OUTER HOUSE, COURT OF SESSION [2013] CSOH 22
PD2121/11	OPINION OF LORD DRUMMOND YOUNG in the cause ROSEMARY CAIRNS Pursuer; against (FIRST) NORTHERN LIGHTHOUSE BOARD and (SECOND) CALYPSO MARINE LTD Defenders: ________________

Pursuer: Di Rollo, QC, MacIver; Thompsons

First Defenders: Charteris; HBM Sayers

Second Defenders: Murray; Simpson & Marwick

7 February 2013

[1] The pursuer is employed by the first defenders as a finance assistant. On occasion she requires to carry out an audit of fixed assets belonging to the first defenders. This may involve visiting lighthouses to check the assets located there. On 9 October 2009 the pursuer was instructed to travel to the Isle of May Lighthouse in order to check the fixed assets that were held there. Arrangements were made for her and two others, her husband, Thomas Cairns, who is an area maintenance engineer employed by the first defenders, and Michael Conoway, an electronic technician employed by the first defenders, to travel to the Isle of May in a boat belonging to the second defenders. In the course of the journey the pursuer suffered an injury to her lower back, and the present action arises out of that injury.

Evidence
Evidence of fact
[2] The pursuer's evidence was to the following effect. In the course of her work as a finance assistant she was required on occasion to check fixed assets in lighthouses. This could require a journey by boat, but she received no training in that connection. She had been on a boat in the course of her duties on one previous occasion, in Oban Bay. Shortly after she returned from holiday, her manager suggested that she should visit the Isle of May the following Friday, 9 October 2009, to prepare a list of fixed assets in the lighthouse there. She was to be accompanied by her husband and Mr Conoway. Both her husband and Mr Conoway visited lighthouses regularly in the course of their work and were well used to travelling by small boat. On the date in question the pursuer and her husband travelled to Pittenweem, where they were to be picked up by a boat belonging to the second defenders. The boat in question, named the "Taeping", was a rigid inflatable boat (generally known as a "RIB"), a craft about 30 feet long. At Pittenweem the first defenders' employees were met by Stewart Taylor, the managing director of the second defenders, who had come with the boat from North Queensferry. The pursuer and the other passengers were issued with boat suits and lifejackets. The pursuer was concerned about the drop down the quayside wall to get into the boat; access was by a ladder fixed into the wall. Because of her concern a rope was provided, which gave the pursuer greater reassurance. On the boat the helmsman (Mr Taylor) was at the stern, and forward of him there were three forward facing benches. The pursuer, her husband and Mr Conoway sat on the middle bench, with the pursuer between the other two. The bench towards the stern was occupied by two other persons brought by the second defenders, Leanne Fisher and Stuart Fisher; the forward bench was unoccupied. By way of safety instructions, once the passengers were on the boat Stewart Taylor told the pursuer that she could hold the bar attached to the seat in front. Nothing was said to the pursuer about the weather conditions, but Stewart Taylor had said to her husband that the weather was "A bit lumpy but OK".

[3] The boat then left the harbour, and the pursuer stated that as it did so the sea became "bumpier". She noticed that the waves were getting bigger, and that the boat moved up and down more. By about twenty minutes into the journey or thereby the sea was getting distinctly higher, the boat went up on one of the waves, quite high, and then banged down on the water; the effect she described as "sharp and hard". The same thing happened again, quite quickly. She felt something happen to her back on the first occasion and again on the second. I should observe that when she gave this evidence she seemed noticeably upset. The speed of the boat had increased after leaving the harbour but had not decreased as the waves increased in height; she was sure of that. The second time that the boat banged down she screamed. She thought that her husband had put his hand up to warn the helmsman and the boat stopped. She told her husband that she could not move her back. She was told to lie on the seat. She was in pain and felt sick. The boat then proceeded slowly back to Anstruther, where she was met by an ambulance and taken to hospital in Dundee. After the accident she had been off work for 15 months.

[4] The pursuer's medical records contained two entries relating to the accident. What is apparently the earlier entry (no 6/6 of process, page 12) is a note in the following terms:

"[Patient] is coming in in a [RIB] called [Taeping ]... [Patient] supine on a bench athwartships on a boat in Anstruther Harbour .... [Patient] was visiting a lighthouse for work when the boat was caught in choppy seas at 11.30. The boat fell approx 5ft in waves x2. [Patient] was sitting and felt 2x impacts, causing pain to lumbar spine ...".

A further entry, written by the doctor who treated her at 1.50pm, read as follows (no 6/6 of process, page 3):

"Travelling on small boat -- hit trough x 2 -- landed heavily on seat each time (i.e. bounced off seat). Immediate pain in lumbar spine".

The former note was clearly prepared while the pursuer was still on the boat. The pursuer was in no position to inform the emergency services, and her husband gave evidence that he had not done so. It therefore seems clear that the source of the information must have been either Stewart Taylor or the latter's brother, Roy Taylor. The two notes provide excellent corroboration for the pursuer's own account, as they are nearly contemporaneous.

[5] The pursuer was adamant that the only safety instructions that she received was an instruction to hold the bar on the seat in front; nothing else had been said, not even about the lifejacket. Nothing was said about the weather that should be expected, nor about what the sea might be like or what to do if the weather should change. She also stated that there was no urgency to visit the lighthouse that particular day. She repeated that in cross-examination by counsel for the first defenders. In cross-examination by counsel for the second defenders, the pursuer stated that she had not been told anything about moving with the boat as it moved on the sea, or taking weight on her legs, or bracing herself against the movement of the waves. Nor had she been told that if she were unwell or uncomfortable she should raise her hand to stop the boat.

[6] The pursuer's husband, Thomas Cairns, gave evidence that he had travelled in the second defenders' boats previously when he visited lighthouses. The weather that day he described as looking "a wee bit choppy outside the harbour". The decision as to whether to proceed was that of the boat operator. When he met Stewart Taylor at Pittenweem he had asked about the weather, and received a reply "A bit lumpy but it's fine". Nothing else was said about the weather. He described how the pursuer had been concerned about the method of boarding the boat and how they had been seated on board. When they set off it was very calm in the harbour, but became choppy outside. After about fifteen minutes the sea became noticeably worse; the waves were getting higher, and were three or four or five feet above the passengers on the boat. The weather seemed to worsen, and the boat was thrown about more. It was thrown up on two occasions. Because of the combination of the rising motion of the boat on a wave and the lower trough that followed the wave, the boat came down with a slap; he described this as "quite a bang". That happened twice in about 12 to 15 seconds. Following the second of these events he had put his hand up because the pursuer had let out a yelp. The boat then came to a stop. Stewart Taylor and Roy Taylor had come forward, and Mr Cairns said to them that the pursuer had hurt herself. She looked in shock, and seemed pale and terrified. It was decided that it was necessary to go back, as the pursuer had hurt her back. She lay down on one of the seats. It took approximately 25 minutes to get back because the boat was going much more slowly. The result was that it rode the waves, moving up and down with them. Prior to the accident there had been no moderation of the boat's speed. When the boat reached Anstruther an ambulance was available. The Coastguard had been contacted by, he thought, either Stewart Taylor or Roy Taylor; I observe that that would be consistent with the first note referred to in paragraph [4].

[7] In cross-examination Mr Cairns stated that the decision whether to proceed was always that of the boatman. He was asked whether any safety information had been given, and he stated that instructions were given to keep hold of the bar on the seat in front if necessary. Lifejackets were distributed on the boat. When cross-examined about the voyage itself, he stated that the waves were 3 to 4 feet high outside the harbour; these were some of the heaviest seas that he had been in in a RIB. He accepted that after the incident he had complimented Stewart Taylor about the way he had handled matters after the incident. He had travelled in the second defenders' boat subsequently.

[8] Evidence for the second defenders was given by Stewart Taylor, their managing director. He was the skipper of the RIB on which the pursuer was travelling when she sustained her injury. The defenders operated a number of boats in the general area of the Firth of Forth, carrying out a wide range of commercial functions. They regularly provided a boat for the first defenders; for that purpose they used the Taeping, a 9m RIB. On 9 October 2009 Mr Taylor had taken the Taeping from Port Edgar to Pittenweem without difficulty. The weather forecast was that winds would reach force 4 to 5, and possibly 6, on the Beaufort scale. The sea conditions had been calm as far as Inchcolm, but the wind had picked up after that. At Pittenweem the three passengers were taken on board. Mr Taylor stated that he had explained to the passengers that the weather would be fresh, with winds to force 4 or 5 blowing from the south-east. The pursuer had been apprehensive about boarding and Mr Taylor had arranged for her to have the use of a safety line. He stated that he had given her and the other passengers a safety briefing, covering lifejackets, how to sit on the boat, safety equipment, what conditions were likely to be like and finally an instruction that if anyone was not happy they should put their hand up. In relation to how to sit on the boat, Mr Taylor stated that he had told passengers that they should remain seated and hold the grab handles on the seat in front, and that these could be used for support and bracing. He further stated that he had told passengers that posture was especially important, as there might be some bad weather, that handholds should be used and that passengers should take the motion of the boat with their legs. In this respect his evidence differed from that of the pursuer (paragraph [5] above). It also went beyond the terms of the written briefing sheet produced by the second defenders (no 17/24 process). On this matter I prefer the evidence of the pursuer. I found her to be an entirely credible and generally reliable witness, and the safety briefing was a new event for her; that means that its features were more likely to be remembered by her than by Mr Taylor, for whom safety briefings were no doubt routine.

[9] After leaving the harbour at Pittenweem, Mr Taylor stated, he picked his way through the waves, constantly looking at them. After he had got clear of the confused water around the harbour he put the boat "on the plane", which means that only the stern remained in the sea, with the bow out of the water. He was operating the throttle all the time to regulate the speed. By this stage the boat would be travelling at 17 or 18 knots. At that speed, when the boat came to the crest of a wave, he would throttle back so that it slid down into the trough, and then increase the throttle to ascend the next wave. During the descents the boat would be taken back to 5 or 6 knots. The boat would be kept as level as possible, to avoid bumps. At this point I should observe that I was not wholly convinced by this part of Mr Taylor's evidence. On the basis of the expert evidence, what he was describing was clearly best practice. When he stated, however, that the boat was travelling at 17 or 18 knots when ascending the waves and throttle back to 5 or 6 knots on a repeated basis on the way down, that appeared to be contrary to the expert evidence, which indicated that once a boat was on the plane it was necessary to maintain a speed in excess of 14 or 15 knots to maintain that position. Decelerating to as little as 5 or 6 knots on a repeated basis was not an option. Moreover, Mr Taylor's evidence that he varied the speed by 12 knots or so was quite at variance with the evidence of the pursuer and her husband. Had there been such a variation I consider it extremely likely that it would have been noticed by the passengers, but it was not. On this matter I prefer the evidence of the pursuer and her husband.

[10] As the journey proceeded Mr Taylor became aware that the pursuer had put her hand up because something was wrong. He slowed and stopped to assess the situation. The pursuer had a pain in her back, and consequently he called the coastguard, although he did not recall telling them what was wrong with her. He had not recalled anything unusual in the movement of the boat. He had not seen any passenger thrown into the air. He was asked about "slamming", when the boat comes out of the water and slams into the next wave. He was asked if he had noticed any slamming before the pursuer was hurt, and he replied that he had not noticed "slamming as such", but there had been some bumps. My impression at this stage of his evidence was that he was being deliberately guarded about what had happened.

[11] In cross-examination, Mr Taylor was asked about the weather forecast for the day (see paragraph [16] below). He agreed that it was incumbent on him as the skipper to check the forecast, and he stated that he did so. He accepted that the forecast was that there would be a south easterly wind force 4 or 5, increasing to force 6 or 7; at the latter levels, the sea state was likely to be rough or very rough. Mr Taylor stated that he would not embark on the trip if the sea state were very rough (force 7), or, ultimately, that he would not do so if the sea state were rough (force 6). He also accepted, eventually, that any decision to turn back because of the sea state was his. He was asked about the safety briefing given to the passengers on 9 October 2009, and he accepted that he had not asked the pursuer about her previous experience of trips in RIB's. He further accepted that the briefing sheet used for passengers (no 17/24 process) said nothing about bracing or using the legs to bear weight, but it did mention the use of handrails for support. It was suggested to him that, if it said nothing about bracing or using the legs to take weight, it was inadequate, but he would not accept that suggestion. I noted that he appeared in difficulty in this part of his evidence. In my opinion, where there is a significant risk that seas will be rough, it is an obvious precaution to tell passengers about bracing and using the legs to bear weight.

[12] Mr Taylor was also cross-examined about the speed of the boat, and maintained that he had slowed periodically from 17 or 18 knots down to 5 knots. When asked if this would be obvious, he replied that the change was not abrupt. In any event, the speed did not always drop from 18 to 5 knots. I noted that I found these answers unconvincing. Mr Taylor reaffirmed that the boat had not slammed that he had noticed, although several times it had gone from a wave to a trough. When referred to the more detailed note in the pursuer's medical records (no 6/6 of process, page 12), he stated that that was not what happened, as the boat never fell 5 feet. Had that happened, everyone would have felt it. At this point I noted that his answers appeared evasive, and I am satisfied that the evidence of the pursuer and her husband is to be preferred on this aspect of the case.

[13] Mr Stewart Taylor's brother, Roy Taylor, also gave evidence. Although he travelled as a passenger, he had been involved in the second defenders' business and had considerable experience of small boats. He stated that he had not heard the safety briefing given by his brother, as he was sitting towards the stern. Nevertheless there was a standard safety briefing given to passengers, which would include how to use the handrail, and possibly how to use the legs to cushion against movement. He described the wind as being south-easterly and "not too bad": force 4 or 5, with a swell of 1.5 to 2m. The speed of the boat in the open sea would vary, going reasonably slowly but speeding up if it were calm. The maximum speed would be 15 to 16, or perhaps 18 knots. At times the boat would slow to pass over waves, going down to 5 to 7 knots. This would be a gradual process, which can happen gently. I observe that I find this somewhat improbable, as it would involve the boat's going on and off the plane. Roy Taylor remembered the injury to the pursuer. The boat stopped, and the pursuer was upset because of a sore back. He had contacted the coastguard. He could not recall anything remarkable about the movement of the boat. In cross-examination he accepted that, if the boat had slowed from 18 to 5 or 6 knots that could not be missed. He disagreed that the boat had come down hard on two occasions; the skipper would be trying to avoid that. He disagreed with the report in the pursuer's medical records (no 6/6 process, page 12) that the boat fell 5 feet twice. He had not been aware that the pursuer was lifted from her seat; if that had happened, it might mean that the boat was driven erratically, but that had not been the case.

[14] Miss Leanne Fisher, a friend of Stewart Taylor, was also a passenger in the boat and gave evidence. She mentioned the safety briefing; this involved discussion about the weather and how to sit in the boat, using the seats and the safety bar and holding on with both hands. The briefing would also include the need to remain seated at all times, not standing up. She did not think that any other specific details had been given. Something had also been said about the likelihood that there would be waves which would cause the boat to move. The speed of the boat had been relatively constant, but with waves it was desirable to alter the speed as necessary to deal with wave conditions. Miss Fisher also gave evidence about the voyage itself. At one point a hand had gone up to stop the boat, and it slowed; Stewart Taylor had asked to check that everyone was happy to continue, and the pursuer's husband had said that they should continue. Shortly after that Miss Fisher heard the pursuer scream; a hand went up, she thought from the pursuer's husband, and the boat slowed. The pursuer had a pain in her back. Miss Fisher had not felt the effects of the waves, nor any abrupt movement. Nor was she aware of any slamming.

[15] The final witness of fact was Michael Conoway, who worked for the first defenders as an electronic technician. It was clear that he had no real recollection of the safety briefing, but as he had travelled in small boats many times before this is quite understandable. He recalled being told that the weather conditions might be "kind of bouncy". During the voyage, his impression was that the speed of the vessel had been changing rather than constant. It had been "bouncy" before the pursuer's hand went up, and on two occasions the boat had bounced up and down, just before the hand went up.

Weather conditions
[16] A meteorological report was available for 9 October 2009; this was an agreed production (no 6/12 process). The inshore forecast issued by the Meteorological Office at 5am that day was for winds from the south-east, force 4 or 5, increasing to force 6 or 7, and decreasing subsequently. The shipping forecast for the Forth was for a south-easterly wind, force 4, increasing to force 5 to 7. A modern statement of the Beaufort Scale was appended to the report. Force 4 is a moderate breeze, and the sea state is described as "slight". Force 5 is a fresh breeze, the sea state being described as "moderate". Force 6 is a strong breeze, with the sea state described as "rough"; it is stated that "Large waves begin to form; while foam crests are more extensive everywhere; probably some spray". Force 7 is a near gale, and the sea state is described as "very rough"; it is stated that "Sea heaps up and white foam from breaking waves begins to be blown in streaks along the direction of the wind". The meteorological report set out the actual weather experienced on the morning of 9 October 2009 in the Pittenweem area. The wind was at Beaufort Scale 4 to 5, with the highest gusts about 30mph. Offshore, those winds were likely to be at slightly stronger speeds (Beaufort Scale 6). Those wind conditions would have resulted in a sea state involving probable wave heights in the range of 2 to 3 m, resulting in moderate to large waves with white foam crests and the risk of spray. It was further stated that the weather was "not significant" at the time, the only notable element being the wind.

Expert evidence
[17] The pursuer and the second defenders both led expert evidence, the former from Mr Ian Biles and the latter from Mr James Stevens. Mr Biles is a Master Mariner and Naval Architect. He works for Maritime Services International, a firm of consulting naval architects, master mariners, marine engineers and marine surveyors. His specialist field is that of a master mariner and naval architect where marine vessels and their associated structures overlap with operational aspects. He clearly had great experience in this field, and had produced a significant number of publications. Mr Stevens is a marine consultant specializing in small craft. Between 1995 and 2000 he was the National Coach responsible for the Royal Yacht Association Powerboat scheme, and between 2000 and 2010 he was the RYA Chief Examiner responsible to the Marine and Coastguard Agency for the administration of all RYA certificates of competence, including powerboat qualifications. He has continued to act as an examiner and instructor, in particular in the field of small powerboats. Like Mr Biles, he plainly had great experience in his field and has been responsible for a substantial number of publications, dealing in particular with powerboats.

[18] Much of the expert evidence was not in dispute. This related in particular to how a RIB operates, how it should be handled, and the risk of "slamming". The "Taeping" was a RIB, a rigid inflatable boat, 9 m in length. The bow had a deep V shape, and the seating arrangement had strong handholds at chest level. The helmsman is at the stern. In operation, the RIB begins flat on the water, but as the speed increases the bow lifts, a phenomenon known as planing. This enables the boat to travel faster, and typically a RIB will travel at about 17 knots or thereby when it is planing. When the speed reduces, the bow will come down on to the water again and the boat will operate in a manner more typical of other craft. When the boat is planing it will respond more quickly to the steering. The helmsman of a RIB should watch the sea closely and choose his course through the waves, constantly adjusting the throttle to provide power through the waves and to avoid taking off when the other side of the wave is reached (Mr Stevens' report, paragraphs 5.2.1 and 5.2.3). Usually the helmsman will use one hand to steer and keep the other on the throttle. The course through the waves should be chosen carefully, and the speed should be altered so that the boat does not leave the water. If the boat does leave the water, or if the boat reaches the edge of a wave too quickly, the bow is likely to lift clear out of the water and then to fall rapidly and hit the water, producing a "slamming" effect. This is a particular risk with larger waves.

[19] As to the handling of the boat on the day in question, Mr Biles stated, on the basis of the weather forecast indicating a wind speed of force 5 or above, that there would be a probable mean wave height of 2 m and a probable maximum wave height of 2.5 m; handling of small craft in such conditions would take particular care in terms of seamanship and boat handling skills (report, paragraph 3.3.9). If the boat was varying its speed between 5 knots and 17 knots, it would be constantly accelerating and decelerating rapidly and alternating between displacement (fully in the water) and dynamically supported (on the plane) modes of operation. If the vessel had in fact been moving at 5 knots when meeting the waves, the incident that caused the pursuer's injury would probably not have occurred. In Mr Biles' opinion, for the vertical accelerations to be sufficient to cause a passenger to experience the feeling of being lifted from their seat it would be necessary for the vessel to be travelling on the plane, at a speed in excess of 10 to 12 knots. If slamming occurred, that would not be good seamanship. To drive the boat at a speed such that significant vertical acceleration is sufficient to cause slamming suggested to Mr Biles that the vessel was not being driven with proper care and attention (report, paragraphs 3.3.15-3.3.18).

[20] Mr Stevens, by contrast, expressed the view that, on the basis of statements given by Stewart Taylor and Leanne Fisher, the handling of the boat by Mr Taylor complied with the appropriate standards. These were set out in the Royal Yachting Association Power Boat Handbook (2005), which states that driving upwind usually entails trimming down and driving up the face of the wave; the helmsman should ease off the top of the wave to ensure that the boat does not take off; he should then accelerate down the back of the wave, speeding up to raise the bow as the trough is reached, and then drive up towards the next crest (report, paragraph 5.2.3). Mr Stevens accepted, however, that slamming could occur when boats were driven too fast over waves (paragraph 5.2.4). In my opinion it is quite clear that slamming occurred in this case. In support of that, not only the evidence of the pursuer and her husband was relevant, but the near contemporaneous accounts found in the medical records (paragraph [4] above).

[21] Evidence was led from the two experts as to the adequacy of such risk assessments as might have been carried out by the two defenders. In the event, however, counsel for the pursuer did not found on the absence of a risk assessment as a ground of fault. In any event, the pleadings do not contain any averment to the effect that no adequate risk assessment was carried out, nor that the failure to carry out a risk assessment was a cause of the harm suffered by the pursuer. At the date of the accident, the risk of back injury from travelling in a RIB does not appear to have been known at a level where it might come to the attention of either of the defenders. In describing the risk Mr Biles made reference to papers dealing with slamming and slamming modes: one was an article in Professional Boatbuilder Magazine in April/May 2001, and the other was a paper presented to a conference on ship design, safety and operation conducted by the Royal Institution of Naval Architects in 2005. He also referred to a report published by the Marine Accident Investigation Board in May 2009 on an incident that had taken place involving injury to a passenger on board a RIB known as the "Celtic Pioneer" in August 2008. These indicated that there was some risk, but they were specialised publications and in my opinion it cannot be supposed that either of the defenders ought to have been aware of what they contained.

[22] Evidence was also led from both experts as to the safety briefing that the second defenders gave the pursuer. The form of briefing normally given by the second defenders was available in documentary forms of production (no 17/24 of process). This included an instruction to remain seated at all times while the boat was moving, and in rough conditions to hold on to handrails for support, sitting upright with the passenger's back against the seat. It was also indicated that movement on the boat could be quite abrupt in rough weather. Mr Biles expressed the opinion that those instructions were too general, and did not deal with the possibility of injury through rough seas. In particular, they did not deal with the force-related hazard that occurred in this case. The combination of speed and sea state can cause significant force impacts, which can have a major effect on passengers. For that reason it is essential that passengers should be instructed to sit keeping some weight in the legs and some on the arms in such a way that the body is braced against the sudden movements of the vessel (report, paragraph 3.2.11). Mr Stevens, by contrast, relied on Stewart Taylor's statement (report, paragraph 5.1.12) to the effect that the pursuer would have been told to hold on to the handle in front of her and to brace herself and use her legs to take some of the weight. I have already indicated (paragraph [8] above) that I prefer the evidence of the pursuer on this matter. For this reason I have rejected Mr Stevens' views on this matter, because they were based specifically on the evidence of Mr Taylor. I accept the evidence of Mr Biles that, especially in rough conditions, a safety briefing ought to have covered the need for passengers to brace themselves, with some weight in the legs and some on the arms, in order to protect against injury.

[23] When counsel for the pursuer sought to lead evidence relating to the safety briefing, an objection was taken by the second defenders on the ground that there was no record for such evidence. Counsel for the pursuer responded that the need for an adequate safety briefing was clear from the terms of regulation 5 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, the principal statutory provision founded on by the pursuer, which was referred to in the pursuer's pleadings. In addition, the second defenders had averments to the effect that the pursuer was given a safety briefing, which included instruction on the use of handrails, and that she was instructed to hold the bar in front of her and move with the movements of the boat. In all the circumstances I consider that there is sufficient on record to allow this line of evidence. For the reasons set out in the last paragraph I hold that the safety briefing given by the second defenders was not adequate.

Legal analysis
Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, regulation 5
[24] The pursuer's primary case is based on regulation 5 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (SI 1997/2962). Regulation 5, so far as material, is in the following terms:

"(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 content 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;

...

(2) Without prejudice to the generality of the [duty] under paragraph (1), the matters to which those [duties] extension and include in particular -

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

...

(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;

... ".

[25] Regulation 3 provides that the 1997 Regulations "shall apply to all activities of workers on United Kingdom ships", subject to certain exceptions which are not relevant to the present case. It is a matter of agreement that the "Taeping" was a United Kingdom ship. Regulation 2 provides a number of further definitions. "Worker" is defined as "any person employed by an employer under a contract of employment". "Employer" is defined as "a person by whom a worker is employed under a contract of employment". It is accordingly clear that the pursuer was a "worker" for the purposes of the Regulations. It is likewise clear that the first defenders were an "employer"; for the purposes of the Regulations it is immaterial whether the employer in question was the operator of a vessel or the worker was a member of the crew of the vessel. This is perhaps hardly surprising, as in certain fields of activity it is very common for the persons working on a vessel to have a range of different employers and to be engaged in a range of tasks, most of which are unrelated to the vessel as such. Examples of this are commonplace in the North Sea oil and gas industry. Matters are taken further by regulation 4(2). Regulation 4(1) provides that it shall be the duty of every employer and of any other person upon whom the duty is imposed by the Regulations to comply with the provisions of the Regulations. Regulation 4(2) then provides:

"Where a person in paragraph (1) does not have control of the matter to which the regulation relates because he does not have responsibility for the operation of the ship, then any duty imposed by that regulation shall also extend to any ... person who has control of that matter".

In the present case, the first defenders were the pursuer's employer but did not have responsibility for the operation of the "Taeping"; that was a matter under the control of the second defenders. The effect of regulation 4(2) is accordingly that the employer's duty also extends to the second defenders.

[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 Ltd, [2009] 1 WLR 1, a case on sections 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 such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks 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 paragraph 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 risks to their health and safety .... [The duties] prescribe 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 statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it".

In paragraph 18, after an analysis of remarks of Lord Reid in Nimmo v Alexander Cowan & Sons Ltd, 1967 SC (HL) 74, Lord Hope states that "It is the result that these duties prescribe, not any particular means of achieving it".

[27] For the second defenders it was contended that the 1997 Regulations did not confer a civil right of action on the pursuer. The 1997 Regulations were made under section 85 of the Merchant Shipping Act 1995, which permits the Secretary of State to make such regulations as he considers appropriate for securing the safety of United Kingdom ships and persons on them. In the Health and Safety at Work Act 1974, section 47(2) provides that a breach of any duty under health and safety regulations which causes personal injury shall be actionable except in so far as the regulations provide otherwise. The 1995 Act had no similar provision. Counsel submitted that Parliament knew of the technique adopted in the 1974 Act and legislated differently in the 1995 Act. Indeed, in the 1995 Act, there is no mention of civil liability. Consequently the 1997 Regulations had criminal consequences only, and did not affect the parties' civil rights and obligations. Reference was made to a number of authorities: Couch v Steel, (1854) 3 E and B 402; Atkinson v Newcastle Waterworks Co, (1877) LR 2 Ex D 441, at 447, where the last case was doubted; Todd v Adam, [2002] CLC 1050; and Ziemniak v ETPM Deep Sea Ltd, [2003] 2 CLC 998. For the pursuers it was submitted that the 1997 Regulations were the successor to the Merchant Shipping (Health and Safety: General Duties) Regulations 1984 (SI 1984/408); there was clear Scottish authority that the latter Regulations gave rise to civil liability: Mearns v Lothian Regional Council, 1991 SLT 238; MacLean v Caledonian MacBrayne, 2000 SCLR 625; 2000 SC 74. Furthermore, in a case where legislation was enacted for the benefit of a particular category of persons, such as those on board United Kingdom ships, the general presumption was that civil liability should exist: Groves v Lord Wimborne, [1898] 2 QB 402; Black v Fife Coal Co Ltd, 1912 SC (HL) 33.

[28] In my opinion it is clear that the 1997 Regulations give rise to civil liability. Couch and Atkinson must be read together, and the latter case indicates (Lord Cairns LC at 2 Ex Div at 448) that the cases cannot be taken as laying down the broad proposition that, whenever a statutory duty is created, any person who can show that he sustained injuries from the non-performance of that duty can bring an action for damages against the person on whom the duty is imposed. The approach of the courts to breaches of statutory duty was, however, subsequently developed in two further important cases, Groves v Lord Wimborne and Black v Fife Coal Co Ltd. In Black, Lord Kinnear stated (at 1912 SC (HR 45):

"If the [criminal] duty be established, I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson ... solves the question. We are to consider the scope and purpose of the statute, and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mineowners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention. Therefore I think it is quite impossible to hold that the penalty clause detracts in any way from the prima facie right of the persons for whose benefit the statutory enactment has been passed to enforce the civil liability".

That statement of principle is paralleled by similar explanations in Groves (at [1898] 2 QB 407 per AL Smith LJ, 411 per Rigby LJ and 416-417 per Vaughan Williams LJ), and it has informed the construction of nearly all legislation governing health and safety at work. In general, the duties imposed in such legislation are regarded as conferring civil as well as criminal liability.

[29] The foregoing approach is strengthened even further in legislation based on European Union directives. The 1997 Regulations are founded on Council directive 89/391/EEC of 12 June 1989. The preamble to the Regulations narrates that the powers under which they are enacted include those conferred by section 2(2) of the European Communities Act 1972, as well as those conferred by section 85 of the Merchant Shipping Act 1995. The explanatory note states, in paragraph 1, that the Regulations "give effect as respects shipping activities in the United Kingdom" to a number of council directives, including Council directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. That directive provides, in article 5.1, that the employer "shall have a duty to ensure the safety and health of workers" in every aspect related to the work. The directive makes it clear that civil liability is involved. Thus it is inevitable that the 1997 Regulations impose civil as well as criminal liability.

[30] Moreover, in a number of Scottish cases the Regulations that preceded the 1997 Regulations, the Merchant Shipping (Health and Safety: General Duties) Regulations 1984, were interpreted as imposing civil as well as criminal liability. The wording of regulation 5 of the 1997 Regulations differs in some respects from that of regulation 4 of the 1984 Regulations, but in both cases the basic duty is to "ensure, so far as is reasonably practicable, the health and safety" of employees/workers and other persons aboard ship. The similarity of the wording leads inevitably to the conclusion that cases on the 1984 Regulations also apply to the 1997 Regulations. In Mearns v Lothian Regional Council, supra, Lord Sutherland stated (at 1991 SLT 339):

"Under [regulation(2)(a) of the 1984 Regulations] it is the duty of the defenders to make provision for systems of work that are, so far as reasonably practicable, safe. Counsel for the defenders accepted that this would be a higher duty than that imposed at common law which would be to take reasonable care to provide a safe system of work. Under this regulation the duty to provide a safe system of work is an absolute one qualified only by reasonable practicability".

In the later case of MacLean v Caledonian MacBrayne, supra, it was accepted, apparently without argument, that the 1984 Regulations gave rise to civil liability.

[31] I was referred to two other cases. In Todd v Adam, supra, the Court of Appeal held that a breach of the Fishing Vessel (Safety Provisions) Rules 1975 did not give rise to civil liability. The 1975 Rules, which were enacted under a provision of the Merchant Shipping Act 1970 that was replaced by section 121 of the Merchant Shipping Act 1995, prescribed requirements for the hull, equipment and machinery of United Kingdom fishing vessels. Neuberger J, in the Court of Appeal, listed a number of criteria that tended to indicate that civil liability was not intended by section 121 (at [2002] CLC 156-1057, paragraphs 22-26). First, the sanction for contravention of the rules was specifically provided, in the form of criminal penalties. That was an indication, although not definitive, that the legislature did not intend a civil remedy to be available. Secondly, the obligation in section 121 was not expressed as being that of any specific person; it merely provided that a fishing vessel of a particular nature should satisfy the rules concerned. Thirdly, section 121 gave the Secretary of State a very wide and flexible power to exempt vessels from the ambit of any rules, and that tended to support the proposition that there was no intention to impose civil liability for breach; otherwise the results would be arbitrary. Fourthly, the rules promulgated under section 121 were related to the certification provisions of the 1995 Act, which tended to indicate that breach of the rules was not intended to give rise to civil liability.

[32] Neuberger J further drew an analogy (at [2002] CLC 1058, paragraph 29) with regulations governing the construction and use of motor vehicles; with regulations of the latter sort it had been held that it was unlikely that the legislature intended by enacting such regulations to impose on the owners of vehicles an absolute obligation to have them roadworthy in all events even in the absence of negligence. The legal position under the Factories Acts was distinguished (paragraphs 32 and 34); under the Factories Acts, the duty in question was short and simple, and is contained within the legislation. There was no power to exempt particular factories or types of factory from the statutory obligation, as with the certification procedure applicable to fishing vessels. Those features of the Factories Acts apply generally to all the legislation governing safety at work, although of course under the more recent European-inspired provisions the duties are generally set out in statutory instruments, such as the 1997 Regulations. If the approach in Todd is correct, a critical distinction would appear to exist between legislation that deals with the construction and equipment of a vehicle or vessel, especially if there are provisions for partial exemption or for certification, and legislation that deals with the safety of employees, where the duty is normally imposed directly on the employer. If that is so, in the former type of case civil liability will usually not be imposed, for the reasons discussed in Todd. In the latter type of case, by contrast, in accordance with the authorities going back to Groves and Black, civil liability will usually be imposed. The 1997 Regulations fall into the latter category. On that basis, I am of opinion that Todd is plainly distinguishable from the present case.

[33] In Ziemniak v ETPM Deep Sea Ltd, supra, the ground of action was a breach of the Merchant Shipping (Life Saving Appliances) Regulations 1980. A suspension chain holding a lifeboat had failed causing the lifeboat to plunge into the water below, throwing the plaintiff into the water and causing him to sustain severe injuries. It was held that the 1980 Regulations conferred a civil right of action on the injured employee; Todd was distinguished. Kay LJ expressed the view (at [2003] 2 CLC paragraph 49) that not all the distinctions drawn by Neuberger J between the Fishing Vessel Construction Rules and the factories legislation could be sustained, especially in view of the approach to the law taken in Groves. I am bound to say that I have some sympathy with Kay LJ on this matter. It is sufficient for present purposes, however, to hold that legislation that deals directly with the health and safety of employees is not affected by the decision in Todd. Instead, the traditional approach taken in cases such as Groves and Black applies.

[34] Counsel for the second defenders sought to distinguish Ziemniak on a number of grounds. First, the 1980 Regulations did not provide a criminal penalty. This, however, seems to me to be a factor of relatively limited significance, especially in the light of the manner in which legislation dealing with the health and safety of employees has been construed following Groves and Black. Secondly, counsel submitted that Kay LJ was in error when he held (at paragraph 41) that in enacting the 1980 Regulations Parliament must have intended to provide a similar level of protection to those at sea as those employed in factories; the legislation was different and used different language. In my opinion that criticism is not correct. The critical point is that the legislation under consideration in Ziemniak and the general factories legislation are concerned with the health and safety of employees and others, rather than the state of a vehicle or vessel. In the context of the health and safety of employees, there exists a long tract of authority to the effect that legislation will generally be construed as creating civil liability.

[35] Thirdly, counsel submitted that Kay LJ was in error when he stated (paragraph 48) that Parliament "must have been aware of the approach of the courts where there was no reference to civil liability"; the approach of the courts to legislation should rather be regarded as a haphazard process, and it can be difficult to predict the decision of the court in relation to any particular legislation (paragraph 29, quoting Clerk & Lindsell on Torts (18th edition, 2000) at paragraph 11-02). As an abstract proposition that is no doubt correct. Nevertheless, the legislation that had to be construed in Ziemniak, and also the legislation that must be construed in the present case, occurs in the context of health and safety, where the courts have generally taken a consistent line for more than a century. Fourthly, counsel for the second defenders referred to regulation 26 of the 1997 Regulations, which provides that in any proceedings for an offence the onus of proving a defence of reasonable practicability should rest on the accused. If the Regulations were intended to confer a civil right of action, it was surprising that the same question of onus was not addressed expressly. The duty in regulation 5 is of course qualified by the words "so far as is reasonably practicable". If the onus of establishing the defence that a precaution is not reasonably practicable is placed on the employer in criminal proceedings, it is not a particularly difficult task of statutory interpretation to conclude that the same must apply to civil proceedings, even though it is not expressly stated. Consequently I do not consider that this criticism is well founded.

[36] Fifthly, counsel for the second defenders submitted that Ziemniak concerned an employee of the operator of the ship. In the present case, however, the pursuer was not an employee of the operator of the vessel; her employer had merely arranged for her use of the vessel in the course of her employment. If Parliament did intend to confer a right of action on employees of an operator for breach of the legislation, it is unlikely that it also intended to confer a right of action on those who were present on board a vessel but in the employment of another. In my opinion this submission is incorrect. To understand why this is so it is necessary to consider the policy that underlies European Union legislation in the field of health and safety at work. The 1997 Regulations are, as indicated above, designed to implement such legislation, in particular the Council directive 89/391/EEC: see paragraph [29] above. European Union legislation dealing with the safety of those at work is, generally speaking, founded on the principle of strict liability. Historically, this can be explained in part by the fact that many of the member states already had regimes based on strict liability in relation to employer's liability. That was largely true of the United Kingdom, in accordance with the principles explained in Groves and Black. In other member states, for example France, the principle that delictual liability should be strict rather than negligence-based was even more widespread.

[37] There are important economic reasons for taking such an approach, and indeed for making the protection afforded by such legislation applicable to all employees, whether or not they are employees of the person in breach of the legislation. The underlying economic theory is that the cost of workplace accidents is part of the cost of production of a good or service, and the most efficient way of absorbing that cost is by passing it to the ultimate consumer as part of the price of the product. In this way the cost can be insured against efficiently by the employer, with the premiums being reflected in the price. This is much more efficient than expecting employees to insure against the possible cost of injury through an accident at work; such a course would require a multiplicity of policies, and would not cater well for employees on short-term contracts, or who simply chose to spend their income on other things. Moreover, strict liability has a further advantage over fault-based liability in that it acts as an incentive to reduce the incidence of hazardous activities; the employer knows that if the risk of injury eventuates he will be liable, and thus he is encouraged to take steps to reduce the frequency with which the risk is incurred. Strict liability also encourages employers to do their utmost to ensure the least possible risk to employees' health and safety. These economic reasons can perhaps be supplemented by the moral argument that those who consume a good or service should pay a proper price for it, including the cost of compensating those injured in the production of the good or service in question. For all these reasons, strict liability has become the norm in European Union-inspired legislation governing health and safety at work.

[38] The specialty of the present legislation is the fact that, on the construction advanced by the pursuer, liability would attach to the operator of a vessel even in cases where the person injured is not one of his employees. When the underlying rationale for strict liability is considered, however, it is clear that this is a necessary part of the general scheme of the legislation relating to ships and smaller vessels. In the first place, the advantages of strict liability include a rigorous approach to the avoidance of risk, and in a vessel the avoidance of risk applies equally to the employees of the operator and others who are on the vessel in the course of their work. The policy is concerned with conditions on the vessel, rather than the position of any particular person who is working there. In the second place, in many cases it would be completely impracticable to confine the operator's duty to his own employees. For example, many vessels employed in the North Sea oil industry carry employees of a large number of different companies: the operators of the vessels, the oil companies who operate the offshore facilities, the many different subcontractors who provide services to those operating companies, and those who have to go offshore in an advisory or consultative capacity. All of these are on a vessel in the course of their employment, and it would plainly not be sensible if the employees of the vessel operator were subject to one regime but the others while on the vessel were subject to quite different regimes. For example, the employers of those normally employed on a drilling platform would generally be subject to the legislation governing offshore installations, but if the injury occurs on a vessel on the way to such an installation that legislation would not be appropriate; instead it is the legislation governing vessels that should apply. This means that the operator of the vessel becomes strictly liable for any injuries sustained by the employees of others. That risk will obviously be reflected in the operator's insurance policy covering potential liability to workers. The cost of such a policy is likely to be increased because of the wider scope of the liability under the European Union-inspired legislation. That cost can obviously be passed on to those who hire the vessel to convey their employees. In this way the cost of accidents is passed on to the ultimate consumers of the good or service in question (North Sea oil, or the shipping companies that benefit from Scottish lighthouses and pay the dues that support the first defenders). This point is significant in relation to the agreement between the first and second defenders, which I consider below.

[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 pertained. 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, and thus that policy decision has been made and is binding on the courts. I am bound to say that the result does 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 any event, the present scheme of the 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 regulation 5 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997. Once that is established, I am of 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 Ltd, 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 to an ex facie breach of regulation 5 is that the accident in question could not have been prevented by means that are reasonably practical. 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 the boat had been driven more slowly. Both expert witnesses gave evidence that the risk of slamming occurred if a boat were driven too fast through relatively high seas, and both agreed that the risk could be avoided by slowing down. Alternatively, it was not essential to go to the Isle of May that day; the voyage could have been put off to a date when the weather forecast appeared more propitious. Thus there were at least two distinct courses of action that could have been taken that would have avoided the risk of injury. In these circumstances I am of opinion that the liability of both defenders under regulation 5 is clear.

Management of Health and Safety Work Regulations 1999, regulations 3, 8, 10 and 13
[42] The pursuer also has a case against the first defenders based on regulations 3, 8, 10 and 13 of the Management of Health and Safety Work Regulations 1999. Her counsel recognized, however, that her statutory case was subsumed under regulation 5 of the 1997 Regulations, and it was therefore unnecessary to consider these in detail. It seems to me that the result would be essentially the same as under regulation 5, but it is unnecessary to consider this matter further, as I have held that regulation 5 applies.

Common law
[43] Finally, the pursuer has a case at common law against both defenders. In view of the applicability of regulation 5, this is not of practical importance, but I should say something about it. I would observe, however, that the great majority of accidents at work are now likely to be caught by the legislation designed to ensure the health and safety of workers. Nearly all of that legislation is based on strict liability, subject usually to the defence of lack of reasonable practicability. It is obviously considerably easier to establish liability under such legislation than at common law. For this reason, it may be doubted whether there are any advantages in continuing to plead a common law case when the health and safety legislation applies. Nevertheless, it seems to be standard practice to plead a common law case. In part, this may reflect the fact that traditional legal thought in this country tends to focus on negligence as the basis of delictual liability, and thus assumes that employers' liability should be based on some kind of fault. That is not, however, a proper analysis of legislation based on strict liability. The underlying rationale of such legislation is largely economic in nature, as discussed above; the economic analysis is based on the proposition that the cost of workplace accidents is part of the cost of production and should be insured by the employer, or a person who is put in the position of the employer, such as the second defenders. At a moral level, the whole cost of production should be passed on to the consumer, and that is achieved very effectively by the modern European Union-inspired legislation. For this reason counsel should be encouraged to base claims on the relevant legislation; adding an alternative case at common law adds very substantially to the amount of evidence that is required and the difficulty of the issues that arise.

[44] So far as the common law is concerned, a number of factors were relied on by counsel for the pursuer in indicating that the second defenders had been negligent. First, it was not necessary for the pursuer to travel to the Isle of May that day. The weather conditions were poor, and threatened to get worse. That substantially increased the risk of an accident. Secondly, not enough had been done to reduce the risk of injury by telling the pursuer to adopt a safe posture by bracing herself and using her legs to take her weight. It would also have been possible for the pursuer to sit closer to the stern; both experts agree that sitting close to the stern reduces the risk of injury from slamming. Thirdly, the boat had been driven too fast. It would have been quite possible for it to be driven at a speed slow enough to prevent the bow from lifting out of the water and, after reaching the crest of a wave, dropping down hard on to the surface of the sea, with consequent slamming. In addition to proceeding more slowly, it would have been possible to anticipate the height of the waves and to slow down in order to negotiate the larger waves. That was regarded by both experts as good practice in a RIB, and it would have eliminated the risk of slamming and consequent injury.

[45] In my opinion the pursuer has demonstrated fault on the part of the second defenders, and Mr Stewart Taylor in particular. In the first place, Mr Taylor was aware of the weather forecast, and that the weather was likely to be rough. The forecast conditions were such as materially to increase the risk of the type of accident that in fact occurred; both experts were agreed on that point. Mr Taylor stated that he would not operate in a force 6 or 7 wind, and the forecast that date was for winds to increase to that sort of speed. It was not necessary for the pursuer, her husband and Mr Conoway to travel that day, and Mr Taylor could have advised them that it was better not to travel. Perhaps more significant, however, is the fact that he should have adapted the speed of the vessel to the weather conditions. In waves of the sort described in the weather data, it would be possible to proceed slowly in such a way as virtually to eliminate the risk of slamming; that was clear from the evidence of both experts. No doubt the voyage would have taken longer, but in the conditions it seems clear that that would have been very much safer. I am not prepared to go so far as to hold that deciding to proceed with the voyage that day was itself negligent, but the weather conditions were such that they clearly called for considerable modification in the way that the vessel was driven. In the second place, I am of opinion that the safety briefing given by Mr Stewart Taylor was inadequate, in that it failed to mention the need for bracing and taking weight on the legs. Had that been done, it seems quite clear that the risk of injury would have been very much lessened. I have dealt with the conflict in evidence on this matter at paragraphs [11], [22] and [23] above.

[46] In the third place, I am of opinion that the vessel was driven too fast for the weather conditions that day. Stewart Taylor and Roy Taylor both gave evidence that the speed of the boat had varied between 5 or 6 knots and 17 or 18 knots as the boat rode the waves. As I have already indicated, I did not find this evidence to be convincing, and I prefer the evidence of the pursuer and her husband to the effect that the speed of the boat did not vary significantly (see paragraph [9]). That view was also supported by Leanne Fisher, who gave evidence that the speed was relatively constant, with slight alterations. I think it clear that the boat was driven continuously at a speed of about 17 or 18 knots, which was too fast for the conditions as it gave rise to a significant risk of slamming, with a consequent risk of injury to the passengers. That is precisely what happened; the boat slammed after crossing each of two successive waves, and the pursuer was injured inconsequence. On the issue of whether slamming occurred, I accept the evidence of the pursuer and her husband and the two near-contemporaneous notes in the pursuer's medical records and reject the evidence to the contrary from Stewart Taylor and other witnesses for the second defenders. I am further of opinion that it was plainly foreseeable that there was such a risk of injury if the boat were driven too fast in the prevailing weather conditions; both of the experts and Stewart Taylor acknowledged the risk of slamming and consequent injury if a RIB were driven too fast in the sort of conditions that prevailed on the day of the accident. Finally, I should note that I do not accept the argument that not sitting on the bench closest to the stern amounted to fault on the part of the second defenders. The pursuer could have sat on that bench, but I do not think that there was any reliable evidence that doing so would have avoided her injury. The basic cause of the injury was the fact that the boat was driven too fast in poor weather conditions, taken together with the fact that she had not been given proper instructions about bracing herself.

[47] The pursuer also has a common law case against the first defenders. First, it had not been necessary to send the pursuer to the lighthouse. She performed an accounting function in the first defenders' organization, and they had no need to send her on a potentially hazardous voyage to examine certain of their property in situ. Secondly, the first defenders had not done enough to give the pursuer a proper safety briefing, including telling her about adopting a safe posture by bracing herself and using her legs to bear the weight. It was also suggested that they bore some responsibility for the speed at which the boat travelled. In my opinion the pursuer has not established a common law case against the first defenders. I have already indicated (paragraph [21] above) that the case based on an inadequate risk assessment is not well founded. So far as the decision to send the pursuer to the Isle of May on that day is concerned, it is quite correct that it was not necessary to do so, but the problem was not so much the decision to send her there as the decision to proceed on the particular day in question; if the weather had been calm, there would probably have been no problem. The decision to proceed on the particular day was that of the second defenders, not the first defenders. Likewise, the safety briefing was plainly the responsibility of the second defenders, not the first defenders. It was a matter peculiarly within the second defenders' area of activity, and in my opinion the first defenders acted quite reasonably in leaving it to the second defenders to give a safety briefing. Finally, the speed of the vessel was not a matter that was in any way under the control of the first defenders; it was entirely a matter under the control of the second defenders. Nevertheless, the fact that there is no common law case has no effect on the statutory case under regulation 5.

Athens Convention
[48] For the second defenders, it was submitted that the case was governed by the Athens Convention as the pursuer was a passenger on a domestic voyage. Any claim for personal injuries to such a passenger might only be brought under the Convention. The pursuer's claim was not based on the Convention. In any event, the Convention imposes a two-year time limit on the making of any claim; consequently the pursuer's claim was time-barred. It followed that the pursuer's cases under the 1997 Regulations and at common law were incompetent.

[49] The Athens Convention of 1974 is incorporated into Scots law by section 183 of the Merchant Shipping Act 1995; the text of the Convention is set out in Schedule 6 to that Act. By the Carriage of Passengers and their Luggage by Sea (Domestic Carriage) Order 1987 (SI 1987/690) the application of the Convention has been extended to domestic carriage of passengers by sea. When the Convention applies, the carrier is liable for damage suffered as a result of personal injury to a passenger if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or his servants or agents acting within the scope of their employment: article 3. In that event, the liability of the carrier is limited under article 7 to 46,666 units of account per passenger. Article 14 provides that no action for damages for personal injury to a passenger shall be brought against a carrier otherwise than in accordance with the Convention. A time bar on actions is imposed by article 16: any action for damages arising out of personal injury to a passenger is time-barred after a period of two years. That is the provision on which the second defenders rely.

[50] Under article 1.4 of the Convention, "passenger" is defined as meaning "any person carried in a ship ... under a contract of carriage". The expression "contract of carriage" is not defined in the Convention. The same expression occurs, however, in the Warsaw Convention of 1929, which applies to carriage by air, and its meaning in the latter was considered in Herd v Clyde Helicopters Ltd, 1997 SC (HL) 86. The two Conventions deal with broadly comparable subject matter, and in my opinion some guidance as to the meaning of the expression in the Athens Convention can be found in that case. In Herd the pursuers were the relatives of a police officer who was killed in a helicopter crash. He had been carried in the helicopter in the course of his duties for Strathclyde Police. The defenders were the operators of the helicopter, which was provided under a contract with Strathclyde Regional Council; under the contract the helicopter was placed at the disposal of Strathclyde Police. It was argued for the pursuers that the order implementing the Convention did not operate to limit the defenders' liability and did not exclude the defenders' liability to the pursuers at common law. In particular, it was submitted that the contract with the regional council was not a contract of carriage, and the police officer had neither accepted nor consented to the terms of that contract. Consequently he was not on board the helicopter as a passenger, and he was not a party to any contract of carriage. It was held that the contract with the regional council was a contract of carriage, and that the deceased was a passenger. Although the deceased was on the helicopter in the course of his employment, it was clear that he had no responsibility for the operation of the aircraft, which was solely under the control of the pilot; he was therefore properly to be regarded as a passenger. The contract between the defenders and Strathclyde Regional Council dealt with a number of matters other than mere carriage, but it was still held to fall within the terms of the Convention. In particular, it was not essential for the application of the Convention that the deceased should have been carried under a contract to which he was a party or under a contract of any particular type if he was being carried for reward. The above construction appears from the speech of Lord Mackay of Clashfern LC at 1997 SC (HL) 91-92.

[51] On the authority of Herd, I am of opinion that the Athens Convention was applicable to the present case. In particular, the pursuer fell within the definition of "passenger" in article 1.4, in that she was carried in a ship under a contract of carriage. The contract between the first defenders and the second defenders amounts in my opinion to a contract of carriage for the purposes of the Convention; the decision in Herd indicates that it is immaterial that the pursuer was not a party to that contract. I was attracted for a time to the view that, because the contract was between the first defenders and the second defenders and was for the provision of the entire vessel for the purposes of the first defenders, the Convention had no application. I am persuaded by Herd, however, that that argument is not correct; it is plainly held in that case that for a contract of carriage to exist it is immaterial that the particular passenger making the claim is a party to that contract, as long as his or her journey is made in pursuance of such a contract. That would mean that the limitation and time bar provisions of the Convention would apply to the present case.

[52] Nevertheless, two problems arise in relation to the second defenders' position. In the first place, the Athens Convention is not mentioned in the pleadings, and no plea of time bar based on the Convention is taken. If the Convention is relevant, its application is clearly a matter of fundamental importance. In those circumstances, I am of opinion that it is essential for any party relying on the Convention to refer to it in the pleadings, even under the chapter 43 procedure. For this reason alone I am of opinion that the second defenders may not found on the Convention.

[53] Even if that is wrong, the second defenders do not escape liability. The Convention has no application to the first defenders, who are not a carrier but are liable to the pursuer as her employer for the purposes of regulation 5 of the 1997 Regulations. Consequently the claim against the first defenders is not time-barred, and the limitation on liability in the Convention does not apply. The first defenders, however, have a contractual right of indemnity against the second defenders under the contract between them; I discuss this in the following section of this opinion. That contractual right of indemnity is not affected by the Convention, and for the reasons discussed below I am of opinion that the first defenders are entitled to recover the full amount that they are liable to pay the pursuer from the second defenders. This type of arrangement no doubt represents a significant limitation on the effectiveness of the Convention to limit liability in cases where a vessel is chartered or otherwise hired by an employer to carry its employees for the purposes of their work. Nevertheless, under the 1997 Regulations, the employer is strictly liable to its employees, even though it is not the operator of the vessel, and there is nothing in the Convention to prevent the parties from agreeing under the chartering arrangements for the vessel that the operator of the vessel will bear part or all the employer's liability for personal injuries. That simply involves giving the parties' contract its ordinary meaning.

The agreement between the first defenders and the second defenders
[54] The "Taeping" was made available to the first defenders under a contract between the first defenders and the second defenders. This appears to have been concluded on 1 August 2008, but its active date is described as 22 April of that year. The contract was in essence for the provision of "services" by the second defenders (referred to as "the Contractor") to the first defenders (referred to as "NLB"); these were defined in clause 1 as "the services to be provided by the Contractor as detailed within Clause 7". Clause 2 contained specification requirements. Clause 2.2 provided that the contractor agreed to provide a boat complying with the Maritime and Coast Guard Agency's small commercial vessel code, and that the vessel supplied must be provided to a specified minimum category for access to among other places the Isle of May Lighthouse. Clause 7, headed "Provision of Services", was so far as material in the following terms:

"7.1.1. The Contractor will transport NLB staff or representatives and any tools, parts or equipment required in the Boat to and from the Station ....

7.1.2. In carrying out the Services the Contractor shall be acting as principal and not as an agent of NLB....

...

7.1.7. The Contractor shall provide the Services with reasonable care and skill and to the best of his ability and to the reasonable satisfaction of NLB and conform in all respects with any particulars specified in this Agreement and in any variations thereto

...

7.1.9. The Contractor shall have absolute authority in determining whether a boat landing at any Station is feasible and safe having consideration for local knowledge of weather, tides and sea conditions".

[55] The most important clause for present purposes is clause 10, which set out certain of the Contractor's obligations. So far as material, it provided as follows:

"10.1 NLB will be relying upon the Contractor's skill and expertise and experience in connection with the provision of the Services and the Contractor hereby agrees to indemnify and hold harmless NLB from any liability to any party whatsoever of any type, including (without prejudice... to the generality of the foregoing) all loss, damage, costs, legal costs and professional and other expenses of any nature whatsoever whether direct or consequential, arising from breach of this Agreement, the provision of the Services or the negligence of the Contractor, its employees, servants or agents other than in respect of claims brought against either the Contractor or NLB arising from the Station failing to function as an Aid to Navigation.

10.2 Notwithstanding clause 10.1 above, the Contractor accepts liability for death or personal injury howsoever resulting from the Contractors negligence.

10.3 The Contractor shall ensure compliance at all times with all statutory and other requirements and guidelines and ensure the adoption of safe and proper working practices".

Clause 11 provided that the Contractor should perform the services in such a manner as to be safe and without risk to the health and safety of persons in the vicinity of the place where the services were being performed and in such a manner as to comply with all relevant health and safety legislation. It concluded:

"The contractor shall indemnify NLB and against all actions, suits, claims, demands, losses, charges, costs and expenses which NLB may suffer or incur as a result of or in connection with any breach of this paragraph".

Finally, clause 12.1 provided that the Contractor should maintain "all insurances as may be required by law in connection with the provision of the services", and in addition should maintain:

"Liability insurance up to a sum of not less than £1,000,000 in respect of death or personal injury to any person, including in particular but not exclusively an employee of NLB or the contractor or any other person in connection with NLB's business or activities in any capacity whatsoever resulting from the actions of the Contractor, its servants or agents".

[56] Evidence about the background to the contract between the first and second defenders was given by Mrs Fiona Lynch, who is a commercial manager for the first defenders. She explained that the first defenders no longer have boats for transporting passengers; consequently entering into contracts for the provision of boat services is the most effective way of accessing their lighthouses. They rely on contractors with local knowledge to take their employees out to lighthouses. In my view the contract must be construed against that factual background. A further significant element in the scheme of the contract is found in clause 12, which requires the Contractor to take out substantial insurance against the possibility of death or personal injury of, among others, the employees of the first defenders. Thus insurance against the identified risks is contemplated.

[57] Clause 10.1 of the contract contains an indemnity clause drafted in forthright terms. It states that the Contractor will "indemnify and hold harmless" NLB from "any liability to any party whatsoever of any type" arising from breach of the agreement, the provision of the Services, or the negligence of the Contractor on its employees. It is difficult to imagine an indemnity clause drafted in wider terms than those.

[58] I have held that the first defenders are liable to the pursuer for breach of regulation 5 of the 1997 Regulations. That liability exists whether or not the Athens Convention is applicable. The breach arises, however, primarily from the fact that the second defenders did not helm the boat safely; it was their employees, not the first defenders' employees, who were solely in charge of the boat. The agreement imposes a number of obligations on the Contractor, including the provision of a specified type of boat (clause 2.2) and the provision of the services specified in clause 7 with reasonable care and skill, to the best of the Contractor's ability and to the reasonable satisfaction of NLB (clause 7.1.7). Clause 10.3 obliges the contractor to ensure compliance at all times with all statutory and other requirements and to ensure the adoption of safe and proper working practices. That provision is important, because it would in my opinion clearly apply to the obligations contained in the 1997 Regulations, including those in regulation 5. The obligation in clause 10.3 is to "ensure compliance at all times" with the statutory requirements; that is a strict obligation, requiring that a particular result should be achieved. Clause 11 is also important, because it obliges the Contractor to perform the Services in such a manner as to comply with all relevant health and safety legislation. If the obligations under the health and safety legislation are strict, that obligation must also impose strict liability. The obligation in clause 11 is followed by a further indemnity, whereby the contractor is to indemnify NLB against inter alia all claims or losses which NLB may suffer or incur as a result of a breach of the foregoing obligation. Failure to comply with regulation 5 amounts in my opinion to a breach of the relevant health and safety legislation, and it is clear in my view that clause 11 is designed to provide an indemnity against precisely that type of breach. The second defenders were in breach of the regulation through their failure to helm the boat safely, and as a result of their operation of the boat the pursuer was injured. The indemnity provisions of the contract apply to a breach of that nature. It follows that the second defenders are obliged to indemnify the first defenders against the liability incurred by the first defenders as a result of that breach of regulation 5.

[59] In the event that the Athens Convention is applicable, as I think it would have been had it been timeously pled, the result would be to exclude any direct liability on the part of the second defenders towards the pursuer. That would not, however, have any effect on the position of the first defenders, whose liability arises out of the fact that they are the pursuer's employer and not out of any contract of carriage by sea. Likewise, the Athens Convention has no bearing on the second defenders' obligation to indemnify the first defenders. That obligation arises out of the contract between the first defenders and the second defenders for the services of the vessel. The contract is for the provision of certain services, namely the use of a boat to transfer the first defenders' staff and equipment. It is not a "contract of carriage" within the meaning of article 1.2 of the Convention, which defines such a contract as "a contract ... for the carriage by sea of a passenger or passenger and his luggage". It is rather a contract to make a boat available for the purposes of the first defenders' work. Moreover, the liability of the second defenders under the contract is not to make good "the damage suffered as a result of ... personal injury to a passenger", as specified in article 3.1; it is rather an obligation to indemnify the first defenders against loss suffered by them as a result of the application of wholly separate legislation. In short, the obligation of the second defenders under clauses 10 and 11 of the contract is not an obligation to compensate for personal injury but an obligation to indemnify, in the strictest sense.

[60] It was submitted on behalf of the second defenders that the indemnity clause should be construed in such a way as to exclude any indemnity for the consequences of the negligence of the first defenders. In this connection, reliance was placed on Alderslade v Hendon Laundry Ltd, [1945] KB 189, Canada Steamship Lines v The King, [1952] AC 192, North of Scotland Hydro-Electric Board v D & R Taylor, 1956 SC 1, and Smith v UMB Chrysler (Scotland) Ltd, 1978 SC (HL) 1. Those cases establish the principle that, in the words of Lord Greene MR in the first of them (at [1945] KB 192):

"Where the head of damage in respect of which limitation of liability is sought to be imposed by such a clause is one which rests on negligence and nothing else, the clause must be construed as extending to that head of damage, because it would otherwise lack subject-matter. Where, on the other hand, the head of damage may be based on some other ground than that of negligence, the general principle is that the clause must be confined in its application to loss occurring through that other cause, to the exclusion of loss arising through negligence".

In short, an indemnity clause will only apply to losses caused by the negligence of the party indemnified or its employees if its only possible application is to such negligence. In the present case, however, I have held that the liability of the first defenders rests not on the negligence but on the obligation of strict liability imposed by regulation 5 of the 1997 Regulations. I have further held that the first defenders were not at fault. In the circumstances the foregoing principle has no application.

[61] I was also addressed on the question of apportionment, should I find that the pursuer's injury was partly caused by the fault of the first defenders. I have not found fault on their part, however, and accordingly this area of law is not relevant.

Conclusion
[62] For the foregoing reasons I am of opinion that both defenders are liable to make reparation to the pursuer, and are accordingly liable jointly and severally to pay her damages of £21,500. That sum is agreed in the joint minute concluded between the parties. Interest will run on that sum at 8% per annum from 4 December 2012 until payment; that is also a matter of agreement between the parties. I am further of opinion that the second defenders are liable to reimburse the first defenders for the whole sum that they are liable to pay the pursuer. The net effect will be that they are liable for the full sum payable to the pursuer. Finally, I will certify Mr Robert Marks, the consultant orthopaedic surgeon who examined the pursuer for the purposes of the action, and Mr Ian Biles as skilled witnesses. I will reserve all questions of expenses.