Hopkinson v Ministry of Defence

Hearing dates: 10, 11 and 12 March 2008

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic

Michael Harvey QC :

On 22 ^nd January 1999 the claimant, Mr Hopkinson, was involved in an accident at sea. He was then aged 43 years and was serving as an able seaman aboard the research vessel Colonel Templer (the Templer). On the day in question the vessel was at anchor in the Inner Sound, of the west coast of Scotland. Another vessel, the RMAS Dunster, was manoeuvring to come alongside. Mr Hopkinson was standing on the embarkation deck. The Dunster struck the Templer with such force as to cause a horizontal part of the Templer's guard rail to break away from its fixings and to strike the claimant on his lower legs. He suffered open comminuted fractures to the upper half of both left and right tibias as well as a fracture of the neck of his right fibula.

Liability has been admitted. At the time of the accident the Dunster was owned by the Ministry of Defence ( MOD, the first defendants). The Templer was also owned by the Ministry of Defence but was operated by VT Services Ltd (the second defendants) who were the claimant's employers. It has been agreed that liability should be borne by the first defendants as to 85% and by the second defendants as to 15%, and a consent order to this effect was made in the Admiralty Court by David Steel J on 31 ^st August 2001.

I am now required to assess the damages payable to the claimant.

Following the accident the claimant was evacuated from the Templer by helicopter and taken to hospital in Stornoway where he underwent operations. An external fixation was applied to his left leg and his right leg was fixed with a plate and screws. He was subsequently airlifted to the Royal Naval Hospital at Haslar and later transferred to Southampton General Hospital. Unfortunately his medical recovery was slow and complicated. By the time of his first examination by Mr Briggs, a consultant surgeon, on 20 ^th January 2003, four years after the accident, he had had no less than 20 operations. The main problem at that time was that his right tibia, which had previously become infected, had still not united. Attempts to achieve union with an Ilizarov frame and nail had all failed. Although he was able to weight bear with an external support on his right leg and using a crutch on the left he found it difficult to walk any distance, and there was discomfort at the fracture site.

In September 2003 he underwent a bone graft to his right tibia, with bone being harvested from his left iliac crest. When next seen by Mr Briggs on 9 ^th February 2004 there was still concern about whether full union of his right tibia would be achieved. He was, however, weight bearing with a crutch which he held in his left hand and he was able to walk a reasonable distance with the crutch. His left lower leg showed a significant varus deformity of the tibia, and Mr Briggs was of the view that the claimant now had an increased risk of developing degenerative arthritis in the left ankle and the medial compartment of the left knee.

On 28 ^th July 2004 the claimant underwent a further operation to his right leg – on operation for the insertion of an intramedullary nail. Union of the tibia was finally achieved and on 9 ^th January 2006 the claimant was informed by his surgeon, Mr Bowyer, that no further surgical procedures were required.

The claimant was last examined by Mr Briggs on 8 ^th February 2007. His right leg had improved but it still remained painful at times. Mr Briggs recorded that the leg gets stiff, and that “if he goes for a long walk he still uses a crutch which he holds in his left hand”. In Mr Brigg's opinion the claimant was left with ongoing pain in his right leg and some discomfort walking long distances around the left knee. He remained of the opinion that because of the varus deformity affecting the left leg the claimant had an increased risk of developing degenerative arthritis in the left ankle and the medial compartment of the left knee, and that this would probably develop over the next twenty/twenty five years. As regards his employability Mr Briggs was of the view that he would never be able to return to sea as a merchant seaman. However, he thought that he could work in a sedentary occupation. He considered that he could sit at a desk and do sedentary work that did not include heavy lifting or walking long distances. He summarised his opinion by saying that he thought that any job that did not involve a lot of heavy lifting or a lot of walking would be possible.

Loss of Earnings

The claimant claims damages for both past loss of earnings and future loss of earnings. Both heads of claim involve a consideration of (a) his earning capacity if the accident had not occurred (b) his residual earning capacity. In relation to past losses the defendants contend that the claimant had the ability to undertake sedentary type work from, at latest, the autumn of 2005, and that he should reasonably have found and undertaken such work from about March 2006.

I start by considering part (a) of the exercise, namely the claimant's earning capacity if the accident had not occurred. At the time of the accident he was employed by the second defendants as an able seaman on the Templer. His contract was an “all sea” contract, which meant that he had undertaken to serve for the whole time that the Templer was at sea. This is to be contrasted with “two on one off” type of contract where an employee had one week off for each two weeks worked. He had started on the Templer on 1 ^st May 1997 and it is agreed that his gross pay at the time of the accident was £17,600 pa. His case, in broad terms, is that if the accident had not occurred he would have remained in this or similar work until his retirement at age 65 in 2020. Alternatively, it is contended that even if he had been obliged to work on land the earnings would have been of almost the same order.

He points out that the sea had been his life. He had joined the Royal Navy on leaving school at the age of 16 having previously been in the sea cadets. He served in the Royal Navy for about 24 years, being discharged in 1995 with an assessment “vg superior”. During this time he saw service in numerous ships, as well has having some postings ashore.

The defendants however, draw attention to the fact that he had some difficulties in finding employment at sea following his discharge from the Royal Navy in 1995, and contend that he would have had continuing difficulties. The evidence of his work between 1995 and joining the Templer on 1 ^st May 1997 is not very clear, and I have not seen any relevant documents. The claimant's evidence is that there was a short time when he received Job Seekers Allowance, but that he then had the following employments;

(1) Working as a MOD security guard at HMS Daedalus on a temporary contract lasting approximately nine months,

(2) Working as a seaman on the Wightlink ferries across the Solent for approximately six months,

(3) Short term work for Sunsail as a yacht skipper/instructor in the Solent area,

(4) Occasional work for Vosper Thorneycroft taking new warships on sea trials.

It was the latter work which led to his employment by their sister company, the second defendants, on Templer.

The defendants have also referred to the fact that the claimant did not achieve any promotion beyond able seaman during his long service with the Royal Navy. Mr Rollings an employment consultant called by the defendants, has told me that only 1.5% of men leaving the Royal Navy having served a full engagement were at the lowest rating, and that this included the claimant.

The claimant has pointed out that during his service on Templer he acquired several “tickets” which would enable him to advance in the merchant navy, notable “Efficient Deck Hand”, “Proficiency in Survival Craft”, and “Fast Rescue Craft Coxswain”.

Issues relating to the Templer and the Triton

There are three sub issues which I must determine. First, there is an issue as to whether the claimant would have lost his employment on Templer in June 1999 when the second defendants' contract with the MOD was terminated, and another company Serco was engaged to operate the vessel. The claimant contends that he would have remained on the Templer because his contract of employment would have been transferred to Serco pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981 (the TUPE Regulations). This is disputed by the defendants.

Second, there is an issue whether, if the claimant had remained on the Templer after June 1999, he would, nevertheless, have lost this employment in September 2000 when the work performed by the Templer was then undertaken by another vessel, Triton. The claimant's case is that he, along with the rest of the crew, would have transferred to Triton. The defendants dispute this. There is, however, no dispute that if he had transferred to Triton that employment would have ended on 31 ^st March 2004 when the vessel was sold to new owners for use in a different business.

Third, there is an issue whether any such earnings whilst working on Templer or Triton would have been received tax free because, in broad...