England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RICH QC)

		Royal Courts of Justice Strand London WC2 Monday, 25th March 2002

Monday, 25th March 2002

1. LORD JUSTICE SEDLEY: The respondent and cross-appellant, Mr Anderson, worked for the appellant institution. He suffered two nasty fractures at work when he sustained a fall. The circumstances are described clearly and briefly by His Honour Judge Rich QC, who tried this action on liability only at the Central London County Court on 4th June 2001, and who gave judgment for the claimant for 10 per cent of the damages to which he would have been entitled.
2. The judge said this:

"On 15th February 1997 the claimant, who was employed by the defendant as a mobile site supervisor, was called into the Newham College of Further Education in order to deal with a failure or allow entry to an engineer to deal with a failure in the internal security systems. Whilst there, he checked the premises and entered one particular classroom where he observed that there was a broken window. The broken window was in the left-hand wall as he entered the room from the door, which was placed at the extreme end of the wall adjacent to that in which the broken window was observed. The main light to the room was provided by a series of windows in the wall opposite to the door and the claimant thought it necessary whilst going to inspect the observed broken window to look out also in case other windows had also been broken.

The room into which he entered was a well-lit, roughly square room some 24 feet in each direction, although precise measurements have not been provided to the court. It was laid out as a classroom with a series of tables or desks ranged around a hollow square facing towards the wall in which the door was positioned. Thus, as it were, the teaching end of the room was between the door and the window to which the claimant wished to go. It is accepted on his behalf that there was ample room for him to pass between the furniture required for the teaching end of the room and the students' tables in the body of the room. However, there was ranged against the wall amongst the teaching furniture a frame containing a white board, whose dimentions and arrangement I must describe in some detail shortly. A similar piece of furniture has been brought into the court for my inspection. Suffice it to say for the moment that the claimant tripped over the horizontal support of this frame and in doing so caused himself some serious injury..."

The apparatus in question shares with the camel and the umbrella the characteristic of being easier to recognise than to describe. Essentially, however (and we have seen photographs), it is simply a standing frame fixed to the ends of two long wheeled feet and canted backwards, with the white-board secured to it. The top of the frame, which stands about 6' 6" high, comes well short of the reach of the feet, so that in side elevation it resembles an italic capital L. The result is that if the board on its frame is properly placed with its exposed feet pointing towards the wall, the apparatus can be expected to alert passers by to its presence and position and enable them to pass it in safety. If it is stood the other way round (as it was on the judge's findings), there are two long feet, each of them some 2' in length, sticking into the gangway, elevated on wheels and creating a very obvious tripping hazard. It is indeed the obviousness of the hazard on which each party relies in the present case.

The judge held that there was no negligence at common law but that there had been a breach of Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992. This provides in its material part:

"So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."

3. Although the judge considered the claimant to blame for not seeing and avoiding the hazard, he considered that on principle contributory negligence could not rob him of the entirety of his damages, but held him 90 per cent to blame. He gave both parties unrestricted permission to appeal. If we uphold the finding of breach of statutory duty Mr Nicholson, for the claimant, does not press his appeal against the dismissal of the claim in negligence at common law. Instead, he relies on the finding of breach of statutory duty to roll back the apportionment of contributory negligence.
4. The first argument of the appellant defendants goes to liability. It is that "an article which may cause a person to trip" is a description of the article itself, irrespective of its location. I have attempted in vain to grapple with and come to terms with this concept. In spite of an invitation to do so, Mr Snowdon, for the appellant, has been unable to give a single illustration of an article which is a tripping hazard wherever it is.
5. It seems too obvious to require statement that an object may be either in a safe or an unsafe place, and that it is only when it is in the latter that it constitutes a tripping hazard. The entire point of the regulation is to keep floors and passageways clear of obstructions and tripping hazards. The reason, which is equally important, is that people do not always look where they are going.
6. Nothing was simpler or therefore more reasonably practicable than to have turned the frame through 180 degrees so as to point its feet to the wall. The judge was therefore entirely right, in my judgment, to hold that there had been a breach of statutory duty. The important issue is whether, as the appellant next asserts, the judge ought to have followed through the logic of his findings and found the claimant either 100 per cent contributorily negligent or, in the alternative, solely at fault for the occurrence of the accident. If Mr Snowdon fails in this Mr Nicholson in turn submits that the apportionment of contributory negligence at 90 per cent is too high and that this is, on the judge's findings, a 50/50 case.
7. The principal basis upon which Mr Snowdon submits that the judge should have pursued the logic of his findings (to which I will come later in this judgment) to the point of finding 100 per cent contributory negligence, is the decision of this court in Jayes v IMI (Kynoch) Ltd [1985] ICR 155. The headnote of that decision reads:

"The plaintiff, a most experienced supervisor at the defendants' factory, called in two fitters to deal with a fault which had developed in a power press machine. The guard was removed from the working part of the machine, including the moving belt, and the fitters tried to remedy the trouble which involved a lubrication problem. The machine was started for testing purposes. While the machine was in motion the plaintiff took a piece of rag in order to stop grease from spreading from the pulley on to the belt but the rag became caught and the plaintiff's right index finger was pulled into the machine. He suffered a partial amputation of the finger.

The plaintiff claimed damages for breach of the duty to fence a dangerous part of the machinery imposed by section 14 of the Factories Act 1961 and claimed that the defendants had not complied with regulation 5(a) and (d) of the Operations at Unfenced Machinery Regulations 1938. At the trial of his action the plaintiff admitted that what he had done was a very foolish thing to do. Macpherson J assumed that there was a breach of statutory duty by the defendants but held that the accident was entirely the fault of the plaintiff and gave judgment for the defendants.

On appeal by the plaintiff:-

Held, dismissing the appeal that there was no principle of law which required that even where there was a breach of statutory duty in circumstances where the intention of the statute was to provide protection against folly on the part of a workman there could not be a case of 100 per cent contributory negligence on the part of the workman; and that, accordingly, the judge had been entitled to conclude on the facts that the fault was entirely that of the plaintiff.

Per curiam. There comes a point where the degree of fault is so great that the court ceases to make fine distinctions and to hold that, in practical terms, the fault is entirely that of the workman."

8. The leading judgment was delivered ex tempore by Robert Goff LJ, as he then was. I will quote the material part of his judgment, with which the other two members of the court, Oliver LJ and Sir John Donaldson MR, agreed without adding anything.

"Before this court Mr May [for the appellant] has made two submissions. He submitted that in a case of this kind where there has been a breach of statutory duty - a breach of the duty to fence the machine - one of the principal purposes of fencing machinery is to guard against the possibility of someone committing an act of folly and, in those circumstances, it is quite inappropriate to hold that a workman is guilty of 100 per cent contributory negligence. In such a case as this, there may well be fault on both sides, but there must be some degree of fault on the part of the employer which is sufficient to enable the employee, however foolish, to recover some proportion of his damage.

In my judgment, that proposition is one which cannot be supported as a matter of law. We are here in the field of contributory negligence. We shall assume, as the judge did, that there has been a breach of statutory duty; and we have to have regard to the terms of section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the principle of which is that, in the event of contributory negligence, the award of damages

'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.'

In my judgment, there is no principle of law which requires that, even where there is a breach of statutory duty in circumstances such as the present (where the intention of the statute is to provide protection, inter alia, against folly on the part of a workman), there cannot be a case where the folly is of such a kind or of such a degree that there cannot be 100 per cent contributory negligence on the part of the workman. If authority is needed for that proposition, we need only turn to Mitchell v WS Westin Ltd [1965] 1 WLR 297, where we find in the judgments in the Court of Appeal dicta both of Sellers LJ at p 305 and Pearson LJ at pp 308-309 which show very clearly that in such a case it can properly be held that the degree of fault on the part of the workman is so great that it would be appropriate to make no order for damages on the basis of 100 per cent contributory negligence.

It must be borne in mind that in a case of this kind the court does not, for example, hold that there is 1 per cent or 2 per cent fault on the part of the employer and 99 per cent or 98 per cent fault on the part of the workman. There comes a point in time where the degree of fault is so great that the court ceases to make fine calculations of that kind and holds that, in practical terms, the fault is entirely that of the workman. It follows that Mr May's submission is one which, in point of law, I am unable to accept."

9. Robert Goff LJ went on to hold that it was not appropriate to interfere with the conclusion of the judge on the facts.
10. Without disrespect to very distinguished membership of the court which reached the decision in Jayes, it is necessary to make a number of observations about it. First, Macpherson J had not decided that there was 100 per cent contributory negligence. He had held that the accident was entirely the claimant's fault. This is a distinction which, as I shall explain in a moment, betokens a real difference. It was apparently in the submission of counsel, echoed by the court, that the language of 100 per cent contributory negligence first appeared.
11. Secondly, there was then and still is binding authority against this approach, which was not cited to the Court of Appeal. In Boyle v Kodak [1969] 1 WLR 661, the House of Lords held that to escape liability for a breach of statutory duty by which a workman has been injured, the employer must prove not only that his breach was coextensive with a breach by the injured workman of the same statutory duty, but that the employer had done all he reasonably could to ensure compliance by the employee.
12. Boyle v Kodak seems to me to be authority for at least two relevant things. One is how high a standard of proof is required to shift the entire blame for a breach of statutory duty to the injured employee himself. If the court which heard Jayes v IMI had been reminded of Boyle and Kodak it is at least doubtful whether the result, in what was a case of a breach by other employees of an absolute statutory duty under section 14, would have been the same. The other is that where such a situation is achieved by the defendant employer, there is no liability capable of apportionment: the claimant fails altogether in such a case: see in particular the speech of Lord Diplock at pages 672 to 673.
13. The significance of this becomes clear when one looks at the full wording of section 1 of the Law Reform (Contributory Negligence) Act 1945:

"(1) 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."

14. Thus the words which Robert Goff LJ summarises in the judgment which I have quoted in the phrase "in the event of contributory negligence" make it plain when they are read in full that it is only where the defendant has been fixed with a measure of liability that section 1 of the 1945 Act bites. This was spelt out very clearly in this court by Beldam LJ in Pitts v Hunt [1991] 1 QB 24 at 48. I quote:

"Section 1 of the Law Reform (Contributory Negligence) Act 1945... begins with the premise that the person 'suffers damage as the 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 damage. It is then expressly provided that the claim 'shall not be defeated by reason of the fault of the person suffering the damage...' To hold that he is 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 will recover some damages. Finally, reduction is to be 'to such extent as 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."

15. Thirdly, the case to which Robert Goff LJ refers, Mitchell v Westin [1965] 1 WLR 297, while undoubtedly it illustrates the potential effect of a claimant's own folly upon his claim, is not authority for the availability of 100 per cent contributory negligence as a proper finding. It was a case on the meaning of "in motion or use" in section 16 of the Factories Act 1961. It was in obiter remarks at the conclusion of their judgments that the members of the court turned to the question of the plaintiff's own fault. All three sets of remarks were couched in terms which reflect the House of Lords' approach in Boyle v Kodak (and, one might add, in other cases too): none of them speak of 100 per cent contributory negligence any more than Macpherson J appears to have done in Jayes.
16. Fourth, Jayes v IMI, which has not, so far as counsel's researches have established, been followed in any reported case, was trenchantly criticised in the 11th edition (1990) of Munkman on Employer's Liability by the author (who was still at that date its editor). He wrote a long footnote on page 606:

"Jayes v IMI (Kynoch) Ltd is an unfortunate decision which seems to have been made per incuriam as the House of Lords' decision in Boyle v Kodak was not cited. That case decided that employers cannot exonerate themselves from liability for a breach of statutory duty unless it was wholly brought about by the plaintiff. If it was there was no liability, so the question of contributory negligence does not arise. If it was not wholly brought about by the plaintiff there is automatically fault on the part of the employers, whether they were negligent or not, from the mere fact of breach of the duty and there must be an apportionment to them of some part of the damages. In Jayes, there were breaches of the Unfenced Machinery Regulations for which the plaintiff was not responsible in that the mechanics attending the machinery were not qualified machine attendants and no barrier had been erected to keep other persons out. The plaintiff was a supervisor who had called in the fitters. He foolishly took a rag to stop oil running and his fingers were caught. In extemporary judgments the court upheld a finding by the judge that he was 100 per cent negligent for an act of folly. The court purported to follow Mitchell v Weston Limited, the only case quoted; but the reasoning in that case is wholly discredited by Boyle v Kodak. It is to be noted that the question of 100 per cent contributory negligence which for these reasons is misconceived in a case of breach of statutory duty could not arise at all where the claim is for negligence only since if the plaintiff was 100 per cent negligent the defendant was zero per cent negligent which means he did not begin to be liable at all."

(For completeness, in the current edition of Munkman, the editors at paragraph 29.52 adopt in less trenchant language the critique of Jayes; but it is to be observed that a redundant "not" has been missed by the proof readers in the sentence "As noted above the finding of 100 per cent contributory negligence is not inconsistent with the Court of Appeal's decision in Pitts v Hunt." It appears, moreover, that the "not" has been transposed from the sentence in the following paragraph, 29.53, where, dealing with Boyle v Kodak, the editors write:

"The House held that the employer had proven that it had done all that could reasonably be expected of it to ensure compliance with the regulations."

In fact, of course, the House had held the contrary).

17. The only other instance that Mr Snowden has been able to show us of a reference at the level of this court to 100 per cent contributory negligence is a passing obiter remark by May LJ in an unreported decision, Pratt v Intermet Refractories Ltd, 21st January 2000. It, too, for the reasons I have given, should not be taken to represent the law.
18. In sum, Jayes should, in my respectful view, not be followed by judges of first instance and should not be relied upon by advocates in argument. The relevant principles are straightforward. Whether the claim is in negligence or for breach of statutory duty, if the evidence, once it has been appraised as the law requires, shows the entire fault to lie with the claimant there is no liability on the defendant. If not, then the court will consider to what extent, if any, the claimant's share in the responsibility for the damage makes it just and equitable to reduce his damages. The phrase "100 per cent contributory negligence", while expressive, is unhelpful, because it invites the court to treat a statutory qualification of the measure of damages as if it were a secondary or surrogate approach to liability, which it is not. If there is liability, contributory negligence can reduce its monetary quantification, but it cannot legally or logically nullify it.
19. Returning to the present case, the judge, unassisted by authority, was led by sound instinct to a correct view of the legal position. He said at page 7:

"Accordingly, I do find that the article was one which the defendant was under an obligation so far as is reasonably practical to keep the floor in the workplace free of. I was, I confess, much attracted by Mr Snowden's submission that since this is a piece of apparatus which could be used only by being placed on the floor it cannot be said that it is reasonably practicable in a teaching room to keep the floor free of such an article any more than it is possible to keep a floor free of other objects designed to stand on the floor, be they tables, chairs or wastepaper baskets, all of which might be a cause of tripping if blundered into with sufficient carelessness. But I think that the answer to that submission lies in the riposte of Mr Nichols, namely that it is the positioning of the article which converts it from an otherwise innocuous article into an offending article within the regulation and so if one positions such articles in innocuous positions they are innocuous articles and the floor is free of offending articles. If they are placed, however, in dangerous positions they become offending articles and thus involve breach of the regulation.

I have found myself forced, therefore, to the conclusion that the storing of this piece of apparatus, as I hold the wrong way round so that it exposes its modestly dangerous side to the risk of causing a trip, is a breach of the regulation and the question of practicability, which was not in any case relied upon as a matter of pleading, does not prevent the breach upon which the claimant relies being established."

20. The judge, however, went on to consider the measure of fault resting upon the claimant. He said:

"But I have been careful in my explanation of how that conclusion arises to use language which I do not intend to be offensive but which I think must be seen as accurate to describe what it is that had to be done by the claimant in order that this modest danger could give rise to the injury which he unhappily suffered. It seems to me, in spite of what Mr Nichols has to say, that there really cannot be a fair description of the accident which does not use language such as I have thought it appropriate to use, namely that the claimant blundered into this piece of furniture. It stood above his height, obvious to his eye, and accepted that he saw it. He says that in seeing it he assumed it was positioned in what he regarded as its usual and I accept was its correct position, with the risk of barking his shins on it if he walked into it rather than the risk of tripping over if he walked into it. That necessarily involved his making sufficient detour, if such was necessary, in order to go around the apparatus, for which there was plenty of room. As I understand the dimensions which had been given to me of the apparatus and estimating as best I may the dimensions by looking at an example of it, the central position is a little more than one foot back from either the front or the rear. Thus the diversion around the central pivot in either direction, whichever way round the apparatus is placed, involves a detour of less than 18 inches. To succeed in catching his foot under something which extended from the central position not much more than a foot required, as it seems to me, either a degree of inattention or a carelessness or a failure properly to interpret what he accepted he had noted, namely the position of the apparatus, which places the overwhelming responsibility for the accident upon the claimant himself.

It is said sad when we are the causes of our own injury and inevitably the bystander feels sympathy for the injured party but it appears to me that his share in the responsibility for his own injury was almost total and it is only the fact that regulations have been made specifically for the protection even of careless employees that makes it, in my judgment, just and equitable to leave some share of the appropriate compensation for his injury to be met by the defendant in this case. But that share, in my judgment, should be limited to 10% and I accordingly find for the claimant but subject to 90% contributory negligence."

21. Mr Snowden's submission is that the judge should have had the courage of his convictions and have held that on those findings the claimant, leaving aside any question of 100 per cent contributory negligence, was solely at fault, so as to absolve the defendants of all liability. He says it is impossible to see what else the claimants could have done. With respect to him, that seems to me to be the Achilles' heel of his argument. It is perfectly clear what the defendants should have done. They should have stood the frame the other way round. To do so was reasonably practicable within the meaning of the regulation, and the judge so found in holding that there had been a breach of it. If it had been the claimant who had stood the frame in the position in which it was, one can see the makings of a strong argument that he alone was to blame. But it was not he who had put it there.
22. The question which then remains is how far in this situation the claimant's damages should be reduced for what the judge found was his own neglect in blundering into this hazard. Mr Snowden says he would have tripped either way so that no causative fault lay upon the defendants. But what the judge found at page 4 of the judgment was this:

"It is apparent to me and the evidence of the claimant is that there is less difficulty, I think is the right way of putting it, in tripping over the horizontal bars where they are unprotected by the diagonal upright than where they are so protected; although it is equally apparent to me that it is easier to bark your shins on the park which is protected by the diagonal upright than where there is no diagonal upright upon which you could bark your shins if you determinedly blundered into the side of this piece of furniture, which stands, I am told, at a height of some six and a half feet and is hardly other than obvious to a person entering the classroom which I have described in broad daylight, which the claimant accepts obtained at the time."

23. In other words the hazard presented by the two feet sticking out was a tripping hazard of a kind marked by the gravity of the injuries which this claimant in fact sustained in falling over it. The frame if placed the right way round was at worst something which, if you blundered into it, you might bark your shins on: a quite different order of risk. That, it seems to me, demonstrates that there was more than a token degree of fault upon the defendants. In my judgment, giving the judge's criticism of the claimant for inattention to his own safety the full weight to which it is entitled, this was nevertheless a case in which the only fair apportionment of liability by reason of contributory negligence was 50/50.
24. For those reasons I would dismiss the appeal but allow the cross-appeal to the extent of substituting a finding that the claimant is entitled to one half of his damages.
25. SIR HENRY: I agree.
Appeal dismissed; cross-appeal allowed; Appellant do pay Claimant's costs summarily assessed at £4,808.18.