Joseph Watt West V. Castlehill Llp And Others
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2008] CSOH 182 |
| Court | Court of Session |
| Date | 22 December 2008 |
| Published date | 22 December 2008 |
| Docket Number | PD1767/06 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH | |
| PD1767/06 | OPINION OF LORD BRODIE in the cause JOSEPH WATT WEST Pursuer; against CASTLEHILL LLP and OTHERS Defenders: ________________ |
Pursuer: McColl; Beveridge & Kellas
First & Second Defenders: Malcolm Scott Q.C.; Mackinnons;
Second Third Party: Laurence Murphy Q.C., .; HBM Sayers
22 December 2008
Introduction
[1] This is an action for damages for personal injury to which Chapter 43 of the Rules of Court applies. The pursuer sues in respect of injury that he sustained on 7 October 2003 when working as a deckhand on board the fishing vessel the Resolute which was being unloaded at the pier at Fraserburgh. The first defenders are the owners and operators of the Resolute. The second defender was the skipper at the material time. The first third party is one Arthur Eddie. He was the owner of what I was led to understand was a trailer with a cylindrical tank mounted on it which, when hauled by a tractor unit, was used for the transport of fish. This is variously referred to in the pleadings as a "tank on a lorry", a "tanker", a "trailer", and a "lorry". I shall refer to it as "the tanker". There is no description of the tanker in the pleadings but I understood that on top it had a walkway along all or part of its length which gave access to a hatch with a hinged door. The hatch opened to give access to the interior of the cylindrical tank allowing it to be loaded with fish. There were no guardrails on either side of the walkway. The first third party had been sequestrated in 2000, did not trade as a business and had no third party insurance. The second third party is United Fish Products Limited. It operates a fish processing factory.
[2] The pursuer avers that an accident occurred when the Resolute was about to unload its catch of fish at the pier. The fish were to be unloaded from the vessel using a chute from the "separator" which contained the catch, into the tanker. It was very windy. The pursuer climbed on to the top of the tanker and opened the hatch door. He reached for the rope of the chute to guide it to the hatch. As he did so the hatch door fell and hit him and he fell from the top of the tanker, a distance of about 15 feet, and landed on the concrete dockside, thereby sustaining injury. The pursuer avers that the accident was caused by fault and negligence on the part of the first and second defenders and their breach of Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998, Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992 and Regulation 5 and 6 of the Loading and Unloading of Fishing Vessels Regulations 1988.
[3] The action came before me on the Procedure Roll on the motion of the second third party to refuse to remit to probation the defenders' averments, insofar as directed against the second third party, and to dismiss the action insofar as directed against the second third party. Miss McColl appeared for the pursuer but, as the issue did not concern the pursuer, who had no case against the second third party, she asked and was granted leave to withdraw. Mr Malcolm Scott, Q.C., appeared on behalf of the defenders. There was no appearance for the first third party. Mr Laurence Murphy, Q.C., appeared on behalf of the second third party.
Submissions
The second third party
[4] Mr Murphy explained that it would be his submission that such cases as were made against the second third party by the defenders, whether on the basis of relief, contribution, apportionment or reimbursement, were not supported by sufficient relevant and specific averments. He submitted that insofar as the defenders rely on a contract between them and the third party, they do not relevantly and specifically aver the nature of the contract or its terms and conditions. Insofar as the defenders rely on a delictual duty of care based on an assumption of responsibility, there were no relevant and specific averments of special knowledge, special relationship representation or actual reliance. Moreover, there were no relevant and specific averments as to: (1) why any independent contractor, and in particular the first third party, was to be viewed as "incompetent", (2) how such independent contractor had been selected and employed by the second third party, or in what respect there had been failure in reasonable care in such selection or what would have occurred had reasonable care been exercised, (3) how any employee for whom the second and third parties party was vicariously liable breached any obligation to the defenders in the absence of averment as to what instructions were given or ought to have been given to an independent contractor or agent by such employee and (4) how the second third party falls to be found vicariously liable for an independent contractor in the absence of averment of either control by the second third party of that independent contractor or of exceptional circumstances apt to lead to the conclusion that an exception to the general rule that an employer was not liable for an independent contractor applied, for example, an unlawful act authorised by the employer, a non-delegable personal duty or hazardous work or operations. Mr Murphy went on to ask what he described as a rhetorical question: on the defenders' averments what is it that they undertake to prove as to who it was who actually uplifted the fish at the pier? He asked that the Court court should bear in mind that the second third party operated a fish processing factory located far from the quayside. They were not road hauliers. They did not own any piece of equipment which was at the pier. They did not control anyone at the pier and none of their employees was present at the pier.
[5] Mr Murphy then turned to the pleadings with a view to identifying what it was the defenders admitted and offered to prove. As appeared from page 13 of the Record, the defenders averred that the second third party contracted with the first defenders "to take a share of the Resolute's catch from 7 October 2003". The defenders accepted that the second third party owned neither the tractor unit nor the tanker. They admitted that Philip Eddie (the son of the first third party) rendered an invoice to the second third party in respect of the collection of fish from the Resolute on the day of the accident. They accepted that none of the second third party's employees were present at the pier. At page 14 of the Record the defenders averred that:
"....under the contract between the first defenders and the second third party, the second third party were to collect the fish from the quayside at Fraserburgh. That involved the supply of a tank, on which the first defender's employees would have to work, by the second third party to enable the fish to be unloaded. In these circumstances, the second third party ought to have supplied a tank upon which it was safe for persons such as the pursuer who required to work on it to unload the fish. Without fences and latches as condescended by the pursuer, it was unsafe. In entering the said arrangement, the second third party assumed responsibility for the supply of a suitable tank. They ought to either themselves have supplied such a tank or ensured that others engaged by them did so".
The defenders then went on to admit that the first third party traded as Arthur Eddie Transport, operating a haulage business and that his principal business was the delivery of fish. At page 15C to D of the Record, the defenders accept that the driver of the tractor unit was John Ritchie who was an employee of Turriff Transport Consultants Limited. At page 17A to C the defenders aver that it was the responsibility of the driver of the tractor unit to open the hatch and secure it. They aver that the provision and management of the tanker and the management of the driver, Ritchie, were all the responsibility of the first third party. At page 18D the defenders aver that the first third party acted on the instruction of the second third party's employee, Andrew Noble, for whose acts and omissions the second third party are vicariously liable, but, Mr Murphy reminded me, the general rule was that an employer will not be found liable for an independent contractor unless in exceptional circumstances and here there were no averments of exceptional circumstances. At page 19D the defenders aver that the first third party was neither suitable nor competent but no specification was given of that other than the facts that he had been sequestrated in 2000, that he did not trade as a business and that he had no third party insurance. In any event, these averments were meaningless unless it was being said that there was a duty on the part of Noble to make inquiry, it not being said that he was aware of these facts. At page 20A the defenders averred that in the event of the second third party engaging subcontractors or agents to perform its obligations, there is an implied condition of contract between the first defenders and the second third party that they should take reasonable care to engage competent and reputable subcontractors or agents. These averments, said Mr Murphy, were fine as far as they went but they did not go far enough. There was a need to aver what inquiries should have been made by the second third party in respect of the first third party and if these inquiries had been made what would have been the result. It was to be remembered that employing an incompetent contractor is not necessarily the same as negligently employing an incompetent contractor. Whereas the defenders aver at page 31C of the Record that Andrew Noble engaged the first third party to uplift the fish, and that the first third party was not a suitable or competent person to carry out that task, the defenders do not offer to prove that it was in fact the first third party who did uplift fish. The defenders' position as set out at page 31D of the...
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