Binnie v Rederij Theodoro Bv
| Jurisdiction | Scotland |
| Judgment Date | 20 August 1992 |
| Docket Number | No. 7 |
| Date | 20 August 1992 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Temporary Judge J M S Horsburgh, QC
EvidenceReparationNegligenceOnus of proofRes ipsa loquiturFailure of machineryDefenders leading no evidence to explain failureWhether presumption of negligence aroseWhether onus of proof on defenders to displace presumption
PracticePleadings"Believed to be true"Whether admission requiring no proof
ReparationNegligenceDuty of careSafe system of workDuty of inspectionRes ipsa loquiturFailure of machineryWhether presumption of negligence aroseWhether chain of causation between failure and injury to pursuer brokenOnus of proof
Words and phrases"Believed to be true"
A port operator sued the owners of a ship for damages, on the basis of both personal and vicarious liability, after he was struck by a rope which had snapped after the reverse thrust on the engines failed to engage and stop the forward movement of the ship when entering a lock. The grounds of fault included one which alleged that the defenders had a duty, by means of a reasonable system of inspection and maintenance, to see that the engines were operating properly and, in particular, that the reverse thrust mechanism would engage when required. The pursuer contended that the shipmaster's failure to stop the ship by means of the reverse thrust raised a prima facie presumption of negligence and that it was for the defenders to explain what had happened and to prove that they had taken all reasonable precautions and that there had been no negligence on their part. He also contended that, as the defenders had not led any evidence and nothing had been adduced by them to explain this failure, they had failed to establish that the cause of the accident had not been attributable to their negligence. The defenders argued that the pursuer, by leading no evidence that a reasonable system of inspection and maintenance would have revealed any fault, had not discharged the onus of proof which he had assumed by basing his claim on that ground. They also pointed out that the engines had been inspected some two months prior to the accident, to which averment the pursuer had responded by stating that it was "believed to be true" which, the defenders argued, was tantamount to an admission. The Temporary Lord Ordinary (Horsburgh, Q.C.) held that the pursuer had not established a prima faciecase against the defenders because: (a) the engine failure had not been the cause of the accident but had been merely a sine qua non, the cause of the accident being the parting of the rope under tension, which resulted from the remedial efforts to avoid the bow of the vessel colliding with the lock gates once the engine failure had been appreciated, so that no presumption of negligence arose; and (b) the accident had not been a reasonably foreseeable consequence of the reverse thrust not engaging. The pursuer reclaimed.
Held (1) that, although the accident resulted from the remedial efforts to prevent the ship from colliding with the lock after the engine failure, those actions did not break the chain of causation between the engine failure and the injuries sustained; (2) that, accordingly, the engine failure was not merely a sine qua nonof the accident but was the effective cause of it, everything happening afterwards following directly from the emergency which the engine failure had created; (3) that the pursuer's injury had been reasonably foreseeable; (4) that the fact of the previous inspection did not mean that the engines were not defective at the time of the accident, and that prima facie this was attributable to negligence and that, even though the pursuer had made averments of fault on that issue, it did not prevent him from saying that the effect of the evidence had been to raise a prima facie inference of negligence which the defenders had to displace; and (5) that, the defenders having failed to explain the accident, the inferences to be drawn from the evidence were those which were most favourable to the pursuer and the engines' failure to operate when required suggested that there was a defect which oughtprima facie to have been prevented by a reasonable system of inspection and maintenance, which had been the pursuer's case on record; and reclaiming motion allowed.
Elliot v. Young's Bus ServiceSC1945 S.C. 445followed; Henderson v. Henry E. JenkinsELR[1970] A.C. 282 (dictum of Lord Pearson at p. 301)applied.
Observed that a party whose averment was met by a reply of "believed to be true", together with a denial of other averments, was entitled to take it that the point believed to be true was not disputed and was not one on which evidence was required.
Joseph Binnie brought an action of reparation for damages against Rederij Theodoro B.V. in respect of an accident at work. The parties averred, inter alia, that: "COND. 2. On or about 16th February 1989 at about 23.45 hours the pursuer was engaged in the course of his employment as a port operator with the Forth Port Authority at Grangemouth. On said occasion a vessel owned and operated by the defenders the Stella Procyon was moored at No. 2 jetty in the docks at Grangemouth. The said vessel left the said jetty and entered the lock between the said docks and the River Forth. The said vessel was 83.55 metres in length with a beam of 15.6 metres and a gross tonnage of 2,710 tonnes. Its dead weight was 3,824. The procedure for the vessel leaving the docks via the lock to the River Forth is that the vessel leaves the berth at the jetty and enters and is tied up in the lock. The lock gates are closed. The water levels between the River Forth and the lock are equalized. The lock gates are opened and the vessel proceeds into the River Forth. As the vessel enters the lock, it is necessary to secure it within the lock and in particular to prevent it from colliding with the lock gates at its bow end. The usual practice is that the engines of the vessel are put into reverse thrust to slow it down and the vessel is secured in the lock by three ropes being tied to the bollards ashore. The forward backspring rope is attached first followed by the stern rope and head rope. During such a manoeuvre the pursuer's duties were to stand ashore and to attach one of the ropes to one of the bollards. It was the duty of the servants of the defenders on deck to attend to the passage of the rope through bits on deck. They should do so by paying the rope through the bits with the surge of the vessel in such a way as to slow the vessel but avoid the rope becoming excessively taut or breaking. The said rope also requires to be of sufficient length to avoid being drawn entirely through the bits. On the said occasion after the said vessel had entered the lock, the pursuer and a colleague went to the stern of the vessel to attach the stern rope. Two other colleagues of the pursuer went to the forward backspring rope. The said two other colleagues were instructed by the vessel's master to attach the forward backspring rope. The said rope was attached to bollard 15. The pursuer attached the stern rope. It was not possible for the pursuer to see from his position at the stern end of the vessel whether the forward backspring rope was becoming taut, although that could be seen by the defenders' said servants at the bits. The vessel continued towards the lock gate at the bow end. The vessel's engines were not placed into reverse thrust. The forward backspring rope became taut. No action was taken to prevent the said rope from becoming further taut such as by attaching an additional forward back-spring rope and proceeding at a very much reduced speed. As a result an excessive strain was placed on the said forward backspring rope. The said vessel continued to move forward. Suddenly and without warning the forward backspring rope struck the pursuer causing him to be thrown to the ground. The pursuer believes and avers that the rope snapped but the master of the vessel was reported by the harbour master, Capt. J. J. Craig as alleging that the rope did not snap but ran through the bits and whipped back, striking the pursuer. Said Capt. Craig also noted three servants of the defenders running to starboard thus indicating that they had lost control of the said rope and were getting out of the way. As a result of the said accident the pursuer sustained the loss, injury and damage hereinafter condescended upon. With reference to the defenders' averments in answer, not known and not admitted that the reverse thrust would not engage on the main engine. Quoad ultra denied except insofar as coinciding herewith. Esto the reverse thrust would not engage on the main engine (which is not known and not admitted) the defenders are called upon to specify why it did not so engage. The defenders are called upon to specify what checks were made on the reverse thrust mechanism prior to executing the said manoeuvre. They are called upon to state on record what was their system of inspection and maintenance of the said vessel's engine prior to the accident. Any reasonable system of inspection and maintenance would have alerted the said master to the possibility that the reverse thrust would not engage when required. They are called upon to specify when the engine was inspected prior to the said accident. They are called upon to state whether the master knew that the...
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