Scottish Court of Session Decisions

Thomson v. Govan [A2712_01.html] ScotCS 1 [2002] ScotCS 134 (10th May, 2002)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Abernethy Lord Morison	A2712/01 OPINION OF THE COURT delivered by LORD MORISON in RECLAIMING MOTION in the cause ARTHUR BLACK THOMSON Pursuer and Reclaimer; against KVAERNER GOVAN LIMITED Defenders and Respondents: _______

 

 

Act: Glennie, QC, Thomson; Ketchen & Stevens, WS (Pursuer and Reclaimer)

Alt: Jones, QC, Stacey, QC; Simpson & Marwick (Defenders & Respondents)

10 May 2002

1. The pursuer and reclaimer was seriously injured in an accident which occurred on 24 January 1995 at the defenders' shipyard in Glasgow while engaged in the course of his employment with them. He raised an action of damages against them based on an alleged breach of Regulation 17(1) of the Shipbuilding and Shiprepairing Regulations 1960. After proof the Lord Ordinary on 16 January 1998 assoilzied the defenders from the conclusion of the Summons. The pursuer has reclaimed against this interlocutor. There is no dispute as to quantum of damages, if they are due.
2. The pursuer's case was that he stepped on a staging plank which had been placed across a tank within the hull of a ship at the defenders' shipyard, that this plank broke when he stepped on it and that he then fell to the floor of the tank sustaining his injuries. The alleged breach of the said Regulation was that the defenders failed to ensure that the plank was of adequate strength for the purpose for which it was used. A broken plank was found beneath the pursuer's body after he had fallen. There were a number of similar planks within the tank, referred to as "staging boards", which were used to form a platform at various levels for persons working there. For that purpose they were placed across the width of the tank and were supported at each end by shelves or "bulb bars" which protruded about a foot from the sides of the tank at five different levels, spaced at intervals of about 2 feet 4 inches. The pursuer said that the plank which he stepped on was one of three, the ends of which were resting on the second shelf from the top at each side of the tank. It was not disputed that the broken plank which was found beneath the pursuer's body was one which had been provided for use as a staging board in the manner described by the pursuer.
3. The Lord Ordinary assoilzied the defenders exclusively on the ground that the pursuer's evidence as to the precise circumstances of the accident could not be accepted as reliable, and in particular that he had failed to prove that the accident was caused by his stepping on a plank which broke, as he had stated in evidence. Before this court it was not disputed that, if the accident occurred in this way, the defenders are liable in respect of their breach of the said Regulation.
4. In rejecting the pursuer's evidence as to the circumstances in which his accident occurred, the Lord Ordinary relied principally on the evidence of Mr G.C. Cox a health and safety inspector, who received notification of the accident and who went to the yard on 6 February 1995 (13 days later) to investigate its cause. He there met a Mr Durrant, who was one of the defenders' safety officers, and was shown two pieces of a broken plank which he was informed had been recovered from the locus of the accident. He also inspected the tank where the accident occurred. He produced a factual report containing a description including the dimensions of the plank which he had been shown and the dimensions of the tank and its shelves. In evidence Mr Cox stated that on the basis of his visual inspection he considered the plank to be a substantial one in sound condition which (if it were resting on the shelves) would be spanning a relatively small width and which would not break as a result of somebody standing on it.
5. The pursuer's original grounds of appeal proceeded generally on the basis that the Lord Ordinary had erred in holding that the pursuer failed to prove that the accident happened as averred by him. These grounds also made particular reference to evidence a) as to whether the plank inspected by Mr Cox was painted and b) concerning the lay-out of the tank. Evidence on both of these matters was taken into account by the Lord Ordinary in refusing to accept the pursuer's evidence as reliable. When the case came before us pursuer's counsel intimated that he proposed to submit that the plank which Mr. Cox inspected was not the plank which had been recovered from the locus. After the court pointed out that no notice of such an argument was given in the grounds of appeal, he moved to amend them. We allowed the amendment, but reserved the question whether the argument was excluded on the ground that the proof had been conducted by both parties on the contrary basis that Mr Cox had inspected the plank recovered from the locus. This plank was the subject of evidence that it had been found underneath the pursuer's body and Mr Cox took that fact into account in giving his evidence, in addition to expressing views as to its adequacy. At the conclusion of junior counsel's submissions, having considered all of the evidence founded on by him, we held that the argument that Mr Cox had inspected the wrong plank was not open to the pursuer. The Lord Ordinary had stated that it was not disputed that the plank inspected by Mr Cox was the plank on which the pursuer had been found lying. It is clear from the evidence that this was the case, and that the proof would have been conducted differently by both parties had that matter been in issue. We were not invited to re-open the proof and would have refused such a motion if it had been made.
6. The Lord Ordinary deals with the pursuer's evidence as follows:

"In considering the pursuer's evidence I should begin by saying that among the disabilities suffered by him as a result of the accident was a form of paralysis of the muscles in the throat, the effect of which was to tender speech difficult and sometimes indistinct. Despite this, the pursuer gave evidence for a considerable time with courage and patience and in such a way that I had little difficulty in following his evidence without the necessity for repetition. There is no dispute that the pursuer's recollection of the layout of the tank was faulty. Nor do I understand it to be disputed that his recollection that the allegedly faulty plank had been painted must also be inaccurate, in the light of Mr Cox's unchallenged evidence that the plank which he inspected was unpainted. It follows that in these respects the pursuer's description of the few seconds leading up to the accident must be inaccurate. In that situation, having regard to the evidence of Mr Cox which I have already indicated I accept, I am forced to the conclusion that the pursuer's evidence as to the precise circumstances of the accident cannot be accepted as reliable."

In a later passage the Lord Ordinary states that

"the principal reason for my conclusion was the inconsistency between the pursuer's evidence and the evidence of Mr Cox in relation to the condition of the plank and the circumstances in which it was found after the accident."

7. We consider that the reasons given by the Lord Ordinary for holding as he did are not satisfactory. These reasons do not proceed to any extent on his assessment of the pursuer's demeanour while he was giving evidence, indeed he pays tribute to the patience and clarity with which the pursuer gave his evidence, and he discounts the suggestion that it might have been "deliberately untruthful". The principal reason given by the Lord Ordinary for being "forced" to the conclusion that the pursuer's account of the immediate circumstances of his accident was unreliable is that Mr Cox said that he considered the plank to have been of sufficient strength to bear the weight of a man; and that Mr Cox also said that, if it had been broken under the pursuer's weight, the ends would have risen up and the plank would have fallen after he did and would not have ended up beneath his body.
8. On a consideration of all the evidence in the case we have concluded that the Lord Ordinary erred in attaching the weight which he did to the opinion of Mr Cox in these respects, and that his evidence is not in itself sufficient to justify the conclusion that the pursuer's evidence of the immediate cause of his accident should be rejected as unreliable. The pursuer's evidence must be considered on the basis accepted by the Lord Ordinary that he was not being deliberately untruthful. Although there was evidence that his memory could have been affected by retrograde amnesia there was also evidence to the contrary, and the Lord Ordinary appeared to have been inclined to accept the former view only because he had found the pursuer's evidence to be unreliable on other grounds. It is difficult to see how amnesia could cause the pursuer to invent an occurrence which did not take place unless, as was suggested by the defenders, his account of the accident had originated with Mr Kerr (who had found him and the broken plank lying on the floor of the tank) or from someone else, which was not suggested. The Lord Ordinary refrained from making any finding in this connection and cannot have taken it into account in his conclusion. For present purposes the pursuer must therefore be regarded as an honest witness whose mistaken recollection of the accident, if it was mistaken, is unexplained.
9. Further, the pursuer's evidence on the crucial question whether he stepped on a plank which broke is in our view independently supported by circumstances of which there was substantial evidence which was not, ultimately at least, in issue. The Lord Ordinary does not appear to have attached any weight to these circumstances in his assessment of the pursuer's reliability. The pursuer undoubtedly fell from a considerable height within the tank. The breaking of the plank which was found beneath him was certainly associated in some way with the accident since, for reasons which it is unnecessary to specify in detail, the evidence excluded the possibility that before the accident the plank was lying broken on the floor. The Lord Ordinary accepted Mr Durrant's evidence that "it was broken in the accident". The broken plank was a staging board which was in the tank for use as a platform or part of a platform by being placed at one of the levels of shelves which afforded support at each side. The pursuer was, as was found by the Lord Ordinary, engaged in retrieving his equipment. This equipment was later found at the height from which the pursuer said that he had fallen. There were, according to Mr Kerr, a number of planks "still in position" in the space between the shelves at either side at various levels, and also some planks which were scattered on the floor. In our view it is unrealistic to assess the pursuer's reliability without taking into account these features of the evidence which lent considerable support to what he said had caused his accident.
10. The evidence of Mr Cox which was found to be "inconsistent" with that of the pursuer was his opinion, based exclusively on his inspection of the plank and the tank, and the position of the pursuer and of the plank, as spoken to by Mr Kerr. He was not provided with any other information on which to base an opinion. It does not appear that Mr Cox had any special qualifications to deal with these matters, apart from his general experience as a health and safety inspector. His visit to the defenders' yard was made only in that capacity and in order to ascertain how the accident occurred. He did not arrive at any conclusion in that respect. No scientific investigation of the plank or of its broken ends was carried out. When he was shown a photograph of the plank taken by Mr Durrant, Mr Cox's initial reaction was that the plank which he inspected was broken more cleanly across its width than what appeared from the photograph. The cleanness of the break was a factor which he regarded as supporting his opinion that it had not previously been damaged at the break. In general, although Mr Cox considered that the pursuer's version as to the occurrence of the accident was unlikely, he certainly did not exclude the possibility that it occurred as the pursuer had stated. In our view the Lord Ordinary was mistaken in holding that he was "forced" by Mr Cox's evidence to the conclusion that the pursuer's account of the precise circumstances of the accident could not be accepted as reliable.
11. In considering Mr Cox's evidence in detail as bearing on the pursuer's reliability, we regard it as of major importance to consider whether he or anyone else put forward a credible explanation as to how the accident occurred if it did not occur as the pursuer stated: it is obviously much easier to accept the pursuer's account of the accident in the absence of evidence of a possible alternative. No evidence was led by the defenders in support of their averment that they believed the pursuer to have fallen in the course of his ascent or descent of the ladder giving access to the top of the tank. The Lord Ordinary, having found that the plank was broken in the accident, reached no conclusion as to how this could have happened if it did not happen as the pursuer stated, apparently upon the ground that the onus was on the pursuer to prove his case, not for the defenders to provide an explanation for the accident. In our opinion any comparison of the pursuer's evidence with that of Mr Cox should take into account whether or not Mr Cox put forward any credible alternative to what the pursuer said occurred, and in particular the existence of any possible alternative explanation for the breaking of the plank. If the plank did not break as a result of the pursuer stepping on it, it broke because he fell on it, and if that happened, no inference could be drawn that it was not of adequate strength. This possibility was the subject of much evidence at the proof, but, as was pointed out to us by defenders' senior counsel, it is difficult if not impossible to envisage that the plank broke in this way, having regard to the lay-out of the tank, the ultimate position of the pursuer's body as it was found by Mr Kerr, and the absence of a place where the plank could have been, so as to be broken by the pursuer's fall. We take this feature into account in holding that the pursuer's evidence can be more readily accepted than would otherwise have been the case.
12. In light of the matters which we have mentioned, we reach a different conclusion as to the effect of Mr Cox's evidence on the pursuer's reliability as a witness from that reached by the Lord Ordinary. Mr Cox's evidence that the plank appeared to him to be of adequate strength to bear a man's weight and not previously flawed must certainly be given considerable weight, as also his evidence that if the plank broke when the pursuer stepped on it, its ends would have tilted up and it would have been likely to fall on top of him and not ultimately be found beneath his body. However Mr Cox did not express his opinion on these matters as necessarily excluding the pursuer's version of the accident, and we do not regard it as doing so. Having regard to all of the evidence which we have mentioned, we conclude that Mr Cox's opinion is not of sufficient weight by itself to justify rejection of the pursuer's direct evidence as to the occurrence of the accident, particularly since that evidence was supported by facts which are not disputed.
13. There were two other matters which the Lord Ordinary took into account in assessing the pursuer's reliability: firstly that his evidence that the plank had been painted "must be inaccurate", in the light of Mr Cox's "unchallenged" evidence to the contrary; and secondly, that the pursuer's recollection of the layout of the tank was faulty. In our opinion neither of these considerations can reasonably be given the weight which the Lord Ordinary attached to them. The fact that Mr Cox's evidence that the plank was not painted went unchallenged is hardly surprising since the pursuer's counsel had no reason to believe that this was, or would become, an issue in the case. Both the pursuer and Mr Kerr said that the plank was painted, and neither of them was cross-examined on the matter. The defenders' safety officer, Mr Durrant, who took photographs of the plank, was not asked whether it was painted. Mr Cox's evidence was partly based on the fact that, if the board had been painted, he would have noted that fact. We do not consider that the pursuer's general reliability is at all affected by his recollection, supported by that of Mr Kerr, of a matter about which the defenders did not see fit to cross-examine either of them.
14. Nor do we consider that the pursuer's faulty recollection of the lay-out of the tank materially affects a conclusion as to the reliability of his evidence that he stepped on to a plank placed across the tank and resting on the shelves at each of its sides, at the fourth (second from top) level. The pursuer had worked in many similar tanks which were different in lay-out, and we do not find it in the least surprising that he was mistaken when giving evidence almost three years after his accident on the lay-out of the tank in which he sustained it. He had nothing to gain by doing so. His mistaken recollection of the lay-out certainly might affect the reliability of detailed evidence which he gave as to the precise location of the place from which he said that he stepped on to the plank and the way in which he got there. But, as we have mentioned, his evidence that he entered the tank by its ladder in order to collect his equipment to take it to his next place of work was accepted by the Lord Ordinary, and that equipment was found after the accident still lying on the shelf at the fourth level. There is therefore independent support for the pursuer's evidence as to what he was doing, and the height at which he was doing it when the accident occurred. Unlike his memory of details of the tank's lay-out, the pursuer, if he remembered anything about the accident, would be hardly likely to forget that he stepped on a plank which broke beneath his weight. We do not consider that his inability to recall details of the lay-out of the tank, however relevant these might be to his exact movements before he stepped on the plank as he said, has any substantial bearing on the reliability of his evidence as to the immediate cause of the accident.
15. There were no matters other than those which we have mentioned which were submitted to be relevant to an assessment of the reliability of the pursuer's evidence that he stepped on a plank which had been provided as a staging board, and that it broke as a result. For the reasons which we have indicated we see no sufficient justification for not accepting that evidence. We accordingly hold that the pursuer has proved that the accident occurred as a result of the defenders' breach of Regulation 17(1), and that he is entitled to reparation from them for the injuries which he thereby sustained.
16. We grant the reclaiming motion, recall the interlocutor of the Lord Ordinary dated 16 January 1998, sustain the pursuer's first plea-in-law; repel the defenders' second and third pleas-in-law and pronounce decree accordingly.