England: Plasterer found one-third liable for head injuries from fall loses High Court appeal against contributory negligence finding

About this case:

• Citation:
  [2025] EWHC 714 (KB)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mrs Justice Cutts

Charles Lee suffered the injury while working at the property of first defendant Parminder Khraud having been engaged by the other defendants Michael Fletcher and Jason Wright to undertake plastering work at the site. The defendants conceded primary liability for the accident but contended that the risks should have been obvious to the appellant.

The case was heard by Mrs Justice Cutts in the King’s Bench Division, with Mr Lyons, barrister, appearing for the claimant and appellant and Ms Unthank, barrister, for the defendants and respondents.

Inherent probability

There was no direct evidence of how the accident occurred due to the appellant suffering from retrograde amnesia as a consequence of his injuries. However, it was accepted that on the date of the accident he was at the first defendant’s property when he fell from an unfenced mezzanine floor at a construction site for a new build property. A trial on the issue of contributory negligence was held at the County Couty in Chelmsford, at which the defendants argued that there was a foreseeable risk of falling due to the absence of a guard rail and the appellant had failed to take responsibility for his own health and safety.

The County Court judge found that the duties of the appellant as a self-employed contractor and the respondents were not equivalent. While he could make no positive finding as to how the accident came about, he did not accept the appellant’s submission that in the circumstances the respondents could not discharge their burden, and he could not find contributory negligence. He found that, as a matter of inherent probability and experience, it was likely that the accident happened because the appellant failed to take sufficient care to familiarise himself with the layout of the mezzanine.

It was submitted for the appellant that, as the judge could not find how the accident happened, the issue of contributory negligence should end, as the respondents must have failed to discharge their burden on the balance of probabilities. It was entirely contradictory to state in a judgment that it is not possible to assert how an accident happened and then make findings as to the appellant’s absence of care, and showed the judge indulged in impermissible speculation as to the cause of the accident.

For the respondents it was submitted that some of the appellant’s grounds of appeal amounted to appeals on the facts, not on points of law. It was highlighted that the appellant was subject to the duties imposed by the Work at Height Regulations 2005, that the mezzanine was well-lit at the time of the accident, and there was an obvious and foreseeable risk of falling. These finding were available to the judge as to allow for a finding of contributory negligence.

Draw reasonable inferences

In her decision, Justice Cutts began by saying of the County Court judge’s approach: “The judge correctly identified the law in the course of his judgment. He cited the test for contributory negligence set out in Lewis v Denye (1937) and stressed that the burden was on the defendant to show that the claimant was negligent (in the sense of failing to take reasonable care for his own safety, rather than in breach of duty) and that this was a material cause of the accident. He referred to that test again immediately before setting out his conclusions. There is nothing in the judgment in my view to support the proposition that, whilst correctly identifying where the burden of proof lay, the judge then failed properly to apply it.”

On the lack of eyewitness evidence, Cutts J said: “The judge was well aware of the limitations of the evidence. He stated that the available evidence was not such that it enabled him to make any positive finding as to how precisely the accident occurred. There was more than one way in which it might have happened and the precise way that it did was a matter of speculation.”

She continued: “However, he did not accept that the absence of any clear evidence as to how the accident happened of itself meant that the respondent could not discharge the burden of proof. He was permitted to draw reasonable inferences on the balance of probabilities from the limited evidence, his findings and the inherent probabilities. I consider him correct to so conclude.”

Summarising why the judge was able to conclude that contributory negligence was a factor, Cutts J said: “I accept that it is unclear to what the judge was referring when he spoke of ‘experience’ as a factor in finding that the accident happened because the appellant failed to take sufficient care to familiarise himself with the layout of the mezzanine and ensure that he avoided approaching the opposite side. However, the facts in my view entitled the judge, without the need to speculate, to infer that however the accident was caused the appellant must have misjudged the space. I agree with Ms Unthank that it is not necessary to know exactly how the accident happened to safely draw this inference.”

She concluded: “I do not accept the appellant’s submission that the respondent had greater causative potency by reason of the fact that they had been on site for longer and would have a greater appreciation of the risks posed by the unguarded mezzanine. The risks were clear and obvious to all, including the appellant who was an experienced tradesman. The judge was certainly entitled to so find.”

For these reasons, the appeal was dismissed.