Parliamentary Archives,HL/PO/JU/18/247
McDermid (A.P.) (Respondent)
v.Nash Dredging & Reclamation Company Limited (Appellants)
JUDGMENT
Die Jovis 2° Julii 1987
Upon Report from the Appellate Committee to whom wasreferred the Cause McDermid (A.P.) against Nash Dredging &Reclamation Company Limited, That the Committee had heardCounsel on Tuesday the 5th day of May last, upon the Petitionand Appeal of Nash Dredging Limited, formerly Nash Dredgingand Reclamation Company Limited, of Anchor House, Station Row,Shalford, Guildford, Surrey, praying that the matter of theOrder set forth in the Schedule thereto, namely an Order ofHer Majesty's Court of Appeal of 16th April 1986, might bereviewed before Her Majesty the Queen in Her Court ofParliament and that the said Order might be reversed, variedor altered or that the Petitioners might have such otherrelief in the premises as to Her Majesty the Queen in HerCourt of Parliament might seem meet; as upon the Case of JamieMcDermid lodged in answer to the said Appeal; and dueconsideration had this day of what was offered on either sidein this Cause:
It is Ordered and Adjudged, by the Lords Spiritual andTemporal in the Court of Parliament of Her Majesty the Queenassembled, That the said Order of Her Majesty's Court ofAppeal (Civil Division) of 16th April 1986 complained of inthe said Appeal be, and the same is hereby, Affirmed and thatthe said Petition and Appeal be, and the same is hereby,dismissed this Houses And it is further Ordered, That theAppellants do pay or cause to be paid to the said Respondentthe Costs incurred by him in respect of the said Appeal: Andit is also further Ordered, That the costs of the Respondenthe taxed in accordance with Schedule 2 to the Legal Aid Act1974.
Cler: Parliamentor:
75
Judgment: 2.7.87
HOUSE OF LORDS
McDERMID (A.P.)(RESPONDENT)
V.
NASH DREDGING AND RECLAMATION COMPANY LIMITED
(APPELLANT)
Lord Bridge of HarwichLord Hailsham of St. MaryleboneLord Brandon of OakbrookLord Mackay Lord Clashfern of Ackner
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speechesof my noble and learned friends Lord Hailsham of St. Maryleboneand Lord Brandon of Oakbrook. I agree with them both and forthe reasons they give I would dismiss the appeal.
LORD HAILSHAM OF ST. MARYLEBONE
My Lords,
This was an action for damages for personal injuries by theplaintiff (appellant) against his employers, the defendants(respondents), as the result of an accident which took place aslong ago as 22 June 1975.
The fact that on the date of the hearing of this appeal on5 May 1987 both the question of liability and the quantum ofdamages were still open after nearly 12 years for discussion doesnot shed a very favourable light on our system for dealing withlitigation of this type.
The plaintiff was employed as a deckhand by a contract in-writing dated 18 June 1975 in connection with dredging work on afjord at Lulea in Sweden.
In the first sentence of this contract it was expresslyagreed:
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"The employee shall safely comply with the lawful directionsof the company's representatives. . ."
It must be noted that the defendants' employers were asubsidiary (it is believed wholly-owned) of a Dutch company StevinBaggeren B.N. ("Stevin").
The function of the defendants was to provide and pay theBritish staff engaged in the operation.
At the time of the accident, by direction of the defendants,the plaintiff was working on the deck of a tug (the Ina) owned byStevin and under the command of her Dutch skipper (Captain Sas)who was an employee of Stevin. The tug was in fact operatedturn and turn about by Captain Sas and a British skipper (CaptainClifford) who was an employee of the defendants. At all materialtimes, however, and by direction of the defendants under clause 1of the contract of service, the Ina and the plaintiff were bothunder the total operational control of Captain Sas and subject tohis orders.
The accident may be very simply described. The plaintiff'sduty, so far as material, was to tie and untie the Ina from adredger to which she was made fast fore and aft by means ineach case of a nylon rope attached to a bollard on the dredger byan eye and to the tug by a number of figure-of-eight loops andtwo half-hitches. At the time of the accident the plaintiff wasunder orders to untie with a view to the Ina going astern. Hesafely untied the aft rope and stowed it inboard the Ina. He thenwent foreward to untie the forward rope from the dredger. Hiscorrect drill, had he completed it, would have been to slacken therope on the Ina's starboard bollards in order to reduce the tension,to allow the deckhand on the dredger (whom he could clearly see)to take the eye of the rope off the dredger's port bollard, andthen haul the rope in and stow it safely inboard the Ina, proceedto the wheelhouse and give it a double knock with his hand, inorder to signal to Captain Sas that it was safe to move. In theevent, after he had loosened the forward rope from the Ina'sbollard, and before the deckhand on the dredger had had time toremove the eye of the rope from the bollard on the dredger,Captain Sas, who was at the wheel of the Ina, put the engine hardastern. As a result, the rope snaked round the plaintiff's leg,pulled him into the water and caused him injuries which involvedthe amputation of his leg and damage, recently (28 April 1986)assessed at £178,450.05 by Staughton J., to whom the case hadbeen remitted for this purpose by the Court of Appeal.
The plaintiff's claim in the proceedings was based on theallegation (inter alia) of a "non-delegable" duty resting on hisemployers to take reasonable care to provide a "safe system ofwork", (cf Wilsons & Clyde Coal Co. Ltd v. English [1938] A.C.57). The defendants did not, and could not, dispute the existenceof such a duty of care, nor that it was "non delegable" in thespecial sense in which the phrase is used in this connection. Thisspecial sense does not involve the proposition that the duty cannotbe delegated in the sense that it is incapable of being the subjectof delegation, but only that the employer cannot escape liability ifthe duty has been delegated and then not properly performed.Equally the defendants could not and did not attempt to dispute
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that it would be a central and crucial feature of any safe systemon the instant facts that it would prevent so far as possible theoccurrence of such an accident as actually happened, viz. injury tothe plaintiff as the result of the use of Ina's engine so as to movethe Ina before both the ropes were clear of the dredger andstowed safely inboard and the plaintiff was in a position of safety.
Since such a system could easily have been designed and putin operation at the time of the accident in about half-a-dozendifferent ways, and since it is quite obvious that such a systemwould have prevented the accident had it been in operation, andsince the duty to provide it was "non-delegable" in the sense thatthe defendants cannot escape liability by claiming to havedelegated performance of their duty, it is a little difficult to seewhat possible defence there could ever have been to theseproceedings. There was indeed a preposterous suggestion in thedefendants' pleading that the plaintiff had caused or contributed tohis own misfortune himself. There was never the smallestevidence of this, and, no doubt prudently, the defendants called noevidence, whether by Captain Sas or anyone else, to substantiateit. This frantic attempt to avoid or reduce liability had alreadydied a natural death before the case left the court of trial.
Although the duty of providing a safe system of work was"non-delegable" in the special sense I have described, it had infact been delegated on alternate shifts to Captain Sas and CaptainClifford in the circumstances I have described. In both cases thedelegation covered, so far as can be ascertained, the wholeoperation of the Ina, the orders to the deckhand, the system ofwork to be followed, and since the skipper was at the wheel, theoperation of the engine. Both Captain Sas and Captain Cliffordhad designed different systems of work either of which, iffollowed, would probably have prevented the accident in theinstant appeal. The trial judge appeared to think that the systemdesigned by Captain Sas and applicable at the time of the accidentto the plaintiff was "not unsafe." But this "system" involved atits crucial stage, i.e. the point of time at which it was necessaryto ascertain for certain that the both ropes were inboard and thedeckhand safe, a double knock by the deckhand on the wheelhouse,which could not be delivered unless the deckhand were clear ofdanger. If the proper sequence was observed this would nothappen until after the second rope was stowed inboard. The Courtof Appeal doubted whether the "system," if it can be called such,was adequate, and I share this doubt. But it matters not. Theaccident happened because the Ina went full astern before theforward rope was clear of the dredger and with the plaintiff in aposition of acute peril. There was no double knock becauseCaptain Sas did not attempt to operate the correct sequence anddid in fact operate the engines with the eye of the rope still onthe bollard of the dredger. The "system" was therefore not beingoperated and was therefore not being "provided" at all. It mattersnot whether one says that there was no "system" in operation atall, or whether one says that the system provided was unsafe, orwhether one says that the system in fact provided was not in useat the crucial stage. In any event the defendants had delegated'their duty to the plaintiff to Captain Sas, the duty had not beenperformed, and the defendants must pay for the breach of their"non-delegable" obligation.
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Before your Lordships it was strenuously argued that thefact that Captain Sas operated the engine in such dangerouscircumstances was the "casual" or "collateral" negligence of anemployee of an independent contractor, i.e. Stevin. Since Stevinwas itself the holding company of the defendants, the defendantsbeing its wholly-owned subsidiary, I find this morally anunattractive proposition. But the fact was that the Plaintiff haddelegated their own "non-delegable" duty to Captain Sas who hadcharge of the whole operation and his negligence was not"collateral" or "casual" but central to the case and in totaldisregard of the duty owed to the plaintiff to see that the enginewas not put in operation at all until it had been ascertained thatit was safe to do so. Whether the system as designed by CaptainSas was adequately safe or not, whether it can truthfully be saidthat there was in any real sense a system at all, or whether therewas a system not unsafe but not being operated, the defendantshad delegated their own "non-delegable" duty and it had not beenperformed.
I do not wish to add anything on the second point in theappeal which related to the attempt to limit the Defendants'liability under section 503 of the Merchant Shipping Act 1984 asamended by section 3 of the Merchant Shipping (Liability ofShipowners and Others) Act 1958, except to say that I agree withthe judgment of the Court of Appeal [1986] Q.B. at 965, 980-982,and that the result is a necessary consequence of the correctanalysis of the facts which I have endeavoured to give above.
In the event this appeal must be dismissed with costs. Inmy view it is, and always was, unarguable.
LORD BRANDON OF OAKBROOK
My Lords,
On 22 June 1975 the plaintiff, then aged 18, suffered aserious accident while working as deckhand on a tug called Ina ina fjord at Lulea in Sweden. In the accident his left leg was sobadly injured that it had to be amputated at mid-thigh level, withgrievous consequences for the whole of his future life.
On 30 November 1977 the plaintiff brought an action in theHigh Court in England against the defendants, by whom he wasemployed at the time of the accident, claiming damages for theinjuries caused to him by it. The action was tried by Staughton J.on 23, 24 and 25 July 1984. He held that the defendants wereliable in negligence to the plaintiff but that they were entitled tolimit their liability to £43,893 under the provisions relating tolimitation of liability contained in the Merchant Shipping Acts 1894to 1984. In view of his decision that the defendants were entitledto limit their liability to this sum, the judge did not assess thefull amount of the damages which the plaintiff would otherwisehave been entitled to recover. He gave judgment for the plaintifffor £59,169.02 inclusive of agreed interest.
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The plaintiff appealed to the Court of Appeal against thejudge's decision that the defendants were entitled to limit theirliability. The defendants cross-appealed against the judge'sdecision that they were liable at all. The appeal and cross-appealwere heard by the Court of Appeal (Fox, Parker and Neill L.JJ.)on 14 and 15 January 1986. The reserved judgment of the courtprepared by Neill L.J. was handed down on 16 April 1986. In thatjudgment the court allowed the plaintiff's appeal and dismissed thedefendants' cross-appeal. It further remitted the case to the judgefor him to assess the full amount of the damages which theplaintiff was entitled to recover. On 28 April 1986 Staughton J.assessed those damages at £178,450.05 inclusive of agreed interest.
My Lords, the primary facts relevant to this appeal are notin dispute. The appellants are a wholly-owned subsidiary of aDutch dredging company, Stevin Baggeren B.V. ("Stevin"). In June1975 the appellants and Stevin were together engaged in dredgingoperations for the Swedish government in the fjord at Lulea. Thedredger was moored off-shore and a tug called Ina, owned byStevin, was used in the operations. These continued round theclock so that the complement of the tug worked shifts. Therewere two masters of the tug, each of whom worked a 12-hourshift. One of these was Captain Clifford, who was employed bythe defendants. The other was Captain Sas, who was employed byStevin.
The part played by the plaintiff in the operations and thecircumstances of his accident are concisely set out in thejudgment of Staughton J. (transcript, pp. 35-36):
The task in hand there was dredging a fjord. At first theplaintiff worked on the dredger for a few days; then he wastransferred to being a deckhand on the tug Ina. Thecomplement of the tug was a master, Captain Sas, theplaintiff as deckhand, and a greaser to look after theengines. It was used in the main to push barges fromalongside the dredger to a dumping ground, but also totransport those working on the operation from and to theshore at the beginning and end of shifts. The task of theplaintiff as deckhand was to keep the deck clean and tidy,and to see to the tying up and untying of the tug, whetheralongside the dredger or elsewhere. This involved twoman-made fibre ropes, each 1 1/2 inches in diameter, with aneye at one end. The eye of one rope would be placed overa bollard on the dredger, and then the rope would besecured to two bollards on the tug by two figure-of-eightturns and two half-hitches. The remainder of the ropewould then be coiled on the deck of the tug inboard of thetwo bollards. The same process would be carried out foreach rope, except that one was secured to the for'ard endof the tug and one to the aft end. To untie the ropes theplaintiff would first slacken the aft rope by removing itfrom the two bollards on the tug, next it would be removedfrom the bollard on the dredger, and the plaintiff wouldhaul it aboard the tug. He would then do the same withthe for'ard rope. Finally, he would give two knocks on theside of the wheelhouse to indicate to Captain Sas that theropes were both on board. On 22 July 1975, when theplaintiff had been working on the tug for two days, the tug
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was tied up to the dredger, and the time came when shewas to leave. Captain Sas, who did not speak much English,signed to the plaintiff to untie the ropes. The plaintifftook the aft rope off first as the tug was leaving withengine astern. He then moved to the for'ard rope andstarted removing it from the two bollards on board the tug.As he was doing so, Captain Sas put the engine asternprematurely; he started to move the tug away from thedredger. The plaintiff immediately stood back as he thoughtthat the rope might break and injure him, but instead it waspulled through the bollard and he went with it. He hassome recollection of the rope being round his left leg andof being pulled through the bollard. After that he was inthe water, with his left leg very seriously injured."
The plaintiff sought to establish liability against thedefendants on various grounds. Of these it is only necessary toconsider two: the first that the accident was caused by thenegligence of Captain Sas for which the defendants werevicariously liable; and the second that the accident was caused bythe negligence of the defendants in failing to provide a safesystem of work for the plaintiff.
With regard to the first ground of liability, the defendantsdid not admit that the accident had been caused by any negligenceof Captain Sas. They further contended that, even if it had beenso caused, Captain Sas was the servant of Stevin and not of thedefendants, so that the defendants were not vicariously liable forthe consequences of his negligence.
The defendants did not call Captain Sas to give evidence.In these circumstances Staughton J. rightly had no hesitation infinding, first, that Captain Sas had been negligent in putting thetug's engines astern prematurely, and, secondly, that the accidenthad been caused by his negligence in this respect. With regard tothat negligence he said (transcript, p. 38):
"That may have taken the form of carelessness in notwaiting for the plaintiff's signal before putting the engineastern, or else a deliberate, but dangerous, manoeuvredesigned to encourage the plaintiff to perform his tasksmore quickly."
On the question of the defendants' vicarious liability for thenegligence of Captain Sas Staughton J. said (transcript, pp. 42-43):
"On the evidence, it seems to me that the defendants,through some person at Lulea, in effect instructed theplaintiff to work with and under Captain Sas pursuant to theplaintiff's contract of employment with the defendants.They made Captain Sas the foreman, boss or chargehandthrough whom their orders would reach the plaintiff, and towhom the plaintiff would render directly the service whichhe owed to the defendants. As between the plaintiff andthe defendants, Captain Sas must be taken to have been theservant of the defendants. If that involves any noveldoctrine, so be it. The common law would become obsoleteif it did not develop to meet new situations."
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With regard to the second ground of liability relied on by
the plaintiff, Staughton J. found that the system of work provided
for the plaintiff was not unsafe. In this connection he said(transcript, pp. 38-39):
"The task of the plaintiff was a simple one and well withinhis capabilities. Given due care and attention on the partof himself and Captain Sas, there was nothing unsafe aboutit."
In the result Staughton J. decided that the plaintiffsucceeded against the defendants on the first ground of liabilityreferred to above, namely, vicarious liability for the negligence ofCaptain Sas, but failed on the second ground of liability, namely,failure of the defendants to provide a safe system of work for theplaintiff.
The defendants contended that, if they were liable to theplaintiff, they were entitled to limit the amount of their liabilityto £43,893 under the provisions relating to limitation of liabilitycontained in the Merchant Shipping Acts. For the plaintiff it wasnot disputed that, if the defendants were entitled to limit theirliability under these provisions, the amount of their limitedliability was £43,893. It was disputed, however, that thedefendants were entitled to limit their liability at all.
The right to limit liability for certain occurrences, includingaccidents causing personal injury to some person, was given toshipowners only by section 503 (in Part VIII) of the MerchantShipping Act 1894. That right was extended to persons other thanshipowners by section 3 of the Merchant Shipping (Liability ofShipowners and Others) Act 1958 which provides:
"(1) The persons whose liability in connection with aship is excluded or limited by Part VIII of theMerchant Shipping Act 1894 shall include anycharterer and any person interested in or in possessionof the ship, and, in particular, any manager oroperator of the ship. (2) In relation to a claimarising from the act or omission of any person in hiscapacity as master or member of the crew or(otherwise than in that capacity) in the course of hisemployment as a servant of the owners or of anysuch person as is mentioned in subsection (1) of thissection - (a) the persons whose liability is excluded orlimited as aforesaid shall also include the master,member of the crew or servant, and, in a case wherethe master or member of the crew is the servant ofa person whose liability would not be excluded orlimited apart from this paragraph, the person whoseservant he is; . . ."
Staughton J., having decided that, as between the plaintiffand the defendants, Captain Sas was to be taken to have been theservant of the defendants, went on to hold that the defendantswere entitled to limit their liability, subject to any question ofactual fault or privity, under subsection 2(a) above, on the groundthat the plaintiff's claim arose from the act or omission ofCaptain Sas in his capacity as master of the tug Ina and that
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Captain Sas was at the time of such act or omission the servantof the defendants. Staughton J. went on to find that there hadbeen no actual fault on privity of the defendants (a finding whichwas affirmed by the Court of Appeal and not challenged in yourLordships' House), and held that the defendants were thereforeentitled to limit their liability as contended for by them.
Neill L.J., giving the judgment of the Court of Appeal[1986] Q.B. 965, did not accept the judge's view that thedefendants were liable to the plaintiff because Captain Sas was tobe taken, as between the plaintiff and the defendants, to havebeen the servant of the defendants. He concluded, after anexamination of all the relevant evidence, that Captain Sas was,and remained at all material times, the servant of Stevin. Hewent on to say, however, that this circumstance did not concludethe issue of liability in favour of the defendants, because it wasalso necessary to consider the question whether the defendantswere in breach of the personal duty of care owed by them to theplaintiff. In this connection he said, at p. 974:
"In the instant case the relevant facet of the general dutyof the defendants to take reasonable care for the safety ofthe young plaintiff was the obligation to provide andmaintain in operation a safe system of work."
Neill LJ. then examined the evidence relating to the systemof work, and in particular that of Captain Clifford, the othertugmaster, who alternated with Captain Sas in the command of thetug. Captain Clifford's evidence was that he did not rely onknocks by his deckhand on the outside of the wheelhouse in orderto be assured that the deckhand had completed his work. Herelied instead on one of three indications: a shout by the deckhandof "all gone," a hand signal by the deckhand to that effect, orhimself coming out of the wheelhouse and looking at the bollardson the tug. Having examined the evidence Neill L.J. said, at pp.974-975:
"In these circumstances there was scope for a finding thatthe system used by Captain Sas was not a safe system,because it relied largely (if not exclusively) on a soundsignal of a kind which was not distinctive like the shout 'allgone,' and which might be confused with one of the manyother noises likely to be heard during dredging operations atsea. But the very experienced judge, who heard theevidence, came to the conclusion that the system of workwas not unsafe. Furthermore, the judge concluded that theaccident happened, not because of a fault in the system, butbecause Captain Sas either carelessly did not wait for thesignal, or because he deliberately put the tug astern tomake the plaintiff move more quickly. We have come tothe conclusion, however, that in the circumstances of thiscase it is unrealistic to attempt to draw a clear dividingline between the system of work which Captain Sas laiddown for the plaintiff to follow, and the actual conduct ofCaptain Sas which caused the accident and the plaintiff'sinjuries. Captain Sas did not give evidence and the precisesequence of events can only be a matter of conjecture. Weconsider that it is just as likely that Captain Sas mistooksome other sound for a signal from the plaintiff as that he
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carelessly failed to wait for the plaintiff's signal or that heput the engines astern deliberately in order to make theplaintiff hurry up."
Neill L.J. then discussed at length the principles of lawgoverning the question of when employers may be held liable forthe acts or omissions of a person who is not their servant. In thecourse of that discussion he referred to and cited from two wellknown English authorities, Davie v. New Merton Board Mills Ltd.[1959] A.C. 604 and Wingfield v. Ellerman's Wilson Line Ltd. [1960]2 Lloyd's Rep. 16, and a recent decision of the High Court ofAustralia, Kondis v. State Transport Authority (1984) 55 A.L.R.225.
He expressed his conclusions with regard to the properprinciples of law to be applied and the proper approach to befollowed, at pp. 979-980:
"Neither in the cases to which we were referred in thecourse of the argument, however, nor in the otherauthorities to which we have had regard in the course ofconsidering this judgment, have we been able to discoverany general principle which provides a sure guide to thelimits of vicarious liability in tort. It is clear that thelegacy of the doctrine of common employment remains,together with the rather uneasy division between caseswhere an employer may be liable for the negligentperformance of his personal duties by a third party andcases where the employer may be liable vicariously for thenegligence of an employee or agent. It seems to this court,therefore, that in a case where a plaintiff is suing inrespect of injuries received by him in the course of hisemployment and while working at a place at which he isrequired by his employer to work, the only satisfactoryapproach is to look at all the circumstances in the light ofthe fact that it is the basic duty of the employer to takereasonable care so to conduct his operations as not tosubject those employed by him to unnecessary risk. Therelevant circumstances will include: (a) the skill andexperience of the injured employee, (b) the nature of thetask on which the employee was employed, (c) the placewhere the injured employee was employed and the degree ofcontrol which the employer exercised at that place, (d) therelationship, if any, between the injured employee and theindividual tortfeasor, (e) the relationship, if any, betweenthe employer and the individual tortfeasor, (f) the interest,if any, of the employer in the actual task which theindividual tortfeasor was performing when the accidentoccurred."
Neill L.J. went on to apply this statement of the properprinciples of law to be applied and the proper approach to befollowed to the facts of the present case, at p. 980:
"It is true that the tug Ina was owned by Stevin and thatCaptain Sas was employed by Stevin. But Captain Sas andthe plaintiff were working together in a small team of threeto perform a contract which, as we understand the matter,
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the defendants and Stevin were carrying out together.Indeed, as we have already observed, on alternate shifts thecaptain of the tug was Captain Clifford, an employee of thedefendants. The defendants put the plaintiff (who was ayoung and inexperienced deckhand) under the control andinto the care of Captain Sas. He was their agent ordelegate to take reasonable care to devise a safe system ofwork on board the tug. In the circumstances of this case,he was also the agent or delegate to take reasonable careto see that the safe system was carried out. Thedefendants themselves, of course, were a limited companywith headquarters in Guildford. They could only operatethrough their employees or other agents. It seems to usthat on any sensible view of the doctrine of vicariousliability Captain Sas was the agent or delegate of thedefendants to perform their duty towards the plaintiff. Ifthere had been clear evidence that Captain Sas had put thetug astern when he knew that the plaintiff had not releasedthe rope, we would have felt great difficulty in regardingthe defendants as being vicariously responsible for such anaction. The more probable cause of this accident was theabsence of a safe system, or a careless disregard by CaptainSas of the risks which his unsafe method of work entailed.With all due respect to the judge, we would decide the issueof liability in favour of the plaintiff, not because we thinkthat Captain Sas 'must be taken to have been the servantof the defendants, but because he was the person entrustedby the defendants with performing their duty to takereasonable care for the safety of this young man."
Neill L.J. then turned to the issue of limitation of liability.After setting out the relevant parts of section 503 of the Act of1894 and section 3 of the Act of 1958, he said that thedefendants would only be entitled to limit their liability if theycould show that they fell into one or more of the followingcategories: (1) the owners of the tug, (2) the charterers of thetug, (3) a person interested in the tug, (4) a person in possessionof the tug, (5) the manager or operator of the tug, (6) the mastersof Captain Sas. The judge, he said, had held that the defendantswere entitled to limit their liability on the ground that they fellinto category (6), namely, masters of Captain Sas. On the Courtof Appeal's view of the matter, however, Stevin were the mastersof Captain Sas and the defendants were not. The defendants didnot fall into any of the other categories either. Accordingly theywere not entitled to limit their liability.
My Lords, I consider first the primary issue as to whetherthe defendants are liable to the plaintiff at all, either on theground relied on by Staughton J. or on the different ground reliedon by the Court of Appeal. In relation to this issue I would makea number of observations. First, there was, in my opinion, nomaterial on which Staughton J. was entitled to find that a possibleexplanation of the action of Captain Sas in putting the enginesastern prematurely was that he did so deliberately in order toencourage the plaintiff to perform his tasks more quickly. Therewas no evidence that Captain Sas thought that the plaintiff workedtoo slowly, and, in the absence of such evidence, the suggestionthat Captain Sas deliberately put the plaintiff in danger in orderto teach him a lesson is not one which ought to be entertained.
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Secondly, I agree with the Court of Appeal that Captain Sas was,and remained at all material times, the servant of Stevin, and thatStaughton J. was wrong in holding that, as between the plaintiffand the defendants, Captain Sas must be taken to have been theservant of the defendants. Thirdly, I agree with the Court ofAppeal that the real question in the case is whether thedefendants were in breach of the duty of care which they owed tothe plaintiff in not devising and operating a safe system of workfor him. Fourthly, I agree with the Court of Appeal that therewas scope on the evidence for a finding that the system of workdevised by Captain Sas, under which the plaintiff was to informhim that he had completed his work of unmooring by knocking onthe outside of the wheelhouse, was unsafe. However, for reasonswhich will become apparent, I do not consider that it is necessaryto reach a conclusion on that point.
My Lords, the Court of Appeal regarded the case as raisingdifficult questions of law on which clear authority was not easy tofind. With great respect to the elaborate judgment of that court,I think that they have treated the case as more difficult than itreally is. A statement of the relevant principle of law can bedivided into three parts. First, an employer owes to his employeea duty to exercise reasonable care to ensure that the system ofwork provided for him is a safe one. Secondly, the provision of asafe system of work has two aspects: (a) the devising of such asystem and (b) the operation of it. Thirdly, the duty concernedhas been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evidentand needs explaining. The essential characteristic of the duty isthat, if it is not performed, it is no defence for the employer toshow that he delegated its performance to a person, whether hisservant or not his servant, whom he reasonably believed to becompetent to perform it. Despite such delegation the employer isliable for the non-performance of the duty.
In the present case the relevant system of work in relationto the plaintiff was the system for unmooring the tug Ina. In theevents which occurred the defendants delegated both the devisingand the operating of such system to Captain Sas, who was nottheir servant. An essential feature of such system, if it was tobe a safe one, was that Captain Sas would not work the tug'sengines ahead or astern until he knew that the plaintiff hadcompleted his work of unmooring the tug. The system whichCaptain Sas devised was one under which the plaintiff would lethim know that he had completed that work by giving two knockson the outside of the wheelhouse. I have already said that I agreewith the Court of Appeal that there was scope, on the evidence,for a finding that that system was not a safe one. I shall assume,however, in the absence of any contrary finding by Staughton J.,that that system, as devised by Captain Sas, was safe. Thecrucial point, however, is that, on the occasion of the plaintiff'saccident, Captain Sas did not operate that system. He negligentlyfailed to operate it in that he put the tug's engines astern at atime when the plaintiff had not given, and he, Captain Sas, couldnot therefore have heard, the prescribed signal of two knocks bythe plaintiff on the outside of the wheelhouse. For this failure byCaptain Sas to operate the system which he had devised, thedefendants, as the plaintiff's employers, are personally, notvicariously, liable to him.
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It was contended for the defendants that the negligence ofCaptain Sas was not negligence in failing to operate the safesystem which he had devised. It was rather casual negligence inthe course of operating such system, for which the defendants,since Captain Sas was not their servant, were not liable. I cannotaccept that contention. The negligence of Captain Sas was notcasual but central. It involved abandoning the safe system ofwork which he had devised and operating in its place a manifestlyunsafe system. In the result there was a failure by thedefendants, not in devising a safe system of work for the plaintiff,but in operating one.
On these grounds, which while not differing in substancefrom those relied on by the Court of Appeal are perhaps moresimply and directly expressed, I agree with that court that thedefendants are liable to the plaintiff.
I turn to the secondary issue of limitation of liability. Withregard to this, I agree entirely with the analysis of the relevantstatutory provisions made by the Court of Appeal. In order tosucceed on limitation, the defendants had to bring themselveswithin the six categories of persons specified by Neill L.J., towhich I referred earlier. On the footing that Captain Sas was notto be taken to have been the defendants' servant, they could notbring themselves within category (6). Nor, in my opinion, couldthey bring themselves within any of the other categories, (1) to(5). Before your Lordships counsel for the defendants submittedthat they came within category (3) as persons interested in thetug. In my opinion the expression " any person interested in ...the ship," as used in section 3(1) of the Act of 1958, means aperson having a legal or equitable interest in the ship. In thepresent case the whole legal and equitable interest in the tug Inawas, on the evidence, in Stevin. I do not therefore think thatthere is any substance in this submission.
My Lords, for the reasons which I have given, I considerthat the Court of Appeal decided rightly both the issues whicharise on this appeal, and I would accordingly dismiss the appealwith costs.
LORD MACKAY OF CLASHFERN
My Lords,
For the reasons given in the speeches of my noble andlearned friends Lord Hailsham of St. Marylebone and Lord Brandonof Oakbrook, with which I agree, I would dismiss the appeal.
LORD ACKNER
My Lords,
For the reasons given in the speeches of my noble andlearned friends Lord Hailsham of St. Marylebone and Lord Brandonof Oakbrook, with which I agree, I would dismiss the appeal.
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