*Full case details Gillespie vs McFadden McManus Construction Limited and another, 21 July 2003, High Court, Queen's Bench Division, Judgment of Mr Justice MacKay
The defendant was at fault both at common law and under the relevant statutes. The claimant was not at fault for failing to notice that his employer's failure put him in a difficult or dangerous position.
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The defendant, via its expert sought to argue that the claimant, as part of his experience as a miner, would instinctively absorb whether a skip loaded onto a bogey (the four-wheeled cart) was out of balance or not. The judge rejected this on the grounds that the failure of the defendant to ensure the stability of the cart by the usual method of fitting small brackets to its corners to retain the skip made the situation an unusual one, which the claimant could not be expected to deal with in reliance upon his experience. The judge did, however, express some perplexity as to how he was meant to judge such evidence, and relied upon the defendant's failure to discharge its burden of proof in relation to alleged contributory negligence.