Contributory Negligence in Work Accident Claims

Unlike with road traffic accident claims where it is usually relatively easy to assess contributory negligence by referring to previous case law and established practice, such as a 25% reduction for not wearing a seat belt (if it would have made a difference), work accident claims are much more problematic to assess. So in workplace accident claims, assessment of contributory negligence tends to be based more on experience and one's intuition rather than an established recognized formula.

For the purpose of this article let's assume that you are a young worker recently employed by a double glazing company. You have previous experience working as a window fitter which is entirely different to glazing work.

Within a short time of being employed, you're sent out on a job to repair several windows including a skylight window at a local school. As you're attending to the skylight, the pane of glass that was placed in position comes away from the framework, falling on top of you. You raise your left arm to protect your face and in doing so you suffer an injury to the tendon in your left index finger and damage to the knuckle bone.

Fortunately, you recover well from your injuries and you are back to work within 8 to 12 weeks.

You claim compensation for the injury and for loss of earnings during your period of sick absence. Your employer refers your claim to their employer liability insurers who in turn instructs their solicitors.

The solicitors now acting argue that you were partly responsible for the accident (contributory negligent) in that you were an experienced worker and should have taken more care for your own safety. Health and safety laws stipulate that employees are under a legal duty to take reasonable care for their own health and safety and that of other employees. It's argued that you failed in this duty and therefore you should be held partly responsible. If this is accepted your damages for pain and suffering and for loss of earning will be reduced by an agreed fixed percentage.

Frequently solicitors acting for an injured party will be confronted with allegations that there was contributory negligence; that due to the injured party's own actions, he or she contributed to the accident and that therefore the compensation amount ought to be reduced by a fixed percentage, to reflect this.

In claims for road traffic accident, contributory negligence is frequently raised as a defence and depending on your solicitors, a claim for compensation may be compromised i.e. settled on this basis.

Contributory negligence should never be conceded in negotiations or otherwise in court proceedings.

In the example situation described above, the background is that you were in the job for a limited period of time. You were not provided with any training, you were given limited tools and equipment and the system of work utilized by your employer is that upon arrival at work you are allocated jobs in the morning with no clear instructions on how to carry out the various job and no advice on conducting a risk assessment of such jobs.

In effect you were left to get on with the job without any proper supervision and without any form of system of work to ensure the health and safety of it employees. Had the employer complied with its various health and safety responsibilities, the accident would have most certainly been avoided.

It is not the duty of an employee to deviate away from the employer's established system of working and to devise his own safe system. The onus is on the employer to undertake this task and an employer will be found liable in damages for breach of duty of care in this situation irrespective of the degree of skill and experience of the employee. There should be no concession by a Claimant solicitor on contributory negligence in such circumstances.

Accident claims involving UK health and safety laws and regulations can be complex cases to run. It's therefore important that you obtain the help, advice and assistance of a solicitor that is suitably experienced in these types of claims.