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Noble v. De Boer [2003] ScotCS 54 (04 March 2004)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Osborne Lord Hamilton
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XA20/03 OPINION OF LORD MARNOCH in APPEAL From the Sheriffdom of Grampian, Highland and Islands at Aberdeen by ALEXANDER NOBLE Pursuer and Respondent; against CORNELIUS DE BOER Defender and Appellant; _______ |
Act: McEachran, Q.C., A. Macdonald; Russell Jones & Walker (Lefevre Litigation, Aberdeen) (Pursuer and Respondent)
Alt: J. R. Campbell, Q.C.,. Clark; Brodies, W.S. (Davies Wood Summers, Aberdeen) (Defender and Appellant)
4 March 2004
[1] This is an appeal and cross-appeal against a judgment of Sheriff Harris sitting at Aberdeen. It is, however, necessary to deal at the outset with what is regrettably a rather lengthy background to the hearing which took place before this Court. [2] On 13 November 1992 at about 5.30am the pursuer sustained serious injuries while working on board the fishing vessel "PD Fellowship" off the coast of the Netherlands. It is admitted that, while the pursuer was in the process of putting fishing gear over the side of the vessel, the vessel rolled in the swell and a large stone slid across the deck trapping his left leg between the stone and what is described as the "beam" of the fishing net. There is no dispute that the stone in question had been picked up in the nets three days earlier on 10 November 1992. The vessel in question was British registered which meant that there had to be a British skipper aboard to satisfy certain requirements of fishing regulations which were in force at the time. The pursuer was the British skipper on board the vessel but, while fishing was in progress, he served as a deck hand. Most of the remainder of the crew were Dutch, including Cornelius De Boer who was the "Fishing Skipper" and who is now the only remaining defender in the action. [3] The action, which seeks reparation for the pursuer's injuries, appears to have been raised late in 1994 and, at least by 3 May 1995, in addition to Cornelius De Boer, there were two further defenders, namely Osprey Trawlers Limited and a Dutch company, Rederij De Boer and Zanen Bv. On 4 March 1996, on the motion of all three defenders, Sheriff Kelby allowed a Preliminary Proof on the question or questions of whether or not Osprey Trawlers Limited and Rederij De Boer and Zanen Bv were at the time of the accident the employers of the pursuer and remaining defender respectively, the alternative being that each voyage constituted a joint adventure amongst the crew. The matter of safety on board the vessel was apparently one of various considerations seen to be determinative of these issues. After sundry procedure, on 6 June 1997, Sheriff Warner dismissed the action, in part, against Osprey Trawlers Limited and assoilzied the Dutch company, holding that the pursuer was a joint adventurer and that Cornelius De Boer (hereinafter referred to as "the defender") was a self-employed share fisherman. In so doing he made, inter alia, the following Findings in Fact:"6. The Pursuer was engaged in a dual capacity:- (a) as British Skipper - responsible for 'paper work' and safety aspects, and (b) as a deckhand while fishing,
7. He was the British Skipper of the Fellowship for the formal requirements of the fishing regulations which were then in force.
8. As such he was responsible for the safety of the crew onboard the Fellowship, at any event, insofar as not directly relating to fishing operations.
9. As British Skipper, he completed the log book of the Fellowship and dealt with, when necessary, fisheries officers and such formal administration as arose before, during and after a voyage.
10. The Pursuer had no control over the choice of Dutch Skipper for the trip.
11. The Pursuer had no control over fishing operations.
12. The Pursuer did not act as the Skipper of the Fellowship while she was fishing.
13. That task was undertaken by the Dutch Skipper - the Third Defender.
14. The Pursuer was accordingly subject to the direction of the Third Defender in the course of fishing operations.
15. The Pursuer was accordingly instructed by the Third Defender when to put the fishing gear overboard.
16. The Third Defender as the Dutch Skipper had control and management of the vessel and its crew during the course of fishing operations."
Sheriff Warner's judgment was appealed to the Court of Session but both it and the Findings in Fact on which it depended, including specifically Findings in Fact 6 and 8 were upheld by the Inner House on 26 June 1998. Thereafter, nothing material seems to have occurred until 26 June 2000 when the pursuer was permitted to abandon the action insofar as still directed against Osprey Trawlers Limited. Following amendment consequent upon that abandonment, there was then a debate on jurisdiction in which the pursuer eventually achieved success on 14 March 2001. During eight days in October 2001, March 2002 and April 2002, a proof on the merits was finally heard with the judgment from which the present appeal and cross-appeal have been taken being pronounced on 29 November 2002.
[4] During the proof on the merits the attitude adopted by Counsel for the defender was that facts found, incidentally or otherwise, by Sheriff Warner in the Preliminary Proof were binding on Sheriff Harris. In particular, Findings in Fact 6 to 16 referred to above were said to be binding and objection was taken to the pursuer leading any evidence which tended to contradict or encroach on these findings. Mr McEachran Q.C., for the pursuer, on the other hand, submitted that all the evidence given in the Preliminary Proof was confined to the issue or issues on which the Preliminary Proof was allowed. In the event, Sheriff Harris upheld the objection to the line of evidence and, although in the Grounds of Cross-Appeal tabled for the pursuer the first ground is that the Sheriff "erred in fact and in law in holding that he was bound by the findings in the preliminary proof", there is no ground of appeal which, in terms, relates to the upholding of that objection. The final "twist" in this background narrative is that shortly prior to the commencement of the hearing before us intimation was given that the pursuer no longer sought to insist on the first ground of cross-appeal to which I have just referred. [5] Against the foregoing background the Court made it known that it wished to be addressed at the outset on the "propriety/competence of the allowance of the Preliminary Proof and, in any event, and more immediately on the propriety/competency of Sheriff Harris regarding himself bound by findings made by Sheriff Warner in the course of the Preliminary Proof". In the event, neither party was able to cite any Scottish authority on the matter and in that situation Senior Counsel for the defender adhered to the position which he had adopted before Sheriff Harris to the effect that, as matter of principle, findings in fact made at the Preliminary Proof were binding for purposes of the proof on the merits. Rather less predictably, but possibly in order to avoid a remit back to the Sheriff, Mr McEachran, Q.C., for the pursuer, confirmed the abandonment of the first ground of cross-appeal and also took up the position that Sheriff Harris had properly held these findings in fact to be binding upon him. In these circumstances it was recorded in the Minute of Proceedings in open Court that both parties were agreed that "Findings in Fact 6 to 16 inclusive made at the Preliminary Proof were to be regarded as Findings in Fact for purposes of the proof on the merits of the action". On that basis the hearing was allowed to continue. For my part, however, I should like to make it clear that, while I regard this Court as properly bound by the agreement to which I have just referred, I do not regard that agreement as reflecting what the law would otherwise imply. In particular, the only case cited by Mr McEachran, Secretary of State for Trade and Industry v Bairstow [2003] All ER (D) 137, being a decision of the Court of Appeal on, inter alia, abuse of process, seems to me to have absolutely nothing to do with the question in hand. In my opinion, it is abundantly clear from all the authorities that a Preliminary Proof should only be allowed on matters wholly distinct from what I have termed the "merits" of the action and, in the circumstances of the present case, it is at least questionable whether any Preliminary Proof should have been ordered; cf McCafferty v McCabe 1898 25 R. 872. However that may be, I am of opinion that, in the absence of agreement to the contrary, there is no reason why facts found, perhaps peripherally, in one context should be held established, perhaps centrally, in another context. In the one context, indeed, there might be no reason for a party even to challenge certain facts, let alone to the extent necessary in the other context. And where, as here, the different proofs were taken by different Sheriffs, it seems to me that the contrary proposition becomes even less tenable. What is to happen, for instance, if the different Sheriffs take different views anent the credibility and/or reliability of the same witness? In the result, although, as I have said, I conceive that in this case the Court is bound by the agreement of parties as now recorded in the Minute of Proceedings, I regard that agreement as a manifestly unsatisfactory basis for the judgment at first instance and, even more so, for the appeal and cross-appeal to this Court. [6] At this point it is convenient to look at what Sheriff Harris did decide, having held himself bound by the findings in fact at the Preliminary Proof and, in particular, Findings 8, 11, 14 and 16 as set out above. His own Findings in Fact are fairly brief, the critical ones, for present purposes, being as follows:-"6. On 10 November, 1992, while fishing on the Dogger Bank, in community waters the starboard nets of the 'P D Fellowship' brought up a stone which measured about three, by one, by one and a half feet, and weighed about a quarter of a ton. The practice onboard the Fellowship, if a large stone was not immediately put overboard, was to retain the stone onboard until the end of the fishing period and then drop it overboard at the site of a wreck or in an area where the seabed was known to be rocky. The decision regarding the disposal of stones during fishing operations was the responsibility of the defender, being directly related to fishing operations.
7. On 10 November, 1992 on the instructions of the defender, the stone was hauled, by means of the boat's winch, to a point between the wheelhouse and the net hatch. The stone was not secured and, with the movement of the boat in heavy seas, slid about the deck. Attempts were made by the crew to take the stone back to its original position between the wheelhouse and the net hatch.
8. On an occasion, prior to 13 November, 1992, the stone had moved to a position which caused it to impede the deployment of the fishing gear over the port side of the boat. The pursuer, together with another crew member, by means of the boat's winch, 'hoved' the stone to a position on the port side of the net hatch.
9. On 12 November, 1992 the defender decided to cease fishing on the Dogger Bank and to move to fishing grounds off the Dutch coast.
10. The boat sailed for some twelve hours from the Dogger Bank towards a position off the Dutch coast.
11. At about 5 a.m. on 13 November, 1992 the fishing grounds off the Dutch coast were reached. The defender brought the boat to a halt and gave the order to deploy the fishing gear.
12. A fishing operation is the process of shooting, and hauling in, the fishing gear and begins with the order by the fishing skipper to deploy the gear and ends when the gear has been hauled back onboard.
13. While the pursuer was engaged in deploying the fishing gear over the port side of the boat, the boat rolled in the sea swell causing the stone to slide across the deck towards the port rail.
14. The stone struck the pursuer on his left leg, trapping his leg between the stone and the beam of the fishing net. The beam of the fishing net consists of a metal pipe.
15. As a result of the accident the pursuer sustained a third degree compound comminuted fracture of the mid shaft of the tibia with loss of some bone fragments. He also suffered a comminuted fracture of the distal fibula.
16. Following the injury to his leg the pursuer underwent multiple operations which culminated in a below knee amputation on 4 January, 1995."
"[18] On 10 November, 1992 a large stone was brought up during a fishing operation. At that time the defender was responsible for safety on the deck of the Fellowship. The defender made the decision to haul the stone to a point between the wheelhouse and the net hatch and gave the appropriate instructions. Generally stones are not deposited back on the seabed while the vessel is above the fishing ground as the next trawl may merely bring the same stone back up in the nets. Accordingly, stones are usually deposited over rocky ground, or at the site of a shipwreck, where, in either case, it is not possible to beam trawl. However, on occasion the decision is made to immediately put a large stone overboard, as happened on the Fellowship on 8 August, 1991. Thus, the decision to immediately put a stone overboard, or to interrupt fishing to dispose of a stone at an appropriate spot away from the fishing grounds, or to stow the stone on deck and continue fishing, is a decision directly relating to fishing operations.
[19] Thus, the responsibility for the decision on 10 November, 1992 to stow the stone on deck, rather than immediately put it overboard, or interrupt fishing in order to find an appropriate spot to dispose of the stone, lay with the fishing skipper, in this case the defender. [20] The failure by the defender to order that the stone be disposed of overboard, or at least to take reasonable steps to secure it in such a way that it could not move on the deck during fishing operations was, in my view, a breach of his duty of care, as fishing skipper, owed to the members of the crew of the Fellowship, including the pursuer, while fishing operations were being carried out. As a consequence of the defender's said failure the pursuer was injured on 13 November, 1992 while he was engaged in deploying the fishing gear over the side of the vessel, in essence, while he was engaged in a fishing operation under the direction of the defender....
[27] The pursuer was well aware of the movement of the stone and gave evidence that, on one occasion he, together with another crew member, moved the stone to a position on the port side of the net hatch. The pursuer's knowledge of the stone's movement on the deck and his responsibility for the safety of the crew, at least during a twelve hour period when the opportunity to dispose of the stone while not fishing, arose, amounted, in my view to contributory negligence. Given the limited period of time available to the pursuer to insist that the stone be disposed of in a suitable area, and the defender's opportunity to order the disposal of the stone prior to recommencing fishing off the Dutch coast, I consider that the proportion of fault attributable to the pursuer is 30%.""The stone was not secured and, with the movement of the boat in heavy seas, slid about the deck. Attempts were made by the crew to take the stone back to its original position between the wheelhouse and the net hatch."
The pursuer, who is described by the Sheriff as having given his evidence "carefully and truthfully" deponed that the stone was "actually a pest all week ... that few days at the Dogger Bank" (in cross-examination at p. 137) and, although it was a matter for the defender to decide, the pursuer's view was that, because of its movement, the stone should have been put off the vessel "as quickly as possible" (in cross-examination at p. 153). In the same passage he went on to say that the defender must have been aware of the stone's instability.
[13] In light of the above, and with all due respect to the various arguments deployed by Counsel for the defender and appellant, it seems to me plain that the pursuer's accident was caused, at least to some extent, by the fault and negligence of the defender. Although the Sheriff makes no explicit findings on the subject, and although in any event it can only be a matter of inference, it seems to me that the evidence demonstrates a necessary awareness of the stone's instability on the part of the defender. Indeed, if the pursuer's evidence is taken at its highest, during a period of forty eight hours or more the defender, as fishing skipper, must have seen this large and heavy stone move about the deck in heavy seas thereby constituting an obvious hazard to those men working with fishing gear under his direction. However, even if the pursuer's evidence is not accepted in its entirety, Sheriff Harris' Finding in Fact 8 makes clear that on at least one occasion when the fishing gear was being deployed at the Dogger Bank (a time when the Fishing Skipper was always in the wheelhouse) the pursuer, together with another member of the crew, by means of the boat's winch "hoved" the stone from a position where it was impeding the gear to a position on the port side of the net hatch. In my opinion that operation, at the very least, must have been witnessed by the defender who should thereby have been alerted to the stone's lack of stability on board the vessel. Quite apart from these considerations, the defender, himself, said (at p. 498) that, "If there is bad weather then there is a danger the stones start rolling about", and it may well be that his evidence that the stone remained stable was coloured by his view, apparently not accepted by the Sheriff, that the weather at the Dogger Bank was "excellent" (p. 491). In any event, his claim (at p. 414) that the stone was jammed in one position "and it stayed jammed and I am 300% certain that that's where it was for the whole week" was rejected by the Sheriff with the result that the court is immediately thrown back on the competing evidence to which I have referred. As I have said, that evidence is clearly to the effect that, while still fishing on the Dogger Bank, the defender must have been aware of the stone's lack of stability. However, at no stage during fishing operations, at the end of fishing operations or prior to the recommencement of fishing operations off the coast of the Netherlands did he take any steps to see that the stone was returned to the sea. Although it seems that the weather off the coast of the Netherlands was less severe than at the Dogger Bank, and although the pursuer described the roll of the vessel immediately prior to his accident as "abnormal", the evidence was that there was still a swell in the water with "choppy" waves. In these circumstances it cannot, I think, be said - if, indeed, it was ever argued - that the accident which occurred was unforeseeable. [14] In reaching the foregoing conclusions I differ only slightly from the Sheriff in that, at para. 20 of his Note, he describes the defender's breach of duty to take reasonable care as being a "failure by the defender to order that the stone be disposed of overboard, or at least to take reasonable steps to secure it in such a way that it could not move on the deck during fishing operations". For reasons which will shortly become apparent I do not consider that there was evidence that this stone could be safely secured on board. However, that being so, it was, in my opinion, all the more incumbent on the defender to see that the stone was jettisoned at least at some stage prior to the occurrence of the pursuer's accident. I should add that, even if it were practicable to secure the stone safely, I do not consider that what I would then accept as the existence of a duty of care incumbent on the pursuer in that regard would in any way exclude the existence of a similar duty on the part of the defender, as was argued by Counsel for the defender and appellant. There is, in my opinion, nothing in the findings of Sheriff Warner which excludes the co-existence of duties on the part of both skippers and it is, I think, very significant, in this connection, that the danger from a loose stone is clearly at its highest when the crew are actively engaged in fishing operations. It follows, in my opinion, that, even if I were wrong in concluding that the defender had actual knowledge of the stone's instability, he nonetheless failed in his duty to take reasonable care to see either that the stone was stable or that it was put overboard. [15] Ground 10 of the Grounds of Appeal for the defender and appellant is to the effect that, esto the defender was to some extent at fault, the Sheriff should have assessed the degree of contributory negligence as being considerably higher than 30%. For reasons which will again shortly become apparent when I turn to deal with the cross-appeal, I consider that there is no substance whatever in this Ground either. [16] That leaves only Ground 11 which is a Ground of Appeal challenging the multiplicand adopted by the Sheriff in his calculation of loss of earnings. On behalf of the defender evidence was led from a chartered accountant who prepared accounts for a large number of vessels involved in different forms of fishing for white fish and all involving share fishermen. Counsel for the defender and appellant maintained before the Sheriff, and before us, that an average figure of earnings which could be extracted from these accounts constituted the best evidence of the pursuer's loss. In the course of his evidence, however, the accountant, Mr Braid, conceded that he might have made an error in his assumption as to the number of crew on board certain vessels and in that situation the Sheriff expressed the view that "a more accurate assessment can be carried out by considering individual share fishermen's earnings and not attempting to divide the earnings, over a year, of an entire crew". He then took the average of what were said to be the earnings of two share fishermen who gave evidence at the proof. Although the earnings of one of these witnesses were unvouched they were not in any different league from those of the other witness whose earnings were vouched. In these circumstances the Sheriff was, in my opinion, well entitled to take the course which he did and, in doing so, he might well have had in mind, also, Mr Braid's concession (at pps. 586-7) that better fishermen tend to get berths aboard vessels which have a good reputation for getting better than average catches. [17] In the result, I am of opinion that none of the defender's grounds of appeal have been made out and my motion to your Lordships is that the appeal by the defender and appellant be refused. [18] I now turn to a consideration of the cross-appeal in respect of which there were originally six grounds of appeal. Only two, No. 2, as amended, and No. 5, are still insisted in. The second ground of appeal is by far the more important insofar as it challenges the Sheriff's finding of contributory negligence on the part of the pursuer. That finding is based on the following two sentences of para. 27 of the Sheriff's Note:"The pursuer was well aware of the movement of the stone and gave evidence that, on one occasion, he, together with another crew member, moved the stone to a position on the port side of the net hatch. The pursuer's knowledge of the stone's movement on the deck and his responsibility for the safety of the crew, at least during a twelve hour period when the opportunity to dispose of the stone while not fishing, arose, amounted, in my view, to contributory negligence."
The Sheriff goes on to say that, "Given the limited period of time available to the pursuer to insist that the stone be disposed of in a suitable area, and the defender's opportunity to order the disposal of the stone prior to recommencing fishing off the Dutch coast", the proportion of fault attributable to the pursuer was 30%.
[19] It is clear that the Sheriff's reasoning in this connection is based essentially on his assumption that during the twelve hour period when the vessel was sailing towards the Dutch coast the pursuer could, and should, at some point have insisted that the stone be jettisoned overboard. In my opinion, however, he was in error in making that assumption and the consequent finding of contributory negligence. There are a number of reasons for saying that, including evidence that, before the stone could be jettisoned, the vessel might have to be stopped in the water and its gear deployed so as to enable use to be made of its lifting gear. There is also the question of whether, while the vessel was under way, the stone presented any meaningful danger to the crew. I am, however, relieved of any further consideration of these matters by Senior Counsel's belated recognition that there was, in the first place, no proper Record for the Sheriff's findings which were apparently made ex proprio motu. In the event, Senior Counsel very properly moved to amend the pleadings so as to embrace the Sheriff's findings but this motion, after being opposed, was refused. [20] Although, however, the pursuer cannot be faulted in accordance with the reasoning of the Sheriff, the question remains whether, as Counsel for the defender and appellant submitted, he should now be faulted by this Court in respect of a failure to secure the stone on board the vessel. Having considered the background circumstances and the evidence on this matter I am of opinion that, in accordance with the submissions of Counsel for the pursuer and respondent, that question falls to be answered in the negative. [21] In the first place, although the defender has written pleadings for this case of fault, Senior Counsel conceded that he had not advanced it explicitly in the course of his closing submissions to the Sheriff. Instead, these submissions had been along the very general lines indicated at p. 173A-C of the Notes of Evidence. This, it seems to me, was a most unfortunate omission because, as a result, the Sheriff has found it unnecessary to make any finding in fact as to whether or not it was actually practicable to secure this stone safety on board the vessel. The Court of first instance is obviously best placed to make primary findings in fact of that nature and, that Court not having been required to deal with the matter, I consider that this Court should be particularly hesitant before itself making such a finding. In that connection, I am fully persuaded that in the context of trawl fishing in heavy and unpredictable seas there is a very real question regarding the practicability of securing the stone safely and that the onus of establishing that fact does lie on the defender as a prerequisite to success on this branch of the case. As to that, I have to observe that at no stage in their addresses to us did counsel for the defender and appellant suggest the terms of any proposed new finding in fact as a foundation for their argument. [22] In the second place, as I propose now to demonstrate, there was, in my opinion, little, if any, evidence on which such a finding could be based. [23] The pursuer's evidence-in-chief (at p. 75) is to the following effect:"I think it is suggested by Mr De Boer, or on his behalf, that the stone could have been secured by ropes or wire. Have you any comment on that? - It could have been and I believe attempts were made but the nature of the weather and with so much water going across the deck, it is very difficult to restrain a rock beside a hatch. There is very little provision made to secure a stone, there is only the hatch with an aluminium rim round about it. In my view there is no provision to secure any rope properly."
In cross-examination the subject was revisited in the following terms (at pp. 171-3):
"Having perceived this danger to your own safety what, if anything, do you do to avoid that danger? - As I have said, I believe that at least one attempt had been made to pull the stone back to that area. I can't remember if there had been ropes put round about it but if you study that hatch there is very little provision made for retaining a stone, and a stone rocking will soon move a rope.
Apart from moving it back on one occasion when it was impeding deploying of the fishing gear, you did nothing to avoid this danger which you were clearly aware of? - As I say, the stone was pulled back beside the hatch from time to time during that week.
But that wasn't done to avoid the danger of it moving again ...? - But I said the stone shouldn't have been there anyway.
I am asking what if anything you did to move it? - Along with the rest of the crew, I suppose ... I can't remember, I hear a story that it was chained but I don't remember because I think beside that hatch, there is, tied to the hatch, boxes of chains, so it would be very difficult to tie a stone as well. I'm not saying it wasn't tied, I can't remember."
I observe, in passing, that in the immediately foregoing passage of evidence it can hardly be said that the pursuer was pressed on the matter of securing the stone, let alone that he had put to him any specific method whereby it was possible to secure it.
[24] The next member of the crew who gave evidence was Mr Sutherland in whose evidence-in-chief there appears the following passage (at pp. 355-6):"I think it is agreed the stone was there for two or three days. Did it, in the course of the vessel's manoeuvres and journeys, did it move about on the deck? - I seem to remember shoring it up once or twice but I cannot actually remember it moving.
Shoring it up, what do you mean by that? - When it came on board the best way to stop it from moving was to jam it up with chains, like a wedge, if you wanted to wedge something you use wooden wedges and we use a chain so you stuff it in below it to stop it moving.
And you say you recall on one or two occasions having to prop it up? - Just kicking the chain in back and under the stone. Unless it is welded to the deck it is always going to be move about.
So, you observed it moving about, did you? - Not actually moving about but we knew it was going to come free because the chains needed to be replaced.
What told you that, what told you it needed to be wedged? - If you were walking past it on deck then the chains, instead of being tight into the stone would be lying flat on the deck so that you would kick the chains back in to try and wedge it up again."
"Remind me why you put chains down? - Because the stone was an irregular shape, it wasn't easily stowed, that was the best way that we could stow it.
Do you have a recollection of roughly what sort of shape it was? - I remember it being kind of egg shaped or pear shaped.
Was there an obvious flat or flatish side for it to lie on? - There would have been a side where it would have lay naturally but I cannot remember. When you left it wherever you left it and put these chains down, did someone have to go and get chains from somewhere for this purpose? - No, I think the chains had been lying there from either the beginning of that week or the end of the previous week to be discarded, they changed the chains.
So, the chains were no longer required for any other purpose as it were? - Yes.
You say you would, from time to time, give a kick to the chains to re-pack them under the stone or something like that? - Yes, as far as I recollect the stone, it was going to move during the week, so you tried to keep an eye on it to see what exactly was happening with it.
What do you mean when you say, 'It was going to move during the week'? - If you didn't pay particular attention to it the chains would move first and then the stone would eventually move.
So, provided you kept an eye on it and kept the chains packed in, you didn't think it would move, is that correct? - Yes, as long as the weather didn't deteriorate or come fast on one side."
"If we were to make them [stones] immobile we would actually lash them to the fish hold entrance, an opening in the deck with steel round it."
Then, in cross-examination (at pps. 551-2) he elaborated on the matter as follows:
"You talked about attaching a large stone which you couldn't put over immediately to something called the fish hold. Where is that? - Usually in the centre of the deck area, forward of the bridge, aft of the whaleback. It is where the fish boxes are taken out at the end of the trip.
And if you would look at a plan which is 6/4/8 of Process? - There (indicating).
And it would be tied to that, you say. With what? - A sturdy piece of rope.
Forward, aft, to the side? - Usually at either side. I have seen lots of stones on deck. I have had to climb over them but usually round about there, I think, either side.
And for the notes you are indicating as the fish hatch, the hatch immediately forward of the wheelhouse? - Yes.
And when you say 'either side', you mean on the port and starboard sides of the hatch? - Yes."
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Osborne Lord Hamilton
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XA20/03 OPINION OF LORD OSBORNE in APPEAL From the Sheriffdom of Grampian, Highland and Islands at Aberdeen by ALEXANDER NOBLE Pursuer and Respondent; against CORNELIUS DE BOER Defender and Appellant; _______ |
Act: McEachran, Q.C., A. Macdonald; Russell Jones & Walker (Lefevre Litigation, Aberdeen) (Pursuer and Respondent)
Alt: J. R. Campbell, Q.C.,. Clark; Brodies, W.S. (Davies Wood Summers, Aberdeen) (Defender and Appellant)
4 March 2004
[34] I have had the benefit of reading the Opinion of your Lordship in the Chair. I am in complete agreement with your Lordship as regards the manner of disposal of this appeal and cross-appeal proposed in paragraph [33] of your Lordship's Opinion. Save for the matters with which I deal below, I am also in agreement with your Lordship's reasoning. Unfortunately I find that I am unable to agree with certain of your Lordship's observations in paragraph [5] of your Lordship's Opinion. Your Lordship there deals with the significance and standing of findings-in-fact 6 to 16 inclusive made by Sheriff Warner following the preliminary proof held in this case. Like your Lordship, having regard to the agreement reached between the parties following preliminary discussions about the matter before us, I am of the view that this court is bound to regard those findings-in-fact as findings-in-fact for the purposes of the proof on the merits of the action. However, regrettably I differ from your Lordship and also from Lord Hamilton as regards what the law would otherwise have implied, but for that agreement. In the absence of authority on this issue, it appears to me that, as a matter of principle, where a sheriff has made findings-in-fact in the course of a preliminary proof in an action, those findings are to be taken as findings-in-fact for all purposes in connection with that action, where the parties to the preliminary proof included the parties who were participants in the proof on the merits of the action. It respectfully appears to me that any other approach would involve the possibility of serious conflict and uncertainty. If parties have participated in a preliminary proof, as a result of which certain findings have been made, in my opinion, it would be quite wrong for the court to entertain the notion that, at a later stage in the same action, the same matters of fact might be canvassed again with the result that different findings-in-fact on those matters might be made. [35] In this connection, I am in agreement with your Lordship in the Chair that The Secretary of State for Trade and Industry v. Bairstow [2003] All E.R. (D) 137 has no relevance to the present issue. In that case, as I understand it, the Court of Appeal had to consider the significance of certain findings made by a judge in earlier proceedings, in relation to subsequent and separate proceedings. I am unable to see how what was said in that quite different context is of assistance in the present one. [36] During the course of the preliminary discussions before us in relation to the significance of the findings-in-fact made by Sheriff Warner, apart from reference to the case just mentioned, we were not referred to any of the numerous authorities relating to circumstances in which it may be appropriate to hold a preliminary proof distinct from a proof on the merits of an action. These authorities are referred to in paragraph 8.60 of Sheriff Court Practice I.D. Macphail, second edition, volume 1, at pages 259-260. Against that background, I would hesitate to express any concluded opinion about the matters in question. However, in view of what is said in that paragraph and in view also of the difficulties experienced in the present case as a result of the holding of a preliminary proof, the subject-matter of which, it appears, extended into matters which plainly had a bearing upon the merits of the action, it seems to me that it would be unwise for any preliminary proof to be allowed on any issue which is so related to the merits of the case that it cannot easily be separated therefrom and where therefore there exists a risk of overlapping subject-matter in the two proofs. [37] The only other matter on which I feel bound to differ from your Lordship in the Chair's observations concerns the application of Gibson v. Orr 1999 SC 420 to the circumstances of this case. In that case, Lord Hamilton held that the three-element test referred to in Caparo plc v. Dickman [1990] 2 AC 605, fell to be applied in Scotland in personal injury actions based on a duty of care, as well as in other actions of damages so based. With that view I would respectfully agree. In these circumstances, it appears to me inevitable that the "fair, just and reasonable" test requires to be applied in a context such as the present one. However, having regard to finding-in-fact 16 made by Sheriff Warner that "The third defender as the Dutch skipper had control and management of the vessel and its crew during the course of fishing operations.", the application of that test to the circumstances, in my opinion, could have but one result, namely the affirmation of the existence of a duty of care to a person in the position of the pursuer.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Osborne Lord Hamilton
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XA20/03 OPINION OF LORD HAMILTON in APPEAL From the Sheriffdom of Grampian, Highland and Islands at Aberdeen by ALEXANDER NOBLE Pursuer and Respondent; against CORNELIUS DE BOER Defender and Appellant; _______ |
Act: McEachran, Q.C., A. Macdonald; Russell Jones & Walker (Lefevre Litigation, Aberdeen) (Pursuer and Respondent)
Alt: J. R. Campbell, Q.C.,. Clark; Brodies, W.S. (Davies Wood Summers, Aberdeen) (Defender and Appellant)
4 March 2004
[38] I agree with your Lordship in the Chair that the defender's appeal fails and that the pursuer's cross-appeal succeeds to the extent indicated by your Lordship. As these proceedings are clearly of substantial importance to the parties and as certain matters of general application arise, I prefer to express in my own words my reasons for concurrence in these disposals. [39] As your Lordship has narrated, on 4 March 1996 the sheriff allowed a preliminary proof on certain specific issues. That order was made in the course of a debate and on the motion of counsel acting for all three parties then appearing as defenders. The issues were (1) whether or not Osprey Trawlers Ltd was at the time of the accident the employer of the pursuer and (2) whether or not the Dutch company, Rederij De Boer and Zanen Bv, was at that time the employer of the then third defender (now the only remaining defender). The interlocutor does not record the pursuer's attitude to the making of such an order; nor are the sheriff's reasons for doing so recorded. [40] That decision, while competent, was unfortunate. It has rendered this protracted and expensive litigation more protracted and more expensive. An elaborate preliminary proof was heard, followed by a debate, followed by an elaborate proof on the merits. While the procedure adopted had the practical consequence of the number of defenders being reduced ultimately from three to one, that seems to have been of minor importance in circumstances where these defenders had sufficient community of interest to be represented by one set of counsel and agents. The issues of the status of the pursuer and of the third defender respectively were germane to the issues of responsibility and of liability which any proof on the merits would require to address. In the event the sheriff who heard the preliminary proof made certain findings of fact in relation to matters which impinged on the issues to be determined on the merits. A question, apparently novel, then arose as to whether these findings of fact were binding on the sheriff who heard the proof on the merits. That question was answered by that sheriff in a way which has given rise to further difficulties. [41] Sheriff Harris sustained an objection, taken by the remaining defender on the first day of the proof on the merits, to a line of evidence then being pursued by the pursuer touching on where responsibility lay in respect of jettisoning any stone which had been taken on board. His ground for doing so was that the scope of the defender's responsibility for the safety of the crew had been decided, for the purposes of the action, by Sheriff Warner at the preliminary proof. Consistently with that ruling, no evidence, except perhaps incidentally, was adduced at the proof on the respective responsibilities of the pursuer and the third defender for safety on board; Sheriff Harris himself made no findings in fact on these matters, regarding himself as bound by his predecessor's findings on them. No Scottish authority was apparently cited to Sheriff Harris in support of this course of action; nor, apart from one English case (in my view of no assistance), was any such authority cited to us. [42] It was not suggested, rightly in my view, that the rules with regard to res iudicata had any relevance to the matter. Sheriff Warner, having heard evidence at the preliminary proof, was obliged under the Sheriff Court Rules to make, in his interlocutor, findings in fact and law. His findings in fact were made incidental to and for the purpose of determination of the issues remitted to the preliminary proof. These findings had, in my view, no force and effect except for that purpose. In the event, Sheriff Harris was left with the unenviable test of interpreting and seeking to apply to the circumstances explored before him the findings in fact made by another sheriff incidentally for another purpose and on the basis of evidence to which Sheriff Harris had no access. This court was likewise faced with such an unenviable task, particularly as no notes of the evidence led before Sheriff Warner, on which he had based these findings, were placed before this court. The terms of these findings, while no doubt sufficient as factual conclusions incidental to the matters determined at the preliminary proof, are not without their ambiguities. The procedural course taken denied to parties, and to the court, the opportunity to explore and to clarify issues of fact potentially of importance to the resolution of the issue of liability. In the event, parties adopted a position before us which allowed matters to proceed without further time being spent and expense incurred by a remit to the sheriff to hear further evidence. While the position is not, in my view, wholly satisfactory, I am prepared to proceed on the basis that, by agreement of parties, findings in fact 1 to 16 inclusive made by Sheriff Warner are to be treated, without modification or elucidation, as undisputed findings in fact for the purposes of the proof on the merits. [43] It is not in dispute that the pursuer sustained personal injuries while on board the "Fellowship" in the course of a voyage embarked on for the purpose of commercial fishing in the North Sea. The pursuer pleads that these injuries were caused to a material extent by the fault and negligence of the defender. The pursuer's case depends on his demonstrating that the defender owed to him a duty of care and that breach of that duty caused his injuries. In the course of their submissions, the defender's counsel cited a decision of mine in the Outer House, Gibson v Orr 1999 SC 420. That case was concerned with whether a duty of care was, in the circumstances of that case, owed by certain police officers to the occupants of a vehicle which in the event fell into a river swollen with floodwater. A wide-ranging debate took place before me on the procedure roll in which I reached certain conclusions as to the test to be applied in modern circumstances to determining, in a case of personal injuries, whether a duty of care existed. So far as I am aware, the soundness of the views which I there expressed has not been tested, at least specifically, in any higher court; I am not to be taken as departing from them. Counsel for the pursuer in this case did not mount any challenge to these views, no doubt because they found it unnecessary to do so. In the course of my Opinion I had reason to cite earlier authority, including passages from the speeches delivered in Caparo plc v Dickman [1990] 2 AC 605. At several points in his speech in that case Lord Bridge of Harwich referred to a duty "of a given scope". [44] Without examining the context in which Lord Bridge (or indeed others of their Lordships) spoke of the "scope" of a duty, counsel for the present defender sought, as I understood them, to delimit the extent of the duty of care owed by the defender to the pursuer in this case, particular reliance being placed on the fact that the enterprise was a joint venture and on the fact that the pursuer had certain responsibilities as the "British skipper". It was not disputed that the defender, by reason of the powers and responsibilities vested in him as the "fishing skipper", had, at least in some respects, a duty to take reasonable care for the personal safety of other members of the crew, including the pursuer; but it was argued that, applying the "fair, just and reasonable" element in the test discussed in Caparo and in other authorities, the defender did not owe to the pursuer a duty of care of such a scope as could give rise to liability for the consequences of the pursuer's accident. [45] In my view the defender's contention is unsound and the limited authority cited does not assist him. Gibson v Orr, while a case about personal injuries, was concerned only with the issue of whether any duty of care was owed in the circumstances by the police officers to the occupants of the vehicle. Caparo plc v Dickman was concerned with economic loss; the observations about the "scope" of any duty of care were made in the context of whether a duty of care in relation to the auditing of accounts was owed by the auditors only to the corporate person whose accounts they had audited or to a wider class of persons who might rely upon them for the purposes of investment. The Court of Appeal had drawn a distinction between investors at large and existing members of the company who might be disposed to increase their shareholdings, a distinction which the House of Lords rejected. Each case was concerned with whether in a novel type of situation the court should hold that the law imposed on the person or persons blamed a duty of reasonable care towards the particular claimant or class of claimant. In cases of that kind the court will require to consider whether, applying an incremental approach, it should recognise (or impose) a duty of care. [46] No such novelty arises in the present case. Although there may have been some singular factors in the situation, in my view it cannot, on the facts found, arguably be denied that, in respect of the carrying on of fishing operations, the defender had, as fishing skipper, a duty to take reasonable care for the safety of the pursuer. The stone, the movement of which was ultimately the cause of the pursuer's injuries, was brought on board during fishing operations over which the defender had control and management; the defender knew from the outset that it had been brought on deck and actively participated in its placement there. Decisions regarding disposal of stones during fishing operations were the responsibility of the defender. The fishing operations continued, apparently without interruption, under his control and management for many hours thereafter in the vicinity of the Dogger Bank. Thereafter, in furtherance of a decision of the defender, the vessel sailed to fishing grounds off the Dutch coast. The defender there brought the vessel to a stop and gave the order to deploy the fishing gear. While the pursuer was engaged in giving effect to that order, the accident occurred. In my view, notwithstanding the joint venture character of the enterprise and such responsibilities as the pursuer himself may have had for safety, the defender owed to the pursuer, as to the other members of the crew, a continuing duty to take reasonable care that, in the performance of his tasks as such member, he was not exposed to avoidable hazards to his personal safety. That duty was owed whether one applies, in a case of physical injury, the tripartite test identified in Caparo or some less extensive formulation. [47] In the foreseeable circumstances of swell or other heavy seas, the stone, unless adequately secured, presented an obvious risk of injury to members of the crew engaged in their fishing duties. The fact that it was the practice on the vessel to retain at least certain stones on board until the end of the fishing period does not detract from the risk which that practice occasioned. It was no doubt in the financial interests of all those involved that fishing opportunities should be exploited as much as possible, but that financial imperative did not, in my view, absolve the defender from his duty of care. The power to make decisions regarding the disposal of stones during fishing operations was vested in him. That, in my view, carried with it a responsibility to take reasonable steps to ensure that fishing operations were not continued and, if discontinued, not recommenced while, in the prevailing sea conditions, a large stone on board presented a material risk of serious injury to members of the crew. [48] In relation to any breach of that duty of care, the defender's actual knowledge or his deemed knowledge is important. The defender knew that a large stone had been brought on board in the nets. He knew that it had been placed and retained on deck. (As parties were agreed that Sheriff Harris' finding in fact 7 should, consistently with the evidence, be corrected by deleting the words "on the instructions" and substituting the words "with the knowledge and participation" and as that correction, while not decisive, is in my view material, it is appropriate that it be made by this court). At no stage did he give an instruction that it be disposed of overboard. At no stage did he give an instruction that fishing be interrupted in order to find an appropriate spot to dispose of the stone. Nor, it seems, did he give any instruction that on or after leaving the Dogger Bank fishings the stone should be disposed of prior to recommencement of fishing elsewhere. The sheriff makes no express finding in fact as to the defender's actual knowledge of any movement of the stone between the time of its initial placement on deck and immediately prior to the accident. He clearly rejected the defender's testimony that, until its movement immediately prior to the accident, the stone had throughout, to the defender's knowledge, remained jammed between the wheelhouse and the net hatch. It is a reasonable inference from the sheriff's findings that he was satisfied that the defender knew that, at least on one occasion prior to 13 November, the stone had moved significantly so as to impede deployment of the fishing gear on the port side. But, whatever the defender's actual knowledge of the movement of the stone, he had, in my view, a duty as fishing skipper to take reasonable care at least to inform himself as to whether the undisposed - of stone was adequately secured before fishing operations were under his direction resumed in a sea swell; and, if it was not so secured, to have it so secured (if possible), which failing, to instruct its disposal overboard. In that duty (as in effect the sheriff held) the defender failed. His failure was a material cause of the accident. He is accordingly, subject to any question of sole fault or contributory negligence on the part of the pursuer, liable to him in damages. [49] I agree with your Lordship in the chair that fault on the part of the pursuer, causing or contributing to his injuries, has not been established, the onus of doing so being on the defender. In the absence of a finding that it would have been reasonably practicable for the pursuer to secure (or in exercise of his powers as British skipper to have secured) the stone in such a way as to prevent its movement in heavy seas across the deck, no breach of duty by the pursuer causative to any extent of the accident is made out. The defender's counsel, although he argued that this was the general effect of the evidence, did not seek to persuade us that this court should make such a finding. Having considered the relevant parts of the evidence I am satisfied that it would be inappropriate to do so. In these circumstances the necessary basis for the sole particularised ground of fault directed by the defender in his pleadings against the pursuer is absent. [50] The sheriff held that the pursuer had contributed by his own negligence to his accident. He did so on a basis which was not pleaded on record, and indeed appears not to have been urged upon him in submissions at the close of the proof. That basis related to the pursuer's undoubted knowledge of the movement of the stone from its original position on a number of occasions prior to the accident and the opportunity of disposing of it overboard between the cessation of fishing at the Dogger Bank and its recommencement off the Dutch coast. I have some sympathy with the impression which the sheriff must have formed that some fault on the part of the pursuer might be found on that basis. But, apart from the absence of pleadings, this basis for a finding of fault on the part of the pursuer was not explored in evidence in a way which could properly establish it. While the existence of a responsibility on the part of the pursuer for the safety of the crew (including himself) was taken as a pre-established fact, the practical application of that responsibility to circumstances once fishing had ceased at the Dogger Bank and the vessel was on course to other fishing grounds was not explored. In particular, whether the pursuer at his own hand could have instructed that the vessel be diverted to a suitable place for disposal of the stone or for that purpose be brought to a halt there or elsewhere, was not canvassed; nor was the possibility of the pursuer taking steps to have the stone disposed of immediately after fishing had ceased at the Dogger Bank and before the vessel was under way to the other fishing grounds. Quite apart from the adducing of other positive evidence to support a finding of fault on any such basis, it was not put to the pursuer in evidence for his comment that he had been negligent in any such respect. In these circumstances no proper basis was laid on which the sheriff could find that there was fault on the part of the pursuer which had contributed to his accident. Absent such a basis, the only fault duly established was that on the part of the defender who must accordingly bear the sole responsibility in law for the consequences of the accident. In these circumstances no question arises of any fault on the part of the pursuer being effectively the sole cause of his accident. [51] I agree with the reasons given by your Lordship in the chair for rejecting the defender's contention that the sheriff erred in his assessment of the financial loss incurred by the pursuer. I also agree, for the reasons given by your Lordship, with the proposed disposal of the issue concerning the expenses occasioned by the diet of proof allocated for 26-30 June 2000. [52] Before parting with this case I wish to make one further observation of general application. Where an appeal is brought under section 28 of the Sheriff Courts (Scotland) Act 1907 from the sheriff (or the sheriff principal), this court has certain powers and duties under section 32 of the Court of Session Act 1988. These include the duties stated in section 32(4). As this court is in such proceedings final on matters of fact and has the duty under section 32(4) of distinctly specifying the material facts, it is of the first importance that such appeals should be conducted in a way which allows that duty to be discharged. In Marshall v William Sharp & Sons Ltd 1991 S.L.T. 114 Lord Justice-Clerk Ross, having referred to the duty under section 32, observed at p.116I-K:"In these circumstances when counsel for an appellant is opening an appeal against an interlocutor of a sheriff containing findings in fact and law, he ought at the outset to intimate whether the appellants are accepting the findings in fact made by the sheriff, and, if not, what alterations or modifications they are proposing that the Inner House should make to the findings in fact. In the present case it was only towards the end of his lengthy opening address that junior counsel for the appellants gave any clear indication of what amendments the appellants wished to be made to the findings in fact. As I say this ought to have been done at the outset both out of fairness to the respondent and in order to focus the issue properly for this court. The practice which I have described should always be followed in appeals of this kind."
That direction on practice, which was not followed in this appeal, ought, in my view, to be adhered to.