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Pearson v. J Ray McDermott Diving International Inc [2004] ScotCS 35 (18 February 2004)

OUTER HOUSE, COURT OF SESSION

A1007/00

OPINION OF T G COUTTS, QC

Sitting as a Temporary Judge

in the cause

ALAN PEARSON

Pursuer;

against

J RAY McDERMOTT DIVING INTERNATIONAL INC

Defenders:

________________

Pursuer: Di Rollo, Q.C., Balfour & Manson

Defenders: Hanretty, Q.C., Dowdall; HBM Sayers

18 February 2004

[1] The pursuer, a diver operating as a life support technician, was engaged by the defenders at the Panna Field in the Arabian Sea off Bombay. While in the course of his work in the afternoon of 6 May 1997, an incident occurred for which he seeks reparation. The Proof was not heard until six years after the event.

[2] The procedural history of the case is that the pursuer's summons was signetted on 3 May 2000. The pursuer sisted the action on 1 June 2000 in order to seek the benefit of legal aid; the sist was not recalled until 25 September 2001. Defences were lodged and an Open Record was made up on 11 October 2001. The cause continued on the Adjustment Roll until closed on 6 February 2002. On 6 March 2002 I allowed the cause to be restored to the Adjustment Roll. The Closed Record, No 12 of process, was received on 3 May 2002 but the cause was again restored to the Adjustment Roll until it finally closed on 12 June 2002. A commission was allowed on 18 March 2003 to take the evidence of a necessary witness for the defenders, Leslie John Robert Bing. His evidence was taken on 18 March 2003. The pursuer lodged a minute of amendment on 29 April 2003 and the Record was amended in terms of that Minute and Answers thereto on the first morning of the Proof, 20 May 2003. The Proof was not concluded in the four days which parties had sought from the Keeper of the Rolls. A further day's proof was heard on 27 May and a further diet began on 7 October. That latter diet lasted for a further five days, but was interrupted for half a day on 28 October when the pursuer, halfway through the evidence of a witness, moved that the case be remitted to the Inner House under Rule 36(3). That motion was refused as inappropriate and the Proof was finally concluded on 31 October 2003.

The Pursuer's Pleadings as Developed
[3] In his summons, the pursuer's account of the accident was as follows:

"The preparatory work for diving was substantially completed. The pursuer was then instructed to prepare the second air chamber. The pursuer prepared the chamber and blew it down to forty feet. A dive was underway and four umbilicals were being used. The pursuer attended to one of the umbilicals. The pursuer was instructed to bring up his umbilical. Accordingly he began to heave it in. As he did so the umbilical became taut. The pursuer shouted that it was taut but was given the instruction to keep heaving in. He shouted this again and was again instructed to heave. The pursuer required to exert considerable force to try to get the umbilical to move. As he kept heaving in he felt severe pain in his groin and leg. The umbilical did not move any further. It did not move from the time when the pursuer first indicated it had become taut."

[4] In the summons the pursuer claimed that, as a result, he suffered severe pain in his groin and legs and back and that he suffers pain in his lower back. He also claimed that he has "suffered impotence" and received treatment in respect of that. He claimed solatium and loss of earnings. That case was not particularly complicated as outlined above and might well have been suitable for jury trial.

[5] On or about 17 January 2002 the pursuer obtained a report from a firm Honestas Maritime Limited (which report was later spoken to by Peter Grosch). Thereafter a purported statutory case appeared on the pleadings after the first closure of the Record. Such a case was suggested in the report and its terms were followed. That statutory case remained on the pleadings and was adverted to throughout the proof until finally abandoned in the concluding speech of senior counsel for the pursuer.

[6] That report was one of three reports prepared by Mr Grosch. None was produced by the pursuer, but the first, 7/28, was produced by the defenders. That document contained the suggestion that four divers were in the water simultaneously. This suggestion found its way onto the pleadings in No 12 of process. An elaborate case was then constructed on that basis, traces of which remained in the final amended Closed Record in the averments of fact and fault, particularly at 6B-C. In addition reference was made to an international standard of diving operations (IMCA) though that standard was not introduced until April 1998. Averments also referred to Health and Safety Diving Operations at Work Regulations 1981 (sic) as amended. These, however, did not apply to operations off Bombay in India. UK territorial waters did not extend so far. Some discussion about the applicability of these regulations took place prior to the commencement of the Proof but the averments were not then departed from on the basis that the regulations would demonstrate how a diving operation should have been carried out.

[7] By the date of the Proof, the claim that the accident had caused impotence which persisted until after the first closure of the record had been departed from. The defenders' averments that the pursuer had a history of severe alcohol abuse were denied.

[8] The common law case pled on the pursuer's amended pleadings was:-

"It was their duty to take reasonable care for the safety of the pursuer and to avoid exposing him to the risk of injury unnecessarily. It was their duty to take reasonable care to devise, maintain and enforce a safe system of work. It was their duty to take reasonable care to assign a sufficient number of personnel to assist with the diving operation. It was their duty to take reasonable care to see that each umbilical was tended by a competent person who had been properly briefed. It was their duty to take reasonable care to see that the tender of the umbilical knew the depth of the diver and what equipment was being carried. It was their duty to take reasonable care to see that the supervisor had direct communication with each tender. It was the supervisor's duty to take reasonable care to see that he had such direct communication. The defenders or their servants for whom they were responsible knew or ought to have known that if the pursuer saw four umbilicals being tended by two tenders he would immediately assist. They knew or ought to have known that if assisted he would be doing so without having been briefed. They knew or ought to have known that in such circumstances he would not know the depth of the diver, what tools were being carried or precisely where the diver was working. They knew or ought to have known that if the pursuer was given instruction to haul in the diver he would follow the instruction. They knew or ought to have known that if the pursuer was required to haul in a taut umbilical he would be likely to sustain loss, injury and damage. It was their duty to take reasonable care to see that the pursuer was not required to pull up a taut umbilical."

At the end of the Proof it was only the part underlined that counsel maintained had been proved and inferred liability for fault.

[9] The only witnesses led on the merits of the action, were the pursuer, Mr Bing and Graham Padden.

The Issue for the Court
[10] Much time was spent on matters which had little relevance to the question for determination i.e. whether the pursuer's injury was caused by the fault of the defenders. It provided no assistance and was barely relevant to attempt to establish the averment appearing on the pleadings at 7A namely that "the defenders were operating in a highly dangerous fashion at the time of the accident to the pursuer". The pursuer would appear to have been sidetracked in that direction by Mr Grosch, who both erred about the number of divers in the water at the time and propounded fallaciously that there was a statutory case available. This found its way onto the Record apparently unchecked.

[11] The only matters which required to be explored in the evidence were the circumstances in which the pursuer sustained his injury, what that injury was, and whether there was any basis for asserting that the pursuer's injury was caused by fault on the part of the defenders. It was notable that no evidence was led from any of the divers actually engaged at the time under water nor from Mr Harrison who was said to have been in charge of the operation. The consequences are hereafter discussed.

The Diving Operation
[12] I find as fact that the defenders were engaged in certain works on an underwater installation in an area of the Arabian Sea off Bombay, known as the Panna Field. That area of ocean is subject to strong currents and has a silty bottom. As a result, diving operations at any depth were restricted principally by the current but also because the current caused visibility to be reduced to an impractical level for operations. Occasionally dives such as that undertaken by Mr Birch on the day in question could conclude without entry into a decompression chamber, but in order to achieve the greatest amount of useful work, the operators sought on that day to maximise the time at the bottom and as a result utilised decompression chambers. Part of the pursuer's duties were to prepare the decompression chamber.

[13] On 6 May 1997, in the afternoon, three divers were utilised. Diving operations were recorded in a diving log and in a daily events log completed by the responsible employee of the defenders in charge at the time. At the time of the pursuer's incident, the logs appear to have been written by Mr Harrison. Although the daily events log contains some obvious mistakes, there is no reason to challenge the accuracy of the diving log and I accept the entries therein. Three divers were involved, Mr Birch, Mr Wayne Burridge and Mr M Bonser. Mr Birch left the surface at 13.36. After doing certain work he left the bottom at 14.29. At 14.30 he had a water stop for 17 minutes and reached the surface at 14.50. He did not need decompression. He was brought to the surface by means of his umbilical cord, a collection of tubes and hoses supplying him with vital air and water. Mr Birch participated in a further dive that day when conditions became favourable on the next tide. The umbilical for each diver is attended to by a tender who pulls upon it or slackens it off as appropriate.

[14] Mr Burridge and Mr Bonser left the surface at 13.27, and operated at a depth of 60 feet. They left the bottom at 15.20 and arrived in the decompression chamber at 15.23. The ascent for each took about two minutes. Mr Bonser was originally attended to by the pursuer and another employee, it was not clear who attended to Mr Burridge. The incident to the pursuer appears to have taken place in the course of the two minutes of Mr Bonser's ascent. Since neither of those divers had a water stop they were accordingly decompressed.

[15] There is no entry in the daily events log of any incident to the pursuer, nor indeed any record, there, of the pursuer's having been evacuated from the barge. The absence of any entry relating to the incident, of itself, however, is of no significance in relation to whether or not the pursuer did in fact sustain damage.

The evidence, and various prior statements of the pursuer
[16] There are two nearly contemporary adminicles of documentary evidence. The first, 7/11, is a document headed "Request for Medical Treatment". That was completed on the day of the incident and signed by the pursuer about 18.00. He listed his complaint as a sore back occurring about 15.15. To the question "Was accident involved?" a query was put beside "yes" and a tick beside "no". To the request for "The description in your own words of the facts surrounding the accident" the reply was "Tending divers umbilical, hauling him back to basket. Umbilical suddenly would not come. I pulled harder then felt a severe pain ® testicle and right leg. I stopped pulling, other diver/tender took over." The witness to the accident was given as Graham (Mr Padden).

[17] The pursuer was seen at the Al Zahra Medical Centre, Dubai on 11 May where no back complaint was noted in his report by the attending Dr Attara. By 13 May the pursuer was residing in a hotel in Dubai. There he was visited by Mr Owen, who gave evidence. He went at the instance of the defenders' insurers. He took the following statement , 7/10 of process, from the pursuer. The account therein reads:

"My name is Alan Pearson; I am aged 53; my home address is 24 Glen Farrar, East Kilbride, Glasgow, G27 2AG, Scotland. I am married with 2 children aged 29 & 30. My badge no. is 25468.

I was a diver till 1977 but am now a life support technician and my duties include looking after divers in saturation. I have worked in the North Sea Bombay and Middle East.

I went out to Bombay High about 2 weeks ago and was engaged in the Barge DB27.

I was at the location as there was the possibility of saturation work and my duties were to look after divers in saturation.

On 6 May 1997 in the afternoon I was on the deck of the DB27 working with a Filipino assisting in tending the hoses of divers in the water.

There were 2 divers in the water and the Filipino was looking after one of these and I was looking after the other named Bond.

I had pulled the umbilical up to 30' and the diver had taken a water stop. There was no problem uptill this point.

After the requisite rest at the 30' level I then started to pull Bond up but the umbilical suddenly stopped.

I knew that there was only limited time to bring him to the surface. I pulled harder and I turned round and it stuck. I tugged hard and as I did so I felt my right testicle went "bong" and I felt excruciating pain. There was a similar feeling in my leg.

My colleague took over and realised that the umbilical had fouled something under water which was later found out to be the anode of the platform. This was what the other diver Wayne later told me.

In the days that followed, the pain in my leg got worse and on one occasion I crawled out of bed and into the clinic. The medic on duty gave me a pain relieving injection.

I have considered the matter carefully and hope that the Company can look after me in my period of incapacity which I feel may now be limited."

That document was signed by the pursuer and witnessed. The pursuer initialled it on each page at each corner of the page and had also initialled a correction. The pursuer professed to have no recollection of the document and with the utmost reluctance accepted that the signature and initials were his. He was unable to give any explanation for either the existence or the content of the document or for his failure to recollect the circumstances. Mr Owen being a credible and reliable witness, I have no doubt that that document was completed from information supplied by the pursuer on 13 May and find that it was initialled and signed by the pursuer.

[18] Notable features of that document are that the pursuer asserted that the diver he was tending had taken a water stop at 30 feet. The name of the diver, Bond, is inaccurate but presumably means Bonser, because the "other diver Wayne" is manifestly Mr Burridge. It is further notable that nowhere in that document does the pursuer complain of a sore back or of having injured his back at the event.

[19] Another statement made to a doctor attending the pursuer after his return home tended to indicate that the pursuer did then claim to have sustained a pain around vertebra L4 at the time of the event. That was later made more explicit in an account given to Mr Foxworthy, a consultant surgeon who gave evidence. To him the pursuer said that he had noticed a sudden pain in his back radiating down his right leg and into the right testicle.

[20] Further statements of or deriving from the pursuer can be seen in the report by Mr Grosch, 7/28 of process. Although that report did not set out the nature or form of the information which had been placed before its author, a statement must have been given to him by the pursuer directly or via his solicitor. The report mentions a severe pain in the groin area being sustained but nothing about a pain in the back. Various paragraphs in the report begin with the words "It is understood". In evidence the pursuer stated that none of the four sentences in paragraph 2.2.1 of that report was accurate. The report refers to matters "as indicated in Mr Pearson's statement". The circumstances are narrated as the pursuer having advised the lead diver "that the umbilical was tight and that he thought it was fouled" and continue "It is understood that the diving supervisor then reiterated the instruction to keep coming up on the umbilical and that this instruction was passed on to Mr Pearson via the lead diver. Mr Pearson continued to heave with all his might until he felt an excruciating pain in his groin" There is mention also of a statement of Fraser McKenzie, a diver on the opposite shift who adverted to the potential use of 4 divers. The circumstances of the accident are narrated as being that the pursuer, having been asked to come up on his diver's umbilical, pulled in the slack until it became tight and "After several warnings from the pursuer of a taut umbilical, the supervisor continued to instruct the pursuer to come up on the umbilical. Believing that his air diver was either on a tight schedule due to Surface Decompression being required or carrying heavy tools, the pursuer mustered all his strength for one last pull."

[21] On 27 February 2002, the pursuer indicated to a Mr David Bell, consultant surgeon, that the accident caused him to suffer a severe sudden pain in the lumbar region radiating into the back of the right thigh and upper calf and also that he felt excruciating pain in the right groin and testicle.

[22] These statements were, amongst other matters, explored with the pursuer when he gave evidence.

The pursuer's oral evidence
[23] The pursuer confirmed that on the day in question he was asked to assist in the preparation of the decompression chamber for air divers. He had not previously been involved with air divers on that trip. He claimed that he had been given no information about what was going on. He said he knew some of the other divers on the barge. Mr Harrison who was in charge was situated in a cabin. The pursuer came on deck and found three divers in the water. Mr Harrison communicated with the deck crew through to Mr Bing, who also communicated between Harrison and the tender. Mr Harrison was in touch with each diver by radio. The pursuer pulled the third diver out of the water by pulling on the umbilical, constantly paying it out and in. When the incident occurred there were two divers in the water. He was attending one of them. He was getting instructions from Mr Bing, and was asked to pull in the second diver. The umbilical came a little way and then did not come any further. He said to Mr Bing that he thought it had fouled. Mr Padden was holding the other umbilical. He regarded it as necessary to get the diver out of the water as soon as possible. Mr Bing having been informed that the pursuer thought that the umbilical had fouled, went into the dive control cabin and then said to keep coming up. The pursuer tried again. He said that he then pulled harder than ever before in his life. He demonstrated a posture. It was of a tug-of-war position. He said he suffered a severe pain in his back as if struck from behind, pain in his right testicle as if it had exploded and shooting pains in his right leg. He stopped pulling and Mr Padden took over the umbilical. He stayed for a short time on the deck, then went below. He said that his back pain, when below deck later, was numbed by the leg pain. Eventually he was taken off the barge by helicopter, and was flown to Dubai Hospital, where he was seen by a doctor. Thereafter he was evacuated to Hairmyres. In chief, the statement 7/27 which he had dictated to his wife in 1998, was shown to him and he regarded that as being more or less the same as what he had said in court in evidence. He said he had had no previous problem with his back but has continued to have problems since the event. This matter is discussed below in relation to damages. He thought that he would pass a medical for off-shore work if he lied but did not consider himself fit for heavy work.

[24] In cross-examination he accepted that his personal log, 6/2, does not mention accident or injury in relation to his arrival at Enron Panna, said to have been on 30 April, or in relation to his departure 10 May. In his log he claims to have been air diving. He said that he had never suggested that there were four divers in the water and explained the reference to four divers as being related to his having overheard someone say earlier that there was a possibility of that happening. He said he had seen the pleadings in the case at all stages.

[25] He stated that he had never suggested that there was a water stop on the raising of the diver at the time when he had his accident. When confronted with 7/27, his dictated document, he said that he had presumed that there would be a 30-foot stop if the dive was deep. He had never, he said, suggested that such a thing had happened. When 7/10 was put to him, he suggested that someone had "put in" the matter of the water stop "If I did it, I do not know why it is in". He repeated that he did not recall the document 7/10, either being written or signed.

[26] In relation to his pulling on the umbilical prior to the incident he said he kept pulling because he was told to.

[27] Mr Bing had said "Okay guys, come up on the umbilical". The pursuer explained that this instruction meant that the divers were being brought to the surface. He then said he didn't know if both divers were coming up or whether the instruction was to him alone or to Mr Padden. He did not know who he was pulling up nor was he aware of Padden lifting. The pursuer said he indicated that the umbilical had stuck or fouled or used words to that effect but had said nothing specifically to Mr Padden. He said that again he was given an indication to come up and said it was not coming. Mr Bing disappeared, then came out and said "Get it up, get it up". Those instructions he then said, were gesticulations, not verbal. When he was told to pull, he finally pulled harder than anything. He said he was told to pull with all his might. No instructions were given about a water stop. He accepted that the divers would surface in two minutes if all was going according to plan.

[28] With regard to his pre-accident medical history, the pursuer had had episodes of pancreatitis, had episodes of pain in his shoulder and had been treated for depression and alcohol abuse. He said in evidence that he had stopped drinking since the accident. This was incorrect since he had received treatment for binge drinking subsequent to his return home. His job application, of 15/4/97 which included a medical questionnaire 7/26, was put to him. He denied any "nerve trouble" and in relation to the question "What is your daily consumption of alcohol?" he replied "Almost teetotal". On a prior questionnaire dated 25/7/96, he had said "Teetotal, almost". However in 1986 it is noted in the hospital records 7/7/85 that he had a drinking problem. In the course of his examination in court he accepted that he was a binge drinker.

Other evidence from witnesses present at the event
[29] There were two such witnesses, Mr Bing, the lead diver, who gave evidence on commission prior to the proof and Mr Padden, who gave evidence interposed in the evidence of Mr Grosch on 28 October.