Mullard v Ben Lines Steamers Ltd (Benledi.)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE SACHS,LORD JUSTICE KARMINSKI |
| Judgment Date | 26 June 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0626-3 |
| Date | 26 June 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0626-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Crichton - London)
Lord Justice Davies
Lord Justice Sachs and
Lord Justice Karminski
Mr. EDWARD GARDNER, Q.C. and Mr. E. F. MONIER WILLIAMS (instructed by Messrs. Shaen Roscoe & Bracewell) appeared on behalf of the Appellant (Plaintiff).
Mr. R. H. FORREST, Q.C. and Mr. WILLIAM BARNETT (instructed by Messrs. Holman Fenwick & Willan) appeared on behalf of the Respondents the First Defendants and (instructed by Messrs. Hextall Erskine & Co.) on behalf of the Respondents the Second Defendants.
Lord Justice Sachs will give the first judgment.
This is an appeal from the judgment of Mr. Justice Crichton of the 12th November, 1969. On a personal injuries claim arising out of an accident on the 17th November, 1966, he held that the plaintiff and the defendants were equally to blame, in circumstances which will be referred to later in this judgment. He assessed the damages suffered by the plaintiff at £5,561 and accordingly ordered that one-half of that sum be award ed to the plaintiff. The plaintiff now appeals. He urges that on the evidence the defendants were wholly to blame for the accident and that in any event they were to blame to a greater degree than 50 per cent. In addition he contends that the trial judge erred when assessing damages and quantified them at far too low a figure.
The facts are simple. The plaintiff was- an experienced rivetter, aged 48 at the time of the accident, employed by the second defendants, who were engaged to do maintenance work on MacGregor type hatch covers on the s.s. "Benledi", a vessel owned by the first defendants. At trial and again in this court the first and second defendants have been jointly represented and have very sensibly raised no pleas as between themselves on the issue of liability. On the 17th November, 1966, the plaintiff was one of a gang of eight or nine men repairing hatch covers on the second deck. There were three relevant hatches, all above No. 3 hold. Taking them in order from the port side, there was No. 3 port cargo hatch; there was No. 3 centre cargo hatch; and there was No. 3 starboard cargo hatch, each in a compartment divided from the other by bulkheads - as of course they were divided from similar No. 2 hold and No. 4 hold compartments. Above each of those hatches were upper deck hatches: these were open to the light at material times and when they were thus open light came down to the second deck sufficiently to enable the gang to work. If the hatches above the second deck were closed, of course nolight could come through, and there was darkness in the relevant lower compartment. Below the second deck was a further deck, in which some cargo was stowed.
As already stated, the hatches were of the MacGregor type. These are operated by levers which cause the hatches to fold up, so to speak, against a bulkhead. They are relatively easy to open and to close; they do not rest on any coaming; and accordingly,. when open there is a sheer fall from the deck from the very edge to which the hatch comes. When closed the hatch constitutes a simple continuation of the deck itself.
In the morning of the 17th November this gang commenced work on No. 3 port cargo hatch. When they had finished their maintenance work there they moved, at about 2.30 p. m., to No. 3 star board hatch. In so doing they naturally had to pass through the centre compartment, where No. 3 centre cargo hatches were all open. These were of an overall area of 46 ft. 9 ins. by 21 ft. There was at 2.30 p. m. no fencing around No. 3 centre cargo hatches.
The access from the port cargo compartment to the starboard cargo compartment was over a piece of solid deck of the centre compartment — 13 feet wide measured from the aft bulkhead to the edge of the open hatch. One entered the centre compartment through a sort of slot aperture (some 16 inches wide "by 30 inches high) in the bulkhead between the port compartment and the centre compartment. One then traversed the solid deck, a matter, of 26 feet or so, and entered the starboard compartment through a similar slot aperture in the opposite bull-head. Thus the apertures and the 13 feet of solid deck really constituted the gangway or passage by which employees could pass and repass as between the port compartment and the starboard compartment. This would obviously be used by any member of the gang who, when working in the starboard compartment, chose for any reason to return to the corresponding port compartment to fetch some garment or some piece of equipment which had, either intentionally or accidentally, been left behind in the latter compartment. Therewas no suggestion at trial that I have "been able to trace, and certainly no suggestion in this court, that there was any alternative route available to those who wished to pass from the port compartment to the starboard compartment or vice versa: it was the only gangway.
When the workmen originally moved into the starboard compartment, the daylight coming through into that compartment was strong. By 4 to 4. 30 p.m. the light was fading. A cluster of lights was brought into operation in that compartment, and the work continued under, in the main, artificial light. There then came a moment when the plaintiff considered there was urgent need to use an implement - a toggle bar - which he had left in No. 3 port compartment. That was just the sort of incident that can be expected in the course of a day's work on board ship.
The plaintiff then started to make his way via the aperture in the bulkhead between the starboard compartment and the centre compartment through the latter compartment, a mere 26 feet. By that time, however, the hatches above the centre compartment had been closed. (There is no evidence as to whether the hatches above the port compartment had also been closed but it is to be inferred that that had happened). The centre compartment was thus in complete darkness. The plaintiff stepped through the aperture that has been mentioned, not realising how dark it was in the centre compartment, and unfortunately the aperture was within 10 feet of the open, unfenced hatch. The plaintiff must almost at once have lost his sense of direction in the pitch- dark, and in a second or two he had fallen down the hatch and sustained serious injuries.
The trial judge, in those circumstances, correctly and inevitably held that the defendants were in breach of three of the Shipbuilding and Ship Repairing Regulations, 1960. They were in breach of regulation 6, which deals with maintaining safe means of access. They were in breach of regulation 26, which concerns protection of openings and provides that there shall be suitable fencing in the case of an opening such as the hatches now underconsideration. They were likewise in breach of regulation 69, which relates to lighting and provides that all approaches to places where people are working shall be properly lighted. There has been no cross-appeal by the defendants on the judge's findings that they were in breach of each of those three regulations.
For the moment it seems to me only necessary to refer further to regulation 26, which concerns fencing. No evidence was before the court of any work having been done on No. 3 centre cargo hatch on this deck: and the inference, as Mr. Forrest rightly conceded, to be drawn is that no work had been done there at any relevant time. It follows that this large hatch was open at 2.30 p. m. and still open at 4.30 p.m. It would have been perfectly easy, knowing that the relevant part of the centre compartment was being, and indeed was necessarily being, used as a passage, to provide some rope or other portable form of fencing, to comply with regulation 26. It is plain, one is tempted to say, that regulation 26 was quite deliberately being treated as non-existent. Whether deliberately or not, the defendants were manifestly creating a continuing state of affairs in breach of that regulation - a state of affairs in which an employee's momentary error might cause a very serious disaster of the type that regulation was intended to provide against. It was thus, to my mind, a flagrant and culpable breach and a very important cause of this accident.
I now turn to the question of contributory negligence. Mr. Gardner pressed upon this court most persuasively that there was no real negligence in this case - that the boundary between inadvertence and negligence had not been crossed. For my part, I find myself quite unable to take that view. As an experienced fitter — for he had worked on ships from the age of 14 to the age of 48 — the plaintiff cannot, to my mind, be acquitted of negligence in entering this dark compartment with no torch, having made no request for light. That matter is exemplified by the plaintiff's own reply to a question: "(Q) In your 35 years you have learned, have you not, that on board a ship it is very"dangerous to go walking round in the dark? (A)...
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