England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
MR JUSTICE TEARE
Claim No. 2010-CC78847

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 March 2013

Lord Justice Longmore:

1. Between 0100 and 0700 hours on the morning of 11 May 2009, the Chief Engineer on board the MV "British Unity", Mr Renford Braganza, disappeared from the vessel while she was in the course of a voyage from Brofjorden in Sweden to New York. His widow brought a negligence claim for damages in tort under the Fatal Accident Acts against the First Defendants as owners of the vessel and against the Second Defendants as her husband's employers and a claim in contract against the Second Defendants as her husband's employers seeking the death benefits payable under his contract of employment. No distinction has been drawn between the Defendants to whom I will collectively refer as BP except when it is necessary to differentiate between them. BP defended both claims on the basis first that there was no negligence on their part because Mr Braganza committed suicide and secondly that there was no liability in contract for benefits payable under the contract of employment and that BP formed the opinion that Mr Braganza's death resulted from his wilful act.
2. The judge, after meticulous consideration and correctly directing himself in law, decided that there was insufficient evidence for him to be satisfied on the balance of probabilities that Mr Braganza's death was an accident or that, if it was accidental, it was the result of any negligence on the part of BP. As far as the defence of suicide was concerned the judge, again correctly directing himself in law, said this (para. 46):-

" In considering whether the cause of Mr Braganza's death was accident or suicide the Court must bear in mind that suicide, although not a crime in English law, is "still a drastic action which often leaves in its wake serious social, economic and other consequences"; per Watkins LJ in R v West London Coroner ex parte Gray [1988] QB 467 at pp. 477-8. It was therefore common ground that before a finding of suicide is made there must be evidence of sufficient cogency commensurate with or proportionate to the seriousness of the finding".

Based on this self-direction he then considered the evidence and said (para 58):-

"Suicide is no more than a possibility. It is not, in my judgment, more likely than not to have happened. Many people have financial worries and worse and do not commit suicide. Mr Braganza had no history of depression or illness. Moreover, his participation in the daily work meeting on 10 May 2009 was entirely normal. His discussion with the Master about the weather, the open Man Diesel maintenance letter on his desk with his reading glasses on top and the emails sent late at night to Mr Farquhar and the Second Engineer all paint a picture of a conscientious engineer with his mind on the job. He left no suicide note. Given the serious nature of a finding of suicide I do not consider that the evidence before the Court is sufficiently cogent to warrant such a finding on the balance of probabilities".

3. As a result of these conclusions he dismissed the claim in tort under the Fatal Accidents Acts. He then turned to the claim in contract. Mrs Braganza relied on clause 7.3 of her husband's contract of employment:-

"7.3 Death Benefits

7.3.1 If the Officer dies whilst in the employment of the Company, compensation shall be payable. Such compensation shall be equivalent to three times the Officer's annual salary, or, if higher, the total sum which would be payable pursuant to the provisions (as amended from time to time) of Article 24 (Loss of Life, Death in Service) of the ITF Approved Standard Agreement for Indian Officers as onboard the Vessel from time to time. If death occurs as a direct result of an injury for which compensation has already been paid under sub-Clause 7.2 above, then the payment under this sub-Clause 7.3.1 in respect of death shall be subject to deduction of any such sum already paid.

7.3.2 Any sum payable under sub-Clause 7.3.1 shall be paid to the Nominated Beneficiary of the Officer as stated on page 4 of this Agreement, or as amended by the Officer from time to time. The obligation is on the Officer to ensure at all times that the Company has full details of the Nominated Beneficiary and/or that the Officer communicates to the Company any change of Nominated Beneficiary by notice in writing through the manning office. In the absence of a Nominated Beneficiary, or should the Nominated Beneficiary have pre-deceased the officer, or if, having made reasonable endeavours, the Company is unable to trace the Nominated Beneficiary, the Company shall pay the sum to such person as it shall, in its absolute discretion, decide. The Officer accepts and agrees that he Company's decision in this respect will be final".

BP in its turn relied on a clause 7.6.3 which provided:-

"7.6.3 For the avoidance of doubt compensation for death, accidental injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officer's wilful act, default or misconduct whether at sea or ashore, or if the death, accidental injury or illness originated from a condition which was deliberately concealed or pre-existing at the time of commencement of employment or prior to joining the Vessel".

4. The judge found that BP had instituted an inquiry into the death of Mr Braganza the purpose of which was to identify the cause of the incident, whether any of BP systems had failed and to make recommendations and improvements in such systems. The inquiry was conducted by a team consisting of

Colin Reed, a senior manager from the Refining and Marketing Division;

Lindsay Collard, a manager from the Exploration and Production Division;

Captain Colin Shoolbraid, A Marine Standards Superintendent;

Ms Terry van der Poll, a ship QA auditor;

Captain Ian Robertson, a marine incident investigator

They flew to New York to meet the vessel and her crew, boarding the vessel on 18 May 2009. Their remit did not include the question whether Mrs Braganza should receive any death in service benefit and they did not interview her.

5. The team's draft report, before it was sent to BP's legal department (BP Legal), said that they had not found any firm evidence to explain Mr Braganza's disappearance and that he was lost overboard on the morning of 11^th May while alone and unobserved. By the time BP Legal had finished their review and the final report of 17 September 2009 was produced, the relevant finding read

"Having regard for all the evidence the investigation team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life".

6. The judge did not think this change in the report before it was produced in final form was significant. He held (para. 88) that there was no true change in the opinion of the team; it was merely that they were persuaded by BP Legal that they should state their view as to the likely cause of death on the balance of probabilities.
7. The report in its final form was forwarded to the second Appellant's General Manager, Mr Sullivan. It was he who then formed the view that the actions of Mr Braganza amounted to wilful act or default so that death in service benefits were not payable to Mrs Braganza.
8. The judge held that, although clause 7.6.3 provided that it was enough that in the opinion of BP the death resulted from wilful act or default of Mr Braganza, the opinion must be reasonably formed and the opinion-former must have been properly directed in law. He held further that it was unlikely that Mr Sullivan applied the correct legal test viz. that, there had to be "cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide" before concluding that Mr Braganza committed suicide. The judge had, of course, himself applied the correct legal test in deciding the tort claim and said that he could not make a finding of suicide.
9. The judge then held that the team's report and conclusion could not be regarded as sufficiently cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide to justify Mr Sullivan's and hence BP's opinion for the purposes of clause 7.6.3. It is not entirely clear whether the judge thought this holding on its own justified a conclusion that BP's opinion was unreasonable, because the judge added (paras. 95-96) that there was one important respect in which the opinion formed by Mr Sullivan, based as it was on the team's report, was unreasonable in the required sense. This was that the team (and Mr Sullivan) had failed to take into account the real possibility that Mr Braganza went out on deck in the early hours of 11 May to check the weather to see whether it was safe to carry out the work he had planned to do in replacing the cooling water jacket of the main engine. The judge said that Mr Braganza's interest in the weather furnished a realistically possible work-related reason for him to be out on deck which was some evidence in support of accident and ought to have been (but was not) taken into account by the team and Mr Sullivan. His final conclusion was that Mr Sullivan and hence BP were not properly directed in law and failed to take into account a relevant matter when forming their opinion that Mr Braganza committed suicide. Their opinion was not therefore, reasonable and the claim in contract succeeded in the sum of $230,265.00.
10. Mrs Braganza has accepted the judge's decision in respect of her tort claim but BP have not accepted the judge's decision in relation to the contract claim. They have obtained permission to appeal from Munby LJ (as he then was) on the question of their liability in contract.
11. Mr Grahame Aldous QC for BP submitted that the judge was wrong to hold:-

(1) that BP had misdirected themselves by failing to have regard to the requirement that there had to be cogent evidence commensurate or proportionate to the seriousness of a finding of suicide.

(2) that BP had failed to take into account the fact that Mr Braganza had good reason to be on deck to check the weather and that accordingly there was a possibility that he could have fallen overboard accidentally.

12. Ms Belinda Bucknall QC for Mrs Braganza submitted that the judge was right for the reasons he gave. By a Respondent's Notice she further submitted that there are also other reasons why BP's decision was unreasonable because they relied on

(1) the supposed (but unsupported) fact that Mr Braganza's behaviour on the instant voyage was different from that on past voyages;

(2) the presence of Mr Braganza's footwear in his cabin;

(3) apparent family and/or financial difficulties without giving Mrs Braganza the opportunity to comment on the supposed difficulties;

(4) Mr Braganza's unhappiness about the status and reputation of the vessel;

(5) BP's intended withdrawal of a bonus payment Mr Braganza was expecting;

(6) the unfounded assertion that a door from the accommodation block may have been opened (and left open) in the hours of darkness.

The Law

13. There was no dispute that where a contract gives a discretion to one of the contracting parties that discretion must be exercised honestly and on reasonable grounds. If, therefore, a death benefit is not payable if, in the opinion of the employer, the death resulted from the employee's wilful act or default, that opinion must be formed honestly and on reasonable grounds. It was also agreed that Mocatta J was correct in The Vainqueur José [1979] 1 Lloyds Rep 557 (a case which depended on the exercise of discretions by a P & I Club) when he said (page 577 lhc):-

"Where, as here, the success or failure of a claim depends upon the exercise of a discretion by a lay body, it would be a mistake to expect the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a Court of law".

Mocatta J also said (at page 574 lhc):-

"To the exercise of such discretion the common law principles must apply and these undoubtedly include fairness, reasonableness, bona fides and absence of misdirection in law"

The judge paraphrased this passage by saying (para. 91) that the lay body (BP):-

"must act fairly and be properly directed in law"

14. Here it is necessary to sound a note of caution. No doubt if a lay body misdirects itself in law the resulting decision may well be unreasonable. But it is rather different to say that the lay body "must … be properly directed in law," if that envisages that the lay body must give itself a legal direction. The whole point of a lay body is that it is not encumbered by lawyers. But it looks as if the judge may have envisaged that BP should have directed themselves (as he directed himself in para. 46) that they should not make a finding of suicide unless there was

"evidence of sufficient cogency commensurate with or proportionate to the seriousness of the finding"

It cannot be the law that a non-lawyer such as Mr Sullivan should have given himself directions before forming his opinion that Mr Braganza probably committed suicide. If (which I rather doubt) Teare J was intending to suggest that he should have done, I must respectfully part company with him.

15. Indeed the direction the judge gave himself, based as it was on a dictum of Watkins LJ in R v West London Coroner ex parte Gray [1988] QB 467, 477 D, might itself be said to be a little outdated since the decisions in Re H [1996] AC 562 and Re B [2009] AC 11 which have emphasised that in civil cases there is only one standard of proof viz. the balance of probabilities. There is however no doubt that a finding of suicide is a serious matter, particularly if the result is to deny a widow what would be to her a substantial sum by way of death benefit and the judge can certainly not be criticised for directing himself as he did, particularly since it seems to have been common ground that such a self-direction was appropriate.
16. I should add that the dictum of Watkins LJ relied on by the judge was:-

"[suicide] is still a drastic action which often leaves in its wake serious social, economic and other consequences"

That consideration led Watkins LJ to the view that a coroner should not return a verdict of suicide unless satisfied beyond a reasonable doubt (477G), see further Jervis on Coroners (12^th ed) (2002) paras. 13-23 to 13-25. No one, however has suggested that BP, in forming its opinion, should have been satisfied beyond a reasonable doubt and that is clearly correct.

Wrong Direction?

17. The investigation team considered whether Mr Braganza fell overboard by accident and decided that, although there was no evidence to suggest that he could have accidentally fallen or slipped overboard, "this cannot be discounted". They discounted the possibilities that he could have hidden on board or rendezvoused with a vessel owned by a third party; they said that there was no evidence to suggest any foul play. In their concluding section headed "Possible Scenarios", they set out what they regarded as six points tending to suicide (to which I shall have to return) and then repeated the "Findings", which they had also made in an earlier part of their report:-

"The investigation team has carried out an in depth investigation into all aspects of C/E Braganza's employment with BP Shipping, his appointment to the British Unity and his time on board.

The investigation team has seen no conclusive evidence which explains the circumstances in which the C/E was lost overboard and cannot therefore conclude for certain the root cause of the incident.

The investigation team has considered a number of scenarios which might explain the loss of the C/E and has ruled out that he is/was hiding or being hidden on board or that he had been collected by a 3^rd party vessel.

Having regard for all the evidence the investigation team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life."

18. The opinion of the team was not, as I have said, formed by reference to the death benefit clause of Mr Braganza's contract of employment but rather to see whether lessons could be learned for the future. Any question of the application of the standard of proof was entirely academic for that purpose but it is clear to my mind that their conclusion was a conclusion based on the probabilities of the case.
19. Mr Sullivan who did form the relevant opinion was, naturally enough, much influenced by the findings of the investigation team. Naturally enough also he did not give himself any direction of law as to how he should approach the evidence received by and the findings made by the investigation team. The judge said (and I agree) that it was unlikely that Mr Sullivan directed himself that "there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide". The judge then added that such a direction was required because the consequence of forming that opinion was that Mrs Braganza would be deprived of her husband's death benefit and fairness required that Mr Sullivan should have been properly directed in that regard.
20. If the judge intended to say that this on its own meant that Mr Sullivan's opinion was not a reasonable opinion, I cannot agree. It would be impossible for Mr Sullivan to direct himself in accordance with the words I have put in quotation marks in the previous paragraph without taking legal advice of a kind that cannot have been contemplated by the requirements of the death benefit clause. It may well be that if he had positively misdirected himself in law, the opinion would be unreasonable. But that is not this case. The team had decided that suicide was "the most likely scenario". That is the ordinary language of probability and Mr Sullivan's conclusion was in my view based on that conclusion.

Reasonableness of Mr Sullivan's opinion?

21. The mere fact that Mr Sullivan did not legally misdirect himself is not, of course, the end of the matter. The relevant opinion still has to be reasonable. The judge held that it was not because the team (and thus Mr Sullivan) failed to take into account the important fact that, in a situation in which the team said that an accidental fall could not be discounted, Mr Braganza had good work-related reasons to go on deck in the early hours of the morning to inspect the weather before doing work which would require the engine room to be open to the elements.
22. The fact that the team were careful not to discount accident shows that they were aware that Mr Braganza intended to and did go on deck. I do not however think it right to say that they did not take into account the fact that Mr Braganza might have had legitimate (non-suicidal) reasons for being on deck. They had investigated the whole history of the matter and were aware that work in the engine room was contemplated on 11 May (page 211). The evidence of Captain Robertson was that they did not consider the operation of lowering the cooling water jacket into the engine room massively relevant to what happened during the night. That is, however, not surprising when no one was able to envisage a scenario in which accident was likely. The team found no evidence of sub-standard or unsafe structures (page 228) no doubt because railings were in place designed to prevent accidental slips overboard (see page 343). At one stage Mr Braganza's legal team suggested he might have been 'washed overboard' but that unlikely scenario was abandoned during the trial. The judge himself considered accident in detail in the course of the judgment and said (para. 55) it was very difficult to envisage how Mr Braganza could fall through or over the deck edge railings, having slipped or lost his balance. In these circumstances it seems to me that Mr Aldous was right to submit that even if (which I do not think occurred) the team had failed to appreciate that there might be work-related reasons for Mr Braganza to go on deck, that failure, in the absence of a mechanism explaining how he could accidentally fall overboard, was not a failure which could make BP's opinion unreasonable. The judge adverted to Mr Aldous' submission in paragraph 98 but his reliance on the fact that the team said that an accident could not be discounted does not, with respect, seem to answer the point satisfactorily. Nor does it, in my view, do justice to the obvious care taken by the team in coming to their conclusion.
23. I cannot therefore, with respect agree that the judge's reasons for saying that BP's opinion was unreasonable are sound

Respondent's notice

24. Ms Bucknall's respondent's notice launched a much wider attack on the reasonableness of BP's opinion based on the six points contained in the team's report to which I have already referred. The judge accepted some of her criticisms but did not say whether, if he had not already held the opinion to be unreasonable for failure to take into account the fact that Mr Braganza had work related reasons for going on deck, that acceptance of her criticisms would have been enough to invalidate BP's opinion. It is therefore necessary to consider them. They are probably best considered in the order of the six bullet points listed in the team's report under the heading of 'Possible Scenarios'. I have numbered them as follows:-

(1) C/E Braganza's behaviour was reported to be notably different on this voyage than on previous voyages, for example he was reported as being quiet, withdrawn and at times "staring into space" in the engine room; there were no clean officer's uniforms present in his cabin and there was evidence that his attention to detail in record keeping had slipped.

(2) The shoes and sandals C/E Braganza usually wore on board were found in his cabin after his disappearance.

(3) Several e-mail messages received from his immediate family and retained in the C/E inbox account suggest C/E Braganza had some family and/or financial difficulties that were causing him concern.

(4) C/E Braganza was not aware, prior to joining the ship, of the status and reputation of the vessel – he was reported as being surprised and unhappy about this.

(5) C/E Braganza considered he was eligible for the 2008 bonus payment which had been paid to him, but BPMS subsequently advised him that it would be withdrawn.

(6) There are indications that the watertight door from the accommodation block that opens onto the upper deck on the starboard side may have been opened during the hours of darkness on the morning of Monday 11^th May. No member of the crew reported opening this door.

25. In relation to (1), the evidence relied upon by the team was to some extent counter-balanced by Mr Braganza's apparent jollity and bravado on other occasions. This was taken into account by the team (224-5). There was nevertheless, they thought, a preponderance of evidence the other way. The team reconsidered the matter in a second report of 12^th July 2011 (drafted in response to Mrs Braganza's claim) and said that, having reviewed the interview rota and other evidence they were again struck by how many references from many different interviewees there were to Mr Braganza'a behaviour and manner. They there concluded that he appeared to be behaving out of character in contrast to previous trips he had spent together with his shipmates. They accepted that on the night before his disappearance he had been "jovial, warm and talkative" but said that there seemed to be

"a lot of independent and reported (although circumstantial) evidence indicating a depressed state of mind combined with personal problems".

26. In spite of all this the judge found the findings of the first part of the first bullet point difficult to support. That is the language of an appellate court reviewing a finding of fact made by a court of first instance. Even then the judge's conclusion seems somewhat harsh since an appellate court will usually uphold a judge's findings if there was evidence to support it, as there was in this case. More importantly, as Mocatta J said, this is not the sort of exercise in which any court, whether first-instance or appellate, should engage when it is the opinion of a lay contracting party which has been agreed to be decisive. The question is whether the "opinion" that Mr Braganza was overall a reasonable opinion not whether each step in the reasoning was itself correctly reached.
27. All the more is this the case in relation to the question whether the uniforms of Mr Braganza in his cabin were clean or not. Ms Bucknall prevailed on the judge to look at a photograph of the cabin and persuaded the judge that there was a "clean looking uniform shirt with trousers hanging on a peg". The judge decided that the team's comment about the absence of clean officer's uniforms was thus "difficult to justify". Once again this was not an appropriate exercise. The team were on board the vessel when it docked and inspected the cabin. Counsel and judge cannot be better placed to judge the matter years later from a photograph. When Ms Bucknall invited this court to start looking at the relevant photograph, we declined (I hope courteously) to do so.
28. The third element in the first bullet point was accepted by the judge. It is indeed a moderately telling point. Mr Braganza had not kept the engineering log up to date (no entries had been made after 22 April) and, although he was to leave the vessel when it arrived in New York, he had not started to prepare any handover notes.
29. As far as the second bullet point is concerned, I agree with the judge that the fact that Mr Braganza's shoes and sandals were found in his cabin is hardly dispositive of suicide. But it was not factually wrong. It cannot have been a major element in the team's overall conclusion.
30. (3) The third bullet point was undoubtedly correct. The judge set out Mrs Braganza's e-mails in some detail and they did suggest family and/or financial difficulties, which caused Mr Braganza to be concerned. Ms. Bucknall's main point before the judge was that the investigation team or Mr Sullivan should have interviewed Mrs Braganza and obtained her own view about the concerns. But the judge said that it was understandable that Mr Sullivan did not want to intrude into the privacy of the recently bereaved Mrs Braganza if it could be avoided and that the report of the team had been provided to Mrs Braganza's solicitors so that she had the opportunity to correct any misunderstanding about her e-mails if she had wished to do so. The judge was not persuaded that there was any unfairness on BP's part and neither am I.
31. (4) The judge accepted that the fourth bullet point was correct.
32. (5) The judge thought that the withdrawal of a bonus in an amount of $1,688 could not be "a cogent reason for inferring suicide". Another view on that matter might be possible since it might be the reason for withdrawing the bonus rather than the fact of its withdrawal that would prey on a man's mind. But, in any event, the presence of cogent reasons commensurate with the seriousness of the conclusion is not, as I have said, a necessary approach for BP to have adopted.
33. (6)The sixth and last bullet point is that a door from the accommodation block may have been opened during the hours of darkness. As the judge pointed out, that was not necessarily so since the bosun probably went on deck shortly after dawn at 5.00 and it could have been he or some other crewman who opened the door and left it secured on one dog only. So the lack of security could have occurred in daylight hours. Again this is an extremely small point. The mention of it cannot be a reason for saying that the final opinion of suicide was, in the light of all the evidence collected, unreasonable.
34. There can be no doubt that the investigation team made an appropriate detailed and careful inquiry. Their conclusion of suicide was a reasonable one in the circumstances. It was not, of course, their opinion that was relevant. Mr Sullivan had to make up his own mind but it is hardly surprising that he himself thought it was a reasonable one to reach. In para. 9 of his written evidence he said:-

"In making my decision I considered that the BP Investigative Team had considered the evidence and the most likely explanation was reasonably based on that evidence. If I had considered that there was no reasonable basis upon which to make the conclusion that the Chief Engineer went overboard intentionally then I would have questioned their conclusion. I did not feel that there was any basis upon which I could question their assessment of the situation. His wife's emails clearly showed that he was an unhappy man. His behaviour by those who knew him prior to this trip was different. I did not seek to question further the personal reasons why the Chief Engineer would have taken his own life as I did not consider that it was my function to do so or to intrude unnecessarily into the family's grief. I took the view that there was a reasonable basis on which to conclude that deliberate suicide was the most likely scenario. This was not simply by a process of elimination, but I considered that there was positive evidence that made deliberate suicide the probable cause of death. I was not satisfied that there was any basis for concluding that the Chief Engineer had been lost overboard by way of accident, or that he had been collected by a third party vessel, or that there were any suspicious circumstances leading to him having been thrown off the vessel by any other party"

In the light of this evidence it is not surprising that Ms Bucknall's main attack was on the opinion formed by the investigation team rather than on Mr Sullivan's opinion alone. In my judgment, the judge should have held that that attack failed.

35. I am conscious that this conclusion reverses that of a highly experienced Admiralty judge who had seen and heard both Mr Sullivan and Mr Robertson of the investigation team. But he had been rightly drawn in to the detail of the evidence in considering Mrs Braganza's claim in negligence and I fear that his analysis may have spilled over into his consideration of the rather different question whether BP's own opinion was a reasonable one. Having concluded that it was a reasonable opinion, this court must say so, however aware it is that it has to follow Mrs Braganza must fail.
36. This Court has to decide this appeal in accordance with correct legal analysis, however sympathetic it may feel to Mrs Braganza. I would, therefore, allow this appeal and set aside the order of the judge.

Lord Justice Rimer:

37. I agree.

Lord Justice Tomlinson:

38. I also agree.