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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Casey v Morane Ltd [2000] EWCA Civ 147 (5 May 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/147.html
Cite as: [2000] EWCA Civ 147
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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
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 does not form part of the approved judgment)