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Case No: CCRTF/1999/1061/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
His Honour Judge Hall
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 5 May 2000
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE HENRY
and
LORD JUSTICE MANCE
|
CASEY
|
Respondent
|
|
-
and -
|
|
|
MORANE
LIMITED
|
Appellant
|
__________________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
__________________________________
Mr. Barry Coulter (instructed by Messrs Shoosmiths Harrison of
Northampton for the Respondent)
Mr. Alasdair Brough (instructed by Messrs Henmans of Oxford for the
Appellant)
__________________________________
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:
1. On 30th March 1994, Mr Casey, the claimant, was injured at the factory
where he worked in the employment of the defendants. He was a Senior Shift
Leader, responsible for two machines and six men. He was injured when he tried
to clean one of the machines when it was still running. His right index finger
was trapped in the moving rollers of the machine and was traumatically
amputated, causing him pain that lasted for years.
2. His employers held him responsible for not stopping the machinery before
attempting to clean it, and brought disciplinary proceedings against him three
months after the accident, in June 1994. His defence to these proceedings was
that his employers actively encouraged and/or knew of and condoned this
dangerous practice because they wished to reduce down-time. Unpromisingly, the
Production Manager (Mr Marsden) against whom he was specifically making this
allegation was conducting the disciplinary hearing. At the hearing, Mr Casey
complained that no-one would support him publicly, though all knew the truth.
In the event Mr Casey was found guilty of gross misconduct by Mr Marsden, given
a final written warning, and was demoted to Senior Shift Operator. The effect
of this demotion was to reduce his net earnings by some £5,500 per year, a
cut of roughly 30%. He appealed against the Production Manager's decision to
the Managing Director, but that appeal was unsuccessful. He continued to work
for the defendants and is employed there still. He is still a Senior Shift
Operator, and paid on that rate, having never recovered his Senior Shift Leader
status.
3. In June 1996, Mr Casey started proceedings against his employers for
damages for the personal injuries he had sustained, alleging negligence and
breach of statutory duty, namely the duty to fence the dangerous parts of the
machinery under Section 14(1) of the Factories Act, 1961, or its statutory
successor. The defendants denied liability and alleged contributory
negligence. Both parties were clearly agreed that this was a claim to which
Section 1(1) of the Law Reform (Contributory Negligence) Act, 1945 applied.
That Section provides:
"Where any person suffers damage as a result partly of his own fault and partly
of the fault of any other person or persons, a claim in respect of that damage
shall not be defeated by reason of the fault of the person suffering the
damage, but the damages recoverable in respect thereof shall be reduced to such
extent as the court thinks just and equitable having regard to the claimant's
share in the responsibility for the damage."
4. The judge was not called on to apportion responsibility for this accident
between Mr Casey and his employers, because the parties settled the issue
of liability by a consent order of the court dated 3rd July 1998, which
read:
"1 The defendants be held liable for the plaintiff's claim in the order of
85%.
2 The plaintiff be held to be contributorily negligent in the order of 15%.
3 There be no trial on liability.
4 This matter be set down for an assessment of damages hearing ..."
5. By consenting to that order the parties recognised that, applying the
words of the Law Reform (Contributory Negligence) Act, 1945, Mr Casey had
suffered his injuries partly as a result of his own fault, and partly as a
result of his employers' fault, and that it was just and equitable that his
damages be reduced by 15% having regard to his share of responsibility for the
damage: that is to say that the defendants' share of responsibility was
85%.
6. That apportionment of liability seems to me to be a clear confirmation of
the claimant's case in the disciplinary proceedings, that his employers
actively encouraged, or at least knew of and condoned their employees cleaning
the machines while they were in motion because of the cost of down time. I do
not see how else those proportions can be explained. So liability (which
includes admitted breach of duty by the employers, admitted fault on both
sides, and the causative potency and/or blameworthiness of the actions or
inactions of each party apportioned as 85% attributable to the employers and
15% to the claimant) was compromised.
7. But the burden still lay on the claimant to show that the defendants'
negligence and/or breach of statutory duty had caused each head of damage
claimed. The live issue here related to the claimant's loss of earnings claim.
That claim seeks to recover the loss of earnings which his demotion as a result
of the disciplinary proceedings cost him.
8. It was the claimant's contention that but for the accident, he would have
continued to be paid as a Senior Shift Leader until retirement. If,
hypothetically, an officer of the employers had witnessed Mr Casey clean the
machine while it was in motion, and escape unscathed, while he might have been
reprimanded, it was inconceivable that he would be demoted, and suffer a large
pay cut for that, as the admission of 85% of the responsibility for the
accident shows. So from the first, the claimant claimed as "loss of earnings"
his past and prospective loss as a result of his demotion and wage cut.
9. The defendants in their counter-schedule replied to these claims as
follows:
"Causation is disputed. The claimant was not demoted as a result of the
defendant's negligence but as a result of his own negligence which amounted to
gross misconduct. ..."
10. This way of putting matters was amplified by Mr Brough in his skeleton
argument prepared for this Court. There he said:
"It was and is the Defendants' contention that the cause in fact and in law of
the Claimant's said losses was his demotion following a bona fide disciplinary
hearing into the Claimant's conduct at the time of the accident. The fact that
the Defendants conceded liability for the accident in the proportions set out
is irrelevant. Whilst it is right that had the Claimant not had the accident
at all he may have continued as Shift leader, his own role in the accident
however was the sole cause of his demotion."
11. That then was the issue that came before His Honour Judge Julian Hall,
who had the task of assessment of damage at the Oxford County Court on 15th
June 1999. He awarded the claimant £119,000. That award had been reduced
by 15% to reflect the claimant's contributory negligence. The defendants
appeal, and as the details of the claim show, the amount in issue is roughly
80% of the award.
12. The judge heard evidence from both the claimant and his immediate
superior, Mr Willingdale, who was the Extruder Supervisor to the defendants.
He reported to the Production Manager, Mr Marsden. The claimant gave evidence
that the workforce were under pressure from Mr Marsden to keep machine
down-time to a minimum. What he had done was general practice. When
challenged because he had not produced a witness to support him in this, he
said:
"Nobody would back me up. After my accident everyone said: `Oh no we did it a
different way' because they did not want to be disciplined the same way I
was."
He said in terms that Mr Marsden had seen him run under the moving machine with
a knife, and
"... cut the trim off quick so it didn't stop the machine, because if the
machine was down for a trim foul-up it could be down for 20 minutes, half an
hour or however long it took to get the machine up and running again. On one
occasion Mr Marsden seen me do this, go under the machine and cut the trim off
and he thanked me for doing it, for keeping the machine running."
He said that if he had been told that it was breaking the rules to do what he
did, he would not have cleaned the rollers in that manner. As far as he was
concerned, he was not breaking any rules.
13. Mr Willingdale's evidence was in conflict. He expressed the view that
what the claimant had done was "downright bloody dangerous", and if a man did
it he would have expected "disciplinary". But he admitted in cross-examination
that avoiding down-time was regarded as important and trim removal with a knife
when the machine was moving had been stamped out but later slipped. As the
judge was to comment in his judgment, he heard no evidence as to the
defendants' precise reasons for demotion - yet it was the defendants who were
seeking to separate the demotion and its effects from the accident and its
effects.
14. The judge summarised the submission of Mr Brough for the defendants:
that the disciplinary proceedings were not "caused by the accident" but were
"caused by the circumstances of the accident"; the circumstances being that
the claimant put himself under the machine, where, the defendants contended by
argument and a limited amount of evidence, he should never have been. He
should not have been doing what he did, it showed that he was unfit to be a
Shift Leader, and that (and not the accident) was the reason for his demotion.
Therefore his demotion was an intervening cause, and it was the demotion, and
not the accident that caused the loss of earnings.
15. The judge rejected that submission on the simple and compelling ground
that 85% of the blame rested with them. If the defendants had evidence that
the workforce knew that doing cleaning and/or running repairs or maintenance on
moving machines was strictly forbidden, why would they have admitted to being
85% responsible for the accident. The judge was right to infer that such an
apportionment was consistent only with the claimant's case, and directly
contradictory to the defendants' case that he knew perfectly well that what he
was doing was strictly forbidden, and he showed himself unfit to be a Shift
Leader by his actions. The judge concluded:
"In my judgment, it is entirely artificial to say that because the claimant did
something which led to the accident, that that can be further analysed and
isolated as being the sole cause of his demotion. The cause of his demotion
was the happening of the accident. They are 85% to blame. I have no evidence
from the defendant as to why it was settled on this basis. I have heard no
evidence ... from Mr Marsden for the precise reasons for demotion ... [I ask
myself] has the chain of causation between the accident [and its financial
consequences] been broken. Can the defendants say it has been broken? In my
judgment ... it is wholly artificial to find that there has been such a
break."
16. By that finding of mixed fact and law the judge concluded that the
claimant's wages were cut because of the accident he sued for, and would not
have been cut had that accident not happened. That was a finding that in my
judgment he was both entitled and right to make. Accordingly, I would dismiss
this appeal.
LORD JUSTICE MANCE:
17. In an accident on 30th March 1994, in the course of his
employment by the defendants as a senior shift leader, the claimant sustained
injuries. On 12th June 1996 he commenced the present proceedings, in
which he claimed damages. The claimant's case was that the defendants required,
permitted or failed to prevent the working practice which he was adopting when
injured (which involved crawling under a moving machine to spray-clean rollers,
so avoiding down-time), and that they did so in breach of their common law
duties to him and also failed securely to fence their machines in breach of
section 14 of the Factories Act 1961. The defence denied all responsibility,
and included pleas that the claimant caused or contributed to the accident and
his injury.
18. However, prior to trial, liability was, by consent order dated
3rd July 1998, agreed on the basis that the defendants were 85%
responsible and the claimant only 15% contributorily negligent. It remained for
the claimant to establish the heads and amounts of loss attributable to the
defendants' breach of duty, in respect of which he could recover 85% of the
relevant amounts. This required the claimant to address both causation and
quantum. By schedule dated 30th March 1999 he quantified his claim
in sums totalling £140,042. By far the largest part of this claim consists
in three items totalling £110,195, that is loss of earnings, £23,195;
future loss of earnings, £70,000; and loss of shift leader's pension,
£17,000. Their immediate cause was his demotion to senior shift operator
in disciplinary proceedings brought against him by the defendants in June/July
1994 "concerning the accident", as a contemporaneous minute put it.
19. In response to the claimant's schedule, the defendants pleaded that the
three items were not attributable to their negligence at all, but were the
result simply of the claimant's "own negligence which amounted to gross
misconduct". The issue thus raised came before HHJ Julian Hall sitting in the
Oxford County Court on 15th June 1999. He awarded the claimant 85%
of all heads of loss claimed, including the three items relating to the
demotion totalling £110,195. He held that the cause of the demotion was
the happening of the accident, he rejected any suggestion that the chain of
causation between the accident and the three items claimed had been broken and
he considered that the defendants' argument was inconsistent with the
apportionment of responsibility which they had agreed. On this appeal we have
to consider whether the judge was right in his analysis. That is, it seems to
me, a question of mixed fact and law.
20. The starting point must be that the defendants were overwhelmingly
responsible for the circumstances leading to this accident. Although counsel
for the defendants submitted that neither the taking nor the outcome of the
disciplinary proceedings was directly concerned with any apportionment of
responsibility, I find it impossible to reconcile the taking or outcome of the
disciplinary proceedings with the apportionment now agreed. Counsel for the
defendants submitted that this was irrelevant and that it could anyway be
explained. He sought to distinguish between the defendants and their insurers,
on the footing that the defendants conducted the original disciplinary
proceedings while their insurers, so he asserted, must be taken to have
determined the terms of the defendants' settlement of the present action. Such
an argument cuts either way - it by no means follows that the insurers'
determination was less objective than the defendants' or was incorrect. But in
any event, it is impossible to draw the distinction which counsel suggested.
The defendants are the defendants, whoever may have determined their conduct
under whatever internal or insurance arrangements. What matters and what binds
the parties and the Court is the settlement of liability of the present
proceedings on the basis that the defendants were 85% responsible and the
claimant only 15% responsible.
21. In my view it is of significance to the resolution of the issue before us
that the disciplinary proceedings took place on a basis and led to a result
which must be regarded as inconsistent with the apportionment of responsibility
now agreed and binding on us. Although counsel for the claimant acknowledged
that it was "possible" that disciplinary proceedings might have been taken
against him, even if it had been appreciated that the claimant only bore 15%
responsibility, I agree with his further submission that the reality is that it
would not have been thought fair to take them, still less to conclude in their
course that the claimant should be demoted, losing pay of £5000 per annum.
As a matter of fact, therefore, there would have been no demotion and no loss
of pay, had the apportionment now acknowledged as correct been understood and
accepted then.
22. In these circumstances, can the claimant's actual demotion and loss of pay
be attributed to the defendants' breach of duty which led to the accident? At
times the submissions on behalf of the claimant seemed to suggest that it was
sufficient, if we were satisfied that "but for" the accident to the claimant's
hand, there might very well have been no disciplinary proceedings, whatever the
claimant's fault in putting himself in a dangerous place underneath the
machine. I would accept that if he had been fortunate enough to avoid injury,
though unfortunate enough to be observed by a member of management not party,
or prone to turn a blind eye, to such risk-taking, one may be reasonably
confident that there would have been no disciplinary proceedings. This is
particularly so when other senior employees must, on the apportionment now
agreed, have encouraged or condoned such risk taking.
23. However, a "but for" test is only one customary (although itself not
absolutely invariable) aspect of causation. Where a number of factors combine
to lead to a situation in which a claimant incurs loss, a more sophisticated
approach is required. It may become appropriate to select the "predominant" or
"real" or "effective" cause of, in this case, the claimant's being disciplined
and losing pay: see Clerk & Lindsell on Torts (17th ed.) paragraphs 2.14
and 2.15; Stapley -v- Gypsum Mines [1953] AC 663, per Lord Reid at page
681, Lord Tucker at page 684 and Lord Asquith at pages 687-8. The exercise is
one of judgment and selection, bearing in mind the nature of the issue, and
above all the context in which and the purpose for which the selection of a
cause is being made. Courts have inveighed against any idea that philosophers
or logicians have much to contribute in this area of the law, and urged the
application of common sense. Whether this is fair to philosophers or logicians
or to the submissions of counsel is another matter. The following passages from
Lord Reid's and Lord Tucker's speeches in Stapley do at any rate
identify clearly that there is more to causation than a "but for" test, even if
they do not seek to identify those considerations of context, purpose or
purpose which may in a particular case assist to identify the relevant
cause.
24. Lord Reid said:
"To determine what caused an accident from the point of view of legal liability
is a most difficult task. If there is any valid logical or scientific theory
of causation it is quite irrelevant in this connection. In a court of law this
question must be decided as a properly instructed and reasonable jury would
decide it. "A jury would not have profited in a direction couched in the
language of logicians, and expounding theories of causation, with or without
the aid of Latin maxims": Grant -v- Sun Shipping Co. Ltd [1948] AC 549,
564, per Lord du Parcq. The question must be determined by applying common
sense to the facts of each particular case. One may find that as a matter of
history several people have been at fault and that if any one of them had acted
properly the accident would not have happened, but that does not mean that the
accident must be regarded as having been caused by the faults of all of them.
One must discriminate between those faults which must be regarded as being too
remote and those which must not. Sometimes it is proper to discard all but one
and to regard that one as the sole cause, but in other cases it is proper to
regard two or more as having jointly caused the accident. I doubt whether any
test can be applied generally."
25. Lord Tucker described the exercise as one of matter of fact and degree,
while Lord Asquith said:
"Courts of law must accept the fact that the philosophic doctrine of causation
and the juridical doctrine of responsibility for the consequences of a
negligent act diverge. To a philosopher - a term which I use in no disparaging
sense, for what is a philosopher but one who, inter alia, reasons severely and
with precision? - to a philosopher, the whole legal doctrine of responsibility
must seem anomalous. To him, if event C could not occur unless each of two
previous events - A and B - had preceded it, it would be unmeaning to say that
A was more responsible for the occurrence of C than was B, or that B was more
responsible for its occurrence than was A. The whole modern doctrine of
contributory negligence, however, proceeds on the contrary assumption. If not
there would be no question of apportionment. But the fission between law and
strict logic goes deeper than that. For I am persuaded that it is still part
of the law of this country that two causes may both be necessary pre-conditions
of a particular result - damage to A - yet the one may, if the facts justify
that conclusion, be treated at the real, substantial, direct or effective
cause, and the other dismissed as at best a cause sine qua non and ignored for
purposes of legal liability."
26. More recently, in South Australia Asset Management Corp. v. York Monagu
Ltd. [1997] AC 191, the speech of Lord Hoffmann at pp.212C-213F discusses
in depth the interrelationship between the scope of the duty of care owed by a
valuer and the kind of loss in respect of which damages may be recovered. Lord
Hoffmann indicated that recovery depends upon determining the kind of loss in
respect of which a duty of care is owed, which in turn directs attention in
tort to the purpose of the rule imposing liability: see p.212C-D. At p.213D-F,
Lord Hoffmann gave an illustration which again illustrates why a simple "but
for" test of causation cannot suffice.
27. The nature of the issue before us is whether the claimant's disciplining
and resulting financial loss can appropriately be attributed to the fault of
his employers which (albeit together with some fault on his own part) brought
about the accident, following which he was disciplined. At first sight the
proposition that it should be may seem surprising. It was the claimant's
responsibility to avoid conduct which could involve him being disciplined. The
employers' duties were to provide him with a safe place and system of work and
safe and properly fenced plant and to take appropriate steps to ensure that he
behaved sensibly. The rationale of their duties was to secure his personal
safety, not to prevent him being disciplined. For my part, therefore, I would
accept that in normal circumstances, where a claimant is penalised or
disciplined and loses income following an objective review of conduct on his
part which has led to an accident, the law would be likely to select as the
relevant cause of that loss his own conduct and nothing else, and that this
would be so even though another person's negligence also contributed to the
occurrence of the accident. That other person might, of course, also be
disciplined and lose income as a result of his part. Where that other person
was his employer the law would not treat any breach by the employer as a
relevant cause.
28. Take the example of disqualification by a court from driving and resulting
loss of income following a car accident caused by the negligence of two drivers
equally. The loss of income in such a case would have resulted from the
decision of an independent court, which would have heard mitigation and
selected an appropriate penalty on the basis of the particular role of the
particular driver before it and the circumstances (including the financial
effect of any penalty upon him). It would seem inappropriate in such a case to
attribute the loss of income resulting from disqualification to anything other
than that driver's own conduct.
29. Coming closer to the present situation, if an internal disciplinary
hearing led to an employee being disciplined on a basis which was consistent
with that ultimately agreed between the parties or determined by a court, its
adverse consequences in terms of demotion and resulting loss of pay for the
employee affected could be regarded as effectively caused by the employee's
conduct alone. The disciplinary proceedings and their outcome would be based
upon and justified by the employee's conduct. The nexus between the
disciplining and the conduct would be close. Even if it was the case that, but
for the accident (and so but for the fault of employers as well as employees
leading to the accident), no-one would have thought it appropriate or
worthwhile to take disciplinary steps, that would still remain an incidental
fact, at most a circumstance "but for" which there would have been no
disciplining or loss, not the relevant cause of the loss.
30. I have considered whether the view expressed in paragraphs 27 -29 is
undermined, or ought to be rejected, in the light of any possibility or risk
that employers or their insurers might more frequently be inclined to
discipline employees after an accident. But one would hope, firstly, that most
employers would only discipline where objectively justified and for reasons
unrelated to any claim which their employee might have against them, and,
secondly, that if they disciplined on any other basis this would become
apparent. Thirdly, disciplinary action leading to dismissal or reduction in
status would increase, rather than reduce, the potential size of any claim
against the employers in a case like the present where it leads to loss of
income additional to any loss resulting from injury. It is only in the case of
an employee suffering injury affecting his ability to earn, that an employer
who had disciplined an employer after an accident might be able to argue that
the injury caused by the accident did not cause loss of pay, because the
employee would anyway have suffered such loss as a result of being disciplined
and put out of work or demoted. The fact that this possibility does not seem to
have caused any problem to date gives some reason for confidence that employers
and their insurers will not be over-inclined to resort to disciplinary action
in the future. It would also be unlikely to encourage good labour relations if
they were to do so.
31. In my judgment, the present case falls into a special category, different
from any considered in paragraphs 27-29. Here the employee's conduct, as the
court can and must now evaluate it in the light of the agreed apportionment,
cannot, I consider, be regarded as the predominant, real or effective cause of
his being disciplined or losing pay. I have already indicated my conclusion
that a 15% responsibility, compared to the overwhelming 85% responsibility
recognised by the defendants, would not have led to any disciplinary
proceedings at all, still less to demotion and loss of pay in any which were
taken. Suppose also, as Lord Justice Peter Gibson suggested in the course of
argument, that the defendants had had ultimately to accept 100% responsibility,
instead of the virtually complete responsibility involved in their actual
acceptance of 85% responsibility. There would then have been no fault at all
on the claimant's part to which to attribute the actual disciplinary
proceedings and loss of pay.
32. What then should be regarded as the relevant cause of the claimant's
disciplining and loss of pay here? Can these matters appropriately be
attributed to the defendants' fault? The defendants have not suggested as a
relevant cause their own pursuit and determination of disciplinary proceedings
on what can now be seen to have been an erroneous basis. It is not, I think,
surprising that they did not overtly suggest this before us. It would be not
only unappealing but, in my view, incorrect as an analysis. Amongst other
defects it would have involved the defendants in seeking to set up as a
subsequent intervening act or event their own conduct and erroneous decision
following the accident. Nor can it be regarded as particularly surprising if an
erroneous decision was reached in internal disciplinary proceedings where those
acting as effectively prosecutor and judge at the first instance were the
employers' other staff (particularly Mr Marsden) whose responsibility was
likely to be in issue. The defendants submitted that, if the outcome of the
disciplinary proceedings was inconsistent with the now agreed apportionment,
the claimant had remedies in his own hands. He could have claimed to have been
unfairly dismissed or have commenced proceedings for breach of an implied
contractual term, not to discipline him save as appropriate. I do not regard
either step as very realistic, or consider that failure to take it can be
treated as the relevant cause of the claimant's loss. Proceedings for unfair
dismissal would have involved the claimant in taking the bold, if not reckless,
stance that he had been constructively dismissed and so had no employment at
all, and seeking to establish before an Employment Tribunal that the
defendants' disciplinary decision was not simply incorrect, but unfair. Even
then any compensation would then have been capped at £12,000. Proceedings
for breach of contract would have involved a full scale action, and even then
there could have been a problem relating to the damages recoverable for loss of
income in circumstances where the claimant was only entitled to a notice period
measured in days or at most weeks.
33. In my view, on the facts of this particular case, the claimant's loss of
status and pay fall to be regarded as caused by the accident and by the
combined fault of both parties - although predominately the defendant's fault -
leading to that accident. As I have indicated, I would accept that a
disciplinary sanction and resulting financial loss which were directly related
to and merited by an employee's conduct would usually be expected to be
attributed to that conduct, and nothing else. But a disciplinary sanction and
financial loss which is not so related or merited can be regarded as being in
the nature of an additional peril or disadvantage arising from the accident.
The employers' duty and breach of duty in failing to provide the claimant with
a safe place and system of work and safe and properly fenced machinery was the
predominant cause of the accident from which this additional disadvantage
flowed. On the unusual facts of this case, I therefore come to the conclusion
that the loss arising from the occurrence of this additional disadvantage may
and should properly be attributed to the employers' breach of duty, as well as
of course to the claimant's own fault.
34. I accordingly agree that on the facts of the present case the defendants
are answerable for 85% of the loss involved in all items of the claimant's
claim, including 85% of the three contentious items arising from his demotion
which have been quantified at £110,195.00.
LORD JUSTICE PETER GIBSON:
35. The single issue raised by this appeal is whether the Claimant's loss of
earnings consequent on his demotion in disciplinary proceedings was properly
included by the Judge in the loss and damage resulting from the Defendant's
breach of common law and statutory duties, which, as the Defendant accepted,
was substantially responsible for the accident to the Claimant. That is an
issue of causation and is a question of fact for the trial judge.
36. Mr. Brough for the Defendant submitted that the judge could not properly
find that the Defendant caused that loss at all. He pointed to the evidence
that the conduct of the Claimant, which showed him to be unfit to be a Senior
Shift Leader, was the subject of the disciplinary proceedings. He stressed
that the Claimant had not claimed that he had been constructively dismissed by
his demotion and had brought no proceedings before an Employment Tribunal. He
argued that the acceptance by the Defendant that it was 85% responsible for the
accident was in reality the decision of the insurers and not that of the
Defendant itself. He likened the Claimant's position to that of a motorist,
the possibly innocent party in a car accident, who was then breathalysed, found
to be over the limit, lost his driving licence and suffered a loss of
earnings.
37. I accept that in Mr. Brough's example the loss of earnings was not caused
by the accident but by the motorist's alcohol consumption and decision to drive
despite that consumption. I also accept that an employee in a position of
responsibility who adopts a dangerous working practice not known to or condoned
by the employer, is injured and is demoted after proper disciplinary
proceedings may well not be able to recover from his employer damages for his
loss of earnings consequent on demotion. In such a case the disciplinary
proceedings might be thought to be an intervening event breaking the chain of
causation.
38. But in the present case the circumstances were different. The Claimant
gave evidence at the trial that cleaning the machine while it was in operation,
including going under the machine in order to do so, was normal practice and
known to Mr. Marsden, the Defendant's Production Director. Mr. Marsden had
himself conducted the disciplinary hearing. At that hearing there was no
recognition by the Defendant that it admitted any, still less 85%,
responsibility for the accident. At the trial before the Judge, Mr. Marsden
gave no evidence, and there was therefore no direct evidence to contradict what
the Claimant said about Mr. Marsden's knowledge. Mr. Willingale, the
Defendant's Extruder Supervisor, did give evidence, but he could not speak to
what Mr. Marsden knew. Further he accepted that trim removal did go on while
the machine was in operation, and that one of the matters which very much
concerned the Defendant was the avoidance of down time.
39. In my judgment in these special circumstances there was material before
the Judge on which he could properly find that the breach of duty by the
Defendant had caused the loss of earnings of the Claimant and that there was no
break in the chain of causation as a result of the disciplinary proceedings. I
find it hard to see how the determination made in those proceedings, which in
effect proceeded on the premise that the Claimant was wholly responsible for
his own inappropriate conduct leading directly to the accident, can be
reconciled with the Defendant's subsequent acceptance that the Claimant was
only 15% responsible for the accident. It is not possible for the Defendant to
escape from that acceptance on the basis that the insurers took the decision:
they did so in the name of the Defendant and it is bound by that acceptance.
Nor does it seem to me of any significance that the Claimant did not accept the
Defendant's repudiation (constituted by the demotion) of the contract of
employment. That course of action carried obvious risks for the Claimant and
not to have adopted it does not disentitle the Claimant from succeeding on his
claim.
40. For these reasons I too would dismiss this appeal.
Order: Appeal dismissed with costs.
(Order does not form part of the approved judgment)
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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/147.html
