Appeal No.	EAT/1144/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS R CHAPMAN
MR R SANDERSON OBE

MR P CHISNALL	APPELLANT

HILLE AUDITORIUM SEATING LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS ANNETTE P. GUMBS
(of Counsel)
Messrs Garth Rigby & Co.
Solicitors
23 Wigan Road
Ashton-in-Makerfield
Wigan
WN4 9AR	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing was to determine whether Mr Chisnall has an arguable point of law against a second decision of an Industrial Tribunal which concluded that his employment with the respondents, Hille Auditorium Seating Ltd, had come to an end by reason of frustration.

	The point, and only point, in this appeal is as follows. The employers said that the contract of employment had come to an end because of the incapacity of Mr Chisnall. There was no dispute between the parties that Mr Chisnall was incapacitated and had been for some considerable period of time, and disabled from continuing in his duties. 

	The apparent reason for his incapacity was due to an accident at work for which he held the employers responsible.

	Accordingly, it is said by Miss Gumbs on his behalf, that it is arguable that the Industrial Tribunal erred in law in concluding that the contract was frustrated, because the event which prevented the employee from doing his work was not an extraneous circumstance outwith the fault or control of the employer. Accordingly she says, in accordance with authority, in those circumstances, it is arguable that the doctrine of frustration cannot apply. She says that here the employers themselves have caused the incapacity for work, that was their fault, that is not an extraneous circumstance of the sort that is required, and any way because they were at fault, the doctrine does not apply.

	This point must be argued at a full hearing. We express no view one way or the other as to its merits, but we consider it to be distinctly arguable.

	It should be listed as Category B. I think it should be dealt with by a High Court judge. I would estimate that it will take more three quarters of a day to a day to determine. The Notes of Evidence will not be required. The appellant should have leave to amend the Notice of Appeal in its present form.