Thomson v Cremin
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Thankerton,Lord Wright,Lord Porter |
| Judgment Date | 20 October 1941 |
| Judgment citation (vLex) | [1941] UKHL J1020-1 |
| Date | 20 October 1941 |
| Court | House of Lords |
[1941] UKHL J1020-1
House of Lords
Lord Chancellor
Lord Thankerton
Lord Wright
Lord Romer
Lord Porter
My Lords,
On 29th April, 1938, the first Respondent, Joseph Cremin, who was Pursuer in the action, received serious injuries while employed by the second-named Respondents as a stevedore's labourer in discharging bulk grain from Number 2 hold of the S.S. "Sithonia," belonging to the Appellant, which was lying in Princes Dock, Glasgow, after a voyage from Fremantle in Western Australia. A heavy wooden "shore" which stretched from the ship's side to the "shifting board" fell upon the Pursuer's head while he was below propelling a grain "plough," which was being used for feeding the buckets of an elevator working from Number 2 hold to the main deck. The Pursuer in the first instance brought his action against the Appellant alone, alleging that, owing to the negligence of the Appellant, the shore was insecurely attached to the shifting board. Upon the Appellant attributing the accident to the negligence of the second-named Respondents, the Pursuer added them as Defenders in the action and sued the Appellant and the second-named Respondents jointly and severally for damages in respect of the injuries which he had sustained.
The Lord Ordinary (Lord Robertson) reached the conclusion that the Appellant's negligence was established, and that he was liable to compensate the Pursuer in the sum of £1,350. As against the Master Stevedores, the Lord Ordinary held that negligence was not proved and he accordingly assoilzied the second-named Respondents.
The present Appellant appealed to the Second Division of the Court of Session, contending either that the second-named Respondents were solely responsible, or at any rate that the responsibility should be shared between them. The Inner House affirmed the Interlocutor of the Lord Ordinary; Lord Mackay, however, would have preferred a finding of joint responsibility, and there are indications that other of the judges composing the Court did not in all respects agree with the mode of reasoning by which the Lord Ordinary reached his conclusion.
The case for the Appellant before this House was again stated alternatively, his contentions being ( a) that there was no failure of duty by him towards the injured man but that the sole responsibility lay on the second-named Respondents; ( b) that, in any event, if liability was established against the Appellant, fault causing the accident was also proved against the second-named Respondents. This double-barrelled case was presented to us in an argument which thoroughly examined every detail of the evidence, but the House intimated that the decision already reached by the Courts in Scotland must stand, for reasons which would be given later. I have now to state, with such brevity as the subject-matter permits of, what are the reasons why I consider that the Appeal should be dismissed.
The holds of a vessel which is about to undertake a voyage with grain in bulk as its cargo, require to be fitted with "shifting boards", i.e. wooden partitions running fore and aft from bulkhead to bulkhead in the centre line of the ship, so as to obviate the danger of the grain shifting in heavy weather from one side to the other. These shifting-boards are for the most part supported in position by attachment to the permanent iron pillars which are fixed at intervals inside the holds; but, in the way of the hatch, lateral support for the shifting-board is provided by "shores"—short shores stretching from the hatch coamings (with these we are not in this case directly concerned) and long shores stretching from either side of the ship at a rising angle of about 10 degrees from the horizontal. These long shores in the case of the "Sithonia" were about 27 feet long with a scantling of 6 in. x 8 in., and these dimensions were not challenged as inadequate.
Since the long shores meet the uprights of the shifting-boards at a slope, it is important that their midship ends should be cut at such an angle as will present a flat surface for making contact with the perpendicular. The Lord Ordinary held, and the fact may be accepted, that this was done in the case of the "Sithonia". But it is not enough that the midship ends of the long shores should be suitably shaped, or even that the shores should be pressed down so as to make solid contact; they must be so held in position as to make sure that they will remain firm. There was some difference of view as to what additional precautions were needed, but the evidence fully warranted the Lord Ordinary's conclusion that a safe construction would be provided by (1) securely nailing the midships end of a shore to the upright against which it pressed, and (2) fitting a "chock" or "cleat" of wood above the midships end of the shore by nailing it with 5 inch nails of No. 5 guage driven through it into the upright, and thus counteracting any upward thrust of the midships end of the shore. Indeed, I understand the Appellant to accept this standard. His argument on the facts was directed to establishing ( a) that the shore which fell on the Pursuer was securely fixed in Australia in accordance with the above construction; ( b) that its fall was not due to any default in the shipowner, but was caused by the negligent operations of the second-named Respondents while discharging the cargo under contract with the Appellant.
As regards ( a) the testimony was conflicting. The Appellant relies on the evidence of three witnesses taken in Australia, where Messrs. Petterson & Co., a firm of shipwrights with a large experience of fitting grain ships with shifting-boards, were employed for this purpose on the "Sithonia" in preparation for her taking on board her cargo. The partner in this firm who supervised the work gave evidence that the construction above described was duly carried out: a marine surveyor who inspected and certified the work for an Underwriting Association testified that the structure was properly executed—(the Lord Ordinary notes that he did not state that the inboard ends of the shores were secured by nails, but on the other hand he declared that he would not expect the shore to be dislodged by less than repeated blows with a sledge hammer)—and a Government inspector who gave the official certificate spoke more generally of the shifting boards being efficiently fitted. As against this, there is the fact that, after the shore was exposed by the removal of the grain in which it was embedded during the voyage, the shore fell, and fell without the application of any violence corresponding to sledge-hammer blows; and according to the evidence of three fellow-workmen of the Pursuer who were in the hold when it fell, the "chock" which should have helped to keep the shore in position became detached and fell also, when it was observed that the nails in it, instead of being 5 inches long, were short nails of about 2 1/2 inches. The details of Messrs. Petterson's bill show that a quantity of 3 inch nails were charged for in the course of the work, but no evidence was given as to the purpose for which they were used.
The erection of the shifting-boards, and the fitting of shores to support them, were required by Regulations made under the Navigation Act of the Commonwealth of Australia, and the "Sithonia" could not have left the port of Fremantle with her cargo of bulk grain without the official certificate that these Regulations had been complied with. The Appellant's counsel contended that compliance with the Regulations was the full extent of the shipowner's duty. This is plainly not the case. The Regulations are for the purpose of securing that ship and cargo can safely face the dangers of the voyage, but the shipowners have undertaken, not only to carry the cargo to its destination, but to unload it there, and must have contemplated that stevedores would be employed for this purpose. As between the shipowner and the Pursuer, the former must be regarded as the occupier and the latter as an invitee who comes to work in the hold in consequence of the contract made between the shipowner and the Pursuer's employers. The shipowner's responsibility for the safety of the structure is not indeed absolute, but, on the principle of Indermaur v. Dames, L.R. 1 C.P. 274; 2 C.P. 311, he owes to the invitee a duty of adequate care. If adequate care was not exercised in fitting and securing the shore, it would be no answer (as the Appellant's counsel candidly admitted) to say that the shipowner employed an independent contractor at Fremantle to do the work. For this last proposition reference may usefully be made to a recent decision of the Court of Appeal in Wilkinson v. Rea Ltd. [1941] 2 All E.R. 50, and especially to the observations of Luxmoore L.J. at p. 60. I can see no ground for drawing a distinction between the permanent structure of the ship and the temporary erections put up in her holds for the purpose of the special cargo she was carrying.
The first, and crucial, question therefore is whether the fixing and securing of the shore at Fremantle were done with adequate care. This in turn largely depends on whether the "chock" was fastened by nails of adequate length, or whether the evidence as to shorter nails is to be believed. It would be difficult to imagine an issue in which the decision more completely depends on the view of the trial judge as to the trustworthiness of the testimony given in his presence by the witnesses who asserted that the "chock" became detached by the accident, and that they found it had only been fastened with short nails. The Lord Ordinary, who alone had the opportunity of judging of their veracity at first hand, has believed what they said. It is unfortunate that neither the "chock" nor the shore were preserved after the accident so that they could be produced at...
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Case Note
...duty with respect to wrongs by an independent contractor on the occupier's premises. See Thomson v Cremin[1956] 1 WLR 103n; [1953] 2 All ER 1185 (case decided in 1941). The non-delegable duty in Thomson v Cremin was implicitly approved in Wheat v E Lacon & Co Ltd[1966] AC 552 and left open ......