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The deceased body was found at the bottom of a tank. The case went to trial on the question of what had happened to cause the death. Waller L.J. said,

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 [the] evidence established that an accidental fall was “impossible”. [The deceased’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 any more 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 [the witness]. 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 [the witness]. [The witness] did not postulate [the deceased] coming to the edge of the hatch, bending down to look in and then falling in. [The witness’ evidence] simply does not go as far as to say…that any accident was “impossible”.

31 The key starting point seems to me to be the judge’s finding that an employee from [C] left open the hatch from some time around 10 am.

It follows that [C] and [LR] 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 [the deceased] 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 [C], [the deceased] 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 [the witness], that there was a way in which [the deceased] could have accidentally fallen into the tank when going over to have a look, and overbalancing whilst trying to see into the tank.

Edited for ease of reading. See the other cases listed under this tag.

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