PI Brief Update

PI Practitioner, October 2013

16/10/13. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Accidents at work

The Defence in Ginty v Belmont Building Suppliers Ltd and Boyle v Kodak

Ginty v Belmont Building Suppliers Ltd [1959] 1 All ER 414

The Claimant was replacing asbestos when he fell through a roof. The Defendant employer had instructed the Claimant to use boards because the roof was unsafe but the Claimant had failed to do so. Both parties were in breach of the Building (Safety, Health and Welfare) Regulations 1948 which placed obligations on the employer and employee.

Pearson J held that "the actual wrongful act was the [Claimant's] wrongful act, but in one aspect it constitutes a breach by himself and in another aspect it constitutes a breach by his employer". The court must ask "whether the fault of the employer under the statutory regulations consists of, and is co-extensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond, or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability." The defence applies where the act or omission of the Claimant himself has the legal result that the Defendant is in breach of a statutory duty.

Boyle v Kodak [1969] 2 All ER 439

The Claimant fell off a ladder which had not been properly secured and was therefore in breach of regulation 29(4) of the Building (Safety, Health and Welfare) Regulations 1948.

Lord Diplock stated: "The Plaintiff establishes a prima facie cause of action against his employer by proving the fact of non-compliance with the requirement of the Regulation and that he suffered injury as a result. He need prove no more ... if the employer can prove that the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the Plaintiff himself, he establishes a good defence ... To say 'You are liable to me for my own wrongdoing' is neither good morals nor good law."

It was held that the employer had not forbidden the Claimant from using the ladder before it was secured and therefore the defence did not apply.

Peter Brumder v (1) Motornet Service & Repairs Ltd & (2) Aviva Insurance Ltd [2013] EWCA Civ 195

The Claimant was the owner and sole director of the First Defendant which specialised in servicing vehicles. He lost his finger on 8th November 2008 while trying to climb down a raised hydraulic ramp when the compressor in the ramp mechanism failed. The ramp had previously failed in 2006. The Claimant brought a personal injury claim against the First Defendant and its insurer (the Second Defendant). The trial judge found that the First Defendant had breached its duty to ensure that work equipment was maintained in an efficient state under regulation 5 of the Provision and Use of Work Equipment Regulations 1998. However he also found that the Claimant had failed to have any regard to health and safety matters when running his business and therefore he was 100% contributorily negligent. The Claimant appealed to the Court of Appeal.

The Court of Appeal held that a finding of 100% contributory negligence was wrong in principle because s.1(1) of the Law Reform (Contributory Negligence) Act 1945 requires fault from both parties (see Pitts v Hunt [1991] 1 QB 24). The case fell within the defence set out above of in Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 and Boyle v Kodak [1969] 1 WLR 661. A person could not derive advantage from his own wrongdoing. Here the Claimant was the owner and sole director of the First Defendant and was responsible for the First Defendant's breach of the Regulations. The First Defendant could only act through the actions of the Claimant. The Ginty and Boyledefence applied even though both the Claimant and Defendant had breached the Regulations in those cases, whereas in the instant case there had been no breach by the Claimant.

Richard Boyle
Temple Garden Chambers

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