Thomson Respondent Against Kvaerner Govan Ltd Appellants
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH,LORD RODGER OF EARLSFERRY,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] UKHL 45 |
| Date | 31 July 2003 |
| Docket Number | No 1 |
| Court | House of Lords |
[2003] UKHL 45
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
HOUSE OF LORDS
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives I would allow this appeal.
My Lords,
I am persuaded by the judgment of Lord Morison that this appeal should be dismissed. I am therefore unable to agree with the order proposed by Lord Hope of Craighead.
My Lords,
This is an appeal against an interlocutor of the First Division of the Court of Session (the Lord President (Cullen) and Lords Abernethy and Morison) allowing the respondent's reclaiming motion against an interlocutor of the Lord Ordinary (Lord Philip) granting to the appellants decree of absolvitor from the respondent's claim against them for damages. The action arose out of an accident which the respondent sustained on 24 January 1995 while he was working in the course of his employment with the appellants as a welder at their Govan shipyard.
The respondent had been working during the morning attending to defects in welding work in one of the ballast tanks in a ship which was under construction in the shipyard. He had completed his work there before the lunch break. He returned to the tank after lunch to collect his equipment from the tank to take it to his next place of work. The tank was 14 feet 2 inches high, 12 feet 2 inches long from its forward to its after end and 6 feet 7 inches wide from its port side to its starboard side. The port and starboard sides of the tank were reinforced at various levels by steel stiffeners or bulb-bars protruding 12 inches from each side. Staging had been laid at various levels within the tank. The staging consisted of planks resting on the bulb-bars on either side of the tank. Entry to the tank was by means of a vertical fixed steel ladder, in front of which there was a guard rail to prevent people who had descended the ladder from stepping back into a hatchway in the floor which gave way to a lower compartment.
The respondent was alone when he sustained his accident, so there were no eyewitnesses to what happened as he entered the tank. After it had happened a fellow employee, Michael Kerr, came to his assistance. He found the respondent lying on the floor of the tank between the bottom of the ladder and the guard rail. He was lying on top of a plank of wood which had broken into two pieces. The broken ends of each piece were adjacent to each other and only slightly displaced from their relative positions before the plank broke. A number of other planks were scattered on the floor of the tank or still in position on the bulb-bars at various levels within the tank. Michael Kerr was unable to say how the accident had happened. But the respondent said that after entering the tank he descended the ladder until his feet were level with the second bulb-bar from the top. One of the pieces of equipment which he was seeking to recover was his face mask which was lying on the staging at that level. He stepped onto one of the planks which made up the staging. It immediately snapped and gave way, and he fell to the floor of the platform. He struck his head as he fell and the next thing he remembered was waking up in hospital.
The respondent's case on record was that the plank was found to be thin and inadequate for use as a staging plank on which men would walk. The accident was said to have been caused by the appellants' breach of Regulation 17(1) of the Shipbuilding and Shiprepairing Regulations 1960 ( SI 1960/1932), which provides that all staging and every part thereof must be of suitable and sound material and of adequate strength for the purpose for which it is used. The respondent's case was simply that the plank was not strong enough to support him and that it broke when he stepped on it, causing him to fall. It was not disputed that if the accident happened as the respondent described the appellants were in breach of the regulation.
The evidence which was led at the proof was not so straightforward. The respondent gave a description of the layout of the tank which in several respects was admitted to be inaccurate. His fellow employee, Michael Kerr, described the scene as he found it after the accident. The appellants' safety officer took a number of photographs of the inside of the tank and of the plank on which the respondent was found to be lying by Michael Kerr. He showed the plank to Graham Cox, a health and safety inspector, who visited the shipyard on 6 February 1995. He was the only witness who examined the plank and gave details of its dimensions and its condition after the accident.
Mr Cox said that the plank was 5 feet 10 inches long, 9 inches wide and 2 inches thick. He said that a plank of these dimensions was designed to support the weight of a man when bridging a gap as large as 11 feet 6 inches, and that it was of adequate strength to span the space between the bulb-bars. He found no flaw in the plank which would have caused it to break under a man's static weight. His conclusion was that it was unlikely that it could have snapped simply as a result of the respondent placing his weight on it in the circumstances which he had described. But he accepted that the inference could be drawn that the plank was not of adequate strength if it did indeed snap beneath the respondent when he stepped on to it.
The question which the Lord Ordinary had to decide was whether the respondent's account of the accident had been proved on a balance of probabilities. The issue, as the Lord Ordinary saw it, was whether the respondent's account could be accepted as reliable. It was not disputed that his recollection of the layout within the tank was faulty. He said that the ladder was on the starboard wall of the tank, roughly halfway between the forward and aft bulkheads and that when he got down to the level of the second bulb-bar he came off the right hand side of the ladder and stepped onto the plank nearest the ladder. In fact, the ladder was positioned parallel to and about 3 feet 3 inches forward of the centre of the aft bulkhead, and it would have been impossible for the respondent by coming off the right hand side of the ladder to make the movement which he described.
Another matter on which the respondent's recollection was admitted to have been at fault was the question whether or not the broken plank had been painted. He said that it was, and so did Michael Kerr. Neither of these witnesses was challenged in cross-examination on this point. But when Mr Cox was asked about this he said that he was fairly sure in his own mind that it was not painted. He also said that he would have noted this if it had been, as this would have been relevant to his inspection of it. It is not now disputed that the plank which Mr Cox inspected was the plank which was found beneath the respondent after the accident. The Lord Ordinary's conclusion was that the respondent's description of the few seconds leading up to the accident must be regarded as inaccurate.
On the other hand there was Mr Cox's evidence. The Lord Ordinary noted that he did not profess any specific expertise in the effect of force on wooden planks. But he regarded Mr Cox as an impartial witness, and he noted that he had 21 years' experience in the shipbuilding and chemical engineering industries. His evidence was that prior to the facture the plank was of adequate strength to support the weight of a man when bridging a span between the bulb-bars of 4 feet 7 inches. He also said that, if the plank snapped 11 feet above the floor of the tank in the way the respondent described, it was unlikely that the respondent would be found lying on top of it or that the two broken pieces of it would be found so close to their original position relative to one another. This evidence seemed to the Lord Ordinary to accord with common sense. There was no contrary expert evidence.
There were a number of other factors which the Lord Ordinary took into account before concluding that, in the end and after assessing the weight of the evidence, the respondent had failed to satisfy him on a balance of probabilities that the accident happened as he said it had. It was suggested that the respondent, who was unable to communicate for several weeks after the accident, may have been suffering from retrograde amnesia. Two consultant neurosurgeons gave evidence on this matter, although their evidence was not all one way. Mr Philip Barlow said that the respondent had suffered a moderately severe head injury, as a result of which he would have expected some degree of retrograde amnesia. Mr Kenneth Lindsay said that he would not necessarily have expected the respondent's memory to be impaired as a result of the accident. The Lord Ordinary said that he found it difficult to resolve the difference of view between these witnesses, but that he was inclined to accept Mr Barlow's evidence as he was unable to accept that the respondent had an accurate recollection of the accident.
Another factor in the case was the possibility that the respondent had...
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