An employee's contributory negligence cannot reduce damages awarded for breach of the employer's implied contractual duty to provide a safe system of work, following Astley v Austrust. The employer's breach of contract in failing to provide a safe system of work is a sufficient cause of the employee's injuries in the contractual sense where both parties' breaches are concurrent causes of equal efficacy, even where the employee's negligence was serious. The implied term that an employee will exercise due care and skill arises as a legal incident of the employment relationship, not under the BP Refinery/Codelfa business efficacy test. The question whether an employer can counterclaim against an employee for breach of the implied term of due care and skill (to offset the Astley advantage) was left open.
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