In a personal injury claim, it did not lie in the mouth of a claimant who was a defendant company’s sole director and shareholder to assert that the company had not proved that it had done all it could to ensure compliance with safety regulations when it was only through the claimant that the company could act. In such a case the company would be entitled to raise a defence to that effect.

The Court of Appeal so held when, inter alia, dismissing the appeal of the claimant, Peter Michael Brumder (who was the sole director and shareholder in the first defendant company, Motornet Service and Repairs Ltd), from a decision of Judge Levey, sitting in the Brighton County Court on 12 June 2012, finding that: (a) the first defendant was in breach of its obligation under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 (SI 2306/1998) to ensure that work equipment “is maintained in an efficient state, in efficient working order and in good repair”; (b) the defect in a compressor was causative of the applicable accident, and therefore there was “primary liability” on the part of the first defendant; but (c) the claimant, who had not given any consideration to health and safety matters in the workshop, including the need to comply with the 1998 Regulations, was responsible for the breach, and 100 % contributorily negligent.

BEATSON LJ said that the question was whether the sole director and shareholder of a company, who suffered personal injury as a result of the breach by the company of an absolute statutory obligation to maintain equipment in efficient working order, could bring a claim against the company even though he was in breach of his obligations to the company to exercise reasonable care to enable the company to fulfil that obligation, and the company could only do so vicariously through him. First, the finding of “100 % contributory negligence” was in any event wrong in principle, because to hold that a person was himself entirely responsible for the damage effectively defeated his claim, and because apportionment under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 presupposed fault on the part of both parties. However, the key question was rather whether the case fell directly or by analogy within the principle and defence identified in Ginty v Belmont Building Suppliers Ltd [1959] 1 All ER 414 by Pearson J, and considered with approval by the House of Lords in Boyle v Kodak [1969] 1 WLR 661, for example where Lord Reid stated at p 667: “once the claimant has established that there was a breach of an enactment which made the employer absolutely liable, and that breach caused the accident, he need do no more. But it is then open to the employer to set up a defence that, in fact, he was not in any way in fault, but that the [claimant] employee was alone to blame”. The courts had taken a strict approach to the availability of such a defence, and the onus was on an employer to prove that he had done all that he could to ensure compliance with the applicable duty; and only if he did that would the employer have a defence against the injured employee whose act or omission had put the employer in breach. Further, the question whether the defence applied depended on the principle underlying it, where the policy reasons for the absolute duty on employers were to relieve injured employees from the need to show fault, and therefore to protect them as the weaker party in the relationship, and to encourage high standards of compliance by those responsible for the performance of a company’s duty. The position of an employee vis à vis his employer was also a reason for drawing as favourable an inference as possible in favour of an employee. However, that did not apply to a director/claimant who was the only person through whom the company could act; and the conclusion was that the defence was available to the company. It did not lie in the mouth of a claimant who was the defendant’s sole director and shareholder, and through whom the company had to act, to assert that the company had not proved that it had done all it could to ensure compliance when it was only through the claimant director’s acts that the company could act.

LONGMORE LJ gave a concurring judgment.

SIR ALAN WARD agreed.