3 Contributory negligence. Sometimes when an injury
occurs the person injured and the person causing the
injury have both been negligent. In such a situation liab-
ility can be divided between the person injured and the
person causing the injury.
The person injured can still claim damages but under
the Law Reform (Contributory Negligence) Act 1945 they
will be reduced according to how much the court thinks
he was to blame. Thus, if the court thinks that A who has
been injured by B’s negligence is entitled to £1,000 but is
60 per cent to blame for the injury, it will deduct £600
from A’s damages so that he will get only £400.
Again, this defence is most often used where an
employee is suing his employer for injuries received at
work and the employer claims that the employee was
partly to blame and his damages should be reduced. This
situation has yet to be looked at. However, an employer,
A, who was sued as vicariously liable for injuries caused
by employee B to a person who was not an employee, C,
could, in the right circumstances, claim that the damages
given to C should be reduced because of C’s contribut-
ory negligence.
Employer’s liability for injuries to
his employees
In addition to the duties of an employer under the con-
tract of service with which we have been dealing so
far, an employee who is injured at work by a negligent
act will want to sue his employer for damages. Under the
Employers’ Liability (Compulsory Insurance) Act 1969
an employer mustinsure himself in respect of liability
for injuries caused to his employee where these arise
from a negligent act.
These employee claims are brought on the basis of
negligence by the employer and, because of the decision
of the House of Lords in Wilsons and Clyde Coal Co v
English(1938), the employer’s duties towards his em-
ployees, i.e. the duty to take care which he owes them,
can be set out under the headings which appear below.Safe plant, appliances and premises
An employer has a duty to provide and maintain suit-
able plant, appliances, and premises.Part 4Business resources
500
given to bolting and should not have been used on a milk
round at all.
The court decided that in the circumstances the claim-
ant voluntarily and freely assumed the risk. This was not
an attempt to stop a runaway horse so that there was no
sense of urgency to require the claimant to act as he did.
He therefore knew of the risk and had had time to con-
sider it and by implication must have agreed to incur it.
Comment. A different situation arises in what are known
as the rescue cases. In these the claimant is injured
while trying to save life or property which has been put
in danger by the defendant’s negligence. If the interven-
tion is a reasonable thing to do for the saving of life or
property, then this does not constitute an assumption
of risk, nor does the defence of contributory negligence
(see below) apply. Cutler, of course, was not effecting a
rescue.Lovellv Blundells and Crompton &
Co Ltd(1944)
Lovell was told by the defendants, who were his employ-
ers, to carry out an overhaul of a ship’s boiler tubes. He
could not reach some of the tubes so he got some
planks for himself and from them he made up his own
staging. The planks were unsound and collapsed, injur-
ing Lovell. The defendants had not provided any form of
staging, nor had they laid down any system of working.
The court decided that the employers were liable in
negligence. They had failed to supply plant in a situation
where there was an obvious requirement for it.
Comment. Having supplied plant, an employer will be
liable if the employee is injured by it by reason of the
employer’s failure to inspect and maintain it and remedy
defects. Thus, in BakervJames Bros and Sons Ltd
(1921) Baker, who was a commercial traveller employed
by the defendants, had to travel in a particular district
taking orders and for this purpose the defendants sup-
plied him with a car. The starting gear was defective and
Baker complained to the defendants several times about
this but nothing was done. On one occasion when Baker
was out taking orders he was badly injured while trying to
start the car with the starting handle. The court decided
that Baker was entitled to damages. His employers had
failed to maintain the car as they should. In the circum-
stances Baker could not be regarded as having con-
sented to run the risk of injury, nor could he be regarded
as guilty of contributory negligence.The Employer’s Liability (Defective Equipment) Act
1969 puts liability on an employer who provides defective
equipment to an employee which causes that employee
injury. The employer’s liability is strict, which means
that he is liable even though he was not himself negli-
gent, as where the injury was caused by the negligence of