W v Oxley Glass Limited
Generally,
issues raised in relation to contributory negligence in road traffic accidents
are relatively easy to grapple with by reference to previous case law and
recognised accepted practice eg 25% reduction for not wearing a seat belt (if
using one would have made all the difference). However in workplace accidents,
the issues can be more difficult and assessment is usually based on experience
and intuition, rather than any technical formula.
Defendants
are often keen to bully Claimants into accepting a percentage reduction in
liability in workplace accident claims but such arguments should be resisted
depending on the specific circumstances of the case. Defence arguments range
from the fact that the employee should have known better, he or she was on a
“frolic of his own,” familiarity with the risks involved due to previous skill
and experience etc.
In
circumstances where there is a safe system of work in place, these may well be
relevant considerations but, contributory negligence should not be conceded,
when no safe system of work has been devised even where a skilled/experienced
employee is involved. It is also worthwhile remembering that the burden of
proof to establish contributory negligence falls squarely upon the Defendants
shoulders.
Claimant
lawyers will often come across such arguments in their day to day practice and
to highlight this important issue I recently acted for a Claimant who suffered
a personal injury during the course of his employment as a glazier.
The claimant’s instructions were that he
had not been provided any specific training and he was told that he would
“learn on the job”. Limited tools and equipment were provided in order to
carry out the job safely and no protective equipment was supplied such a
specialist gloves. The system of work in place was that the claimant would be
allocated various jobs when he arrived at work in the morning with no detailed
instructions as to how to carry out the various jobs and no appropriate advice
on risk assessment of such jobs.
On 1st June 2005 the Claimant
was told that he needed to attend a local school in order to repair several
windows including a skylight window. He attended the school in question and
began replacing the skylight window, which was just above head height. As he
placed the pane of glass in position, the glass came away from the framework
and fell onto the claimant. As the glass fell, the claimant raised his left
hand in order to shield his face which resulted in the glass slicing his left
index finger tendon as well as small piece of his knuckle bone. Thankfully
there was no long term sequelae and the claimant was able to return to his
normal day to day living/ability to work within a period of approximately 8 –
12 weeks.
The Defendants alleged contributory
negligence on the basis that the claimant was, in their view, an experienced
worker and should have taken more precautions when repairing an overhead
skylight window.
Infact, the claimant had only been in
the job for a short period of time and had previously been a window fitter
which was entirely different to a glazing job. Aside from these facts, it was
argued on the claimant’s behalf that it was a well established principle that
where a safe system of work had not been devised, no contributory negligence
could arise in respect of an employee who then either follows such system or
had not devised a safer system for carrying out such work. It was not the duty
of an employee to break away from the employers methods and devise a safer
system. This was the case even if the employee was skilled and experienced.
Previous case law deciding the issue such as Moffatt –v- Atlas Hydraulic
Loaders Ltd 1992 SLT 1123 was forwarded to the Defendants.
Ultimately, the Defendants accepted liability
in full and the matter settled prior to the issue of Court proceedings.
