Mrs Justice Cutts, on appeal from HHJ Duddridge. This case involves an appeal by the Claimant against a first instance decision that found him one-third contributory negligent for an accident that occurred on a building site where he was working in 2018.

This case involves an appeal by the Claimant against a first instance decision that found him one-third contributory negligent for an accident that occurred on a building site where he was working in 2018.

It is always interesting to see how courts deal with accidents on building sites.  Frequently fault may lie with more than one defendant (or at least such allegations are made) and the claimant may also be alleged to have been contributorily negligent.

The Facts

The Claimant, a self-employed plasterer, suffered serious injury after falling from an unfenced mezzanine floor at a construction site. The Defendants, including the property owner and contractors, conceded primary liability but argued for a reduction in damages due to the Claimant’s contributory negligence. The trial judge found the Claimant contributorily negligent, reducing his damages by one-third.  It was this decision which the Claimant appealed.

The construction site was managed by the First Defendant who was also the property owner. The site was a new build where the Claimant, although not scheduled to work on the day of the accident, visited and assisted in moving plasterboards.

The mezzanine floor from which he fell was unfenced, and the Defendants admitted that safety measures such as guard rails should have been in place. The trial judge found that the Claimant despite his experience, failed to take reasonable care to avoid the obvious risk of falling, leading to the finding of contributory negligence.

The precise nature of how the accident occurred was unknown since the Claimant experienced retrograde amnesia, and the accident was not otherwise witnessed. 

The Claimant's Arguments:

The Claimant argued that the trial judge erred in finding him contributorily negligent without direct evidence of how the accident occurred. He contended that the burden of proof was improperly applied and that the judge's conclusions were speculative. He also argued that the judge failed to consider the lack of investigation by the Defendants into the accident's cause and that the apportionment of negligence was unjust given the Defendants' greater responsibility for site safety.

The Defendants' Arguments: 

The Defendants maintained that the Claimant, as a self-employed contractor, had a duty to ensure his own safety and that the risk of falling was obvious and foreseeable. They argued that the trial judge correctly applied the burden of proof and drew reasonable inferences from the evidence. The Defendants also contended that the apportionment of negligence was appropriate, given the Claimant’s failure to take adequate care in an unfamiliar and hazardous environment.

The Appeal Court's Findings:

The appeal court upheld the trial judge's decision, finding that the judge correctly applied the burden of proof and was entitled to draw inferences from the evidence. The court agreed that the risk of falling was obvious and that the Claimant, as an experienced tradesman, should have taken greater care. The apportionment of negligence was deemed appropriate, reflecting the shared responsibility between the Claimant and the Defendants for ensuring safety at the site.

Conclusion:

This case considers the relative responsibilities of both contractors and workers in maintaining site safety.  The decision highlights the legal principle that contributory negligence can be inferred from the circumstances, even in the absence of direct evidence.