Berriello v Felixstowe Dock & Railway Company
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER,LORD JUSTICE BINGHAM,LORD JUSTICE DILLON |
| Judgment Date | 01 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0201-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0108 |
| Date | 01 February 1989 |
[1989] EWCA Civ J0201-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Turner)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Stocker
and
Lord Justice Bingham
89/0108
MR. P. WEITZMAN, Q.C. and MR. R. HAY (instructed by Messrs Davies, Arnold & Cooper) appeared on behalf of the Appellant/Plaintiff.
MR. J. LEIGHTON WILLIAMS, Q.C. and MR. A. SEYS LLEWELLYN (instructed by Messrs Berrymans) appeared on behalf of the Respondents/Defendants.
This is an appeal from the judgment of Turner J., given on the 24th July 1987, whereby it was ordered that judgment be entered for the defendants with costs. The appellant plaintiff seeks an order that judgment be entered for the plaintiff for the amount indicated by the learned judge who assessed damages at the request of the parties. By a respondent's notice the respondents contend that if, contrary to their contentions, the appeal is allowed any sum awarded should be reduced on account of the plaintiff's contributory negligence and, further, that the judge was in error in failing to take into account, or give credit against special damages and future losses certain sums received or to be received by the plaintiff from the Italian State or the Cassa Maritima Fund and that such assessment should be varied by taking into account or giving credit for such sums. By a document headed "Appellant's Counter Notice" the appellant seeks to support the assessment of damages on the further ground that sums received or receivable from the Cassa Maritima will be repayable by him in the event that an award of damages is made.
The plaintiff's claim was for damages for personal injuries arising out of an accident which occurred on the 24th January 1985 aboard the "MV MERZARIO BRITANNIA" then lying at a quay in Felixstowe docks. The plaintiff was employed as a Grade 2 seaman by the owners of the vessel "MERZARIO".The vessel was a "roll on—roll off" type of cargo vessel and at the material time was being loaded by the defendants, a firm of stevedores. The accident occurred when the plaintiff was struck by a large (40 ft.) trailer loaded with a container which was being propelled into a lower "tween-deck by a Tugmaster" (a powerful type of tractor) driven by a servant of the defendants one Mayes. The plaintiff sustained serious injuries in particular to his right leg requiring a below-knee amputation. He was, at the time of the accident, 25 years of age.
The scene of the accident can be conveniently described from the agreed photographs. Photograph 1 is taken from the vessel looking towards the quayside and shows in the distance a bridge leading up to the ship's ramp.
Photograph 2 shows the ship's ramp taken from the reverse direction. Photograph 10 shows the interior of the vessel just at the top of the outer ship's ramp. On the extreme left of the photograph there is a ramp up to a higher deck. There is standing a forklift truck which was involved in this accident. It is pointing towards a ramp down into the tween-deck hold. The windows just to the right of the forklift truck are those of the cargo office. The internal ship's ramp can be seen more clearly in certain coloured photographs which were before the court. Photograph 101 is taken looking towards the quay at a point near the top of the internal ramp and shows the cargo office windows on the left just above the position in which three men are standing. Photograph 102 shows clearly the ramp down into the 'tween-deck hold and, again, the cargo office windows can be seen on the left-hand side. Thus the journey to be traversed by the tugmaster and trailer would involve crossing the quayside bridge and floating bridge, up the ship's external ramp and then down the ship's internal ramp on to the cargo 'tween-deck.
The accident occurred at a point about opposite the cargo office which is situated just inboard the vessel—i.e., beyond the top of the ship's outer ramp and the quayside of the ship's inner ramp from the 'tween-deck. It is to be observed that whereas the tween-deck area upon which the cargo would be stored is very large—at least 100 yards long—the place where manoeuvre is not practicable is the inner ramp and the vicinity of the cargo office where two vehicles cannot pass each other in safety.
The method of loading was as follows: cargo already packed into containers is pushed by a powerful tractor called a Tugmaster from the quay up the ship's outer ramp and into the vessel. If the stowage for the container is to be in the lower 'tween-deck the trailer and its container will have to veer to the right before straightening up to go down the inner ramp to the 'tween-deck. The trailer is some 40 feet long. It follows that the driver of the tractor which is pushing the trailer will have no visibility at all immediately in front of the trailer regarded in the direction in which it is travelling. The controls of the tractor are so arranged that the driver can face in either direction. When a tractor is pushing a trailer the controls and the driver's seat are on the left and by leaning out to the left the driver can see down the left-hand side of the trailer and he directs the trailer straight upon some point on which he has aligned himself. He directs his straightening process at the top of the ship's outer ramp by reference to the striped post which can be seen in photograph 10. It follows that the driver cannot see anything immediately in front of the container or to the right of it, save that he can, according to the driver, see into the ship whilst going up the outer ship's ramp because somewhere on this ramp what has been described as a "U-turn" takes place which permits visibility into the ship to a distance of 30 yards or so. Once the load has reached the position in which it is to be stacked in the vessel the container is removed from the trailer by heavy forklift trucks which form part of the stevedore's equipment and are operated by the stevedores. The container is then lashed and secured and the Tugmaster with the empty trailer is driven off the ship. At the relevant time a shuttle service was operating, that is to say the defendant stevedores were operating two Tugmasters, but they would pass each other in opposite directions somewhere on the quay or on the quayside of the bridge.
Turning to the circumstances of the accident, this occurred at about 12.30 p.m. The loading of the 'tween-deck had commenced at about 10.30. This was just after the stevedore's tea break. During the tea break a pair of forklift truck forks, part of the ship's forklift truck equipment, had been moved at the request of the stevedores as they were lying on part of the deck needed for loading. This was done and the loading then proceeded. For some reason which is not wholly clear the plaintiff was instructed by a ship's officer on the ship's telephone to move these spare forks to a position near the cargo office where they were to be stored and lashed. Another employee of the shipowners, a Mr. Mehmet, was instructed to drive one of the ship's fork-lift trucks to effect this removal of the spare forks. The plaintiff and Mr. Mehmet together collected the forks from their position on the 'tween-deck. These forks were secured to the forks of the forklift truck and Mr. Mehmet drove his forklift truck to the cargo office. Though denied by the plaintiff and Mr. Mehmet the judge found as a fact that the plaintiff travelled on the forklift truck. A man employed by the defendant stevedores, a Mr. Jupp, who was engaged in lashing and securing the containers already loaded, described a ship's crewman, clearly the plaintiff, as standing on the forklift truck. The forklift truck in question can clearly be seen in photograph 6 outside the cargo office and it is in approximately the position in which it was when the accident occurred. It had been driven in reverse, that is to say with its forks to the rear, and the spare forks which had been collected from the 'tween-deck can be seen suspended from the forklift truck's own forks. The door of this forklift truck was apparently dislodged by the impact. Between the two wheels can be seen what appears to be a running board and it is presumably upon this that the plaintiff stood when the vehicle travelled from the 'tween-deck to the point of accident. Accordingly the evidence which the judge accepted was that the plaintiff was standing on this forklift truck whilst it reversed away from the place where the spare forks had been collected and up the inner ship's ramp. A second or so later the witness heard a crash.
It is clear that the trailer being pushed into the vessel by the Tugmaster collided with the forklift truck driven by Mr. Mehmet and the judge found that the trailer and the forklift truck arrived at the point of impact somewhere outside the cargo office simultaneously. The plaintiff, on the judge's finding, must either have been standing on the running board of the forklift truck or have descended from it only a moment before, thus refuting his evidence that he had been talking to the ship's officer and to Mr. Mehmet in the vicinity of the cargo office for several minutes before the accident occurred. The judge also found that loading operations had been in progress from 10.30 that morning and that three to four containers and two heavy lorries had already been loaded and secured on this 'tween-deck.
As to the witnesses: on the issue of liability the plaintiff gave evidence himself and called Mr. Mehmet. For...
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Financial Services Compensation Scheme Ltd v Abbey National TreasuryServices Plc (Financial Services Authority intervening) [2008] EWHC1897 (Ch); [2008] WLR (D) 277 [Ch]
...is required to prevent double recovery and a deduction is not therefore made. 68 This may be illustrated by two examples. In Berriello v Felixstowe Dock & Railway Co [1989] 1 WLR 695, an Italian seaman was injured by the negligent acts of the defendant. Under an Italian compensation scheme,......
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Hassall and Pether v Secretary of State for Social Security CCR 1 1993
...receives some support, albeit obiter and by analogy, from the decision of this court in Berriello v. Felixstowe Dock & Railway Co. [1989] 1 WLR 695. This was a decision under the old statutory regime. The plaintiff, an Italian seaman, was injured in the course of his employment at Felixstow......
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Hassall v Secretary of State for Social Security ; Pether v Same
...on principle and additionally received some support, albeit obiter and by analogy, from Berriello v Felixstowe Dock & Railway CoWLR ((1989) 1 WLR 695). The conclusion was that the applicants had been undercompensated but not because of the working of the statutory scheme but from the fact t......