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Brumder v Motornet Service and Repairs Ltd & Anor [2013] EWCA Civ 195 - 14/03/13


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.