Contributory Negligence - An Unsung Hero?

When is and when is it not a good idea to argue contributory negligence?

Following on from the remarkable reductions for contributory negligence in Yetkin v LB Newham (2010) and in Russell v West Sussex County Council (2010), John Goodman provides an overview on the importance of properly considering contributory negligence and recent trends that may have slipped under the radar.

Challenging Conventional Wisdom in EL Cases

What happens when an EL claim is investigated? In the vast majority of cases, the person investigating, whether claims inspector, case handler or loss adjuster, sets out the various possible breaches of statutory duty and concludes by about page 4 that liability will probably attach. There may at the very end be a throwaway comment about the possibility of arguing contributory negligence.

In our view, we are all guilty of failing to put enough focus on arguments for contributory negligence. Given that the vast majority of EL claims are settled, we ought to be putting more effort into gathering better evidence to support arguments for contributory negligence. Employees have a duty to look after their own health and safety, and accidents very often occur not just because of some default by the employer but due to a combination of factors.

Conventional wisdom has it that contributory negligence is hard to achieve in EL claims. There is some judicial support for that. As the Court of Appeal put it in Cooper v Carillion Plc, "to impose too strict a standard of care on the workman would defeat the object of the statutory requirement".

And yet, if you actually look at a range of EL cases decided in the higher courts, you will find the opposite is true. Take these three cases by way of example:

Home Office v Lowles (2004) – The claimant was a prison officer who tripped on an unmarked two inch step up in front of the doors to the side entrance as she was going to work. The Court of Appeal accepted the claim on the basis that people may well arrive for work deep in conversation and may not pay full attention to the step or even the notice warning of it, but at least damages were reduced by 50 per cent. Sherlock v Chester City Council (2004) – The claimant was an experienced worker who was using a circular saw and lost his thumb due to a sloppy work practice. The Court of Appeal accepted there should have been a risk assessment process to enable both employer and employee to take stock of the situation and act as a reminder to the...