McGowan v. W & JR Watson Ltd [2006] ScotCS CSIH_62 (28 December 2006)

McGowan v. W & JR Watson Ltd [2006] ScotCS CSIH_62 (28 December 2006)

The defenders failed to give fair notice in their pleadings of any ground of contributory negligence other than failure to use clamps, and this was not established. Furthermore, inadvertence or inattention by the pursuer does not amount to contributory negligence where the employer is in breach of an absolute statutory duty under Regulation 11(1) of the 1998 Regulations. Therefore, no reduction for contributory negligence was warranted.

Citation
[2006] ScotCS CSIH_62
Parties
Pursuer and Respondent: Stuart McGowan; Defenders and Reclaimers: W & J R Watson Limited
Jurisdiction
Scotland
Judgment Date
28 December 2006
Procedural Posture
Reclaiming Motion (appeal) in Personal Injury Action / Appeal Against Interlocutor Awarding Damages and Declining Reduction for Contributory Negligence
Outcome
reclaiming motion refused; interlocutor of the Lord Ordinary adhered to
Legal Topics
Contributory Negligence, Workplace Safety, Pleadings and Fair Notice, Absolute Statutory Duty
Employment Law Personal Injury Statutory Duty Contributory Negligence Workplace Safety Pleadings and Fair Notice Absolute Statutory Duty

Case Brief

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Parties

Stuart McGowan

Pursuer and Respondent

W & J R Watson Limited

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion (appeal) in Personal Injury Action / Appeal Against Interlocutor Awarding Damages and Declining Reduction for Contributory Negligence

Legal Issues

  1. 1 Whether the Lord Ordinary erred in failing to reduce the pursuer's damages for contributory negligence
  2. 2 Whether inadvertence or inattention by an employee constitutes contributory negligence where the employer is in breach of an absolute statutory duty
  3. 3 Whether the defenders gave fair notice of contributory negligence in their pleadings

Ratio Decidendi

The defenders failed to give fair notice in their pleadings of any ground of contributory negligence other than failure to use clamps, and this was not established. Furthermore, inadvertence or inattention by the pursuer does not amount to contributory negligence where the employer is in breach of an absolute statutory duty under Regulation 11(1) of the 1998 Regulations. Therefore, no reduction for contributory negligence was warranted.

Court Disposition

reclaiming motion refused; interlocutor of the Lord Ordinary adhered to

Orders

  • Damages of £5,150 with interest awarded to the pursuer stand; no reduction for contributory negligence