McDermid v Nash Dredging & Reclamation Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Hailsham of St. Marylebone,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Ackner |
| Judgment Date | 02 July 1987 |
| Judgment citation (vLex) | [1987] UKHL J0702-1 |
| Date | 02 July 1987 |
| Court | House of Lords |
[1987] UKHL J0702-1
Lord Bridge of Harwich
Lord Hailsham of St. Marylebone
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Ackner
House of Lords
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hailsham of St. Marylebone and Lord Brandon of Oakbrook. I agree with them both and for the reasons they give I would dismiss the appeal.
My Lords,
This was an action for damages for personal injuries by the plaintiff (appellant) against his employers, the defendants (respondents), as the result of an accident which took place as long ago as 22 June 1975.
The fact that on the date of the hearing of this appeal on 5 May 1987 both the question of liability and the quantum of damages were still open after nearly 12 years for discussion does not shed a very favourable light on our system for dealing with litigation of this type.
The plaintiff was employed as a deckhand by a contract in writing dated 18 June 1975 in connection with dredging work on a fjord at Lulea in Sweden.
In the first sentence of this contract it was expressly agreed:
"The employee shall safely comply with the lawful directions of the company's representatives…"
It must be noted that the defendants' employers were a subsidiary (it is believed wholly-owned) of a Dutch company Stevin Baggeren B.N. ("Stevin").
The function of the defendants was to provide and pay the British staff engaged in the operation.
At the time of the accident, by direction of the defendants, the plaintiff was working on the deck of a tug (the Ina) owned by Stevin and under the command of her Dutch skipper (Captain Sas) who was an employee of Stevin. The tug was in fact operated turn and turn about by Captain Sas and a British skipper (Captain Clifford) who was an employee of the defendants. At all material times, however, and by direction of the defendants under clause 1 of the contract of service, the Ina and the plaintiff were both under the total operational control of Captain Sas and subject to his orders.
The accident may be very simply described. The plaintiff's duty, so far as material, was to tie and untie the Ina from a dredger to which she was made fast fore and aft by means in each case of a nylon rope attached to a bollard on the dredger by an eye and to the tug by a number of figure-of-eight loops and two half-hitches. At the time of the accident the plaintiff was under orders to untie with a view to the Ina going astern. He safely untied the aft rope and stowed it inboard the Ina. He then went foreward to untie the forward rope from the dredger. His correct drill, had he completed it, would have been to slacken the rope on the Ina's starboard bollards in order to reduce the tension, to allow the deckhand on the dredger (whom he could clearly see) to take the eye of the rope off the dredger's port bollard, and then haul the rope in and stow it safely inboard the Ina, proceed to the wheelhouse and give it a double knock with his hand, in order to signal to Captain Sas that it was safe to move. In the event, after he had loosened the forward rope from the Ina's bollard, and before the deckhand on the dredger had had time to remove the eye of the rope from the bollard on the dredger, Captain Sas, who was at the wheel of the Ina, put the engine hard astern. As a result, the rope snaked round the plaintiff's leg, pulled him into the water and caused him injuries which involved the amputation of his leg and damage, recently (28 April 1986) assessed at £178,450.05 by Staughton J., to whom the case had been remitted for this purpose by the Court of Appeal.
The plaintiff's claim in the proceedings was based on the allegation (inter alia) of a "non-delegable" duty resting on his employers to take reasonable care to provide a "safe system of work". ( cf wilsons & Clyde Coal Co. Ltd v. English [1938] A.C. 57). The defendants did not, and could not, dispute the existence of such a duty of care, nor that it was "non delegable" in the special sense in which the phrase is used in this connection. This special sense does not involve the proposition that the duty cannot be delegated in the sense that it is incapable of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not properly performed. Equally the defendants could not and did not attempt to dispute that it would be a central and crucial feature of any safe system on the instant facts that it would prevent so far as possible the occurrence of such an accident as actually happened, viz. injury to the plaintiff as the result of the use of Ina's engine so as to move the Ina before both the ropes were clear of the dredger and stowed safely inboard and the plaintiff was in a position of safety.
Since such a system could easily have been designed and put in operation at the time of the accident in about half-a-dozen different ways, and since it is quite obvious that such a system would have prevented the accident had it been in operation, and since the duty to provide it was "non-delegable" in the sense that the defendants cannot escape liability by claiming to have delegated performance of their duty, it is a little difficult to see what possible defence there could ever have been to these proceedings. There was indeed a preposterous suggestion in the defendants' pleading that the plaintiff had caused or contributed to his own misfortune himself. There was never the smallest evidence of this, and, no doubt prudently, the defendants called no evidence, whether by Captain Sas or anyone else, to substantiate it. This frantic attempt to avoid or reduce liability had already died a natural death before the case left the court of trial.
Although the duty of providing a safe system of work was "non-delegable" in the special sense I have described, it had in fact been delegated on alternate shifts to Captain Sas and Captain Clifford in the circumstances I have described. In both cases the delegation covered, so far as can be ascertained, the whole operation of the Ina, the orders to the deckhand, the system of work to be followed, and since the skipper was at the wheel, the operation of the engine. Both Captain Sas and Captain Clifford had designed different systems of work either of which, if followed, would probably have prevented the accident in the instant appeal. The trial judge appeared to think that the system designed by Captain Sas and applicable at the time of the accident to the plaintiff was "not unsafe." But this "system" involved at its crucial stage, i.e. the point of time at which it was necessary to ascertain for certain that the both ropes were inboard and the deckhand safe, a double knock by the deckhand on the wheelhouse, which could not be delivered unless the deckhand were clear of danger. If the proper sequence was observed this would not happen until after the second rope was stowed inboard. The Court of Appeal doubted whether the "system," if it can be called such, was adequate, and I share this doubt. But it matters not. The accident happened because the Ina went full astern before the forward rope was clear of the dredger and with the plaintiff in a position of acute peril. There was no double knock because Captain Sas did not attempt to operate the correct sequence and did in fact operate the engines with the eye of the rope still on the bollard of the dredger. The "system" was therefore not being operated and was therefore not being "provided" at all. It matters not whether one says that there was no "system" in operation at all, or whether one says that the system provided was unsafe, or whether one says that the system in fact provided was not in use at the crucial stage. In any event the defendants had delegated their duty to the plaintiff to Captain Sas, the duty had not been performed, and the defendants must pay for the breach of their "non-delegable" obligation.
Before your Lordships it was strenuously argued that the fact that Captain Sas operated the engine in such dangerous circumstances was the "casual" or "collateral" negligence of an employee of an independent contractor, i.e. Stevin. Since Stevin was itself the holding company of the defendants, the defendants being its wholly-owned subsidiary, I find this morally an unattractive proposition. But the fact was that the Plaintiff had delegated their own "non-delegable" duty to Captain Sas who had charge of the whole operation and his negligence was not "collateral" or "casual" but central to the case and in total disregard of the duty owed to the plaintiff to see that the engine was not put in operation at all until it had been ascertained that it was safe to do so. Whether the system as designed by Captain Sas was adequately safe or not, whether it can truthfully be said that there was in any real sense a system at all, or whether there was a system not unsafe but not being operated, the defendants had delegated their own "non-delegable" duty and it had not been performed.
I do not wish to add anything on the second point in the appeal which related to the attempt to limit the Defendants' liability under section 503 of the Merchant Shipping Act 1984 as amended by section 3 of the Merchant Shipping (Liability of Shipowners and Others) Act 1958, except to say that I agree with the judgment of the Court of Appeal [1986] Q.B. at 965, 980–982, and that the result is a necessary consequence of the correct analysis of the facts which I have endeavoured to give above.
In the event this appeal must be dismissed with costs. In my view it is, and always was, unarguable.
My Lords,
On 22 June 1975 the plaintiff, then aged 18, suffered a...
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