The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 46 of 1996

 

Algol Maritime Limited Appellants

v.

Antonio Galleguillos Acori Respondent

 

FROM

 

THE COURT OF APPEAL FOR GIBRALTAR

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st July 1997

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Nicholls of Birkenhead

Lord Steyn

Lord Clyde

  ·[Delivered by Lord Browne-Wilkinson]

 

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1. This is an appeal from a judgment of the Court of Appeal for Gibraltar (Fieldsend P., Huggins and Davis JJ.A.) which in substance dismissed an appeal by the appellants ("the defendants") from a judgment of the Supreme Court of Gibraltar (Additional Judge Pizzarello) giving judgment against the defendants in the sum of US$68,606.42 together with interest.

 

2. The respondent ("the plaintiff") was employed by the defendants under a seaman's employment contract dated 2nd September 1986.  That contract incorporated the terms of a Collective Agreement laid down by the International Transport Workers Federation ("the ITF").  Article 18 of the Collective Agreement provides as follows:-

"A Seafarer who suffers an accident whilst in the employment of the Owners through no fault of his own, including accidents occurring whilst travelling to or from the ship or as a result of marine or other similar peril, and whose ability  to  work  is reduced as a result thereof, shall receive from the Owners in addition to his sick pay (Articles 13 and 14 above), an annual annuity calculated on his basic pay at the rate given in the table below:-

 

3. Degree of Disability

 

4. The plaintiff suffered an accident on board the M/V Meonia on 29th January 1987.  The accident occurred whilst the plaintiff was working alone on deck and was carrying a heavy plank across an icy tarpaulin when he fell suffering injury to his back.

 

5. There was a large number of matters in issue at the trial and rather fewer on the appeal to the Court of Appeal.  Only four matters were the subject matter of the appeal before their Lordships, viz.

(a)whether the accident to the plaintiff occurred "through no fault of his own" as required by Article 18;

(b)whether a laminectomy operation performed on the plaintiff after the date of the accident broke the chain of causation between the accident and the plaintiff's disability;

(c)whether the plaintiff had reported the accident to the defendants with sufficient particularity and within a reasonable time;

(d)whether, in computing the amount of the annuity to which the plaintiff was entitled under Article 18, the extent of his disability related to his disability to work as a seafarer or his disability to work generally.

 

A.The fault issue.

The plaintiff's case at trial was that the accident occurred on 29th January 1987 in icy conditions just before the departure of the ship from Helmstad, Sweden.  He had been engaged with other crew members in stacking timber as deck cargo. The timber had to be covered by a tarpaulin which was to be held in place by chains.  In order to prevent the chains chafing the tarpaulin planks of wood had to belaid on top of the tarpaulin.  At the time of the accident  the  plaintiff  was  alone, the other crew members having gone below.  The accident occurred whilst the plaintiff was carrying a piece of 4"x2" timber some 16 feet long.  He was at the time on top of the stacked timber which was covered by the tarpaulin.  To his knowledge the tarpaulin was icy and he was aware of the danger which such ice presented.  He slipped on the icy canvass and injured his back.  His evidence, apparently accepted by the judge, was that he was walking at the time "with great care".

 

6. The trial judge found that the accident occurred through no fault of the plaintiff.  However it is not clear what test he was applying in reaching that conclusion.  It was, and still is, the defendants' contention that the relevant test in determining whether the plaintiff was at fault is the same as that applicable in cases of contributory negligence i.e. a failure by the plaintiff to use reasonable care for his own safety.  The plaintiff, on the other hand, had contended that this could not be the correct test since on that basis any carelessness, however slight, would lead to the result that the seafarer would have no claim at all under Article 18.  It appears that the judge's finding of no fault may have been affected by his accepting the plaintiff's submissions on this issue.

 

7. In the Court of Appeal all three members of the court apparently accepted that the appropriate test of fault was the same as that applicable in the case of contributory negligence.  However, they differed as to the result of applying that test.  Fieldsend P. held that the plaintiff was at fault in that he had encumbered himself with an awkward load in slippery conditions thereby making it more likely that he would slip.  The other two members of the court found the plaintiff not to be at fault.  They held that he was doing the job he had been instructed to do in dangerous conditions of which he was aware.  He exercised as much care as possible in the circumstances.  The only way in which he could have avoided the risk of slipping was to stop doing the job he was instructed to do.  For a seaman to continue to do work which he has been instructed to do in circumstances which he knows to be dangerous does not amount to carelessness for his own well being.

 

8. Their Lordships agree with the view of the majority of the Court of Appeal.  A seaman's working life involves doing many dangerous tasks: the doing of such tasks if ordered to do them is not per se negligent.  Only if the judge had found (which he did not) that the plaintiff should have stopped doing the job that he was instructed to do and sought assistance could he have been found to be at fault.  The plaintiff was not careless in the way he carried out an inherently dangerous task.  In the circumstances their  Lordships  cannot  find any ground to differ from the trial

judge's finding of no fault, even though the judge reached his conclusion on a different basis.

 

B.The causation issue.

The judge found that the injury sustained by the plaintiff was a pull-off injury to the bone of lumbar five vertebrae.  He also made the following findings:-

"(11)the injury was complicated by an operation which was performed on the plaintiff in Spain whereby he underwent a laminectomy operation for the removal of L5/S1 disc.

 

(12)in my view the operation was an integral and ongoing part of his treatment as perceived by the doctors in Spain who were treating the plaintiff and does not constitute a novus actus interveniens.  The operation with hindsight and in the opinion of the expert medical witness Mr. Wade and Mr. Brueton ought not to have been attempted where there was no evidence of sciatic pain and not so soon after the injury was sustained.  However that is not to say that the doctors treating the plaintiff were negligent in any way and they dealt with the plaintiff at the time with the advantage of having X-ray and a CAT scan.  Their intervention did not break the proximate chain of causation."

 

9. The Court of Appeal unanimously upheld that decision having directed themselves in accordance with the law as laid down in Rothwell v. Caverswall Stone Company Limited [1944] 2 All E.R. 350 and Hogan v. Bentinck West Hartley Collieries (Owners) Limited [1949] 1 All E.R. 588 i.e. that even if the laminectomy aggravated the effects of the accident the chain of causation was not broken if it was part of the treatment for the injury, but if the treatment was negligently or inefficiently undertaken or performed it might amount to a new and separate cause of the injury in which case the chain of causation between the original accident and the damage complained of might be broken.

 

10. Mr. Aldous, for the defendants, accepted that this was the correct approach in law.  However, he sought to demonstrate that the finding of fact that the laminectomy did not break the chain of causation was erroneous.  Their Lordships do not, save in exceptional circumstances, interfere with concurrent findings of fact made by the courts below.  Their Lordships can see no grounds for doing so in the present case and indeed agree with the conclusions reached by the courts below.

 C.The notice issue.

It was the defendants' case at trial that, although Article 18 contains no express provision to that effect, the plaintiff was under a duty to report the accident to the defendants within a reasonable time; he had failed to do so and in consequence was not entitled to an annuity under Article 18.  The basis for this contention was that a term to that effect had to be implied in Article 18, an implication which, to an extent, was admitted by the plaintiff in answers given to interrogatories.  It is unnecessary for their Lordships to consider the exact scope of any term to be so implied or the admissions made in the interrogatories since, on any basis, the implied obligation cannot have been greater than within a reasonable time to give the defendants notice of the occurrence of the accident with sufficient particularity to enable them to investigate it and put forward a claim to an annuity as soon as it appeared that the disability was permanent.

 

11. The facts as found by the judge were that the captain of the vessel made an entry in the ship's log on the date of the accident that the plaintiff had reported a pain in his back but that the plaintiff had not on that occasion informed the captain of the accident.  He further held that the plaintiff had reported the accident to the defendants' agents on 14th February 1987 when the ship reached Santander and that, although such report did not state the date of the accident, it was sufficient to put the defendants on enquiry as to the circumstances.  He found that the first occasion on which the plaintiff put forward a formal claim based on permanent disability under Article 18 was in the letter dated 27th February 1990.

 

12. Again, both the trial judge and the Court of Appeal held that by these communications the plaintiff had within a reasonable time given notice of the accident and of his claim sufficient to satisfy the implied term referred to above.  There being concurrent findings on these issues, their Lordships again would not interfere but in any event they agree with the reasoning and decision of the Court of Appeal on this issue.

 

D.The disability issue.

The question is to decide what is the nature of the disability referred to in Article 18.  Is it disability from working as a seafarer or disability from doing any work whether afloat or on shore?  The importance of the point is that the judge held that, as a result of the accident, the plaintiff was 100% disabled from working as a seafarer (giving rise to an annuity equal to 86% of his basic pay) but only 40% disabled from work generally (giving rise to an annuity of 30% of his basic pay).  Both the trial judge and the Court of Appeal held that the disability referred to in Article 18 was disability to work as a seafarer. This issue is a pure question of construction of the Collective Agreement which gives few indications as to the correct answer.  The ITF has been concerned to safeguard the interests of those employed in ships operating under flags of convenience.  The ITF entered into a common form of special agreement with the defendants as owners of the vessel under which the defendants agreed to employ all seafarers on the vessel on the terms of the Collective Agreement and to incorporate its terms into each seafarer's contract of employment.  The Collective Agreement is a common form agreement applying to crews on flags of convenience ships.  It is wholly concerned with the terms and conditions of employment of "seafarers" the term which is used throughout the agreement.

 

13. It is against that background that the words in Article 18 "whose ability to work is reduced" and "Degree of Disability" at the head of the left hand column fall to be construed.  The defendants submit that the words "ability to work" are general and that there is no sufficient ground for treating them as though they referred to work as a seafarer.  They also pointed to the anomaly of, for example, the present case where the plaintiff has a 100% disability from work as a seafarer (which would give rise to an annuity of 86% of his basic wage as a seafarer) but could theoretically be employed ashore where his earning ability is only diminished by 40%.  He might therefore be better off as a result of his accident than if no accident had occurred.

 

14. These are persuasive submissions but, not without hesitation, their Lordships are persuaded not to accept them.  The "work" from which the seafarer is disabled at the time of the accident is work as a seafarer.  It is his "ability to work" as a seafarer which is "reduced as a result thereof".  Unless his ability to work as a seafarer is reduced by the accident, Article 18 does not apply at all.  It is that reduction in ability which gives rise to the compensation provided by the clause and therefore the phrase "Degree of Disability" must prima facie refer to the same reduction in ability to work.  There being nothing in the Collective Agreement concerning anything other than employment as a seafarer, there is nothing which indicates that this prima facie construction is incorrect.

 

15. In these circumstances their Lordships agree with the trial judge and the Court of Appeal that in the column "Degree of Disability" the percentages refer to the degree of inability to work as a seafarer.  The anomaly of the seafarer being able to get work ashore in addition to his disability annuity is accounted for by treating Article 18 as providing protection for those who as seafarers are exposed to exceptional perils of a life more dangerous than most ordinary employees. For these reasons, which are largely the same as those given by the members of the Court of Appeal in their impressive judgments, their Lordships will humbly advise Her Majesty that the appeal should be dismissed.

 

16. In the courts below, the Swedish Club were ordered to pay the plaintiff's costs on the grounds that they had been conducting the defence and pursuing the appeal in their own interests, the defendant company being insolvent.  For the same reasons the Swedish Club must pay the plaintiff's costs of the appeal before their Lordships' Board.

 

© CROWN COPYRIGHT as at the date of judgment.