[2009] CSOH45


in the cause







Pursuer: B Fitzpatrick; Digby Brown SSC

Defenders: Primrose; Brodies

25 March 2009

[1] This action has been settled by extra judicial agreement. I heard an opposed motion in respect of an application for certification of Mr David Byrne and Mr Mark Rossiter as skilled witnesses for the pursuer. The pursuer also seeks an additional fee. The pursuer's motion for authority to be interponed to a joint minute and for certification of a number of other skilled witnesses was not opposed.

[2] The action concerns an accident on an off-shore installation on 2 June 2000 as a result of which the pursuer was injured. He was employed as a deck foreman. Along with deck crew he was instructed to repair a damaged mooring line. It was about 100 metres in length, and consisted of two hawsers which were held together by nylon sheaving. The sheaving was damaged in a short section at about mid-length. The method of repair involved a series of tight turns of manila rope around the line to bind up the damaged area (a process known as "serving"). The tension needed to tighten the turns was initially provided by a chain block. This equipment failed, but the process continued using a capstain winch. A hook was used to attach the winch rope to the manila rope when it was placed under tension. When under tension the manila rope parted and the hook spun away, striking and injuring the pursuer's left hand.

[3] The pursuer claimed that there was an inherent risk of injury from the rope breaking under tension. The danger came from the use of the capstain, which could place the rope under very great tension, well beyond its breaking point. The pursuer averred that the chief officer, Mr Johansen, accepted that the pursuer might have to use the capstain, and that he saw it being used. In short the capstain was too powerful. A reasonable risk assessment would have identified the possibility of the rope breaking when used with the capstain. "As a matter of common sense" the defenders should have appreciated the inherent dangers of the operation.

[4] There was no dispute as to the pursuer's account of how the accident happened. Further, the defenders accepted that the capstain should not have been used. It could provide greater force than the rope could withstand, and there was no method of measuring the force being used. However, according to the defenders the pursuer was only authorised to use the chain block. He was not told that he could use the capstain. It was his decision to use such a dangerous method of work. A spare chain block was available after the first one failed. The pursuer knew or should have known not to use the capstain. He was the sole cause of the accident.

[5] Since the record closed in March 2003 it has been plain that on the merits the issue in this case was whether the use of the capstain was authorised, or at least tolerated by the installation management. This was a question of fact.

[6] In mid 2003 the pursuer's agents requested an engineer, namely Mr David Byrne of Transmarine Consultants Limited, to provide a report. His report is dated 20 September 2003. He does not set out the nature of his instructions. Counsel for the pursuer was unable to enlighten me. I can assess the nature and scope of Mr Byrne's instructions only from the terms of his report. He was provided with the closed record; an incident investigation brief report; a specification of documents; and a second note of adjustments for the defenders. He interviewed the pursuer and made some inquiries as to the working life and breaking point of the manila rope. In his report he recites the terms of various statutory duties, and he offers views on breach of duties by the defenders and their employees relating to the likelihood of failure of the rope. In summary, he concludes "This was an inherently dangerous operation, reasonably foreseeable by the facility management."

[7] Given the terms of Mr Byrne's report, it is reasonable to assume that he was asked whether he could support the pursuer's claim, and if so, on what basis. The real issue between the parties was ignored, no doubt because it was a matter of fact, not something which required expert advice. The views expressed by Mr Byrne are simply echoes of the averments on record for both parties, namely that it would be dangerous to use the capstain.

[8] Mr Rossiter was instructed on 11 June 2008. His report is dated 2 August 2008. The documents considered were the closed record as amended at 21 June 2005; a cold work permit; three post accident reports; drawings submitted by the pursuer; and various statutes and statutory instruments. No precognitions were considered. The shape of the pleadings in the 2005 closed record was much the same as in the unamended 2003 version. As to Mr Rossiter's instructions, all that I have is his comment in paragraph 1.1.1, namely that he was asked to prepare an expert report in relation to the accident. Again counsel was unable to provide more detailed information as to the nature and scope of Mr Rossiter's instructions. If he was instructed in writing, I was not given a copy.

[9] Mr Rossiter explained the scope of his report as providing a background summary of his understanding of the events; his comments on documentation received in relation to the events before and after the accident; a consideration of the mandatory rules and regulations covering off-shore platforms so far as applicable to the incident; a discussion as to whether this was an appropriate task for the personnel involved, given the repair method employed; and a discussion of the safety management system of the defenders and of their investigation into the incident.

[10] Mr Rossiter outlines his understanding of the background to the incident. He discusses the relevant cold work permit. He had a meeting with Mr Ross "to determine his account of the incident", and he details the points discussed with the pursuer. Though Mr Ross told him that he had informed Mr Johansen that the capstain would need to be used to perform the task within the timescale required, Mr Rossiter records:

"In my opinion it is not absolutely clear from the discussion of what was actually discussed in these meetings, however Mr Ross is consistent in his belief of the requirement to use a capstain and mentioned that Mr Wagg stated that the task had to be carried out using any means possible."

Mr Rossiter refers to the closed record, indicating that he is aware of the factual dispute, and continues "The facts are that in the beginning chain blocks were used to carry out the task and when a chain block failed the capstain was brought into use" (para 3.2.4). He states that Mr Ross informed him that there were no other chain blocks available to carry out the repair, and that "he then decided to bring the capstain into use....". At this point Mr Rossiter focuses on the key factual issues between the parties, though plainly it is not for him to resolve them.

[11] Mr Rossiter examines three post incident reports and makes various comments about them. Several pages are devoted to the regulatory framework in the off-shore industry in June 2000. The next section discusses health and safety legislation. Amongst other things, Mr Rossiter asks himself whether the repair was necessary. He concludes that it was. Views are offered as to what must have been known to the owners of the installation. Mr Rossiter goes on to discuss various matters, including the appropriateness of the repair method, the permit meeting on 1 June 2000, and whether there should have been a risk assessment. At paragraph he appears to indicate that Mr Ross was responsible for the introduction of the capstain, a matter which is in dispute between the parties. He comments that if a pro-active safety management culture had been in place, the job would have been stopped.

[12] From the overall content of and discussion in the report it is reasonable to conclude that Mr Rossiter understood that he was being asked whether there was any possible basis upon which the pursuer might have a claim, and if so, to outline it. Good examples of this are the section beginning at page 36 relating to the qualifications and competence of the personnel involved, and the section headed "Responsibilities of Personnel" at page 37.

[13] Mr Rossiter's conclusions are that if there had been a proper risk assessment it is unlikely that the task would have been carried out; that the spare mooring hawser should have been used; that there was unreasonable time pressure; that if the spare hawser had been used the accident would not have occurred; that the personnel involved were neither trained nor competent in the task; that an inherently dangerous method of repair was chosen; and that the injury could have been avoided by proper safety supervision. In general the defenders were careless in their implementation of the safety management system.


[14] For the pursuer Mr Fitzpatrick emphasised that this was a substantial damages claim. He and senior counsel had two consultations with Mr Rossiter. It was a very complicated accident. It was necessary to understand what was going on and who was responsible. A number of statutory breaches were averred. There was a paucity of evidence regarding the circumstances of the accident itself. Initially it was intended that Mr Byrne would be the consulting engineer in the case, however, after a transfer of the business of Transmarine Consultants, no final report was ever received from him. In the early part of 2008 he indicated that he might not be in a position to do so because he now worked for companies such as the defenders, and felt compromised, given the clients of his new employer. In those circumstances Mr Rossiter was approached. It was submitted that it had been reasonable to instruct both engineers.

[15] For the defenders Mr Primrose submitted that it was not reasonable to instruct either Mr Byrne or Mr Rossiter. He stressed the limited nature of the matters in dispute. The issues in the case were not complicated. There was no dispute as to how the accident happened. The nub was whether the pursuer was authorised to use the capstain. There was no need for expert engineers to be involved. Further it would appear that Mr Rossiter intended to give evidence about the factual circumstances of the accident.

[16] In any event it was unfair for the defenders to have to pay for two reports, simply because Mr Byrne chose not to complete his work. He could have been cited and told to come to court. His name was on the witness list.

[17] With specific reference to Mr Rossiter's report, Mr Primrose submitted that it was unreasonable to instruct such a wide ranging report. There was an extensive excursion through the entire safety procedures on the vessel. A number of matters were considered which had nothing to do with the case on record. The nature and purpose of his instructions remain a mystery. His report dealt with regulations which were not even mentioned in the case. He showed no hesitation in trespassing onto matters which were solely for the court, for example at 1.2.4, and again at 5.3.8 where he offered the view that it was highly unlikely that Mr Ross came up with the method of work without it being seen by senior management. This showed that Mr Rossiter saw himself as an investigator and a fact-finder.

[18] In response Mr Fitzpatrick confirmed that he could not assist regarding the specific instructions to Mr Byrne and Mr Rossiter. The pursuer's counsel did not think that it was sufficiently secure for the pursuer to proceed simply on the basis of his own evidence, therefore it was considered appropriate to instruct a consultant engineer. The view was that it would be useful during the proof for there to be a general discussion of the issues with Mr Rossiter. While Mr Byrne remained on the witness list, a decision was taken that he should not be called, since Mr Rossiter's evidence covered the necessary issues. It would be better not to have an unwilling witness. This was simply part of the uncertainties of litigation, for which the unsuccessful party must pay.


[19] In terms of Rule 42.13 (2), in order to certify a witness as a skilled witness I must be satisfied that it was reasonable to employ the witness to make investigations or to report for any purpose. I am not so satisfied in respect of either Mr Byrne or Mr Rossiter. I agree with all the submissions made on behalf of the defenders by Mr Primrose. In the first place, the absence of any information as to the terms of the instructions to these witnesses makes it difficult to be satisfied that their instructions were reasonable. In any event I consider that it was or should have been tolerably clear that the issue truly in dispute was a matter of fact, which did not require expert advice. Neither report was reasonably required in order to assist in the resolution of the action. As it is I have the impression that both experts, and perhaps especially Mr Rossiter, were being asked to look at the pleadings and a few other documents, carry out such investigations as they considered appropriate, and advise as to whether the pursuer had a good claim, and if so, what it might be. That is not an appropriate use of an expert witness. Such an investigator is no longer an independent expert giving advice to the court, but is rather in the role of a claims consultant for the instructing party. Perhaps this is why Mr Byrne felt compromised when his client base changed.

[20] Further, the inappropriateness of the instructions was demonstrated by counsel for the pursuer's explanation that Mr Byrne, and subsequently Mr Rossiter, were required in order to fill the gap caused by the absence of witnesses as to fact who could support the pursuer's account on the key issues. Witnesses led as experts should not be asked to express opinions on matters of fact which are clearly within the sole jurisdiction of the court. There can be grey areas where the borderline is difficult to define in advance, but in my view it would have been crossed in this case had either expert given evidence.

[21] In all the circumstances I shall refuse the motion for certification of Mr Byrne and Mr Rossiter as skilled witnesses for the pursuer.

Additional Fee

[22] Mr Fitzpatrick also asked for an additional fee in terms of head (a) of Rule of Court 42.14 (3), and in particular with regard to the complexity of the cause. A Note was provided in support of this opposed application. Again reference is made in the Note to the allegedly complex nature of the dispute on the merits, and to a need for advice from a consulting engineer. For the reasons explained above, I am not persuaded of this. Reference is made to difficulties encountered in respect of the designation of the defenders and tracing witnesses. It is also said that quantification of damages raised complex issues. Given that a large number of medical doctors have been agreed as skilled witnesses for the pursuer, there may be merit in this last point. However I do not consider that I have enough information to reach the correct decision on it. The relevant Rule allows me to remit the matter for the auditor's determination, and that is what I shall do.

[23] The overall result is that I shall refuse certification of Mr Byrne and Mr Rossiter, remit the issue of an additional fee to the auditor, and for the rest grant the pursuer's motion. I shall reserve the question of the expenses of the hearing.