Cto Gesellschaft Fur Containertransport MBH & Co & Ors v Dziennik

An appellate court should not overturn a first-instance causation finding unless it was plainly wrong. Where a judge finds that a formal instruction would probably have prevented an accident, unsupported speculation that the claimant would have disobeyed it does not displace that finding. A contributory-negligence finding must rest on an allegation properly pleaded and clearly maintained at trial. Fairness requires notice of the alleged negligence and a proper opportunity to answer it in evidence and submissions. A general finding that the claimant was the author of his misfortune cannot substitute for a clear finding on the pleaded allegation.

The claimant suffered severe burns while replacing a thermosensor aboard a ship. He sued the shipowner in negligence and his former employers for breach of contract; the contractual claim was settled.

The Admiralty Court found that the shipowner had failed to provide a safe system of work, but held the claimant 60 per cent responsible. It awarded £73,500 and directed that a contractual payment of 110,475.59 euros be deducted before contributory negligence was applied. The shipowner appealed on causation and damages. The claimant cross-appealed against the contributory-negligence finding. The central issues were whether the judge was entitled to find that a formal instruction would have prevented the accident and whether contributory negligence could be based on the claimant’s alleged failure to use a procedure which had been the pleaded and maintained case.

Lady Justice Hallett gave the leading judgment. Lord Justice Lloyd and the President of the Queen’s Bench Division agreed; the President added that the fairness principle was fundamental rather than merely technical.

1. Primary liability. The shipowner could succeed on causation only by showing that the judge was plainly wrong to find that a formal instruction from the Chief Engineer would probably have prevented the accident. There was no evidence that the claimant, or an engineer in his position, would have disobeyed a direct order. The proposed instruction concerned a familiar, quick and relatively simple procedure. The causative link was therefore open to the judge and the shipowner’s appeal on primary liability was dismissed.
2. Contributory negligence. The shipowner had repeatedly confined its case to the claimant’s failure to use the short-cut method demonstrated in the smoking room. It had not pleaded that his belief in the existence of a safety pocket was unreasonable, nor that he was negligent in failing to check or drain the system. The claimant had accordingly chosen not to investigate that issue with witnesses or experts.
3. The trial judge’s references to the claimant being the author of his misfortune and to the irrationality or mystery of his conduct were understood as findings about the reasonableness of his belief that a safety pocket existed. They did not amount to a clear finding that he should have followed the short-cut method. The contributory-negligence finding could not be sustained on an unpleaded or disclaimed basis. The claimant’s cross-appeal was allowed.
4. Damages. The issue whether the contractual payment should be deducted before or after accounting for contributory negligence was novel and did not arise for decision once the contributory-negligence finding was set aside. It was left unresolved.

• Court of Appeal (Civil Division): Dismissed the shipowner’s appeal on primary liability and allowed the claimant’s cross-appeal against contributory negligence.
• Queen’s Bench Division, Admiralty Court: On 15 June 2005, Judge Chambers QC found the shipowner partly liable and the claimant 60 per cent contributorily negligent. On 4 November 2005, he awarded £73,500 and ordered deduction of the contractual payment before applying contributory negligence.