PAUL WILSON v (FIRST) NORTH STAR SHIPPING (ABERDEEN) LIMITED AND ANOTHER

---

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 156

PD1395/12

OPINION OF LORD BANNATYNE

In the cause

PAUL WILSON

Pursuer;

against

(FIRST) NORTH STAR SHIPPING (ABERDEEN) LIMITED AND

(SECOND) NORTH STAR (CYPRUS) LIMITED

Defenders:

Pursuer:  McNaughton;  Digby Brown LLP

Defenders:  Jamieson;  BMK Wilson

29 October 2014

Introduction
[1]        This case came before me for proof.  The pursuer was represented by Mr McNaughton, advocate and the defenders by Mr Jamieson, advocate.  The pursuer sought reparation from the defenders for injuries sustained on 28 July 2009, while in the employment of the second defenders, as a second year apprentice deck hand.  The first defenders were sued as operators of the vessel on which the pursuer was serving at the material time. 

 

Background
[2]        The following matters regarding the circumstances surrounding the incident when the pursuer was injured were not contentious:  On the above date the pursuer was on duty on the Grampian Conqueror (“the mother craft”), an offshore standby vessel, which was stationed off an oil platform, Sedco 7/11 located in the Bardolino field which is situated about 190 kilometres east of Peterhead.  On said date the pursuer was a member of the close standby crew.  On board the mother craft was a much smaller vessel (“the daughter craft”) which could be launched from the mother craft.  The daughter craft is shown in photographs 7/41 to 7/45 of process.  When carrying out close standby duties the pursuer served on the daughter craft.  The crew of the daughter craft at the material time consisted of three persons, namely:  the cox’n Dmitri Rand, who was in charge of the daughter craft;  Piotr Snaizder, a qualified deck hand and the pursuer.  The pursuer understood at the material time that he required to take orders from both of the other members of the crew of the daughter craft.  The daughter craft was lowered onto the water at or about 2.15pm on the said date.  The wind and sea conditions at the time of launch of the daughter craft were as follows:  windspeed was five on the Beaufort Scale and wave height was 2‑3 metres.  The conditions remained the same throughout the time the daughter craft was in the water.  The wind and sea conditions were appropriate for the launch of the daughter craft and remained throughout just within the safe working capabilities of the daughter craft.  While working on close standby said rig requested that an oil sample be obtained from the water near the rig.  Sampling would be carried out by the daughter craft.  Oil had been spotted from the rig bubbling up from below and there were concerns as to whether gas was also leaking.  This gave rise to safety concerns.  In order to carry out sampling the daughter craft required to have the sampling kit which consisted of plastic bottles and sponges.  The obtaining of such oil samples was a task regularly carried out by the crew of a daughter craft.  At the material time the sampling kits were routinely kept on the mother craft and the daughter craft did not normally have on board such sampling kits.  On this date the daughter craft did not have sampling kits on board and therefore required to return to the mother craft to obtain one.  Captain Bruce (the captain of the mother craft) was informed of the rig’s request.  He went to the bridge.  An option was to recover the daughter craft and transfer the sampling kits.  He considered the weather and sea conditions and decided the transfer would be done as follows:  the daughter craft would come alongside the mother craft and the sampling kit would be thrown from the mother craft onto the daughter craft’s deck.  The cox’n of the daughter craft was informed of this decision.  In order to achieve this form of transfer the mother craft turned at right angles to the wind direction in order to form a lee for the daughter craft.  A lee is an area of calm sea out of the wind on the leeward side of a vessel.  The cox’n thereafter approached the leeward (starboard) side of the mother craft.  He brought the starboard side of the daughter craft to within approximately 1 to 1 ½ metres of the port side of the mother craft.  The two vessels were when alongside each other both moving at a relatively slow speed.  The sample bottles were very light.  When being transferred they were normally placed within a knotted black bin bag.  On this occasion the above course was followed and the bottles were contained in a black bin bag.  The transfer on this occasion was achieved by the black bag being dropped by a member of the crew of the mother craft onto the roof of the wheelhouse of the daughter craft.  While the two vessels were travelling alongside one another, they came together crushing the pursuer who was standing on the port side of the daughter craft on a sponson all as shown in photograph no 7/41/3 of process.  Given the dynamics of two vessels proceeding alongside each other and the sea and wind conditions at the material time there was a real risk during the carrying out of such a task that the two vessels would come together forming a pinch point.

 

The evidence on the issue of liability
[3]        The pursuer’s position regarding the circumstances of the accident was this:  the cox’n told Mr Snaizder to go onto deck and nodded to him to follow the same route.   Nothing was said by the cox’n as to where he was to go on deck.  He was aware that the daughter craft was returning to the mother craft and believed that the sampling kit would be thrown into the sea and would be recovered from the sea by the daughter craft.  He did not understand that the daughter craft would go alongside the mother craft.  He had previously seen a transfer of the sampling kit, by it being thrown into the sea.  When the daughter craft was between 500 and 1000 metres from the mother craft he climbed from the deck onto the sponson on the port side.  He then held onto the grab rail on the roof of the wheelhouse.  He was positioned as shown by the mannequin in 7/41/3 of process.  He climbed onto the sponson in order to get a better view of the sampling kit being thrown from the mother craft into the sea.  He said that Mr Snaizder was at this shoulder at this point.  He described the approach of the daughter craft to the mother craft as very quick.  He then said there was “an orange wall next to me” (the side of the mother craft), the two vessels came together and he was crushed against the rail on the daughter craft. 

[4]        The evidence of the cox’n and Snaizder as to the circumstances of the accident was as follows:  Mr Snaizder stated that the cox’n had said that he was going to the side of the mother craft and that he and the pursuer must go out together onto the aft deck (as shown in the photograph 7/41/1 of process) and wait for the transfer of the sampling kits.  The pursuer then positioned himself at the port side of the aft deck and he positioned himself at the starboard side of the aft deck.  He explained to the pursuer to stay where he was and he would stay where he was.  When they were alongside the mother craft a member of its crew threw the bag containing the sampling kits onto the roof of the wheelhouse;  the pursuer then “automatically” moved to the sponson to recover the bag;  at that point they were approximately he thought 3 metres from the side of the mother craft;  he said that he sought to tell the pursuer as he moved to wait but accepted that the pursuer had not heard this due to noise.  He then said that the ships had come together and the pursuer had been crushed.  The cox’n said that he was given permission to come alongside the mother craft after it made a lee in order for the sample bottles to be transferred.  He then ordered the pursuer and Mr Snaizder to go to the aft deck, stay there, get the bag containing the samples bottles and then comeback inside the cabin.  He later head a shout and became aware that the pursuer had gone on to the sponson and been crushed.  With respect to how such transfers were normally carried out the cox’n accepted that from time to time sampling kits were thrown and landed in the sea and if that happened the two craft did not require to come alongside each other.  Mr Snaizder’s position was that the procedure for transferring kits changed from time to time.  In addition to the evidence which Mr Snaizder gave regarding the circumstances of the accident he also spoke to his continued employment by the defenders and advised that it was now the normal practice for sampling kits to be carried on the daughter craft, thus it was no longer necessary for the daughter craft to go back to the mother craft in order for sampling kits to be transferred from one to the other, when a request was made by a rig for sampling to be carried out.  

[5]        Martin Duthie was a former employee of the defenders who had prepared a report in relation to the circumstances of the accident, 6/16 of process.  He spoke to this report in the course of his evidence. 

[6]        His report included the following conclusions:

“1.       The transfer of the sample bottles was not fully discussed, appraised and risk assessed prior to the operation commencing.

2.         The act by the IP of moving from the “safe” position to the “unsafe” position in contravention of training was critical.

3.         The act of coming alongside for transfer in a lee with limited headway is different to the act of coming alongside to connect and be recovered whilst making way.”

 

The immediate cause of the said incident was said to be:

“Improper position of the IP in a pinch Point.

Poor job plan.

Poor communications.

Lack of intervention”

 

Contributory factors to the incident were said to be:

“Rushed adherence to Generic RA and rushed transfer of sample bottles.

Inadequate procedure.

Cox could not see the crew from conning position.

Endeavour to please and to respond by DC crew.

Regarded as routine.

No Signage or physical barriers on DC to reinforce dangers of standing between DC cabin and mother vessel.”

 

[7]        Ian Biles is a highly experienced marine expert who had prepared a report for the pursuer (number 6/19 of process) to which he spoke in evidence.  In the course of his evidence he described how small boats such as daughter crafts regularly came alongside larger boats such as mother crafts.  He said that this was a situation which required to be risk assessed and in particular the following risks required to be assessed when considering two boats coming alongside each other:

• Collision of one vessel with another
• Entrapment
• Control of the smaller vessel as it came alongside the larger vessel
• Positioning of persons on the smaller craft as it came alongside the larger craft;and
• How items should be transferred between the larger and smaller craft

[8]        His position was that the risk assessment referred to by Mr Duthie in 6/16 of process, and upon which the defenders relied as being an adequate assessment of the risks involved in the task being performed at the material time, was not relevant to that task.  He spoke to the conclusions in his report and stood by these having heard the evidence of the pursuer and Mr Duthie.  His conclusions were these:

“4.1      Given the prevailing weather conditions I consider it an unreasonable request to make of the daughter craft to collect oil samples from the sea as there was no realistic probability of obtaining an oil sample.

 

4.2       There was no positive consideration given to the specific operation of transferring the oil sample bottles, the method by which it was to be achieved or the hazards potentially involved.  Furthermore there was limited communications between the coxswain of the daughter vessel and Mr Wilson as to what was intended or expected.

 

4.3       Mr Wilson was probably standing in a location that he considered to be reasonable given what he was expecting to happen.

 

4.4       Communication as to the exact details of how the transfer was to be conducted either did not happen at all or at best was confused such that Captain Bruce understood one thing (the daughter craft would come alongside) whilst Coxswain Dmitri understood something different (the daughter craft would approach from the quarter and have the sample kit dropped down).

 

4.5       Given the breakdown in understanding I believe it is reasonable to conclude that the method of approaching the mother ship by the daughter vessel was not discussed and understood by all parties involved.

 

4.6       The actual approach and positioning of the daughter craft was not safe in the prevailing conditions and that an approach shown in the Petrofac Training manual on page 6 of 34 for ‘Approach alongside and recovery of FRC’ would have been safer as the daughter craft would have enjoyed the full protection of the lee provided by the mother ship and, therefore, would not have requested such high powered manoeuvres to come alongside.”

 

[9]        He accepted as was the position of all of the other witnesses that positioning oneself in a pinch point was not good practice.  It was dangerous to do so in that an accident, as in fact occurred, could happen.

[10]      Captain Graham Bruce gave evidence.  He was at the relevant time the captain of the mother craft.  He described a request from the rig to carry out oil sampling.  He was happy that the weather and sea conditions were suitable for the taking of such a sample by the daughter craft.  He was aware that the daughter craft would have to come back to the mother craft in order to obtain sample bottles.  He decided not to carry out the transfer of the sampling kit by recovering the daughter craft, which was an option.  Rather he decided the transfer would be carried out by the sample kit being dropped to the daughter craft.  Therefore he had the mother craft manoeuvred in such a way as to create a lee by turning from its then course which was directly into the wind by 90 degrees so that the starboard side of the mother craft was sheltered from the wind.  He described the cox’n of the daughter craft’s approach to the mother craft as perfect all the way in and he made no criticism of the position of the daughter craft in relation to the mother craft.  This evidence was not challenged.  He described in cross‑examination how he had instituted a system, since the accident involving the pursuer, whereby sample bottles were kept on the daughter craft so that a daughter craft did not have to come back to the mother craft for sample bottles to be transferred between them. 

[11]      The final witness who gave evidence on the issue of liability was David McFarlane, the defenders marine expert.  It was his position that what he described as the generic risk assessment contained in 6/16 of process was fit for purpose for the task being carried out by the pursuer at the time of the accident.  He said that to do a specific risk assessment for the said task would be to “repeat yourself”.  His position was that the accident had been entirely caused by the pursuer moving from the aft deck which was a position in which the pursuer was perfectly safe and in particular could not become a pinch point to a position that was a pinch point.  He described what the pursuer had done as being against the principles of training, good seamanship and common sense.  He said the pursuer’s actings had been a major error of judgement and speculated that it had been caused by the pursuer seeing the bag containing the sample bottles land on the roof. 

[12]      He commented as follows on Mr Biles report:  it was his position that the sea and wind conditions were well within the working capabilities of the daughter craft at the material time.  He felt that the sampling had to be attempted given the dangers of an explosion, if gas was in fact leaking.  The sampling might not have been successful but it had to be at least attempted.  It was his position that no proper criticism could be made of the communication among those on the daughter craft and between the daughter and mother craft regarding the carrying out of this task.  It was his position that having regard to the evidence of the cox’n and the captain there was no confusion about what was going on and what was to be attempted at the time of the accident.  He had no idea how Mr Biles could have come to the conclusion at 4.3 of his report.  It could never be a reasonable decision to stand on the side of a ship which was against the side of a larger ship as this was clearly not a safe place to be.  Lastly, no criticism could be made of the approach and positioning of the daughter craft by the cox’n given the captain’s position in evidence. 

[13]      When it was put to him in cross‑examination that the sampling kit should always have been kept on the daughter craft, he said that such a conclusion only arose with the “benefit of hindsight”.

 

Submissions on behalf of the pursuer
Liability
[14]      Mr McNaughton favoured me with written submissions, however, in the course of oral discussion, he to some extent departed from these.  In particular his submissions regarding the circumstances of the accident altered and his position became this:  insofar as how the injuries to the pursuer had occurred he was prepared to accept the version of events spoken to by Mr Snaizder and this was the factual matrix upon which his legal submissions were founded.  He conceded that in these circumstances the pursuer’s position was not correct;  it being that no directions had been given to him by the cox’n as to where he should stand (namely:  on the aft deck) that when he had got onto the sponson the daughter craft was 500 to 1000 yards from the mother craft;  that he had got onto the sponson in order to see better the bag being thrown into the water and had suddenly and without warning found the daughter craft alongside the mother craft while he was on the sponson;  and that accordingly the possible pinch point was created after he was on the sponson.  Despite the foregoing concessions he submitted that the pursuer was a witness who was credible and reliable, in the sense that he was trying his best to remember the details of the incident. 

[15]      It was his position that although the factual background was significantly altered from what had been spoken to by the pursuer, nevertheless there was fault at common law and a breach of regulations 5,7 and 12 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work ) Regulations 1997 by one or other or both defenders.  There was no dispute that in the circumstances of this case the regulations applied to both defenders.  These regulations in so far as material are in the following terms:

“Regulation 5:  General Duties

 

(1)        The employer shall ensure the health and safety of workers and other persons so far as is reasonably practicable [having regard to] the following principles –

(a)        the avoidance of risks, which among other things include the combatting of risks at source and the replacement of dangerous practices, substances or equipment by non‑dangerous or less dangerous practices, substances or equipment;

 

(b)        the evaluation of unavoidable risks and the taking of action to reduce them;

 

(c)        adoption of work patterns and procedures which take account of the capacity of the individual especially in respect of the design of the workplace and the choice of work equipment with a view in particular to alleviating monotonous work and to reducing any consequent adverse effect on workers’ health and safety;

 

…

 

(e)        adoption of a coherent approach to management of the vessel or undertaking, taking account of health and safety at every level of the organisation;

 

…;  and

 

(g)        the provision of appropriate and relevant information and instruction for workers. 

 

(2)        Without prejudice to the generality of the [duty] under paragraph (1), the matters to which those [duty] extend shall include in particular –

 

(a)        provision and maintenance of plant, machinery and equipment and systems of work that are, so far as is reasonably practicable, safe and without risk to health;

 

(b)        arrangements for ensuring, so far as is reasonably practicable, safety and absence of risk to health in connection with the use, handling, stowage and transport of articles and substances;

 

(c)        such arrangements as are appropriate, having regard to the nature of, and the substances used in, the activities and size of the operation, for the effective planning, organisation, control, monitoring and review of preventive and protective measures;

 

(d)        provision of such information, instruction, training and supervision as is necessary to ensure the health and safety of workers and that of other persons aboard ship who may be affected by their acts or omissions;

 

…

 

(f)         arrangements to ensure, so far as is reasonably practicable, that no person has access to any area of the ship to which it is necessary to restrict access on grounds of health and safety unless the individual concerned has received adequate and appropriate health and safety instruction;

 

(g)        provision and maintenance of an environment for persons aboard ship that is, so far as is reasonably practicable, safe and without risk to health;

 

(h)        collaboration with any other person covered by regulation 4 to protect, so far as is reasonably practicable, health and safety of all authorised persons aboard the ship or engaged in loading or unloading activities in relation to that ship.

 

Regulation 7:  Risk Assessment

(1)        A suitable and sufficient assessment shall be made of the risks of the health and safety of workers arising in the normal course of their activities and duties, for the purpose of identifying –

 

(a)        groups of workers at particular risk in the performance of their duties; and

 

(b)        the measures to be taken to comply with the employers duties under these regulations, and any significant findings of the assessment and any revision of it shall be brought to the notice of workers.

 

…

 

(5)        Measures shall be taken, and if necessary protective equipment supplied, to ensure an improvement in the health and safety of workers and other persons in respect of those risks identified. 

 

(6)        Workers shall be informed of the measures taken for their protection.

 

Regulation 12:  Capabilities and Training

 

(1)        In entrusting tasks to workers, account shall be taken of their capabilities as regards health and safety.

 

(2)        Workers shall be provided with adequate and appropriate health and safety training and instruction –

 

(a)        before being assigned to shipboard duties;

(b)        on their being exposed to new or increased risks because of –

(i)         being transferred or given a change of responsibilities,

 

…

 

(iv)       the introduction of new shipboard practices, a new system of work or a change of system of work already in use.

 

(3)        The training referred to in paragraph (2) shall –

 

(a)        be repeated periodically where appropriate;

 

…”

 

[16]      His general contention regarding the position taken by the defenders was this:   the evidence led on behalf of the defenders and their submissions did not go to primary liability.  They only went to contributory negligence and he conceded that given the pursuer’s actings there was a degree of contributory negligence. 

[17]      With respect to the proper approach to the application of the regulations Mr McNaughton submitted that a very helpful analysis was contained in the opinion of the Lord Ordinary in Cairns v Northern Lighthouse Board and another [2013] SLT 645 at paragraph 26 and thereafter between paragraphs 39 and 41 where the Lord Ordinary observes as follows:

“[26]    The effect of regulation 5 is to impose a strict duty to ensure the health and safety of workers, subject to the defence of reasonable practicability.  A great deal of health and safety legislation follows that structure.  The construction of such provisions was considered in R v Chargot Limited, a case on ss. 2 and 3 of the Health and Safety at work etc Act 1974.  Those sections imposed a duty on the employer ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of…his employees’ and to ‘conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, the persons not in his employment who may be affected thereby are not thereby exposed to risk to their health or safety.  The wording thus follows fairly closely that used in regulation 5.  The analysis of such a duty is described by Lord Hope at [2009] 1 WLR pp 8 - 9 para 17: 

‘The first issue is to determine the scope of the duties imposed on the employer…in both subsections the word “ensure” is used.  What is he to ensure?  The answer is that he is to ensure the health and safety at work of all his employees, and that persons not in his employment are not exposed to risk to their health and safety…(the duties) describe a result which the employer must achieve or prevent.  These duties are not, of course absolute.  They are qualified by the words “so far as is reasonably practicable”.  If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it.’

 

In page 9 paragraph 18, after an analysis of remarks of Lord Reid in Nimmo v Alexander Cowan and Sons Limited, Lord Hope states that ‘it is the result that these duties prescribed, not any particular means of achieving it,’

 

…

 

[39]      Counsel for the second defenders submitted that, in the dynamic environment of the sea, it would be absurd to place a duty on those in charge of boats to ‘ensure’ the safety of those on board, in terms of achieving that result no matter what conditions pertain.  That might be an argument for the retention of a fault based regime.  Regulation 5 of the 1997 regulations moves away from a fault based regime, however, thus that policy decision has been made and is binding on the courts.  I am bound to say that the results do not appear to me to be absurd;  the underlying economic theory is that insurance will be put in place, and it is easier and more economically efficient for the boat operator, or any other employer who is concerned, to obtain such insurance than to compel the injured employee to bear the cost.  In the event, the present scheme of law is supported by the principle that the cost of injury is part of the costs of an economic process, and ought to be borne by the customers for that process.

 

[40]      I accordingly conclude that the pursuer is entitled to rely on reg 5 of the Merchant Shipping and Fishing vessels (Health and Safety at Work) Regulations 1997.  Once that is established, I am of the opinion that the legal analysis is very straightforward.  Under such legislation, the second defenders are under a strict duty to ensure the health and safety of workers on board their vessels, subject to the defence of reasonable practicability.  That follows from the terms of regulation 5 taken together with regulation 4(2).  The approach set out in R v Chargot Limited, supra, cited at paragraph 26, is applicable.  The duty imposed on the second defenders is strict, subject only to the defence of reasonable practicability.  The pursuer, was a worker, on the ‘Taeping’ in the course of her employment, and thus enjoyed the protection of regulation 5.  The voyage to the Isle of May was an activity that involved a risk of injury through movement of the vessel, and the pursuer was injured through the movement of the vessel.  Thus she is entitled to be compensated by the second defenders.  Likewise, the first defenders are also under an obligation to achieve the result set out in regulation 5;  in this case they are an ‘employer’ within the meaning of regulation 2(2).  They too were under a strict duty to ensure the health and safety of the pursuer subject to the defence of reasonable practicability.

 

[41]      The statutory defence on an ex facie breach of regulation 5 is that the accident in question could not have been prevented by means that are reasonably practicable.  No such defence was advanced in the defenders pleadings, and no evidence to support such a defence was led.  Furthermore, it seems to me that it would have been extremely difficult to advance such a defence.  The expert evidence made it clear that, in the sea state that occurred on the date of the pursuer’s accident, there was a clear and foreseeable risk of slamming if the boat were driven too fast and without due regard to the state of the sea.  That risk could have been avoided if that boat had been driven more slowly.”

 

[18]      Mr McNaughton went onto argue that in relation to the issue of strict liability the onus was on the defenders to plead and prove this line of defence.  In support of this he referred to the well‑known passage in Nimmo v Alexander & Sons Limited 1967 SC (HL) 79 per Lord Guest at pages 102 and 103.

[19]      Finally by way of introduction Mr McNaughton said this:  It seems that the defenders position relies inter alia on two propositions:  (1) that the risk assessment, albeit generic, was suitable even though it did not consider the actual risk that came to pass (see for example the evidence of Mr McFarlane);  and (2) that the situation of danger did not arise until the pursuer put himself into that position of danger;  it could only be known with the benefit of hindsight.  It was submitted that both of these propositions were unsound in law. 

[20]      Questions of this type were considered by the House of Lords in Robb v Salamis (M&I) Limited. 2007 SC(HL)71:  The case concerned the Provision and Use of Work Equipment Regulations 1998.  However, he submitted that the following comments made by Lord Hope and Lord Roger could be applied as a matter of generality when the court was considering breaches of regulations in the context of employers liability, and, in particular, when considering the suitability of a risk assessment:  first per Lord Hope:

“[8]      …when an employer is assessing the risks to which his employees may be exposed when using equipment that he provides for them to work with, he must consider not only the skilled and careful man who never relaxes his vigilance.  He must take into consideration the contingency of carelessness on the part of the workmen in charge of it and the frequency with which that contingency is likely to arise (Hendall v Birtwhistle, per Wills J, page 195;  Summers and Sons Limited v Frost, per Lord Reid, page 765). 

 

…

 

[24]      …the question of foreseeability has to be examined in its context.  The aim in both regulations is the same.  It is to ensure that work equipment which is made available to workers may be used by them without impairment to their safety or health….  This is an absolute and continuing duty, which extends to every aspect related to their work (see Framework Directive, Art. 3(1)).  It is in that context that the issue of foreseeability becomes relevant.  The obligation is to anticipate situations which may give rise to accidents.  The employer is not permitted to wait for them to happen. 

 

[25]      …The aim is to identity the risk to the health and safety of workers if things go wrong. …

 

…

 

[29]      …The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness.  The employer is liable even if he did not foresee the precise accident that happened (Miller v South of Scotland Electricity Board, per Lord Keith of Avonholm, page 34).  …

 

…”

 

And finally per Lord Rodger

“[52]    …it is trite that an employer must always have in mind, not only the careful man, but also the man who is inattentive to such a degree as can normally be expected and that the circumstances which can reasonably be expected by an employer include a great deal more than the staid, prudent, well regulated conduct of men diligently attentive to their work (Smith (formerly Westwood) v National Coal Board, per Lord Reid, p 873;  Lyon v Don Bros, Buist and Co, per Lord Justice Norman, p 5).”

 

[21]      Before turning to the pursuer’s counsel’s detailed submissions applying the foregoing legal analysis to the facts of the instant case, it is convenient to note, that there were certain of the conclusions contained in Mr Biles report upon which he did not see to rely;  in paragraph 4.1 (in light of the evidence relative to the dangers possibly arising from leakage of gas, which evidence was not contested), he accepted it could not be argued that it was not reasonable to instruct the daughter craft to at least attempt to recover a sample;  4.3: given his acceptance of the evidence of Snaizder on this issue;  and 4.6 given the evidence of Captain Bruce, which was not disputed, that the approach and positioning of the daughter craft was appropriate.

[22]      Against that whole background Mr McNaughton first submitted that the first defenders had breached regulation 5:  in that the transfer of the oil sampling kit as done on the day in question created an avoidable risk, namely:  the creation of a pinch point into which crew members could move, that the first defenders failed to avoid.  They could have done so by:

• Providing oil sample kits to be carried on the daughter craft (as was done post accident) and
• Setting up a procedure whereby the daughter craft maintained a greater distance from the mother craft during all transfers of equipment

[23]      With respect to regulation 7 he submitted that the first defenders had not risk assessed the transfer of the equipment from the mother craft to the daughter craft.  That he submitted resulted in a haphazard operation that was not well understood by workers.  He directed my attention to a comparison of the evidence in relation to the task that had been assessed: “Job description:  launch and recovery of daughter craft”, as set out in 6/16 of process and the complete lack of assessment of the job being carried out at the time of the accident.  The evidence given by Captain Bruce made it clear that the launch and recovery of the daughter craft was a tightly controlled operation with little or no room for error.  That he submitted contrasted markedly with the erratic and dangerous operation of transferring equipment from mother craft to daughter craft, at least in the weather conditions prevailing at the time of the accident.

[24]      In support of his position on this issue he particularly relied on 6/16 of process and in particular certain parts of the summary of events:  pages 7, 12 and 13.

• Observations “The transfer of bottles and options for transfer was not fully assessed prior to incident” (page 7)

  “The risk assessment is generic … and not specific for transfer or receipt of packages” (page 7)

• “Conclusions”:“1.The transfer of the sample bottles was not fully discussed, appraised and risk assessed prior to the operation commencing” (page 12)
• “Immediate Cause, Contributing Factors”:

  “poor job plan” (page 13)

• “Rushed adherence to generic RA and rushed transfer of sample bottles” (page 13)
• “Inadequate procedure” (page 13)

[25]      The above points as contained in 6/16 were spoken to by Martin Duthie and Ian Biles and accepted by them. 

[26]      Further he also referred to 7/47 of process the pursuer’s personnel file at page 4 which included an interview between the pursuer and Martin Duthie.

“The major change I noticed on this occasion was that Paul admitted he was positioned poorly…This would confirm our own findings of a lack of planning.”

 

[27]      Counsel submitted that this was an admission of lack of planning on the part of the first defenders as operators of the Grampian Conqueror. 

[28]      With respect to the second defenders, counsel submitted as follows relative to the breach of regulations.  With respect to regulation 5 he again submitted that the transfer of the oil sampling kit created an avoidable risk that the second defenders failed to avoid.  They could have done so by:

• Providing that oil sampling kits be carried on the daughter craft.
• The daughter craft cox’n keeping the daughter craft a greater distance than 1 to 2 metres from the mother craft.
• The DC cox’n instructing the DC crew to stay in the daughter craft wheelhouse if and when the daughter craft came alongside the mother craft.
• If the daughter craft cox’n felt it necessary for any crew to go onto the deck during the transfer, he instruct the qualified deckhand alone to go onto the deck:thequalified deckhand would know the procedure.
• The daughter craft cox’n providing express instructions to stay starboard on the daughter craft deck, in the event that it was necessary for both daughter craft crew to go onto the daughter craft deck.

[29]      With respect to breach of regulation 7 counsel advanced the same grounds in relation to the second defenders as he had advanced in relation to the first defenders.

[30]      Lastly regarding regulation 12 he argued that the defenders position was that the pursuer was an experienced boatmen with 4,800 hours at sea before starting his apprenticeship with them.  However, there was no evidence that the pursuer had ever been specifically trained as regards to the way in which equipment transfers were to be carried out.  His safety awareness whilst very good when he arrived at the company had slipped to good by 9 May 2008 shortly before the accident.  The defenders comment on the pursuer at that time was:  “Has a bit to learn but has good potential”

[31]      The pursuer accepted in evidence that this was a fair reflection on his knowledge and understanding of work at that time. 

[32]      Further, the method of transferring the equipment on the day of the accident can be said to have been “a change to a system of work already in use” (in terms of regulation 12(2)(b)(iv)).  The evidence is that prior to the time of the accident oil sampling kits were: (1) sometimes available on the daughter craft;  (2) sometimes thrown into the daughter craft;  and (3) sometimes thrown to sea for the daughter craft to pick up.  If the defenders collectively planned to bring the daughter craft under the stern of the mother craft and for crew from the mother craft to throw the equipment to the roof of the daughter craft then that should have been fully discussed with the daughter craft crew prior to operation.  In essence a short toolbox talk along the lines suggested by Ian Biles would have sufficed.

[33]      The pursuer also had on record a common law case against the second defenders.  Mr McNaughton began by accepting the Lord Ordinary’s observations in Cairns that a common law case should be discouraged if there was a good case under a regulation:  see Cairns at paragraph 43.  However, he submitted that in this case the evidence on which he relied to argue fault was the same as that for breach of the regulations.  In particular the nature of the breaches were the same as those argued for in terms of regulation 5.  In those circumstances he submitted that the second defenders should be held liable at common law for failing to provide the purser with a safe system of work.

[34]      With respect to the defenders case of sole fault:  based on the pursuer causing the accident by placing himself in the pinch point it was his position that the relevant law was set out in Boyle v Kodak Limited 1969 1 WLR 661 and Anderson v Newham College of Further Education 2003 ICR 212.

[35]      He directed my attention in particular to the observations of Lord Reid in Boyle v Kodak at page 68:

“Employers are bound to know their statutory duty and take all reasonable steps to prevent their men from committing breaches.  If an employer does not do that he cannot take advantage of this defence.  On the respondent’s submission there is a difference under this regulation between cases where there is another practicable means of access to the top of the ladder and cases where there is none or where there is nothing to which the ladder can be lashed.  In the former case the man must use the alternative means of access via the stairway, to get to the top to lash the ladder, and then return that way before ascending the ladder;  in the latter case he is permitted to ascend the ladder without lashing it.  I think the evidence shows that a skilled practical man might easily fail to appreciate this and that the respondents ought to have realised that and instructed their men accordingly.  So they have not proved that they did all they could reasonably be expected to do to ensure compliance and they cannot rely on this defence so as to avoid their absolute vicarious liability under the regulation. 

 

Then it was said that the appellant would have disobeyed and order to go up the stairway to lash the ladder as soon as the foreman departed.  I can find nothing in the evidence to justify this.”

 

[36]      In Anderson v Newham College of Further Education Sedley LJ, referring to Boyle made the following observations in relation to the defendant’s argument for 100% contributory negligence:

“(11)    …there was then and still is binding authority against this approach, which was not cited to the Court of Appeal.  In Boyle v Kodak Limited…the House of Lords held that to escape liability for a breach of statutory duty by which a workman has been injured, the employer must prove not only that his breach was coextensive with breach for the injured workmen of the same statutory duty, but that the employer had done all he reasonably could to ensure compliance by the employee. 

 

(12)      Boyle v Kodak Limited seems to me to be authority for at least two relevant things.  One is how high a standard of proof is required to shift the entire blame for a breach of statutory duty to the injured employee himself.  If the court which heard Jayes v IMI (Kynoch) Limited 1985 ICR 155 had been reminded of Boyle v Kodak Limited it is at least doubtful whether the result in what was a case of a breach by other employees of an absolute statutory duty under section 14 of the Factories Act 1961 would have been the same, the other is that where such a situation is achieved by the defendant employer, there is no liability capable of apportionment;  the claimant fails altogether in such a case;  see in particular the speech of Lord Diplock at pp 672- 673.“

 

[37]      On the basis of the foregoing Mr McNaughton invited this court to adopt the same analysis i.e. an employer defender must prove both: (one) that the pursuer was wholly to blame and (two) that the defender had done all that was reasonable to ensure compliance.  In this case it was submitted that the defenders had proved neither.  It was submitted that the positioning of the pursuer was only one of four causes of the accident:

• Lack of specific risk assessment
• Poor job plan
• Poor communications and
• Improper positioning of the pursuer in a pinch point

[38]      Further it was submitted that the defenders had not done all that was reasonable to ensure compliance.  In conclusion, applying the law in Boyle and Anderson to the facts of this case, the defenders argument for sole fault must fail. 

[39]      Turning to the issue of contributory negligence counsel accepted that there was no dispute that the position taken up by the pursuer on the sponson was an unsafe one and that accordingly there was a measure of contributory negligence.  However, it was his position having regard to the evidence of Snaizder that:  the pursuer being present at the pinch point was an automatic reaction to the bag being thrown onto the roof of the wheelhouse. 

[40]      In the above circumstances it was argued that it would be harsh to blame the pursuer in any major way for the accident.  Counsel described the circumstances of the accident as being a fast moving and dangerous situation created by the defenders.  It was noisy.  It was difficult to hear instructions.  Both vessels were moving to some extent, the daughter craft in particular as it was a small vessel being moved about by waves of up to 2.5 metres.  The pursuer had to keep an eye on the movements of the daughter craft, the movements of the mother craft and the place where the crew on the mother craft were throwing the bag to and from. 

[41]      He contended that the pursuer’s acts could be categorised as momentary inadvertence.  In that event, it was at least arguable that no discount should be made for contributory negligence.  The situation prevailing at the time of the accident was similar to the conditions prevailing in Caswell v Powell Duffryn Associated Collieries Limited 1940 AC 152 where Lord Wright made the following comments on contributory negligence:

“The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where and negligence begins…

 

What is all important is to adapt the standard of what is negligence to the facts, and give due regard to the actual conditions in which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some of his attention to his own safety.” (see pages 176 and 178)

 

[42]      He went on to argue that the defenders placed considerable emphasis on the alleged disobedience of orders.  He submitted that this was more illusory than real.  At best for the defenders, the cox’n gave an instruction to go aft on deck.  The pursuer did so at least initially.  On the evidence of Mr Snaizder the pursuer was looking for the bag and moved towards the wheelhouse roof in order to retrieve it.

[43]      If the cox’n had issued an order to the pursuer to stay in the wheelhouse, as would have been the safest place for him whilst the daughter craft was alongside the mother craft, then it would have been dangerous and causative for the pursuer to have disregarded that and left the wheelhouse whilst alongside the mother craft.  However, by going on deck, the pursuer merely followed the instruction given by the cox’n.  In the absence of any express instruction to stay there after the bag was thrown, the pursuer had not disobeyed any meaningful order from the cox’n. 

[44]      The defenders also argued that the pursuer ignored an order from Mr Snaizder.  However, in evidence Mr Snaizder very fairly stated that he merely said to the pursuer to wait but that he did not think that the pursuer would have heard him in the noise of the situation.

[45]      In all of the circumstances of this case it was submitted that an appropriate discount for contributory negligence would be in the range of 20 to 30%.  The fault and causative effect of the pursuer’s actions were minor compared to those of the defenders.  Counsel directed my attention to the approach of Sachs LJ in Mullard v Benline Steamers Limited 1971 WLR 1414 at 1417 and 1418.  It was his submission that the discount in the current case should be lower than the 33% in that case, having regard to the fast moving, noisy and confusing working environment created by the defenders at the time of the accident.

 

Quantum
Solatium
[46]      The pursuer’s physical injuries were agreed in paragraph 4(i) of the joint minute as being as follows:  a crush injury of the chest resulting in:  five fractured ribs and a fractured clavicle.  As a result of those injuries it was reasonable for the pursuer to take around six months off work.  It was also agreed in the joint minute that the pursuer had sustained post‑traumatic stress disorder “PTSD”.  The dispute in relation to solatium related to the PTSD aspect of his injuries.  Two consultant psychiatrists gave evidence on this issue, namely;  Dr Colin Rodger, for the pursuer and Dr Andrew Taylor, for the defenders.  The pursuer relied on the following evidence regarding PTSD:  the 10 hour journey from the locus to hospital added to the pursuer’s anxiety at the time of accident.  The pursuer continued to experience intrusive recollections about the accident.  He attended his GP.  On 10 September 2009 his GP referred him to psychology for “post‑traumatic stress”.  He started to attend for CBT at Lynebank Hospital around November 2009.  The GP’s entry dated 2 July 2010 noted that the pursuer had experienced panic attacks while doing his boat covering work at Rosyth docks.  Dr Hancock’s letter of 25 March 2011 noted that the pursuer was then happy with the techniques needed to cope with the PTSD.  He was then discharged from psychology services.  However, his PTSD did not resolve at that time and indeed got worse.  Dr Rodger’s opinion was that the PTSD had resolved by mid‑2012 i.e. about three years following the accident.  However, the pursuer continued to suffer some of the symptoms of PTSD;  see 6/6 at 3.01 and 3.03.  Dr Rodger described the on-going psychiatric issues as “not insignificant”.  Further in the evidence of the pursuer and his wife both spoke to an avoidance of customer contact, the nature of the change in his personality and the effect of that on his private and family life.  The pursuer had largely lost the enjoyment of recreational sailing, which had been his major passion and interest at the time of the accident.  He continued to suffer residual symptoms of PTSD.  The PTSD was “lying dormant” and the pursuer would get a resurgence of symptoms to a clinical level if he were to attempt to go back to work on a boat in the ERRV fleet of which the Grampian Conqueror was a part.

[47]      In relation to the duration of the PTSD and the time of resolution, he submitted that Dr Rodger had the advantage of examining the pursuer in January 2012 and was better placed than Dr Taylor to comment on the diagnosis at that time.  Ultimately, it seemed that Dr Rodger and Dr Taylor agreed on the pursuer’s restrictions at work as a result of the on-going “subclinical” symptoms.

[48]      The pursuer’s valuation of the claim for solatium was £30,000 with 75% ascribed to the past and 25% to the future.  He sought interest on the past element at the rate of 4% per annum.  In support of this figure counsel relied upon the following authorities:  Lawson v Scotdem Limited 2000 SLT 543;  Collins v First Quench Retailing Limited 2003 GWD 5‑126;  Wilson v Pyeroy 2000 SLT 1087 and the Judicial Studies Board Guidelines JC16(b) and (c), JC20(d) and (g) and JC34. 

[49]      As regards past loss of income Mr McNaughton accepted that having regard to the evidence led no such loss was established until after 31^st May 2014.  Thereafter the loss was £1336.40 with interest amounting to £5.63 (to 9 July 2014).

[50]      With respect to future loss of income and disadvantage on the labour market counsel relied on the evidence of two witnesses.  First, Mr McDonald, a witness he described as having long experience in relation to offshore work particularly regarding, employment opportunities, pay and conditions.  He had conducted extensive research specifically directed to employment opportunities and rates of pay with respect to the defenders and the wider ERRV fleet.  His figures on net earnings was not challenged by the defenders.  The second witness he relied on was Mr Mollinson, an accountant who prepared the pursuer’s annual accounts relative to the pursuer’s boat covering business which he had carried on prior to joining the defenders and since the accident.  Counsel on the basis of this evidence submitted the position was this:  but for the accident the pursuer would now be earning £21,654.39 net per annum (see the evidence of Mr McDonald).  His residual earning capacity was £9,000 net per annum (see the evidence of Mr Mollinson).

[51]      Counsel went on to submit that a multiplier/multiplicand approach was appropriate in this case and he directed my attention to Wells v Wells 1999 1 AC 345 per Lord Lloyd of Berwick at 379F to G as applied by Lord Reed in Wilson v Pyreoy 2000 SLT 1087 at 1091i.  The multiplier that was sought was based on the 7^th edition of the Ogden Tables.  The pursuer was treated as employed and not disabled both pre‑accident and post‑accident i.e. no change in multiplier pre and post‑accident.  The multiplier was calculated from the age of 50 (that is from the pursuer’s birthday on 17 August 2014) and was 10.05 giving a figure for future wage loss of £127,176.62. 

[52]      The next head of claim was for services.  The pursuer suffered orthopaedic injuries sufficiently serious to keep him off work for six months.  Within that period he needed help from his wife.  She had given evidence to say that she did everything for him within that period.  In particular, she assisted him with washing, bathing, feeding, housework and childcare.  On the basis of the foregoing counsel submitted that a reasonable figure to apply would be around three to four hours daily at £6.00 per hour.  On that analysis the services claim amounted to £3942.86 and interest of £1561.97. 

[53]      Finally there was a minor claim on the basis of a single outlay namely the purchase of a shower stool and special brushes to help with bathing during the pursuer’s initial post‑accident recovery period.  The cost of these was estimated at £50. 

[54]      The pursuer’s final motion was for decree in the sum of £126,396.22 with interest to run at 8% from the date of decree, together with expenses of process to date.  That represented the pursuer’s full liability valuation of £168,530.18 under deduction of a discount of 25% for contributory negligence. 

 

Reply for the defenders
[55]      Mr Jamieson also favoured me with written submissions.  A substantial section of these written submissions related to the issue of the credibility of the pursuer’s version of events surrounding the incident.  Mr Jamieson broadly submitted that this evidence made no sense when viewed against the evidence of Snaizder and the cox’n.  I do not require to recite the submissions as in the end of the day Mr McNaughton did not seek to put forward the pursuer’s version of events as the factual matrix of the incident and rather ended up adopting Mr Snaizder’s evidence.

[56]      Mr Jamieson’s position was this:  if the evidence of Snaizder, the cox’n and Captain Bruce was accepted (and Captain Bruce’s evidence had not been contentious) then:

1.         The captain and the cox’n were familiar with passing the sample kits between the vessels.

2.         There was communication between the vessels about whether or not the daughter craft was to be recovered hence the reason Captain Bruce was on the bridge. 

3.         It was decided that the daughter craft need not be recovered on that day.  The fact that it could have been recovered did not make the decision not to recover it an incorrect decision.  The weather conditions were towards the end of operational limits of the daughter craft but not outwith the actual limits in which it could properly operate. 

4.         There were no concerns about the approach towards the mother craft taken by the daughter craft.  If this evidence was accepted it was therefore hard to see what the cox’n could be blamed for.  If the coxn’s evidence was accepted it was hard to see what he could be said to have done wrong. 

5.         There was communication about the exercise within the wheelhouse.  What against that backdrop could be said to be unplanned?

6.         In summary there was ample evidence which was both credible and reliable that supported the contention advanced on behalf of the defenders as regards the pursuer’s complaint that the transfer was unknown to him and unplanned.  The method of transfer was known to the pursuer.  To suggest otherwise was on the basis of the factual matrix absurd.  It was planned in so far as it was necessary for the exercise to be carried out. 

7.         The process of coming alongside the boat was not an unusual operation;  the generic risk assessment in 6/16 of process would cover that aspect of the exercise namely the coming alongside.  He asked the question:  What would the defenders be actually assessing in the circumstances of this case?  The fact that the pursuer would disobey orders and put himself in a situation he knew to be dangerous?

[57]      It therefore followed that if the evidence of Snaizder, the cox’n and Captain Bruce was accepted there was as a matter of fact adequate consideration of what was involved in the task and adequate communication of what parties involved were to do.  Again what is involved in the task?  The daughter craft was to go alongside the mother craft and a sample kit was thrown over towards the aft deck.  What was inherently dangerous about that?  Leaving aside Mr Biles’ observations that everything at sea is potentially dangerous it was his submission that what had been described as happening at the time of the transfer Mr Biles himself had accepted was a viable operation.  There was no risk to the pursuer if he remained aft.  He put himself in a position of risk.  Mr McFarlane suggested that this was a relatively straightforward operation and excluding hindsight under reference to 6/16 he could detect nothing untoward in what was done. 

[58]      The evidence of Mr Duthie who conducted the health and safety investigation was also of relevance in this matter.  6/16 was a summary of a report in a PowerPoint presentation.  The purposes of the investigation was to see what lessons could be learned and not to attribute blame as such. 

[59]      A significant issue so far as Mr Duthie was concerned was that he could not understand why the pursuer moved from a safe to an unsafe position.  Even if the bag had landed on the roof before the pursuer moved there was according to Mr Duthie no need to take up the position chosen by the pursuer.  There was a ladder to the roof on the other side of the cabin wheelhouse.  According to the cox’n there was no urgency in retrieving the bag from the roof.  There was simply no need for the pursuer to do what he did.  According to everyone the pursuer as an experienced seaman, albeit a trainee, with the level of experience he claimed should have known this.  As was clear form the personnel file he offered no explanation as to why he did what he did although even in that under reference to the meeting that took place in Leven in 2009 it did record that he appeared to accept that he took up a bad position, without explaining why he did so.

[60]      According to Mr Duthie the occasion of this incident was the first time in 10 years the captain of the mother craft had had a lost time incident.  There had been no such incident since the mother craft had taken to sea in or around 2006.  Throwing sample kits across was according to Captain Bruce a well understood means of transferring the kit.  On the basis that there had been no incident before, Mr Jamieson submitted, that this highlighted the importance of the pursuer’s own actions in understanding the true cause of the incident. 

[61]      Even assuming that fault could be attributed to the defenders whether under statute or common law, and it was his position that on the evidence it could not, it could not be said that this was an accident waiting to happen.  The accident was truly caused by the pursuer.  The clear evidence in this case was that had he remained on the aft deck he would not have sustained the injury he did.  The pursuer’s own actions were the effective cause of the accident. 

[62]      Against the background of those submissions he submitted that I should find the pursuer solely to blame for the accident.

[63]      Mr Jamieson then turned to the issue of causation.  He submitted that the case of Boyle v Kodak Limited, properly understood did not decide that if there was a breach of regulations or duty on the part of the defenders the matters rested there and that really all the court should be concerned about was the issue of contributory negligence.  It was his position that to adopt such an approach would be to misapprehend what Boyle v Kodak Limited was truly about and said on the matter of causation particularly under reference to the opinion of Lord Reed. 

[64]      It was rather his position that looking to the above case not only must it be shown that there was a breach of the regulations it must also be shown that the breach was a cause of the accident.  Accordingly even it was accepted that there was any breach on the part of the defenders the question of causation would still be a live one:  what has that breach got to do with the accident?  It was his position that in the circumstances of this case any breach which had occurred, simply had nothing to do with the accident.  In support of his position in relation to the issues of causation he referred me to a number of cases:  Canadian Pacific Railway Company v Frechette 1915 AC 871;  Norris v W Moss & Sons Limited 1954 1 WLR 346;  Rushton v Turner Brothers Asbestos Company Limited 1960 1 WLR 96 and McWilliams v Sir William Arrol and Co Limited and another 1962 1 WLR 25.

            He submitted that the following could be discerned from these cases:

• That it was a matter for the court to decide what the effective cause of the accident was taking a common sense approach.
• There had to be a connection between the accident and the alleged breach.
• The approach adumbrated in each of the cases made it clear that there had to be something done by the pursuer which would enable the conduct of the pursuer to be categorised as inappropriate.
• The solution should be simple.The more complex the issue became for either party the harder it would be to elide from blame.
• Where there was a clear defining line between the acts complained of that suggested that the causes were not co-dependent.

[65]      He then submitted that if a common sense approach was taken to the evidence in this case it demonstrated that: 

• The pursuer’s conduct was inexplicable on his own account.If the alternative version of events was accepted his behaviour was all the more extraordinary because the pursuer moved from what on the evidence was a safe position to what he ought to have known was an unsafe position.
• Why he should have done that remained a mystery to the defenders particularly where there was no need to do so.
• Had he remained where he originally was the evidence was quite clear that he would not have suffered any injury at all even assuming a breach of some sort.
• The effective cause of this accident was accordingly his own actions.
• The defenders accordingly should not be found liable on the basis of pursuer’s own folly for which they were not responsible.

[66]      Turning to the issue of contributory negligence it was his position that if he was wrong in his submission that the accident was entirely caused by the fault of the pursuer then on any view substantial contributory negligence on the part of the pursuer should be found.  He did not understand the principle of contributory negligence to be a matter of dispute, rather what was in dispute was the extent of any award.  His position as regards the level of contributory negligence was this:  under reference to the submissions he had made on sole fault any award of contributory negligence should be extremely high and approaching 100%.

 

Quantum
Solatium
[67]      Mr Jamieson accepted that the dispute between the parties in relation to this head of damage was confined to a single issue namely:  how long it had taken the PTSD to resolve.  The pursuer contended that this happened in 2012 based on Dr Rodgers' evidence, the defenders say that it would have resolved in 2011 based on the evidence of Dr Taylor.  He submitted that it should be borne in mind that both experts depended to a large extent in reaching their views on the history provided by the pursuer and it was his position that given what he said should be the court’s non‑acceptance of the pursuer’s position regarding the circumstances of the incident his evidence on the damages aspect of the case should be approached with a degree of caution. 

[68]      There was also the evidence of Mr Foxworthy, orthopaedic consultant, in which it was suggested that on-going symptoms relating to the pursuer were attributable to the accident although that position appeared to have been departed from.  Against that whole background it was suggested than an appropriate award would be £15,000 all of which was attributable to the past and which should bear interest at the rate of 4% per annum.  In support of that figure Mr Jamieson referred to the following Judicial Studies Board Guidelines JC16(d), JC34(e) and JC20(g) and Lawson v Scotdem Limited.

[69]      Turning to the issue of future wage loss his position was that the pursuer’s approach based on the Ogden Tables was unwarranted and was highly speculative with a very real risk, if the court utilised such an approach, that the pursuer would be overcompensated. 

[70]      In support of the foregoing he directed my attention to McGlone v Greater Glasgow Health Board 2012 [CSOH] 190 and in particular paragraphs 313 to 321 therein.

[71]      It was his submission that the use of a multiplier/multiplicand approach would not be appropriate in the present case given the uncertainty and what he submitted had been insufficient proof on the issue of earnings to allow a calculation to be made. 

[72]      As regards to the uncertainty surrounding the calculation he referred to the following:

• The pursuer’s evidence should be treated with great caution.
• He was on any view fit for employment with the exception of working on an emergency rescue vehicle which of itself was a very small part of the North Sea oil sector and that had been the case since 2012 at the very latest.
• There was no evidence as to the ages normally worked until in this sector involving ERRV’s.Mr McDonald for all his experience could not state what it would normally be.He only spoke to three employees and then specifically only in relation to questions relating to income. He assumed the normal retiral age would be 66 but then went on to rather contradict himself by suggesting that there was a problem in the industry in respect of recruitment given people leaving at 55 and that younger people were now coming in.It was his position that in truth Mr McDonald did not know what the normal retiral age would be and so was in no position to say when the pursuer would have retired.
• The pursuer’s position was that there were no problems with the boat covering business causing him to go offshore in the first place simply did not square with the account or explanation he gave to the clinical psychologist Dr Keith (see 6/3/35 of process). He submitted that if he was not going to be frank in relation to that no reliance should be placed on his evidence whatsoever.
• According to the pursuer his wife was involved in the business in name only.That simply was not the position spoken to by his wife who seemed in her account to have taken on all tasks relating to the business.Accordingly there was at best a confused picture as to how this business was being run.
• According to both him and his wife he lacked motivation and had problems dealing with customers. This was simply not the position he explained to Dr Taylor whom the pursuer left with an entirely different perception as to how he was coping in relation to business.
• In any event the pursuer attributed his problems with the business to the accident yet even by 2012 on the evidence he had made a full recovery.
• In a sense what the pursuer appeared to be suggesting was that despite being fit for work, there was no indication he had made any effort to secure any other type of employment, against a background where he had had a variety of jobs such as a bus driver which on any view would generate more income than he appeared to be getting from the business.
• In fact he did very little as regards employment.He never contacted the defenders and had taken no other steps regarding employment but wished to be fully compensated for loss and relied on a business with a low income which is merely ticking over.
• When looking at the accounts, which had been agreed, no clear pattern emerged from which his earning capacity could be determined in the future.There was of course reference to a one off contract from the MOD but there had been no invoices produced other than documents which showed the position as regards contracts or of the business going forward, nor had order books been produced.
• Any effort to establish what he may or may not have earned in any year going forward would be a matter of speculation.According to the pursuer he had plenty of work and months of orders on the books.The accountant Mr Mollinson had only fairly recent experience of the pursuer’s business, the accounts were unaudited and he still had no complete information in respect of certain tax years.Against that background he submitted that the accountant was ill-equipped to undertake any analysis of what the future of the business might be.What was going to happen was mere speculation.More significantly sales increased dramatically in 2010 bearing in mind the pursuer had been unable to work fully during that period and continued to rise until 2013.
• Over the period it really came to this:that there could be no certainty about the business and for that reason and having regard to all the uncertainties he submitted that if I were minded to make any award it should be a modest one to reflect what was truly on the medical evidence no more than a loss of employability claim relating to work within the ERRV fleet if not only in relation to close standby vehicles.
• In summary he submitted that an award of six months’ salary might be considered appropriate, however, it was the primary position of the defenders that by 2011 he had fully recovered and even on his own evidence he was able to work and accordingly no such award should be made.

[73]      With respect to services it was accepted that if I found the defenders liable then a claim for services did arise.  It was stressed that what services the pursuer had required was not clear in that the pursuer and his wife had not spoken to the same extent of services being required, the extent of the services which the pursuer’s wife spoke to being much greater than that spoken to by the pursuer.  Mr Jamieson also referred to the fact that the pursuer was able to drive within a fairly short space of time following the accident (September 2009) and was able to resume his covers business within about four months.  It was against that background that any award for services should be made.

 

Discussion
The factual matrix
[74]      As I have referred to when dealing with the pursuer’s submissions, Mr McNaughton’s position developed in the course thereof and his final position was that I should accept Mr Snaizder’s evidence relative to the circumstances surrounding the accident and reject the pursuer’s evidence to the extent I have already set out.  I observe that if Mr McNaughton had not made this concession I would, without difficulty, have held the evidence of Snaizder and the cox’n regarding the circumstances of the accident to be credible and reliable and the pursuer’s evidence regarding this matter not to be credible and reliable. 

[75]      Mr Snaizder and the cox’n were in all real senses independent witnesses who gave coherent and consistent evidence on these matters.  They were both impressive witnesses.  On the other hand the pursuer’s evidence on these matters, made no internal sense and was completely at variance with the evidence of these two impressive witnesses.  In addition the manner in which he gave his evidence on these issues was not impressive. 

[76]      Accordingly the factual matrix upon which I have proceeded to consider the legal issues was this:

• The pursuer was specifically directed by the cox’n to go onto the aft deck to wait for the transfer of the sampling kit.
• He remained there until the daughter craft was alongside the mother craft.
• He did not move from the aft deck onto the sponson until after the bag containing the sample kits had been thrown onto the wheelhouse roof.
• He went onto the sponson in response to the said bag landing on the roof.
• He was not surprised by the mother craft and daughter craft being alongside each other when he was on the sponson.
• He did not for the reasons given by Mr Snaizder, hear Mr Snaizder’s direction, given as he moved towards the sponson, not to go onto the sponson.

 

The legal issues

[77]      At the outset of my consideration of the issues I would indicate I have adopted an approach to the regulations in line with the analysis of the Lord Ordinary in Cairns v Northern Lighthouse Board and another.

[78]      The first question on the basis of the evidence was this:  was there a breach of the regulations by the defenders?  I am persuaded that there was a breach of regulations 5 and 7, namely:  the method of transferring the oil sampling kits used at the material time created an avoidable risk and a proper risk assessment of the task being undertaken at the material time would have identified that risk.

[79]      The procedure followed required the daughter craft to come more or less alongside the mother craft.  It was not a matter of contention that particularly in sea conditions as they were on the day of the accident, which conditions were not unusual for the North Sea, there was an inherent risk of the two vessels when more or less alongside moving in such a way that they came together and created a pinch point of the type which was created at the time when the pursuer received his injuries.

[80]      Generally, in considering the issue of risk to members of the daughter craft’s crew when carrying out a task such as this one the defenders had to have in mind not just the reasonably careful man but as observed by Lord Rodger in Robb v Salamis at paragraph 52:

“the man who is inattentive to such a degree as can normally be expected and that the circumstances which can reasonably be expected by an employer ‘include a great deal more than the staid, prudent, well regulated conduct of men diligently attentive to their work’.”

 

[81]      Thus I am persuaded that the defenders had to have regard to the issue of a member of the crew of the daughter craft acting in the way in which the pursuer did on this occasion.  Clearly the actings of the pursuer in entering a pinch point show inattention, a lack of care and a lack of prudence.  The defenders, however, had to have this sort of behaviour in mind when assessing risk.  There was clearly a risk of a member of the daughter craft crew acting in the way which the pursuer did.  His actings although admittedly negligent were of a reasonably foreseeable type.  The risk arising from a member of the crew entering a pinch point during the transfer of sampling kits was clearly avoidable.  It was avoidable by taking the following steps:  the storage of the sampling kits on the daughter craft, as is now done, according to the uncontested evidence of Captain Bruce and Mr Snaizder.  That would have prevented the necessity of the daughter craft coming alongside the mother craft and thus creating a pinch point.  Such a straightforward measure would have entirely obviated the risk which resulted in the accident to the pursuer.  There was no question of such a step not being reasonably practicable. 

[82]      Mr McFarlane’s position relative to such a change in procedure was that it was with the benefit of hindsight that it could be seen and therefore was of no relevance.  However, this misses the point, as Lord Hope in Robb v Salamis observes at paragraphs 8, 24, 25 and 29 (earlier quoted)  the obligation on the employer is to anticipate situations which may give rise to accidents and to identify risks to the health and safety of workers if things go wrong.  The situation which happened in the instant case was a clear and foreseeable risk.  Equally the recovery of the daughter craft in accordance with the steps set out in the risk assessment in 6/16 of process would have avoided the risk.

[83]      In addition to the foregoing steps, which would have avoided the creation of the above risk, a further method of avoiding it would have been the dropping of the bag by the crew of the mother craft into the sea and its recovery once the mother craft had moved away.  According to the evidence this was a method which had been used.   This would have prevented the necessity of the daughter craft coming so close to the mother craft that a collision between the two could occur.

[84]      Further, if the transfer was to be achieved by the dropping of the bag from the mother craft on to the daughter craft then a direction that the crew should remain in the cabin under the direct control of the cox’n until the daughter craft had moved away from the mother craft would have avoided the foregoing risk.  The crew going out onto the aft deck prior to the two vessels coming alongside and remaining there while alongside was to no purpose.  The bag could be recovered from the outside of the daughter craft wherever it landed after the two boats moved apart.  The keeping of the crew in the cabin would have prevented any member of the crew doing, what was reasonably foreseeable, namely:  going onto the sponson while the two ships were alongside one another.  This thus avoided the risk of someone being caught within a pinch point. 

[85]      Moreover, in 6/16 of process, the defenders own investigation of the accident, there is a further method of avoiding or at least materially reducing the said risk, namely:  the erection of “signage or physical barriers on the daughter craft to reinforce dangers of standing between daughter craft cabin and the mother vessel.”

[86]      I am satisfied on the basis of the foregoing that there was a breach of regulation 5.  The duty imposed on the defenders is strict, subject only to the defence of reasonable practicability.  No such defence of reasonable practicability was made in this case.  There was a risk as above set out.  The defenders did not avoid said risk or take any action to reduce it.  

[87]      Turning to regulation 7, the risk assessment, I am persuaded that no suitable and sufficient assessment of the risks of the transfer of sampling kits or transfers generally of items from the mother boat to the daughter craft had been carried out.  The defenders relied on, what they described as, the generic assessment set out in 6/16 of process at page 10.  This was not a suitable and sufficient assessment as it covered launch and recovery of the daughter craft by the mother craft.  This is an entirely different situation from the transfer of items from the mother craft to the daughter craft.  That is implicitly accepted in the defenders own investigation report 6/16 of process where this is said under the heading “root causes”:  ”procedures were generic and not specific for transfers of equipment” (see:  page 14).  This generic risk assessment at no point considered how items should be transferred from mother craft to daughter craft.  It gave no consideration to what should have been the starting point in a risk assessment with respect to transfer of items, namely:  how such transfers in specific circumstances could be avoided in order to avoid boats coming alongside, such as by storing sample kits on the daughter craft.  It gave no consideration to the circumstances in which a daughter craft should be recovered in order to carry out a transfer.  It gave no consideration to where members of the crew of the daughter craft should stand when items were being transferred in order to avoid risks.  It gave no consideration as to what part of the daughter craft items being transferred should be directed or whether the item should be put in the sea to be picked up by the daughter craft, in order to avoid risks.  It gave no consideration to the question of the necessity of a daughter craft coming alongside the mother craft in order to transfer items.  Some of what was said within this risk assessment has relevance to the task of transfer;  for example that part which deals with the creation of the lee by the mother craft, however, that is all.  I observe that, one of the matters it looks at is the wearing of harnesses by crew members during the carrying out of the recovery of the daughter craft.  This was not something according to the evidence which anyone considered in relation to the transfer task.  Had this been considered and such directions issued it would have materially lessened the risk of the pursuer entering the pinch point as it is likely he would have been instructed to wear a safety harness, which was the case during launch and recovery operations according to the generic risk assessment.  The risk assessment in 6/16 of process is directed towards consideration of a completely different situation, namely:  the launch and recovery of the daughter craft.  It is not a generic risk assessment, rather it is a risk assessment limited to launch and recovery.  It is neither suitable nor sufficient for the transfer of items between such ships.  It is I believe noteworthy to contrast the highly detailed and comprehensive risk assessment at 6/16 of process with the total lack of risk assessment in relation to the type of task being performed by the crew of the daughter craft at the material time. 

[88]      In relation to these matters I prefer the evidence of Mr Biles to that of Mr McFarlane.  I do not for the foregoing reason accept Mr McFarlane’s position that the generic risk assessment was sufficient.  His evidence that the keeping of the sampling kits on the daughter craft, the system adopted since the accident was of no relevance, I do not accept, this is clearly relevant.  Had matters been properly risk assessed the material risk would have been identified and avoided.

[89]      For the above reasons I am persuaded there was a breach by both defenders of regulation 7.

[90]      With respect to the case under regulation 12 directed against the second defenders I am not persuaded that there was a breach of this regulation.  The pursuer on the evidence was a very experienced seaman who was well aware of the dangers of going into a pinch point and had been given significant training by the defenders.  On the version of events I have accepted regarding the accident he moved to the pinch point knowing how close together the ships were and knowing that that was an unsafe position to take up, but moved automatically to get the bag from the roof.  In these circumstances I am unable to identify what training or instruction he could have been given which would have prevented or materially lessened the likelihood of this accident.  I am persuaded that the accident could only have been avoided by the taking of the steps I have identified in relation to regulations 5 and 7.

[91]      In addition as regards to this regulation the evidence did not support the conclusion that the system of transfer that day was changed from a previous system.  This was ultimately accepted on behalf of the pursuer by his counsel.  Accordingly there was no breach of regulation 12(2)(b)(iv).

[92]      Turning to the issue of causation I am satisfied that on a proper reading of Kodak v Boyle the pursuer must establish a breach of a regulation and a causal link between that breach and his injuries.  Therefore, in the context of the submissions in this case, the second legal question I have to ask is this:  even if there was a breach of the regulations nevertheless on the basis of the evidence was the sole effective cause of the pursuer’s injury his own negligence?  Or put another way:  has the pursuer established a causal link between the breach and his injuries?

[93]      It is not a matter of dispute that the pursuer’s behaviour at the relevant time was negligent and materially contributed to the accident.  However, was his negligence the sole effective cause?

[94]      I have considered the various authorities on this issue to which I was referred by counsel for the defenders and believe the following propositions can be taken from them:

• Whether a breach by the defenders was an operative cause or the sole effective cause was the acting of the pursuer is always a question of degree.
• A breach by the defenders must be an operative cause and not merely one of the circumstances in which the accident happened in order for liability to be established.
• The primary negligence must be so mixed up and come so close together with a contributing negligence in order for it to be an effective cause.

[95]      Applying the above to the circumstances of this incident I conclude that the breaches by the defenders were effective causes of the injuries to the pursuer.  There is in my view a causal link between the breaches and the injuries of the pursuer which is not broken by the actings of the pursuer. 

[96]      The essential difference between the actings of the pursuer in the present case and the actings of each of the claimants in the cases relied on by counsel for the defenders is this:  the pursuer in the instant case did not with his eyes open and with time for consideration act in the way he did.  Rather he acted, in putting himself into the unsafe position, namely:  the pinch point, in the heat of the moment and in an automatic and unthinking response to the bag landing on the roof.  That was what Mr Snaizder thought he had done and I had no difficulty in accepting his evidence on this matter.  This is not an incident where the actings of the pursuer are inexplicable as was the situation in the cases relied upon by the defenders counsel.  Mr Snaizder’s evidence explains his actings.  Such an acting does not in my opinion break the chain of causation:  a sampling kit landed on the roof which was reasonably foreseeable given the movements of the craft, it was a clear and foreseeable risk that a crew member situated on the aft deck would in automatic response to that happening seek to immediately recover it.  As I have referred to earlier, the aim of the regulations is to protect the worker who is not prudent and who makes an error of the type which the pursuer made in the instant case.  The reason he was able to make this error flowed from and was mixed to such an extent with the defenders breaches that the identified breaches of regulations were among the effective causes of the injuries to the pursuer.  The breaches of the regulations are more than the mere landscape within which the pursuer’s negligence took place.  In the cases to which counsel referred the breaches were mere landscape:  in Canadian Pacific Railway Company v Frechette counsel for the claimant due to the voluntary nature of the claimant’s actings, in full knowledge of the danger had to accept that the claimant had assumed the risk voluntarily;  in Norris v W Moss & Sons the breach of the regulations was no more than a reason why the plaintiff did certain work in a manner which was “fantastically wrong” and for which he could give no satisfactory explanation, in Rushton v Turner Bros:  the plaintiff cleaned a machine in motion, which was unfenced in breach of the Factories Act but in contravention of a clear instruction not to.  In McWilliams v Sir William Arrol even if a safety belt had been provided, in terms of the Factories Act, the pursuer would not have worn it.  In each of these cases there is a breach but it is not causative, the breach is no more than the landscape.  In the instant case the identified breaches allow the pursuer who has acted in a sudden and unthinking manner to be injured.  These are effective causes.  The pursuer’s behaviour was undoubtedly careless and negligent, however,  given the context in which it happened it could not I am persuaded be categorised as inexcusably careless such as to breach the causal chain and cause him to be entirely to blame for the accident.

[97]      I am also persuaded for the reasons I have already given relative to the breach of regulation 5 that the second defenders were also at fault at common law.  In so far as the vicarious liability case based on the fault and negligence of the cox’n was not abandoned and it seemed to me a reasonable inference from the pursuer’s counsel’s submissions that it was no longer being insisted upon I hold that it was not established.  On the evidence of Captain Bruce there was nothing wrong with his approach and, positioning.  The cox’n gave proper instructions to the pursuer, in so far as he could.  This was a case where the failures were directly attributable to the second defenders.  Given the method of transfer he was instructed to use that day the cox’n did nothing wrong.

 

Contributory negligence
[98]      Moving onto the issue of contributory negligence I have sought to take a broad approach and to consider the relative blameworthiness of the parties and to consider the relative extents to which the parties acts or omissions have contributed to the injures.  I have also borne in mind the observations of Lord Hoffman in Reeves v Commissioner of Metropolitan Police 2000 1AC 360 at 371

“the Law Reform (Contributory Negligence) Act 1945 requires the court to apportion not degrees of carelessness but the relative responsibility of the two parties, and then an assessment of responsibility must take into account the policy of the rule, such as that of the Factory Act, by which the liability is imposed.”

 

[99]      With respect to the pursuer I observe that:

• He knew the two boats were alongside each other when he moved.
• He had been ordered to the aft deck by the cox’n.
• No order was given to go onto the sponson.
• He was aware of the danger of going between the two craft.
• His actings, as were accepted at all hands, were a breach of common sense and of basic rules of good seamanship.
• However, and mitigating the above factors is his movement was a sudden and unthinking movement in response to the bag landing on the roof.Regard, as was said by Lord Wright in Caswell v Powell Duffryn Associated Collieries Limited has to be had to the circumstances in which an accident happened.

The circumstances in the instant case were that the pursuer was at sea, it was noisy, both ships were moving about a great deal and the pursuer had no lengthy period of time to think about what he was about to do.  In these circumstances there has been inattention to his own safety.  However, his actings took place in the above circumstances and not in a court, where as in this case hours and hours of thought and analysis have been poured into considering the actions of the pursuer, which took place in a split second.  Further it is in my judgment important not to employ 100% hindsight to the circumstances facing the pursuer.  The defenders’ counsel’s esto position that if I were not to find the pursuer entirely to blame for the accident a finding of somewhere around 100% contributory negligence should be made, in my view was misconceived in that it had no regard to the above circumstances of the accident and the policy behind and purpose of the regulations which I have held to have been breached. 

[100]    Looked at in the context of the above circumstances I am satisfied that the greater degree of blameworthiness has to be attributed to the defenders.  I would attribute responsibility as follows:  60% to the defenders and 40% to the pursuer.  I am persuaded that a higher figure than that suggested by counsel for the pursuer must be attributed to the pursuer given the extent to which his actings confounded common sense and good seamanship.

 

Damages
Solatium
[101]    The first head of damage is solatium.

[102]    The physical injuries sustained by the pursuer were a matter of agreement.

[103]    The main issue in relation to solatium related to when the pursuer recovered from PTSD.  Dr Rodger’s position was 2012, Dr Taylor’s expert position was 2011.  I have decided that I prefer Dr Rodger’s evidence on this issue.  In my judgment he had the significant advantage in deciding upon this issue of having examined the pursuer at the relevant time.  The defender’s expert on the other hand had not had an opportunity to examine the pursuer at that particular point.  In considering the issue of diagnosis of something like PTSD I believe a personal examination is a major advantage.

[104]    There were slight differences between the evidence of Dr Rodger and Dr Taylor as to any continuing symptoms arising from his PTSD from which the pursuer might be suffering.  However, it appeared to me in the end of the day that the differences were not of any significance.  Their view was that the continuing problems were such that they did not form a basis for a continuing diagnosis of PTSD.  Both believed that there would be a recurrence if he were to go back to his old job working on a ship which was part of the ERRV fleet.

[105]    As I have said the principal dispute in valuation in relation to this head of damage related to the pursuer’s PTSD.  In my view the pursuer’s valuation of this element of the claim was somewhat too high.  Equally the defenders valuation of this element was somewhat too low.  As regards the other elements I did not believe the parties were far apart in their valuations.

[106]    Overall having regard to the various authorities to which I was referred and taking into account the above observations I believe a figure of £22,000 would be appropriate as an award for solatium.  I believe that 85% of said award should be referable to the past and 15% to the future and that interest should be applied to that part ascribed to the past at the rate of 4% per annum, giving a figure for interest of £3927. 

 

Past loss of earnings
[107]    The pursuer made a very small claim for past loss.  It was accepted on the evidence that there was no loss to 31 May 2014.  Thereafter the pursuer claimed loss based on the differential between earnings as a cox’n and his residual earnings.  For reasons which I detail when looking at future loss I do not believe that an appropriate approach and I accordingly do not make an award under this head.

 

Future loss of earnings
[108]    The primary dispute between the parties was whether I should adopt a traditional multiplier/multiplicand approach or a Blamire/loss of employability approach. 

[109]    I am persuaded that there are such evidential uncertainties in this case that it would not be appropriate to follow a multiplier/multiplicand approach. 

[110]    The uncertainties appear to me to me to be as follows:

• With respect to the pursuer’s future the evidence of Mr McDonald was that but for the accident the pursuer would more likely than not have been in a position to be a cox’n by March 2012.Accordingly it was submitted on behalf of the pursuer that the calculation for future loss of earnings should be on the basis that he would have been from that date a cox’n.However, no sufficient evidential basis for that assertion was put forward.No detailed evidence was advanced as to why this pursuer should have advanced to the rank of cox’n.It was accepted by Mr MacDonald that it was not automatic for a person to advance to the position of cox’n, rather it was based on merit. Further no evidence was put forward with respect to the following:the number of cox’ns working in the ERRV fleet; how long these persons had taken on average to reach that position; how many had applied for cox’n positions and failed; what openings there were for those qualified to be cox’ns to take the position of cox’n.There appeared to me to be no proper and sufficient evidential basis for Mr McDonald’s assertion regarding the pursuer becoming a cox’n.The pursuer in evidence said he wished to become a cox’n, however, Mr McDonald’s evidence it appeared to me did not take the pursuer much further.I do not believe in the absence of such evidence that it is appropriate to follow the approach argued for by the pursuer’s counsel.
• Mr McDonald also baldly asserted that the pursuer would work as a cox’n until the normal retiral age, namely:66.However, no evidence was put forward by Mr McDonald for this assertion.In his submissions Mr Jamieson made a number of criticisms in relation to this assertion and all of them in my view had some merit.
• With respect to the figure for residual earnings the pursuer contended that this should be a figure arrived at by Mr Mollinson, the pursuer’s accountant, which figure was based on the pursuer’s earnings from his boat covering business.Mr Mollinson described the boat covering business as ticking over and not possible to be sustained.The figure for residual earnings spoken to by him was very low, namely: £9,000 per annum.The pursuer is someone who on the medical evidence is physically fit to carry out any employment.In relation to his psychological condition he is fit for all employments except employment at sea on board an ERRV.He is a very experienced sailor, who has also worked as a bus driver and a post office worker.Against that background it does not appear to me to be appropriate to take the earnings of a business which is no more than ticking over and may not in fact continue, given its extremely low level of income as his residual earnings figure.I think it is very unlikely against that background that his future residual earnings are properly indicated by his earnings from this business.Rather against that background I believe his residual earnings would be materially higher than this.I am satisfied that the likelihood is that in the future the pursuer will take up some other form of employment which would produce a net income materially greater than the residual income from said business or would take up employment in addition to running his boat covering business which would produce a materially higher net income than the residual figure put forward.In addition there is some merit in the points put forward by Mr Jamieson regarding the accounts.The figure given for residual earnings by Mr Mollinson seemed very much a stab in the dark and little more than speculation.As regards his future earnings I am persuaded there were material uncertainties.Thus the figure for residual earnings is another material uncertainty.

In addition to the above I agree with Mr Jamieson that, given the pursuer’s lack of credibility and reliability regarding his evidence with respect to the circumstances of the accident, his evidence regarding damages has to be approached with some caution.  Overall and having regard to the further points made by Mr Jamieson relative to future loss I am not persuaded I should adopt a multiplier/multiplicand approach.

[111]    Overall I believe the uncertainties are such that a Blamire approach to the figure for the future is a more appropriate one.  I believe a multiplier/multiplicand approach would have materially overestimated his future loss.  Principally in relation to the future he has been denied continued work as a qualified seaman on an ERRV and the possibility that he would have been promoted and worked as a cox’n on an ERRV.  Against that whole background I believe that an appropriate figure for loss of future earnings would be a figure of £40,000.

 

Services claim
[112]    The defenders’ counsel made certain criticisms of the pursuer and his wife’s evidence in relation to this head of damage, which broadly came to this:  there were certain inconsistencies in their evidence.  Overall I am of the view that their evidence in relation to this issue was broadly consistent and I believe that any differences there were in their evidence were of the type that one would expect.  I believe that they were credible and reliable in relation to this matter.  I believe that the figures for the number of hours and the rate used by the pursuer is appropriate I accordingly award the figure sought in the course of submissions by the pursuer (as updated for passage of time since submissions).

[113]    I also make an award of £50 under the heading of cost and outlays.

 

Summary 
[114]    In summary I award the pursuer the following:

Solatium	£22,000
Interest	£3,927
Past loss of Wage	Nil
Future loss (Blamire Award)	£40,000
Section 5 claim	£3942.86
Past interest	£1,650
Misc Costs	£50.00
Total	£71,569.86
Less 40% contributory negligence	£28,627.92
Award	£42,941.94

           

 

 

 

 

 

 

Disposal

[115]    I find in favour of the pursuer to the above extent.  I reserve all questions of expenses.