Court of Appeal overturn finding of contributory negligence due to the Claimant following an established practice at his workplace
Lewis Casson v Spotmix Limited (in liquidation), Gable Insurance AG (in liquidation) and Red Contract Solutions (Back Office Support) Limited (formerly SDC [NW] Limited)
 EWCA Civ 1994
The trial: The Claimant had suffered injuries to his arm and hand due to his glove becoming trapped in a moving conveyor belt. At the time of the accident the Claimant was cleaning the surface of a piece of machinery positioned vertically below the conveyor.
The judge found that the Claimant had been cleaning the equipment according to the established practice for doing so. Indeed, a ladder was permanently in position to allow for such cleaning to take place and it would not have been possible to clean the equipment when the conveyor was not moving as this was never switched off. The Claimant was also an inexperienced employee and had not received any training or instructions as to how the machinery ought to be cleaned.
In evidence, the Claimant accepted that simply by placing his hand close to the conveyor he had exposed himself to risk of injury. The judge recognised that momentary inadvertence was not a factor in assessing contributory negligence. However, a finding of contributory negligence was made and damages, held to be payable by only the First Defendant and Third Defendant, reduced by 10% almost exclusively on the basis of the Claimant’s admission that his own actions were risky. This finding of contributory negligence was the subject of the appeal.
The appeal: The First and Second Respondent did not make representations at the appeal which was heard in front of Sir Terence Etherton (MR), Sir Ernest Ryder (SPT) and Mr Justice Turner, who decided to give only a short form judgment.
Due to the principle that momentary inadvertence could not amount to negligence, the Third Respondent accepted, that as a standalone fact, the Claimant’s glove becoming trapped in the machinery was not relevant in assessing whether he had been negligence. Therefore, it was accepted that a finding of contributory negligence could only be in relation to the Claimant actually cleaning the area of the machinery in question.
A Respondent’s Notice was made by the Third Defendant, asserting that the trial judge’s finding ought to be reinforced by evidence from one of the Claimant’s colleagues that, due to the risk involved, he would not have cleaned the part of the equipment that was directly below the conveyor belt. It was however noted that this colleague had never actually been responsible for cleaning the same machinery that the accident related to.
The findings of fact, detailed above, were not challenged therefore, despite the evidence from one employee, the Third Defendant did accept that if the Claimant had acted negligently then the actions of almost the entirety of the workforce fell below the standards of the reasonable man.
Upon considering the facts of the case, in particular that every employee cleaned the machinery in the same way as the Claimant had been doing, the Court of Appeal held that the trial judge ought not to have made a finding of contributory negligence.
Key Points –
- Engaging in an activity that is risky is not in itself sufficient to justify a finding of contributory negligence
- Acting in line with an established practice is a strong argument against contributory negligence
- An established practice for carrying out a task can be used to determine the standard of reasonableness
Legal Assistant to Gerard McDermott QC
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