Boyce v Wyatt Engineering & Ors

A civil judge should exercise considerable caution before determining a claim after the claimant’s evidence without requiring the defendant to elect whether to call evidence. The procedure is appropriate only in rare cases where the defendant’s evidence could not affect the assessment.

Safety regulations imposing absolute and non-delegable duties may protect employees against risks which reasonable care could have avoided. An employee’s subsequent failure to check apparently available equipment may amount to contributory negligence without making the employee the sole cause of the accident. Complete responsibility arises only exceptionally, where the employee’s conduct is an overwhelming and separate cause and the defendant’s breach merely provides the context.

The claimant, an experienced steel erector, suffered a serious ankle injury when an unsecured ladder slipped inside a sewage tank. He claimed against the second defendant as his employer for negligence and breach of the Construction (Health Safety & Welfare) Regulations 1996, and against the third defendant as occupier under the Occupiers Liability Act 1957.

After hearing only the claimant’s evidence, His Honour Judge Gosling dismissed the claims without requiring the defendants to elect whether to call evidence. He considered that the claimant’s failure to take obvious precautions was the sole cause of the accident. The appeal against the first defendant was not pursued.

The central questions were whether the claimant had presented sufficient cases of breach and causation against the employer and occupier, and whether his own conduct necessarily defeated those cases without hearing the defendants’ evidence.

1. Appeal allowed unanimously; retrial ordered. Lord Justice Mance delivered the leading judgment. Sir Martin Nourse and Lord Justice Potter agreed. The claimant had established sufficient prima facie cases against the second and third defendants. The proceedings were remitted for retrial before a different judge.

2. Determining a civil claim after the claimant’s evidence, without putting the defendants to their election, required considerable caution. A judge who provisionally found against a defendant would later have to hear further evidence while retaining an open mind. Conversely, an erroneous dismissal could produce a successful appeal and an expensive retrial. The general observation in Alexander v Rayson [1936] 1 KB 169 retained force. Only a rare case in which no defence evidence could affect the assessment might properly be decided in that way.

3. The judge had overstated the claimant’s admission and had not considered why the ladder was present or whether it appeared to have been positioned for use. More fundamentally, he had not addressed the pleaded breaches of the Construction (Health Safety & Welfare) Regulations 1996. The duties concerning safe access, prevention of falls and ladder stability were absolute and non-delegable. They were designed to protect employees even against risks which reasonable care on their part might have avoided.

4. The claimant had not created the unsafe condition. He encountered a ladder which appeared ready for use and failed to check its suitability. That failure could constitute contributory negligence, but it did not place him in the same category as claimants who had themselves created an obvious and understood risk. Breach and causation therefore remained triable issues against the employer.

5. On the claimant’s evidence, the third defendant was an occupier which retained an overall safety role. An apparently positioned ladder was prima facie something an occupier should observe. Uncertainty about who placed it did not justify dismissing the claim before the third defendant had given evidence. There was a sufficient case under the common duty of care imposed by the Occupiers Liability Act 1957.

6. Per Lord Justice Potter, a claimant may exceptionally bear 100 per cent responsibility where the claimant’s conduct is an overwhelming and separate cause, leaving the defendant’s breach as context rather than a partial cause. This was not such a case. The claimant received his costs of the appeal and of the hearing below.

1. Court of Appeal (Civil Division): The court unanimously allowed the appeal in [2001] EWCA Civ 692, reversed the relevant costs orders and remitted the claims against the second and third defendants for retrial before a different judge.
2. High Court of Justice: His Honour Judge Gosling dismissed the claims against all three defendants after hearing the claimant’s evidence, without requiring the defendants to elect whether to call evidence. No citation is stated.