Bryers v Canadian Pacific Steamships Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Chancellor,Viscount Simonds,Lord Tucker,Lord Keith of Avonholm |
| Judgment Date | 25 November 1957 |
| Judgment citation (vLex) | [1957] UKHL J1125-1 |
| Date | 25 November 1957 |
| Court | House of Lords |
[1957] UKHL J1125-1
House of Lords
Lord Chancellor
Viscount Simonds
Lord Morton of Henryton
Lord Tucker
Lord Keith of Avonholm
After hearing Counsel, as well on Wednesday the 2d, as on Thursday the 3d, Monday the 7th and Tuesday the 8th, days of October last, upon the Petition and Appeal of Canadian Pacific Steamships Limited, whose registered office is situate at Royal Liver Building, Liverpool, 3, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 12th of October 1956, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of James Bryers, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 12th day of October 1956, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In this case the facts as found by Diplock, J. are as follows: The Respondent at all material times was employed as a yeoman carpenter by the present Appellants (who were the original defendants) on board their ship the "Empress of Scotland". The scuppers and bilge openings of the ship had been covered while a cargo of grain was carried on the voyage prior to the accident and it was the Respondent's task, in the ordinary course of his employment as a carpenter, to remove the covering cement from the scuppers and bilge openings. He had performed this work in most of the holds of the ship while she was lying for the purpose of discharge in a wet dock in the port of Liverpool but at the time the Respondent met with his accident the ship had been moved into a public dry dock (owned by the Mersey Docks and Harbour Board) under a contract with the Board, for her annual survey and overhaul. The Appellants had instructed Harland & Wolff Ltd., ship repairers, to carry out general repairs and in addition had instructed some seventeen other contractors to execute specialist repairs upon the ship under direct contract with the Appellants. On the morning of the 8th December, 1954, after the ship had gone into the public dry dock, the Respondent's task took him to No. 5 hatchway on "F" deck, a part of the ship at which no repairs were being carried on. A ship's ladder led down from "E" deck to "F" deck and there was a well a few feet from the foot of the ladder. Another vertical ladder led from the top of the well down to the bilges. In order to get down to the bilges it was necessary to approach to the edge of the well and climb on to the ladder. The Respondent had done this many times in the course of his thirteen years service at sea. As the hatch covers of "E" deck were on at the time, it was necessary for the Respondent, on his way to "F" deck, to have a cover lifted so that he could climb down the ladder to "F" deck. There was no permanent lighting on "F" deck and the Respondent was expecting to find a light cluster there. With the assistance of an engineer working on "E" deck the Respondent lifted the cover in the vicinity of the ladder and, after borrowing the engineer's torch, went below. He walked to the edge of the well and shone the torch down to find out whether there was a light cluster on the ceiling of the well. He had no difficulty in seeing round about him on "F" deck and he did not complain of lack of light. Nevertheless while he was near the edge of the well he slipped and fell into the well and sustained injuries. His complaint was that the well should have had stanchions and life-lines round it, which he could have gripped after slipping and so saved himself.
On these facts the learned Judge found that at the material time the ship was undergoing work or repair in a public dry dock; that the control of the ship apart from the work of repair remained with the Appellants as the shipowners and that, although it was impossible to find any person who had contracted with the Appellants to execute the work of repair so as to be deemed to be the occupier for the purpose of Parts I to VIII of the Shipbuilding Regulations 1931, it was the duty of the Appellants to provide the protection specified in Regulation 10 in so far as the well in "F" deck was concerned; that the Appellants had failed securely to cover the well and were in breach of the said Regulation 10, the relevant part of which reads as follows:—
"All openings in decks and tank tops shall be securely protected. Such protection shall be maintained in position and when necessarily removed in the course of work shall be replaced as soon as practicable."
The Judge also found that the Respondent fell into the category of persons upon whom the Regulation conferred a civil right of action in respect of a breach; that the Appellants, their servants or agents, had not been guilty of negligence at common law; that the Respondent had been guilty of negligence contributing to his injuries to the extent of one half; that the Respondent would have been entitled to the sum of £393 6s. 6d. if he had not been guilty of contributory negligence. On these findings the learned Judge gave Judgment for the Respondent for £196 13s. 3d. and costs.
The relevant parts of the Shipbuilding Regulations in my opinion are:—
A. The heading:
"In pursuance of section 79 of the Factory and Workshop Act, 1901, I hereby make the following Regulations and direct that they shall apply to the construction and repair of ships in shipbuilding yards."
B.
"Duties
It shall be the duty of the occupier to comply with Parts I to VIII of these Regulations.
Provided that, when a ship is being repaired in public dry dock, the person who contracts with the owner of the ship or with his agent to execute the work of repair, shall be deemed to be the occupier for the purposes of Parts I to VIII and it shall be his duty to comply with the said parts, except as follows:—
(a) It shall be the duty of the person having the general management or control of the public dry dock to comply with Regulations 2 ( b) and ( c) and 11 ( c) so far as they concern those gangways, uprights, thwarts and planks provided at the dock by such person; with Regulation 42 ( b) so far as it concerns the lighting of the quay round the dock; and with Regulation 46.
( b) Where the control of the ship apart from the work of repair remains with the shipowner, it shall be the duty of the shipowner, master, or officer in charge, to provide the protection specified in Regulation 10 in so far as concerns those hatches or openings which are not required to be used for the purposes of the repairs, but if such protection be removed by any person or persons in the employment of the occupier or at his or their request, the occupier shall be responsible for its replacement as soon as practicable.
( c) Where the shipowner provides the lighting on board the ship it shall be the duty of the shipowner, master, or officer in charge, to comply with Regulation 42 ( b) so far as regards the lighting on the ship which he has undertaken to provide.
It shall be the duty of all persons employed to comply with Part IX of these Regulations."
The Appellants appealed and in the Court of Appeal made two submissions which are relevant to the problem now before the House namely:—
A. That, upon the true construction of the part of the Regulations headed "Duties considered in relation to the circumstances of the present case, the Appellants were not at the material time under any duty to observe Regulation 10.
B. That the Plaintiff was not a person who was entitled to sue for injury sustained by him by reason of a Breach of these Regulations.
On the first point Singleton, L.J., and Jenkins, L.J., held that the only condition to be satisfied in order to bring into operation the proviso and the exceptions contained in the section of the Shipbuilding Regulations, 1931, headed "Duties" was that the ship should be undergoing repair in a public dry dock; that the exceptions ( a), ( b), and ( c) supra were in terms substantive provisions, each enjoining compliance with some specified regulation or regulations; and that as the ship was undergoing repair in a public dry dock exception ( b) applied and the Appellants were under a duty to provide the protection specified in Regulation 10.
The whole Court held that they were bound on this point by the decision of the Court of Appeal in Wilkinson v. Rea, Ltd. ( [1941], 1 K.B. 688) in which this point was not argued. Parker, L.J., indicated that apart from this authority he would have accepted the argument now advanced by the Appellants. He thought that, read literally, the exceptions are, and could only be exceptions from the duty imposed by the preceding words on someone who is not, but is deemed to be, the occupier of the premises, and that if, as in the present case, there was no such person, there was nothing to except.
On the second submission the Court unanimously held that the Shipbuilding Regulations, 1931, were intended to protect the people working within the factory: that the public dry...
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Preliminary Sections
...1 All E.R. 281 ..................................................................... 505 Canadian Pacific Steamships Ltd. v, Bryers (1958) A.C. 485 (H.L.) at pp.499 501 Carson v. Carson (1964) 1 W,L.R. per Scaman J. at p.517 141 Cartledge v. E. Jopling and Sons Ltd. (1963) A C 758................