Cooper v Carillion Plc

Contributory negligence depends on whether the claimant ought reasonably to have foreseen that acting as he did might cause injury. An appellate court may reconsider that inference from undisputed primary facts. The usual restraint concerning trial-level apportionment does not prevent review of whether contributory negligence existed at all. Employees may normally assume that their employer has complied with statutory safety duties. Courts should avoid imposing a standard so strict that it weakens those duties. Where workplace practice gave no reason to expect a loose, unmarked board to cover an aperture, failure to inspect beneath it was not reasonably foreseeable as a source of injury and did not amount to contributory negligence.

The claimant, a carpenter employed on a dry-dock refurbishment project, was injured after falling through an access hatch concealed by a loose and unmarked plywood board. The employer’s liability for breach of statutory duty and negligence had already been established.

The trial judge rejected arguments that the claimant had been warned of the danger or should have detected it by sound. However, he found that the claimant knew or ought to have known that apertures occurred at random intervals and should have looked beneath the board before moving it. He therefore found 10 per cent contributory negligence. The claimant appealed, challenging the existence of any contributory negligence. The central issue was whether his conduct was reasonably foreseeable as exposing him to injury, rather than merely how liability should be apportioned.

Disposition and reasoning

1. Appeal allowed. The issue was whether there had been contributory negligence at all. It was not an appeal against an apportionment of liability of the kind considered in Brown v Thompson [1968] 1 WLR 1003, where appellate courts are normally slow to interfere.
2. The applicable question was whether the claimant ought reasonably to have foreseen that, if he acted as he did, he might suffer injury, as stated in Jones v Livox Quarries Ltd [1952] 2 QB 608. That question involved an inference from the primary facts. Where those facts were not challenged, the Court of Appeal was entitled to draw its own inference and could more readily interfere with the trial judge’s evaluation, applying Assicurazioni Generali Spa v Arab Insurance Group [2003] 1 WLR 577.
3. An employee is normally entitled to assume that the employer has complied with its statutory duties, following Westwood v Post Office [1974] AC 1. Where the employer has breached such a duty, courts must avoid weakening the statutory requirement by too readily finding contributory negligence. They must also avoid treating every risky act, or inattention caused by familiarity with the work, noise or strain, as contributory negligence, as explained in Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 and Mullard v Ben Line Steamers Ltd [1971] 2 All ER 424.
4. The plywood board lay flat on the floor and there was no evidence that loose, unmarked boards concealed apertures on the site. The established practice was to use barriers or nailed-down boards marked to indicate a hole below. It was therefore not reasonably foreseeable that the claimant would be injured by moving this board without inspecting beneath it. The finding of contributory negligence was accordingly erroneous.
5. The defendants were ordered to pay the claimant’s costs of the trial of the preliminary issue and the appeal.

• Court of Appeal (Civil Division) ([2003] EWCA Civ 1811): allowed the claimant’s appeal and ordered the defendants to pay the costs of the preliminary issue and the appeal.
• Plymouth County Court: His Honour Judge Overend found 10 per cent contributory negligence after the employer’s liability for breach of statutory duty and negligence had been established.