Casson v Spotmix Ltd & Ors

Contributory negligence requires proof that the claimant’s own conduct fell below the applicable standard of care. For an employee, mere momentary inadvertence or an error of judgment will not normally suffice. The assessment must consider the workplace context, including the employee’s experience and training, established working practices, and whether a safe opportunity existed to perform the task. An acknowledgment in cross-examination that conduct involved risk, viewed with hindsight, does not by itself establish contributory negligence. Where the claimant acted in accordance with an established practice followed by colleagues and the employer had failed to provide adequate training or a safe method, a reduction in damages may be unjustified under the Law Reform (Contributory) Negligence Act 1945.

Lewis Casson appealed from the High Court’s decision in [2016] EWHC 3815 (QB). The High Court held that he was contributorily negligent and reduced the damages payable by the first and third defendants by 10 per cent.

The claimant had injured his hand while cleaning a conveyor near moving machinery. The defendants had failed to provide adequate training, and the claimant followed a practice used by fellow employees. The central issue was whether his conduct in cleaning the vertical surface immediately below the conveyor amounted to contributory negligence.

The Court of Appeal, in a joint judgment, unanimously allowed the appeal.

1. Statutory framework. Under section 1(1) of the Law Reform (Contributory) Negligence Act 1945, damages may be reduced only where the claimant’s damage resulted partly from his own fault. For this purpose, the standard of fault is the same as the standard applied when deciding whether there has been a breach of duty.
2. Employee conduct. The authorities establish that mere momentary inadvertence should not normally be treated as contributory negligence. In Summers v Frost [1955] A.C. 740 at 778, conduct involving at most an error of judgment or momentary inadvertence, without disobedience to orders or reckless disregard for safety, was capable of falling short of negligent conduct. It was conceded that contact between the claimant’s glove and the rollers, once he had begun cleaning near the moving machinery, was not itself negligent.
3. Application. The relevant conduct was the practice of cleaning the vertical surface immediately below the conveyor. The claimant was inexperienced, had received no instruction on the method of cleaning, and was following an established practice observed among fellow employees. The conveyor operated continuously, so there was no opportunity to clean it while the rollers were stationary. These circumstances strongly supported the conclusion that the claimant’s conduct fell considerably short of contributory negligence.
4. The judge placed excessive and virtually exclusive reliance on the claimant’s acknowledgment, with hindsight and common sense, that moving his hand near the machinery involved risk. That approach failed to confront the consequence that the claimant’s fellow employees, who followed the same practice, would also have been acting below the standard of a reasonable person. The finding of contributory negligence was therefore wrong, notwithstanding the trial judge’s advantage in hearing the evidence.

The court delivered a short-form judgment because the appeal raised no issue of law or matter of general application and significance, referring to Cheyne Capital (Management) UK (LLP) v Deutsche Trustee Company Limited [2016] EWCA Civ 743.

• Court of Appeal (Civil Division) — allowed the claimant’s appeal and held that the finding of contributory negligence was wrong.
• High Court of Justice, Queen’s Bench Division — in [2016] EWHC 3815 (QB), held that the claimant was contributorily negligent and reduced damages by 10 per cent.