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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cto Gesellschaft Fur Containertransport MBH & Co & Ors v Dziennik [2006] EWCA Civ 1456 (13 November 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1456.html Cite as: [2006] EWCA Civ 1456

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMIRALTY COURT
HIS HONOUR JUDGE CHAMBERS Q.C.
Claim No: 2003 FO 625

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/11/2006

LADY JUSTICE HALLETT :

1. This appeal arises from a claim by the respondent/claimant ("claimant") for damages for personal injuries he received in an accident which occurred on board a ship owned and managed by the appellant/first defendant ("first defendant"). He sued the first defendant in negligence and the second defendants, his former employers, for breach of contract. The claim against the second defendants was settled before trial.
2. Both parties appeal, with permission, against the findings on liability of H. H. Judge Chambers QC, sitting as a Judge of the Queen's Bench Division. On 15^th June 2005, he gave judgment for the claimant and on 4^th November 2005, he awarded him the sum of £73,500. He found that the accident was in part caused by the negligence of the first defendant, in failing to provide the claimant with a safe system of work and in part by the claimant who was negligent to the extent of 60%. He also decided that a payment of 110,475.59 euros made by the second defendants, pursuant to their contract with the claimant, should be deducted from his damages before the question of contributory negligence was taken into account. The first defendant appeals against the finding that its negligence caused the accident and against the quantification of damages. The claimant cross appeals, with permission, the finding of contributory negligence.

Facts

3. By a contract dated 28^th February 2001, the second defendants agreed with the first defendant to supply crew for its ship the CSCL Longkou. On 4^th September 2001, the claimant, now aged 57 and an experienced ship's electrical engineer, signed a contract with the second defendants to work on board CSCL Longkou. The claimant joined the ship on 5^th September and it sailed from Hamburg that evening. There was an on-going problem with the ship's thermosensor in the high temperature cooling line. The Second Engineer had attempted in June 2001 (before the claimant joined the ship) to mend another similar thermosensor in a way which resulted in his being drenched in cold water.
4. Within days of the ship having left port with the claimant on board, the thermosensor again began to play up. It gave erratic and unreliable readings. A new one was ordered, but in the meantime adjustments to the control mechanism had to be made manually. Although the claimant did not accept he was aware of the Second Engineer having been drenched in June when he replaced a defective thermosensor, it was common ground that a discussion about repairing or replacing thermosensors took place, in the officers' smoking room, a few days before the claimant's accident. The discussion was between the claimant, the Master, the Chief Engineer, and the Second Engineer. At trial, a great deal turned on its contents.
5. At about midnight on 17^th November 2001, when the ship was back in port, the Chief Engineer informed the claimant that the new thermosensor had arrived. In the early hours of the next morning, when still off duty, the claimant went to fit the thermosensor. The first defendant alleged that he should not have undertaken the job, at that time, without instruction, and alone.
6. The thermosensor comprised three principal parts: the sensor, a metal sheath and a cap. The sensor fits inside the sheath. The sheath is fitted into the water line. A knurled ring screws the sensor into the sheath. A hexagonal nut below the knurled ring screws the sheath into the line. On some vessels, pockets (what I shall call "safety pockets") are inserted into the line so that the thermosensor can be removed as a whole, without disturbing the line. It is not then necessary to drain the line. The judge found as a fact that the claimant believed such a safety pocket was welded into this particular line. Had there been one, the method employed by the claimant would have been a safe one, because the safety pocket would have prevented water from escaping. However, there was no safety pocket present and when the claimant loosened the hexagonal nut, water escaped from the line. This was the same procedure his colleague had adopted some months before with a similar consequence. But, whereas the Second Engineer was sprayed with cold water, the claimant was sprayed with hot water and steam, causing severe and permanently disabling burns.
7. There are two ways of repairing the thermosensor in the absence of a safety pocket. The judge found that best practice is to cool and drain the system and fit an entirely new unit. The second method (what I shall call the "short cut method") involved unscrewing the knurled ring, rather than the hexagonal nut. It could then be removed and part of the unit namely, the sensor device, fitted without disturbing the line. There was, however, a high incidence of damage to the new sensor device if this method was deployed. The first defendant's case, so far as is relevant for present purposes, was that the claimant should have adopted the short cut method, a procedure he had allegedly demonstrated during the smoking room discussion. In failing to do so, it alleged he was either solely responsible for the accident or he contributed to it.
8. The claimant maintained that he believed on good grounds there was a welded safety pocket present on this particular unit and that he was not negligent at all.
9. The judge made the following findings of fact:

i) During the smoking room discussion the Second Engineer described how he had loosened the hexagonal nut on a similar thermosensor and in consequence had been drenched with water.

ii) In consequence of the Second Engineer's experience, the Chief Engineer expressed the view that a defective sensor could be changed, without shutting the system down, by unscrewing the ring that held the wire sensor in place and withdrawing the wire sensor. The claimant played a part in this discussion and was aware of the difficulties the Second Engineer had encountered.

iii) In the smoking room, the claimant demonstrated, using the defective thermosensor removed by the Second Engineer, how the thermosensor could be changed by unscrewing the ring.

iv) In relation to safety, the vessel was not operated in "as tight a fashion" as it should have been. There was no standing system in place which would have protected both the claimant and the Second Engineer. He found that the attitude towards the Second Engineer's experience was "wholly casual". No-one instructed either the Second Engineer or the claimant on how they should approach the task of repairing a thermosensor in the future, to avoid an accident of this kind.

v) "Best practice" as advocated by the first defendant was not, in fact, best practice given the risk of damage to the sensor. The method propounded by the first defendant was one way that the sensor could be changed, but it was not the way it should be changed. Best practice for safety and operational reasons would have been to drain the system.

vi) There remained a "real doubt" as to whether what the claimant demonstrated in the smoking room was how the operation could be done, as opposed to how it should be done.

vii) In the absence of a safety pocket, to loosen the nut and attempt to remove the whole unit was "to invite trouble" and this is what the Second Engineer had done, yet there was no discussion about whether adopting this course would inevitably lead to a soaking.

viii) It was "impossible to find any rational basis for what the claimant did". In "some mysterious way", due to the "unfathomably strange" workings of the human mind, the claimant, when he went to change the thermosensor, "thought that the whole unit and not just the sensor should be removed and that there would be no escape of water".

ix) The claimant's negligence was "the major cause of his accident". However, the accident was caused by the negligence of the first defendant because "what had started informally in the smoking room should have been confirmed in some formal way by the Chief Engineer. It was his duty to make clear to the claimant that he did not expect the whole thermosensor unit to be replaced, but that it was only the sensor that was to be removed". If this had been done, "on a balance of probabilities, that would have prevented the accident".

Discussion on Primary Liability

10. The first defendant did not seek to appeal the finding that it had failed to provide a safe system of work. It limited its appeal on liability to the issues of causation and foreseeability. Permission to appeal was granted only on the issue of causation. Mr Melville QC submits that, on the judge's findings of primary fact, the only conclusion open to him was that the accident was caused solely by the negligence of the claimant. The claimant was an experienced ship's engineer. If, as the judge found, the claimant acted without any rational basis, there was no evidential foundation for the finding that a formal confirmatory instruction from the Chief Engineer would have prevented the accident.
11. Mr Lord QC on behalf of the claimant argued that it is contrary to commonsense to suggest, without basis, that an engineering officer will ignore an instruction from his superior as to how a job is to be done. Such a suggestion (which was not put to the claimant in cross examination) is all the more implausible when the evidence shows that the claimant was experienced, careful and competent, with a long and unblemished service record and no previous history of disobeying instructions given by his superiors. Nor was there anything in the instruction itself, had it been given, which rendered it likely the claimant would have disobeyed. It did not, for example, involve doing anything onerous, unpleasant or otherwise unpalatable.
12. Further, Mr Lord relied upon the judge's finding that there should have been formality to any instruction if the Chief Engineer wanted things done a particular way. Mr Lord argued the prime reason for insisting upon formality is to prevent those receiving instruction from acting "without thinking", which was the way the case was put to the claimant in cross examination as the reason for his action.

Discussion on Contributory negligence

13. Mr Lord maintained that a careful analysis of the judgment indicates that the judge seems to have based his finding of contributory negligence on the fact that the claimant believed there was a safety pocket fitted in the line in question which would have prevented the escape of water, a belief which he described as "irrational".
14. He concedes that the first defendant could have alleged that the claimant was contributorily negligent on this basis. Arguably, it could have alleged that not only was the belief unreasonable, but a failure to check and take proper precautions was negligent. It could have alleged that the claimant should have adopted, what the judge found to be, best practice, namely he should have drained the system and then removed the whole unit safely. It did not. No allegations to this effect were pleaded and, as allegations of contributory negligence, they were never live issues at trial. Mr Lord submitted the judge was not entitled, therefore, to base any finding of contributory negligence against the claimant on the allegedly unreasonable nature of his belief that a safety pocket was present.
15. Mr Lord took us through the history of the action, from the original pleadings in which there was no allegation of contributory negligence, to trial. The defence was described as an "all or nothing defence". On the first day of the trial, the judge raised with counsel the fact that there was no contributory negligence pleaded. The first defendant applied for and obtained permission to amend the defence. However, the amendment simply added the words "or contributed to".
16. Thus, the relevant paragraphs of the Amended Defence, paragraphs 11- 15 read as follows:

"11 The claimant's accident was caused entirely or contributed to by his own negligence for any and all of the following reasons.

12 The accident occurred because the claimant unscrewed the pocket from the high temperature cooling line, thereby allowing the water (under 3.5 bar pressure) to escape. In order to replace the defective thermosensor the correct procedure was to unscrew the sensing device, not the pocket.

13 The claimant knew the correct procedure. Approximately 10-15 days before the vessel arrived in Hamburg there was a discussion in the officers' smoking room one evening. Present were the Master, the chief engineer (Mr Domuzin), the second engineer and the claimant. The second engineer mentioned the defective thermosensor and said that it would not be possible to change it unless the high temperature cooling system was shut down, allowed to cool and then drained. Upon hearing this, the claimant said that it was not necessary to shut down and drain the system. He left the officers' smoking room briefly and returned with a Pleiger Wit-P-10 thermosensor (a defective unit that had failed in another part of the engine room). The claimant then demonstrated the method of changing the thermosensor by unscrewing the sensing device and not unscrewing the pocket. The second engineer was satisfied with this demonstration. Mr Domuzin was already familiar with this procedure.

14 In any event, the claimant, as an experienced ship's electrician would be expected to be familiar with such procedures. On 5 September 2001 the claimant told Mr Domuzin that he had 10 years experience as a ship's electrician. Between 5 September and 18 November 2001 the claimant's performance of his daily tasks satisfied Mr Domuzin that the claimant was an experienced and competent ship's electrician. The thermosensor in question was of a common type.

15 The claimant was acting entirely on his own initiative. He was not on duty at the time. He had not been requested or ordered to change the thermosensor. Further, the claimant was in the engine room without having notified either the bridge or the duty engineering officer of his presence or intention, contrary to the ship's standing orders."

17. Mr Lord argues, therefore, that the only possible allegation of contributory negligence on the pleadings was that the claimant failed to adopt the method he had demonstrated in the smoking room discussion. This was, so far as is relevant for present purposes, the only live issue at trial.
18. Mr Lord pointed out several passages in the transcripts, at various stages of the trial, when the judge, plainly troubled by the way the case was proceeding, returned to the question of the ambit of contributory negligence. I do not need to rehearse them, because Mr Melville accepts that, whenever the topic was raised, he said in clear and unequivocal terms that his case on contributory negligence was limited to the claimant's failure to adopt the short cut method, the method he had demonstrated in a 'dress rehearsal' shortly before the accident. He did not suggest that he relied upon paragraph 15 of the Amended Defence in this respect. Had he done so it would not have assisted him, in the result, because the trial judge rejected the 'frolic of his own' line of argument.
19. Given the repeated assurances from Mr Melville as to the narrow compass of the first defendant's case on contributory negligence, Mr Lord took a conscious decision not to explore the issue of the reasonableness of the claimant's belief in the existence of a safety pocket with the claimant himself, or the experts. He described the issue as "irrelevant" in his written closing submissions.
20. Mr Lord accepted that the claimant was asked questions by Mr Melville on the subject in cross examination and took us to the relevant passages in the transcripts. He emphasised, however, that it was not put to the claimant, in terms, that, in acting on the assumption there was a safety pocket, he was negligent. The allegation, if put at all, was put obliquely. The claimant is Polish and his grasp of English limited. Any allegations should, therefore, have been put in clear terms that he could understand. In any event, Mr Lord argued, the questions were put in the context of the first defendant's express case that the claimant should have known that the proper procedure was to remove the sensor only. It was not. It was a possible procedure, as found by the judge.
21. Mr Lord argued that it is axiomatic that if it is to be alleged that a party was negligent in a relevant respect that point must be put squarely in issue to allow (1) the factual and expert witnesses to deal with it in evidence and (2) the lawyers to deal with it in submissions. That is especially so where, as here, the claimant had given explanations of why he chose the method he did in his witness statements, and the claimant's expert had expressed the view that his belief was reasonable.
22. In the alternative, Mr Lord argues that the figure of 60% contributory negligence is excessive. A finding of 60% negligence should reflect only very serious negligence and what the claimant did was not of that magnitude. This was not a case of reckless disregard for his own safety. At worst, this was a momentary lapse of judgment on the claimant's part. Compared with the effect of the lack of warning or instruction by the first defendant, any failing by the claimant was of minor causative effect.
23. Finally, on this issue, Mr Lord took exception to the judge's findings as to what had happened in the smoking room. He was able to demonstrate that there was no evidence that the Second Engineer said, in the presence of the claimant, that he had been drenched with cold water when he changed a defective thermosensor in June, using the same method as the claimant. The only evidence on this topic came from the Master, who said he personally had a conversation with the Second Engineer about his having been drenched, but this was when the claimant was not present. Thus, the judge has erred in so far as he has based any findings adverse to the claimant on the understanding that the claimant was aware the Second Engineer had received a soaking, using the same method.
24. I have no difficulty following that line of argument. Indeed, for my part, I see considerable force in it. I confess I did have difficulty, however, following Mr Lord's further submission that the judge erred in rejecting the claimant's account that he did not demonstrate, in the smoking room, how the sensor could be changed, but merely demonstrated how the thermosensor worked. In my view, there was ample evidence to justify the judge's findings that there was a discussion about fitting thermosensors and a demonstration by the claimant as to how it could be done. The judge was entitled to accept the evidence of the Master and the Chief Engineer to this effect, which was supported to some extent by the letter before action, but was also supported by the claimant's own evidence in parts. He was not consistent on this point, as Mr Melville was able to demonstrate. The claimant appeared to accept, at one stage in cross examination, that there was both a discussion and demonstration about changing a sensor.
25. Mr Melville sought to support the judge's findings of contributory negligence. He invited our close attention to paragraphs 43 to 47 of the judgment. They read as follows:

"43 On a number of occasions it was made clear on behalf of the first defendant that it was not running a case to the effect that there were circumstances immediately surrounding the accident, such as the obvious heat of the relevant pipe, that should have alerted the claimant to his peril. Likewise it is not the claimant's case that, muddled by lack of sleep, he did something that otherwise he would have known to be wrong.

44 It is the claimant's case that deliberately and with justification he loosened the nut with the intent of removing the whole unit. It is his case that he reasonably expected there to have been in place a pocket that would have prevented the escape of water from the pipe. But despite the devotion of time during the hearing to photographs of a variety of units and the suggestion that there might have been, onboard another vessel, at least one welded pocket, I find it impossible to find any rational basis for what the claimant did. At best he had no idea of whether or not there was, in fact, a fixed pocket. The fact that I find that at some time onboard some other ship they may have been a welded pocket, really carries matters no further forward in his favour. It cannot be said that welded pockets were of such currency as to justify taking the risk of undoing the nut. Insofar as screw pockets are concerned, the standing rule was that where there was only nut or where there were two nuts, the nut next to the pipe was the one that released the pocket or in this case, there being no pocket, the sheath.

45 In the present case, there were only two safe ways of dealing the situation. One was to drain the pipe and remove the whole unit. The other was to undo the ring and remove the sensor, leaving the sheath in place. While removing the sensor might not have constituted best practice from a mechanical point of view, it did represent the only safe alternative to draining the system. There can be no doubt that to a material degree the claimant was the author of his own misfortune.

46 It is a truism that the apportionment of liability in a case of this sort is a balancing act. The difficulty is to select those ingredients which go to make the balance. Often injury is suffered because of a knowing self exposure to risk by a claimant. He may choose not to wear safety boots or ear defenders. In this case the idea that the claimant in some wanton way chose to expose himself to inevitable injury from the course that he took has only to be stated for it to be rejected. Wonderful as is the human mind, it is also unfathomably strange. In some mysterious way, when the claimant went down to the engine room to replace the sensor, he thought that the whole unit and not just the sensor should be removed and that there would be no escape of water. In such circumstances it could be argued that the claimant was innocent of blame, in a morally culpable sense, but that argument cannot relieve the claimant of a finding of contributory negligence. Apart from momentary inattention in justifiable circumstances, it is negligent not to concentrate when concentration is required.

47 I have already found that the owners were in part the cause of the claimant's acting as he did but I think the bitter fact to be that the negligence of that claimant was the major cause of his accident. That said, there was a heavy responsibility upon the first defendant to protect the claimant. In the circumstances, I find the claimant to have been 60 percent to blame for his accident."

26. Mr Melville argued that, having heard the evidence, the judge was entitled to find as he did that the claimant was, to a material degree, the author of his own misfortune. In doing so, the judge did not go outside the ambit of the pleaded case. Paragraph 43 evidences the fact that the judge was well aware of the pleaded case.
27. He too reminded the court that the claimant was an experienced ship's engineer. He knew how to change a thermosensor safely. He had demonstrated how to do so shortly before the accident. Mr Melville submits that plainly, on this occasion, he acted without thinking and negligently in that he departed from the practice which he had demonstrated and which he knew to be safe. He chose to expose himself to inevitable injury.
28. If the first defendant fails on its appeal against the finding of primary liability and if the claimant succeeds on his appeal against the finding of contributory negligence, then the second ground of the first defendant's appeal (the "deductibility" point) on the award of damages does not arise. I shall, therefore, give my conclusions on liability.

Conclusions on primary liability

29. I can state my conclusions on primary liability relatively shortly. The first defendant can only succeed in its appeal against the finding of primary liability, if itcan establish the judge was plainly wrong to find a causative link between the negligence and the accident. They have to establish that the judge was wrong to find that, had the instruction been given, the accident would not have happened. In other words the judge was wrong to find the claimant would have obeyed.
30. In my view, the task Mr Melville set himself was an impossible one. There was no evidence to which he could point to suggest that an engineer in the claimant's position would have disobeyed a direct order, or that the claimant himself would have disobeyed a direct order. There was nothing in the nature of the order that would have led an engineer in the claimant's position, or this particular claimant, to disobey it. On the contrary, on the first defendant's case and, as found by the judge, the method it says it wished to see employed was a method with which the claimant was familiar, and which he had gone to some pains to demonstrate. It was quick and relatively simple.
31. Mr Melville's argument appeared to be based on the premise that, in paragraph 44 where the judge was dealing with contributory negligence, the judge stated that there was no rational basis for what the claimant did and it, therefore, follows that the judge found the claimant was behaving irrationally generally. If he was behaving irrationally generally, then there is no reason to suppose he would have followed a direct order.
32. First, I find it difficult to understand why the judge found there was no rational basis for what the claimant did or why he described what he did as mysterious unless he meant that it was irrational and mysterious to act on the assumption there was a safety pocket present. Having found that the claimant genuinely believed there was a safety pocket present and that, if so, the procedure he adopted would not have been unsafe, there was a rational basis for what the claimant did. I can understand the argument that his belief was unreasonable and irrational, but that is not the same as saying what he did generally was irrational and mysterious.
33. Second, in any event, one has to place the passages, upon which Mr Melville placed such reliance, in context. The entirety of paragraph 44 is dedicated to the claimant's belief about the presence of a safety pocket. The sentence in question begins with the words: "But despite the devotion of time during the hearing to photographs of a variety of units and the suggestion there might have been, onboard another vessel, at least one welded pocket" and concludes with the words: "I find it impossible to find any rational basis for what the claimant did." As I read the sentence, in context, that must mean the judge found no rational basis for the claimant's acting on the assumption there was a safety pocket.
34. In paragraph 46, the judge, as it seems to me, returned to the same topic. The judge found that "in some mysterious way … he thought the whole unit and not just the sensor should be removed and that there would be no escape of water". Mr Melville invites us to accept that this means the whole of the claimant's conduct was mysterious. However, on the judge's own findings, elsewhere in the judgment, the whole unit should have been removed. The short cut was not best practice. The only possible mystery in this context was why the claimant believed there would be no escape of water i.e. why he believed there was a safety pocket present.
35. I do not accept, therefore, that the judge found the claimant acted in an irrational or mysterious way generally.
36. Even if I am wrong about that and the judge did indeed find that the claimant was behaving irrationally generally, I fail to see how that leads to the inevitable conclusion that the claimant would have decided to ignore a direct and very recent order. On the contrary, as the judge found, had there been some formality to the Chief Engineer's instructions the probability is that the claimant would not have behaved in the way that he did. He would not have acted without thinking and he would have followed the practice he was told to follow by his superior. He would have adopted a procedure with which he was fully familiar and which was far from onerous.
37. Accordingly, for my part, I would dismiss the first defendant's appeal on primary liability.

Conclusions on Contributory negligence

38. I turn to the question of contributory negligence. I confess that, when I first read the papers in this case, I was not attracted to Mr Lord's submissions on this aspect of the case, based as they appeared to be on a technical point of pleading. However, as Mr Lord developed his argument in oral submissions, I began to see considerable force in them.
39. It is common ground that the first defendant did not plead, as a particular of contributory negligence, or at all, that the claimant's belief there was a safety pocket present on this unit which would have prevented the escape of water was unreasonable. They could have done so but they did not. The reasonableness of the claimant's belief was not, therefore, a live issue on the question of contributory negligence, at any stage during the trial.
40. It is common ground that, whenever challenged by the judge as to the ambit of his allegations of contributory negligence, Mr Melville stated, beyond any measure of a doubt, that the first defendant's colours were pinned firmly to the mast of the claimant having failed to adopt the procedure that he had demonstrated in the smoking room. As Mr Melville put it, the claimant had a 'dress rehearsal' and he failed to follow the same practice. Mr Melville said, in terms, he was not putting his case on the basis that what the claimant did "was a silly thing to do", or that the claimant should have been alert to the dangers inherent in the operation and, therefore, he should have taken precautions. The extent of the first defendant's case on contributory negligence was, therefore, very limited.
41. It is significant in my view that, on that basis, Mr Lord took a conscious decision not to explore the question of the reasonableness of the claimant's belief that there was a pocket present with his witnesses. The claimant, supported by his expert, had given, in his witness statements, the basis for his belief and Mr Lord left the matter there. As far as he was aware, any exploration of that subject in cross examination of the claimant, if it went to anything, went solely to the issue of credibility of the claimant. Mr Lord asserted in his written closing submissions that the point was irrelevant. As I understand the position, he was not contradicted.
42. With those observations in mind, I return to an analysis of paragraphs 43-47 and the judge's reasons for finding contributory negligence. The question at this stage, as it seems to me, is whether one can discern in paragraphs 43-47 clear findings that the claimant was contributorily negligent, because he failed to follow the procedure he had adopted at the "dress rehearsal", putting to one side for these purposes, the reasonableness of his belief in the existence of a pocket.
43. In this context, it should be remembered that by the time the judge turned to his conclusions on contributory negligence he had already found that the method advocated by the first defendant was not best practice and not, therefore, the way the job should have been done. It was a way the job could have been done safely, if one was willing to risk damage to the sensor, to save time and effort. The judge had also found in paragraph 40 that there was "real doubt" as to whether in the 'dress rehearsal' the claimant was showing "how the operation could be done as opposed to how it should be done". No-one instructed the claimant on how the job should be done. If, as he believed, there was a safety pocket fitted, and no-one told him there was not, on the face of it, there were three possible ways left open to him to repair a thermosensor safely. If there was no safety pocket, there were two.
44. As I have already indicated, paragraph 44 seems to me to refer in its entirety to the question of whether or not the claimant could reasonably have acted upon the assumption there was a safety pocket. There is no finding that he should have followed the "short cut" method. Thus, Mr Melville is driven, in my view, to rely upon the words of paragraphs 45 and 46 to justify his assertion that the judge made a clear finding that the claimant was negligent within the ambit of the pleaded case.
45. In paragraph 45, the judge sets out the two safe ways of dealing with the situation (given, of course, there was no safety pocket present and the judge has found no-one would have thought on rational grounds there was). He then states that "while removing the sensor might not be the best practice from a mechanical point of view, it did represent the only safe alternative to draining the system. There can be no doubt that to a material degree the claimant was the author of his own misfortune." As I read and understand those words they do not, to my mind, contain a clear finding that the claimant should have followed the practice propounded by the first defendant.
46. The fact that this paragraph comes immediately before and after his findings about the reasonableness of the claimant's belief, and under the same heading, suggests to me that the judge found the claimant should have appreciated there was no safety pocket and, therefore, best practice would have been to drain the system (which is not the first defendant's case). If that procedure was not adopted, the only safe alternative, in the absence of a safety pocket, was the short cut. Thus, I am driven to the conclusion, that the judge must have used his findings in paragraph 44 and 46 on the reasonableness of the claimant's belief, to a significant extent, to justify his finding of contributory negligence. It is the only way I can follow the judge's reasoning, in the absence of express instructions from the first defendant and actual knowledge on the claimant's part.
47. For all those reasons, I am unable to detect in the judge's conclusions on contributory negligence a clear finding (absent the question of reasonable belief) that the claimant should have adopted the smoking room "short cut" procedure and was negligent in failing to do so. I would, therefore, allow the claimant's appeal against the finding of contributory negligence. It is not necessary on that basis to decide the question of whether the finding of 60% was justified on the evidence.

Damages/Deductibility

48. Similarly, it is not necessary to decide the "deductibility" ground in relation to the award of damages. Put shortly, Mr Melville criticised the judge's ruling that the contractual sum paid by the second defendants to the claimant should be deducted from the award of damages, before allowing for the finding of contributory negligence. He argued the judge should have deducted the payment after he had factored in the element of contributory negligence. As he pointed out, the order in which deductions are made may, and in this case did, make a considerable difference to the final sum of damages awarded. Much as I found the argument an interesting one and, in the absence of authority directly on point, a novel one, since the point does not arise for decision on my conclusions, I prefer to leave it unresolved.

LORD JUSTICE LLOYD:

49. I agree.

President of the Queen's Bench Division :
 


50. I agree with Hallett LJ.
51. I shall add a few words by way of emphasis. The decision on contributory negligence is not based on a mere pleading point, nor can it be dismissed as an unmeritorious problem arising from a legal technicality. A much more important principle is involved.
52. As a matter of simple justice, and like any litigant in civil proceedings, the claimant was entitled to know of any misconduct, including negligence, alleged against him and to be provided with a proper opportunity to enable him to deal directly with and answer the allegation. In the result, as Hallett LJ's analysis demonstrates, the basis on which the claimant was held partly responsible for his injuries was one of which he had no notice, and which, as the analysis shows, neither he, nor his counsel, could reasonably have anticipated. That is not trivial or technical. It is fundamental to the fairness of civil proceedings.