England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Birmingham County Court
Mr Recorder Rhodri Davies QC
BM313994

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th June 2006

Lord Justice Waller :

1. This is an appeal from the judgment of Mr Recorder Rhodri Davies QC sitting in the Birmingham County Court dated 25 July 2005. He found that the appellants, the first and second defendants in the action (Land Rover and Castrol) were liable in respect of a claim brought by the respondent for damages for the death of his father, Mr Kiani.
2. On Monday 14 May 2001 Mr Kiani went to work as usual at the Land Rover plant in Solihull where his employers (Commando) had a cleaning contract. Within the area where Mr Kiani worked was a sub-floor coolant tank which was attended by employees of Castrol. Mr Kiani's shift was due to finish at 4.00pm, but he did not arrive home. His family raised the alarm and at half past midnight that night his body was found relatively uninjured in the sub floor coolant tank at the plant. He had died of asphyxia.
3. The claimant's case was that Mr Kiani had accidentally fallen into the tank, and that the defendants were each liable for breach of statutory duty under the Workplace (Health, Safety and Welfare) Regulations 1992. The defendants' case was that the claimant could not establish that the fall was accidental, and suggested that the probable explanation of Mr Kiani's death was that he had committed suicide.
4. The judge found that the death was accidental, and that Land Rover and Castrol were in breach of statutory duty. He found that the third defendant (Commando), Mr Kiani's employer, was not liable. He held that the damages should be reduced by 33% as a result of contributory negligence. Post-judgment he apportioned liability between Land Rover and Castrol at 50% each.
5. Land Rover and Castrol seek to challenge the judge's finding that it had been established that Mr Kiani's death was accidental. If that challenge were to fail, there is no challenge to the findings (1) that Castrol and Land Rover were in breach of statutory duty; (2) to the finding that Commando were not liable; (3) to the finding of 33% contributory negligence or (4) to the apportionment as between Castrol and Land Rover. The appeal is thus concerned with one point: was the judge entitled to find on the evidence that Mr Kiani's death was accidental?

The facts

6. Both sides accept the judge's findings from paragraph 6 to 23 and it is covenient to set those out verbatim.

"6. Mr Kiani was born in Pakistan on 6 January 1952. he came to the united Kingdom in 1993. In June 1996 he obtained a job as an industrial cleaner with Commando, who remained his employers until his death.

7. Commando had a contract with Land Rover to provide industrial cleaning services at the Land Rover plant in Solihull and Mr Kiani worked there throughout his employment by Commando from June 1996 until his death in May 2001, a period of nearly 5 years. He was universally regarded by his employers and by others with whom he worked as a good, conscientious, polite and reliable employee.

8. In May 2001, Mr Kiani was living in Ash Road, Saltley, Birmingham. Living with him were two of his sons with their wives and three children. His wife remained in Pakistan. The pathologist's report notes that Mr Kiani was about 5 foot 9 inches in height, slightly obese and muscular. He was 49 years old at the date of his death. So far as was known to his son, Jamrooz Kayani, Mr Kiani was a non-swimmer.

9. On Wednesday 9 May 2001 Mr Kiani went to see his GP, Dr Latif, of 119 Alum Roch Road in Saltley. Mr Kiani was accompanied on this visit by his son, Mr Jamrooz Kiani. In his notes Dr Latif recorded insomnia for two nights, some family problems and looked tired. He prescribed Zolpidem (sleeping tablets) and gave an injection of Diazepam for anxiety and insomnia. Dr Latif arranged to see Mr Kiani again on the Monday. . . .

10. On the Sunday evening, 13 May 2001, Mr Kiani and a cousin of his visited a friend, Mr Nasim Akhter. They talked and discussed Pakistani politics and stayed from about 8.00 pm to 10.00 or 10.30 pm. Mr Akhter thought Mr Kiani was quite normal.

11. The next morning, Monday 14 May 2001, Mr Kiani and his son Jamrooz followed their normal routine by which they drove to Coventry Road in Small Heath where Jamrooz dropped his father at the bus stop from which he could catch the bus to the Land Rover works. Mr Kiani started work at the Land Rover plant as usual at 7.30 am The plant was a large industrial site and Commando had about 150 cleaners there, with their own supervisors and managers. Mr Kiani worked in an area known as Powertrain North and in a specific part of it known as Cell 6, which has been variously estimated as about the size of half a football pitch, or a full football pitch. Mr Alec White of Commando helpfully produced a plan of the Cell 6 area, which is at page 80 of the trial bundle.

12. Mr Kiani was employed as a general cleaner, which involved emptying swarf bins, cleaning up spills and topping up coolant to small machines. Within the Cell 6 area there was a unit known as "the Durr Unit". This was essentially a central tank or reservoir from which coolant was circulated to the nearby machinery. The coolant was supplied by Castrol.

13. The Durr Unit tank was set beneath the factory floor level. The floor in the relevant area was made up of steel plates. Access to the tank was supplied by a hatch in the plating in an out of the way corner of the floor. The location of the hatch is marked on Mr White's plan and can be clearly seen in the photographs, such as photograph No 1 of the excellent photographs taken by the Police scene of crime officer, Mr Day.

14. I will describe the hatch and the tank in more detail later. It is enough for now to say that when the hatch was open it revealed a ladder leading down about 4 feet to the surface level of the coolant when the machinery was running. Below the foot of the latter was a sump which counsel for Castrol, Mr Davenport, told me would have been about 6 or 7 feet deep. This would have been full of coolant in ordinary use. The total depth from floor level to the foot of the sump was therefore about 10 to 11 feet.

15. At about 10.00 am on the Monday morning, Mr Kamal, who worked for Castrol, came to the hatch, which was normally shut and was shut when he arrived. Mr Kamal lifted the hatch to do a quick visual check of the coolant level. There is a dispute as to whether Mr Kamal, or anybody else from Castrol, left the hatch open that morning. I will return to this dispute later.

16. Mr Kiani, for his part, appears to have passed a normal morning at work. Several people exchanged brief greetings with him and thought he was his normal self. The one exception was Mr Sutton, a welder employed by Land Rover. Mr Sutton saw Mr Kiani in the toilets when he (Mr Sutton) went for his lunch break and thought Mr Kiani looked very distressed, that his hair was a mess and he did not look well. Mr Sutton had spoken to Mr Kiani earlier in the morning when he did not notice anything out of the ordinary.

17. Mr Kiani took his own lunch break from 12.30 to 1.00 pm with Mr Ibrar Ali, a good friend who was also a Commando employee. Mr Ali thought there was nothing unusual about Mr Kiani on this day, although he was under pressure of work as a workmate was absent and he had to try to do two jobs. Mr Kiani gave Mr Ali a ring which had come from Mecca, brought back by a relative of Mr Kiani's who had been there on pilgrimage. The ring was not expensive, but it was valued by Mr Kiani and Mr Ali because it had come from Mecca. It was argued that the significance should be attached to the giving away of this ring by Mr Kiani before he died. I will return to this later.

18. Mr Woodhouse saw Mr Kiani once after lunch, but nobody else recalled seeing him after lunch. His shift ended at 4.00 pm but he did not arrive home. His family became concerned and made inquiries. It was discovered that Mr Kiani had not clocked out and his street clothes were still in his locker. Mr Jamrooz Kiani visited the factory with Mr Ibrar Ali and they made a search, which included the Durr Unit, but they did not find Mr Kiani.

19. As time passed, the searches intensified and, according to a statement made shortly after the event by Mr Forletta, a Land Rover employee, at about 10.00 pm a Mr Staley said that the hatch to the tank had been open when he arrived on shift, which would have been at about 9.00 pm. Mr Forletta recalled Mr Staley saying that he had closed the hatch at that time. On the basis of this information a thorough search of the tank was instituted. Floor plates around the hatch were lifted and the tank was probed with 11 to 12 foot probes. At about half past midnight, Mr Kiani's body was found by this means.

20. The police were called and attended. At about 8.00 am on Tuesday 15 May 2001 Detective Sergeant Farrow took over the investigation and the scene of crime officer, Mr Day, arrived at about 10.30 am and took his photographs thereafter. The Health and Safety Executive also became involved. Land Rover took statements from a number of staff within about a week of the event.

21. Following the recovery of Mr Kiani's body, an autopsy was carried out on 16 May 2001 and a pathologist's report prepared. This report refers to Mr Kiani having had a history of a breakdown in 1987 and as having recently appeared withdrawn and depressed. No source is given for this information. The cause of death was identified as asphyxia caused by inhalation of chemical cleaning fluid and swaft following immersion in a tank.

22. On 8 November 2001, an inquest was held before the Coroner and a jury. The jury returned an open verdict by a majority of eight to two.

23. The Claim Form was issued on 24 October 2003."

7. Both sides accept the recorder's findings in relation to the hatch and the tank and again it is convenient to set those out verbatim.

"30. I now come to describe the hatch and the tank in more detail. I have found Mr Rawden's report helpful for this purpose. As I have mentioned, the location of the hatch is shown by the plan at page 80 of the trial bundle. Treating that plan as "North up" when one can read the manuscript identification of the Durr Unit and the access door, the hatch was set towards the South-Eastern corner of the Durr Unit. At the time of Mr Kiani's death, the hatch had a steel handle standing proud of floor level towards its Southern edge and was hinged along its Northern edge, furthest from the handle. If the hatch was opened just beyond the vertical, two chains came into play, to stop the hatch swinging right over to lie flat on the floor, and to hold it close to an upright position. The size of the aperture when the hatch was open was about 2 foot 6 inches square.

31. On the South side of the opening, the metal ladder descended into the tank. The ladder projected about 9 inches into the aperture, so that the effective size of the opening was about 2 foot 6 inches by 1 foot 9 inches. When the hatch was open the chains stretched diagonally upwards on each of the East and West sides from points about 6 inches in from the South side up to points on the underside of the hatch, about 6 inches from the top when it was open.

32. When the hatch was open, access to the opening was obstructed on the North side by the hatch cover itself and to the East and West sides by the chains. The only clear access to the opening was from the South side, where the ladder was. Downwards or sideways pressure on the chains when the hatch was open would tend to cause it to shut.

33. The hatch was set in the South Eastern corner of the tank. Estimates of the dimensions of the overall tank vary but it seems to have been at least 15 feet long by 12 feet wide, possibly more. In terms of depth, the ladder reached down about 4 feet. When the machinery served by the lubricants in the tank was running, this 4 feet would have been a void above the fluid level. Below the foot of the ladder was the sump which, as I have mentioned, held coolant to a depth of 6 or 7 feet. On the Western side of the ladder there was a rail which appears, on the photographs, to have descended down into the sump. If the machinery served by the tank was stopped, then coolant would run back into the tank, bringing the level of the coolant in the tank up towards the floor. This effect can be seen in several of the photographs. Mr Davenport told me that trying to swim in the coolant would be no more or less difficult than trying to swim in water.

34. As I have mentioned, the Durr Unit and the tank were set in a corner of the machinery. They were not on a normal thoroughfare around the machinery and, although they were perfectly accessible, it was not normally necessary for anybody to go to them very often in the course of a working day. A Land Rover employee named David Anderson worked on a machine which was about 4 feet away from the hatch. Mr Anderson faced the hatch during the working day."

8. The judge then dealt with the nature of the claim under the Workplace Regulations. He quoted Regulation 13 so far as relevant as follows:-

"(1) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).

(2) So far as is reasonably practicable, the measures required by paragraph (1) shall be measures other than the provision of personal protective equipment, information, instruction, training or supervision.

(3) The events specified in this paragraph are:-

(a) any person falling a distance likely to cause personal injury . . ."

9. The recorder then posed the issue which he had to decide in a way which has not been criticised in these terms:-

"37. There is no doubt that the "falling" contemplated by paragraph (3)(a) of this Regulation is an involuntary falling. In order to establish a case within Regulation 13, the Claimant therefore needs to prove, on a balance of probabilities, that Mr Kiani accidentally fell into the tank. The Defendants chose to advance a positive case that Mr Kiani committed suicide, but that does not alter the essential point that it is for the Claimant to prove his case on a balance of probabilities (as is confirmed by Rhese Shipping Co SA v Edmunds [1985] 1 WLR 948, although not cited at the trial).

38. Mr Moat, for Land Rover, accepted that, if it was established that Mr Kiani accidentally fell into the tank, then there had been a breach of Regulation 13. In my view, Mr Moat was right to accept this and the contrary was not argued on behalf of either of the other Defendants. On the other side, Mr O'Donovan accepted that the claim failed if Mr Kiani committed suicide. The crucial issue is therefore whether Mr Kiani fell into the tank accidentally or committed suicide."

10. The judge then dealt with certain preliminary factual matters, which he concluded against the claimant. He found that Mr Kiani did not have to clean the "Durr Unit" i.e. the area round the hatchway; it was not out of bounds; but that would only apply to the floor area and the hatch above the tank. He would have no reason to enter the tank in the course of his work.
11. He found that there were no slippery deposits of oil or similar round the hatch as had been suggested as a possibility by Mr Jamrooz Kayani.

Expert evidence

12. The judge had only the written expert evidence of Mr Rawden an engineer specialising in health and safety matters and from Dr White, a Consultant Psychiatrist. Mr Rawden analysed the information available in relation to the dimensions of the hatch and the tank (which no longer exist). He produced a cardboard mock up of the hatchway together with the ladder inside and illustrated by photographs how a man of similar size to Mr Kiani might enter the tank. All his photographs illustrated a man in an upright standing position. His opinion he expressed in this way:-

"1. How and in what circumstances the Deceased could have passed through the open hatch without coming into contact with any part of the hatch so as to not suffer injuries or appreciable bruising?

4.2 In my view there are a number of possibilities, all of which would indicate some deliberate attempt by the Deceased. The possibilities are as follows:-

The Deceased could have descended the ladder into the tank.

The Deceased could have jumped with two feet entering the tank in the manner illustrated in Photographs OR7 & 8. Impact with the base of the tank however may have caused some injury.

One perhaps could also imagine a forward dive. Whilst there might be no contact with the sides of the hatch or the ladder, one could perhaps imagine some impact with the bottom of the tank.

There is also the possibility of the deceased lowering himself into the tank but not actually using the rungs of the ladder.

4.3 I cannot imagine any situation, based upon present evidence, where the Deceased could have passed through the open hatch without coming into contact with any part of the hatch without appreciable injuries by accidental means."

13. Dr White expressed views as to the likelihood of Mr Kiani committing suicide. The judge expressed the view that it would have been helpful to test hypotheses with both experts at the trial, but he recognised how "for understandable reasons including cost, the order for expert evidence only provided for written reports."
14. The judge set out the respective submissions as to what probably occurred. On behalf of the claimant it was submitted that

(i) The hatch was left open by persons other than Mr Kiani;

(ii) Mr Kiani went to the hatch with a view to either (a) closing it if necessary or (b) closing and checking whether any cleaning was required;

(iii) When at the open hatch, Mr Kiani accidentally fell in;

(iv) He fell in because (a) he slipped on ingrained grease and oil on the floor or on his footwear, or (b) whilst leaning to inspect the interior he lost his balance and fell …"

15. The judge for the reasons that he had already given did not accept any case based on Mr Kiani slipping and described the case in its essentials as "that Mr Kiani saw the hatch left open, went over to investigate, looked inside , lost his balance and fell into the tank. Once inside he was in a dark, noisy subterranean tank, out of his depth in 6 to 7 feet of fluid, unable to swim and unable to get out."
16. The defendants' case was in two parts, and summarised by the judge in this way in paragraph 34. "First, they say that it was physically impossible, or nearly so, for Mr Kiani accidentally to fall through the hatchway without being able to stop himself or suffering appreciable injuries on the way down. Secondly, they refer to a number of matters as supportive of the likelihood of Mr Kiani having committed suicide."
17. The judge then records first the absence of any trail i.e. the lack of any cleaning materials which the defendants suggested would have been there if he had gone over and fallen in accidentally. An important part of the judgment then follows and I must quote it verbatim:-

"56. Assuming, nonetheless, that Mr Kiani did set out to look into the open hatchway, his natural movements would have been, I think, either to lean over from a standing position, possibly with a hand on the raised hatch cover, or to kneel or squat down for a better look. If he knelt or squatted down, it would have been natural to put a hand on the top rung of the ladder or on the side of the hatchway before he was at risk of losing his balance.

57. There is no obvious reason why, if he looked into the tank in this way, Mr Kiani should have lost his balance, but the core of the Defendants' case is that, even assuming that Mr Kiani did lose his balance, it is difficult to see how he could have fallen clean through into the tank. The aperture available for him to fall through was 2 foot 6 inches by 1 foot 9 inches (allowing for the intrusion of the ladder into the opening). Mr Davenport submitted that it would be difficult to pass cleanly through such an opening if trying to do it. He further submitted that, in the event of an accidental loss of balance, the natural result would be that one would end up sprawled on the floor partly over the opening, but not falling straight through it. If a person did, somehow, find themselves falling through, there were obvious features available to grab in the form of the top rung of the ladder and the chains. Grabbing the chains might have pulled the hatch over, leading to an unpleasant tangle, but either the ladder or the chains should have given sufficient purchase to arrest someone who had lost their balance.

58. The Defendants also rely upon the evidence from the pathologist and the autopsy report. The report itself notes that there was no evidence of external injury to Mr Kiani, although it mentions a small abrasion on his left leg. The pathologist, Dr Thompson, gave oral evidence at the inquest when he confirmed that he had found no significant external or internal injuries and no abnormal swelling indicative of bruising. Dr Thompson also said that, if Mr Kiani had been struggling to get out of the tank, he would have expected to find some indication such as bruising on the hands or broken fingernails.

59. Armed with this evidence, the Defendants say that, even if Mr Kiani had been unfortunate enough accidentally to fall through the hatchway, he would not have fallen cleanly through, but would have injured himself through contact with one of the sides or with the ladder, or by flailing around to try to save himself, and in doing so he would have suffered bruising or other injuries which would have shown up on the autopsy.

60. In summary, therefore, the Defendants say that it would have been almost impossible for Mr Kiani accidentally to fall through the hatchway and that, even if that did happen, there would have been evidence of injuries incurred in the fall or through the efforts which Mr Kiani would naturally have made to save himself.

61. In support of this case, the Defendants rely upon the report of Mr Rawden, the engineering expert. Mr Rawden prepared a cardboard mock-up of the hatch and the opening in the floor and he annexed to his report photographs of a man in various poses in and around the mock-up. These tend to confirm the difficulty of imagining an accidental fall clean through the opening. Mr Rawden's conclusion is that:

'I cannot imagine any situation, based upon present evidence, where the Deceased could have passed through the open hatch without coming into contact with any part of the hatch without appreciable injuries by accidental means'

62. The Defendants also urged on me that it was the view of the professionals who investigated Mr Kiani's death, particularly the Police and the Health and Safety Executive, that it was probably a case of suicide rather than accident.

63. There is obvious force in this aspect of the Defendant's case and I shall have to return to it when reaching my conclusion.

64. In addition, the Defendants suggested that if Mr Kiani had accidentally fallen through the opening and found himself uninjured in the tank, then he ought to have been able to climb out. I found this argument to have less force. The ladder did not extend below the level of the coolant in the tank, so that once in the tank Mr Kiani would have found himself out of his depth in a pool 6 or 7 feet deep and about 12 foot by 15 foot in width and length. So far as I know it would have been unlit, save for light through the open hatch. Anyone who has heaved themselves out of the deep end of a swimming pool without using the ladder will know that it is not an entirely easy exercise in benign conditions. It is true that the railing beside the ladder appears to have extended down into the tank, but I consider that it might well have been difficult for a non-swimmer to escape from the tank in the frightening and disorientating circumstances that would have prevailed if he had accidentally fallen in.

65. According to the pathologist's evidence at the inquest, once Mr Kiani had been submerged in the coolant, death would have followed sometime within two to five minutes, probably nearer two minutes. This does not allow much time for attempts by Mr Kiani to save himself.

66. The real force of the Defendants' case is, in my view, in the unlikelihood of Mr Kiani having accidentally fallen in to start with, not in the proposition that, once in the tank, he could easily have climbed out."

18. I should comment at this stage that it is clear that the judge had in mind Mr Rawden's evidence and the force of the point he was making. It is said by Mr Moat and Mr Davenport that he never returned to the "obvious force in this aspect of the defendants' case" as he had indicated he would do.

Likelihood of suicide

19. Both Mr Moat and Mr Davenport were critical of the recorder for dealing with this aspect as a separate issue. Their argument was that it is as logical to start with what they would suggest was the fact that it was almost impossible to envisage a situation in which Mr Kiani had fallen accidentally; if that were the right starting point then, when taken together with what may not have been very strong indicators by themselves of suicide, the only logical conclusion was suicide. But it is in fact no more logical to start in one place rather than another as long as it is remembered that ultimately the matter must be looked at in the round. In my view the judge cannot be criticised for starting with the factors relied on by the defendants as pointing to the likelihood of suicide. Furthermore his findings that the factors relied on "fell well short of compelling evidence in favour of suicide" and his ultimate conclusion having considered the factors pointing against suicide that "there was no reason to think that Mr Kiani was likely to commit suicide on Monday 14^th May 2001" [see paragraph 75] seem to me unassailable.
20. Mr Moat is particularly critical of the recorder attaching little weight to a comment in the autopsy report, which suggested that Mr Kiani had suffered a nervous breakdown in 1987. He further attaches significance as he did before the judge to the fact that Dr White did not mention this factor in his report. But these points are fully dealt with by the recorder at paragraph 68(1), and 73. As the recorder says no source was given for the statement; it was not corroborated; and its reliability was difficult to assess; in any event it was something that had occurred if it occurred some 14 years earlier. As for Dr White, the autopsy report was one listed by him as having been seen and the defendants never sought to put questions to Dr White.

What happened?

21. The recorder when considering this aspect directed himself that even though there was no reason to think that Mr Kiani had committed suicide "that does not eliminate the possibility that he might have done so." [see paragraph 76]. So his mind was not closed to the possibility of suicide in considering what had happened.
22. The recorder's conclusions are stated in paragraphs 82 to 86 which, again, I must quote verbatim.

"82. I consider that the likelihood is that the hatch was left open by somebody other than Mr Kiani from about 10.00 am on the morning of 14 May 2001 until Mr Staley shut it at about 9.00 pm that evening. As to who it was who left the hatch open, the only people who had any cause to open the hatch were Castrol staff, who were concerned with the lubrication operation. Mr Kamal has consistently stated that he lifted the hatch and let it close again at about 10.00 am. He gave the same evidence at the trial and did so voluntarily despite, as Mr Davenport pointed out, no longer being employed by Castrol. Mr Kamal was giving evidence about what was, for him, a daily routine of checking the coolant level. Although he said that he had specific recollection that on that day he lifted the hatch not far enough for it to stay open and then let it shut, it is possible that for some reason, inconsequential at the time, on this occasion he opened it fully and left it open. There were also other Castrol staff at the factory and it is possible that one of them could have opened the hatch after Mr Kamal's visit, although there is no record of any work by Castrol staff at the tank on that day. Mr Anderson gave evidence at the inquest that he had seen the chemical people (probably a transcription error for Castrol) come round, give or take 20 minutes, from 10.15 am to 5.15 am and that the hatch had been left open on previous occasions.

83. I therefore find, on the balance of probabilities, that the hatch was left open by Castrol staff. Nothing turns on whether it was Mr Kamal or somebody else working for Castrol and I do not think it is necessary for me to make any positive finding as to which individual left the hatch open.

84. The hatch being left open in that way, I find that Mr Kiani probably went over to have a look, over-balanced whilst trying to see into the tank and fell in. it is true that I find it hard to visualise exactly how it could have happened, but I bear in mind that experience shows that accidents do happen in the most unlikely of ways. Some such unlikely accidents end up in the Courts, as in Hughes v Lord Advocate [1963] AC 837 where the sequence of events was mysterious and the explanation accepted by the trial judge was rated by the experts as having a low order of probability and being unforeseeable. Unlikely concatenations of events with happier outcomes are captured on videos and popular sections of the internet and of the television schedules. It is also a common experience that people sometimes perform feats by accident that they are unable to duplicate with deliberation.

85. I have not over-looked the Defendants' points that Mr Kiani left no cleaning equipment behind him and that he suffered no external injuries. In my view, neither is determinative. Mr Kiani could easily have gone to the hatch for a look without leaving behind cleaning equipment and I am not convinced that falling through the hatch and a swift death whilst immersed in coolant would have left significant external injuries.

86. The alternative explanation of suicide, rather than accident, appears to me to be less than probable. As I have said, Mr Kiani had no objective cause to commit suicide, nor did those close to him notice any profound change in him such as might have been occasioned by a severe depressive illness. There appears, therefore, to have been nothing to overcome the religious inhibitions against suicide. Beyond that, it would be something of a coincidence that Mr Kiani should have chosen to commit suicide in the Durr Unit tank on a day when the hatch had been left open by others. I also have some doubts as to whether Mr Kiani would have realised in advance that the tank was as dangerous as it actually proved. If the coolant had been two feet less deep he could have stood up. Therefore, although this point is far from decisive, it seems to me an unlikely means for him to choose if he did intend to commit suicide."

Criticisms of the judgment

23. It is said by Mr Moat (1) that the judge did not find as a fact precisely what occurred; (2) that the judge did not return to Mr Rawden's opinion and the "obvious force" of the point made by Mr Rawden; (3) that Hughes v Lord Advocate was not to the point since "without a deliberate act the evidence here is that this incident could not have taken place, not that it was unlikely"; (4) that Mr Rawden's evidence was that the only basis for entering the tank without injury would be a deliberate attempt, and Dr Thompson's evidence of no injury should have been accepted; (5) that the recorder gave no reason for not accepting the expert evidence of Mr Rawden; (6) that the inference the recorder should have drawn in the above circumstances was that Mr Kiani opened the hatch himself; and (7) that although Land Rover did not suggest that the signs that Mr Kiani would commit suicide were clear and obvious, the recorder should have found that the factors relied on when added to the lack of likelihood that the fall was an accident pointed strongly to suicide, or should have forced the recorder to the conclusion that the claimant had not proved his case of accident.
24. Mr Davenport for Castrol repeated the criticisms but added that the recorder failed to have regard to the burden of proof. He submitted that the key factors in the claimant's case as found by the recorder were:- (1) that the hatch was left open; (2) that Mr Kiani went over to investigate with a view to closing the hatch or checking whether cleaning was required, and (3) Mr Kiani looked inside and lost his balance. He accepted orally that he could not with any prospect of success challenge the recorder's finding that the hatch was left open by an employee of Castrol, but he submitted that there was simply no evidence to support the theory that Mr Kiani went over to the hatch to have a look, and absence of evidence such as cleaning material to support any case that he did. He further submitted that the recorder's findings hardly amounted to a finding as to how Mr Kiani had over-balanced and fallen in, and he submitted there was simply nothing to support the theory that Mr Kiani had done so.
25. He further submitted that what the recorder's reasoning came to was that (1) it was unlikely that Mr Kiani had fallen into the tank accidentally; (2) it is more unlikely that Mr Kiani had committed suicide and (3) since suicide is more unlikely the only conclusion is that the fall was accidental. That he submits is flawed reasoning and should have lead the recorder to dismiss the claimant's claim as unproved.

The respondent's submissions

26. Mr Bleasdale QC emphasised that the appeal raised no point of law; it was an appeal against findings of fact. He submitted that the recorder was entitled to start by analysing the evidence that was said to support the finding of suicide. He submitted that the recorder's finding that Castrol employees left the hatch open was unimpeachable. He pointed to the recorder's comment that it "would be something of a coincidence that Mr Kiani should have chosen to commit suicide in the Durr Unit tank on a day when the hatch had been left open by others." He also pointed to the recorder's doubts as to whether Mr Kiani in advance would have realised that the tank was as dangerous as it proved – if the coolant had been two feet less deep Mr Kiani could have stood up [see paragraph 86 of the judgment].
27. Mr Bleasdale submitted that the recorder was entitled not to be convinced that it was impossible for Mr Kiani to fall in the tank by accident without injuring himself, and to make the finding of accident if he thought that was more likely than the only suggested alternative, suicide.

Discussion

28. We were referred to authorities dealing with appeals on fact and in particular Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577(CA) and the helpful judgment of Clarke LJ (as he then was). Mr Davenport drew particular attention to paragraph 15 of that judgment which states:-

"In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellant court; the greater that advantage the more reluctant the appellate court should be to interfere."

29. Remembering that the Court of Appeal has for many years been concerned with how to approach findings of fact I would respectfully suggest that it is also right to remind ourselves that on an appeal tried by judge alone, the burden of showing that the trial judge was wrong in his decision as to fact lies on the appellant, and if the Court of Appeal is not satisfied that he was wrong the appeal will be dismissed; see for example Lord Esher MR in Colonial Securities Trust Co. v Massey [1896] 1 QB 38 at 39 .Of course the Court of Appeal must reconsider the material before the trial judge and will take account of points such as those made by Clarke LJ where witnesses may not have played a key role in the judge's assessment, and will not shrink from reversing the trial judge if on full consideration it comes to the view he was wrong, but the burden lies on the appellant to show the judge was wrong.
30. It seems to me that some of the criticisms made of the recorder are on any view not justified. First it does not seem to me legitimate to say that Mr Rawden's evidence established that an accidental fall was "impossible". Mr Kiani's body was found in the bottom of the tank in its relatively uninjured state. If it could get there in that condition through a deliberate attempt then the question that arises is whether a somewhat similar method of entry could be produced accidentally. The submissions on behalf of the claimant were to the effect that a bending down and then falling in was close to the dynamics of a deliberate dive. Second it is not in my view fair to criticise the recorder for not setting out precisely how any accident occurred anymore than it would be fair to say to the defendants that they should show precisely how a deliberate act of suicide would have occurred. As long as accident can be demonstrated to be possible, it is open to a court which has discounted any other possibility to be of the view that accident has been proved on the balance of probabilities. That must be particularly true where a breach of duty, a duty to guard against the very type of injury with which the case is concerned, has been established. Third, I do not myself think that it is false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities. Fourth, it seems to me clear that the recorder had well in mind the view of Mr Rawden. It was not in my view incumbent on the recorder to spell out what is in fact clear from his judgment, that he was taking a view of the evidence that had not occurred to Mr Rawden. Mr Rawden did not postulate Mr Kiani coming to the edge of the hatch, bending down to look in and then falling in. Mr Rawden's evidence simply does not go as far as to say (as submitted by Mr Moat) that any accident was "impossible".
31. The key starting point seems to me to be the judge's finding that an employee from Castrol left open the hatch from some time around 10 am. It follows that Castrol and Land Rover were acting in breach of duty from about that time. That finding seems to me to be key when considering whether it is likely or not that Mr Kiani committed suicide. If the only explanation was that he had opened the hatch, that would make it more likely that he did so with suicidal intentions; it is however a strange coincidence that with a hatch opened by an employee of Castrol, Mr Kiani should suddenly contemplate using that open hatch as a means of committing suicide particularly if he had no idea as to the depth of the liquid in the tank.
32. In my view therefore the recorder was entitled to take the view that suicide was "less than probable". If the only evidence before the recorder had established that an accident was "impossible", I would accept that the recorder would either have had to decide that the "less than probable" had happened or hold that the claimant had failed to prove his case. But the evidence did not go so far as to say that an accident was impossible "whatever the facts". The recorder took the view on the evidence before him unconsidered as it would seem by Mr Rawden, that there was a way in which Mr Kiani could have accidentally fallen into the tank when going over to have a look, and overbalancing whilst trying to see into the tank.
33. That as it seems to me was a finding open to the recorder. I am not persuaded that Mr Davenport's points which suggest that the burden was on the claimant (1) to explain the absence of cleaning material round the hatchway or (2) to prove that Mr Kiani had a reason for going over to have a look and (3) the precise way in which Mr Kiani must have lost his balance, are other than points of argument. As such they were taken into account by the recorder, and I am not persuaded that he was wrong in the conclusion he reached.
34. I would accordingly dismiss the appeal.

Lord Justice Rix : I agree.

Lord Justice Richards: I also agree