Jordan v Court Line
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1946 |
| Date | 25 October 1946 |
| Docket Number | No. 5. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Birnam.
Evidence—Functions of Judge—Opinion of Judge who heard witnesses—Duty of appellate Court—Pursuer's evidence corroborated by four witnesses—Judge stating that there was no satisfactory proof and no evidence for pursuer's case—No comment on credibility—Negligence.
The foreman of a squad of dockers brought an action of damages against the owners of a ship for injuries which he had sustained through falling from a sloping gangway, leading from the ship to the dock, which was being put into position. His evidence, which was supported by that of four members of his squad, was that he had mounted the gangway, which was not yet secured but still suspended by the ship's derrick, and that, when he was near the top, an officer shouted to him to go down and, without giving him time to do so, ordered the gangway to be lowered. The sudden movement caused the pursuer to fall heavily to the quay. The ship's officer denied having given any such order, and two riggers, who had been on board close to him, said they heard no order. The Lord Ordinary, in assoilzieing the defenders, said in his opinion that there was "no satisfactory proof that such an order was given," and that there was "no evidence that such an order was received or acted upon." He made no comments on the credibility of the pursuer or of his witnesses.
Held (rev. judgment of Lord Birnam), on a consideration of the whole evidence, that the pursuer had proved his case, and that there had been negligence on the part of the ship's officer for which the defenders were responsible; and damagesawarded.
Observed, per Lord Moncrieff, that, if witnesses were to be presented to a Court of review by a Judge of first instance as being unworthy of credit, this should always be done unambiguously, and that it was desirable that reasons for so doing should be given.
Allan Jordan brought an action against the Court Line, Limited, for damages in respect of injuries which he had sustained while employed as foreman of a squad of dockers who were about to unload a vessel belonging to the defenders in Rothesay Dock, Glasgow.
The parties averred, inter alia:—(Cond. 2) "On or about 26th July 1944 at about 6.30 p.m. the pursuer was in the employment of Honeyman & Company, stevedores, Glasgow, as foreman of a squad of dock labourers about to proceed with the unloading of the s.s. “Sinnington Court” which had just berthed at Berth 11, Rothesay Dock, Glasgow. The pursuer was on the quay with his squad. When the ship had made fast, some of the defenders' servants, acting in the course of their employment, viz., one of the ship's officers and some of the ship's crew or riggers, put out the ship's gangway. The gangway was intended to run fore and aft the ship, so that one of its sides should be close to the ship, running aslant her side from the breast of the quay up to the level of her decks. The gangway was fitted with stanchions but the hand-rope running through them had not been made taut. The foot of the gangway had touched the breast of the quay and its upper part was suspended from the ship's derrick. One of the ship's crew or riggers then descended the gangway and was assisted by the dockers in setting the foot of the gangway correctly on the breast of the quay. As the said member of the ship's crew or riggers returned to the ship the pursuer followed him up the gangway in order to see to the unloading tackle. The defenders' servant, the ship's officer in charge of the gangway, seeing the pursuer making his way up the gangway shouted to him to come off. At the same time, without allowing the pursuer, who had almost reached the top, time to obey his orders or to reach the quay, he gave orders to lower the gangway, which instructions were immediately obeyed with the result that the pursuer lost his balance and was thrown on to the quay, sustaining the injuries hereinafter condescended on. With regard to the defenders' averments in answer it is admitted that the gangway was put out in a fore and aft position near the bunker hatch. The defenders' averments in answer so far as not coinciding herewith are denied." (Ans. 2) "Admitted that at or about 6.30 p.m. on 26th July 1944 the s.s. “Sinnington Court” was lying at No. 11 Berth, Rothesay Dock, Glasgow. Admitted that the pursuer fell on to the quay. Quoad ultra denied. Explained and averred that shortly before the accident to the pursuer the said vessel arrived at said quay and was berthed there. As soon as the vessel was secured steps were taken by those in charge of the vessel to put out the gangway. The said gangway, which belongs to the ship and which is put out in a fore and aft position, was lying athwartships on No. 3 bunker hatch. It was picked up by the derrick on a single wire and slung over the side of the ship. The bottom end of the gangway was allowed to land on the quay and the gangway was then manœvred with the help of the derrick into a position from which it could be drawn in and eventually made fast to the ship. The ship's crew in accordance with the usual practice then proceeded to attach a bridle to the top end of the gangway. While the crew were proceeding to fix on the bridle, a number of dockers (including the pursuer) who were on the quay and who were waiting to board the said ship approached the foot of the gangway apparently with the intention of boarding the ship. At this time the gangway was still swinging from the derrick and it had not been drawn into or secured to the ship's side and the ropes which formed railings on either side of the gangway had not yet been tightened up. On seeing the said dockers approaching the gangway the ship's third officer, who was in charge of the operation of putting out the gangway, and others on board shouted to the dockers to stand clear until the gangway was made fast. All the dockers except the pursuer did stand clear, but the pursuer climbed on to the gangway from the outside. The third officer again shouted to the pursuer to stand clear until the gangway was made fast, but the pursuer paid no attention and proceeded to climb up the gangway. When the pursuer was about three-quarters way up the gangway he lost his balance and fell off the gangway on the side of the gangway between the gangway and the ship. At the time the pursuer climbed on to the gangway and while he was climbing up the gangway the gangway (as the pursuer was well aware) was not in a position in which it could be safely used as an access to the ship. It was not drawn into the ship's side; it was not secured to the ship; the side ropes were not taut and it was swinging on the fall from the derrick, particularly while the pursuer was climbing up it." (Cond. 3) "The accident and injury to the pursuer were entirely caused through the fault and negligence of the defenders' said servant the ship's officer in charge of the gangway who was acting within the scope of his employment with the defenders and for whose actings the defenders were responsible. The defenders' servant knew that the pursuer was on the gangway and he knew or ought to have known that to lower the gangway with the pursuer in that position was likely to throw him off his balance. It was his duty to refrain from causing the gangway to be lowered while the pursuer was on it and to allow the pursuer to board the said ship or alternatively to allow sufficient time to enable him to reach the quay in safety before giving orders to the crew to lower the said gangway. In these duties the defenders' said servant culpably failed and so caused the said accident. He caused the gangway to be lowered when he knew the pursuer was on it and when he should have foreseen that the lowering was likely to imperil the pursuer's safety. He thus caused injury to the pursuer in the manner condescended on. Had the defenders' servant performed his...
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