Charles Jack Lee v Parminder Singh Khraud

Contributory negligence may be established by reasonable inferences from proved facts even where the precise mechanism of an accident cannot be identified. The court must still be satisfied, on the balance of probabilities, that the claimant failed to take reasonable care for his own safety and that the failure materially contributed to the accident.

On apportionment, the court must assess both causative potency and culpability. An appellate court should interfere with factual findings or apportionment only where the decision is unsupported by the evidence, outside the ambit of reasonable disagreement, or affected by an identifiable error.

The claimant appealed against a County Court decision finding him one third contributorily negligent after he fell from an unfenced mezzanine on a construction site. The defendants had conceded primary liability, accepting that a guard rail should have been installed.

The trial judge could not determine precisely how the fall occurred because the claimant suffered retrograde amnesia and there were no eyewitnesses. He nevertheless inferred that the claimant had failed to take reasonable care to avoid an obvious and foreseeable risk of falling, and reduced damages by one third. The appeal concerned the burden of proof, alleged speculation, the treatment of unchallenged evidence, and the apportionment of responsibility.

1. Appeal dismissed. The trial judge correctly placed the burden on the defendants to prove that the claimant failed to take reasonable care for his own safety and that this was a material cause of the accident.
2. The absence of direct evidence as to the precise mechanism of the fall did not prevent a finding of contributory negligence. The judge was entitled to draw reasonable inferences on the balance of probabilities from the proved facts, the findings made, and the inherent probabilities. It was sufficient to infer that, however the fall occurred, the claimant had misjudged the available space and failed to take sufficient care to stay away from the mezzanine edge.
3. The inference was supported by the visibility of the unguarded sides, the obvious and foreseeable risk of falling, the claimant’s experience as a tradesman, the width of the mezzanine, and the absence of any need for him to work near the opposite edge. The case was distinguishable from Wilsher v Essex Area Health Authority, where negligent and non-negligent factors might each have caused the condition in question.
4. The absence of an immediate investigation or photographs did not make the inference impermissible. There was no duty on the respondents to conduct such an investigation, and Keefe v Isle of Man Steam Packet Company was factually distinguishable.
5. The judge was entitled to reject unchallenged evidence from Mr Tome-Fernandez after weighing it against the first respondent’s evidence. Unchallenged evidence did not require acceptance, although the judge’s reasoning could have been expressed more clearly.
6. Apportionment required assessment of causative potency and culpability. The claimant’s conduct and the respondents’ conduct could properly be regarded as having equal causative potency, while the respondents bore greater culpability because their regulatory responsibilities were intended to prevent accidents caused by momentary lapses by workers. A one-third reduction was within the range of reasonable judgments and was not open to appellate interference.

• High Court (King’s Bench Division): appeal from the County Court decision of His Honour Judge Duddridge dated 1 September 2023. Appeal dismissed.