The Claimant succeeded in establishing that his brain injury was caused by his employer in a difficult case where he had no recollection of what happened. HHJ Simpkiss, DCJ for Kent, found for a Claimant who had no recollection of how his brain injury must have been sustained but was working as a plasterer on the first floor of a landing when he fell through a barrier erected by his employer. The court found that although he could not recall what had happened due to his brain injury on the balance of probabilities, he was not doing anything wrong and/or overreaching and absent a risk assessment or proper testing of the barrier liability was established. The case was interesting because it applied the Supreme Court decision in Kennedy v Cordia (Services) LLP  UKSC 6 to hold that the common law standard for risk assessments was a similar one to the regulatory duty under s.3 of the Management of Health and Safety at Work Regulations 1999 this being a post Enterprise Act case and also for the finding that there was no contributory negligence by the Claimant despite the fact that he must have leant against the barrier with some force for the accident to have occurred applying the comments set out in my chapter on Contributory Negligence in Munkman (17th Edition 2019) and in particular the decision of Buxton LJ in Toole v Bolton MBC  EWCA Civ 588 setting out how rare significant findings are.
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