Court of Appeal
HELD: (1) There was no doubt that there was a breach of the Regulations because NCFE had failed to keep the floor space free from articles that were likely to cause a trip or fall. NCFE sought to rely on Jayes v IMI (Kynoch) Ltd (1985) ICR 155 to support the argument that the judge should have found that W was 100 per cent contributorily negligent for the injuries he sustained, notwithstanding the breach of statutory duty. However, Boyle v Kodak Ltd (1969) 1 WLR 661 was binding authority against that proposition. (2) In Boyle (supra), the House of Lords held that to escape a breach of a statutory duty, the defendant had to establish that the claimant was wholly to blame or that the defendant had done all that was reasonable to ensure compliance. Boyle was authority for the high standard required to shift the statutory duty from the defendant to the claimant and that where such a shift was achieved, there was no question of contributory negligence because there was no blame on the defendant to be apportioned. (3) The significance of that decision was clear from s.1 Law Reform (Contributory Negligence) Act 1945 in that s.1 only took effect once the defendant had been fixed with liability (see Pitts v Hunt (1991) QB 24). (4) The decision in Jayes (supra) was per incuriam and no reference was made in the judgment to Boyle. It was a decision that should not be followed by first instance judges. (5) Whether a claim was in negligence or for breach of a statutory duty, if the evidence showed that the entirety of the blame fell on the claimant, there was no liability on the defendant. However, if the evidence showed otherwise, it was just and equitable that the extent of the claimant's blame could reduce the monetary quantification of damages. Accordingly, there could be no finding of 100 per cent contributory negligence. Either the claimant was wholly to blame for his injuries or the defendant was to blame subject to a degree of contributory negligence on behalf of the claimant. (6) The judge in this case was led by sound instinct to that correct legal position. It was clear that NCFE should have ensured that the whiteboard was turned and that would have been a reasonably practicable course to have taken. (7) The cross appeal on the extent of NCFE's liability would be allowed. The judge found that if the board had been turned, W would have sustained an injury in the order of barking to the shin which demonstrated more than a 10 per cent degree of fault on NCFE. Given the judge's findings, it was fair to apportion blame equally.
Appeal dismissed. Cross appeal allowed to the extent indicated.
 EWCA Civ 505,  ICR 212
William Meade (Senior Clerk)