Marian Davis (Widow and Administratrix of the Estate of Michael Davis deceased) and Stena Line Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Forbes |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] EWHC 420 (QB) |
| Docket Number | Case No: HQ03X01321 |
| Date | 17 March 2005 |
| Court | Queen's Bench Division |
[2005] EWHC 420 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Honourable Mr Justice Forbes
Case No: HQ03X01321
simon Kverndal Q.C. and John Russell (instructed by Holmes Hardingham) for the Claimant
Michael Tillett Q.C. and Derek O'Sullivan (instructed by Eversheds LLP) for the Defendant
Hearing dates: 15th, 16th, 17th, 18th, 19th, 22nd, 23rd, 24th, 25th, 26th, 29th and 30th November and 3rd December 2004
Judgment Approved
by the court for handing down
Introduction. This is a claim brought under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. At this stage, the proceedings are concerned only with liability. The Claimant ("Mrs Davis") is the widow of the deceased, Michael Davis ("Mr Davis") and she brings this action against the Defendant (Stena") for the benefit of Mr Davis' dependants and estate. Stena is and was at all material times the owner and operator of the "Koningin Beatrix", a "roll-on roll-off" ferry that, at all material times, plied the southern Irish Sea route between Rosslare in the Irish Republic and Fishguard in Wales. The case is concerned with the circumstances of Mr Davis' death by drowning, having gone overboard from the Koningin Beatrix on the morning of the 29th October 2000.
The Main Relevant Legal Principles. Travel by ferry from the Republic of Ireland to the United Kingdom is governed by the Athens Convention ("the Convention"), as set out in Schedule 6 to the Merchant Shipping Act 1995. So far as material, Article 1(8) of the Convention provides as follows:
""carriage" covers the following periods
(a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation …"
Article 3 of the Convention deals with the liability of the carrier and provides as follows:
"1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger … if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.
The burden of proving that the incident which caused the loss or damage occurred in the course of carriage, and the extent of the loss or damage, shall lie with the claimant.
Fault or neglect of the carrier … shall be presumed [in circumstances that do not apply in this case]. In all other cases the burden of proving fault or neglect shall lie with the claimant."
Notwithstanding the fact that Mr Davis was in the sea, rather than on board the Koningin Beatrix, when he met his death, it is now common ground and the parties are agreed that he died during the course of carriage within the meaning of the Convention and that the Convention therefore applies: see paragraph 10 of the Defence and the following passage from a letter dated 19th October 2004, addressed to Stena's solicitors and written by Holmes Hardingham, the solicitors acting on behalf of Mrs Davis:
"We have reviewed the applicability of the Athens Convention. We have instructions to confirm that our client admits and agrees the contention in paragraph 10 of your Defence, that notwithstanding that Mr Davis died in the sea, it was still the case that his death occurred during the course of carriage within the meaning of the Convention.
In the premises we confirm that our client's claim is pursued under article 3 of the Convention, and is subject to the provisions of the Convention, and that, accordingly, your client will be entitled to limit its liability pursuant to Article 7."
Accordingly, it was the submission of Mr Kverndal QC on behalf of Mrs Davis that the relevant liability regime to be applied in this case is that set out in Article 3 of the Convention, i.e. that the burden is on the claimant to prove (i) that there was an "incident" that caused Mr Davis' death and (ii) that the incident was due to the fault or neglect of Stena or of its servants or agents.
However, it is also common ground that, in the circumstances of this case, the liability regime under Article 3 of the Convention is, to all intents, the same as common law negligence. Furthermore, on behalf of Stena, Mr Tillett QC conceded that, having been informed that a man had gone overboard, Stena owed him a duty of care to take reasonable steps to locate and rescue him. As a matter of convenience, therefore, I will deal with the issue of liability in this case by reference to negligence, rather than the expression "fault or neglect" that is used in Article 3 of the Convention.
Article 6 of the Convention makes provision for contributory negligence, as follows:
"If the carrier proves that the death or personal injury to a passenger … was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court."
In paragraph 12 of its Defence, Stena assert that Mr Davis must have been acting deliberately, recklessly or negligently when he went overboard and that the claimed loss and damage was therefore wholly caused or contributed to by Mr Davis' own negligence. It was Mr Kverndal's uncontroversial submission that it is clear from the wording of Article 6 that the burden of proving contributory negligence is on Stena, just as it would be at common law. Mr Kverndal stressed (correctly, in my view) that, in this particular case, this meant that Stena is required to establish, on the balance of probabilities, some negligent act or omission on Mr Davis' part. Mr Kverndal submitted that it is not enough for Stena to say, in effect, "Well, he must have done something which was reckless or negligent, but we cannot say with any degree of particularity what it was."
As to what is meant by negligence in a case such as the present (which involves the alleged breach of the duty of care owed to Mr Davis by the owner and operator of a sea-going passenger ferry, its professional Master and crew), it is also common ground that the appropriate starting point for deciding whether Mr Davis' death was caused by the negligence of Stena, its servants or agents is McNair J's well-known direction to the jury in Bolam~v~ Friern Hospital Management Committee (1957) 1 WLR 582, at page 586:
"…I must tell you what in law we mean by "negligence." In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been some negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".
By way of further elaboration of the standard of skill and care to be exercised by a member of a professional calling, it seems to me that the judgment of Phillips J (as he then was) in Deeny ~v~ Gooda Walker Ltd (1996) L.R.L.R. 183 is particularly helpful: see the following passage at page 207:
"In his opening submissions, Mr Eder advanced the following principles which he contended applied in the present case:
(1) The standard of skill and care to be exercised by a member of a professional calling is the degree of skill and care ordinarily exercised by reasonably competent members of that profession or calling.
(2) The existence of a common practice over an extended period of time by persons habitually engaged in particular business is strong evidence of what constitutes the exercise of reasonable skill and care.
(3) In situations which call for the exercise of judgment, the fact that, in retrospect, the choice actually made can be shown to have turned out badly is not of itself proof of a failure to meet the necessary standard of care.
(4) The plaintiffs cannot show a failure to meet the required standard of skill and care unless the error on the part of the underwriter was such that (no) reasonably well informed and competent member of the profession or calling could have made it.
I accept each of these propositions. They merit, however a degree of elaboration. The first proposition does not remove from the Judge the determination of the standard of skill and care that ought properly to be demonstrated. As the authors of Jackson and Powell on Professional Negligence point out at p. 39:
It is for the Court to decide what is meant by "reasonably competent" members of the profession. They may or may not be equated with practitioners of average competence … Suppose a profession collectively adopts extremely lax standards in some aspect of its work. The Court does not regard itself as bound by those standards and will not acquit practitioners of...
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