Swain v Geoffrey Osborne Ltd & Anor

Contractors carrying out works must take reasonable steps to prevent mud or other hazardous material escaping onto adjoining highways and footways where it creates an unreasonable risk of injury. A system involving periodic inspection and end-of-day sweeping may be inadequate if it does not effectively prevent deposits or promptly remove them. A principal contractor with continuing supervisory responsibility may share liability, even where day-to-day operations have been entrusted to a subcontractor. A claimant who knows that a surface is muddy must take reasonable care when walking upon it. Contributory negligence is assessed objectively and may justify a reduction even where the defendants’ breach remains the primary cause.

The claimant, an HGV driver, sustained a serious ankle injury after slipping on a muddy footway beside a construction site. He alleged that mud had escaped from the site through vehicles leaving the works and had been dispersed onto the adjoining road and footway. The defendants disputed both the mechanism of injury and the presence of mud.

The court determined whether the claimant had proved that he slipped on a hazardous surface, whether either or both defendants were responsible for failing to prevent or remove the mud, and whether the claimant had contributed to his injury by failing to take sufficient care.

1. Mechanism of injury. The claimant was found to have descended safely from his lorry, taken a step or two around the open cab door, and slipped on the muddy footway. The contemporaneous evidence, photographs and overall circumstances supported that account. The medical evidence could not reliably determine the precise mechanism, but the injury was consistent with an awkward fall involving combined rotational and impact forces.
2. Unsafe surface and breach. The photographs and evidence established that the footway contained muddy deposits within surface water and presented an unreasonable risk of slipping. The deposits had come from vehicles entering or leaving the construction site. The system in place was inadequate because it did not sufficiently ensure that vehicle wheels were cleaned before departure or that the highway and footway were effectively checked and cleaned afterwards.
3. Responsibility. The second defendant had day-to-day responsibility for the site operations. The first defendant nevertheless retained an overarching supervisory role and was responsible for ensuring that a satisfactory system was implemented in the post-remediation period. Both defendants therefore bore responsibility towards the claimant, with the second defendant likely bearing the greater share as between them.
4. Contributory negligence and order. The claimant was aware of the apparently muddy surface and, viewed objectively, should have walked more carefully and slowly around the open cab door. His damages were reduced by 25 per cent. Judgment was entered for the claimant for 75 per cent of damages, to be assessed.