ALEXANDER NOBLE Pursuer (Respondent) against CORNELIUS DE BOER Defender (Appellant)
| Jurisdiction | Scotland |
| Judgment Date | 04 March 2004 |
| Date | 04 March 2004 |
| Docket Number | No 44 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Practice - Process - Preliminary proof - Proof on merits - Observations on whether findings in preliminary proof binding in proof on merits
The pursuer sustained serious injuries while working onboard a fishing vessel. The vessel was British registered which meant that there had to be a British skipper aboard. The pursuer was the British skipper on board the vessel, but while fishing was in progress, he served as a deckhand. Most of the rest of the crew were Dutch, including the defender who was the 'fishing skipper'. The pursuer raised an action against Osprey Trawlers Ltd and a Dutch company, Rederij De Boer and Zanen BV, as well as against the defender. A sheriff allowed a preliminary proof on whether the companies were the employers of the pursuer and the defender, the alternative being that each voyage constituted a joint adventure amongst the crew. After the preliminary proof the sheriff (Warner) held that the pursuer was a joint adventurer and that the defender was a self-employed share fisherman. After sundry procedure a proof on the merits was heard before a different sheriff (Harris). During the proof on the merits the defender objected to the pursuer leading any evidence that tended to contradict or encroach on the findings in the preliminary proof, and that objection was upheld. Sheriff Harris found the defender liable to the pursuer and awarded damages, but found that the proportion of fault attributable to the pursuer was 30 per cent. The defender appealed to the Court of Session. The defender argued, inter alia, that he had not been at fault, that esto he had been at fault the degree of contributory negligence should have been assessed as considerably higher than 30 per cent. The pursuer cross-appealed on the grounds that the sheriff had erred in holding that he was bound by the findings in the preliminary proof, and in making any finding of contributory negligence. The court asked to be addressed at the outset on the propriety and competence of Sheriff Harris regarding himself bound by findings made by Sheriff Warner in the course of the preliminary proof. Parties subsequently agreed that the relevant findings in fact at the preliminary proof were to be regarded as findings in fact for the purposes of the proof on the merits.
Held that: (1) in the light of the evidence it was plain that the pursuer's accident was caused, at least to some extent, by the fault and negligence of the defender (per Lord Marnoch (paras11-17), Lord Osborne (para 34), Lord Hamilton (paras 45-48)); and (2) no case of contributory negligence had been made out (per Lord Marnoch (paras19-31), Lord Osborne (para 34), Lord Hamilton (paras 49, 50)); and appeal refused and cross-appeal allowed.
Observed (Lord Osborne diss) that Sheriff Warner's findings in fact were made incidental to and for the purpose of determination of the issues remitted to the preliminary proof, and had no force and effect except for that purpose (per Lord Marnoch (para 5), Lord Hamilton (para 42)).
Observed (per Lord Osborne) that where a sheriff has made findings in fact in the course of a preliminary proof in an action, those findings are to be taken as findings in fact for all purposes in connection with that action, where the parties to the preliminary proof included the parties who were the participants in the proof on the merits of the action (para 34).
Observed that where an appeal was brought from the sheriff court, counsel for the appellant ought at the outset to intimate whether the appellant accepted the findings in fact made by the sheriff and, if not, what alterations or modifications they proposed that the Inner House should make to the findings in fact (per Lord Marnoch (para 7), Lord Hamilton (para 52)).
Gibson v OrrSC 1999 SC 420 considered.
ALEXANDER NOBLE raised an action for damages for personal injuries against Osprey Trawlers Ltd, Rederij De Boer and Zanen BV, and Cornelius De Boer in Aberdeen Sheriff Court. On 4 March 1996 at debate sheriff Kelbie allowed a preliminary proof on (1) whether or not Osprey Trawlers Ltd was at the time of the accident the employer of the pursuer and (2) whether or not Rederij De Boer and Zanen BV was at that time the employer of Cornelius De Boer. On 6 June 1997 following the preliminary proof Sheriff Warner dismissed the action in part against Osprey Trawlers Ltd and assoilzied Rederij De Boer and Zanen BV. That decision was appealed to the Court of Session, but the appeal was refused, on 26 June 1998. On 26 June 2000 the pursuer abandoned the action against Osprey Trawlers Ltd. On 14 March 2001, following a further debate, it was held that the court had jurisdiction. A proof on the merits was heard before Sheriff Harris over eight days in October 2001, March 2002 and April 2002. On 29 November 2002 the sheriff found the defender liable to the pursuer in damages, subject to a finding of 30 per cent contributory negligence.
The defender appealed to the Court of Session, and the pursuer cross-appealed.
Cases referred to:
Caparo plc v DickmanELR [1990] 2 AC 605
Gibson v OrrSC 1999 SC 420
McCafferty v McCabeUNKSC (1898) 25 R 872
Marc Rich & Co AG and others v Bishop Rock Marine Co Ltd and othersELR [1996] AC 211
Marshall v William Sharp & Sons Ltd 1991 SLT 114
Perrett v Collins and othersUNK [1998] 2 Lloyd's Rep 255
Secretary of State for Trade and Industry v BairstowELR [2004] Ch 1
Textbooks referred to:
I D MacPhail, Sheriff Court Practice (2nd Nicholson and Stewart ed, W Green/Scottish Universities Law Institute, Edinburgh, 1998), vol 1, para 8.60
The cause called before an Extra Division, comprising Lord Marnoch, Lord Osborne and Lord Hamilton for a hearing on the summar roll.
At advising on 4 March 2004 -
LORD MARNOCH -[1] This is an appeal and cross-appeal against a judgment of Sheriff Harris sitting at Aberdeen. It is, however, necessary to deal at the outset with what is regrettably a rather lengthy background to the hearing which took place before this court.
[2] On 13 November 1992, at about 5.30 am, the pursuer sustained serious injuries while working on board the fishing vessel 'PD Fellowship' off the coast of the Netherlands. It is admitted that, while the pursuer was in the process of putting fishing gear over the side of the vessel, the vessel rolled in the swell and a large stone slid across the deck trapping his left leg between the stone and what is described as the 'beam' of the fishing net. There is no dispute that the stone in question had been picked up in the nets three days earlier on 10 November 1992. The vessel in question was British registered which meant that there had to be a British skipper aboard to satisfy certain requirements of fishing regulations which were in force at the time. The pursuer was the British skipper on board the vessel but, while fishing was in progress, he served as a deckhand. Most of the remainder of the crew were Dutch, including Cornelius De Boer who was the 'Fishing Skipper' and who is now the only remaining defender in the action.
[3] The action, which seeks reparation for the pursuer's injuries, appears to have been raised late in 1994 and, at least by 3 May 1995, in addition to Cornelius De Boer, there were two further defenders, namely Osprey Trawlers Ltd and a Dutch company, Rederij De Boer and Zanen BV. On 4 March 1996, on the motion of all three defenders, Sheriff Kelbie allowed a preliminary proof on the question or questions of whether or not Osprey Trawlers Ltd and Rederij De Boer and Zanen BV were at the time of the accident the employers of the pursuer and remaining defender respectively, the alternative being that each voyage constituted a joint adventure among the crew. The matter of safety on board the vessel was apparently one of various considerations seen to be determinative of these issues. After sundry procedure, on 6 June 1997, Sheriff Warner dismissed the action, in part, against Osprey Trawlers Ltd and assoilzied the Dutch company, holding that the pursuer was a joint adventurer and that Cornelius De Boer (hereinafter referred to as 'the defender') was a self-employed share fisherman. In so doing he made, inter alia,the following findings in fact:
'6. The Pursuer was engaged in a dual capacity:- (a) as British Skipper - responsible for "paper work" and safety aspects, and (b) as a deckhand while fishing.
7. He was the British Skipper of the Fellowship for the formal requirements of the fishing regulations which were then in force.
8. As such he was responsible for the safety of the crew onboard the Fellowship, at any event, insofar as not directly relating to fishing operations.
9. As British Skipper, he completed the logbook of the Fellowship and dealt with, when necessary, fisheries officers and such formal administration as arose before, during and after a voyage.
10. The Pursuer had no control over the choice of Dutch Skipper for the trip.
11. The Pursuer had no control over fishing operations.
12. The Pursuer did not act as the Skipper of the Fellowship while she was fishing.
13. That task was undertaken by the Dutch Skipper - the Third Defender.
14. The Pursuer was accordingly subject to the direction of the Third Defender in the course of fishing operations.
15. The Pursuer was accordingly instructed by the Third Defender when to put the fishing gear overboard.
16. The Third Defender as the Dutch Skipper had control and management of the vessel and its crew during the course of fishing operations.'
Sheriff Warner's judgment was appealed to the Court of Session but both it and the findings in fact on which it depended, including specifically findings in fact 6 and 8 were upheld by the Inner House on 26 June 1998. Thereafter, nothing material seems to have occurred until 26 June 2000, when the pursuer was permitted to abandon the action in so far as still directed against Osprey Trawlers Ltd. Following amendment consequent upon that abandonment, there...
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