence, 25% blame); Kerry
v Carter [1969] 3 All ER 723 (youth falsely told farmer he knew how to use
circular saw, two-thirds blame); Smith v Supreme Wood Pulp Co Ltd [1968]
3 All ER 753 (driver used circular saw without experience, 25% blame); Foster
v Flexible Metal Co Ltd (1967) 4 KIR 49 (did not ask for assistance, which was
available, in re-setting machine tool); Ball v Richard Thomas and Baldwins Ltd
[1968] 1 All ER 389 (too near crane when lifting, 25% blame); Bunker v
Charles Brand & Son Ltd [1969] 2 QB 480 (not keeping firm handhold when
walking over rollers, 50% blame); Mullard v Ben Line Steamers Ltd [1970] 1
WLR 1414 (walked several paces in pitch dark, fell down hatch, one-third
blame); Jennings v Norman Collison (Contractors) Ltd [1970] 1 All ER 1121

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6.74 Contributory negligence

(building foreman overbalanced pulling key out of door without handle near
steep drop; could have fixed temporary handle to door, or safety rail, two-thirds
blame); Field v E E Jeavons & Co Ltd [1965] 2 All ER 162 (electrician wiring
electric saw not yet attached to bed: switched on to test without asking
foreman’s permission as was customary, 25% blame); Denyer v Charles Skipper
and East Ltd [1970] 2 All ER 382 (young man, properly instructed, supposed
to clean rollers when stationary, put hand in before fully stopped, 50% blame);
F E Callow v Johnson [1971] AC 335 (squeezed oil into machinery to avoid
trouble of preparing for automatic system, one-third blame); Rodway v P D
Wharfage and Transport Ltd [1973] 2 Lloyd’s Rep 511 (guiding slow-moving
crane where driver’s view imperfect, too close in front, one-third blame);
Wheeler v Copas [1981] 3 All ER 405 (builder used fruit-picking ladder for
building work on farm though it was obviously too flimsy and both stiles gave
way); Allen v Avon Rubber Co Ltd [1986] ICR 695 (drove forklift over
unfenced edge of loading bay, 50% blame); Boyes v Carnation Foods Ltd 1986
SLT 145 (mechanic cleaning hands with towel after adjusting machine,
crouched too near and towel drawn in, 50% blame); Anderson v Thames
Case Ltd 1987 SLT 564n (tried to remove rag from machine in motion, 50%
blame); Fraser v Winchester HA (1999) Times, 12 July (changing a gas cylinder
too near to a naked flame, one third blame); Parker v PFC Flooring Supplies Ltd
[2001] EWCA Civ 1533, [2001] All ER (D) 168 (Oct) (employee climbing on a
roof which he knew to be slippery, 50% blame); Betts v Tockley [2002] EWCA
Civ 52, [2002] All ER (D) 99 (Jan) (leaving premises via an unlit set of steps
rather than the front door, 60% blame); Anderson v Newham College of
Further Education [2002] EWCA Civ 505, [2003] ICR 212 (site supervisor
tripped on protruding leg of white board in classroom, 50% blame); Griffiths v
Vauxhall Motors Ltd [2003] EWCA Civ 412, [2003] All ER (D) 167 (Mar)
(experienced operator failed to hold a gun used to secure bolts with care when
knew it was liable to kick back, 50% blame); Butcher v Corn-
wall County Council [2002] EWCA Civ 1640, [2002] All ER (D) 274 (Oct)
(experienced storeman failed secure a door which was blown open by the wind,
one third blame); Sherlock v Chester City Council [2004] EWCA Civ 201
(failed to use a second work bench or additional support when using a bench
saw to cut a long board, 60% blame); Ashbridge v Christian Salvesen [2006]
CSOH 79, OH (opening door of tank containing caustic liquid before checking
fully drained, 50% blame); Ellis v William Cook Leeds Ltd [2007] EWCA Civ
1232, [2007] All ER (D) 24 (Nov) (standing too close to a crane whilst in
operation, 25% blame increased to 50% on appeal); Eyres v Atkinson Kitchens
and Bedrooms Ltd [2007] EWCA Civ 365, (2007) Times, 21 May (driver fell
asleep after excessive hours behind the wheel; must have realised beforehand
that he was at risk of falling asleep, 33% blame); Sonmez v Kebaberry [2008]
EWHC 3366 (QB), [2008] All ER (D) 326 (Oct); not using a mixing machine in
the way he had been shown and overriding a protective interlock he knew was
there to prevent access to the moving parts, 20% blame); Tibbatts v British
Airways [2009] EWHC 815 (QB), [2009] All ER (D) 109 (May) baggage-
handler lifting a bag which he knew should have been lifted by two people, 33%
blame).

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 Contributory negligence 6.76

Failure to be on the alert for dangers

6.75 Some of these cases are just over the borderline from ‘excusable lapses’. In
Smith (or Westwood) v National Coal Board [1967] 2 All ER 593 a majority of
the House of Lords assessed 25% blame for scrambling up an awkward bank
instead of stopping as a shunting train approached (Lords Hodson and Upjohn
thought it was excusable misjudgment in emergency). Examples are Astell v
London Transport Board [1966] 2 All ER 748 (in manoeuvring long pipe round
corner of stairs, crouched below level of safety rail, 25% blame); Woollins v
British Celanese Ltd (1966) 1 KIR 438 (not testing fragility of flat roof before
stepping on it, 50% blame); Kendrick v Cozens and Sutcliffe Ltd (1968) 4 KIR
469 (working from ladder, moved on to fragile roof to avoid sparks, 75%
blame); McDowell v FMC (Meat) Ltd (1967) 3 KIR 595 (experienced manager
failed to spot overhead power line at showground, one-fifth blame); Wheat v E
Lacon & Co Ltd [1966] AC 552 (overconfident that bottom of unlit staircase
reached); Baron v B French Ltd [1971] 3 All ER 1111 (tripped over rubble heap
in poorly lit corridor, hospital under construction, 50% blame); Cox v Angus
[1981] ICR 683 (electrician working in cab of fire engine failed to see loose pipe
lying there and tripped over it, 50% blame); Sole v WJ Hallt Ltd [1973] QB 574
(stepped back near unfenced drop, one-third blame); Byrne v E H Smith, Ltd
[1973] 1 All ER 490 (walked along roof gutter, one foot on fragile asbestos,
20% blame); Boothman v British Northrop Ltd (1972) 13 KIR 112 (tripped
over cable of own welding torch, 25% blame); McClymont v Glasgow Corpn
1971 SLT 45 (mechanic squatting by bus on four foot high servicing platform
slipped under single-rail fence, 75% blame, perhaps not because mechanic was
seriously negligent but because employer’s fault was small); Egan v Central
Manchester and Manchester Children’s University Hospital NHS Trust [2008]
EWCA Civ 1424, [2009] ICR 585 (not looked carefully to see exactly where the
forks of a hoist were going under a bath, 50% blame).

Conclusion

6.76 The matters set out above establish that the following principles should be
applied when considering if and to what extent conduct amounts to contribu-
tory negligence:
(a) In order to establish contributory negligence resulting in a deduction
from the award of damages the defendant must first establish on balance
of probabilities:
(i) that the claimant was at fault;
(ii) that the fault was causative of the relevant injury;
(iii) that it would be just and equitable for the damages to be reduced.
(b) The fault of a person in a workplace is much more excusable that that of
a person in other circumstances. Contributory negligence does not
follow in most cases of momentary carelessness or inadvertence.
(c) Assessment of the injured person’s share in the responsibility is under-
taken through consideration of his or her relative blameworthiness as
against the defendant’s own failures and of the causative potency of the
relevant act/omission.
(d) Consideration of the apportionment of fault should be comparative and
undertaken with a broad, jury-like, commonsense approach. The fact
that a high degree of fault is attributed to the claimant does not

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necessarily mean that he or she was grossly negligent; it may only mean
that the defendant’s fault was when viewed in comparison was slight, or
played a minor part in causation.
(e) In a case involving a breach of statutory duty case close consideration
should be given to the correctness of any assessment under 20% or
significantly over 50%. If under 20%, regard should be given to the
raison d’etre of the relevant statutory duty; and that momentary inad-
vertence should not ordinarily result in a deduction for contributory
fault. Any reduction over 50% should be treated with caution as it is a
long-standing conventional limit in case of breach of a duty. It follows
that any reduction over 50% should rise slowly with a reduction of 75%
being the practical maximum if the claimant has established a causative
breach of duty by the defendant1.
1
If he or she has not done so then this issue would not arise since the claim will have already
failed.

Consenting to the risk of injury

6.77 This concept has been long referred to by use of the latin maxim ‘volenti
non fit injuria’ which literally means ‘no injury is done to one who consents’. A
person who consents (expressly or by implication) to run the risk of injury
created by another person cannot recover damages for injuries sustained as a
result of such risks. As Lord Bingham stated in Corr (Administratrix of Corr
decd) v IBC Vehicles Ltd [2008] UKHL 13, [2008] 1 AC 884:
‘It is a salutary and fair principle that tortfeasor cannot be held responsible for injury
of damage to which a victim voluntarily and with eyes open consents.’

6.78 This principle may afford a complete defence1 to any personal injury
action founded on common law negligence (as opposed to an action based on a
breach of statutory duty). However, in practice, its success is exceptionally rare
especially in employers’ liability cases (the previous author of this chapter in the
15th edition of this work noted that there had been no recent reported cases of
the defence succeeding in this field). This is far from surprising, as the difficulty
of mounting such a defence successfully in an employer/employee negligence
action has long been acknowledged due to the very nature of the relationship
and its inherent inequality which negates true voluntariness. As was pointed out
in Merrington v Ironbridge Metalworks Ltd [1952] 2 All ER 1101 per Hallett
J at 1103:
‘A real assent to the assumption of the risk without compensation must be shown by
the circumstances . . . If, however, a man acts under the compulsion of a duty, such
consent should rarely, if ever, be inferred, because a man cannot be said to be
“willing” unless he is in a position to choose freely.’
1
And as a result must be specifically set out in the defence as pleaded.

6.79 However, this is not a totally dead defence, and the decision of the Court
of Appeal in Clay v TUI UK Ltd [2018] EWCA Civ 1177, [2018] 4 All ER 672
has acted as an encouragement to defendants to plead this. That was a case
concerning travel regulations and holiday claims so the inequity between the
claimant and defendants did not apply. However, the Court of Appeal refused
to interfere with a harsh finding that the actions of the claimant were so foolish

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 Contributory negligence 6.83

as to entitle the defendant to rely on them as a complete defence in a case where

they were found to be in breach of the relevant local standards. Hamblin LJ
identified three key elements to the defence. As Aikens LJ observed in Spencer v
Wincanton Holdings Ltd [2009] EWCA Civ 1404 at [45], where the line is to be
drawn is not capable of precise definition. Various considerations may, how-
ever, commonly be relevant. In a case involving intervening conduct, these may
include:
(1) The extent to which the conduct was reasonably foreseeable – in general,
the more foreseeable it is, the less likely it is to be a novus actus
interveniens.
(2) The degree of unreasonableness of the conduct – in general, the more
unreasonable the conduct, the more likely it is to be a novus actus
interveniens and a number of cases have stressed the need for a high
degree of unreasonableness.
(3) The extent to which it was voluntary and independent conduct – in
general, the more deliberate the act, the more informed it is and the
greater the free choice involved, the more likely it is to be a novus actus
interveniens.

6.80 The mere fact that an employee is aware of a risk and then proceeds to run
that risk cannot, in itself, be said to amount to full and free consent. In Neil v
Harland and Wolff Ltd (1949) 82 Ll L Rep 515 a workman consciously took
the risk of working with electrical cables without removing the fuses, so as to
avoid the need for the factory to stop production. It was held that the defence of
consent to the risk of injury was not available to the employer as the employee
had taken the risk in the interests of his employer. It has to be shown that the
employee made an implied agreement to take the risk of harm upon himself and
bear the consequences. The courts are reluctant to find the existence of an
implied agreement in this situation, unless the person who is alleged to have
made the agreement had full knowledge of the nature and extent of the risk to
be run.1
1
Osborne v London and North Western Rly Co (1888) 21 QBD 220, followed by the Court of
Appeal in White v Blackmore [1972] 2 QB 651 and Wooldridge v Sumner [1963] 2 QB 43.

6.81 Certainly continuance at work in the presence of the risk does not, of
itself, prove consent to run that risk or, more importantly, bear the consequence
of the materialisation of that risk. The Court of Appeal in Bowater v Rowley
Regis Corpn [1944] KB 476 expressed the view that there were very few cases
in the employment relationship where the defence of consent to the risk of
injury can succeed.

6.82 Whilst knowledge of the risk does not equate to consent to bear the
consequence, it may, nevertheless, amount to contributory negligence because,
on the face of it, disregard of an obvious danger can amount to contributory
negligence (see para 6.74 above).

6.83 In the employment situation there are risks which are incidental to the
employment. In respect of those the employer must take reasonable care to
protect its employee against all hazards of his employment including the
inherent risks: Ellis v Ocean Steamship Co Ltd [1958] 2 Lloyd’s Rep 373
(seaman falling overboard). A separate question is always antecedent: was the

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employer negligent?1 If the duty of care has been discharged then there is no
need for consideration of voluntary acceptance of risk.
1
The question posed by Sellers LJ in Wooldridge v Sumner [1963] 2 QB 43 at 56: ‘ . . . there
is no liability unless there is negligence . . . ’.

6.84 But what is the scope of the duty of care if a risk to health arises through
no fault on the part of the employer? Can the employee ‘consent’ to work on,
and accept the risk of injury, or has the employer a duty to act? For many years
the clear position was that once the employer had taken all appropriate steps to
minimise a risk incidental to the employment, which did not arise from
negligence, and had warned the employee of it, the employer was not obliged to
dismiss the employee or demote the employee to a lower paid job so as to
prevent or lessen exposure. This meant that the employee could consent to the
continued risk without liability on the part of the employer. In Withers v Perry
Chain Co Ltd [1961] 1 WLR 1314 the claimant, who suffered from dermatitis,
returned to work when it was known that his continuation of work would give
rise to a small risk of the dermatitis recurring. Sellers LJ stated:
‘I cannot believe that the common law requires employers to refuse to employ a
person who is willing to work for them simply because they think that it is not in the
person’s best interests to work.’1
1
See para 4.62 above, para 15.57 below and Hatton v Sutherland [2002] EWCA Civ 76, [2002]
2 All ER 1.

6.85 This view was adopted and approved in Kossinski v Chrysler UK [1973]
15 KIR 225 and Henderson v Wakefield [1997] PIQR P413. However, in
Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1 it was recognised
that taking this principle to its logical conclusion would justify perpetuating the
most unsafe practices on the basis that the employee can always leave. There-
after, in Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010, [2003]
ICR 152 the judge at first instance refused to follow this line of authority on the
basis that its origins lay 40 years previously and the landscape of employ-
er’s liability had changed considerably in the interim with duties and obligations
on employers now being much more stringent. The Court of Appeal wrestled
with the conflict between what it referred to as the ‘Withers principle’ (endors-
ing its continued validity) and the contention on behalf of the employers that
there is now a duty upon employers to protect their employees against them-
selves. The conclusion reached was that the principal consideration in deter-
mining whether or not any particular case falls within the Withers principle
must be the actual nature and extent of the known risk. On the facts in question,
the court decided that the employer was negligent for not following advice that
the employee should not continue in the relevant employment (ie he should have
been moved or dismissed). The decision failed to fully address the impact of the
range of 1992 Regulations upon the duty (in some cases absolute duty) of
employers to act in the face of potential risk to health, including through
dismissal.

6.86 In Lane Group v Farmiloe [2004] PIQR P324 the EAT was concerned
with the dismissal of an employee who was unable to wear the necessary
protective footwear due to a medical condition and whose employer would
have been in breach of the Personal Protective Equipment at Work Regulations

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1992 if he had been permitted to work on (as he was willing to do) wearing
ordinary shoes. Judge Peter Clark stated:
‘in so far as the employer’s common law duty of care is relevant, the employment
tribunal was wrong to direct itself solely in accordance with the general rule in
Withers. The significance of Coxall is the holding that there may be cases where an
employer is under a duty at law to dismiss the employee so as to protect him from
danger. We would go further on the facts of this case, applying Stark1, and conclude
that where an employer cannot comply with the requirements of the Personal
Protective Equipment Regulations, he will be in breach of his common law duty by
continuing to employ that individual in breach of the regulations and in these
circumstances, all other avenues having been properly explored, will be obliged to
dismiss him’.
1
Stark v Post Office [2000] ICR 1013.

6.87 Coxall is unsatisfactory as a decision in so far as it recognised but failed to

resolve a conflict of principle, as a result leaving the law in a state of some
uncertainty. There must be considerable doubt whether the Withers principle
has any place in the modern world of employers’ liability governed as it is by a
higher duty of care at common law and strict statutory duties. However, in any
event it is clear at the very least that the Withers principle is no longer to be
slavishly applied, notwithstanding the nature and extent of the risk to the
employee, regardless of the employee’s wishes.

6.88 Returning to the established principle of consenting to a risk, it operates

on two levels. On the first level it means that an act done to a claimant with his
or her full and informed consent cannot be complained of as being a legal
wrong. A boxer, for example, cannot claim damages for being knocked out by
his opponent provided he kept within the strict rules of the sport. The position
may be different if a competitor steps sufficiently outside the rules: see Condon
v Basi [1985] 1 WLR 866 which involved a dangerous football tackle.1 Sir John
Donaldson MR approved the statement of the applicable law formulated by
Kitto J in the Australian case of Rootes v Shelton [1968] ALR 33:
‘in a case such as the present, it must always be a question of fact, what exoneration
from a duty of care otherwise incumbent upon the defendant was implied by the act
of the plaintiff in joining in the activity . . . the conclusion to be reached must
necessarily depend, according to the concepts of the common law, upon the reason-
ableness, in relation to the special circumstances, of the conduct which caused the
plaintiffs injury.’

In Blake v Galloway [2004] EWCA Civ 814, [2004] 3 All ER 315 two teenagers
had engaged in an informal game/form of playing whereby they were throwing
pieces of bark chipping at each other. The Court of Appeal held that by
participating in the game they had both impliedly consented to the risk of a
blow to the body provided that the offending missile was thrown more or less
in accordance with the tacit understandings or conventions of the game.
1
In Elliott v Saunders and Liverpool FC Ltd (10 June 1994, unreported), Drake J applied
Condon: ‘ . . . an intentional foul or a mistake, or an error of judgment, may be enough to
give rise to liability.’

6.89 On the second level the principle is sometimes taken to refer to the
situation which arises where a claimant has voluntarily taken the risk of injury
inherent in some activity not arising from anyone’s negligence. That may

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describe the factual position but it has no application in the legal situation since
there is no negligence on the part of anyone else. In Trustees of the Poppleton v
Trustees of the Portsmouth Youth Activities Committee [2008] EWCA Civ 646,
[2009] PIQR P1 the Court of Appeal held that where there was an inherent risk
of injury as a result of a voluntarily undertaken activity (in that case the use of
a climbing wall) the law did not require the occupier of the land that the activity
occurred on to prevent an individual from engaging in that activity.

Consent and breach of statutory duty

6.90 Consent to the risk of injury is not a defence to a breach of the employ-
er’s own statutory duty: Baddeley v Granville (Earl) (1887) 19 QBD 423;
Wheeler v New Merton Boardmills Ltd [1933] 2 KB 669. However it may be a
defence to an employer’s vicarious liability for the breach of an employ-
ee’s statutory duty, particularly if the employee was not a person of superior
rank whose orders the claimant was bound to obey: ICI Ltd v Shatwell
[1965] AC 656. Shatwell was an extreme case where the claimant, one of two
shot firers in a quarry, fully appreciating the risk of explosion, consented to and
actually took part in a deviation from regulations, strictly enforced by the
employers. It is best viewed as confined to its own facts.

LIABILITY TO AN UNPAID VOLUNTEER WORKER

6.91 It has long been the case that claimant who was an unpaid volunteer
worker could potentially succeed in an action for damages, if he could show
that he was present in some capacity which created a common law duty towards
him. In Hayward v Drury Lane Theatre Ltd and Moss’ Empires Ltd [1917]
2 KB 899 the claimant was injured at a theatre where she was attending
rehearsals with a view to engagement as a dancer. It was held that she was
entitled to recover damages as an invitee. In Lomas v Jones M & Son [1944]
1 KB 4 the defendants had delivered a cow to the claimant’s farmyard, and the
claimant was helping to close the doors of the van when he was injured owing
to the driver’s negligence. It was held that the defendants were liable, as the
claimant was lawfully present in his own farmyard, and the defendants owed
him a duty of care. Much more recently in Bottomley v Todmorden Cricket
Club [2003] EWCA Civ 1575, [2003] 48 LS Gaz R 18 the Court of Appeal held
that the defendant club which allowed a dangerous pyrotechnic display to take
place on its land owed a duty of care to the claimant who was lawfully on the
land assisting the contractors conducting the display, and was liable to the
claimant along with the contractors when he was injured in an explosion
because they and the club had failed to take ordinary precautions.

6.92 The modern approach at common law, it is suggested, is to focus on the

degree of control exercised by the ‘user’ or ‘borrower’ of the volunteer’s ser-
vices. And the consequential degree of reliance of the worker on the work being
conducted safely. The real test may well be simply one of foreseeability: was it
foreseeable that the volunteer might be injured? Liability may arise if the
activities are conducted negligently in the knowledge that the claimant was
present and maybe in danger, in accordance with general principles of negli-
gence or as a result of vicarious liability: Fitzgerald v Great Northern Rly

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 Liability to an unpaid volunteer worker 6.93

(Ireland) [1947] NI 1. In Morris v Breaveglen [1993] PIQR P 294 and Nelhams

v Sandells Maintenance Ltd and Gillespie (UK) Ltd [1996] PIQR P 52
the Court of Appeal held that where the claimant had been ‘lent’ to another
employer, his own employer remained liable to him when he was injured. The
duty of care owed by an employer to its employee cannot be delegated. There is
no reason in principle why the employer should not be said to owe the same
duty of care to a volunteer as it does to its workers.

6.93 In relation to potential statutory duties owed to an unpaid volunteer, these

are limited by the fact that the HSWA 1974, s 52 defines work as work as an
employee or as a self-employed person.

239