Whose fault is it anyway?
Trying to prove negligence is not easy. Some employers (or more usually their insurers) will stop at nothing to avoid taking responsibility. As a way of offloading some of the blame, many often try to argue that it was really their employee’s fault. This is called contributory negligence.
Judith Gledhill, a personal injury partner with Thompsons, outlines some of the more outrageous arguments that she has heard from employers, and looks at a few of the most recent (sometimes rather inconsistent) court decisions.
Tales that employers tell
When someone tripped over an obstacle in the dark because the lights were not working, an employer tried to argue it was the employee’s fault for not eating carrots to see in the dark. Okay, I made that one up, but the next two – although hard to believe – really are true.
A man fell about 20 feet while working on a construction site. The defence alleged: “as an experienced parachutist, he should have fallen in such a way as to minimise his injuries.”
Even better, a man who caught his hand in an unguarded machine was blamed by his employers who said: “the claimant should not have been operating the machine at the time of the accident, as he was in a state of anxiety, having had a curse put upon him by a witch.”
Give and take
Given the weakness of some of these arguments, it is then hard to believe that some insurers have the nerve to argue there should be “a bit of give and take”. Their line is that, as they have admitted fault, the claimant ought to do the same and accept some degree of responsibility.
But why should an injured employee accept responsibility in a case where the employer has admitted that it was their fault and where there is no real strength in the allegations against the employee? Just consider some of the following examples and marvel at the inconsistency of the judgements.
Dodwell -v- Tarmac Ltd
In the case of Dodwell -v- Tarmac the claimant was working with a large sleeper grab, which could move 56 sleepers in one go. The grab then had to be guided in the last few inches manually, with the result that the employee’s hands would be close to the gate into which it had to be guided.
The company accepted liability but would only offer 85 per cent of the value of the claim on the basis that their employee should have stood clear of the grab and not guide it in.
This was despite the fact that the company’s own evidence showed that employees habitually stood close and did just that. Their witness even admitted that this helped and confirmed that no training or warning had been given to employees.
The Judge found 100 per cent in the employee’s favour saying that he had a lot to concentrate on and was undertaking the work in a way and according to the standards operated by the employers and his actions were “mere inadvertence” and not negligence.
Lee -v- William Cook Defence Ltd
Some Judges’ decisions are not so rational, however, as the case of Lee -v- William Cook Defence shows.
Mr Lee stepped on the gate of a crane while it was moving. His coat caught on the cage door and his foot was crushed by the crane’s steps. He explained that it was common practice to release the control button of the crane and step off before the crane came to a complete stop.
Mr Lee said that he had just copied the person who normally operated the crane and that he had not been given any practical training. The Judge accepted that it was common practice to do what he did, but then went on to say that it was not something condoned by the employers. Although he said the employers were liable, he decided that Mr Lee should also take 50 per cent of the responsibility for the accident.
Mallet -v- Derwentside District Council
Other Judges seem to base their decision about how much an employee is to blame purely on the impression that the claimant makes on them, and whether they prefer their evidence to that of the employer.
In Mallet -v- Derwentside DC the claimant (who was a plasterer) fell from a wooden board resting on two trestles. The council alleged that Mr Mallet was at fault because the board was not properly supported when he stood on it as the distance between the trestles was too big.
Fortunately, the Judge preferred Mr Mallet’s evidence, saying that he had placed the trestles the correct distance apart. He also accepted that the board had simply broken and that this was unsafe work equipment within the Provision and Use of Work Equipment Regulations. He said, therefore, that Mr Mallet could not be held responsible in any way.
Walker -v- G F Tomlinson Buildings
Yet there are still get Judges who like to “knock a bit off”. In Walker -v- G F Tomlinson Buildings, the claimant (a building inspector) was visiting the defendant’s site when he trod on a plywood cover and fell into a manhole.
Despite the fact that he was only a visitor to the site, the Judge said he should have looked where he was going. It was obvious, apparently, that there was a manhole from the position of the plywood and the concrete surrounding it. On that basis, he reduced the award by 20 per cent and refused Mr Walker leave to appeal.
Effectively, the Judge decided that, as Mr Walker normally walked over pieces of plywood (common on building sites), he should know to be more careful. Presumably the same rationale would apply if he fell again. This is a particularly harsh decision and hopefully one that will not be followed by other Judges.
Quinn -v- St Helens Metropolitan Borough Council
In Quinn -v- St Helens Metropolitan BC, a learning assistant at a school was using a chair to stand on a table to put a display on a classroom wall. She fell as she was coming down from the table to the chair.
The employers alleged substantial contributory negligence saying that she failed to use step ladders that were available and of which she was aware.
Ms Quinn was supported by witnesses who said that it was common practice to do what she did when putting displays on a wall, and that they were not aware that stepladders were available for this purpose. Nevertheless the Judge held that she was 20 per cent liable and deducted that amount from the award.
The reality is that for many employers, attack is the best form of defence. So when launching a claim of negligence, claimants need to be aware that their employer may well try to turn the tables and argue that they were either wholly, or partly responsible, for their own misfortune.
But equally defendants should know that, as solicitors acting for injured claimants, Thompsons will always challenge their allegations and take cases to court when the employer admits their own liability. In short, we will fight them all the way when it is necessary to do so.