Elliot Lambert v V J Glover Ltd
| Jurisdiction | England & Wales |
| Judge | Jervis Kay |
| Judgment Date | 27 March 2019 |
| Neutral Citation | [2019] EWHC 776 (Admlty) |
| Court | Queen's Bench Division (Admiralty) |
| Docket Number | Claim No. AD-2017-000157 |
| Date | 27 March 2019 |
[2019] EWHC 776 (Admlty)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Admiralty Registrar Jervis Kay QC
Claim No. AD-2017-000157
Appearances
For the Claimant – Tom Steward instructed by Ashfords Solicitors
For the Defendants – James Watthey instructed by Keoghs Solicicitors
Hearing dates: 11 th, 12 th, 13 th and 14 th December 2018
Introduction
The Claimant, Mr Elliot Lambert, seeks to recover damages due to a personal injury suffered while working onboard the Motor Fishing Vessel “REJOICE” (hereafter “the vessel” or “the boat”). Mr Lambert suffered a serious and unpleasant injury to his dominant left hand the effects of which are ongoing. He has claimed against the owners of the vessel, V J Glover Limited (the First Defendant), and the Skipper of the vessel at the material time, Mr Carl Snell (the Second Defendant, who also appears to be known as Mr Carl Friday). The Claimant seeks damages in a total sum claimed of £582,348.76 plus interest.
Background
Before the court were the statements of case, including a Part 18 Request, a report by Mr Andrew Murray Ian Watts, with an addendum, a report of Mr Standley, with an addendum, the Experts' Joint medical report, the first and second witness statements of Elliot Lambert, the witness statement of Hayley Ford, the witness statement of Adam Harper, the witness statement of Dominic Bates, the first and second witness statements of Carl Snell, the witness statement of Lance Glover and the witness statement of David Smith and a surveillance report.
The “REJOICE” is a ‘scalloper’ with a length overall of approximately 12 metres, a breadth of about 5.20 metres, a draft of about 2.7 metres, and a gross tonnage of 22.44mt.. She was built in Sunderland by Lonsdale Marine in 1989, and is powered by one Cummins engine through a single shaft and screw, generating a maximum sea speed of about 12 knots, though her engine has been permanently de-rated to 221.00kW. She is registered by the MCA with a Small Fishing Vessel Certificate, and is on the British Registry with an official number B1011 and port letter BH220.
Elliot Lambert is 35 years old and, at the material time he was working onboard as a deckhand. He was a share fisherman, that is one who is self employed and is paid a share of the profits of each fishing trip. He had previously worked on a variety of fishing boats before joining this vessel. He has all the requisite MCA and ‘Seafish’ qualifications, including attendances on First Aid, Sea Awareness and Sea Safety courses and, since the age of 18, has worked continuously in the fishing industry, primarily out of Brixham, Devon. Mr Steward described him as experienced.
On 6 th October 2016, the “REJOICE” was lying alongside in the ‘new fishing harbour’ within Brixham Harbour, Devon. She was moored starboard-side to a quay, with her bow pointing West to South-West. There were a number of other vessels moored in her vicinity. On the same day the vessel's skipper, Mr Snell, telephoned Mr Lambert and invited him to go fishing. Mr Lambert left home at around 1800 and went to the “REJOICE” that day. At that time, the weather conditions had been and were poor. It is said that there was an Easterly Gale and, by the Claimant, that there was a wave height of around 3 to 4 feet within the harbour with an underlying swell of a further 2 to 3 feet and that the Vessel was surging against the harbour wall by a vertical distance of at least 3 to 4 feet.
I have seen a plan of Brixham which indicates that there is long pier to the East which would protect the harbour from weather with an Easterly component. In the South East and Southern portion of the harbour there is a yacht marina with a wave barrier lying off it. The ‘new fishing harbour’ has been constructed in the South West corner of Brixham just to the North of the ‘inner Harbour’ which dries at low water. The entrance is close to the Western end of the marina's wave barrier. From the plan of the harbour the ‘new fishing harbour’ would appear to give reasonable shelter from all points and whilst I accept that the conditions in Brixham Harbour were rougher than usual and that the Vessel was moving relative to the quayside I suspect that the wave and swell heights given above are an overestimate.
It is the Claimant's case that the Vessel was moored solely by a single rope, for'ard and aft, and there were no fenders. The deck lighting was not switched on. In other words, she was poorly lit and inadequately secured. Mr Lambert's account is supported by the evidence of Mr Adam Harper, who was also present onboard that day. It is common ground that Mr Snell instructed Mr Lambert to clean the accommodation. This involved cleaning up some ‘protein powder’ which had apparently been spilled on the deck. The Claimant says that he began this work using a ‘hoover’ and that, when he asked Mr Snell where to dispose of the powder, Mr Snell instructed him to throw it overboard. Mr Lambert followed that instruction and threw it over the starboard side, away from the wind, with his left hand on top of the scallop dredge which, as can be seen in the photographs was stowed lying over the starboard bulwark or gunwale aft of the break in the forecastle in way of the after end of the wheelhouse and accommodation area.
It appears that in the course of doing this work Mr Lambert came out of the accommodation by the door in the bulkhead on the starboard side forward of the fishing deck and threw the unwanted protein over the starboard side. That would be over the starboard bulwark with the dredge lying over it. The Claimant had disposed of amounts of unwanted protein over the starboard side on a number of occasions and came out of the accommodation again to do so. In the course of doing so it is said that he placed his hand on top of the dredge preparatory to or whilst he was throwing the protein over the side and that his hand became caught between the dredge and a part of the quay or jetty alongside the vessel. Apparently the vessel was ranging or lifting at the time and his hand remained caught for some 4–5 seconds until she moved away from the quay once again. There is no doubt that the injury suffered was of a very unpleasant type and that the Claimant's use of his left hand has been substantially impaired. Mr Lambert suffered serious and lasting injuries to his left, and dominant hand. They have been described in the reports of Mr Watts and Mr Standley, the medical experts relied on by the Claimant and the Defendants respectively.
The Issues
The Claimant has put forward the following issues for consideration:
a. Whether the Defendants owed the Claimant a duty of care, and the scope of that duty;
b. Whether the Defendants breached that duty of care (and causation);
c. Quantum;
d. Whether the Claimant's claim is “ fundamentally dishonest” within the meaning of s. 57 of the Criminal Justice and Courts Act 2015. The issue is whether the Claimant has dishonestly sought to suborn the Second Defendant into giving false evidence in relation to these matters and whether the Claimant should therefore be prescribed from recovering by reason of s.57 of the Criminal Justice and Courts Act 2015.
The Claimant's case on liability
The essence of Mr Lambert's case is that his injuries arose in circumstances where he was acting under the instruction of the Second Defendant in circumstances where the Vessel was inadequately secured in the prevailing weather conditions.
With respect to the allegation that the Claimant acted dishonestly with respect to the various messages that were exchanged between himself and Mr Snell the Claimant has submitted that he was not asking Mr Snell to lie but was, on the contrary, requesting that Mr Snell tell the truth, for example that the Vessel was inadequately secured, however Mr Snell has preferred to protect his own position.
The Claimant has relied upon the oral evidence of his girl friend, Ms Hayley Ford who gave evidence as to the Claimant's mental state at the time when the exchange of messages took place and stated that Mr Lambert was in a “ real state,” and that she had to assist him with many tasks including sending messages on his behalf because he was not able to. The Claimant has also relied upon the evidence of Mr Adam Harper who was the third and last member of the crew to join the Vessel. Mr Harper confirmed that the weather conditions were poor which had led to him have serious reservations about ‘going onboard’. He said he wanted to help Mr Lambert. The Claimant relied upon Mr Harper for confirmation that: (i) Mr Snell instructed Mr Lambert to tidy up the spilled protein powder; (ii) Mr Snell instructed Mr Lambert to throw it overboard; (iii) the Vessel was inadequately secured with only one rope forward and one rope aft; (iv) there were no springs to prevent the Vessel from surging, and; (v) there were no fenders midships. The Claimant also sought to rely upon one Mr Dominic Bates, who was a chef in a restaurant in Brixham near to where the Vessel was moored to the effect that there were poor weather conditions on the relevant day and that the Vessel was not properly secured, unlike other vessels in the harbour.
The Defendants' case on liability
The Defendants contend:
a. That the vessel was properly moored by two ‘shore ropes’ and one spring line;
b. That the vessel did have sufficient fenders and the quay had sufficient fenders;
c. There was adequate light, the vessel had her decklights on and the quayside was lit;
d. Mr Snell did instruct the Claimant to clear up the accommodation area which included cleaning the ‘protein’ which spilt on the galley deck but: (i) Mr Snell did not order the Claimant to dispose of the...
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