Nixon v Chanceoption Developments Ltd

An employer is liable for breach of statutory safety duties where a worker falls from unsafe scaffolding lacking required guard-rails. The employer cannot transfer responsibility to the worker merely because the worker may have acted unwisely or because the precise mechanism of the fall is uncertain. Exoneration may arise where the worker himself creates the breach by ignoring an obvious danger which it was his duty to guard against, but that principle did not apply where the employer’s contractor had provided deficient scaffolding and no warning had been proved. The court also rejected contributory negligence and awarded damages, including compensation for reduced earning capacity.

The claimant, a bricklayers’ labourer, was injured after falling from scaffolding while carrying mortar on a building site. The scaffolding lacked an inner guard-rail, its boards were unsecured, and other safety requirements were not met. The employer denied liability, contending that the claimant had ignored a warning not to use the scaffolding and had caused his own accident.

Following a hearing in Lincoln County Court before His Honour Judge Machin on 3 August 2001, the claim was unsuccessful. The claimant appealed, raising the effect of the admitted statutory breaches, the employer’s pleaded warning defence, contributory negligence, and the assessment of damages.

1. Appeal allowed. The employer was in clear breach of the Construction Regulations. The scaffolding was unsafe, particularly because the inner edge was unfenced despite a fall of approximately seven or eight feet. The statutory duties were intended to prevent precisely the kind of accidental fall which occurred.
2. The trial judge had concentrated on why the claimant fell and had overlooked the uncontested breaches. The exact mechanism of the fall was therefore not decisive. Whether the claimant lost his footing, was struck by a board, or was blown sideways, a properly installed guard-rail might have prevented the injury.
3. Boyle v Kodak Ltd [1969] 1 WLR 661 and Baker v T Clarke (Leeds) Ltd [1992] PIQR P262 establish that an employer may be exonerated where the claimant himself puts the employer in breach by ignoring an obvious danger which it was his duty as a skilled and responsible workman to guard against. That principle did not apply to this labourer, whose task was to fetch mortar, who had been provided with the scaffolding, and who had not been warned to stop using it.
4. The employer had pleaded that workers were instructed not to use the scaffolding, but wholly failed to prove that warning. The claimant was not responsible for the missing guard-rail or unsecured boards. There was accordingly no basis for complete exoneration or a deduction for contributory negligence.
5. The court awarded the agreed general damages of £15,000 and special damages of £1,483.52, together with interest. Applying the Smith v Manchester approach to lost earning capacity, it awarded £25,000, reflecting the accelerated onset of bilateral elbow disability.
6. The appeal was allowed with costs in both courts. Costs in the Court of Appeal, including the respondent’s notice, were to be taxed on an indemnity basis from the relevant date. Interest was awarded at five per cent above the judgment debt rate in accordance with the court’s approach to Part 36.

• Court of Appeal (Civil Division): The appeal from Lincoln County Court was allowed. Judgment was entered for the claimant with damages, interest and costs.
• Lincoln County Court: His Honour Judge Machin dismissed the claimant’s claim following judgment delivered on 3 August 2001.