Paul Arthur John Cooper v Carillion Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,LORD JUSTICE SCOTT BAKER |
| Judgment Date | 02 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1811 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2003 |
| Docket Number | B3/2003/0934 |
[2003] EWCA Civ 1811
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE OVEREND)
Lord Justice Keene
Lord Justice Scott Baker
B3/2003/0934
MR A MCLAUGHLIN (instructed by Messrs Gill Akaster, Plymouth PL1 2QW) appeared on behalf of the Appellant
MR H PARKER (instructed by Messrs Hill Dickinson, Liverpool L2 9XL) appeared on behalf of the Respondent
This is a claimant's appeal from His Honour Judge Overend sitting at Plymouth County Court. Permission to appeal was granted by Hale LJ on the basis that a finding of 10 per cent contributory negligence on the part of the claimant is most unusual and that there is, she said, a real prospect of persuading the Court of Appeal that there should have been no finding of contributory negligence at all. It is a case where the liability of the defendants (his employers) for breach of statutory duty and negligence had been established on an earlier occasion.
The facts can be put fairly shortly. The claimant had been working for some considerable time as a carpenter in a large project concerning the refurbishment of dry docks. On 4th October 2001 he fell through a hatchway which served to provide access for ladders between one level and another and he fell into the subway below, suffering serious injuries. The system operated on this site was to have a scaffolding barrier around any such hatchway or, if there was no barrier, to place a steel plate or a plywood board over the aperture and in that last situation the board would be nailed down and marked "hole below". The hatchways were square, some 800 or 900 millimetres, that is to say, about 3 feet square.
It seems that on the night before this accident which gave rise to the claimant's injuries, the scaffolding guard around this particular hatchway had had to be removed by those who were working on the night shift in order to carry out certain work. Unhappily, after that work had been completed the scaffolding barrier was not replaced. All that was done was to place a plywood board measuring some 8 feet by 4 feet over the hole. The judge found as a fact that the plywood board was neither secure nor marked to indicate that there was a hole below it.
On the following morning, the claimant was working on the site and was asked by his foreman to make some shuttering. To do so he needed an appropriate piece of wood. He was not far from the plywood board covering the hole. Unaware that there was a hole there, he and the foreman lifted the board to waist height and began to carry it. They could not see beneath it and in the course of moving it the claimant fell through the hole and, as I have indicated earlier, was seriously injured.
The judge rejected arguments that the claimant should have been alerted to the presence of the hole by the sound made when he had earlier walked over it, and he also rejected an argument that claimant had been warned about such dangers. But the judge concluded that the claimant knew or ought to have known that there were apertures occurring at random intervals along the concrete on which he was working. He said this, at paragraph 17 of his judgment:
"True it is that he was entitled to rely upon proper precautions being taken by his employers but, nevertheless, having regard to the extent of the works and the nature of the works being carried on, it does seem to me that he should have looked underneath the plywood board before placing his feet into the area that was wholly concealed by the plywood board."
As a result he found that the claimant should bear 10 per cent of the liability.
The claimant now appeals against that finding of contributory negligence. On his behalf, it is emphasised by Mr McLaughlin that there were many such sheets of plywood board lying around this site available for use and not generally concealing any danger. The claimant gave evidence to that effect, as did his foreman. There was no reason why the claimant should have suspected that there was or might have been an access hatchway below this particular sheet, since it was not nailed down, sealed and marked with a sign, as such hole coverings normally were. Therefore it is submitted that it was not reasonably foreseeable that the board would conceal a hazard.
Mr McLaughlin stresses that there was no evidence that apertures on this site were hidden under unmarked pieces of plywood. Indeed on the contrary, he says, the claimant knew that apertures were never hidden like that. He did know that there were pieces of plywood lying around which would be...
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