Chappell v Imperial Design Ltd

In assessing contributory negligence, the court must compare the claimant’s conduct with the defendant’s conduct by reference to both relative causative potency and relative blameworthiness. A child is judged by the care reasonably expected from a child of the same age. The assessment must address the particular risk that caused the injury, rather than a more general risk which the claimant understood. Where a defendant created or failed to guard against a foreseeable danger to children, that failure may materially increase the defendant’s share of responsibility. An appellate court may interfere with an apportionment where the trial judge failed to take account of a vital fact. The appeal was therefore allowed and liability was reapportioned equally.

A 13-year-old claimant suffered severe burns when a waste container, left near the defendant’s factory, exploded after he poured residue on to a burning rag. The trial judge found the defendant negligent and in breach of statutory duty, but attributed 70 per cent of the responsibility to the claimant for contributory negligence. The defendant cross-appealed against the finding that the container came from its premises.

The claimant appealed against the apportionment. The central questions were whether the trial judge had properly assessed the claimant’s conduct by reference to his age and the risk which caused the injury, and whether the evidence supported the finding about the container’s origin.

1. Cross-appeal dismissed. There was ample evidence supporting the finding that the container came from the defendants’ premises. The trial judge was entitled to prefer the contemporary statements of the claimant’s companions, the similarity between the container and those used by the defendants, the evidence about waste collection, and the defendants’ failure to call a relevant former manager.
2. Appeal allowed and liability reapportioned 50/50. The claimant was contributorily negligent. A 13-year-old owes a duty to take reasonable care for his own safety, judged by the care reasonably expected from a child of that age. His deliberate acts of moving the container, lighting material and ignoring a warning constituted a substantial failure of care.
3. The apportionment nevertheless had to reflect the particular danger which caused the injury. The claimant knew, at most, that he was playing with fire and that this was dangerous. He did not know, and could not reasonably have been expected to know, of the risk that vapour and air within the container could produce an explosion. The defendants, by contrast, knew or ought to have known of that risk and had failed to guard against the very conduct which they recognised children might engage in.
4. In making the comparison required for apportionment, the court had to consider both the relative causative potency of the parties’ conduct and their respective blameworthiness. The defendants’ failure to control hazardous waste, reinforced by the standards reflected in the Environmental Protection Act 1990, materially increased their culpability.
5. The appellate court was entitled to reassess the apportionment because the trial judge had failed to address the claimant’s lack of appreciation of the risk of explosion. The orders were: appeal allowed; 50/50 liability substituted; cross-appeal dismissed; and costs dealt with as stated in the order.

• Court of Appeal (Civil Division): appeal from the decision of Mr Recorder Wadsworth QC in the Queen’s Bench Division, Birmingham District Registry. The appeal was allowed, liability was reapportioned equally, and the cross-appeal was dismissed.