Toole v Bolton Metropolitan Borough Council

At the permission stage, an appeal may properly proceed where there is a real prospect that a first-instance assessment of contributory negligence was plainly wrong. Where an employer fails to take appropriate precautions and the resulting injury is of the type foreseen, it will ordinarily be rare for the employee to be found more blameworthy than the employer. The observation is provisional because the court was deciding permission to appeal, not the merits of the contributory-negligence assessment.

The claimant, an employee of the defendant local authority, suffered a needlestick injury while attempting to remove a syringe from a public lavatory. The Recorder found breaches of statutory duties and the employer’s common-law duty of care, including failures concerning training, instructions and suitable protective equipment. He nevertheless held the claimant 75 per cent responsible because he used inadequate gloves and placed his hand into the container.

The claimant applied to the Court of Appeal for permission to challenge that apportionment. The central issue was whether there was a sufficient prospect that the Recorder had been plainly wrong in assessing contributory negligence.

1. Permission granted. The Court of Appeal granted permission to appeal, allowed an amendment to the wording of the notice of appeal, and reserved costs.
2. The Recorder had found that the employer was in clear breach of both statutory duties and the common-law duty of care. The evidence indicated that the protective gloves referred to in the employer’s instructions would not have adequately protected against needle injury, although suitable gloves were available on the market.
3. There was a real prospect that the Recorder had been wrong to attribute 75 per cent of the responsibility to the claimant. The claimant could argue that the employer’s failures directly exposed him to the foreseeable risk and that the instructions were so inadequate that he could not reasonably have been expected to remember precisely what action was required.
4. Although the appellate court is reluctant to interfere with first-instance conclusions on contributory negligence, this was a case which it could properly consider. Where appropriate employer precautions have not been taken and this leads directly to an injury of the type foreseen, it will be only in a rare case that the employee should be found more to blame than the employer.
5. The court did not finally determine the apportionment of responsibility. It decided only that the proposed appeal had a real prospect of success.

• Manchester County Court: On 8 June 2001, Mr Recorder Berkley QC gave judgment for the claimant for damages but found him 75 per cent responsible for his injury.
• Court of Appeal (Civil Division): Permission to appeal was granted. Permission to amend the notice of appeal was also granted, with the amended draft to be provided within seven days. Costs were reserved.