Neutral Citation Number: [2017] EWCA Civ 1994
Case No: B3/2016/3953
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
His Honour Judge Graham Wood QC (sitting as a Judge of the High Court)
[2016] EWHC 3815 (QB) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/12/2017
Before :

THE MASTER OF THE ROLLS
THE SENIOR PRESIDENT OF TRIBUNALS
and
MR JUSTICE TURNER
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Between :

	Lewis CASSON	Appellant	
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	SPOTMIX LIMITED (in liquidation) (1)
GABLE INSURANCE AG (in liquidation) (2)
RED CONTRACT SOLUTIONS (BACK OFFICE SUPPORT) LIMITED (formerly SDC [NW] LIMITED) (3)	

Respondents	

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Christopher Melton QC (instructed by E. Rex Makin & Co) for the Appellant
David Heaton QC (instructed by Kennedys) for the Third Respondent
The First and Second Respondents did not appear and were not represented

Hearing date : 23 November 2017
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Judgment Approved
Sir Terence Etherton MR, Sir Ernest Ryder SPT and Mr Justice Turner : 
1.	This is a short form judgment: see Cheyne Capital (Management) UK (LLP) v Deutsche Trustee Company Limited [2016] EWCA Civ 743: it raises no issue of law or matters of general application and significance.
2.	For ease of reference, and for the sake of consistency with the terminology used below, the appellant will be referred to as the claimant and the first and third respondents as the first and third defendants respectively. 
3.	The facts are set out in the judgment of His Honour Judge Wood QC.  There is no challenge to the Judge’s findings of primary fact.
4.	The issue on the appeal is whether the Judge was correct to hold that the claimant was contributorily negligent and to reduce the damages payable by the first and third defendants to him by 10 per cent. pursuant to the Law Reform (Contributory) Negligence Act 1945. Specific criticism is levelled at the Judge’s very substantial reliance (in paragraph [78] of his judgment) upon the fact that the claimant in giving evidence had acknowledged “albeit with the application of hindsight and common sense the risk arising from moving his hand close to the machinery”.
5.	Section 1(1) of the 1945 Act provides as follows, so far as is material:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”
6.	For the purposes of establishing “fault” within section 1(1), it is uncontroversial that the standard of care is the same as that applied when considering negligence from the perspective of breach of duty.
7.	The Judge expressly acknowledged that the authorities were to the effect that mere momentary inadvertence should not normally be taken into account when considering whether an employee has been contributorily negligent. He concluded, however, that the claimant in this case should still bear some level of responsibility for moving his left hand so close to the machinery that it became trapped. Moreover, by way of a Respondent’s Notice, the third defendant now seeks to reinforce the Judge’s conclusion with reference to the evidence of a fellow employee, Mr Hassan, who worked on another, but similar, machine and said in evidence that, hypothetically, he would not have cleaned in the area immediately below the moving parts because it would have been dangerous to do so.
8.	The single issue on this appeal, therefore, is as to whether the actions of the claimant in cleaning the vertical metal surface in the vicinity of the moving parts of the conveyor belt were properly to be characterised as amounting to contributory negligence. 
9.	In Summers v Frost [1955] A.C. 740 at 778 Lord Keith said the following in respect of an allegation of contributory negligence by the plaintiff  maintenance fitter:
“There is no question here of disobedience to orders, or of reckless disregard by a workman of his own safety. At most there was a mere error of judgment by the plaintiff as to how the work on which he was engaged could best be carried out, and possibly only a mere momentary inadvertence. I agree with Morris L.J. that what the plaintiff did "fell short of negligent conduct".”
10.	It was, accordingly, conceded on this appeal, on behalf of the third defendant, that, once the claimant had embarked on cleaning the surface in the immediate vicinity of the moving machinery, the fact that his glove came into contact with the rollers was not, of itself, attributable to negligence on his part.   It was accepted by counsel for the third defendant that the judgment below had to be interpreted in that way.
11.	The whole of the defendants’ case on the issue of contributory negligence was, therefore, directed at the practice of the claimant to clean the vertical surface immediately below the conveyor. The factual context for consideration of that issue is that the first and third defendants were in breach of duty in failing to provide adequate training for the claimant, the claimant was an inexperienced employee whose training and instruction were entirely silent on the method to be deployed when cleaning the conveyor, and the claimant was doing the job in exactly the same way as had been adopted by his fellow employees. As the Judge found:
“In the circumstances, I have little difficulty in accepting his account that he was following an established practice which he had observed others doing and that in climbing the ladder to knock or brush debris off the side of the machine he was not acting on a whim or doing something he had never done before. Furthermore, I find as a fact…that the ladder which he was using was already in place and had been there for some time for the very purpose of doing what he had done on this particular day…”
12.	As counsel for the third defendant had to concede, the natural consequence of the Judge’s finding on contributory negligence was that, all other things being equal, each and every one of the claimant’s fellow employees who cleaned that machine were also acting in a way that fell below the standards of a reasonable man. The Judge, however, did not expressly confront that consequence in his analysis.
13.	It is also relevant that the conveyor was in continuous operation throughout the day and so the claimant and his fellow employees were given no opportunity to clean the machine when the rollers were not moving. Accordingly, if the claimant and his colleagues had confined their activities to the area to the left of the point at which the accident had occurred, as Mr Hassan said he would have done, the area beneath the rollers would simply never have been cleaned at all.
14.	Against this background, we are satisfied that the Judge was wrong to place such heavy, and indeed virtually exclusive, reliance upon the fact that the claimant under cross examination had acknowledged “albeit with the application of hindsight and common sense the risk arising from moving his hand close to the machinery”.
15.	In our view, the fact that every other employee charged with the task of cleaning the machine did exactly what the claimant did is strongly supportive of the conclusion that the extent to which the claimant’s conduct could be criticised fell considerably short of that which could properly be categorised as amounting to contributory negligence. 
16.	Accordingly, notwithstanding the fact that the Judge enjoyed the advantage of hearing evidence during the course of a trial which lasted three days, we are satisfied that his finding of contributory negligence was wrong and that this appeal must be allowed.