Cross v UGC Ltd (t/a Oxford Automotive)

An appellate court should not interfere with a trial judge’s assessment of liability merely because the evidence is finely balanced or another view might be possible. Intervention requires a sufficiently compelling error or ground. An employer may be liable where the evidence supports a finding that its system for keeping a hazardous workplace safe was haphazard. A worker’s choice of an apparently reasonable method of retrieving equipment does not necessarily amount to contributory negligence, even where a safer alternative might have been available. Appellate courts should resist the temptation to adjust or apportion liability with the benefit of hindsight where the trial judge’s assessment is properly open to him.

An employee was injured when he slipped while descending a step ladder during the routine cleaning of a paint-spraying booth. The floor was wet and contaminated by paint deposits, water and cleaning fluid. The county court found the employer liable and rejected contributory negligence.

The employer appealed. It argued that the evidence did not justify a finding that its system for controlling slipperiness was inadequate, and that the employee was contributorily negligent because he used the ladder instead of moving it and failed to ensure that his footwear was free from debris. The central issues were whether the liability finding was open on the evidence and whether the claimant’s conduct required a reduction in damages.

1. Appeal dismissed. Lord Justice Thorpe gave the principal judgment, with Lord Justice Tuckey agreeing. The order was that the appeal be dismissed with costs.
2. The evidence was sufficient to justify the county court’s finding that the system for keeping the floor safe was somewhat haphazard. The expert evidence supported the view that sawdust was used intermittently and without a regular or measured procedure. Although the case on liability was thin, the finding was open to the trial judge.
3. There was no sufficiently compelling ground for appellate interference with that assessment. The fact that the appeal court might regard the claimant as fortunate to have succeeded did not justify substituting its own evaluation for that of the trial judge.
4. The claimant’s decision to climb the ladder to retrieve the spray gun, rather than move the lightweight ladder, did not necessarily constitute contributory negligence. The method was apparently reasonable in the circumstances, and the Health and Safety Executive guidance note SG31 supported consideration of whether a task could be done more safely by another method, without making the claimant’s choice determinative.
5. The further arguments concerning cleaning the soles of the claimant’s boots and securing his foothold did not require a different result. The abbreviated ex tempore judgment had focused on the employer’s primary argument, but it was sufficiently clear that the judge would have rejected the remaining submissions. The court rejected the temptation to tinker with the apportionment of liability.

1. Court of Appeal (Civil Division). The employer appealed against the county court judgment and order. The appeal was dismissed with costs.
2. County court. His Honour Judge Simmons gave judgment for the claimant on liability on 27 November 2000 and rejected the defence of contributory negligence.