Commentary - EL balance swings to employers

In employers' liability cases where there is breach of duty, whether statutory or common law, contri...

In employers' liability cases where there is breach of duty, whether statutory or common law, contributory negligence is usually unlikely to exceed 25%. In the few cases where it does, the court has routinely not awarded more than 50% contributory negligence without some specific aggravating features on behalf of the claimant. Primarily, these features are disregard of obvious dangers that are not inherently part of the work environment, and disobedience of orders.

In the recent case of Sherlock v Chester City Council (2004) the "conscious accepting of a risk" by an employee can be seen as an aggravating feature that can push contributory negligence beyond the usual 25%, and rarer 50%, findings.

The Court of Appeal found that the employer did not provide a safe system of work or proper equipment, failed to risk assess the method of work, failed to provide instructions, and was in breach of the Manual Handling Regulations 1992.

The court recalled its finding in Toole v Bolton Metropolitan Borough Council (2002) that "it is not usual for there to be marked findings of contributory negligence in a breach of statutory duty case", but then confined this view to momentary inattention cases.

The court then assessed contributory negligence with reference to the experience of the employee, to the precaution required to manage the risk not needing highly specialised knowledge, and to it being such that the employee could have taken it himself. The court found 60% contributory negligence.

This potentially opens up EL law as identifying employees as responsible or 'response-able', can now weigh the liability balance in the employer's favour.

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