Contributory negligence can have a profound effect on the Claimant’s compensation

I am currently dealing with a case where my client is employed as a delivery driver. One item on his delivery list was packaged by the defendant company. The package contained work tools, which had very sharp edges. Unfortunately, the defendant company had not securely packed the items. As the client picked up the box, it split causing the sharp object to poke out and cause a severe laceration to the clients forearm. The defendant company conceded liability, subject to a 70% deduction for contributory negligence. Their reason for the reduction was because he failed to assess the package prior to lifting it. In my view this proposed offer is totally unacceptable. As Claimants, we need to consider the question of contributory negligence very carefully before accepting any fault on behalf of the Claimant. In all cases and in particular serious injury cases, the percentage of contributory negligence can have a profound effect on the Claimant’s compensation.

Prior to 1945- a plaintiff (as he then was) was dis-entitled from recovering anything if his own negligence was a substantial cause of his injury. The Law Reform (Contributory Negligence) Act 1945 provided that “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.”

According to Lord Denning in Jones v Quarries  he said, “A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself and in his reckoning he must take into account the possibility of others being careless.”

However, Employers Liability Regulations are there to protect employees against accidents caused by their exposure to pressurised work environments, dangerous machinery, complicated tasks etc. In the case of Goodchild v Organon [2004] EWHC 2341 QB- cites Staveley Iron & Chemical Company v Jones (1956) AC 627- the purpose of regulations such as the 1992 regulations is to protect workers against those acts of inattention or carelessness that are sometimes relied on as contributory negligence

This was the attitude taken by the Court in the relatively recent case of Kennedy v Chivas Brothers Ltd (2013). On the day of the incident, the Claimant was pushing a trolley when the  swivel wheels became twisted and difficult to move.  In an effort to move it , the claimant pulled the trolley, as she did so, her hand, which was holding the trolley at the side, came into contact with a protruded machine and caused her injury. One of the arguments put forward was contributory negligence because the Claimant was aware of the protruding machine and should have taken much more care  The court rejected the finding of contributory fault on the claimant’s part, because: “Momentary acts of inattention are to be expected, especially when employees are under pressure or are performing repetitive tasks. For that reason a finding of contributory negligence should only be made in a clear case; generally speaking this will be one where the employee has made a conscious decision to embark upon a risky course of action.”

In my case, it is clear that the defendant should have reasonably foreseen the risks of not properly securing the sharp items to be delivered. They had a duty not to create such risks and by the packaging not being sufficiently secured, they were in breach of that duty. My client had not acted in an unreasonable manner. In taking comfort from the decision in the above cases, I can confidently tell my client to proceed on without the risk of his compensation being reduced…and at this time of year every penny counts.

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