1. This
matter comes before the court in the form of an appeal from the Order of the
Master of the High Court made herein on the 16 December, 1996. The matter came
before the Master as an application under Order 50 Rule 4 of the Superior Court
Rules seeking permission for an engineer engaged by the plaintiff to examine a
certain property belonging to the defendants namely the area on the platform
situate in the Irish Sea off Cork where the accident, the subject matter of
these proceedings, happened.
The
Master made an order that the plaintiff's engineer be entitled to carry out an
inspection of the defendants Oil Rig subject to signing a Form of Indemnity
that is Form No 1306.
From
this order the plaintiff appeals and seeks an order that the plaintiff's
engineer be entitled to inspect the defendants Oil Rig without the limitations
imposed by this release and indemnity.
In
practical terms the issues between the parties can be identified as follows:-
The
plaintiff suffered an injury while on the defendants Oil Rig and he alleges
that this occurred by reason of the negligence of the defendants. In order to
establish his case he requires that the Oil Rig to be inspected by his
engineer. The defendants have no objection to this inspection being carried out
however they will only allow the inspection to be carried out providing that
the plaintiff's engineer provides them with an indemnity in respect of any loss
or damage or personal injuries which he may suffer "whether or not due to the
negligence in whole or in part of (the defendants) . . .". In other words the
defendants wish to be absolved from all responsibility for the safety of the
engineer while he is on their Oil Rig. The engineer has refused to carry out
the inspection on that basis and it is in these circumstances that the matter
comes before the court. The plaintiff says that his engineer should be entitled
to carry out the inspection without the necessity of giving the defendants the
total indemnity which they seek or indeed any indemnity. The defendants say
that since they do not wish to have the plaintiff's engineer on board their Oil
Rig they must be allowed to impose such terms as they consider appropriate if
he is to carry out his inspection and these terms amount to a total indemnity
against any loss or damage which he may sustain.
Order
50 Rule 4 of the Superior Court Rules provides:-
"The
court, upon application of any party to a cause or matter, and upon such terms
as may be just, may make any order for the detention, prevention or inspection
of any property or thing being the subject, cause or matter or as to which any
question may arise therein, and for all or any of the inspection aforesaid may
authorise any person to enter upon or into any lands or buildings in the
possession of any party to such cause or matter and for all or any of the
purposes aforesaid may authorise any samples to be taken or any observations to
be made or experiments to be tried, which may be necessary or expedient for the
purpose of obtaining full information or evidence".
Since
there is no dispute that the carrying out of this inspection is a reasonable
request for the plaintiff to make, the issue that arises in this case is
whether the defendants are reasonable in seeking a full indemnity and if they
are not then what terms, if any, should be imposed as being "just" in the
circumstances.
Counsel
for the parties have informed the court that this matter has not been
considered on any previous occasion by the court. This is true, but in Bula
Limited v Tara Mines Limited (No 1) [1987] IR 85 Murphy J had to consider an
analogous matter and he pointed out on that occasion that the purpose of the
rule was to ensure that the litigant is given the information he needs "to
present his case properly" and to that end the court has power to determine the
terms on which such an inspection should take place so as to ensure that the
business of the court is not obstructed by the party against whom the order for
inspection is to be made.
In
Wymes v Crowley (unreported) Murphy J, 27 February, 1987, the plaintiff sought
liberty for the drilling of bore holes on the defendants land and he claimed
that the defendants liability could be established by so doing. Murphy, J
granted the order for making the bore holes but required the plaintiff to
indemnify the defendants against any damage caused by the plaintiff's
occupation of the site. This then is, in my view, a clear indication of the
principles which should guide a court in considering applications of this sort.
It must in the first instance ensure that circumstances are created in which
the plaintiff will have facilities for presenting his case to the court so as
to enable the court to have the benefit of all the advises and information
which the plaintiff may wish to make available to the court. On the other hand
the defendants rights as a property owner must be protected during this
inspection so as to ensure that the inconvenience of the inspection is not
injurious to his rights as a property owner.
In
the circumstances of the present case the court must and does recognise that an
Oil Drilling Rig off the Cork coast is undoubtedly a place of considerable
danger to anyone boarding the Rig but, however unwelcome this visitor may be,
the defendant is not absolved from the obligation to take reasonable care for
his safety since the business of the court requires that he attend and carry
out his examination. To allow the defendants a total immunity from
responsibility would of necessity mean that no inspection would take place and
the court would be deprived of the benefit of engineering evidence and would so
be obstructed in the administration of justice.
During
debate the provisions of the Occupiers Liability Act, 1995 have been
considered. This Act entitles occupiers of land in certain circumstances to
limit their liability towards visitors. In my view a court when engaged in
fixing the terms upon which an inspection by an engineer may take place, may,
in appropriate circumstances, fix terms other than those which the occupier of
land would provide for under the provisions of the Occupiers Liability Act,
1995 and, in an appropriate case, to provide that the duties, liabilities and
rights which subsisted prior to the coming into operation of the Act shall
apply to the engineer carrying out the inspection.
In
the present case the defendants have made it clear that they will agree to the
inspection providing that they get a total indemnity from the engineer
absolving them from all responsibility for injury on the Drilling Rig however
it is caused. In my view this is not a reasonable provision and I reject this
as the appropriate terms under which such an inspection shall be carried out. I
direct that the inspection shall be carried out and that the engineer shall not
be required to sign the release and indemnity referred to in these proceedings.
Since
this proposed release and indemnity is not reasonable then the liability and
obligations of the defendants shall remain and subsist, whatever they may be,
without reference to the proposed release and indemnity.
I
accordingly allow the appeal and make an order that the engineer engaged by the
plaintiff be entitled to inspect the defendants Oil Rig at such time and in
such manner as may be agreed between the parties.