Mr Kiani went to work at the Land Rover plant; his dead body was found in a tank in the area in which he worked. He had died of asphyxia. His personal representative sued on the basis that Mr. Kiani had accidentally fallen into the tank; Land Rover suggested that his death was suicide. There were thus two possible explanations. The first instance judge had found suicide to be a less than probable explanation, he found that it occurred as a result of accident because the tank had its hatch left open and that Mr. Kiani had probably gone over to have a look, overbalanced and fallen in.
Held: The appeal was dismissed.
Waller LJ discussed the difficulty arising where two scenarios appeared possible on the facts and said: ‘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.’
Waller LJ said: ‘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 [certain] evidence established that an accidental fall was ‘impossible’.
. . 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.’
Judges:
Waller, Rix, Richards LJJ
Citations:
[2006] EWCA Civ 880
Links:
Statutes:
Workplace (Health, Safety and Welfare) Regulations 1992
Jurisdiction:
England and Wales
Cited by:
Cited – Fosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
Cited – Nulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Lists of cited by and citing cases may be incomplete.
Health and Safety, Litigation Practice
Updated: 09 December 2022; Ref: scu.242897