England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE OVEREND)

		Royal Courts of Justice Strand London, WC2
		2nd December 2003

1. LORD JUSTICE KEENE: This is a claimant's appeal from His Honour Judge Overend sitting at Plymouth County Court. Permission to appeal was granted by Hale LJ on the basis that a finding of 10 per cent contributory negligence on the part of the claimant is most unusual and that there is, she said, a real prospect of persuading the Court of Appeal that there should have been no finding of contributory negligence at all. It is a case where the liability of the defendants (his employers) for breach of statutory duty and negligence had been established on an earlier occasion.
2. The facts can be put fairly shortly. The claimant had been working for some considerable time as a carpenter in a large project concerning the refurbishment of dry docks. On 4th October 2001 he fell through a hatchway which served to provide access for ladders between one level and another and he fell into the subway below, suffering serious injuries. The system operated on this site was to have a scaffolding barrier around any such hatchway or, if there was no barrier, to place a steel plate or a plywood board over the aperture and in that last situation the board would be nailed down and marked "hole below". The hatchways were square, some 800 or 900 millimetres, that is to say, about 3 feet square.
3. It seems that on the night before this accident which gave rise to the claimant's injuries, the scaffolding guard around this particular hatchway had had to be removed by those who were working on the night shift in order to carry out certain work. Unhappily, after that work had been completed the scaffolding barrier was not replaced. All that was done was to place a plywood board measuring some 8 feet by 4 feet over the hole. The judge found as a fact that the plywood board was neither secure nor marked to indicate that there was a hole below it.
4. On the following morning, the claimant was working on the site and was asked by his foreman to make some shuttering. To do so he needed an appropriate piece of wood. He was not far from the plywood board covering the hole. Unaware that there was a hole there, he and the foreman lifted the board to waist height and began to carry it. They could not see beneath it and in the course of moving it the claimant fell through the hole and, as I have indicated earlier, was seriously injured.
5. The judge rejected arguments that the claimant should have been alerted to the presence of the hole by the sound made when he had earlier walked over it, and he also rejected an argument that claimant had been warned about such dangers. But the judge concluded that the claimant knew or ought to have known that there were apertures occurring at random intervals along the concrete on which he was working. He said this, at paragraph 17 of his judgment:

"True it is that he was entitled to rely upon proper precautions being taken by his employers but, nevertheless, having regard to the extent of the works and the nature of the works being carried on, it does seem to me that he should have looked underneath the plywood board before placing his feet into the area that was wholly concealed by the plywood board."

As a result he found that the claimant should bear 10 per cent of the liability.

6. The claimant now appeals against that finding of contributory negligence. On his behalf, it is emphasised by Mr McLaughlin that there were many such sheets of plywood board lying around this site available for use and not generally concealing any danger. The claimant gave evidence to that effect, as did his foreman. There was no reason why the claimant should have suspected that there was or might have been an access hatchway below this particular sheet, since it was not nailed down, sealed and marked with a sign, as such hole coverings normally were. Therefore it is submitted that it was not reasonably foreseeable that the board would conceal a hazard.
7. Mr McLaughlin stresses that there was no evidence that apertures on this site were hidden under unmarked pieces of plywood. Indeed on the contrary, he says, the claimant knew that apertures were never hidden like that. He did know that there were pieces of plywood lying around which would be reused.
8. In particular, it is argued that the fact that the foreman, Mr Kent, did not check under the plywood sheet before lifting it and moving off with it demonstrates that the claimant was not guilty of contributory negligence. The foreman's conduct would also have reinforced the claimant's belief that he was not in any danger.
9. On behalf of the defendants, Mr Parker submits, on the authority of Brown v Thompson [1968] 1 WLR 1003, that this court should not generally interfere with a trial judge's apportionment of liability. He also relies upon passages from this court's decision in Assicurazioni Generali Spa v Arab Insurance Group [2003] 1 WLR 577, a case which deals with the approach generally to be adopted by this court on appeals. He acknowledges that it is more difficult for this court to interfere where what is at issue is a finding of primary fact, particularly where that finding is based upon oral evidence not heard by this court.
10. Mr Parker contends that this was an inherently dangerous site, where someone like the claimant had to take care for his own safety. It was a cluttered site, with various materials lying around. Therefore, an employee should always have taken care when moving about. Moreover, says Mr Parker, the precaution which should have been taken was a simple one which did not require much from the employee, merely a look beneath the board before moving off. Here the claimant walked blindly into the unknown. In those circumstances, it is contended the judge was entitled to arrive at the conclusion which he did. Those then are the submissions on each side.
11. The issue in this case, given the low figure of 10 per cent attributed by the judge in respect of the claimant's contributory negligence, is whether the judge was right to find that there was contributory negligence at all on the part of the claimant. That is not a question of the apportionment of liability made by the trial judge of the sort being dealt with in Brown v Thompson, apportionments with which this court will normally be slow to interfere.
12. In my judgment, the true question in this case is whether the claimant was negligent in his conduct; that is to say, whether he ought reasonably to have foreseen that, if he acted as he did, he might suffer injury (see Jones v Livox Quarries Ltd [1952] 2 QB 608 per Denning LJ, as he then was, at page 615). That is a matter essentially of inference from the primary facts found by the trial judge, and it is something on which this court is entitled to pronounce, as it has on many occasions, just as it will on the issue of negligence itself when relied on as a cause of action by a claimant. Indeed, in the authority relied upon by the defendants of Assicurazioni Generali Spa v Arab Insurance Group it was said by Ward LJ, at paragraph 197:

"Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with an evaluation of those facts."

For my part, with that proposition I agree.

13. In the same passage to which I have earlier referred in Jones v Livox Quarries Ltd, Denning LJ went on to say that in his reckonings the claimant must take into account the possibility of others being careless. That is generally so, but it is also well established by many cases that an employee is normally entitled to assume that his employer has complied with his statutory duties (see in particular the House of Lords' decision in Westwood v Post Office [1974] AC 1). Where there has been such a breach of statutory duty by the employer, as in the present case, it is important to ensure that the statutory requirement placed on the employer is not emasculated by too great a willingness on the part of the courts to find that the employee has been guilty of contributory negligence. It is very easy for a judge with the advantage of hindsight to identify some act on the part of the employee which would have avoided the accident occurring. That in itself does not demonstrate negligence on the part of the employee. As Lord Tucker put it in Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 at 648, one must avoid treating every risky act by an employee due to familiarity with the work or some inattention resulting from noise or strain as contributory negligence. The same point was made in Mullard v Ben Line Steamers Ltd [1971] 2 All ER 424, at 428. To impose too strict a standard of care on the workman would defeat the object of the statutory requirement.
14. With these principles in mind, I turn to the facts of the present case. One can deal with them shortly. The crucial part of the judge's reasoning was that the claimant should have looked underneath the plywood board before placing his feet in the area concealed by it. One is bound to ask why he should have done so. What danger or risk would he have been expected to have been guarding against by such an action?
15. The claimant gave evidence that the board was flat on the floor, so that there could not have been debris underneath it for him to trip over and the judge does not seem to have suggested otherwise. The only real risk therefore remaining was that there was a hole, an aperture, covered by the board. Yet the evidence did not show that there would be such a state of affairs to be found on this site, other than in the one instance which led to this accident, or that there had been, in the two-year period during which the claimant had worked there, such a state of affairs. Indeed, the evidence was to the contrary. Not only was it conceded that the hole should not have been left in this condition, but there was evidence from the foreman that in cases where there was a hole it was never covered by a loose piece of plywood. Apertures were guarded against either by some form of barrier or by a nailed-down board marked "hole below".
16. In those circumstances, I can only conclude that it was not reasonably foreseeable that if the claimant acted as he did he might suffer injury. The judge consequently was wrong to conclude that there was any contributory negligence by the claimant here. For my part, having arrived at that conclusion, I would allow this appeal.
17. LORD JUSTICE SCOTT BAKER: I agree.

ORDER: Appeal allowed; the defendants to pay the claimant's costs of the trial of the preliminary issue and the appeal.

(Order not part of approved judgment) ______________________________