Description
In an appeal against a finding that the claimant was 100% contributorily negligent, the issue was whether the sole director and shareholder of a company who suffers personal injury as a result of a breach by the company of the absolute obligation to maintain equipment (per the
Provision and Use of Work Equipment Regulations 1998) can bring a claim even though he was in breach of the director's duty to exercise reasonable care to enable the company to fulfil that obligation.
Appeal dismissed. Held: Where primary liability is found, it is not possible to find a claimant 100 % contributorily negligent: apportionment under
s. 1(1), Law Reform (Contributory Negligence) Act 1945 presupposes fault on both parties (per
Pitts v Hunt [1990] EWCA Civ 17;
Anderson v Newham CFE [2002] EWCA Civ 505). In a claim for damages for injury caused by a breach of an absolute statutory obligation, it is a defence that the act or omission of the employee put the employer in breach of the statutory duty (per
Ginty v Belmont Building Suppliers Ltd [1959] 1 All ER 414;
Boyle v Kodak [1969] 1 WLR 661). Although it is not necessary for the employee and employer to be in breach of the same duty, the court takes a strict approach to the availability of the defence and a high standard of proof is required to shift the entire blame to the employee. That strict approach does not apply to a director/claimant who is the only person through whom the company can act and who is in breach of a relevant duty to the defendant company, such as the duty to exercise reasonable care, skill and diligence (
s. 174, Companies Act 2006).
In the present case, the company was entitled to rely on the defence: there was no attempt by the director/claimant to enable the company to fulfil its health and safety obligations.
