Contributory negligence

Somnez v Kebabery Wholesale Ltd [2009] EWCA Civ 22, October 2009

The claimant employee suffered serious injuries which the employer alleged had been contributed to by the claimant’s own negligence. Prior to the trial of a preliminary issue on the question of contributory negligence, the claimant made a Part 36 offer in respect of liability which was 100% in his favour. The defendant made a counter offer to settle on a two thirds basis which was rejected by the claimant. The claimant made a further offer to settle at 75% to 25% in his favour which offer was refused. At the trial the claimant was held to have been 20% contributorily negligent. Accordingly, the judge had been in error in ordering the claimant to pay the defendant’s costs. Nevertheless, the court had to consider whether the costs should be reduced because of the claimant’s conduct. It found that his conduct did not fall within that envisaged in CPR r44.3(5) and accordingly the order of the judge was reversed. The defendant was ordered to pay the claimant’s costs of the trial of the preliminary issue.