Grant v Sun Shipping Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Uthwatt,Lord du Parcq:,Lord Oaksey |
| Judgment Date | 23 June 1948 |
| Judgment citation (vLex) | [1948] UKHL J0623-3 |
| Date | 23 June 1948 |
| Court | House of Lords |
[1948] UKHL J0623-3
Lord Porter
Lord Uthwatt
Lord du Parcq
Lord Oaksey
House of Lords
After hearing Counsel, as well on Tuesday the 2d, as on Thursday the 4th, Friday the 5th, Monday the 8th and Tuesday the 9th, days of March last, upon the Petition and Appeal of Robert Grant, residing at 67 Elliot Street, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 1st of November 1946, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of The Sun Shipping Company Limited; and also upon the printed Case of Alexander Stephen and Sons Limited, 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 His Majesty the King assembled, That the said Interlocutor of the 1st day of November 1946, complained of in the said Appeal, be, and the same is hereby, Recalled: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment, and to grant Decree for payment by the Respondents to the Appellant of eight hundred pounds (£800), the Respondents, as between themselves, being responsible for the payment of the said sum of eight hundred pounds, as to seventy-five per cent. of the said sum by the Second Respondents, and as to twenty-five per cent. of the said sum by the First Respondents: And it is further Ordered, That the First Respondents The Sun Shipping Company Limited do pay, or cause to be paid, to the said Appellant one-quarter of the Costs of the Action in the Court of Session and also one-quarter of the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Second Respondents Alexander Stephen and Sons Limited do pay, or cause to be paid, to the said Appellant three-quarters of the Costs of the Action in the Court of Session and also three-quarters of the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
I have had the opportunity of reading the opinion to be delivered by Lord du Parcq and agree with him in thinking that this appeal should be allowed.
Prima facie the question whether a pursuer or defender was negligent or not is a matter for the judge who tries the case, or the jury, if there be one, provided of course that there is some evidence of negligence.
In the present case however the matter is a little complicated owing to the fact that the Lord Ordinary did not see the whole of the witnesses and in particular did not preside when the pursuer was examined.
No doubt this circumstance was unavoidable, but it is unfortunate, as it left him with little better material for judgment than that possessed by an Appellate Court and compels your Lordships' House, as I think it compelled the Second Division to treat the decision and its ground somewhat more critically than would normally be necessary.
The essential facts can, I think, be presented in a short form. The pursuer and his mates were engaged in rolling heavy oil drums along the starboard alleyway of the 'tween deck from No. 3 to No. 1 hatch, passing No. 2 hatch on the way. That alleyway is about 18 feet broad and was lighted by three lights, two being on the starboard side and one on the port. The two on the starboard side however were screened so that they shone up and down the track of the alleyway and lighted it but did not light the No. 2 hatch or its coaming at all or at any rate only to a very limited extent. The port light on the other hand shone across the tween deck and lit up the hatchway and its coamings.
Apart from these lights the forward part of the tween deck was in darkness as, though the hatch covers in the upper deck had been removed in the case of No. 3 hatch, they were still in position in the case of Nos. 1 and 2.
On the morning of the accident the employee's of the second defenders were engaged in fixing additional supports to the tween deck at No. 2 hatch and for this purpose had rigged up a simple platform consisting of a plank or two supported by wires attached to the upper deck and passing through the tween deck hatchway so as to suspend the platform at such a depth as to bring the workmen's eyes about level with the hatchway itself. At the same time the pursuer and his mates were rolling the drums of oil past the spot where this work was being carried on.
At the dinner hour the stevedores knocked off work first, leaving the repairers still at work and having no information as to when that work would be likely to be finished. Before they left however they heard the third officer tell the second defenders' men to see that everything was secure and the hatches on, before they knocked off. The pursuer and his fellows returned about 1 o'clock and at that time in fact the second defenders' employees had left the ship, taking all their gear with them. They asserted that they had replaced the covers upon the hatch at which they had been working, but the Lord Ordinary who saw these witnesses disbelieved them. As at least as many and probably more of the covers were off at this time and as there is no reason to suppose that anyone was in that neighbourhood or would have had any reason to open up the hatch it is difficult to see how otherwise the hatch could have been left uncovered.
The other change which had taken place in the tween deck during the pursuer's absence was that the cluster of lights which had been fastened to the upper deck on the port side and lighted the hatch and its coamings, had been taken down and lay on the tween deck or in a barrow, with its light obscured. The Lord Ordinary as I understand drew the con-conclusion that the second defenders' men took down that cluster in order that by turning up its light towards the upper deck they might see to detach the wires supporting the cradle. At any rate those wires and the cradle were gone and the inference is almost inevitable that the light was removed for this purpose.
The pursuer and his mates having returned after the dinner hour the pursuer himself was the first to resume the work up the alleyway which was well lit by the screened lights and he did not notice the absence of the port light. The repairers however had gone and he did not see the wires which had previously supported the cradle, though it may be that he did not consciously notice their absence. When however he had rolled his first drum up to and alongside No. 2 hatch, he found himself in semi-darkness, shouted to his fellows not to come forward and then looking round observed the missing light lying on the deck or on a barrow apparently below or almost below the position in which it had been slung. Thereupon without any thought of danger he stepped on the unlit open hatch and fell into the hold below, seriously injuring himself. For this injury he claims damages and in doing so confronts your Lordships with three questions.
(1) were the first defenders negligent;
(2) were the second defenders negligent; and
(3) was he himself guilty of contributory negligence, a circumstance which in the then state of the law would deprive him of all right of recovery.
My Lords, all those who have dealt with the case in the Scottish Courts have, I think, come to the conclusion that both the defenders were negligent though the Lord Ordinary came to the conclusion that the second defenders' negligence was not a cause of the accident. That the second defenders were negligent seems to me to be incontrovertible. Lord du Parcq has set out the relevant regulations, referring in particular to Regulation 45 which prohibits the removal of any hatch cover or lights save when authorized or in case of necessity and ends with the words, "If removed, such things shall be restored at the end of the period during which their removal was necessary by the persons last engaged in the work that necessitated such removal." But indeed unless there was some provision to the contrary I should consider that even in the absence of regulations workmen who had been working on a hatch on which a light was shining and knew that stevedores had been working in the neighbourhood and would return and yet left the hatch covers off and removed the light were plainly guilty of negligence at common law none the less so when it is remembered that they had been specially reminded of their duty by the third officer.
Whether the first defenders were guilty of negligence appears to me to be a much more difficult question, and I am not sure that, if left to myself, I should have found them guilty either of negligence or of breach of statutory duty. But those of your Lordships who agree with me in thinking that the appeal should be allowed think that some though not a large measure of blame for the accident...
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