High Court of Ireland Decisions

1. I tried this case on Thursday the 30th of November, 2000 and Thursday the 7th of December, 2000. Due to listing commitments I had other duties to perform in the intervening days. The case opened before me, with the Plaintiff claiming damages for negligence on foot of an extensive list of breaches of statutory duty. This is of some significance in relation to the submissions which were made to me by the Defence at the end of this trial.

2. The Plaintiff’s claim is for damages for that on the 22nd day of March, 1995 the Plaintiff, in the course of his employment with the Defendant on board the Defendant’s fishing boat, then situated off the County Donegal coast, was engaged in hauling in a fishing net on board the said vessel when, due to the negligence of the Defendant, his servants or agents, in and about the construction, layout, supervision, training, control and employment of competent employees, the Plaintiff was dragged along the deck of the said vessel, whereby he sustained personal injury, loss and damage.

3. The Plaintiff furnished particulars of negligence and breach of duty and they are fully set out in the statement of claim. Suffice to say that having read the pleadings before the action commenced, I was fully aware that the Plaintiff’s cause of action

4. The Plaintiff’s case was opened by Mr. Gordon S.C. in a reserved but robust fashion. At the conclusion, Mr. Nugent, Counsel for the Defendant, indicated to the Court that he would not be strenuously challenging a finding of negligence against the Defendant, his client. He would nonetheless be seeking to make a substantial case of contributory negligence against the Plaintiff having regard to his age, experience and skill.

5. I accepted that admission as constituting an admission of breach of statutory duty as well as breach of common law duty of care, and the case so proceeded.

6. Having regard to that submission a Court would have little difficulty in concluding that the Plaintiff would and does succeed on the issue of negligence. I therefore have no difficulty in concluding that the Defendant is liable to the Plaintiff on both a statutory and common law basis.

7. What occurred was as follows which account I accept as fact. The Plaintiff was on duty at the stern of the said boat when the Defendant crew commenced the difficult and hazardous operation of hauling in the net then full of the catch. To the knowledge of the Defendant (for at least six months prior to the accident the subject matter of this case) the crew man operating the haulage machinery was unable to see the net as it was being hauled out the stern of the boat. Any hitch in the retrieving process could be dangerous to the safety of the boat and crew.

8. The Plaintiff was close to the stern rail and as the hauling operation was taking place a hitch arose whereby the net was about to snarl. The Defendant’s attention was drawn to this and appreciating the necessity of guiding the net rope onto the

9. Having heard the evidence and submissions over two days I am, upon the evidence, left with one issue, on liability, to decide, namely the degree of contributory negligence (if any) of which the Plaintiff may be guilty.

10. I especially note that, notwithstanding the trenchant cross-examination of Mr. James Sheehan - the remainder of the medical evidence is agreed between the parties.

11. In respect of the issue of contributory negligence, I have the following opinion to express.

12. The matters pleaded by the Defendant in his defence, delivered on the 12th of October, 1998 are as follows:-

13. The Defendant further reserved the right to raise particulars of negligence and/or contributory negligence at the trial of the action.

14. The issue as to whether a breach of statutory duty was established is of importance in this case for the following reasons.

15. The object of the particular statutory obligations relied upon by the Plaintiff in this case is, to my mind, to compel the employers of a trawler such as this, to take certain precautionary and preventative measure designed to reduce the possibility of accident. It is my view that the particular section imposes an absolute obligation in the event of the precautionary and preventative measures not achieving their ultimate object.

16. The Defendant made the case that because the Plaintiff had engaged, along with other crew members, in a discussion with the Defendant as to the safety alterations which ought to be taken in regard to the fishing vessel in question, he should therefore be made liable. It has, however, long been accepted that there is no defence of delegation of a statutory duty whereby a person subjected to a statutory duty can relieve himself fully of liability by claiming that he has delegated the duty or its performance to another. The general principle received statutory recognition in section 57(2) of the Civil Liability Act, 1961 which provided:

17. The defendant cannot escape liability for breach of his statutory duty by arguing that he diluted his obligation to provide a safe workplace by discussing the matter with his employees.

18. However, while delegation of a statutory duty is not a special defence this does not mean that the defendant will always be fully liable in every case where there is apparent delegation. The principles of contributory negligence still apply. In Ginty v. Belmont Building Supplies Ltd. [1959] 1 All ER 414 at 423-424 Pearson J. captured the principle:

19. In an action for breach of statutory duty, contributory negligence has a different meaning from that for an action for common law negligence. There is an essential difference in the nature of the acts and the quality of the acts which would amount to contributory negligence in the one vis-a-vis the other. It seems to me that the essential difference is that in relation to statutory duty an error of judgment, heedlessness or inadvertence, will not constitute contributory negligence, because the statutory protection was passed for the express purpose of saving workers such as the Plaintiff from their own carelessness and inattention. While in relation to contributory negligence and a common law duty, an act of inadvertence, if it is an act which a reasonably careful workman would not do, will constitute contributory negligence. See Higgins v. South of Ireland Asphalt Co. Ltd. (1961) 101 ILTR 168 (SC).

20. The principles in relation to breach of statutory duty and contributory negligence were enunciated by the Supreme Court in Stewart v. Killeen Paper Mills Ltd. [1959] IR 436 and Kennedy v. East Cork Foods [1973] IR 244. In Kennedy a jury had found contributory negligence against the plaintiff in relation to his claim for common law negligence but had exonerated him of contributory negligence in his claim for breach of statutory duty. In the Supreme Court O’Dálaigh C.J. quoted with approval Henchy J.’s direction to the jury in the High Court where the learned judge had stated in relation to contributory negligence and breach of statutory duty:

21. O’Dálaigh C.J. further adopted Lord Wright’s statement in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] AC 152 that

22. The Court must take into account, as Lawrence J. stated in Flower v Ebbw Vale Steel, Iron & Coal Co. [1934] 2 KB 132, that “it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence”.

23. These principles have been implemented in practice by Barron J. in Dunne v. Honeywell Control Systems Ltd. and Virginia Milk Products Ltd. [1991] ILRM 595 and in Kelly v. McNamara High Court (Budd J) 5th June, 1996, unreported.

24. The threshold of negligence in a “more positive and definite way” was not reached.

25. On the other side of the line, in Kelly v. McNamara Budd J. stated that he did “not think that the plaintiff as an experienced carpenter and an obviously responsible and competent tradesman can escape all liability for succumbing to the taking of an obvious risk”. He held that “a small portion of the fault must be ascribed to the Plaintiff for putting himself in peril...”

26. Turning to the case in question, I accept that the Plaintiff was an experienced seaman/fisherman. I nonetheless find it difficult to accept that because an employee is

27. My view of the evidence is that what was in operation on the day of the accident was a dangerous operation to the knowledge of the Defendant. He may not delegate his duties under the statutory code in this regard.

28. On the evidence the Plaintiff acted in a moment of crisis. The transcript contains a detailed account of how this occurred. He, the Plaintiff, ought not to have been required to so act. Therefore, on the evidence, I accept the Plaintiff’s account, it is uncontradicted, the very complaint that the Plaintiff has is that no other person could have foreseen the actual events which led to his injury.

29. I have considered the Defendant’s allegation of contributory negligence and, on the evidence, I am unable to conclude that there should be a finding of contributory negligence. I now turn to an assessment of damages.

30. As to special damages this is an agreed figure in the sum of £7,500.00.

31. As to damages to date and damages in the future I rely on the agreed evidence with the evidence of Mr. James Sheehan. I will allow a figure of £30,000.00 damages to date and a figure of £30,000.00 damages in the future.

32. As to the claim that the Plaintiff may be unable, due to the onset of arthritis, to role as a skipper of the trawler, when he attains the age of 50 or thereafter, I have the following view.

33. I accept the evidence of Mr. James Sheehan on this crucial issue and I clearly accept the agreed medical evidence submitted to me by both parties.

34. I conclude that on the balance of probabilities there is a problem that may arise at some state in the future, when the Plaintiff is between the age of 50 and 55 years. The Plaintiff on the balance of probabilities may be unable to continue his duties as a skipper.

35. I therefore conclude, doing the best that I can on the evidence laid before me, and accepting the medical evidence, that the plaintiff may lose 2 to 3 years of his livelihood as a skipper. Therefore, in the circumstances I would allow for future loss of wages, a full two years loss of the equivalent of the Plaintiff’s net yearly loss of £37,250.00 (which is agreed between the parties). Therefore, there will be a finding for future loss in the sum of £74,500.00.

36. There will be judgment for the plaintiff in the sum of £142,500.00 together with his costs.