[2006] CSOH 56


in the cause







Pursuer: McCall; Lefevre Litigation

Defenders: Macpherson, sol. adv.; Simpson & Marwick WS

4 April 2006


[1] The pursuer is an experienced motor mechanic, having qualified in 1978 and thereafter worked in that capacity both in the UK and overseas. In April 2002 he was employed by the defenders as a probationary "street fitter", maintaining and repairing buses at their Marine Depot in Seafield Road, Edinburgh. In the present action he claims damages from the defenders in respect of an accident at work in which he sustained minor injury to his right hand and wrist. Total damages on a full-liability basis are agreed at £4,500, inclusive of interest to 17 March 2006, and a proof on liability has now taken place before me.

[2] On Record it is a matter of admission that the pursuer slipped on the surface of a board partially covering an inspection pit within the depot, and that he injured himself in trying to break his fall. It is further admitted that a quantity of coolant fluid (a water/anti-freeze mixture) had spilled or splashed on to the board, and that the board was slippery. However, the parties are in dispute as to (i) the date of the accident; (ii) the circumstances in which the coolant came to be on the board; (iii) the extent of any legal liability attaching to the defenders; and (iv) the extent of any contributory negligence on the part of the pursuer.

[3] In brief, the pursuer contends that his accident occurred when he was working alone and unsupervised in the early evening of Sunday 14 April 2002; that he had gone to inspect a bus which required replacement of the header tank of its cooling system; that on arrival he discovered that a fitter on the previous shift had already started the job, disconnecting the hose at the base of the header tank and causing a spillage of coolant at the locus; that drainage receptacles positioned by the other fitter were inadequate; that the accident occurred as he (the pursuer) made to cross the pit board towards an office where, by the sound of it, a more urgent job requisition was coming over the printer; and that in the circumstances the defenders were in breach of various statutory duties giving rise to a liability in damages. The essential part of the pursuer's account of the accident was that he himself had had nothing to do with the spillage of coolant, and that he had never made any admission in that regard. It is, however, fair to say that these contentions first appeared in his pleadings by way of response to certain averments made by the defenders in their defences.

[4] By contrast, the defenders' position at the proof (although in some respects inadequately reflected in their pleadings) was that the accident occurred three or four days earlier; that, as the pursuer frankly admitted to his superiors at the depot in both April and May 2002, he himself had spilled the coolant on which he then contrived to slip and fall; that no drainage receptacles had been used at all; that in consequence of what was characterised as the pursuer's sole fault the defenders could not be found liable to him in damages; and that on any view the pursuer's contributory negligence should be assessed at a high degree.

[5] In the paragraphs which follow, I propose to deal with each of the contested issues in turn.

Date of the accident

[6] It is still a mystery to me why the defenders, after admitting the pursuer's accident, should have persisted in disputing the precise date on which it occurred. Be that as it may, I have no hesitation in rejecting their contentions on this matter. If my understanding is correct, these contentions are based solely on the fact that, in the course of recording two separate accidents to the pursuer - one to his eye, followed apparently by the present accident - his GP entered only one date in the margin, namely 11 April 2002. In my opinion that fact on its own is of no significance whatever. On the evidence, it is clear that the pursuer's eye injury was sustained on Wednesday 10 April 2002. As the records showed, he attended hospital on that date along with his wife, and very probably attended his GP on the following day. However, the present accident could not have occurred at the same time, since (a) the pursuer would not have been working alone in the depot on a weekday evening; (b) the hospital records dating from 10 April 2002 refer to the eye injury only; (c) on medical advice the pursuer was off work on 11 April; (d) the only x-ray report regarding the pursuer's hand/wrist injury was dated 14 April; and (e) all the other evidence in the case pointed to 14 April as being the date when the present accident occurred.

[7] In particular, the pursuer's wife confirmed that she had had to collect their car from the depot on the following day, which was a Monday. The cleaner who took the pursuer to hospital explained that he could only have been involved at a weekend, when few men were around, since on a weekday one of the other fitters would inevitably have been approached instead. The defenders' former assistant depot engineer, Ian Nisbet, confirmed that on the evening of Sunday 14 April he was told that the pursuer had been hurt and had been taken to hospital, following which he inspected the locus and confirmed the spillage of coolant. Evidence was also given by the defenders' depot engineering manager, Colin Campbell, to the effect that on the morning of Monday 15 April he received his deputy's report of what had happened and immediately commenced a health and safety investigation.

[8] As the solicitor advocate for the defenders agreed, there was no direct evidence at all to suggest that the accident happened on a date other than 14 April. He founded solely on the appearance of the GP records, where the two accidents were marked "1" and "2", and where the only date in the margin (opposite the earlier accident) was 11 April. However, the GP was not led as a witness at the proof, and the only relevant agreement in the Joint Minute was that the records were what they bore to be. Accordingly, as laid down by the Inner House in Lenaghan v Ayrshire and Arran Health Board 1994 SC 365, the records themselves were not admissible evidence of the accuracy of their contents where the Joint Minute was silent on that matter. Indeed the present case is a fortiori of Lenaghan, since the issue there concerned the accuracy of opinions expressed in a medical report which was agreed to be "what it bore to be". Here, in the absence of any opinion from the GP regarding the presence or absence of marginal dates in the records, the defenders have nothing to go on but the unexplained entries themselves. In any event, as it seems to me, the absence of a date in the margin opposite the present accident falls far short of justifying any inference that both accidents happened, or were reported, on the same date.

[8] For these reasons, I hold it proved that the accident to which the present action relates occurred on Sunday 14 April 2002.

Circumstances of the spillage

[9] This issue essentially turns on a sharp conflict of evidence between, on the one hand, the pursuer and, on the other, the defenders' witnesses Nisbet and Campbell supported by contemporaneous records nos. 6/6 and 7/1 of process. As previously indicated, the pursuer's position was that someone else had spilled the coolant at the locus, and that he had never accepted responsibility for doing so himself. According to him he had merely gone, without his tools, to inspect a job before deciding whether to tackle it; the coolant had clearly been released on a previous shift; and since only small receptacles had been positioned at floor level, that is, several feet below the point where the header tank hose was disconnected, spillage or splashing on to surrounding surfaces was inevitable.

[10] Nisbet's evidence, on the other hand, was to the effect that when he inspected the locus on the Sunday evening he found that the hose on a lower vessel (the oil cooler) had been disconnected and was still dripping. According to him, no receptacle at all had been used to collect the drained coolant, which was lying in substantial quantities on the floor and within the inspection pit. Moreover the pursuer's tools were lying nearby. On the basis of this inspection he formed the view that the pursuer had been the author of his own misfortune, and reported this to his superior, Colin Campbell, on the following day. At some later date, he said, he had asked the pursuer to explain why no bucket had been used, and the latter had replied that he had not expected so much coolant to come out. Furthermore, when asked why he had not cleared up the spillage, the pursuer had replied that he had panicked and slipped on the way to get a bucket. Nisbet believed that this exchange took place at a meeting on 22 May 2002, when the pursuer returned to work, but he conceded that it might possibly have been on 18 April 2002 when the pursuer attended with a sick line from his GP. Certainly, on 22 May, the allegation that the pursuer had spilt the coolant himself, and (by implication at least) that no receptacle had been used, was put to the pursuer who tacitly accepted it.

[11] Campbell's evidence was that in the course of his investigation he interviewed the pursuer on 18 April 2002, completing an Incident and Near Miss Report Form (no. 6/6 of process) at that time. In the witness box he insisted that he had gone over all parts of the form with the pursuer before completing it, with the possible exception of a box relative to the action to be taken to prevent a recurrence. Box 8 reflected the pursuer's position at that time in the following terms -

"Mr McEwan was draining water from vehicle. Some had spilt on to pit board. As Mr McEwan walked across pit board he slipped on the spillage".

Had the pursuer suggested that the coolant was in fact spilt by someone else, Campbell was adamant that box 8 would not have been completed in these terms.

[12] Furthermore, when the pursuer returned to work on 22 May 2002, a so-called disciplinary hearing took place at which the pursuer inter alia maintained that he should receive industrial injury payments. As the minute no. 7/1 of process indicated, an exchange took place broadly along the following lines:-

"Mr Campbell: Given the fact that you spilt the water that you slipped on and that we supply receptacles to drain water into then it is deemed that there was contributory negligence on your part and therefore you are not entitled to industrial injury payment. Is this explanation clear to you?

Pursuer: Yes, but I did hurt myself at work.

Mr Campbell: If this were your company would you pay someone who had slipped in water that he had spilt and not bothered to clean up?

Pursuer: I suppose not."

Significantly, the pursuer in his evidence accepted that on 18 April he had given Messrs Nisbet and Campbell an account of how the accident happened. He also accepted that the allegation of fault reflected in the minute no. 7/1 of process had indeed been made by Campbell at the meeting on 22 May, and that he had not then sought to challenge it in any way. As he put it, he "did not think it would be beneficial" to do so, having regard to previous dealings with Campbell and the attitude of his two superiors.

[13] Against that background, it is clear that in order to find for the pursuer on the disputed issue as to who spilled the coolant on which he slipped, I would have to reject the contrary evidence of both Nisbet and Campbell as incredible or at least unreliable. Counsel for the pursuer argued forcefully that there were sound reasons why I should take this course. Nisbet, she said, had jumped to the wrong conclusion on seeing the locus on the night of the accident. He had assumed that the tools belonged to the pursuer; if no receptacles were then present, he could not exclude the possibility that they had been moved in the period since the accident; and in evidence he was unable to say whether the header tank hose had been disconnected as well as the lower hose by the oil cooler. From then on, according to counsel, he had proceeded with a closed mind, and his account of an exchange in which the pursuer described panicking at the unexpected amount of coolant should be rejected as untrue. It did not appear in the minute no. 7/1 of process, nor did it appear in the defenders' pleadings, nor was it even put to the pursuer in cross-examination during the proof. The pursuer had had no opportunity to refute this account, and on such an important matter the absence of fair notice should lead the court to discount Nisbet's evidence altogether.

[14] As regards Campbell, counsel challenged the content of the form no. 6/6 of process, suggesting that some or all of it had been completed either before or after the pursuer was interviewed on 18 April 2002. In particular, box 8 did not reflect anything that the pursuer had said. Strangely, that box was completed in the third person singular; it represented Campbell's conclusion at the end of his investigation rather than a note of what the pursuer told him; and that conclusion was tainted from the outset by the erroneous impression conveyed by Nisbet. In counsel's submission the minute of the meeting of 22 May 2002 was also suspect, partly because it was admittedly not an accurate record of what anyone said at the time, and partly also because by that stage both Nisbet and Campbell were proceeding with closed minds. In such circumstances, counsel submitted, it was not in the least surprising that the pursuer saw no point in contradicting what was being said.

[15] In resolving this matter, I readily accept that the defenders' position leaves much to be desired. Their pleadings are silent on what turned out to be material parts of their defence, and surprisingly these matters were not put to the pursuer in cross-examination. If the defenders' solicitor advocate did not know in advance what Nisbet was liable to say, that would suggest either inadequate precognition or a suspicious late embellishment by Nisbet of his own position. I also accept that on the night of 14 April 2002 Nisbet saw a scene which could easily be misinterpreted; that his subsequent attitude would no doubt have been coloured by the initial view which he formed before speaking to the pursuer; and that Campbell's initial attitude would in all probability have been influenced by such information and advice as he received from Nisbet.

[16] Having said all that, however, I am ultimately not persuaded that I should reject the evidence of either Nisbet or Campbell as incredible or unreliable on the key issue as to whether the pursuer accepted, in April and May 2002, that he himself had spilled the coolant on which he slipped. Both men appeared to me to give their evidence in an honest and straightforward manner, particularly Campbell whom I regarded as a generally impressive witness. Significantly, their evidence was supported by (i) the form completed on 18 April 2002 (no. 6/6 of process), and (ii) the minute of the meeting on 22 May 2002 (no. 7/1 of process). Even more importantly, it was supported by the pursuer's own acceptance that on 18 April 2002 he gave an account of the accident to both men, and that on 22 May 2002 he did not contradict the allegation of "culpable negligence" which he agreed was put to him.

[17] Having seen and heard the pursuer in the witness box, and in particular having noted the persistent and articulate manner in which he maintained his present claim, I find it almost inconceivable that on 22 May 2002 he would have remained silent in the face of an allegation of personal fault which, ex hypothesi, he knew to be false. It would have been a simple matter for him to retort that there had been a misunderstanding, and that in fact someone else had been responsible for spilling the coolant, and I regard it as highly significant that, on his own admission, he did not do so. At that stage, after all, his entitlement to industrial injury payments was at stake, and perhaps also his job, given that he was still on probation and that this was apparently not the first occasion on which Campbell had sought to criticise the quality of his work. In the witness box, moreover, the pursuer from time to time gave me the impression of being ill at ease, and gave parts of his evidence in a resigned tone which suggested that he did not really expect to be believed.

[18] A further consideration is that, on the pursuer's account, the previous fitter must either have started a job at the end of his shift knowing that there was no time to finish it, or alternatively started the job earlier in the shift before being called away for some reason. Either way, it is further necessary to assume (i) that when the previous fitter went off duty he left his own tools lying around at the locus; (ii) that during the shift handover time that fitter said nothing to the pursuer about the unfinished job, despite no steps having been taken to clear up the spillage of coolant; (iii) that the relevant job requisition sheet remained where it would have been if the work had never been started; and (iv) that for a period of 6 or 7 hours thereafter (the length of the pursuer's shift) he remained unaware of the situation, and the coolant did not evaporate or dry up. In my opinion this supposed sequence of events is so inherently improbable that it casts further doubt on the pursuers' attempt to fix someone else with responsibility for the spillage.

[19] As it seems to me, the same applies to the pursuer's insistence that he would not attach any blame to the previous fitter. In my view that evidence simply did not ring true, and I confess to having wondered, as the pursuer gave it, whether he might be doing so in order to minimise his own exposure in the event of my holding that he himself had most probably caused the spillage.

[20] For these reasons I conclude that, on the balance of probabilities, it was the pursuer himself who spilled the coolant on which he slipped, and that at the material time no receptacle was in place to catch the coolant as it emerged following disconnection of the hose. For present purposes it is perhaps unnecessary for me to decide whether the hose disconnected was at a high level by the header tank, or alternatively at a low level by the oil cooler. In the former case relatively little coolant would be involved, being the contents of the header tank itself, but it would have a distance to fall and would tend to splash widely on contact with other parts of the bus engine. In the latter case, the whole contents of the cooling system would drain out under a certain head of pressure, and the result would be consistent with what Nisbet described seeing on the night of the accident. If I had had to reach a decision on this matter, I would have preferred Nisbet's account to the pursuer's claim that it was only the header tank hose which had been disconnected.

The defenders' legal liability

[21] At the conclusion of the proof, counsel for the purser submitted that the defenders were in breach of regulations 5(1), 12(3) and 13(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. So far as relevant for present purposes, these regulations are in the following terms:

"5(1) The workplace ... shall be maintained (including cleaned as appropriate) in an efficient state ... and in good repair.

12(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from ... any ... substance which may cause a person to slip ... or fall.

13(1) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).

(3) The events specified in this paragraph are

(a) Any person falling a distance likely to cause personal injury ..."

[22] Dealing first with regulation 12(3) on which the pursuer principally relied, it was a matter of agreement between the parties (rightly, in my opinion) that in the circumstances of this case a breach would inevitably arise unless the defenders could discharge the obligation of proving that it would not have been reasonably practicable to prevent it. Whoever spilt the coolant, and at whatever stage this happened, its presence on the pit board contravened the regulation and was plainly a material cause of the accident. The defenders' position was that some degree of spillage was inevitable when the coolant system of a bus was drained, and that they had done all that could reasonably be expected of them in (i) providing receptacles to catch at least some of the fluid; (ii) providing absorbent granules and cleaning equipment to deal with such spillage as might occur; (iii) entrusting the work to an apparently experienced motor mechanic; and (iv) having in place a system whereby, in the absence of cleaning staff at weekends, an individual fitter was expected to neutralise or clear up any spillage himself.

[23] In my view, however, the defenders' arrangements for such work were less than satisfactory, and they have failed to convince me that the offending spillage and resulting accident could not reasonably practicably have been avoided. Despite the pursuer's long experience, he had never previously worked on buses. In particular, he had never had to change a bus header tank before. Although he had only been with the defenders for a period of weeks, he was permitted to work alone and unsupervised at weekends. As regards the job in question, the defenders' witnesses Campbell and Nisbet were at odds as to how it should be done. Nisbet maintained that the coolant should always be drained by disconnecting the low hose at the oil cooler, whereas in Campbell's view it was perfectly acceptable to disconnect the high hose by the header tank as the pursuer claimed had occurred. In the face of such disagreement, I am not satisfied that the pursuer ever received proper instructions as to how the job in question should be done. He was thus left to make choices which his experience and ability did not fit him to make If he ever disconnected the high level hose, he must have gone on to disconnect the low hose and thereby release a much greater volume of coolant. He used no receptacle at all to catch the coolant, and once the spillage had occurred he failed to take any steps to neutralise or clear it up before sustaining his accident. While I did not believe his claim that he did not know where to find cleaning equipment or absorbent granules within the depot, I consider that the defenders could and should have ensured that a probationer such as the pursuer had proper instructions before being allowed to do such a job alone and unsupervised.

[24] Moreover, as it seems to me, the defenders were not justified in simply accepting or condoning spillages as a fact of life. No evidence was led to show that the size, shape or positioning of suitable receptacles had been the subject of any considered appraisal. No risk assessment had ever been carried out. While I was not impressed with the suggestion, on behalf of the pursuer, that all bus engines should be modified in various ways to permit coolant to be drained in safety, I consider that it ought to have been possible for the defenders to devise a less haphazard and ineffective method of preventing coolant from contaminating the floor. No evidence was led by the defenders to show that that would have been impracticable, nor did they suggest any reason why it would have been impracticable to instruct the spreading of absorbent granules in advance of any job from which the spillage of coolant was anticipated.

[25] Accordingly, in my opinion, the defenders have failed to prove that it would not have been reasonably practicable for them to prevent the breach of regulation 12(3) which occurred. In that event, as the defenders' solicitor advocate fairly conceded at the end of the proof, no further defence of sole fault could realistically be maintained. Subject to contributory negligence, therefore, the defenders are in my view liable in damages to the pursuer for the accident which he sustained.

[26] In light of the conclusion which I have reached on regulation 12(3), it is not necessary for me to consider the pursuer's contentions on regulations 5(1) and 13(1). Had I required to do so, I would have declined to hold that breach of either regulation was established. As regards regulation 5(1), I am not persuaded that it was ever intended to impose an absolute duty in exactly the same circumstances as are covered by the qualified duty under regulation 12(3). At the time when the precursor of regulation 12(3) appeared as the second part of section 28(1) of the Factories Act 1961, the absolute obligation contained in the first part of that section was held not to cover spillages and other transient conditions. Where these matters are now expressly covered under regulation 12(3), it seems to me that, on a proper construction, regulation 5(1) should be confined in scope to the permanent state of the workplace, or at least to longer-term situations. In this regard I find myself in agreement with the approach recently taken by the Court of Appeal in Lewis v Avidan Ltd 2005 EWCA Civ 670.

[27] It is of course true that, as Lord Brodie observed in Cochrane v Jaughan 2004 SCLR 1073, the words in parentheses; "... (including cleaned as appropriate)" - which did not appear in previous legislation - bear to extend the scope of the duty under regulation 5 to some degree. In my view, however, sufficient content can be given to these words by construing the regulation as extending, at most, to such non-constructional states as would be removed by appropriate cleaning (my emphasis), and thus still as excluding momentary or transient spillages which no appropriate cleaning regime could practicably have dealt with in the time available. The element of appropriateness must, in other words, be given content as well as the reference to cleaning which does not stand alone. Approaching the matter in this way would have the merit of maintaining the logical distinction, which applied under earlier legislation, between absolute duties applying to the permanent or long-term state of the workplace and means of access, and duties qualified by reasonable practicability applying to short-lived transient conditions. It would also have the advantage of preserving the settled meaning which has, for decades, been accorded to statutory duties expressed in terms of "maintaining" premises "in an efficient state".

[28] For the avoidance of doubt, I should make it clear that I am not suggesting that any relevant distinction should be respected merely because it was established under earlier legislation. Plainly, such an approach would be untenable following repeal of that legislation and implementation of the Workplace Directive, although I note in passing that the latter does not clearly impose on employers any absolute duty to secure the safety of either new or existing workplaces under all possible conditions. The point is rather that, in the 1992 regulations as in earlier legislation, qualified and unqualified duties have been enacted side by side, and in that context it is surely necessary to construe the unqualified duties, where possible, in such a way as to preserve some semblance of content and application for the qualified. If the absolute duty prescribed under regulation 5 were to be given the wholly unrestricted meaning for which the pursuer contended, then in my view many of the other regulations would become otiose, and the qualification of reasonable practicability in particular defined situations (for example under regulation 12(3)) might as well not be there at all.

[29] So far as regulation 13(1) is concerned, it is clear that the pursuer did not in fact fall any distance, and on the evidence I am not persuaded that he was at any time liable to do so. The layout of the premises was not explored in the course of the proof, and I cannot now say whether there was in fact any risk of the pursuer falling into the inspection pit. As I understand it, the pit board was positioned at, and perhaps partially under, the rear of the bus, with the result that a fall in that direction would probably have been blocked. There was simply no evidence as to what danger, if any, lay to the other side of the pit board, and to cap it all there was no clear evidence as to the direction of the pursuer's fall. In all the circumstances, it does not seem to me that any breach of regulation 13(1) has been made out.

[30] If I had found the defenders to be in breach of regulation 5(1) or 13(1), I would not have been prepared to uphold the defenders' plea of sole fault. As the House of Lords made clear in Boyle v Kodak Ltd 1969 1WLR 661, an employer can only avoid liability for breach of an absolute statutory duty if he proves that the only act or default which caused or contributed to the non-compliance was the act or default of the pursuer himself. Liability is not avoided "... (if) there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident ..." (per Lord Reid at 666H - 667A, quoting with approval the judgment of Pearson J (as he then was) in Ginty v Belmont Building Supplies Ltd 1959 1AER 414). For broadly the same reasons as I have given for rejecting the defenders' contentions on reasonable practicability, I do not consider that they have made out the requirements for a sole fault defence either.

Contributory negligence
[31] In view of the degree to which the pursuer might, in lay terms, be regarded as the author of his own misfortune, an issue arose at the end of the proof as to whether a finding of 100 per cent contributory negligence could competently be made. Counsel for the pursuer argued strongly that it could not, founding on a decision of the Court of Appeal to that effect in Andrew v Newham College of Further Education 2002 EWCA Civ 500. However, with the greatest respect to their Lordships in that case, I find the contrary decision of an earlier, eminently constituted, Court of Appeal in Jayes v IMI (Kynoch) Ltd 1985 ICR 155 much more persuasive. There, following previous authority, it was held that

"... there is no principle of law which requires that, even where there is a breach of statutory duty in circumstances such as the present, (where the intention of the statute is to provide protection, inter alia, against folly on the part of a workman), there cannot be a case where the folly is of such a kind or of such a degree that there cannot be 100 per cent contributory negligence on the part of the workman."

Their Lordships then went on to draw support from the practice of the court to judge such matters broadly, and to avoid unduly minute calculations. Robert Goff LJ (as he then was) explained:

"It must be borne in mind that in a case of this kind the court does not, for example, hold that there is 1 per cent or 2 per cent fault on the part of the employer and 99 per cent or 98 per cent fault on the part of the workman. There comes a point in time where the degree of fault is so great that the court ceases to make fine calculations of that kind and holds that, in practical terms, the fault is entirely that of the workman".

It is not unknown for the degree of carelessness or inattention established against a pursuer to be held insufficient to warrant the making of any finding of contributory negligence under the 1945 Act, and I am unable to see any logical reason why the same should not apply at the other end of the spectrum where the degree of fault on the part of defenders can similarly be regarded as too small to warrant an apportionment.

[32] By contrast, again with great respect to the later court, there are in my view several reasons to doubt the soundness of the opposite view. First, their Lordships in Anderson bear to have relied on aspects of a decision of the House of Lords - Boyle v Kodak Ltd, supra - which concerned, not contributory negligence and the dual assessment of blameworthiness and causative potency which that entails, but the very different question whether sole fault on the part of a claimant relieves the defender of liability for breach of an absolute statutory duty. Second, it is arguable that undue weight was attached to certain wording in section 1 of the Law Reform (Contributory Negligence) Act 1945, the true purpose of which was merely to confirm the abrogation of the former common law rule that any degree of fault on the part of a claimant was fatal to his claim. And third, the decision would appear to cut across the long-established practice of the court to assess contribution under the 1945 Act on a broad, rather than a narrow, basis.

[33] If the court habitually searched for mathematical precision in this field, judging a party's contribution to the nearest 1 per cent or fraction of 1 per cent, then the position might have been different. But the practice of the court, in my view understandably, has been to achieve justice along broader lines. Interestingly, the possibility of a 100 per cent finding of contributory negligence was considered by the House of Lords, without adverse comment, in Reeves v Commissioner of Police for the Metropolis 1999 3WLR 363, where the members of the courts below had ended up equally divided between the extremes of 0 per cent and 100 per cent contribution.

[34] The present case is not, however, one in which a 100 per cent finding of contributory negligence would in my opinion be appropriate. No doubt the pursuer was materially at fault in several different respects, namely (i) spilling the coolant in the first place; (ii) failing to take steps to neutralise or clear it; (iii) walking or running on the spillage when he had no pressing need to do so; and (iv) contriving to slip and fall. As regards factors (iii) and (iv), the pursuer did not suggest that he had had to cross the pit board in order to reach the locus. It is therefore reasonable to infer that he probably did not do so, and moreover that he did not require to cross the pit board in order to leave the locus either. In any event, as he accepted in cross-examination, he was aware of the state of the pit board and had a duty to take care in crossing it. However, for the reasons set out earlier in this opinion, I am unable to regard the defenders' contribution to the pursuer's accident as negligible, even though it did not extend to all of the areas in which the pursuer himself may be criticised. In the whole circumstances, I consider that the pursuer himself must bear the major share of responsibility for what happened, and that contributory negligence should be assessed at 75 per cent.


[35] For the foregoing reasons, I now grant decree in the pursuer's favour in the sum of £1,125 (being 25 per cent of the agreed value of the claim on a full-liability basis), together with interest thereon at 8 per cent per year from 17 March 2006 until payment.