The present judgment is from an appeal filed before the Supreme Court of United Kingdom wherein the negligence on the part of the employer was under scrutiny.

FACTS

On the 13th January 2000, Sherlock the appellant lost his left thumb and index finger when using a circular saw provided by his employers, Chester City Council, the respondents herein. At the time of the accident, Sherlock was working with another joiner, Robert Webb, in a team which was replacing wooden window frames and wooden fascia boards on residential properties with new UPVC window frames and fascia boards as part of a planned maintenance programme. That programme had started in April 1999. The appellant had joined the team in about August 1999. Although salaried, all those in the team were entitled to bonuses based on the amount of work done.  The saw which was provided was a conventional bench saw with the teeth of the saw emerging from the bed of the bench, protected by a guard about which no complaint was made. The saw was used on a regular basis throughout the autumn of 1999. However, there was one potential difficulty in using the saw to cut the fascia boards. The fascia boards were 5 metres long. The bench was itself only a few feet long. As a result the fascia boards, which were flexible, had a tendency to bow as they passed over the saw bench unless they were supported in some way. This could have been achieved by the provision of a run off bench, that is a second work bench on to or from which the fascia could be fed, or by the fascia being supported by whoever was not carrying out the cutting at the time. The Trial Court after appreciation of the evidence concluded that the Employer was not at fault and no negligence could be attributed on the part of employer. The appellant appealed to the Supreme Court.

Question before the Supreme Court:

 1.           Whether or not the judge was entitled on the evidence to conclude that he could absolve the respondents from liability on the basis that the accident was entirely fault of the Appellant?

Risk and the necessary measures to obviate or reduce it. The Court held that this is not a case of mere inattention. The requirements of both common law and the regulations have as part of their purpose the objective of ensuring that both employer and employee have taken stock of a situation where an appropriate work practice has to be identified so as to ensure that each has in mind the relevant risk and the necessary measures to obviate or reduce it.

Therefore, there was an obligation on the respondents, going beyond the actions and the decisions of the appellant, and which was causative of the accident. It cannot therefore be said here that the fault of the appellant was co-extensive with the fault of the respondents. The respondents’ negligence and breaches of statutory duty were accordingly a cause of the accident.

The Court further held that there may well be some justification in cases of momentary inattention by an employee. But where a risk has been consciously accepted by an employee, a different consideration may arise. That is particularly so where the employee is skilled and the precaution in question is neither esoteric nor one which he could not take himself. In the present case he could have made himself a run-off bench, or ensured that some one was there when he cut the relevant fascia board.

In those circumstances, it was held that the appellant can properly be required to bear the greater responsibility and the Court assessed his liability for the accident at 60%.

The appellant was made to bear the greater responsibility and the Court assessed his liability for the accident at 60%.

Therefore, it was held that appellant is entitled to 40% of whatever damages are ultimately considered to be appropriate for the dreadful injury he suffered to his hand and the respondent was made liable to pay the same.

The requirements of both common law and the regulations have as part of their purpose the objective of ensuring that both employer and employee have taken stock of a situation where an appropriate work practice has to be identified so as to ensure that each has in mind the relevant risk and the necessary measures to obviate or reduce it.

BY LAWZ BUREAU