Ratcliffe and Others v North Yorkshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Browne-Wilkinson,Lord Steyn,Lord Lloyd of Berwick,Lord Jauncey of Tullichettle |
| Judgment Date | 06 July 1995 |
| Judgment citation (vLex) | [1995] UKHL J0706-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/18/255 |
| Court | House of Lords |
| Date | 06 July 1995 |
[1995] UKHL J0706-1
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Browne-Wilkinson
Lord Lloyd of Berwick
Lord Steyn
Parliamentary Archives, HL/PO/JU/18/255
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Steyn, which I have read in draft and with which I agree, would dismiss this appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives I too would dismiss the appeal.
My Lords,
For the reasons to be given in the speech of my noble and learned friend Lord Steyn I would dismiss the appeal.
My Lords.
On 20 February 1986 the Nicholas H was in the course of a loaded voyage from South America to Italy when a crack appeared in the vessel's hull. On 22 February she anchored off San Juan, Puerto Rico, where further cracks developed. On 25 February Mr. J. Ducat, a non-exclusive surveyor employed by Nippon Kaiji Kyokai ("N.K.K.") was called in by the master, at the instigation of the United States Coastguards. He recommended permanent repairs, for which, as it happened, facilities were available locally. But the owners baulked at this. It would have involved dry docking, with consequential discharge and reloading of the cargo. Mr. Ducat must have been persuaded to change his mind. For on 2 March 1986 he pronounced that the vessel was fit to proceed on her intended voyage after completing some temporary repairs to the shell plating. She sailed the same day. On 3 March the welding in way of the temporary repairs cracked. On 9 March the vessel sank. Fortunately there was no loss of life.
For present purposes we are asked to assume that the loss of the ship and cargo was the result of Mr. Ducat's negligence in altering his initial recommendation, and permitting the vessel to continue on her voyage without effecting permanent repairs. We are also asked to assume (1) that the damage which the plaintiff cargo owners have suffered is physical damage to their cargo, and (2) that this damage should have been foreseen as the likely consequence of Mr. Ducat's negligence. Nevertheless, the Court of Appeal has held that N.K.K. are not liable for Mr. Ducat's negligence, on the ground that he owed no duty of care to the owners of the cargo. On the face of it this would seem a strange result, unless classification societies are entitled to claim immunity in tort on policy grounds, like the barrister in Rondel v. Worsley [1969] 1 A.C. 191, or the police officer in Hill v. Chief Constable of West Yorkshire [1989] A.C. 53. But Mr. Aikens Q.C. for N.K.K., specifically disclaimed any such general immunity. He invited the House to approach the appeal on the facts of this particular case, as Hirst J. had done at first instance, and apply ordinary, well established principles of law. Other claims might be brought against classification societies hereafter, which would have to be decided on their own facts; they were, he said, of no assistance in deciding the present case. I am for my part well content to accept Mr. Aikens' invitation. I start, therefore, with the judgment of Hirst J.
Mr. Aikens' basic argument before the judge was that shipowners are under a non-delegable duty to take care of the cargo on board, and that there was, therefore, no need for, or even room for, the imposition of a further duty on classification societies: (see [1992] 2 Lloyd's Rep. 481.) Mr. Aikens relied on Riverstone Meat Co. Pty. Ltd. v. Lancashire Shipping Co. Ltd. [1961] A.C. 807. In that case cargo was damaged in the course of a voyage by the failure of a fitter employed by ship repairers to secure the inspection cover on a storm valve. The cargo owner sued the shipowner in contract, and recovered. It was held to be no defence that the repairs had been carried out by a reputable independent contractor. Mr. Aikens makes the point that it was never even suggested in this House that the owners of the cargo might have had a claim against the ship repairers in tort.
Hirst J. was unable to see the relevance of this consideration; and I am bound to say that I share his difficulty. The existence of an alternative remedy in tort would not have influenced the result in any way. Why, then, should it have been mentioned?
The judge went on to quote extensively from the many recent decisions in the modern law of negligence in the Court of Appeal, Privy Council and House of Lords. Some, like Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85 and Mobil Oil Hong Kong Ltd. v. Hong Kong United Docklands Ltd. (the "Hua Lien") [1991] 1 Lloyd's Rep. 309, were cases of physical damage to person or property. Others, like Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 and Murphy v. Brentwood District Council [1991] 1 A.C. 398, were cases of pure economic loss.
The judge held, correctly, that in addition to the assumed foreseeability of physical damage, it was necessary for the plaintiffs to establish the necessary close relationship between the parties, or degree of proximity, in order to establish a duty of care. As to this, the judge said ( [1992] 2 Lloyd's Rep. 481, 499):
"On the assumed facts of the present case, for the reasons given by Mr. Gross, it seems to me that there was a very close degree of proximity between Mr. Ducat and the plaintiffs. Having first recommended that the vessel should not leave port without having undergone permanent repairs, knowing that she was fully loaded and therefore knowing that, if it was dangerous for her to go to sea in that condition, the goods were just as likely to be damaged or lost as the vessel itself, he later recommended that she sail after only temporary repairs had been done. Although it is true, as Mr. Aikens submits, that Mr. Ducat had no actual direct physical control over the vessel in the sense that he could bar her sailing, the sanction imposed by his first report rendered it highly probable that the shipowner would not sail (as, in fact, occurred) in view of the dire effects that this would have on his insurance and on other common commercial arrangements such as a ship mortgage.
Conversely, the withdrawal of this sanction in the second report would, as Mr. Ducat must have appreciated, almost certainly have the opposite effect, since the shipowner would almost inevitably accept the recommendation that he should set sail, which was fully in accord with the commercial object of his voyage. The defects recurred almost immediately after the vessel had sailed from San Juan, and the vessel sank in the very early stages of her voyage to Europe."
For reasons which I will develop later, I find myself in complete agreement with the judge that the degree of proximity in this case was very close indeed.
The judge then turned to consider whether it was "fair, just and reasonable" to impose on Mr. Ducat a duty of care. He did not consider that there were any considerations of public policy which militated against such a duty. As I have already said, Mr. Aikens does not suggest that the judge was wrong in that respect. He accepts that whatever might be the position of classification societies in other cases N.K.K. were not entitled to rely on any immunity on the facts of this case.
The judge then considered the other circumstances of the case, and in particular the absence of any means of limiting N.K.K.'s liability in tort. He held that this might be a relevant factor if he were imposing on classification societies some generalised duty of care towards cargo owners and other parties across the board. But that was not this case. The judge was careful to limit his decision to the assumed facts. So limited, he could see nothing unfair or unreasonable or unjust in making N.K.K. liable in full for the damage caused by Mr. Ducat's negligence. I quote a paragraph from his judgment to illustrate his approach ( [1992] 2 Lloyd's Rep. 481, 500):
"Finally, so far as the 'floodgates' argument is concerned, I do not accept, since this is a 'one-off decision, that it will open the way, as Mr. Aikens suggests, to the imposition of a general duty of care to owners of cargo, however long after the offending survey on the following voyage or on subsequent voyages. On the contrary, in my judgment the proximity test will act as an adequate safeguard against any such extravagant consequences."
Hirst J. concluded his judgment with a particularly apt quotation from the judgment of Lord Wright in Grant's case [1936] A.C. 85, 107:
"Mr. Greene further contended on behalf of the manufacturers that if the decision in Donoghue's case [1932] A.C. 562, 591, were extended even a hair's-breadth, no line could be drawn, and a manufacturer's liability would be extended indefinitely. He put as an illustration the case of a foundry which had cast a rudder to be fitted on a liner: he assumed that it was fitted and the steamer sailed the seas for some years: but the rudder had a latent defect due to faulty and negligent casting, and one day it broke, with the result that the vessel was wrecked, with great loss of life and damage to property. He argued that if Donoghue's case were extended beyond its precise facts, the maker of the rudder would be held liable for damages of an indefinite amount, after an indefinite time, and to claimants indeterminate until the event. But it is clear that such a state of things would involve many considerations far removed from the simple facts of this case. So many contingencies must have intervened between the lack of care on the part of the makers and...
To continue reading
Request your trial
-
Strathclyde Regional Council v Wallace
...(3) defence if the employer can "justify" it applying the test in the Bilka-Kaufhaus case [1987] I.C.R. 110. 18In North Yorkshire County Council v. Ratcliffe [1995] I.C.R. 833, 839, this House expressed the view, obiter, that the Equal Pay Act 1970 has to be interpreted without introducing......
-
West Dunbartonshire Council v Wallace
...Rowntree Mackintosh Confectionery LtdICR [1992] ICR 372 National Vulcan Insurance v WadeICR [1978] ICR 800 North Yorks CC v RatcliffeICR [1995] ICR 833 Rainey v Greater Glasgow Health BoardSC 1987 SC (HL) 1 Tyldesley v TMK Plastics LtdICR [1996] ICR 356 Young v University of Edinburgh, not ......
-
Armstrong and Others v Newcastle-upon-Tyne NHS Hospital Trust
...case as being in important respects similar to those which form the backdrop to North Yorkshire County Council v Radcliffe and others [1995] ICR 833. The domestics of the RVI were exclusively or almost exclusively, female and the labour market for domestics in the north east was almost excl......
-
Calmac Ferries Ltd v 1) Mrs Elizabeth Wallace 2) Miss Susan Dawn McKillop
...in the Equality Act 2010 does not appear in section 69. This may be a reflection of the approach taken in Ratcliffe v North Yorkshire CC [1995] ICR 833 HL, in which Lord Slynn, with whom their other Lordships agreed, held that the distinction between direct and indirect discrimination in th......