England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queen's Bench Division
(Mr Richard Fernyhough)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th March 2004

Lord Justice Buxton :

1. The Defendants [Maersk] are an Isle of Man company with a prominent position in the shipping industry. With particular relevance to this appeal they own and operate four identical purpose-built container ships. Mr Wilson joined Maersk as an electrical engineering officer in 1996, when he already had over twenty years sea-going experience. He was a very conscientious and well-regarded employee; and the judge who had the advantage of seeing him in the witness box found him to be an accurate and objective witness. Mr Wilson suffered a serious accident in February 1999, regrettably now more than five years ago. The parties have agreed the quantum subject to liability, which remains in issue before us.

The accident

2. The accident can be shortly described, largely in the lucid terms adopted by the judge.
3. The ship on which the accident occurred was the Tobias Maersk. Mr Wilson knew her well, having sailed on her on many occasions. She is fitted to carry refrigerated containers [reefers], stacked on deck and below. They are powered by electricity to maintain the required temperature level. On deck there are eight steel grid raised walkways running between the rows of stacked containers for the purpose of access to them. The walkways themselves have vertical or nearly vertical steel ladders at each end. One of the duties of Mr Wilson was to read the temperature gauges every twenty-four hours, and record the readings in his employers' notebook. For this purpose he had to use the walkways and ladders.
4. On the day of the accident Mr Wilson was taking readings and in the course of that used the walkway at Bay 28. Unlike the other bays on the ship, the Bay 28 walkway has a permanent steel railing along its length, and also an "outrigger" platform with another railing immediately adjacent to the ladder that Mr Wilson had to descend to return to deck. He approached the ladder at the same time as using his left hand to try to fit his notebook into the pocket of his heavy duty clothing. As the judge found, at §7 of his judgment:

"He then stooped down and turned to his left in order to reach the right hand handrail of the ladder with his right hand. This handrail extends only about 10 inches above the walkway. But before he could grab the handrail with his right hand the vessel lurched, unexpectedly propelling Mr Wilson sideways into the space surrounding the ladder…The fall was about 8 feet"

The claim

5. The claim as brought to trial was based on the unsafe condition of the Bay 28 ladder, in that the ladder handrails did not extend above the level of the walkway, and there were not provided any of the portable stanchions that were sometimes fitted, for other purposes, at the top of the ladder, and which would have provided an additional handhold. As it was put in §8 of the amended particulars of claim

"This meant that in order to descend the ladder [Mr Wilson] had to let go of the walkway handrail and lean down to grasp the ladder handrail"

6. The judge rejected that case. Two experts in marine safety were called before him, though most of their evidence appears to have been directed to the recondite subject of ladders and how to descend them. One of the experts demonstrated to the judge's satisfaction that there was a safe way of descending the Bay 28 ladder even when the ship was rolling. That involved holding on to the "outrigger" railing adjacent to the ladder whilst placing oneself in a position on the ladder from which the handrails of the ladder itself could be safely held on to. The judge understandably thought that he would have reached that conclusion unaided. As he said at §11:

"it seems obvious to me that when approaching the open space with an 8 foot fall on a ship which is rolling, it is commonsense to hold on to some firm handhold at all times"

He therefore held that

"the combination of the permanent railing and outrigger railing at the head of this ladder provided suitable handholds and that the configuration was reasonably safe for use by anyone including Mr Wilson"

On this basis, the issue of the temporary stanchions became irrelevant. As the judge put it, even if (which he doubted) they would have been effective, that would only make an already safe configuration even safer.

7. It is important to note, in relation a point that arises later in the appeal, that the judge did not find, and did not have material on which he could find, that the Bay 28 ladder in itself was safe. What made nonetheless safe the requirement that Mr Wilson should descend that ladder despite its own handrails extending only a short distance above the walkway was the presence of the additional railing, not found elsewhere, that the judge found could and should have been used as a handhold to enable the ladder itself to be safely negotiated.

The new case

8. That would apparently have been the end of the matter so far as Mr Wilson was concerned. However, at a late stage in the trial, it is fair to say only in his written closing submissions, Mr Wilson's counsel developed a different alleged basis of liability. That can best be described in the words of the judge, in §§ 15-16 of his judgment:

"The case is put as follows. There are 8 walkways and 16 ladders on this ship all of which Mr Wilson had to use every day. He thus became extremely familiar with them and developed a style of using them which was uniform. However 7 of the 8 walkways and ladders ("the other ladders") were of a different configuration to the walkway and ladder in question at Bay 28. The other ladders and walkways were different in the following respects. Firstly the walkway was positioned about 18 inches below the level of the hatch lids on each side whereas the Bay 28 walkway is approximately flush with the hatch lids. Secondly, the other access ladders have a broad "half landing" in lieu of an ordinary rung step immediately below the walkway. By contrast the Bay 28 ladder had no such "half landing". Thirdly, there is no permanent railing along the length of the other walkways and no outrigger platform with railing adjacent to the top of them. By contrast both of these exist at the top of the Bay 28 ladders. I was shown four photographs as Exhibit C1 which show clearly the configuration at the top of the ladders which demonstrate the above features.

Mr. Cory-Wright maintains that the configuration at the top of the other ladders is plainly unsafe since there is no fixed handhold for anyone to hold on to when descending the ladder. He submits that there is no safe way of descending those ladders but the best way would be in the method used by Mr. Wilson when he descended the ladder at Bay 28 viz: on approaching the top of the ladder, turn to his left, crouch down, put one leg down on the "half landing" and, at the same time reach with his right hand for the right handhold. This means that, for a period of time, he has no handhold at all which is why it is unsafe. He then goes on to assert that since Mr. Wilson would have to do this on the other ladders 7 times every day he would have been bound to have got into the habit of descending in that way. Accordingly, when he approached the top of the ladder at Bay 28 it was natural that he should use his habitual form of descent and ignore the handholds which, uniquely, were available there. In all the circumstance he submits that the Defendants had by these means, permitted an unsafe system of work so that it was reasonably foreseeable that Mr. Wilson would habitually descend ladders in a way, which was unsafe because it was inevitable in 7 cases out of 8 and probable in the 8^th case."

9. The judge accepted this argument. Again, his view is best expressed in his own words, from §§ 18 and 19 of the judgment:

"In my judgment the configuration at the heads of the other ladders is not reasonably safe for use when the ship was rolling to any significant degree, without the use of portable stanchions. Without such stanchions there is no useful handhold to be found at the head of these ladders so that, in order to descend them, at some point, both hands must be free until the seaman can crouch down and grab one of the handholds. When the ship is rolling, this must be unsafe since rolls are not always predictable and occasionally a ship can "lurch" or "corkscrew" without warning. This is precisely what happened to precipitate Mr. Wilson's accident. It follows that every day, in 7 cases out of 8, Mr. Wilson would have to descend these ladders in a way which was inevitably unsafe. However, he would not have to descend the ladder at Bay 28 in an unsafe manner although I find that, in these circumstances, it is reasonably foreseeable that he would do so. In these unusual circumstances the question arises as to whether the Claimant has established that the system of work to which he was required to comply was unsafe.

No authority has been cited to me on this point so I must approach it from first principles. I find that the system provided by the Defendants for descending 7 ladders out of 8 was unsafe in the regards set out above. I also find that since this lack of safety extended to 14 out of 16 ladders (of which half would be climbed and half descended each day) the system as a whole was unsafe. I also find that it was reasonably foreseeable that an experienced seaman in the position of Mr. Wilson, would be likely to develop the habit of descending these ladders in a way which was unsafe. Once such a habit had developed, I also find that it was foreseeable that he would adopt that habit whenever he descended walkway ladders even if, as in the case of Bay 28, there were, exceptionally, handholds available. It follows, in my judgment, that the unsafe system of working provided by the Defendants was a proximate cause of this accident and accordingly I hold that they are liable to the Claimant for breach of the relevant duty. I might add that this finding explains, to my satisfaction, why Mr. Wilson descended the ladder at Bay 28 in a way which Mr. Anderson, in my view, fairly, described as "daft"."

10. The judge however accepted that there had nonetheless been a significant degree of negligence on Mr Wilson's own part in not adopting the available safe approach to the Bay 28 ladder. He assessed that at 60 per cent. Originally both parties were disposed to question that figure, but in the event no attempt has been made before us to disturb it.

The procedural issue

11. Cogently-expressed findings on what are essentially issues of fact and judgement, made by a judge who has heard the evidence, would normally not be open to question in this court. However, as I have already indicated the analysis of the case that prevailed with the judge only emerged at the end of the trial, when all the evidence had been given, and given on assumptions as to the nature of the case different from those later adopted. Mr Hay for Maersk appears not to have raised objection at the time (he reasonably told us that when an unpleaded and unargued case emerges in final written submissions there is some difficulty in countering it) and he does not base his appeal on any point of procedure as such. But he does argue that evidence simply was not available to the judge to justify his conclusions.
12. After the trial closed there were further written submissions, but only on an incidental argument raised by the judge, and not in relation to the extensive case finally raised by Mr Wilson. I am well aware of the luxury of hindsight. I would also respectfully commend the judge for deciding the case on the substance and merits that eventually emerged, however belatedly, rather than turn it away on a procedural ground. I also appreciate that he was not faced with any protest from Maersk. All that said, however, when things took the turn that they did, and the judge realised that he was going to decide the case on a new footing, it would have been better for specific warning to have been given to the parties that that course might be taken, and submissions to have been invited. They might usefully have been made in the context of a properly pleaded case by Mr Wilson.
13. I say that for this reason. As the remainder of this judgment will show, I do not think that in the event any injustice was done to Maersk by the course adopted by the judge. Maersk did however legitimately explore before us whether the judge's conclusions could be supported from within the evidence, and Mr Wilson equally legitimately responded in kind. Because the case came late that had not been done at the trial. That process involved the reading before this court of a fairly substantial amount of the evidence in the court below, a course that in other circumstances we would not have countenanced. It also meant that an appeal that, on the merits, should have occupied no more than an hour or two engaged the court for a whole day. Had the judge had the benefit of writing his judgment on the parties' analysis of the new theory in the light of the evidence I have little doubt that he would have viewed the matter in the terms that I venture to set out below, and would have so said in his conclusions. There would then very likely have been no appeal at all; or, if an appeal were brought, it would have been in much more manageable form than the appeal before us.

The appeal

14. Mr Hay listed his complaints about the state of the evidence in §4(6) of his skeleton, which he took us through in some detail. It will be convenient to set that out:

"The essence of this appeal is that the Judge could not

properly make such findings without it being pleaded

proved or admitted that:

(i) there were 7 identical forward ladders, which were different from the Bay 28 ladder;

(ii) the Claimant descended them regularly if not daily;

(iii) the Claimant's manner of descending the Bay 28 ladder was a natural way to descend the forward ladders:

(iv) the Claimant did not descend, elsewhere in the vessel, other ladders with the different configurations from those of the forward ladders, either daily or more frequently or otherwise with regularity; and that therefore

(v) relevant system of work did not also include use of differently configured ladders in the vessel other than in the walkway ladders."

15. I will be forgiven for taking these points fairly shortly. To the extent that they raise matters of evidence, there was evidence on which the judge could act. To the extent that they raise matters of judgement, the judge's conclusions were open to him.
16. Much was made of the first point, that it was essential to the judge's reasoning that the ladders in the other bays were the same, in terms of inadequate handrails, as the Bay 28 ladder. Although this was not directly in issue at the trial, the other ladders were investigated, largely indeed at the initiative of the judge. Reading the evidence as a whole, it is absolutely clear that it was assumed on all sides that the handholds on all the ladders were the same, and in my view Mr Parkin, the ship's safety officer, so said in terms. I am also fortified in that view by such photographs of the ladders as we have seen, that demonstrate a standard type of ladder, which there is every reason to have installed at every point in the ship where the same function, ascent to and descent from standard walkways, was required.
17. As I have already said, I would have preferred that the judge had given himself an opportunity to make this finding. But if he had addressed the question, I have no doubt at all what conclusion he would have reached.
18. As for Mr Wilson's methods and practice, he gave clear evidence that he used the ladders daily, and that in so doing he used the method that he employed at Bay 28 on the day of the accident. That was simply a matter of fact, which the judge was well entitled to accept from a witness whom he found to be totally reliable. He did not need evidence, expert or otherwise, to establish that that was the only, or a natural or expected, way of approaching an undoubted problem. That was a matter for the judge's judgement. Somewhat similarly, there were no doubt other ladders, serving other functions, in other parts of the ship. But the question for the judge was whether a habit or practice had been developed that foreseeably affected the way in which Mr Wilson approached the Bay 28 ladder; and whether the employer was culpably responsible for the formation of that habit. Or, if the issue is expressed in terms of safe system of work, whether the system for doing the work on which Mr Wilson was engaged, reading the temperature gauges, was safe.
19. In truth, this was a case, familiar enough in general terms, of a practical and conscientious employee faced with working conditions that, as he told the judge, he found unsatisfactory, but nonetheless not complaining but getting on with the job with the material provided by the employer, even though that involved a hazardous adaptation to the needs of that material. Once the judge was shown the case in that light, his clearly expressed conclusions were plainly open to him, indeed in my view were inevitable. Despite the procedural vicissitudes of the case he had ample evidence on which to base those findings. I would dismiss this appeal.

The Judge's costs order

20. The claimant complains of the judge's order as to costs. We were requested not to read the papers relating to that appeal until we had determined the substantive appeal, and we did not do so. On my Lords indicating that they were of the same mind as expressed in §19 above, we informed the parties that we would consider in the first instance the written submissions on the costs issue, in the hope of shortening any oral argument. What follows is, accordingly, only a provisional view on the costs appeal; I understand that is the same provisional view as is held by my Lords.
21. The Judge awarded damages of £76,000. About a month before trial Mr Wilson had made a claimant's Part 36 offer of £70,000, which was not taken up. Upon the claimant bettering that offer at trial he argued that the judge should apply the terms of CPR Part 36.21 (2)-(5), which read:

"(2) The court may order interest on the whole of part of any sum of money (excluding interest) awarded to the claimant at a rate not exceeding 10% above base rate for some or all of the period starting with the latest date on which the defendant could have accepted the offer without needing the permission of the court.

(3) The court may also order that the claimant is entitled to –

a. his costs on the indemnity basis from the latest date when the defendant could have accepted the offer without needing the permission of the court; and

b. interest on those costs at a rate not exceeding 10% above base rate.

Where this rule applies, the court will make the orders referred to in paragraphs (2) and (3) unless it considers it unjust to do so."

22. The Judge did not apply the full range of rule 21. Instead, he made a special order, that the Defendant should pay the Claimant's costs on the standard basis, but with interest at base rate on those costs: in other words, he exercised the power granted him by CPR 36.21(2), but not the powers provided by sub-rule (3). His main reason for not making all of the orders envisaged by CPR 36.21 (2)-(3) was that the point on which the claimant had succeeded had been raised late in the case. He is also reported as observing that because the offer had been made late the consequences of his limited order would not be so great as if the offer had been made earlier; but I do not understand the lateness of the offer to have been the reason, or indeed a reason, why the limited order was made.
23. In principle, decisions about costs are for the trial judge. Here, moreover, the judge's reason for limiting in some way the claimant's costs was entirely justified. The account of the trial given earlier in this judgment demonstrates that the point on which the claimant succeeded had not been taken in the pleadings, and was not advanced in any discernible way until very late in the day. While, as I have indicated, I am satisfied that the trial was in the event nonetheless fair, it was certainly open to the judge to mark that history in his costs order.
24. Nor can I agree with the claimant's argument that CPR Part 36.21(4) is an "all or nothing" provision, requiring the court either to make all of the orders envisaged by sub-paragraphs (2)-(3) or none of them. That is not what sub-paragraph (4) says, and it would be very surprising if that had been the intention of the rule-maker. Rather, the rules provide the judge with a range of possible ways of marking a failure to meet a Part 36 offer. In the normal case that falls within rule 21 the judge will no doubt think it just to make all of the orders. In an exceptional cae, which this case certainly was, he is free to use his discretion and judgement: which the judge did, in terms with which this court cannot interfere.

Dyson LJ:

25. I agree

Ward LJ:

26. I agree.

Order:

27. The Defendants' appeal against the Order be, and it is hereby, dismissed.
28. The Claimant's cross-appeal against the Order be, and it is hereby, dismissed.
29. The Defendants do pay the Claimant's costs of this appeal, to be assessed if not agreed, save as otherwise provided by paragraph 4 below.
30. The Claimant do pay Defendants' costs of the cross-appeal on costs, to be assessed if not agreed.
31. There be a mutual set-off of the costs orders at paragraph 3 & 4.
(Order does not form part of the approved judgment)