McDermid v Nash Dredging & Reclamation Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL |
| Judgment Date | 16 April 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0416-1 |
| Docket Number | 86/0336 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 1986 |
[1986] EWCA Civ J0416-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE STAUGHTON)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Parker
Lord Justice Neill
86/0336
1977 M. No. 5001
MR WALTER AYLEN, Q.C., and MR D. MELVILLE (instructed by Messrs. Mackrell & Co.) appeared on behalf of the Appellants.
MR ALAN TYRRELL, Q.C., and MR R. SHAWCROSS (instructed by Messrs. Woodford Ackroyd, Solicitors, Southampton) appeared on behalf of the Respondent.
This is the judgment of the Court.
This is an appeal by Nash Dredging & Reclamation Co. Ltd. (Nash) against the decision of Staughton J. dated 25th July 1984, whereby Nash were ordered to pay to Mr Jamie McDermid (the plaintiff and the present respondent) the sum of £43,893 as damages for personal injuries suffered by the plaintiff as long ago as June 1975 while he was in the employment of Nash.
The main facts of the case can be stated quite shortly.
The plaintiff was born on 28th October 1956. He left school at 16 and obtained employment with a company in Southampton on a hydrofoil. In about 1974 he changed his employment and then worked with another local company as a deckhand, but after a few months he was declared redundant. In April 1975 be entered the employment of Nash as a deckhand. The plaintiff was then aged 18 1/2. For some weeks after he joined Nash the plaintiff worked at Plymouth, being engaged in dredging operations in Devonport docks.
In the course of this work the plaintiff gained some experience, when working on the self-propelled barges which were used in conjunction with the dredger, of coming alongside the dredger and tying up to it and of untying from the dredger when the barge was ready to sail with a load to the dumping grounds.
In June 1975, however, Nash offered the plaintiff the opportunity of going to work with a number of other Nash employees on a dredging contract which was being carried out by Nash and the parent company of Nash (Stevin Dredging BV (Stevin)), a company based in Holland.
The dredging operations were to be undertaken for the Swedish government in a fjord at Lulea in Sweden. The plaintiff accepted this opportunity and on 12th June 1975 he signed a document entitled "Memorandum of Agreement and Working Conditions concerning Lulea, Sweden contract". This Memorandum was later signed on behalf of Nash by Mr J.H. Gordon, the Managing Director.
The Memorandum contained the following relevant provisions:
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"1 Service
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1.1 The Employee shall safely comply with the lawful directions of the Company's representatives, and during the continuance of his employment by the Company shall not engage in any other trade or business or in any activity detrimental to the Company's interests.
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1.2 The Employee herewith declares that he is qualified and is capable of carrying out the duties of this appointment as a deckhand, and that he is free of any physical disability which would adversely affect the performance of these duties.
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2 Duration of Employment
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2.1 The employment shall commence on the day on which the Employee shall leave the UK.
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…………………………………………….
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2.3 It is expected that in October 1975 the works at Lulea will be discontinued for the winter months, in which case this contract for Sweden will terminate on arrival in the UK and after due leave entitlement has been taken. The Company reserves the right to recall the Employee earlier from Lulea if required.
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…………………………………………….
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4 System of Work
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4.1 The Employee will be required to be available for work if and when necessary. However, the aim is to work the dredging plant for 156 hours per week when the Employee will be required to work either seven 12 hour day shifts, or six 12 hour night shifts per week; alternate weeks day shifts and night shifts.
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………………………………………….."
The Memorandum further provided that the plaintiff's earnings under the contract would be "taxed as normal in England", and that Nash would provide living accommodation for the plaintiff.
On Monday 16th June 1975 the plaintiff flew to Sweden. About 100 people employed by Nash went with him. The operations at Lulea involved the dredging of a fjord. The dredger was moored offshore in the fjord, and the crews working on the dredger went out to it by tug. One of the tugs in use on the contract was the tug Ina, which belonged to Stevin. As the tug was operated on a 24-hour basis, two tug masters, working for 12-hour shifts each, were needed. The tug masters were Captain Sas, who was employed by Stevin, and Captain Clifford, who was employed by Nash.
In addition to taking crews out to the dredger, the tugs (which were push tugs) were employed, as their main task, in taking barges from the dredger out to the dumping ground.
After his arrival at Lulea, the plaintiff worked for about two days on the dredger, and he was then told to go to work with Captain Sas on the tug Ina.
The complement on board consisted of Captain Sas, the plaintiff as deckhand, and a greaser to look after the engines. The plaintiff worked on Ina for one or two shifts without incident, but early on 22nd June 1975, when the tug was about to leave the side of the dredger, he sustained the injuries which have given rise to these proceedings.
We can refer to the judgment of the learned Judge for his account of the relevant events (page 2D):
"The task of the plaintiff as deckhand was to keep the deck clean and tidy, and to see to the tying up and to the untying of the tug, whether alongside the dredger, or elsewhere. This involved two man-made fibre ropes, each l 1/2 inches in diameter, with an eye at one end. The eye of one rope would be placed over a bollard on the dredger, and then the rope would be secured to two bollards on the tug by two figure-of-eight turns and two half-hitches. The remainder of the rope would then be coiled on the deck of the tug inboard of the two bollards. The same process would be carried out for each rope, except that one was secured to the for'ard end of the tug and one to the aft end. To untie the ropes the plaintiff would first slacken the aft rope by removing it from the two bollards on the tug, next it would be removed from the bollard on the dredger, and the plaintiff would haul it aboard the tug. He would then do the same with the for'ard rope. Finally, he would give two knocks on the side of the wheelhouse to indicate to Captain Sas that the ropes were both on board.
On the 22nd June 1975, when the plaintiff had been working on the tug for two days, the tug was tied up to the dredger, and the time came when she was to leave. Captain Sas, who did not speak much English, signed to the plaintiff to untie the ropes. The plaintiff took the aft rope off first as the tug was leaving with engine astern. He then moved to the for'ard rope and started removing it from the two bollards on board the tug. As he was doing so, Captain Sas put the engine astern prematurely; he started to move the tug away from the dredger. The plaintiff immediately stood back as he thought that the rope might break and injure him, but instead it was pulled through the bollard and he went with it. He has some recollection of the rope being round his left leg and of being pulled through the bollard. After that he was in the water, with his left leg very seriously injured."
The plaintiff's injuries proved to be very serious indeed, and it became necessary for his left leg to be amputated above the knee. On 23rd October 1976 his employment with Nash came to an end and thereafter he had great difficulty in obtaining work. In addition, the sporting activities which he had previously enjoyed were no longer open to him.
On 17th November 1977 a writ was issued on the plaintiff's behalf. Only Nash were named as defendants. No proceedings were brought against Captain Sas's employers, Stevin, because of the difficulties of effecting service on a company registered in Holland in respect of a claim in tort arising in Swedish territorial waters, and also because of what I understand to be the practice of the legal aid authorities to decline to support an action against a foreign defendant in respect of a foreign tort.
At the trial in July 1984, the Judge held that the plaintiff's accident was wholly caused by the negligence of Captain Sas. The Judge continued (page 5A):
"That" (the negligence) "may have taken the form of carelessness in not waiting for the plaintiff's signal before putting the engine astern, or else a deliberate, but dangerous, manoeuvre designed to encourage the plaintiff to perform his tasks more quickly. The plea of contributory negligence was abandoned on behalf of the defendants".
Against the finding that Captain Sas was negligent and that his negligence caused the plaintiff's injuries, there has been no appeal. The question at issue in this Court, which was also in issue before the Judge, was whether any legal liability attached to Nash. There was also a subsidiary issue concerning the effect, if any, of Section 503 of the Merchant Shipping Act, 1894 (the 1894 Act) on the quantum of damages.
We turn to consider the first and main question.
The liability of Nash:
The Judge rejected three of the submissions which were put forward on behalf of the plaintiff. Thus he held that neither the system of work nor the place of work was unsafe and in addition he rejected the allegation that Nash had failed to provide adequate supervision and instruction.
Nevertheless, the Judge decided the issue of liability in favour of the...
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