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 EWCA Civ 505,  ICR 212, Court of Appeal - Michael Nicholson
Whether a claim was in negligence or for breach of a statutory duty, there could be no finding of 100 per cent contributory negligence. Either the claimant was wholly to blame for his injuries and there was no liability on the defendant or the defendant was to blame subject to a degree of contributory negligence on behalf of the claimant.
Appeal by the defendant ('NCFE') and cross appeal by the claimant ('W') from a decision of HH Judge Rich QC on 4 June 2001 at Central London County Court that NCFE was 10 per cent negligent in W's claim for damages for personal injuries sustained in an accident at work. W was a mobile site supervisor and attended NCFE's premises on 15 February 1997 to deal with a failed security system. Whilst making his way across a classroom W tripped over the frame of a whiteboard. The board, which was up against a wall, had a free-standing frame consisting of two long feet under which were wheels. The evidence was that had the board been turned any collision with it would have been at shin height, resulting in a barked shin rather than a trip of the serious nature that W suffered. The judge held that there was no negligence at common law, but that NCFE had breached reg.12(3) Workplace (Health, Safety and Welfare) Regulations 1992 SI 1992/3004, which placed a duty on it to keep the floor free of articles that caused tripping. The judge found that if the whiteboard been turned the other way, the incident would not have been so serious. However, the only description he could attach to the accident was that W had blundered into the board in such a way that it placed an overwhelming burden on him. The judge accordingly concluded that W's share of blame for the accident was almost total but, taking into account the breach of the Regulations, he attached 10 per cent of the blame to NCFE for W's injuries. NCFE appealed that decision and argued that according to the judge's findings of fact, he should have found W to be 100 per cent contributorily negligent. W submitted that the judge should have found NCFE to have been significantly more to blame.
HELD: (1) There was no doubt that there was a breach of the Regulations because NCFE had failed to keep the floor space free from articles that were likely to cause a trip or fall. NCFE sought to rely on Jayes v IMI (Kynoch) Ltd (1985) ICR 155 to support the argument that the judge should have found that W was 100 per cent contributorily negligent for the injuries he sustained, notwithstanding the breach of statutory duty. However, Boyle v Kodak Ltd (1969) 1 WLR 661 was binding authority against that proposition. (2) In Boyle (supra), the House of Lords held that to escape a breach of a statutory duty, the defendant had to establish that the claimant was wholly to blame or that the defendant had done all that was reasonable to ensure compliance. Boyle 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 contributory negligence because there was no blame on the defendant to be apportioned. (3) The significance of that decision was clear from s.1 Law Reform (Contributory Negligence) Act 1945 in that s.1 only took effect once the defendant had been fixed with liability (see Pitts v Hunt (1991) QB 24). (4) The decision in Jayes (supra) was per incuriam and no reference was made in the judgment to Boyle. It was a decision that should not be followed by first instance judges. (5) Whether a claim was in negligence or for breach of a statutory duty, if the evidence showed that the entirety of the blame fell on the claimant, there was no liability on the defendant. However, if the evidence showed otherwise, it was just and equitable that the extent of the claimant's blame could reduce the monetary quantification of damages. Accordingly, there could be no finding of 100 per cent contributory negligence. Either the claimant was wholly to blame for his injuries or the defendant was to blame subject to a degree of contributory negligence on behalf of the claimant. (6) The judge in this case was led by sound instinct to that correct legal position. It was clear that NCFE should have ensured that the whiteboard was turned and that would have been a reasonably practicable course to have taken. (7) The cross appeal on the extent of NCFE's liability would be allowed. The judge found that if the board had been turned, W would have sustained an injury in the order of barking to the shin which demonstrated more than a 10 per cent degree of fault on NCFE. Given the judge's findings, it was fair to apportion blame equally.
Appeal dismissed. Cross appeal allowed to the extent indicated.