Thomson v. Kvaerner Govan Ltd (Scotland)

Factual and Procedural Background

The Respondent was employed by the Appellants as a welder at their Govan shipyard. On 24 January 1995 he entered a ballast tank to retrieve equipment left during the morning shift. While inside the tank he fell and suffered a serious head injury. He was discovered lying on a broken plank next to the fixed vertical ladder.

The Respondent sued for damages, alleging breach of Regulation 17(1) of the Shipbuilding and Ship-repairing Regulations 1960, which requires all staging to be of suitable and sound material. After proof, Judge Philip (the Lord Ordinary) granted decree of absolvitor in favour of the Appellants, holding that the Respondent had not proved that the plank failed in the manner he described.

The Respondent reclaimed to the First Division. A bench comprising Judge Cullen, Judge Abernethy and Judge Morison allowed the reclaiming motion, reversed the Lord Ordinary and reinstated the claim.

The Appellants appealed to the House of Lords. The present opinion resolves that further appeal.

Legal Issues Presented

1. Whether the First Division applied the correct appellate standard when overturning the Lord Ordinary’s factual findings.
2. Whether, on the evidence, the Respondent had proved that the plank was of inadequate strength and broke beneath him, constituting a breach of Regulation 17(1).

Arguments of the Parties

Appellants' Arguments

• The First Division failed to respect the principle that an appellate court may interfere with primary factual findings only if the trial judge was “plainly wrong.”
• Witness Cox’s evidence demonstrated that the plank was of adequate strength and undermined the Respondent’s narrative; the Lord Ordinary was entitled to rely on that evidence.
• The onus of proof lay on the Respondent throughout; the doctrine of res ipsa loquitur did not shift the burden to the Appellants.

Respondent's Arguments

• The Lord Ordinary attached undue weight to Witness Cox’s technical opinion, which was speculative and unsupported by alternative expert testimony.
• The Respondent’s account was honest and corroborated by undisputed physical facts (height of fall, broken plank, location of equipment).
• No credible alternative explanation for the accident was advanced; therefore the most probable cause was that the plank failed under the Respondent’s weight.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hope, delivering the leading speech, stressed that the appellate standard articulated in Clarke and Thomas had been overlooked by the First Division. The Lord Ordinary had assessed the competing testimony—particularly that of the Respondent and Witness Cox—through both internal consistency and witness demeanour. Those are matters where the trial judge enjoys a unique advantage.

The First Division criticised the weight given to Witness Cox’s evidence and noted the absence of an alternative explanation for the accident. However, Judge Hope held that:

• Absence of an alternative theory does not reverse the onus of proof; the Respondent still had to prove that the plank was defective.
• Witness Cox’s measurements, experience, and logical analysis provided a rational basis for doubting the Respondent’s version; there was no contrary expert evidence.
• The Lord Ordinary’s reservations about the Respondent’s reliability—including documented inaccuracies about the tank’s layout and the plank’s appearance—were reasonably open to him.

Because the First Division did not find the Lord Ordinary “plainly wrong,” it erred in substituting its assessment for his. The appellate court’s role is not to retry factual disputes on the printed record.

Holding and Implications

Appeal ALLOWED; the interlocutor of the Lord Ordinary restoring decree of absolvitor in favour of the Appellants is reinstated.

Immediate effect: the Respondent’s claim for damages is dismissed. Broader implications: the decision re-emphasises the strict limitations on appellate interference with first-instance findings of fact and clarifies that the burden of proof remains with the claimant unless the evidence establishes circumstances warranting the application of res ipsa loquitur. No new legal principle was created, but existing standards of appellate deference were robustly affirmed.