It’s your fault

Contributory negligence is when defendants claim that the victim was partially responsible for their own injury, and ask the Judge to split the blame between them and the injured party

It is an argument that defendants are increasingly putting forward to avoid paying full compensation. But this is often based on a misunderstanding of the law, which says that courts should be reluctant to find blame against an employee for a momentary lapse of attention if the main cause of the accident was a breach by the employer.

In a recent case that Thompsons pursued on behalf of an Amicus member, the employee was injured when the fork lift truck he was driving collided with another vehicle that had been wrongly left in a passage, forcing him to drive into a wall.

Although the member’s injury claim was only for around £3,500, the employer at first counter-claimed for £15,000 for the cost of the repairs to the wall, increasing this to £18,000 when court proceedings were issued. After pressure from the union, the employer dropped the claim of contributory negligence.

This is just one example of how employers (and their insurers) use contributory negligence arguments to delay and deny personal injury claims.

But the case law is clear. In John Summers & Sons -v- Frost (1955) it was held that where an accident was just the type that legislation was designed to avoid, and where the workman was injured as a result of a momentary lapse of concentration (and not disobedience or reckless disregard), then no contributory negligence would be found.

And in Ryan -v- Manbre Sugars Ltd (1970) the Court of Appeal was unanimous that pure inadvertence was not negligence and excusable inadvertence was not something that Mr Ryan should be blamed for.

Lord Justice Keene said in Cooper -v- Carillion plc (2003) that an employee can have a legitimate expectation that their employer has complied with their duties. If not, employees should not share the blame equally with them.

An approach that the Court of Appeal confirmed recently in Sylwester Dziennik -v- CTO Gesellschaft Fur Container?transport MBH and Co (2006). It decided that an electrical engineer had not been at fault and partly to blame for his injuries when he was badly burned while trying to replace a defective thermosensor.

Although the High Court found that the vessel did not operate in “as tight a fashion” as it should have done in relation to safety, it said Mr Dziennik was 60 per cent to blame for not following instructions he had been shown during an informal discussion in the smoking room with the chief engineer.

However, the Court of Appeal disagreed. It said it was not clear how the Judge had come to his conclusions, given the “real doubt” as to whether Mr Dziennik had been shown how the job “should” be done as opposed to just how it “could” be done.

Nor was it clear that Mr Dziennik had been negligent when he failed to follow the informal procedure. This was only one way to do the job out of a possible three.

In Smith -v- S Notaro Ltd and Grafton Group plc (t/a Plumbase) (2006) the Court of Appeal held that employers must comply with their legal obligations, even if the employee was mostly to blame for the accident. The court said that the employer should have trained Mr Smith in the risks of using unsafe walkways, even though these were "largely a matter of common sense".

And irrespective of how much an employee is to blame for the accident, the Court of Appeal has said in Anderson -v- Newham College of Further Education (2002) that workers cannot be found to have contributed 100 per cent to their own misfortune.

But if employees have contributed, then they must pay the price. In Badger -v- Ministry of Defence (2005), the High Court said that although asbestos was partly to blame for his death, Mr Badger had contributed by continuing to smoke, despite being aware of the dangers.

So it is clear that, although employers often try to put all the blame on their employees, the courts will not always agree. Whatever the circumstances of the accident, it’s best to get expert advice from Thompsons.