CIVIL PROCEDURE BACK TO BASICS 22: WHEN THE CLAIMANT ADOPTS ALLEGATIONS OF CONTRIBUTORY NEGLIGENCE: HOIST ON YOUR OWN PETARD
This post follows on from the previous post in relation to pleading the Defendant’s case in the alternative. Here we are looking at cases where a defendant pleads allegations of negligence and the claimant uses those allegations as allegations against the Defendant. In essence the allegations made by the defendant backfire. This should give both claimants and defendants food for thought.
” The plaintiff’s advisers sought thus to hoist the employers with their own petard,“
AN OLD STRATEGY
In Drummond -v- British Building Cleaners Ltd  1 WLR 1343 the plaintiff was a window cleaner who was injured when he fell off a window. The defendant pleaded that the claimant was contributory negligence in that he should have used the “transom method”
Denning L.J. stated:
“In this case the plaintiff suggested several methods of cleaning the window which he said should have been devised by the employers for cleaning this window. The judge disposed of all of them in favour of the employers, and I need say nothing about them except for one particular method which is described as the “transom method.” It was said on behalf of the plaintiff that if the employers had examined the windows of this particular building, they would have found that the men could have used their safety belts, by putting the rope around a transom, and that they should have instructed the men to do this. By a strange irony, it was the employers themselves who first suggested this method. They raised it by way of a plea of contributory negligence against the plaintiff himself. They said that he was provided with a safety belt and a rope, there was a strong transom at the top of this window, and he ought to have fastened his rope over the top of the transom and attached it to his safety belt. When the plaintiff’s advisers saw this plea, they turned it to their own advantage. They amended the statement of claim so as to charge the employers with negligence in not ordering the men to use the transom method. They said, with some force: If the employers can think of this method now for the purposes of their defence, why did they not think of it before the windows were cleaned? The plaintiff’s advisers sought thus to hoist the employers with their own petard, just as happened in General Cleaning Contractors v. Christmas “
It was the failure to use the “transom method” that led to the Court of Appeal overturning the trial judge’s judgment in the defendant’s favour and overturning it in favour of the claimant.
BUT STILL A GOOD ONE…
There are lessons in this case for both claimants and defendants. Defendants should be wary of pleading matters that can be used against them. Claimants should scrutinise allegations of contributory negligence with some care. In a surprising number of cases allegations of contributory negligence can be adopted and the particulars of claim amended to incorporate these as allegations of negligence against a defendant.