Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wedderburn v. Buchan & Ors [2004] ScotCS 128 (28 May 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/128.html
Cite as: [2004] ScotCS 128

[New search] [Help]

Wedderburn v. Buchan & Ors [2004] ScotCS 128 (28 May 2004)

OUTER HOUSE, COURT OF SESSION

A3082/00

OPINION OF LORD BRACADALE

in the cause

DAVID WEDDERBURN

Pursuer;

against

JAMES BUCHAN AND OTHERS

Defenders:

________________

Pursuer: Sheldon; Morisons

Defenders: P J Brodie; Henderson Boyd Jackson, W.S.

28 May 2004

Introduction
[1] This case came before me on procedure roll on the defenders' first plea-in-law. Mr Brodie, who appeared on behalf of the defenders, indicated that he did not move to have the action dismissed but invited me to hold that certain averments should be excluded from probation. Mr Sheldon, who appeared on behalf of the pursuer, moved for a proof before answer. The action arises out of an accident which occurred on 8 November 1997on board a fishing vessel the MFV "Chris Andra". The pursuer was the second mate aboard the vessel when he sustained injury as a result of the accident. The first defender was another member of the crew and the second defenders were the owners of the vessel.

The Pleadings
[2] The pursuer avers that the accident occurred at a time when the fishing gear was being recovered. The equipment used to recover the fishing gear comprised two net drums, one forward and one aft, two stern rollers, one upper and one lower, and three hydraulic rams. During the recovery operation the bulk of the net was wound on to one of the two net drums. The rams were located at the stern of the vessel in front of the bottom stern roller. They could be raised or lowered as appropriate to enable the net to be guided on to the appropriate net drum. When in the down position the rams were recessed into the lower deck. They could be raised into reciprocal recesses in the upper deck. The pursuer avers that in the course of the recovery operation he was required to carry out certain repairs to the net tunnel. While he was doing so, the skipper gave orders to take the remainder of the net aboard as a matter of urgency. The pursuer avers that he returned the mending gear to the port aft store and then required to cross from the port to the starboard side of the vessel in order to assist in guiding the remainder of the net on to the aft net drum. In order to steady himself and to assist his crossing the pursuer placed his gloved right hand on the starboard hydraulic ram. The pursuer avers that at this point the first defender operated the ram with the result that the pursuer's hand became trapped between the ram and its recess in the upper deck. As a result he suffered loss, injury and damage.

[3] The pursuer bases his case in negligence. He avers that the first defender had a duty to take reasonable care for the safety of his fellow crew members including the pursuer. He avers that it was the duty of the first defender to keep a proper look out and to take reasonable care to ensure in operating the hydraulic ram that it was safe to do so and that crew members such as the pursuer would not be endangered thereby. The pursuer avers that it was the duty of the second defenders to take reasonable care to institute and maintain a reasonably safe system of working. A number of specific duties are averred under the general duty.

[4] Mr Brodie identified six passages in the articles of the condescendence which, in his submission, should be excluded from probation. It may be convenient to deal with each of these passages separately.

Stability
[5] Mr Brodie submitted that the following averments in article 2 of the condescendence between page 7E and page 8C should be excluded from probation:

"At this time the vessel was in any event experiencing difficulties with its stability. It had been experiencing such difficulties for some time prior to the accident. When turning it held over to an abnormal degree. It was particularly prone to instability when taking water. In an incident, prior to the pursuer's accident, when the boat took water a man was washed overboard, and a James Ritchie suffered slashed tendons. For a boat the size of the Chris Andra, the consequences of this incident should not have been so serious. In the summer of 1999 the Chris Andra was returned to Copervik in Norway where major work was carried out to improve its stability. This work took a number of weeks. The superstructure was lightened. Pig iron was removed from the bilges. When clambering over fishing gear on deck, the crew members accordingly required to have something to hold onto."

[6] Mr Brodie submitted that the pursuer did not aver that the accident was attributable to a particular instability on the part of the vessel. It was not suggested that the tendency to roll led to the accident. The difficulties with stability were attributed to two different situations, namely, when the ship turned and when she was taking water. It was not said that either of these cases applied at the time of the accident. Accordingly, in Mr Brodie's submission the averments as to instability had no relevance to the circumstances in which the accident occurred. There was no causative link between the instability and the accident. There was no averment that would establish foreseeability of the accident. It was not suggested that the known instability of the vessel gave rise to the foreseeability of the particular accident.

[7] Mr Sheldon submitted that while the averments as to instability did not form an essential basis for the case against the second defenders it was, nevertheless, relevant to the case. Because the vessel was in any event unstable, crew members needed something to hold onto when moving around the vessel. They needed to have their attention drawn to sources of danger such as the rams. Mr Sheldon submitted that the question of stability must have been a matter fundamentally within the second defenders' knowledge. Mr Sheldon submitted that it was a common sense approach to the whole factual background that in the North Sea a boat would be likely to pitch and roll and that crew members required to move around. If the vessel was experiencing stability problems then the difficulties of moving around would be exacerbated. These averments added weight to the proposition that the second defenders ought to have foreseen that on this vessel members of the crew would require something to hold onto when moving around.

[8] While it is correct to say, as Mr Sheldon accepted, that the averments as to instability do not form an essential basis for the case against the second defenders, I cannot at this stage say that these averments are entirely irrelevant such that they should be excluded from probation. In my opinion these averments do form a factual background to the averments in relation to the need, on this vessel, for something for members of the crew to hold on to as they moved about the deck, and to the proposition that the second defenders ought to have foreseen that need. I am persuaded that I cannot at this stage find that they should be excluded from probation.

Risk Assessment; Painted Lines; Lighting
Risk Assessment
[9] Mr Brodie submitted that the following averment in article 5 of the condescendence at page 25D should be excluded from probation:

"It was their duty to carry out a suitable assessment of risks to the pursuer's health and safety."

[10] He submitted that the defenders cannot be liable for any breach of duty that has not caused the accident. The pursuer did not offer to prove that had a suitable risk assessment been carried out that would have prevented the accident. The pursuer averred no causative connection between that duty and the accident. If he was not offering to prove that if a risk assessment had been carried out the accident would not have happened then the averment is irrelevant.

[11] In addition, no indication is given in the pleadings as to what would constitute a suitable risk assessment. In the absence of knowing what a suitable risk assessment would amount to, it is not possible to come to a decision as to whether assessment would have prevented the accident.

Painted Lines
[12] Mr Brodie submitted that the following averment in article 5 of the condescendence at page 26B should be excluded from probation:

"It was their duty to paint the area above the rams with alternate black and yellow lines to highlight the potential for danger in that area"

The pursuer did not aver that it was ignorance of the presence of the rams that caused the pursuer to reach out and steady himself with the ram. He was not suggesting that he was unaware of the rams. What he said was that because operations had ceased the pursuer assumed that the ram was static. There was no causative connection made between the averment about warning lines and the occurrence of the accident. In addition, there was no averment which set out that it was reasonably foreseeable on the part of the second defenders that in the absence of warning signs the pursuer would come to suffer an accident of this sort. If it was not reasonably foreseeable for the defenders that by failing to mark the spot with warning lines injury would result, they cannot be in breach of the general duty to take reasonable care for the pursuer.

[13] There were no averments that would allow evidence to be led from which it could be found that the second defender ought reasonably to have foreseen that failing to paint lines would lead to the accident. Therefore the duty as presently framed without supporting averments of foreseeability is irrelevant and should be deleted.

Lighting

[14] Mr Brodie submitted that the following averment in article 5 of the condescendence at page 26B should be excluded from probation:

"It was their duty to fit extra lighting in that area for the same purpose".

He advanced three reasons in support of that submission. First, there were no averments suggesting that the accident was caused by the level of lighting. The pursuer did not aver that the accident was caused because he was unable to see something which he should have been able to see.

[15] Second, there were no averments to establish that the second defenders ought to have foreseen that the level of lighting provided was a foreseeable cause of an accident of this type.

[16] In support of this argument both in relation to lighting and painted lines Mr Brodie referred to the case of Muir v Glasgow Corporation 1943 SC (HL) 3. He referred to the speech of Lord Thankerton on page 8, line 9 and the speech of Lord Wright on page 12. Lord Thankerton, under reference to his own speech in Bourhill v Young, stated that the duty is to take:

"such reasonable care as will avoid the risk of injury to such persons as he [in that case a motorcyclist] can reasonably foresee might be injured by failure to exercise such reasonable care".

[17] Third, Mr Brodie submitted that there was no specification as to what level of lighting would have been sufficient. No notice had been given of what the pursuer says would have been sufficient. There was a lack of specification.

[18] Mr Sheldon dealt with risk assessment, painted lines and lighting together. He said that all these duties were subordinate to the general duty to institute and maintain a safe system of working.

[19] In relation to the specific duty to carry out a risk assessment he submitted that it was a matter of common sense that in order to fulfil the general duty the second defenders required to know what the risks were. The pursuer offers to prove that the general duty to provide a safe system was not fulfilled and that, if it had been, the accident would not have occurred. Mr Sheldon submitted that there were averments which clearly identified the risk posed by the hydraulic rams and which identified circumstances in which the danger might arise. In addition, there were averments as to foreseeability and what ought to have been done in the light of these known risks.

[20] In my opinion there are sufficient averments to allow the sub-duty to assess risk to be allowed to proceed to probation. However, there is in my view no basis whatsoever for the averred duties in relation to painted lines and lighting and I shall exclude these from probation.

Handrail
[21] Mr Brodie submitted that the averments in article 5 of the condescendence at page 26A-B in relation to the requirement for a handrail should be excluded from probation. The pursuer avers:

"It was their duty to provide a handrail, guardrail or other such device to permit crew members such as the pursuer to steady or secure themselves in safety during such operations."

He also referred the passage at page 25C-D.

[22] Mr Brodie submitted that the pursuer had failed to aver that, had the handrails been placed there, the accident would not have occurred. In addition, he submitted that the pursuer had failed to give notice of where it was said these should have been placed. The defenders are entitled to notice as to where handrails should have been placed. There may be issues of practicality, bearing in mind that this is a working vessel and there will be places where a handrail could or could not practically be placed.

[23] In reply Mr Sheldon referred to a number of passages in the pursuer's pleadings which, he submitted, provided, in relation to the question of handrails, specification with respect to causation, specification of location, and the implications of the placement of a handrail after the accident had occurred. He referred to passages in article 2 of the condescendence, at page 8C where there was reference to the requirement to have something to hold on to, and at page 8D to9B where there were detailed averments with respect to location and layout of the deck where the operation was taking place. Further, at page 10C-D there was reference to the absence of a guard rail. It is averred that if there had been a guard rail, the pursuer would not have had to place his hand on the ram and the accident would not have occurred. Further, he referred to the passage in article 3 of the condescendence at pages 18E to 19B where there was more reference to a handrail and an averment that one had been installed after the accident. There was thus specific averments in relation to the location of the rail and that the second defenders clearly had in mind the danger posed by the rams.

[24] Reading the pursuer's pleadings in their entirety, I am satisfied that the pursuer has pled a relevant case with respect to the duty to provide a handrail and that there is sufficient specification to give fair notice to the defenders.

Qualifications

[25] In article 6 of the condescendence at page 29C in quantifying loss the pursuer avers:

"He would in due course have obtained further qualifications. He would have obtained his skipper's ticket."

[26] Mr Brodie submitted that the future wage loss claim had the potential to be a very large head of damage and would be affected by the position that the pursuer might reach. This was affected by what qualification he obtains. It was not clear whether the reference to "further qualifications" was limited by the reference to the skipper's ticket or whether the reference included other, unspecified qualifications. It was not clear why the plural was being used. This was a possible peg on which the pursuer might lead evidence of qualifications to the defenders unknown. The defenders were entitled to know exactly what qualifications and what level of earnings the pursuer may reach and clear notice was not being given.

[27] Mr Sheldon accepted that there was a degree of ambiguity in this averment but indicated that the reference to the skipper's ticket was the whole extent of the reference to qualifications. There was no intention on the part of the pursuer to lead evidence beyond the skipper's ticket.

[28] In the light of that indication I am satisfied that the averment should be allowed to proceed to probation.

Conclusion

[29] For the reasons set out I shall allow a proof before answer. I shall allow all the pursuer's averments to proceed to probation with the exception of those relating to painted lines and lighting. I shall reserve the question of expenses meantime.