Anderson v Newham College of Further Education

Contributory negligence concerns the reduction of damages after liability has been established. It cannot reduce an otherwise valid claim by 100 per cent. If the claimant alone caused the damage, the defendant incurs no liability; otherwise, the damages must remain positive after any just and equitable reduction.

Under Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992, whether an article is a tripping hazard depends on its position. An article breaches the regulation where its placement creates an avoidable obstruction and repositioning it is reasonably practicable.

An employee suffered serious fractures after tripping over the projecting feet of a mobile whiteboard at his workplace. The Central London County Court held that the employer was not negligent at common law but had breached Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992. It awarded the employee 10 per cent of his damages after finding him 90 per cent contributorily negligent.

The employer appealed against liability, alternatively contending that the employee was solely at fault. The employee cross-appealed against the apportionment. The central issues were whether the whiteboard constituted an avoidable tripping hazard, whether 100 per cent contributory negligence was legally possible, and what apportionment was just and equitable.

1. Appeal dismissed and cross-appeal allowed. Sedley LJ, with whom Sir Denis Henry agreed, upheld the finding that the employer had breached Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992. An article becomes a tripping hazard through its unsafe position. Turning the whiteboard through 180 degrees would have placed its projecting feet towards the wall and was plainly reasonably practicable.

2. The expression “100 per cent contributory negligence” does not correctly state the law. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 applies only after fault causing the damage has been established on both sides. It requires a just and equitable reduction according to the claimant's share of responsibility, but presupposes that some damages remain recoverable.

3. If the evidence shows that the claimant alone caused the damage, the defendant incurs no liability and apportionment does not arise. Where liability exists, contributory negligence may reduce the damages but cannot legally or logically extinguish them. Jayes v IMI (Kynoch) Ltd [1985] ICR 155 was inconsistent with that distinction and should neither be followed by first-instance judges nor relied upon by advocates.

4. The employee's failure to avoid an obvious object carried substantial blame. Nevertheless, he had not positioned the apparatus. Its reversed position exposed projecting feet and created a materially greater risk of tripping and serious injury than the risk presented when it faced the correct way. The employer's fault was therefore more than token.

5. The only fair apportionment was 50:50. The Court substituted an award of one half of the employee's damages for the award of 10 per cent. The employer was ordered to pay the employee's costs, summarily assessed at £4,808.18.

1. Court of Appeal: In [2002] EWCA Civ 505, the employer's appeal was dismissed and the employee's cross-appeal was allowed. The employee's recoverable damages were increased from 10 per cent to 50 per cent.
2. Central London County Court: His Honour Judge Rich QC found no common-law negligence but found a breach of Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992. He awarded the employee 10 per cent of his damages after attributing 90 per cent responsibility to him.