High Court of Ireland Decisions

On the 6^th July, 1996 he was on a six week contract in Dubai on the M.V. Pacific Construction which had been chartered by the defendant. On the 17^th August, 1996 he came back into port when his contract ended, with a view to flying back home. He went to the Seamen's Club in the vicinity and had a meal and two bottles of beer. He returned to the ship, had a shower and changed. There had been about twelve people showering and walking in the corridor outside which, he said, had become wet.

He had two bags, one in his left hand and a shoulder bag on his right shoulder. He remembers coming around towards the stairs and turned right. As he did so he apparently fell and was left in a heap at the bottom of the stairs. He had no memory of falling. He spent nine days in hospital and suffered a cerebral contusion, had a loss of hearing in the right ear with tinnitus and separated the acromiun clavicular in each shoulder.

On the 1^st September, 1996 he was airlifted home.

In April, 1998 he got meningitis and an epileptic fit and was put on medication.

He was in the Mercy Hospital for ten to twelve days and saw Dr. Harrington who prescribed anti-seizure medication.

He continued to suffer from loss of memory and loss of balance.

He is no longer fit to work as a diver or to move into a supervision position.

In his evidence he said that the floor outside the shower and his cabin was of shiny vinyl with a polished surface. There were wet patches on the corridor floor from the flip-flops of the other men criss-crossing from shower room to cabins.

His luggage consisted of a large hold-all in his left hand and a shoulder bag and brief case in the right. He was wearing rubber soled sandals. Someone had shouted that the bus was on the jetty to bring him to the airport. He had to go sideways because of the bag and went to grab the banisters. The last thing he remembered was tumbling downstairs. He had no memory of putting his foot on the step. He concluded that he had slipped on the water in that area. He was vague regarding his period in hospital. He could not hear his wife on the telephone.

He was examined by a neurologist in Dubai. He flew back to England with a doctor. He was very confused. The tinnitus was driving him crazy and he could not balance. His shoulder was uncomfortably sore. He went to a doctor in Portsmouth who told him that to put the shoulder back would cause more problems.

He said he was not intoxicated as it would be dangerous to be so in Dubai.

Afterwards he had some seasonal work lobster fishing. His shoulder was sore and he had problems with balance. His earnings were never over £150 per week and he needed to spend a lot on an old boat. A year ago he and his wife started off a gym. He takes home €250 gross.

He can now drive but was not allowed to do so for two years because of meningitis. His social life was limited.

In late 1998 he sold him home and at present runs a gym and does some fishing with an angling boat.

He is in receipt of disability payments in the UK and here.

He claims loss of earnings by reason of breach of contract and/or negligence of his employer.

He agreed, in cross-examination, that there were slack periods with McDermot's.

He did not complain about the floor. He said that one always walked carefully, on guard. He went to grab the rail with the right hand and recalled slipping, with his legs going from under him. He said he didn't put a foot on the stairs. He said he never got to the stairs, never got that far. He said that there was a lip on the stairs which was too steep and the surface of the stair area was wet from the shower area.

He said that he was leading down the stairs with his left shoulder.

It was put to the witness that "you were caused to fall on the stairway". He agreed.

The witness was referred to an affidavit of a Mr. David O'Donoghue, sworn the 19^th July, 1999, in relation to proceedings against J. Ray McDermot Diving International which were not before the Court.

He agreed that when the statement of claim was issued in March, 1998 and Mr. O'Donoghue's affidavit sworn in July, 1999, he did not have the recollection that he had in the witness box. He said an awful lot had come from being in court and seeing the video of the vessel. From talking about the vessel he remembered "stuff that I had not remembered up to now". He said that "Nobody set a snare up there so I had to have slipped. It had to have been wet and slippy." . . . "It would have to have been that." The witness said what he did remember was going to the stair, making a right turn. He said he could only say that it was usual, that normally when people were showering, that area was going to have wet patches. He did not inspect it nor did he see anything on it. He did not recall its condition.

The plaintiff was asked if he remembered what the floor was like and responded as follows (p.44 of the transcript of the 28^th November, 2002):

"I didn't inspect it, Your Honour. I can only say usual, normally when people are showering that the area is going to have wet patches.

Judge: When you say you did not inspect it; you didn't see anything on it?

No.

Mr. Gardiner: You do not recall the condition of it?

I do not.

You don't know why you slipped, if indeed you did slip?

No.

Now, in any event, you fell down the stairs with no hands free. You did not have hands free when you fell?

I remember I was reaching on the turn, reaching for the rail on the right hand side.

You had let go of your bag on you right hand shoulder that was hanging?

Hanging on my shoulder.

Do you recall letting go of it, taking your hand off the handle. Do you actually recall this?

I recall reaching.

I see. When did that recollection come to you?

Long ago. I don't know."

The witness was then questioned regarding the onset of meningitis in 1998, his return to Ireland and his occupations since then.

In re-examination the plaintiff had only a vague recollection of having met a neurologist in Dubai, provided by the defendant. The tests applied indicated a loss of memory. A statement was put to the witness regarding the incident where he had stated:

"I was making to descend in forward fashion with no holds, no hands free."

He said that the proximity of the showers to the cabins would make the floors slippery. He had turned to his right because he planned to go down, to "crab" down the stairs.

He had already packed and threw his shaving gear into a large holdall, canvas type bag. He had a smaller, soft bag, similar to a briefcase, with a handle and strap, packed fairly full. The bigger bag was heavy and held in his left hand. The smaller was held on his right shoulder and hand.

He said that he supposed that some seamen did not get into the shower closest to them and must have transversed the top of the stairs. He had towelled down in the shower, went back to his cabin and then dried off. There had been people showering before and after him. The floor was quite slippery. He agreed that Mr. Gillen, holding a cup of tea, had come in to his room. He did not slip. He went upstairs across the mouth of the stairs. He agreed that Mr. Doyle who had shouted up from below and had gone down the stairs without incident, with the same type of baggage or an amount of baggage as himself. He agreed that he was the last to go. He was not concerned that he might miss the bus, it would wait. He was wearing leather sandals with a rubber sole.

He put the big bag out of the door ahead of him then one foot out of the door, grabbing the bag. He put the shoulder strap of the other bag over his shoulder and got outside, picking the big bag up and proceeding diagonally towards the stairway on his left, probably two or three steps. He had done this hundreds of times before in the previous three months. He was leaning to his left hand side at a sort of angle. He remembered getting to the stairs and turning right to go down the stairs. He remembered turning when he got to the stairway and said that he would have to crab his way down the stairs in a left direction because the bag was too big to go down straight. His plan was to grab the rail on the right with his left foot first. He remembered turning and going to grab the rail when his legs went from under him. He did not recall slipping. It was the only thing he could think of that could have happened. Nobody tripped him.

That recollection had been there for quite some time. He agreed that it was possibly 1998 as he had not known it when he saw Mr. Turner in September, 1996 or Mr. McIvor in 1997. He did not remember telling Mr. Callan that he was climbing down the stairs when he fell. He could not remember going down the stairs.

A little later he said that the recollection that he slipped probably came to him in the witness box. He had come to the stairs and his legs just went. He did not put a foot on the stairs. He said that there were a lot of things he now remembered and remembered a year back but did not remember up to that point what the deck was like or what its colour was. At first he thought he had slipped or tripped down the stairs but said that there was nothing to trip on so it had to be a slip. As he had not gone that far he had no complaint about the stairway. He does not know what he said to other people. He said he did not know why his legs went from under him. The allegations with regard to the stairs had nothing to do with it as he had not got that far.

In related proceedings against J. Ray McDermott Diving International, in Mr. David O'Donohue's affidavit of the 19^th July, 1999, it was stated that the accident was caused by "the negligence and breach of contract of his employer in that the stairway was unsafe and dangerous and was located close to a shower room. I also say that the flooring around the stairs was of a linoleum type and the top of the stairs had a ridge along it." He agreed that no one had inspected the vessel on his behalf.

He said it would have to have been that the top of the stairs was wet and slippery. He said he did not inspect the floor but could only say that, normally when people were showering, that the area was going to have wet patches. He did not recall the condition of the floor. He did not know why he slipped.

He agreed that in 1998 he contracted meningitis which precluded him from working as a diver and told the Court what he had planned to do in the future, had the accident not happened. He had planned to have given up at about the age of 50. He gave the details of his income.

He vaguely remembered having spoken to Mr. Sam Ramsay on the 12^th September, 1996. He did not recall telling him that he was making to descend (the stairs) in forward fashion, with no hands free. He does not remember the meeting or saying that as he progressed he either tripped, slipped or overbalanced and pitched forward. While he did not know if he signed a statement to that effect, he identified his signature on the document handed to him. He did not think he had been provided with a copy of that statement. His memory was not very good in September, 1996.

He vaguely remembered having met an American doctor, Dr. Dornan, whose report of the 28^th August, 1996 was referred to. His recollection at that stage was bad. He said he could not keep things in his head.

Mr. John Gillen had had medical training as a nurse and had worked for Qatar Petroleum as their company representative on board a saturation diving vessel, and before that with McDermott Diving. He described the conditions of work and pay.

He was with the plaintiff during the course of the evening after he had come back from the Seamen's Mission and described the plaintiff as being happy having finishing the job – just his usual, jaunty self.

He described the flooring on the corridors as dark, industrial vinyl flooring. The flooring was generally in good condition 99% of the time but at shift change the floor would get damp and wet and could be quite treacherous and slippery. Having seen the plaintiff, he went upstairs and then heard a clatter, as if someone dropped a box. There was shouting and noises and, as he went downstairs he saw the plaintiff at the bottom of the stairs with his head jammed up against the bottom of the wall in front of the stairs. He was all twisted and lying in an unnatural position. He was unconscious – just the odd moan and groan. He stayed with the plaintiff until the medical people came. He went with the plaintiff in the back of the ambulance together with the McDermott medical personnel.

As a nurse, he was in a position to re-insert an I.V. when the plaintiff, throwing up his arms, had pulled it out.

There was pressure on the showers. There would have been water on the floor. Half the users would not have footwear, others would have little rubber flip-flops. He thought the plaintiff had dressy sort of sandals on.

Under cross-examination, Mr. Gillen having said that he had a shower at 6 o'clock when the flooring was not treacherous. He got to his room without slipping. He did not know what was on the soles of the plaintiff's shoes. He was possibly wearing the same soled shoes as the plaintiff.

It was common knowledge that the shower area was wet at shower time. Everybody was aware of that. He could have, but did not recall, mentioning a problem with the floor being wet in the accommodation area. It was not necessarily a complaint but he may have referred to it in a conversation. There was no formal complaint. He never criticised the design of the stairs or the make up of the accommodation area or the flooring there.

In relation to the history taken at the hospital, it was recorded:

"He was admitted after a history of a fall on the stairs under the affects of alcohol. He vomited."

In commenting on this, Mr. Gillen said that he had told the receiving officer in the emergency room in Dubai that the plaintiff had a couple of beers. He would have been neglecting his duty if he had not said that.

When he was on shift he was responsible for safety, but not in the cabin area. It was not an accurate statement that the plaintiff was admitted to the hospital after his fall on the stairs under the affect of alcohol. He appeared normal and coherent, just his normal self. The vomiting mentioned in the hospital note could, he said, be a feature of the head injury. He did not attribute any cause of the fall, just passed on what he thought was relevant and accurate information.

Mr. Curry, technical witness for the defence, produced a report for the defence which identified the finish as a "standard lino finish". He had used the word linoleum as a generic term but had not examined the floor covering in the alley ways as he was concerned with the steps in relation to which the pleadings claimed caused the incident. Linoleum would include vinyl. He had examined the ship on the 17^th June, 2000 when it was in dry dock at Mobile, Alabama. He had inspected and photographed the accommodation area, the shower room and the stairwell and described these.

The ship, now called the Seaway Hawk, was built in Japan in 1978. It was entered with the Norwegian equivalent of Lloyds Shipping.

There were sills on the exits from the shower room of 8 inches high. His report indicated that he had no criticism with the lighting, nor of the construction of the vessel insofar as the accommodation block was concerned. That block was well maintained.

His conclusion was that the floor coverings, particularly the stairs themselves, appeared to be in good condition. A good handrail was provided. The anti-slip tread bar on the nose of the step was in very good condition. The stairwell itself was lit and there were no known defects. He felt that the stairwell was entirely safe. The environs of the stairwell were very well lit. The floor covering immediately adjacent to that was in good condition.

He had no criticism of the construction of the design or safety of the accommodation block in any way.

Mr. Denis Wood, Consultant Engineer, did not inspect the locus. His evidence related in a general way to the composition of lino in the 1930s and 1940s. Lino was now used as a generic term to mean smooth, flexible floor covering, frequently with some polyvinylchloride and various polymers to give it a degree of flexibility. This type of floor covering varied from an extremely smooth, shiny, reflective surface to ones which had a degree of texture and could have additives to the surface texture. The less surface texture, the poorer or the less grip it had under wet conditions. Because of that, in the last fifteen years, there had been an increasing development to specify the tendency to slipperiness in wet conditions, simply by measuring the surface roughness of the flooring. Smooth, shiny surface lino is generally regarded as being good under dry conditions but poor under wet conditions. Good has a coefficient of between 0.4 and 0.75. Fair to poor is between 0.2 and 0.4.

Mr. Wood said that the standard to which the surface should be was no different in the place of work or elsewhere. In a place of work where the employees are obliged to stay, the employer had a responsibility to carry out hazard and risk analysis and in so doing, in respect of the floor and floor materials, to take into account the state and condition the floor may be in from time to time. A thin film on a smooth surface is and can be sufficient to make it slippery, that is below 0.4. A very crude rapid method of evaluation is how the tip of the finger slides on such a surface. The top of the stairs or a landing is a fall hazard and [requires] a greater level of grip and friction. This is particularly so when someone is turning. It was not an appropriate floor surface to have in the circumstances. The provision of absorbent matting at key places or the texturing of embedded carborundum would be an answer.

Mr. Wood's opinion was that the employer was not meeting the standard of taking reasonable care for the safety of his employees when such a surface would be slippery when wet and, as such, unsafe.

The possible explanation for the accident was that the plaintiff had toppled or fell over for no apparent reason. Secondly, he might have been pushed. Thirdly, some medical factor or cause in terms of his condition could have caused him to topple or, fourthly, he may very well have toppled because of an excess of alcohol. He may have tripped or slipped.

The witness was of the opinion that, because of a combination of factors, the most probable cause of his fall was slipping while in the course of turning to the right and at the same time reaching out to go down the stairs.

He agreed, on cross-examination, that there was no evidence that the top of the stairs was wet. He did not hear Mr. Gillen's evidence, who did not say the floor was wet when he was the next man down. He did not have a note of that. He had only noted the nature of sole of the plaintiff's shoes. He agreed that he could not fit his bags in the passage.

Mr. Wood said that he had not examined the ship nor any ships of that construction. He did not check the slip-resistance or have any knowledge of the actual surface.

He understood that the plaintiff was holding the handle of the smaller bag, even though there was a strap over his shoulder. He agreed that the plaintiff and his bags could not fit in the alleyway. He believed the stair was narrower than the alleyway. The rail, he understood, started at the landing, as was apparent from the photograph. His interpretation was that the plaintiff was effectively leading with his left hand side. In his opinion it was not far more likely that he was on the stairs and toppled and fell down. He disagreed that it was at least as likely that he fell down the stairs than that he slipped.

He agreed that the ship was built according to the rules of the American Bureau of Shipping classification. His criticism related to the choice of materials used as floor covering. He did not know of any employer of divers using a different accommodation block or different stairwell layout. He had no information on the flooring used on other ships with divers. His comparisons were based on the norms and requirements for safe walking, whether or dry land or on a ship, aircraft or elsewhere.

Twenty months after the incident the plaintiff developed meningitis. Dr. Harrington, Consultant Neurologist at the Mercy Hospital in Cork, prepared two reports, one the 14^th October, 1998 and the other the 11^th July, 2000. He had seen the plaintiff on the 17^th April, 1998 when he had been admitted to the hospital acutely that morning. He had headache and vomiting. His general practitioner had given him some antibiotics for an ear infection. The plaintiff had two epileptic fits and was then admitted under his care, deeply unconscious and with some incoherent mumbling, an abnormal blood count with a white cell count of 25,000. A brain scan showed an abnormal area in the left frontal lobe which he subsequently learned was old. Examination of the spinal fluid confirmed meningitis.

He responded well. He was still on medication which he believed he would continue to require.

Within a day or two information was received about the previous head injury. He was given reports of an MR scan of the brain done in Aljara hospital on the 29^th August, 1996. That showed a contusion in the left frontal area of the brain. There was damage to the brain tissue into which there had been a haemorrhage or some similar changes in the sub-frontal region on both sides. The major change was a left sided subdural haematoma. It was a significant head injury. Dr. Harrington understood that the plaintiff had had significant amnesia and difficulty with balance together with difficulty with speech. He had developed complete deafness on his right side, with tinnitus. He commented on the report from Dr. Dornan of the 28^th August, 1996, following the incident of the 17^th August, where the plaintiff is noted as having difficulty in remembering, even when cued. He was not able to understand instructions. He had difficulty remembering names of family members. His speech was hesitant, stammering and syntax disturbed. The last part of the report of Dr. Dornan was as follows: "His speech is nevertheless overall functional." In relation to the statement made on the 12^th September, Dr. Harrington believed that it was likely that any patient would have had the same difficulties with memory. Dr. Harrington believed that he continued to have memory difficulties but had not carried out any detailed test of memory as he was concerned more with the seizure problem. He had seen any speech [problems]. He believed that he was at risk of late epilepsy developing a week after the head trauma.

He believed that the meningitis was causally related to the trauma, as he had had trauma to his right ear. The fact that X-rays did not show a fracture or fistula which could cause bleeding from the ear to the coverings of the brain did not actually rule out such a fracture or fistula.

In cross-examination it was put to him that Dr. Murphy, who carried out a variety of investigations and found no evidence of middle ear fluid. He believed that it was not necessarily the case that the presence of fluid would support the theory that the trauma caused meningitis.

Dr. Harrington believed that 40% of patients presenting with neurococcylmeningitis got fits during their illness. The accident or trauma caused the meningitis which in turn caused the seizures. He agreed that, there was no evidence of middle ear fluid or evidence of fracture despite the extensive investigations. He did not agree that there was no evidence to support the theory that the meningitis was caused by the accident.

He referred to Jennett: Management of Head Injuries (1981) which showed that about 25% of people who had cerebral spinal fluid leakage presented with normal X-rays.

It was put to him that in October, 1998 he could not make the link and referred the patient to Dr. Buckley for investigation which came out negative. He said that he referred the patient to Dr. Buckley to try to confirm it and get his opinion as to whether he could find the fistula. If he could, he would carry out a neurosurgical procedure to prevent recurring episodes. There would be no point in surgery if one could not find the fistula. Dr. Buckley could not find any link.

At the outset Mr. Hanratty objected to the manner in which Dr. Murphy's evidence was being presented. Under Order 39, Rule 46 of the Rules of the Superior Courts and Statutory Order No. 391 of 1998, certain disclosure requirements were imposed. The name of Dr. Murphy was not included. Video evidence was not agreed. Dr. Murphy was not on the witness list and disclosure rules had not been complied with.

The Court allowed the witness to give evidence and the plaintiff was allowed time and re-examination of Dr. Harrington.

Dr. Murphy was a Consultant Neurologist since July, 1968, was a member of the American Academy of Neurology and the Association of British Neurologists. Most of his work was done in Boston, Beaumont and the Mater Hospitals. He had heard Dr. Harrington say that the meningitis contracted in April, 1998 was caused by an undetected fistula from the ear to the brain.

Dr. Murphy said that the patient had pneumococcal meningitis which is the common community acquired bacterial meningitis. Provided it is treated properly and efficiently, as the plaintiff's was, patients recover fully and are left with no sequelae. Where they suffer epileptic attacks during the course of the illness, such attacks do not continue subsequently if they are treated properly. The epileptic attacks were provoked by the bacterial meningitis which was not provoked by the head trauma.

He was of that opinion because neither the X-rays nor the CT scans nor the MRI scans found any fracture. In order for meningitis to follow a head injury there would have to be a fracture and the dura, the outside covering the brain, would have to be torn. He could not say that the head trauma provoked the meningitis. There was no evidence to support Dr. Harrington's contention. All the tests would find a tear if there were one. The plaintiff had been twenty months free of epileptic attacks and then developed acute pneumococcal meningitis over a matter of hours, associated with a fit. He could not but conclude that the fit was related to the acute invasion of the subarachnoid space by the organism.

In cross-examination he said that Jennett was writing long before the introduction of MRI in 1985 and in Ireland probably in 1988.

Dr. Harrington had said that there could be have a fracture or fistula without fluid. Dr. Murphy said there could be no fistula without fluid and that one does not get pneumococcal meningitis as a result of a spinal fluid leak. He disagreed with Dr. Harrington that there could be a fistula following trauma which was not detectable. It would not go away unless it was found and treated. While a fistula can occasionally spontaneously heal over protracted bed rest, it normally requires surgical repair.

Jennett was written in 1981. Significant developments have taken place since, particularly in radiology. If one were looking for a leak or a fistula one would go straight to MRI and would not bother with plain X-rays.

Everyone can get pneumococcal meningitis, 40% of which have seizures. Those with brain injury can get other forms of meningitis.

Dr. Dermot Ryder F.F.R., R.C.S.I., Consultant Neuroradiologist, commented on the initial films dated the 29^th August, 1996 which showed the mastoid and middle ear cells considerably filled with fluid. On the balance of probabilities these were related to the trauma. The CT scans obtained at the Mercy Hospital in Cork show fluid within the mastoid air cells inferiorly and a defect in the bone which appeared in direct relationship to the area of the fluid-containing air cells. A further MRI study of the 14^th May, 1998, in Cork University Hospital showed appearances of fluid within the lower mastoid air cells with a strong suggestion of a connection between the air cells and the CSF fluid in the area. In Dr. Ryder's opinion the appearances were strongly suggestive that there was a connection between the two areas and that this was the route of infection. The CT scan was to identify the middle ear cavity and did not actually continue down as low as the abnormalities seen on the MRI scan.

Dr. John O'Dwyer, F.R. C.P.I., F.R.C.R., Consultant Neuroradiologist at Beaumont Hospital, reported on the 7^th March, 2003 in relation to Dr. Ryder's report. The MRI scan on the 29^th August, 1996 showed changes of acute subdural haematoma over the left temporal and left parietal lobe. There was significant midline displacement to the right, caused by the haemorrhaging. There was a small haemorrhage in relation to the inferior aspect of the right frontal lobe.

Dr. O'Dwyer's interpretation of the mastoid region indicated the presence of some abnormal signal in the inferior aspect of the mastoid tip on the right side. The area of the middle ear cavity and the vast bulk of the aerated air cells and petrous bone showed normal signal. He believed that the signal change represented some fluid swelling of the mucosa which lined the air cells which, to his mind, was likely inflammatory or associated with a relatively acellular mastoid tip. Such signal change is frequently seen at MRI and is rarely commented upon by the reporting radiologist. If a signal change were due to blood accumulation or cerebral spinal fluid accumulation secondary to a fracture, the whole cellular complex should have been flooded with fluid with leakage through the external ear or through the nasal cavity. He did not believe that these symptoms were present at the time of the accident. He found no leakage of air into the cavity surrounding the brain which would have followed a fracture.

He saw no evidence of a fluid level to support the contention that the change represented the presence of fluid. He believed it likely to have been the presence of the mucosal oedema. He did not see a defect in the bone in direct relationship to the abnormality described by Dr. Ryder.

He concluded that he did not believe that the radiological studies showed the presence of a fracture. The signal change shown at MRI in the mastoid air cells was not related to cerebral spine fluid or blood. The changes described at radiology could be attributable to a chronic low grade mucosal type infection with the possibility of an associated poorly developed mastoid air complex on the right side.

Mr. Leonard, an occupational therapist, assessed the plaintiff as having a memory deficit. On the River-Meade behaviour memory test he had demonstrated a moderately impaired memory. The witness understood that the plaintiff had failed a medical test in 1997. He was of the opinion that such failure was obviously based on his brain injury. The witness then referred to the potential earnings of the plaintiff.

She said she found out about his accident from one of his friends who said that someone from the defendant's firm would be 'phoning her, which he did later that day. Over the next few days she heard very little from the defendant. She managed to trace the number of the hospital and got through to her husband. All she could hear was him groaning. Some days later he 'phoned her. He just said he was o.k. He was very hard to understand. The plaintiff was flown home with a doctor on a commercial flight. She did not realise at that point how bad his injury had been. He looked ill, sick. His speech, for the first two years was very, very slurred. He could not hear, did not communicate very much and was very withdrawn.

He had his medical records with him, X-rays and heart charts and attended for medical treatment on a regular basis. He always went on his own as an out-patient.

He had a lot of pain with his shoulder. She said that the "bone was sticking up". He was on pain killers and saw an orthopaedic specialist. She believed that nothing could be done as it might make it worse in the long run.

He had no memory and could not remember easy things. He was complaining of ringing in his head which was upsetting him.

Mrs. Collins said that they did not receive any money from the defendants until later. They did not have any accident insurance. It was a worrying time. There was payment from the Voluntary National Insurance Scheme in the United Kingdom.

She said that her husband had been a fit man. They had always trained together. She now had to force him into trying to do something, that he found running very difficult because of his balance which was a big problem. He did not feel safe swimming any more and found it disconcerting not knowing where he was in the water.

Their relationship was deteriorating because of the stress of the money. They had changed houses and had the second house on the market to release money again.

Her husband, she said, was still a sick man, recovering from meningitis. He had started fishing. On a good week he would earn £200 to £250. She earned money from classes and was a part-time secretary. In 2000 the plaintiff bought a boat with a loan from the Credit Union, from whom they borrowed £7,000. The boat gave the plaintiff an interest and helped him along a lot. They were making a loss and still paying off the loan of the boat.

Mrs. Collins gave evidence in relation to the potential earnings of the gym venture.

She said that as far as she was concerned her husband had improved a lot. While he still has some discomfort with his shoulder, it is a lot better than it was. He can do everything that is necessary to get by in life. His short-term memory was still bad and he has constant tinnitus which leads to problems with socialisation. His personality was a lot better.

In cross-examination she said she did not recall receiving a 'phone call from the seamen's mission on the 17^th August, at her friend's house, from her husband.

She did not have a copy of the letter of the 9^th September, 1996 from SRS, which was the basis of her husband's claim for breach of contract. That letter stated that she should have received her first maintenance wire transfer in the amount of $2,100. She agreed and added that she thought it had been delayed as it was a stressful time when she might have been confused. She could not remember that there was no reduction in her income because at that time her husband was coming home and would not have another job until September. There was no reply to SRS to say that the money was never received, nor a telephone conversation to the same effect. When payment from SRS ceased they went to see Social Welfare. She agreed that SRS made payments until April 1998. She remembered a letter from a Mr.Winkler and a visit by Mr. Ramsay, which she said she did not recall in detail but remembered some parts of it that were embedded in her brain.

Notes were made with Mr. Ramsay regarding the incident. Mrs. Collins agreed that she was particularly concerned that Mr. Ramsay was "pushing answers" on her husband about not having his hands free at the time. She said that a lot of things that were written down were suggested to him and he was in no position to actually say what happened. She nodded when it was put to her that her husband would have given up diving at 50 years of age and taken up fishing when they resettled in Youghal. She felt that it would have been nice to think that he could have retired at 50. He would not necessarily be fishing himself. Someone else would be fishing his boat.

She agreed that they had three houses in England though one had negative equity but netted about £25,000 sterling. She agreed that they had two properties which were rented out in Portsmouth.

Having regard to Vaughan v. Dublin Bus & McGrath, (Finnegan J.) and Reddy and Bates the capital value of €265,620 was estimated as the loss of earnings between the date of the accident and the present date. The nett figure after social welfare benefits would be €205,200. In cross examination and on the lower differential, a capital value of €144,460 was given.

The witness agreed that the plaintiff would have got back to normal in terms of his risk to epilepsy in five years after the date of the accident. The SRS payment between its cessation and five years after the date of the accident would be $75 per day for seven days each week. A period of 175 weeks would give a total value of $91,875 to the 17^th August, 2001. The calculation to October, 1998 would be $13,650. This was the date that Mr. Harrington suggested that the plaintiff would have reached maximum medical improvement, had he not developed meningitis.

The contract element of the plaintiff's case related to a provision in his contract of employment. This was confirmed by letter of the 9^th September, 1996 from Southern Risk Services Incorporated (SRS), as agents for the defendant. That provided that the plaintiff was to be paid disability pay on the basis of US$150 per day for a period of two months and thereafter to receive half pay in the sum of US$75 per day for an additional ten months or until maximum medical improvement. The defendant appeared to accept that the latter entitlement was to continue until maximum medical improvement. The evidence was that the two months' payment was made, together with the half pay, until the 7^th April, 1998, that is for eighteen months.

The issue is, accordingly, when the plaintiff reached the stage of "maximum medical improvement".

Both Dr. Sean Murphy, for the defendant, and Dr. Harrington, the plaintiff's expert, agreed that the risk of epilepsy returned to the base level after five years following head trauma.

Dr. Harrington, in his evidence on the 28^th November, 2002, stated that in his view the plaintiff had got to the stage where he was not going to improve medically two years following the meningitis, that is, somewhere near the end of 2002.

The actuary, based on an improvement five years after the date of the accident and given payments ceasing on the 7^th April, 1998, calculated that there was a total due of US$91,875. On the basis of Dr. Harrington's suggestion of two years after the meningitis, that is to October, 2002, a figure of US$68,250 was indicated.

More extensive submissions were made in relation to the other aspects of the case.

In relation to liability, the plaintiff had been hampered in his inability to discharge the onus of proof by factors which were attributable to the injury. The first of these is amnesia due to the serious head injury which involved brain damage as a result of which the plaintiff had no recollection of the critical issue of what caused him to fall down the stairway. The defendant had exploited his very lack of recollection as a basis for challenging his evidence.

The second factor was the plaintiff's financial difficulties resulting from his inability to work due to his injuries. This, it was submitted, was also exploited by the defendant in relation to the jurisdictional challenge to the Supreme Court.

The evidence of the plaintiff as to the state and condition of the floor was logical and corroborated by the evidence of Mr. Gillen. It was not rebutted by any evidence from the defendant. The plaintiff's belief that he slipped was reasonable and consistent with his own direct evidence up until the point when his memory failed him. It was consistent with and corroborated by the circumstantial evidence and by the expert evidence of Mr. Wood as to the probable cause of the accident.

In relation to the plaintiff's amnesia and the absence of eye witnesses, it was submitted that the Court must look to the circumstances surrounding the accident. Those circumstances included the nature of the floor covering, the wetness of the floor after a period when the showers had been in use, the affect of water on the floor covering, the absence of non-slip or absorbent mats at the head of the stairwell which was a fall hazard, the fact that the plaintiff was carrying a large holdall in his left hand and a shoulder bag on his right shoulder and his evidence that, as he reached for the handrail on the right hand before commencing to descend the stairway, his legs went from under him because he slipped and his memory then "went blank".

The testimony of Mr. Wood in relation to the slippery nature of the floor covering was not rebutted by any expert testimony called on behalf of the defendant.

1. he toppled and fell over for no apparent reason;

2. he may have been pushed;

3. he fell for some medical reason, for example, balance;

4. he may have fallen because of an excess of alcohol;

5. he may have tripped;

6. he may have slipped;

The most probable explanation in Mr. Wood's expert opinion, was that the plaintiff slipped while in the course of turning to the right hand to go down the stairway and at the same time reaching for the handrail.

In relation to the issue of law, it was common case that the liability of the defendant fell to be determined under Irish law. The duty of care owed by an employer cannot be delegated.

In relation to accommodation provided by the defendant as part of the employment contract, it was submitted that the duty of care was analogous to the duty owed by an occupier of premises to a visitor. There was no distinction in law in relation to accommodation on a ship and that owed by a hotel to its domestic staff.

In Mullen v. Quinnsworth [1990] 1 I.R. 59, the common law duty on an occupier to an invitee was stated in the following terms:-

"The defendant was not an insurer of [the plaintiff's] safety, but it owed [the plaintiff] a duty to take reasonable care, in all the circumstances, to see that the premises were reasonably safe for her. While this is the general principle which applies to cases of invitees, each case must necessarily depend on its own peculiar facts."

In that case, the plaintiff slipped on yoghurt in the defendant's supermarket and successfully sued for damages.

In Duffy v. Carnavane Holdings Ltd. [1996] 2 I.L.R.M. 86, the above reference was cited with approval. In that case the plaintiff sued the owner of a discothèque in circumstances where she slipped on a dance floor on which there had been a spillage.

In relation to the statutory duty of care, s. 3 of the Occupiers' Liability Act, 1995 provides:-

"3(1) An occupier of premises owes a duty of care ('the common law duty of care') towards a visitor thereto except insofar as the occupier extends, restricts, modifies or excludes that duty in accordance with section 3.

(2) In this section 'the common duty of care' means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety. . . ) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon."

In relation to liability, in the submission on behalf of the plaintiff, if the floor was wet and that that was the most probable cause of the plaintiff slipping, then the defendant was in breach of its "common law duty of care". If the evidence established that the floor was a danger while in that condition and that the defendant failed to take reasonable care to ensure that the plaintiff did not suffer by reason of that danger, then s. 3(2) of the Occupiers' Liability Act, 1995 applies.

It is submitted that the only area of controversy was whether the plaintiff's episode of meningitis in April, 1998 and the epileptic fits which followed were caused by the head trauma. Two different interpretations were given of the relevant CT and MRI scans by the consultant neuroradiologists. It was not disputed that there was "some" abnormal signal in the mastoid tip on the right side. The issue between the experts was whether the likely cause of the onset of meningitis was a chronic low grade mucosal type infection or that it was caused by the trauma

The burden of proof lies on the plaintiff. The relevant issues are:-

1. Whether the plaintiff has satisfied the Court, on the balance of probabilities, that he was caused to slip by a wet floor;

2. if the Court were satisfied, on the balance of probabilities, that the plaintiff was caused to slip by a wet floor, whether the plaintiff has satisfied the Court that the reason that the floor was wet and slippery was as a result of a breach of duty of care owed by the defendant to the plaintiff;

3. whether the plaintiff has satisfied the Court that there was a breach of contract by the defendant ceasing to make payments to the plaintiff in 1998, and

4. whether the plaintiff's meningitis, contracted on the 17^th April, 1998, and which, on all accounts, caused his epilepsy, was caused by the trauma which he had suffered on the 17^th August, 1996.

It was submitted that the plaintiff had not discharged the burden of proof that the floor was wet and slippery. Even if he had, he had not wholly failed to discharge the burden of proof that the reason the floor was wet and slippery was by reason of some negligent act or omission of the defendant.

The plaintiff failed to prove what the terms of the contract were and whether he had any entitlement to be paid worker's compensation thereunder. If he were so entitled, then such exists until he reaches "maximum medical improvement". According to his specialist, such improvement, in the absence of meningitis would have been achieved by October, 1998. If meningitis were linked to the accident, according to the same medical specialist, maximum medical improvement would have been reached by October, 2000.

Dr. Murphy, the defendant's medical expert, with whom Dr. Harrington ultimately agreed, said that maximum medical improvement would have occurred five years post-accident when the risk of epilepsy would have diminished to that of the general population. That improvement would have been reached in August, 2001.

The plaintiff's evidence to the Court was that he recalled reaching for the handrail with his right hand, at which stage his legs went from under him before he had put a foot on the stairs. That was not pleaded. His recollection came to him immediately before or at the court hearing. It was at this stage that the plaintiff based his case solely on the theory that he slipped on the passageway above the stairs. He did not explain how, having slipped up there, he came to then fall down the stairs. He had wholly failed to discharge the burden of proof that, on the balance of probabilities, he was caused to slip by the presence of water on the floor at the top of the stairs, in relation to which there was no evidence either from the plaintiff or from any other witness.

It was submitted that, according to the evidence of Mr. Gillen and the plaintiff, some 8-10 divers who went with the plaintiff to the Seamen's Mission might have had a shower on their return. It was not the end of the shift. That there were a total of six shower units. While at the end of a shift, given that there were 35 berths for divers on the forecastle, and there could, accordingly, be as many as eighteen divers seeking to shower, at the time the plaintiff showered only 8-10 might have been having a shower. It was, accordingly, not a time of heavy usage.

It was submitted that no one else fell and no evidence whatever that the floor at the top of the stairs was wet. Mr. Wood's theory was inadmissible and unreliable insofar as he had not heard Mr. Gillen's evidence nor considered the possibility that one of the plaintiff's bags may have become dislodged as he reached for the railing as he proceeded in crablike fashion as he could not fit "square" to the width of the alleyway above the stairs which, in turn, were narrower than the alleyway.

Nowhere in the pleadings did the plaintiff contend the safety measures put forward by Mr. Wood.

The defendant further submitted that the nature of the employment must be taken into account. The standard of care required of an employer is that the employer take reasonable care for the safety of employees. This depends entirely on the nature of the employment. The accommodation provided was in an accommodation block on a commercial diving vessel which was, on the evidence, entirely appropriate and in relation to which the floor covering was also appropriate. The evidence of Captain Lee was to the effect that the surface was a rubberised marine compound and was "non-slip". His evidence must be preferred to that of Mr. Woods who had not examined the vessel. Moreover, there was no evidence of any other accidents in relation to the floor covering. Captain Lee gave further evidence that there was a mechanism in place for "safety observations and water" with two or three meetings a month where safety issues were raised. The issue of the floor being slippery when wet was never brought up as an issue up to then or since then.

In relation to the contract claim, the defendant submits that it is not necessary for the plaintiff to prove any negligence. The Court must determine what the terms of the contract were and whether there is a liability on the defendant in relation thereto.

The contract, signed by the plaintiff on the 6^th July, 1996, included a provision in relation to occupational injury, illness or death and worker's compensation. It was governed by the law of Dubai where the accident happened or the law of Panama in relation to occupational illness, injury or death. The plaintiff's evidence was that he had no clear understanding of the terms of the contract. He did not have any expert evidence in relation to the relevant legal position. He relied on a letter from SRS in relation to the $150 per day in worker's compensation disability pay (maintenance) for two months and half pay at $75 per day for an additional ten months or until he was at maximum medical improvement. He was, in fact paid for the two months at the due rate and for a further seventeen months until April, 1998, at the half rate. He was paid a total of US$46,200.

In the absence of meningitis, Dr. Harrington's evidence was that the plaintiff would have received maximum medical improvement by October, 1998. The plaintiff's claim would, according to his actuary, be $13,650.

In the alternative, if the Court were to accept Dr. Harrington's view that the meningitis was causally linked to the earlier accident, then the plaintiff would, according to Dr. Harrington, have reached a maximum medical improvement not later than two and a half years after the episode. That is from April, 1998 until October, 2000 in respect of which payments, according to the plaintiff's actuary, would be $68,250.

In any event, according to the evidence of both medical consultants, five years after the accident the plaintiff would have the same risks as the normal population. The loss to that date (August, 2001) would, according to the plaintiff's actuary, be $91,875.

In relation to the meningitis issue, the defendant submits that the MRI and CT evidence fully supported Dr. Murphy's conclusion that the meningitis was not related to the trauma but rather was community acquired.

The defendant's submissions concluded that, even if the Court were to find the defendant negligent, that the plaintiff was guilty of contributory negligence in failing to observe the maxim of "one hand for the ship, one hand for yourself".

The plaintiff relies on Mullen v. Quinnsworth [1990] 1 I.R. 59 and Duffy v. Carnavane Holdings Ltd. [1996] 2 I.L.R.M. 86, both of which were public liability claims. The plaintiff also relies on the Occupier's Liability Act, 1995, s. 3, where the common law duty of care is a reasonable duty in relation to a danger existing on the premises.

The Court accepts that the common law duty of care applies to employees.

The Court also needs to consider to what extent dangers to employees are required to be avoided.

1. a lot of people had had near slips, usually when out at sea;

2. some seamen did not go into the shower closest to them and, accordingly, the area was going to have wet patches;

3. it would have to have been that the top of the stairs was wet and slippery as a result;

4. he did not know why he slipped;

5. he did not recall the condition of the floor;

6. while at first he thought he had tripped, there was nothing to trip on, it had to be a slip;

7. he said, in cross-examination, that that recollection possibly came to him in 1998, that he was unsure, that it probably came to him during the course of the trial.

Mr. Wood's evidence was necessarily hypothetical, given that he had not inspected the floor covering. Captain Lee's evidence was that it was not a smooth linoleum type floor covering but had some abrasive in it. For these two reasons it seems that the supposition of slipperiness cannot be sustained.

Mr. Wood's analysis of probable causes included other matters ranging from no reason to others which he disregarded. The possibility that there could have been an imbalance due to a slippage of the shoulder bag was not considered. There was no evidence given by the plaintiff of any slippage. Indeed, the plaintiff had no recollection of why he fell and attempted to make some suppositions. His pleadings differed radically from the case he made in court. No objection was taken to this. However, the Court has to take into account, on the one hand his amnesia and, on the other, his recollection at the time of trial as to what had happened. While accepting the severity of the trauma and the impediments to recollection, it does seem that the evidence given is unsatisfactory in relation to a proof, on the balance of probabilities, of negligence on the part of his employer.

As has been reiterated by both the English and the Irish Courts, the standard of care is that of a prudent and reasonable man. The evidence of Captain Lee in relation to the safety meetings is, in this regard, significant. Such meetings were held twice monthly. Up to the date of the incident and since then no issue in relation to the floor covering or water causing slipperiness has arisen. The evidence of Mr. Curry and Mr. Lee was that it conformed to standards laid down. I accept the evidence of Captain Lee that the flooring was of a "non-slip" nature.

In this regard the evidence of coefficient of friction suggested by Mr. Wood, and considered by Lynch J. in Johnson v. Gresham Hotel (Unreported, High Court, 13^th November, 1986), is not relevant as Mr. Wood had no measurement of either the floor surface or the shoes. Moreover, even if the floor had become slippery as a result of possibly being wet, there was, the Court believes, no obligation on the defendant to the provision suggested in Bradley v. C.I.E. [1976] I.R. 217.

The Court finds that such supposition falls short of an appropriate evidential basis for negligence. No other witness had noticed the floor being wet at the top of the stairs. Even if there was such evidence it would not amount necessarily to negligence in relation to a ship. Water dripping from persons emerging from showers in the accommodation block of a ship is not in the same category as yoghurt on a supermarket floor or spillage on a bar floor.

The Court finds that the plaintiff has not discharged the burden of proof that the floor was either wet or slippery nor that he was caused to slip on the floor. There was no breach of duty of care by the defendant.

Two neurologists (Harrington and Murphy) and two neuroradiologists (Ryder and O'Dwyer) gave different interpretations of the causes of the plaintiff's meningitis.

Dr. Harrington had said that the meningitis contracted in April, 1998, was caused by an undetected fistula or fracture from the injured ear to the brain. There could be a fistula without fluid.

Dr. Murphy said that the plaintiff had contracted common community acquired bacterial meningitis which left no sequelae other than epileptic attacks which were not provoked by the head trauma. He believed that there was no evidence to support Dr. Harrington's contention.

Dr. Ryder, commenting on the initial films, which showed fluid filling the mastoid and middle ear. He believed that these were related to the trauma. It suggested a connection between the air cells and the brain.

Dr. O'Dwyer interpreted the abnormal signal in the inferior aspect of the right mastoid tip. This represented some fluid swelling of the mucosa. It was frequently seen at MRI and rarely commented on. He found no leakage of air into the brain which would have followed a fracture.

The Court has carefully considered the respective evidence, having regard to the lapse of twenty months between the trauma and the meningitis, the absence of epilepsy before April, 1998 and the development of neurology and radiology since Jennett (1981). The Court finds on the balance of probabilities that the trauma did not cause the meningitis.

The Court, based on the medical evidence, absent meningitis, must take the evidence of maximum medical improvement as being at October, 1998.

It follows that, from a contractual point of view, and having accepted that the contractual terms were not limited to two months' full compensation and two months' half compensation, the plaintiff is entitled to the sum calculated by the actuary in such circumstances.

The plaintiff's actuary calculates a total figure due of $13,650 on the assumption that payments had ceased on the 7^th April, 1998.