Williams v Devon County Council

An employee is not contributorily negligent merely for failing to anticipate an unexpected obstruction in a familiar workplace access route. The standard of reasonable care must reflect ordinary working conditions. In the absence of any reason for suspicion, an employee may assume that a route has been properly cleared.

The Court also gave guidance on Part 36 payments involving recoverable benefits. A payment notice must calculate the deduction of benefits in accordance with section 8 of the Social Security (Recovery of Benefits) Act 1997. It must not allow benefits to reduce general damages or other heads against which they cannot be set off.

The claimant, a part-time school kitchen manager, was injured after falling over a gym bench left across the doorway between the kitchen and hall. HHJ Griggs, in Plymouth County Court, held the council primarily liable but reduced damages by one third for contributory negligence. He also made a costs order against the claimant after deciding that she had not bettered a Part 36 payment.

The claimant appealed the finding of contributory negligence and the costs order. She did not pursue her challenge to the award for pain, suffering and loss of amenity. The costs issue concerned the interaction between Part 36 and recoverable benefits under the Social Security (Recovery of Benefits) Act 1997.

1. Appeal allowed. The Court set aside the finding that the claimant was one third contributorily negligent. She was doing a routine task and had no reason to expect a gym bench to have been left across the doorway. The judge had imposed an unrealistically high standard of care. The claimant was entitled to assume that the hall had been properly cleared, particularly as the benches appeared to have been put away and staff were laying tables.

2. The claimant therefore recovered the full assessed damages of £34,587.58. She had plainly bettered the Part 36 payment and was entitled to her costs. The Court ordered the costs of the trial and appeal on the standard basis until 28 November 2002 and thereafter on the indemnity basis, subject to detailed assessment if not agreed.

3. Although the costs issue was consequently academic, the Court gave guidance. Section 8 of the Social Security (Recovery of Benefits) Act 1997 ring-fences general damages. Recoverable benefits may reduce only the linked head of compensation identified in Schedule 2. A compensator remains liable to meet the full certificate even where contributory negligence reduces the relevant damages award.

4. Under Rule 36.23(3) of the Civil Procedure Rules, a Part 36 payment notice must state benefits by which gross compensation is reduced in accordance with section 8 and Schedule 2. The notice must therefore use only the amount properly set off against the relevant head of loss. The council had made no such calculation and had treated the whole certificate as reducing the claim. Its payment was not a proper or effective Part 36 payment.

5. Where a properly calculated payment nevertheless causes an overestimate of recoverable benefits to impinge on general damages, the court should exercise its Rule 36.20 discretion to avoid an unjust costs consequence. The claimant should receive the full value of the general-damages claim and should not be required to remedy a shortfall by appealing the benefits certificate. The Court indicated that Rule 36.23 might require reconsideration.

• Court of Appeal (Civil Division) Allowed the claimant’s appeal and set aside the finding of contributory negligence: [2003] EWCA Civ 365.
• Plymouth County Court HHJ Griggs found the council primarily liable, reduced damages by one third for contributory negligence, and made a post-Part 36 costs order against the claimant.