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PHILIP JENKINS v. THE MAERSK COMPANY LIMITED [2001] ScotHC 71 (27th July, 2001)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD CLARKE

in the cause

PHILIP JENKINS (Assisted Person)

Pursuer;

against

THE MAERSK COMPANY LIMITED

Defenders:

________________

Pursuer: Grant Hutchinson; Thompsons

Defenders: MacKenzie; Beveridge and Kellas

27 July 2001

[1] This action came before me for proof before answer. The pursuer who is 48 years old, sues the defenders for damages in respect of an accident he alleges occurred to him in August 1993, when acting in the course of his employment with the defenders, as a crane driver, on the Maersk Vinlander Drilling Rig in the North Sea. Damages were agreed, in the event of liability being established, in terms of a joint minute, number 43 of process. The agreed figure in terms of the joint minute is Ł270,000 subject to any finding of contributory negligence.

[2] In the event, the main issue between the parties, explored at the proof, was whether or not the accident alleged by the pursuer to have occurred to him did in fact occur.

[3] The circumstances of the accident, as averred by the pursuer, were straight forward.

[4] In Article 2 of Condescendence he avers that:

"He was instructed by a senior tool pusher employed by the defenders, whose name is unknown to the pursuer, to move a piece of steel grating/deck, measuring about 3,650 by 880 millimetres, (12 feet by 3 feet) by manually lifting it with a colleague, Christopher Milliken, ... The piece of steel grating/deck was too heavy to be lifted by two people. The pursuer was at the time, and remained until the result of a site inspection for the purposes of the present action, unaware of the weight thereof, but he now believes and avers that it weighted about 0.18 tonnes and would have required at least 400 lbs force to lift it. The purpose of the grating was to cover cables which were often in use while heavy drilling pipes were being positioned by means of a haulage system worked by a demountable pulley on deck, and it needed to be lifted on a frequent and routine basis. There was no system for doing so. No one had assessed how it should be done, nor issued any instructions consequent thereon".

Later on in the same Article of Condescendence the pursuer avers:

"In the course of lifting the steel grating/deck the pursuer felt pain at the base of his spine, in his right buttock and in his right leg, having sustained injury hereinafter condescended upon".

The injury is described later on as a back injury which renders him substantially disabled.

[5] The pursuer pleads a case of common law fault against the defenders on the basis of their failure to establish a safe system of work, a case based on breach of Regulation 4 of the Manual Handling Operations Regulations 1992, and a breach of Regulation 14 of the Off-shore Installation (Operational, Safety, Health and Welfare) Regulations 1976.

[6] In evidence the pursuer said that, at the date of the accident, which he thought took place on 26 August 1993, or possibly 25 August, he was employed by the defenders as a crane driver. The crane driver was in charge of the deck crew on the drilling rig. Above him, in the chain of command, were a number of persons, - the barge engineer, the off-shore installation manager ("OIM"), senior tool pusher and assistant tool pusher. All of these were persons who were entitled to give him instructions as to the carrying out of his work. The pursuer explained that, on the day of the alleged accident, the senior tool pusher, who was on duty at the material time, told him that the deck needed to be arranged in preparation for the moving of certain casings, which are large steel pipes. These steel pipes required to be lifted from the deck of the rig to the drill platform. On the deck there was a piece of metal grating which measured about 12 feet by 3 feet. It weighed approximately 0.18 tons. The pursuer explained that the purpose of the grating was to cover a metal cable which was part of a demountable pulley arrangement situated on the deck, which was used for the purpose of lifting some of the casings from the deck. For that purpose the casing was attached to a winch and then to a pulley. The metal grating covered the cable to prevent persons from tripping over or walking into the cable. The pursuer's case was that he was instructed by the senior tool pusher to lift this grating along with another fellow employee. The pursuer's evidence was that he and others were required to lift this grating once or twice a month and that he had never been given any instructions on how it should be lifted. He said that there was no practical way in which the grating could be lifted by the crane, which was in position on the deck, and which he operated. As to the actual instruction given to him by the tool pusher, the pursuer's evidence was that the tool pusher gave the instruction, in an aggressive way, that he wanted the grating moved. The pursuer did not refuse to do so but said he would do it "as soon as we were ready". The tool pusher told him to get it lifted right away, with the assistance of the other crew member, Charles Milliken. The pursuer did not feel he could refuse to obey this instruction, although he did consider that two men would be unable to remove it without further help. He gave evidence to the effect that refusing to carry out such an order could result in a person's employment being terminated, or more particularly that someone employed, like him, on a month to month basis, would simply not be re-employed by the defenders. According to the pursuer he and his colleague made an attempt to lift the grating and, as he put it in examination in chief, "that's when it affected my back". He went on to describe feeling "a severe screaming pain" in his back. He said that when he bent down "I just tried to take the weight and stand up. It was just severe, severe pain in my lower back". He said that he had never experienced anything like this before and that he went immediately thereafter to report what had happened to the rig medic. His evidence was that he told the rig medic exactly what had just happened to him. The pursuer said that the rig medic took him off duties and supplied him with painkillers. As I have already noted, the pursuer said that to the best of his recollection all of this happened on 26 August although he did say at one stage that it could have been on 25 August. The pursuer said that on 27 August, when he was due to be taken off the rig, and to return on-shore, as being unfit, he saw the OIM, Mr Colin Parvin. Before going to see Mr Parvin he had been to see the rig medic, again, who informed him that the OIM did not want what had happened to the pursuer on 26 August, logged in the company's records, as what is descri

[7] During the time when the pursuer was off work, he received physiotherapy for his back and was given painkillers. In December 1993, following his return to work, he maintained that he had sustained a further accident when lifting a barrel of oil, which resulted in making his back problem worse. I will return to this alleged second incident, in due course, but for the present, it has to be noted that neither the alleged incident in August, nor any incident in December 1993, were recorded in the defenders' records as having occurred. The pursuer went to very considerable lengths, in his evidence, to explain this on the basis that the defenders deliberately suppressed the reporting of accidents, since a bad accident record could result in them not being given work by the oil companies. He also sought to establish that the defenders ignored, or rejected, complaints made at safety meetings with regard to concerns which their employees expressed about safety on the installation. He spoke about a regime of fear being imposed by the defenders, discouraging employees from complaining about safety issues. A considerable amount of time was taken up, at the proof, in the pursuer seeking to establish these allegations made against the defenders and in the defenders seeking to deny that they indulged in any such conduct or practices.

[8] Returning to the alleged incident on or about 26 August, the pursuer maintained that this occurred in the context of the working procedures requiring, at the particular time, the lifting of casings, whose diameter was 13^3/8th inches from the deck, to the rig platform. The pulley arrangement, which involved the use of the cable, which lay under the grating, was normally employed, he said, to lift the 13^3/8th casings. As well as the 13^3/8th casings there were larger casings with diameters of respectively 30 inches and 20 inches. The pursuer said that on occasions the pulley arrangement would be used to lift casings of 20 inches in diameter.

[9] There were lodged, as productions, a series of documents prepared by the defenders and entitled "daily drilling reports". These drilling reports appeared to record, inter alia, what dimensions of casing were being removed from the deck of the rig to the drilling platform, at any particular time, on any particular day. The daily drilling reports for the last week in August 1993, have only one reference to 13^3/8th inch casings being rigged up for moving to the drilling platform and that reference occurs on the report for 30 August 1993. Mr Jenkins accepted that he was flown off the rig on 27 August 1993.

[10] The pursuer returned to work on or about 20 October 1993. He claimed that he raised the alleged accident, which he said had occurred in August, at the first safety meeting held after his return to work. In cross-examination he also said that he understood that the circumstances of the accident had been discussed at a safety meeting while he was off work. The pursuer was, however, taken through the notes or minutes of the safety meetings, which had taken place during the period, from the date of his accident until his return to work, and had to accept these made no mention of his accident being raised or discussed. These documents did, on the face of things, however, reveal the defenders' concerns about safety issues and that they were urging that employees should make reports of any difficulties or problems in that area. The pursuer was, however, at pains, to suggest, in his evidence, that whatever was said in these documents, the defenders made it clear that anyone who raised safety issues or complaints would be regarded as a trouble maker and would not be re-engaged to work with the defenders. Accordingly, while the defenders appeared to be encouraging the reporting of accidents or near-miss accidents these were rarely being reported. That was so, according to the pursuer, even though the documents indicated that reports could be made on an anonymous basis. The defenders' position on this point was that the opportunity to lodge near-miss reports anonymously was to cater for the situation where a person involved in such an incident might be unwilling to admit to it because it involved a mistake or misjudgement on his part. Whatever the true position was with regard to employees not reporting accidents or near-miss accidents, for whatever reason, the plain fact of the matter was that the pursuer's position, in this case, was that he did report the accident, which he claimed occurred to him on or about 26 August. His position was that having raised the matter at a meeting it was in effect ignored.

[11] The pursuer accepted that in the sequence of events, as far as the movement of casings from the deck to the drill platform was concerned, the first casings to be moved from the deck would have been the 30 inch diameter casings. These, he said, had already been removed before his accident. He said that, although he was a crane driver, he was not himself involved in the lifting of the 30 inch casings. He also said that the 20 inch casings had been moved before the accident, but not by him. His evidence, in cross-examination, was that when he was given the order to move the grating, he was told that it required to be moved because the drill floor would soon be requiring 2 13^3/8th inch casings. He accepted, under cross-examination that the daily drilling report for 24 August indicated that, as late as 2300 hours on that date, the drilling operation was involved with the running of the 20 inch casings and that the daily drilling reports for 25 and 26 August appeared to indicate that, on both of those dates, the operation was still concerned solely with the running of the 20 inch casings. He also accepted that the first reference to the rigging up of 13^3/8th inch casings appears in the daily drilling report for 30 August. The pursuer sought to explain this by saying that employees, like himself, might be required to get the equipment ready to lift the 13^3/8th inch casings from the deck to the drilling platform some hours or even days before the casings were actually required by the persons who were engaged on the drilling platform in putting these casings into the drill hole. He maintained that the daily reports did not record what was happening on the deck of the vessel. What it was recording was what was happening on the rig platform. His position was that no log was kept in relation to what was happening on the deck.

[12] I now return to the pursuer's evidence regarding the reporting of the accident to the rig medic. The pursuer's position was that he went straight to see the medic after the accident and that he had difficulty getting there because of the pain he was suffering. He said that the medic asked him about what had happened to him and he had told him that he had been lifting the grating and that not far into the lift he had suffered severe pain. The rig medic in question was Mr J. Levis. The medical referral letter, which Mr Levis sent after he had seen the pursuer, to the pursuer's general practitioner, Doctor McNaught, on or about 26 August, made no mention of any accident having occurred to the pursuer. What is said in that document (11/14 of process) is as follows. At the entry headed "History of Present Complaint" the medic wrote "c/o (complained of) low back pain 1/7 (i.e. for one day) especially down his left leg, difficulty in dressing and undressing". At the entry headed "Examination", the medic wrote "pain radiating to his left leg down to the buttocks and the posterior aspect of his leg, not painful on palpation, restricted movement" under the heading "Treatment" the medic wrote "advised bed rest, brufen 400mg Q.I.D. codeine/codis 500mg 2Q.I.D. sciatica/lower back pain".

[13] The defenders lodged another production, which is number 11/13 of process, and which is headed "Personal Accident/Illness Report". This document assumed considerable importance at the proof. It bears to relate to the pursuer. It also bears to be signed by the rig medic, Mr J. Levis, and to have been completed by him on 27 August 1993. In the heading "Personal Accident/Illness Report" the word "Accident" has been deleted. Against the printed entry "Date of Accident" is written "N/A". Next to the printed entry "Details of First Aid Treatment/Description of Injury/Illness" is written "c/o (complained of) lower back pain to his back and down the side of his left leg". This entry continues by referring to brufen and codeine/codis being prescribed and bed rest being recommended. In a printed section of the report headed "C-H: only in cases of accident. Description of Circumstances Leading to Accident", there is hand written "NOT AN ACCIDENT". The remaining part of the document contains entries in columns which have to be ticked and completed when an accident has occurred and which, taken together, would form a fairly detailed accident report. None of these items or entries has been ticked or completed. When confronted with this document in cross-examination, Mr Jenkins' position was that the medic had failed to record the fact that an accident had occurred, though he had been told this by Mr Jenkins, because the medic had been instructed by the OIM not to record it as being an accident. It should be noted, however, that, in another document, 11/23 of process, which bears to have been written by the medic on 26 August 1993, the date of the alleged accident, the medic was writing to the defenders' Mr J. Gray, asking for a replacement crane operator to be sent to the vessel on 27 August to replace the pursuer. In that document the medic wrote:

"I have decided to send P. Jenkins back to shore because of the following medical reason s sciatica/lower back pain. This condition started within the last 24 hours, and there has been no improvement in his condition, and I believe because of this he is unable to do his task of work".

Again there is absolutely no reference to the pursuer having sustained any accident, and I am satisfied, on the evidence, that this document was written by the medic before any alleged intervention of the OIM.

[14] When it was pointed out to the pursuer that, while he maintained that he had gone straight to the medic, after the accident had occurred, and that his position was that he had never had any back problem before the accident, the medic, in his referral letter to the GP, had written that the pursuer had been experiencing difficulty in dressing and undressing, he attempted to suggest that this had come about because the report was written the day after the accident and that the medic may have learned, by then, that he was having such difficulty. I am bound to say that I found the pursuer's evidence in relation to this matter quite unconvincing.

[15] Mr Jenkins, in cross-examination, said that when he was present in the medical room, having just reported the accident, he heard the medic phone the OIM and ask him how he should go about recording the incident on 26 August, as a lost time accident, as he proposed to send the pursuer off the rig as being unfit. The pursuer's evidence was that the OIM refused to have the incident recorded as a lost time accident. He claimed that he himself had subsequently gone to see the OIM on 27 August, just before he had left the rig to ask why the OIM was not prepared to record the incident as a lost time accident and that he was told by the OIM that the OIM did not think that it was an important enough matter to record as a lost time accident. When asked by the pursuer to change his mind about this the OIM told him to get out of his office.

[16] The pursuer went to see his general practitioner after his return on shore. The general practitioner's clinical notes, relating to the pursuer, were produced and are number 13/1 of process. There appears, therein, an entry for 30 August 1993, some three days after the pursuer returned on shore. The entry is to the following effect "Acute onset low back pain radiating to buttock and numbness down to toes. Sent home from rig. No previous back problems". Mr Jenkins was adamant, that when he saw the general practitioner on that occasion, he had told her that he had been involved in an accident on the rig which had caused the onset of the back pain. He accepted, however, that there was no mention of any accident being reported to the general practitioner in the clinical notes. Apart from the specific entry just referred to, there are other entries in the general practitioner's notes, during the remaining part of 1993, dealing with the pursuer's back problem, but there is never any reference to this being attributable to any accident, which occurred in August 1993 on the rig.

[17] The general practitioner, in fact, referred the pursuer to a consultant orthopaedic surgeon P. S. Rae, FRCS Carrick Glen Hospital, Ayr. Her letter of reference, which is included in 13/1 of process, and is dated 2 September 1993 again makes no reference to the pursuer having sustained any accident. She simply stated in that letter:

"He has been sent home because of an acute onset of low back pain radiating to his right buttock with numbness right down to his toes. He had no previous history of back problems".

Mr Rae apparently saw the pursuer at his clinic on 7 September 1993. Type-written notes, included in number 13/1 of process, and which were not disputed to be those of Mr Rae, include an entry dated 7/9/1993 which is to the following effect:

"This 41 year old off-shore worker presents today with a ten day history of low back pain and right sided sciatica. He is an otherwise healthy man, never had any problems before and did this, twisting producing acute low back pain and sudden pain radiating to his right leg, into his foot, with numbness of the toes. He was flown off the rig and rested and the numbness settled in 4 or 5 days, his leg pain has settled down but he still has some back and buttock pain. There is no sphincter upset and he now has got no neurological symptoms".

(My emphasis). Later on in that entry Mr Rae has written "This man has got a resolving sciatica. For physiotherapy, see again in 3/52". It should be noted that, accordingly, at least in terms of Mr Rae's notes, Mr Jenkins had apparently said that the problem to his back was due to twisting.

[18] In cross-examination, the pursuer was asked if he had told Mr Rae about his accident and that he had hurt his back lifting a heavy object. His reply to this question was "Off course I did, yeah". When asked if he was absolutely sure about that he said "I am absolutely positive. I am absolutely positive that he asked 'how did it happen', which a doctor I would think would". He had to accept, however, that no mention of any accident was made in Mr Rae's note. When it was brought to his attention that Mr Rae, according to his note, understood the problem as being caused by "twisting", the pursuer said that he did not remember saying anything about twisting - "It was a lift. It was an almost straight up and down lift". In a letter dated 7 September 1993, Mr Rae wrote to the pursuer's general practitioner in terms which reflected, what was recorded in the note, to which I have just referred and no mention was again made of any accident having been reported to Mr Rae by the pursuer. Mr Rae's typed written notes record a further consultation with the pursuer on 28 September 1993 in which Mr Rae states:

"Improvement continues, he is virtually completely asymptotic, there is a mild residual low back pain but that should resolve. On examination full movement in his spine, straight leg raising to 90 + on both sides, no sciatic stretch test. DISCHARGED".

Mr Rae wrote to the pursuer's general practitioner on 28 September, reporting that the pursuer "Has virtually fully settled still only having some minor low back pain now but that is steadily improving". He went on to say that the pursuer should be fit to go back to work in about three weeks' time. The pursuer continued to receive physiotherapy. On 13 December 1993 he saw his general practitioner again. In her clinical notes for that date she wrote "Still problems with back - physio not making much progress". Doctor McNaught, the general practitioner, referred the pursuer back to Doctor Rae by letter dated 17 December 1993. In that letter she wrote

"You have previously seen Philip on 28 September and had sent him for a course of physiotherapy for his low back pain. He has gained really very little benefit from the physiotherapy and he had recently returned for physio and it has been suggested that he see yourself due to the lack of progress. I am therefore grateful to you for seeing him again".

Mr Rae apparently saw the pursuer on 30 December 1993. Mr Rae's notes for that date, relating to this consultation, with the pursuer are to the following effect:

"This man has been referred back because of persistence of his back pain. Basically what he is suffering from is mechanical back pain which he gets every time he goes back out on the rigs and is involved in heavy twelve hour shifts. He then comes back home, has a rest, that settles things down only to reoccur when he goes back to his heavy work. Has recently been having some physiotherapy which he had before he went out on his latest trip and is just back. There is no leg pain and no neurological symptoms in his lower limbs".

[19] In none, therefore, of the medical records relating to the pursuer for the period from 26 August until 30 December 1993 is there a single mention of any accident having occurred to the pursuer on or about 26 August of that year, which resulted in an injury to his back. I simply cannot accept that if the accident had occurred and if, as the pursuer adamantly maintained in his evidence to the Court, he reported it to the medical personnel he saw during that period that none of them would have noted it. Mr Jenkins' only explanation with regard to this somewhat remarkable fact was that the doctors were only concerned with the condition rather than with its cause. I simply consider that it beggars belief that, neither his general practitioner, nor the consultant, would have not considered appropriate or worthwhile to note the reported cause of the problem.

[20] There is, in my view, a further difficulty for the pursuer in that he claimed that he sustained another accident which involved damage to his back, while working with the defenders, and which involved the moving of a barrel, which he claimed occurred between Christmas and New Year of 1993. There is again no record of this incident being reported by him to the rig medic. He admitted that he did not inform his general practitioner of this alleged accident though he was seeing her during December 1993 about continuing problems with his back. He claimed that the accident took place three days before seeing Mr Rae on 30 December 1993. He said, in cross-examination, that he may have mentioned this accident to Mr Rae but could not remember if he had done so.

[21] The pursuer's evidence about the alleged accident to him on 26 August was further undermined, in my judgment, by the content of certain documents emanating from himself and addressed to the defenders and the Government Benefits Agency during 1994. By a letter dated 25 February 1994, 11/2 of process, the pursuer wrote to the defenders' personnel department, advising them that, on medical advice, he would not be able to continue working off-shore. He asked to be supplied with a reference ,which might help him in looking for other employment. He said he would be making a claim against the defenders' permanent health insurance scheme, and asked for advice as to how to proceed with such a claim. He concluded by writing:

"With almost five years service with Maersk, I truly regret having to leave in such circumstances and would be grateful if you can help with any of these matters".

It is conspicuous that nowhere in that letter did the pursuer refer to his having to withdraw from off-shore work because of any accident, which he had suffered while in the defenders' employment. On 23 March 1994 the pursuer submitted a disability claim, 13/4 of process to the Vita Life Insurance Company Ltd. Next to any entry, on the first page of the relevant claim form, which was to the following effect "If due to accident please give details of full circumstances and date of occurrence", the pursuer wrote "Accident on rig while moving barrel of oil. Lower back severe pain 27.12.93". No mention is made by the pursuer, in this form, of any accident having occurred to him in August 1993. His general practitioner completed a confidential medical certificate in relation to this claim form. On that certificate she responded, not surprisingly, given the history of the matter, to a question "When were you first consulted for this or similar disability" - "30/8/93". In response to the question "Nature of illness or accident from which your patient is now suffering" she responded "Mechanical low back pain". Mr Jenkins then made an application to the Government Benefits Agency for industrial injuries benefit. In making this application he referred to an accident said to have occurred to him on 27 December 1993, involving an injury to his back. The Benefits Agency contacted the defenders concerning this alleged accident. The defenders replied on 25 May 1994, 11/22 of process, to the effect that the pursuer had never reported any such accident. By letter dated 6 June 1994, 11/21 of process, the pursuer wrote to the defenders in the following terms:

"Sorry to bother, but I have come against a problem that you might be able to help with. I have applied for an additional benefit to top up my sickness benefit, but it has been refused due to a problem the DHSS tells me lies with Maersk. You will remember that I had an accident to my back and then returned to work for a while then again on 28 December I had another smaller incident concerning my back which this eventually led to me having to resign. And it's this incident on 28 December that is causing the problem. The DHSS are telling me that there is no record of this incident therefore I cannot get my claim for benefit. I'll explain in more detail what happened on 28 December, while moving a rowing barrel of oil off the deck area I aggravated my back, I did see the medic on board at the time but because it happened on the same day I was due off the rig no report was made, I was given some pain killers and told to see my doctor at home. This is what is causing the problem as far as the DHSS can see because there was no report made nothing happened. I am sure that you will understand how things work off-shore, the DHSS told me that they will resubmit the form to Maersk if I write to explain to you what happened on 28 December. I hope that you might be able to help me out, I am not asking Maersk for any money, it's only going to increase my DHSS benefit by a couple of pounds, anyway I apologise again for the inconvenience and hope that you can come to some sort of agreement with the DHSS".

It is true, of course, in that letter the pursuer does appear to refer to an accident having occurred to him, prior to the alleged accident on 28 December, but I find the very fleeting reference to it somewhat inconsistent with the pursuer's evidence, at the proof, and the basis of his claim as presently pled, to the effect that the cause of his problems was an accident which occurred on 26 August 1993, the effect of which he was fully aware of at that time and which, he claims, he reported at that time. In response to that last mentioned letter the defenders wrote to the pursuer on 9 June 1994, 11/20 of process, in the following terms:

"With reference to letter 6 June addressed to Jack Gray, we regret to advise you that we are unable to confirm the incidents leading up to the occurrence of your illness. We have examined all our records at the time of the alleged incident and can find no reference to same. We have also interviewed the duty medic at the time of the alleged incident and would advise you that he has no personal recollection of having treated you".

The pursuer, in turn, replied on 13 June 1994, 11/19 of process, as follows:

"Thanks for making enquiries about the letter I sent concerning the incident on 28 December relating to my back injury. I must say I am very disappointed, I always thought Maersk to be one of the few off-shore companies that cared about their employees. I know it's not the official Maersk policy but also expect that you must be aware that off-shore the Rig Medics and OIM, unless absolute necessary will not record accidents for fear of boosting the rigs accident record. It was probably my own fault at the time for not insisting on making it official, but as explained before the incident happened on the morning I was due to go off, therefore the medic would not record this as an accident. I am sure this unofficial policy of not recording incidents will be denied but I'm sure that no one is so naïve to believe it does not happen, especially if it's on the day of leaving the rig. For the sake of a slight increase in sickness benefit I can't believe this hassle and I would have thought better understanding from Maersk".

Once again I find it very surprising that the pursuer, in that letter, makes no reference to any accident, on or about, 26 August 1993, if such an accident had occurred and was the start of his back problem, which he claims to be the case in the present proceedings. On 15 June 1994 the pursuer wrote a further letter to the defenders, 11/17 of process. In it he was to the following effect:

"Sorry to bother you again, you must think I am a real pain, one last letter and I promise not to bother you again. I was talking informally with someone from the DHSS and apparently to make my claim for increased sickness benefit successful no real official records are absolutely necessary. If the Maersk company will at least make some kind of a statement that an incident even might have happened, then they would probably accept that. I have enclosed a draft statement of what I think they might want, but of course if you feel you can help me, and can come up with something along these lines I would be really grateful. Please send anything you wish to me and I can submit it to the DHSS personally. Thanks again".

The attached draft statement, 11/18 of process, from the pursuer was to the following effect:

"This is a statement concerning the back injury to Philip Jenkins on 28 December 1993, while an employee with the Maersk company. We are aware of Mr Jenkins' injuries but unfortunately do not have any official records of this incident, therefore we cannot supply any written documentation. But as a former trusted and honest employee this incident as Mr Jenkins describes could may well have happened and with confusion on both sides failed to become an official issue".

Again, I find it, at the very least, somewhat surprising, that these documents were written by the pursuer, in the terms they were, if he had had the accident which he spoke about in his evidence at the proof. It is fair, however, to note that in 11/17 of process Mr Jenkins was referring to an unofficial policy of not recording incidents, which coincides with at least some of the evidence, regarding the defenders' accident reporting practice, which he gave at the proof. Moreover, his explanation for the terms of the correspondence concentrating on the alleged accident on 28 December 1993 was that the Benefits Agency were concerned with the last in any series of accidents and the fact that he had returned to work after the August accident had wiped out any entitlement to injury benefit that might otherwise have arisen from that accident. The problem, however, with that evidence was that the pursuer was then confronted with 11/15 of process, which is a document from the Benefits Agency, dated 18 August 1994, which refers to a further claim for industrial injuries benefits which the pursuer made in relation to an accident he said occurred on 25 August 1993. When asked about this, and how it squared with his earlier evidence regarding the Benefits Agencies' approach to any accident, prior to the alleged accident on 28 December, the pursuer appeared to be very discomfited. At first he said he could not remember completing any of the claim forms to the Agency and ultimately said that he just could not explain, or remember, how it came about that a second application for industrial injuries benefit appeared to have been made by him relating, on this occasion, to an alleged incident on 25 August 1993, though at one stage he did seem to say that the second claim was for a different benefit, namely disability benefit. In the event the pursuer's claim for benefit in relation to an alleged incident in August 1994 was allowed - see 13/6 of process. When it was put to the pursuer, in cross-examination, that, prior to August 1994, he had never maintained that his back problems were associated with any accident in August 1993 but with an accident in December 1993 and that he had decided then to claim in August 1994 that he was suffering from injuries, caused by an accident in August 1993, in an attempt to boost the benefits he might obtain and to form a basis of claim against the defenders, he denied this. It is certainly true that after August 1994, in stark contrast to the position before that time, it is recorded in various documents, which were produced, that he had suffered an accident in August 1993, see for example 13/5 of process and 20/6 of process.

[22] The pursuer was asked, in cross-examination, why he did not call for other men to assist in lifting the grating or, indeed, why he had not sought to move it with the aid of the tugger winch. I was not satisfied that he gave any compelling explanation as to why these things would not have been feasible. In cross-examination, he was also referred to a number of documents in which specific accidents to employees, some of them of a relatively minor nature, were recorded in the defenders' records during 1993. Again he gave, in my view, no satisfactory explanation as to why these accidents were recorded in the defenders' records, but his alleged accident on 26 August was not, apart from maintaining that the defenders were totally selective as to what might be recorded and what might not. At the end of the pursuer's evidence I had not formed the view that he was a compelling or satisfactory witness. My impression was that he gave his evidence in a somewhat truculent manner, and that, when faced with evidence that did not suit his case, he sought to explain away any such difficulties in an unconvincing and somewhat petulant manner.

[23] Evidence was led, on behalf of the pursuer, from Professor Colin John McFarlane, Professor of Sub-sea Engineering at Strathclyde University, Glasgow. This witness gave evidence to the effect that the task which the pursuer was alleged to have been instructed to carry out on 26 August 1993, that is manhandling of the metal grating, with the assistance of only one other man, was a very dangerous lift for four persons to carry out and extremely dangerous for two persons to carry out. This witness was not seriously cross-examined about this matter on behalf of the defenders. The witness also gave some generalised evidence about drilling companies, at least in the 1980's, and, perhaps, in the early 1990's, having less than satisfactory attitudes towards safety and the reporting of accidents.

[24] The pursuer's wife gave evidence, of a somewhat indefinite character, that the pursuer had come home, in late August 1993 from the rig, and had said that he had some sort of accident. He had said that he had been lifting something when something happened to his back. Evidence was given on commission by Mr Christopher Milliken, to the effect that he did recall being told by the pursuer that he and the pursuer had to lift a piece of grating clear of the cable over which it was placed. He remembered doing this with the pursuer and his evidence was:

"I remember Mr Jenkins saying 'his, he didn't', his back didn't feel too good or there was something wrong but to be honest I never thought nothing about it at the time. That's all I can really remember him saying, you know".

The witness went on to say:

"It was during the job, yes, it was sometime during the job but I canna specifically say when ... - I remember him saying it to us but I was, you know, everything was new to me on the rig, I had only been on a couple of days and you know, I never really thought it was that serious, if you know what I mean I just listened to what he said and 'oh yeah'".

I did not have the benefit of seeing and hearing this witness giving evidence at the proof. My reading of his evidence, given on commission, however, is that it falls a good deal short of what the pursuer described had occurred to him on the day in question, and it is noticeable that this witness in his evidence, as recorded in the report of the commission, really does not appear to suggest that anything very dramatic occurred, as the pursuer in his evidence, would have had the Court believe did occur. The witness was also somewhat imprecise and indefinite about exactly what the pursuer was doing when he complained about pain in his back. It was noticeable that counsel for the pursuer, in his closing submissions, as I have noted him, did not place much reliance on this evidence.

[25] The defenders led a number of witnesses. I can record that I found the defenders' witnesses to be credible and reliable and I formed the impression that they were doing their best to assist the Court in recalling what had occurred in 1993. There is one exception to that general remark about the defenders' witnesses and that relates to the rig medic, who was on duty on 26 August 1993 who, for the reasons I will set out in due course, I did not find to be a reliable witness.

[26] The defenders' OIM, Mr Parvin, who was on duty on 26/27 August 1993, denied that he had been involved in the suppressing of any accident report at any time. He accepted that he was on duty at the time in question but he had no actual recollection of seeing Mr Jenkins at that time. He denied ever having given instructions that an accident report should not be completed or having refused to make an accident the subject of an accident report. He had no recollection of ever having ordered Mr Jenkins out of his office. He had no recollection of having given any instruction that in relation to any incident that occurred, involving Mr Jenkins on 26 August 1993, that no loss time accident should be completed but he said that that would never have happened. As he pointed out, the pursuer was perfectly free to report such matters to the Health and Safety Executive, whose phone number was printed on a notice board for the attention of employees working on the rig. He gave evidence that he, and other members of the defenders' management team, encouraged the submission of near-miss reports. He never knew of anyone having been dismissed by the defenders because of raising safety concerns. He considered that the removal of the grating should have been done either by the use of the crane or by having six men lift it. His evidence was that if any accident was raised at a safety meeting, or unsafe practices were raised, these matters would be recorded. He had no recollection of the medic phoning him and asking him "how do I go about reporting a loss time accident because Mr Jenkins wants one", but if such a question had been raised he did not consider that he would have said not to bother doing it because it was a minor matter.

[27] The defenders' rig manager, R. Mankin, gave evidence that the defenders did experience difficulty getting persons to fill in accident and near-miss reports. He claimed, however, that in 1993 the defenders were encouraging anybody who had an accident to go to the medic and get it reported. This witness had received the "accident/illness report" regarding the pursuer. He said it was not unusual for the word "accident" to be scored out because the same form was used whether illness or accident was being reported - it was a dual purpose form. He said that the defenders in 1993 tried to run a very open and honest reporting system. Had he learned in 1993 that there was any suppression of reporting of occurrences of accidents he would have taken that very seriously and would have taken action to stop any such practice. The witness said that this was just not the way that the defenders operated. He said that he would have had no hesitation in removing any senior person involved in any such conduct. No one had ever, to his knowledge, lost their job because of reporting accidents or near-miss accidents. This witness also referred to the fact that the employees were free to inform the Health and Safety Executive of any incident or practice of suppressing accident reports. Mr Mankin accepted that there may have been a practice of manipulating safety figures in the industry, in, or about 1993, but that was certainly not true of the defenders' company. He could not conceive of Mr Parvin having suppressed an accident report. I found this witness to be entirely credible and reliable in relation to the evidence he gave.

[28] The witness, John Levis, was the rig medic on duty on the rig on 26 August 1993. He was on hire to the defenders from an agency. He said in evidence, that he remembered the pursuer complaining of a back problem at that time. He thought that he had only seen the pursuer once. The witness's evidence was that the pursuer said he injured himself in an incident which had happened outside "lifting something of some sort". The witness said, however, his recollection was very vague about this and he could not be too sure about what the pursuer had said had happened to him. He then said that the pursuer had informed him that he had been injured by virtue of lifting a heavy object. He would have written this down in his medical notes as such. What the witness appeared to be referring to was a book in which he kept a record of treatment given to employees who consulted him. While he accepted that he had signed and had completed, in part, 11/13 of process the document headed "Personnel Accident/Illness", he claimed that Part C of that form had been completed, not by him, but by the OIM, Mr Parvin. He claimed, however, that everything that the pursuer had told him that had happened to him would have been recorded in the book he had referred to, which he said was kept for medical people only to see. He accepted that he did not tell the rig manager that any injury to the pursuer was because of an incident or an accident. He then contradicted himself and said that he thought he did in fact tell the rig manager this. His evidence was that in the reference letter he had written to the pursuer's general practitioner, the position was that, if an employee's condition was due to an accident, he would bring this to the attention of the general practitioner, but he would not do so if it was "only lifting something". In contradiction of what the pursuer had said, this witness denied being told by anyone not to report an accident and he was quite adamant that he never phoned the OIM asking for advice as to how to complete the Personnel Accident/Illness Report.

[29] The proof in this case required to be adjourned for a regrettably long time. This witness was recalled, at the further diet of proof, in the light of his evidence regarding his having recorded in a book the fact of an accident occurring to the pursuer. The book, which was described as a medical log, and which is 44/1 of process, had been, in the meantime, lodged by the defenders. When the relevant entry was put to this witness, he had to accept that it made no mention whatsoever of the pursuer having lifted anything which had caused his back pain. The witness then accepted that the evidence he had given on the previous occasion was clearly wrong. He said that if the pursuer had mentioned an accident to him involving lifting a heavy object, he would have entered this in the medical log. He then completely contradicted this by saying that he would only have recorded any reporting of an accident by the pursuer, in the pursuer's confidential medical records, and this would have triggered a letter to the pursuer's GP directly in which he would have reported to the GP that the pursuer had had an accident involving the lifting of a heavy object. No such letter, addressed to the pursuer's general practitioner, was produced. At the end of his evidence, this witness said he was feeling totally confused. I regarded this witness as wholly unreliable, save in respect of one matter. He was clear and consistent in his evidence that there was no phone call between himself and the OIM, Mr Parvin, in which Mr Parvin instructed him not to record the alleged accident as an accident. But for that aspect of this witness's evidence, I found his evidence to be wholly unhelpful. He gave it in an extremely diffident and somewhat evasive fashion. It seemed to me that he was probably not deliberately seeking to mislead, but was simply trying to be assistance to the pursuer and, perhaps, to the Court. He gave me the impression that he was a person who chose to say what he thought he was expected to say rather than telling the court what he could actually remember.

[30] The defenders led another witness, W C Longmuir, a roustabout, working in the team of which the pursuer was the crane operator at the time of the alleged accident. This witness did not recall anything untoward happening to the pursuer at that time. He gave evidence that it was not necessary to remove the grate normally, for the purposes of lifting the casings, since the cable could be pulled by the pulley arrangement without the grating being removed. Occasionally he said the wire got seized and then this required the lifting of the grating, but this was exceptional. He himself had no recollection of any complaint being made about any problem with regard to lifting the grating. Mr J Gray, from the defenders' personnel department, gave evidence that he had checked the defenders' records, regarding an alleged incident in December, but had not found anything recorded about any such incident. He also, however, gave evidence that on one occasion he met the pursuer, as he was being lifted off the rig by a helicopter, and that the pursuer had said to him that he was going on-shore and "It's my back trouble again. It's playing me up. I'm in a severe kind of pain." This witness could not remember the date when the pursuer said this to him, but thought it was the second time that the pursuer was off sick, during the winter of 1993. Evidence was also led for the defenders from Mr G S Hart, who was employed as an OIM with the defenders in August 1993. He gave evidence to the effect that the pulley arrangement was used only for lifting casings of 13^3/8th inch diameter or less. He said that to remove the casing there had to be a connection made between the tugger winch cable and the cable that lay under the grating. His evidence was that to make the connection it was necessary to remove the grating in order to be able to get access to the end of the wire to connect the two cables together. The grating, he thought, had to be moved for that purpose, but later on he did say that he had never really been involved in this operation. This witness totally refuted any suggestion that the management of the defenders had an attitude to safety, which was poor, and he said he had never witnessed any evidence of any cover up of accidents. He spoke to the system operated by the defenders as one which promoted open and honest reporting. He never entertained any suspicion about Mr Parvin suppressing reports of accidents. After the reporting of any accident he said there would have been an investigation, but the level of investigation would necessarily depend on the extent of the injury or potential for injuries if such an accident occurred again. The investigation would be carried out by the safety officer and the barge engineer who would have been informed of the accident by the OIM, or perhaps, by the employee himself. This witness said that word travelled fast on the rig if there was an accident and it was really impossible for an OIM to stop information about accidents being circulated and, in any event, any alleged suppression of reports of accidents could be reported to the Health and Safety Inspectorate and to the employee's own safety representative.

[31] In August 1993 the defenders' barge engineer on the Maersk Vinlander Rig was Mr Brian Train. He gave evidence at the proof. He was responsible for safety matters and was the defenders' safety officer. His evidence was to the effect that the pulley arrangement and cable was only used for lifting casing of 13^3/8th inch diameter or less. He did not consider that it could be used to lift 20 inch diameter casing. He said that it was not necessary to move the grating, as a standard procedure, when employing the pulley and cable arrangement. He considered that if it did require to be lifted it could be done by a number of men, or by using the crane. As far as when the casings would be moved from the deck up to the drill floor was concerned, this witness gave evidence to the effect that this would be done, either on the shift when the casings were actually going to be placed in the rig hole, or the immediately preceding shift. He was adamant that it would never be done days before the casing was required on the drill floor. There was absolutely no reason to be moving the casings before that. There were a great deal of other operations requiring to be carried out for which the tugger winch was required. In cross-examination this witness said that he would have expected the pursuer, if required, to remove the grating, to employ four men, and himself, to do this. His recollection, however, was that there was no need to remove the grating for rigging purposes. I found this witness to be entirely credible and reliable.

[32] The last witness for the defenders was Mr Richard Adam, who is now a rig manager but, in August 1993 was a senior tool pusher on the rig. He gave evidence to the effect that he had actually left the rig on 27 August 1993. The lifting of the 20 inch and 30 inch diameter casings required the use of a crane. He accepted that he would have been the person who would have given any order for rigging up that was giving on 26 August. His position was, however, that there was no point in ordering rigging up of the casings before they were actually needed on the rig platform. He said he would never have given orders for this to be done a day or days before they were required on the rig because there was too much for the men to be doing on the deck before that. There was never any example, in his experience, of an order being given to rig up the 13^3/8th inch diameter casings before the 20 inch diameter casings had been rigged up and removed to the rig. It was not, he said, physically sensible to do that. There was no reason at all for giving an order for rigging up the 13^3/8th inch casings on 25 or 26 August 1993. His evidence was that the grating never needed to be moved, in any event, for the purpose of rigging up the 13^3/8th inch diameter casings. He said he would never have ordered two men to remove the grating and if he had seen them doing this he would have asked them why they were doing it. He denied giving any order to the pursuer in the terms that the pursuer said he did. Mr Adams said that the operation of rigging up the 13^3/8th inch diameter casings from start to finish would have lasted for approximately half an hour. He was quite adamant that the tugger winch would not be used for rigging up the 20 inch diameter casing. He accepted that what the pursuer alleged had happened to him was a very dangerous thing to do and would have been likely to have caused injury. Mr Adams' evidence was to the effect that it was highly likely that if anything of that sort had occurred he would have heard about it. I found this witness particularly impressive and both credible and reliable.

[33] In his submissions at the close of the proof, counsel for the pursuer contended that the pursuer's position was that something had gone very seriously wrong with the reporting of the accident in this case, which involved both the rig medic and Mr Parvin. He accepted that the rig medic was clearly not a satisfactory witness. Counsel for the pursuer accepted, furthermore, that Mr Levis probably never recorded any accident having occurred to the pursuer, but invited me to accept that he had told the OIM about the accident and that the OIM had said that this should be suppressed because of the fact that he wanted to get more business. Faced with the difficulty for the pursuer that arose from the daily rig reports, indicating that there was no rigging up of the 13^3/8th inch diameter casings, on or about 26 August, counsel for the pursuer invited me to consider that the instruction allegedly given to the pursuer was in relation to rigging up the 20 inch diameter casing. The witness Milliken and the pursuer said that the tugger winch and pulley arrangement was from time to time used for that purpose. As I have noted, however, the witnesses Tain and Adams, who I have found to be credible and reliable, said that the tugger winch arrangement would definitely not be used for rigging up the 20 inch diameter casings. The pursuer's counsel invited me to hold that there had been no contributory negligence in this case but, at the very worst, any finding of contributory negligence should not exceed 25%.

[34] In his submissions, at the close of the proof, counsel for the defenders drew my attention to 11/15 of process, which was the application, in August 1994, by the pursuer to the Benefits Agency for industrial injuries benefits. On that form the pursuer wrote that the date of the accident was 25 August 1993 and that it occurred at 3.00pm on that date. The pursuer had accepted in evidence that that information must have come from him. The medical log kept by the rig medic, Mr Levis, 44/1 of process which was lodged at the resumed diet of proof, states that the incident was reported at 1200 hours on 25 August. Counsel for the defenders reminded me that the pursuer was working a 12 noon to 12 midnight shift, so the question arose as to whether he had gone straight to the medic to report the problem with his back, not on 26 August, but on 25 August and that he had done this at the beginning of a shift on that date. Counsel for the defenders emphasised that as far as the paperwork which had been lodged in this case, was concerned there was no record of the pursuer ever having reported an accident occurring to him in August 1993, until the summer of 1994. The defenders' counsel emphasised that the pursuer's evidence had been that he had started his shift on the day in question after the 20 inch diameter casings had been rigged up. He said in cross-examination that he had not been concerned with the lifting of these casings. That negated his counsel's attempt to get round the fact that there was no record of the 13^3/8th inch diameter casings being rigged up until 30 August 1993.

[35] I have reached the conclusion that in this case the pursuer has failed to prove, on the balance of probabilities, that the accident, which he alleges occurred to him in lifting the grating on or about 26 August 1993, did in fact occur. The evidence, led on behalf of the defenders, has satisfied me that had that accident occurred, in the way claimed by the pursuer, and had he reported it as he said he did, it would have been recorded, at or about the material time, somewhere in the documents produced in this case. I am of the opinion that, while the pursuer reported a problem with his back to the rig medic in August 1993, he did not report that this had been caused by any lifting accident, which he claims in the present case occurred to him. Moreover, I am satisfied that he did not report any such accident to his general practitioner, when he consulted her at the end of August 1993 about his back, nor did he report any such accident to the specialist to whom he was referred by his general practitioner. I find it simply improbable, if not incredible, that had he done so, as he says he did, that neither the general practitioner, nor the consultant, would have recorded this in the records of his various attendances with them. I find the reference in the specialist's note to the problem with the pursuer's back having been caused by "twisting" to be of particular significance in this respect. I consider it of significance, also that, in the correspondence the pursuer had with the defenders, regarding his application for benefits, no specific reference was made by him to any accident to his back having occurred in August 1993 and that when he did refer specifically to an accident, it was in relation to moving a barrel in December 1993. I reached the conclusion that the reason for there being no recording in the documents produced, of any reporting by the pursuer of an accident having occurred in August 1993, before the summer of 1994, that is about a year after its alleged occurrence, was that no such accident ever occurred as claimed by the pursuer in the present procedures.

[36] My opinion in this respect is very considerably fortified by the fact that, having regard to the entries in the daily drilling reports, as spoken to and explained by the defenders' witnesses, I am satisfied that, contrary to what the pursuer maintained, the particular operation of rigging up the 13^3/8th inch diameter casings, which he claimed was what was being done, when he was required to lift the grating, did not occur until some time after he had left the rig, on 27 August 1993. I discount the suggestion, made on his behalf by his counsel in submission, that the operation he was in fact engaged upon was the rigging up of the 20 inch diameter casings, since I accept the evidence, given by the defenders' witnesses, that the tugger winch and cables would not have been used in relation to this size of casing.

[37] I should also add this. While it is true that as a matter of their written pleadings, the defenders accepted that the grating would require to be removed for the purpose of rigging up the 13^3/8th inch diameter casings, and counsel for the pursuer objected to questions being put to Mr Adams, the last witness called for the defenders suggesting otherwise, evidence that it was not required to be removed for that purpose, came from other witnesses, unchallenged by counsel for the pursuer. I consider I am entitled to take this evidence into account and I consider that, on the balance of probabilities, the position was that the grating did not normally require to be removed for that purpose. That is simply another feature of the case which persuades me that the accident, as alleged by the pursuer, did not occur.

[38] For all the foregoing reasons I consider that the weight of the evidence advanced at the proof was against the pursuer having sustained the accident which he avers and which he spoke to in evidence. It is a conclusion which I arrive at with less diffidence than I would have had, had I found the pursuer himself to be in any respect a compelling and satisfactory witness. As I have, however, already said, I regret that I did not find him to be so. He was at pains throughout to present the defenders in the worst possible light. I considered that he grossly exaggerated, if not fabricated, the points which he made with regard to the defenders' general approach to safety matters and, in particular, to their having the practice of suppressing complaints and the reporting of accidents. I also found his reaction to the questions that were put to him about the complete lack of recorded reporting of the alleged accident not only in the defenders' records, but in the medical records, as being wholly unconvincing. As I have indicated, also, by contrast, I found the defenders' witnesses, on the whole, to be credible and reliable and their evidence not to be in conflict with the position as demonstrated in the documents produced in the case. My impression was that the pursuer was happy to make whatever allegations he thought fit against the defenders, simply to get round the evidential difficulties he realised he faced, arising from the absence of any written record or report of his having sustained the alleged accident.

[39] In conclusion I should record that, as I state at the outset of this opinion the proof concentrated largely on whether or not the alleged accident occurred. The pursuer led no medical evidence to establish, to what extent, if any, the back problems he avers on record, were caused or materially contributed to by the alleged accident.

[40] In the whole circumstances, therefore, I shall sustain the defenders' third plea-in-law and assoilzie the defenders.

[41] At the close of the proof I was invited by counsel for the pursuer to certify Professor Colin McFarlane, as an expert witness, who gave evidence at the proof. I was also asked to certify Mr Michael Foxworthy, Mr Peter Rae, Consultant Orthopaedic Surgeon and Mr Keith Carter, Employment Consultant, all of whom had prepared reports in relation to quantum as expert witnesses. Counsel for the defenders did not oppose certification of the foregoing witnesses and, I accordingly, accede to the pursuer's motion in that respect.