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 was
referred the Cause McDermid (A.P.) against Nash Dredging &
Reclamation Company Limited, That the Committee had heard
Counsel on Tuesday the 5th day of May last, upon the Petition
and Appeal of Nash Dredging Limited, formerly Nash Dredging
and Reclamation Company Limited, of Anchor House, Station Row,
Shalford, Guildford, Surrey, praying that the matter of the
Order set forth in the Schedule thereto, namely an Order of
Her Majesty’s Court of Appeal of 16th April 1986, might be
reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet; as upon the Case of Jamie
McDermid lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of 16th April 1986 complained of in
the said Appeal be, and the same is hereby, Affirmed and that
the said Petition and Appeal be, and the same is hereby,
dismissed this Houses And it is further Ordered, That the
Appellants do pay or cause to be paid to the said Respondent
the Costs incurred by him in respect of the said Appeal: And
it is also further Ordered, That the costs of the Respondent
he taxed in accordance with Schedule 2 to the Legal Aid Act
1974.
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 Harwich
Lord Hailsham of St. Marylebone
Lord Brandon of Oakbrook
Lord Mackay
Lord Clashfern of Ackner
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speeches
of my noble and learned friends Lord Hailsham of St. Marylebone
and Lord Brandon of Oakbrook. I agree with them both and for
the 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 the
plaintiff (appellant) against his employers, the defendants
(respondents), as the result of an accident which took place as
long ago as 22 June 1975.
The fact that on the date of the hearing of this appeal on
5 May 1987 both the question of liability and the quantum of
damages were still open after nearly 12 years for discussion does
not shed a very favourable light on our system for dealing with
litigation 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 a
fjord at Lulea in Sweden.
In the first sentence of this contract it was expressly
agreed:
– 1 –
“The employee shall safely comply with the lawful directions
of the company’s representatives. . .”
It must be noted that the defendants’ employers were a
subsidiary (it is believed wholly-owned) of a Dutch company Stevin
Baggeren B.N. (“Stevin”).
The function of the defendants was to provide and pay the
British 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 by
Stevin and under the command of her Dutch skipper (Captain Sas)
who was an employee of Stevin. The tug was in fact operated
turn and turn about by Captain Sas and a British skipper (Captain
Clifford) who was an employee of the defendants. At all material
times, however, and by direction of the defendants under clause 1
of the contract of service, the Ina and the plaintiff were both
under the total operational control of Captain Sas and subject to
his orders.
The accident may be very simply described. The plaintiff’s
duty, so far as material, was to tie and untie the Ina from a
dredger to which she was made fast fore and aft by means in
each case of a nylon rope attached to a bollard on the dredger by
an eye and to the tug by a number of figure-of-eight loops and
two half-hitches. At the time of the accident the plaintiff was
under orders to untie with a view to the Ina going astern. He
safely untied the aft rope and stowed it inboard the Ina. He then
went foreward to untie the forward rope from the dredger. His
correct drill, had he completed it, would have been to slacken the
rope 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, and
then haul the rope in and stow it safely inboard the Ina, proceed
to the wheelhouse and give it a double knock with his hand, in
order to signal to Captain Sas that it was safe to move. In the
event, after he had loosened the forward rope from the Ina’s
bollard, and before the deckhand on the dredger had had time to
remove the eye of the rope from the bollard on the dredger,
Captain Sas, who was at the wheel of the Ina, put the engine hard
astern. As a result, the rope snaked round the plaintiff’s leg,
pulled him into the water and caused him injuries which involved
the amputation of his leg and damage, recently (28 April 1986)
assessed at £178,450.05 by Staughton J., to whom the case had
been remitted for this purpose by the Court of Appeal.
The plaintiff’s claim in the proceedings was based on the
allegation (inter alia) of a “non-delegable” duty resting on his
employers to take reasonable care to provide a “safe system of
work”, (cf Wilsons & Clyde Coal Co. Ltd v. English [1938] A.C.
57). The defendants did not, and could not, dispute the existence
of such a duty of care, nor that it was “non delegable” in the
special sense in which the phrase is used in this connection. This
special sense does not involve the proposition that the duty cannot
be delegated in the sense that it is incapable of being the subject
of delegation, but only that the employer cannot escape liability if
the duty has been delegated and then not properly performed.
Equally the defendants could not and did not attempt to dispute
– 2 –
that it would be a central and crucial feature of any safe system
on the instant facts that it would prevent so far as possible the
occurrence of such an accident as actually happened, viz. injury to
the plaintiff as the result of the use of Ina’s engine so as to move
the Ina before both the ropes were clear of the dredger and
stowed safely inboard and the plaintiff was in a position of safety.
Since such a system could easily have been designed and put
in operation at the time of the accident in about half-a-dozen
different ways, and since it is quite obvious that such a system
would have prevented the accident had it been in operation, and
since the duty to provide it was “non-delegable” in the sense that
the defendants cannot escape liability by claiming to have
delegated performance of their duty, it is a little difficult to see
what possible defence there could ever have been to these
proceedings. There was indeed a preposterous suggestion in the
defendants’ pleading that the plaintiff had caused or contributed to
his own misfortune himself. There was never the smallest
evidence of this, and, no doubt prudently, the defendants called no
evidence, whether by Captain Sas or anyone else, to substantiate
it. This frantic attempt to avoid or reduce liability had already
died 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 in
fact been delegated on alternate shifts to Captain Sas and Captain
Clifford in the circumstances I have described. In both cases the
delegation covered, so far as can be ascertained, the whole
operation of the Ina, the orders to the deckhand, the system of
work to be followed, and since the skipper was at the wheel, the
operation of the engine. Both Captain Sas and Captain Clifford
had designed different systems of work either of which, if
followed, would probably have prevented the accident in the
instant appeal. The trial judge appeared to think that the system
designed by Captain Sas and applicable at the time of the accident
to the plaintiff was “not unsafe.” But this “system” involved at
its crucial stage, i.e. the point of time at which it was necessary
to ascertain for certain that the both ropes were inboard and the
deckhand safe, a double knock by the deckhand on the wheelhouse,
which could not be delivered unless the deckhand were clear of
danger. If the proper sequence was observed this would not
happen until after the second rope was stowed inboard. The Court
of Appeal doubted whether the “system,” if it can be called such,
was adequate, and I share this doubt. But it matters not. The
accident happened because the Ina went full astern before the
forward rope was clear of the dredger and with the plaintiff in a
position of acute peril. There was no double knock because
Captain Sas did not attempt to operate the correct sequence and
did in fact operate the engines with the eye of the rope still on
the bollard of the dredger. The “system” was therefore not being
operated and was therefore not being “provided” at all. It matters
not whether one says that there was no “system” in operation at
all, or whether one says that the system provided was unsafe, or
whether one says that the system in fact provided was not in use
at the crucial stage. In any event the defendants had delegated’
their duty to the plaintiff to Captain Sas, the duty had not been
performed, and the defendants must pay for the breach of their
“non-delegable” obligation.
– 3 –
Before your Lordships it was strenuously argued that the
fact that Captain Sas operated the engine in such dangerous
circumstances was the “casual” or “collateral” negligence of an
employee of an independent contractor, i.e. Stevin. Since Stevin
was itself the holding company of the defendants, the defendants
being its wholly-owned subsidiary, I find this morally an
unattractive proposition. But the fact was that the Plaintiff had
delegated their own “non-delegable” duty to Captain Sas who had
charge of the whole operation and his negligence was not
“collateral” or “casual” but central to the case and in total
disregard of the duty owed to the plaintiff to see that the engine
was not put in operation at all until it had been ascertained that
it was safe to do so. Whether the system as designed by Captain
Sas was adequately safe or not, whether it can truthfully be said
that there was in any real sense a system at all, or whether there
was a system not unsafe but not being operated, the defendants
had delegated their own “non-delegable” duty and it had not been
performed.
I do not wish to add anything on the second point in the
appeal which related to the attempt to limit the Defendants’
liability under section 503 of the Merchant Shipping Act 1984 as
amended by section 3 of the Merchant Shipping (Liability of
Shipowners and Others) Act 1958, except to say that I agree with
the judgment of the Court of Appeal [1986] Q.B. at 965, 980-982,
and that the result is a necessary consequence of the correct
analysis of the facts which I have endeavoured to give above.
In the event this appeal must be dismissed with costs. In
my view it is, and always was, unarguable.
LORD BRANDON OF OAKBROOK
My Lords,
On 22 June 1975 the plaintiff, then aged 18, suffered a
serious accident while working as deckhand on a tug called Ina in
a fjord at Lulea in Sweden. In the accident his left leg was so
badly injured that it had to be amputated at mid-thigh level, with
grievous consequences for the whole of his future life.
On 30 November 1977 the plaintiff brought an action in the
High Court in England against the defendants, by whom he was
employed at the time of the accident, claiming damages for the
injuries caused to him by it. The action was tried by Staughton J.
on 23, 24 and 25 July 1984. He held that the defendants were
liable in negligence to the plaintiff but that they were entitled to
limit their liability to £43,893 under the provisions relating to
limitation of liability contained in the Merchant Shipping Acts 1894
to 1984. In view of his decision that the defendants were entitled
to limit their liability to this sum, the judge did not assess the
full amount of the damages which the plaintiff would otherwise
have been entitled to recover. He gave judgment for the plaintiff
for £59,169.02 inclusive of agreed interest.
– 4 –
The plaintiff appealed to the Court of Appeal against the
judge’s decision that the defendants were entitled to limit their
liability. The defendants cross-appealed against the judge’s
decision that they were liable at all. The appeal and cross-appeal
were heard by the Court of Appeal (Fox, Parker and Neill L.JJ.)
on 14 and 15 January 1986. The reserved judgment of the court
prepared by Neill L.J. was handed down on 16 April 1986. In that
judgment the court allowed the plaintiff’s appeal and dismissed the
defendants’ cross-appeal. It further remitted the case to the judge
for him to assess the full amount of the damages which the
plaintiff 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 not
in dispute. The appellants are a wholly-owned subsidiary of a
Dutch dredging company, Stevin Baggeren B.V. (“Stevin”). In June
1975 the appellants and Stevin were together engaged in dredging
operations for the Swedish government in the fjord at Lulea. The
dredger was moored off-shore and a tug called Ina, owned by
Stevin, was used in the operations. These continued round the
clock so that the complement of the tug worked shifts. There
were two masters of the tug, each of whom worked a 12-hour
shift. One of these was Captain Clifford, who was employed by
the defendants. The other was Captain Sas, who was employed by
Stevin.
The part played by the plaintiff in the operations and the
circumstances of his accident are concisely set out in the
judgment of Staughton J. (transcript, pp. 35-36):
The task in hand there was dredging a fjord. At first the
plaintiff worked on the dredger for a few days; then he was
transferred to being a deckhand on the tug Ina. The
complement of the tug was a master, Captain Sas, the
plaintiff as deckhand, and a greaser to look after the
engines. It was used in the main to push barges from
alongside the dredger to a dumping ground, but also to
transport those working on the operation from and to the
shore at the beginning and end of shifts. The task of the
plaintiff as deckhand was to keep the deck clean and tidy,
and to see to the tying up and untying of the tug, whether
alongside the dredger or elsewhere. This involved two
man-made fibre ropes, each 1 1/2 inches in diameter, with an
eye at one end. The eye of one rope would be placed over
a bollard on the dredger, and then the rope would be
secured to two bollards on the tug by two figure-of-eight
turns and two half-hitches. The remainder of the rope
would then be coiled on the deck of the tug inboard of the
two bollards. The same process would be carried out for
each rope, except that one was secured to the for’ard end
of the tug and one to the aft end. To untie the ropes the
plaintiff would first slacken the aft rope by removing it
from the two bollards on the tug, next it would be removed
from the bollard on the dredger, and the plaintiff would
haul it aboard the tug. He would then do the same with
the for’ard rope. Finally, he would give two knocks on the
side of the wheelhouse to indicate to Captain Sas that the
ropes were both on board. On 22 July 1975, when the
plaintiff had been working on the tug for two days, the tug
– 5 –
was tied up to the dredger, and the time came when she
was to leave. Captain Sas, who did not speak much English,
signed to the plaintiff to untie the ropes. The plaintiff
took the aft rope off first as the tug was leaving with
engine astern. He then moved to the for’ard rope and
started removing it from the two bollards on board the tug.
As he was doing so, Captain Sas put the engine astern
prematurely; he started to move the tug away from the
dredger. The plaintiff immediately stood back as he thought
that the rope might break and injure him, but instead it was
pulled through the bollard and he went with it. He has
some recollection of the rope being round his left leg and
of being pulled through the bollard. After that he was in
the water, with his left leg very seriously injured.”
The plaintiff sought to establish liability against the
defendants on various grounds. Of these it is only necessary to
consider two: the first that the accident was caused by the
negligence of Captain Sas for which the defendants were
vicariously liable; and the second that the accident was caused by
the negligence of the defendants in failing to provide a safe
system of work for the plaintiff.
With regard to the first ground of liability, the defendants
did not admit that the accident had been caused by any negligence
of Captain Sas. They further contended that, even if it had been
so caused, Captain Sas was the servant of Stevin and not of the
defendants, so that the defendants were not vicariously liable for
the consequences of his negligence.
The defendants did not call Captain Sas to give evidence.
In these circumstances Staughton J. rightly had no hesitation in
finding, first, that Captain Sas had been negligent in putting the
tug’s engines astern prematurely, and, secondly, that the accident
had been caused by his negligence in this respect. With regard to
that negligence he said (transcript, p. 38):
“That may have taken the form of carelessness in not
waiting for the plaintiff’s signal before putting the engine
astern, or else a deliberate, but dangerous, manoeuvre
designed to encourage the plaintiff to perform his tasks
more quickly.”
On the question of the defendants’ vicarious liability for the
negligence 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 the
plaintiff to work with and under Captain Sas pursuant to the
plaintiff’s contract of employment with the defendants.
They made Captain Sas the foreman, boss or chargehand
through whom their orders would reach the plaintiff, and to
whom the plaintiff would render directly the service which
he owed to the defendants. As between the plaintiff and
the defendants, Captain Sas must be taken to have been the
servant of the defendants. If that involves any novel
doctrine, so be it. The common law would become obsolete
if it did not develop to meet new situations.”
– 6 –
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 within
his capabilities. Given due care and attention on the part
of himself and Captain Sas, there was nothing unsafe about
it.”
In the result Staughton J. decided that the plaintiff
succeeded against the defendants on the first ground of liability
referred to above, namely, vicarious liability for the negligence of
Captain Sas, but failed on the second ground of liability, namely,
failure of the defendants to provide a safe system of work for the
plaintiff.
The defendants contended that, if they were liable to the
plaintiff, they were entitled to limit the amount of their liability
to £43,893 under the provisions relating to limitation of liability
contained in the Merchant Shipping Acts. For the plaintiff it was
not disputed that, if the defendants were entitled to limit their
liability under these provisions, the amount of their limited
liability was £43,893. It was disputed, however, that the
defendants were entitled to limit their liability at all.
The right to limit liability for certain occurrences, including
accidents causing personal injury to some person, was given to
shipowners only by section 503 (in Part VIII) of the Merchant
Shipping Act 1894. That right was extended to persons other than
shipowners by section 3 of the Merchant Shipping (Liability of
Shipowners and Others) Act 1958 which provides:
“(1) The persons whose liability in connection with a
ship is excluded or limited by Part VIII of the
Merchant Shipping Act 1894 shall include any
charterer and any person interested in or in possession
of the ship, and, in particular, any manager or
operator of the ship. (2) In relation to a claim
arising from the act or omission of any person in his
capacity as master or member of the crew or
(otherwise than in that capacity) in the course of his
employment as a servant of the owners or of any
such person as is mentioned in subsection (1) of this
section – (a) the persons whose liability is excluded or
limited as aforesaid shall also include the master,
member of the crew or servant, and, in a case where
the master or member of the crew is the servant of
a person whose liability would not be excluded or
limited apart from this paragraph, the person whose
servant he is; . . .”
Staughton J., having decided that, as between the plaintiff
and the defendants, Captain Sas was to be taken to have been the
servant of the defendants, went on to hold that the defendants
were entitled to limit their liability, subject to any question of
actual fault or privity, under subsection 2(a) above, on the ground
that the plaintiff’s claim arose from the act or omission of
Captain Sas in his capacity as master of the tug Ina and that
– 7 –
Captain Sas was at the time of such act or omission the servant
of the defendants. Staughton J. went on to find that there had
been no actual fault on privity of the defendants (a finding which
was affirmed by the Court of Appeal and not challenged in your
Lordships’ House), and held that the defendants were therefore
entitled 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 the
defendants were liable to the plaintiff because Captain Sas was to
be taken, as between the plaintiff and the defendants, to have
been the servant of the defendants. He concluded, after an
examination of all the relevant evidence, that Captain Sas was,
and remained at all material times, the servant of Stevin. He
went on to say, however, that this circumstance did not conclude
the issue of liability in favour of the defendants, because it was
also necessary to consider the question whether the defendants
were in breach of the personal duty of care owed by them to the
plaintiff. In this connection he said, at p. 974:
“In the instant case the relevant facet of the general duty
of the defendants to take reasonable care for the safety of
the young plaintiff was the obligation to provide and
maintain in operation a safe system of work.”
Neill LJ. then examined the evidence relating to the system
of work, and in particular that of Captain Clifford, the other
tugmaster, who alternated with Captain Sas in the command of the
tug. Captain Clifford’s evidence was that he did not rely on
knocks by his deckhand on the outside of the wheelhouse in order
to be assured that the deckhand had completed his work. He
relied instead on one of three indications: a shout by the deckhand
of “all gone,” a hand signal by the deckhand to that effect, or
himself coming out of the wheelhouse and looking at the bollards
on the tug. Having examined the evidence Neill L.J. said, at pp.
974-975:
“In these circumstances there was scope for a finding that
the system used by Captain Sas was not a safe system,
because it relied largely (if not exclusively) on a sound
signal of a kind which was not distinctive like the shout ‘all
gone,’ and which might be confused with one of the many
other noises likely to be heard during dredging operations at
sea. But the very experienced judge, who heard the
evidence, came to the conclusion that the system of work
was not unsafe. Furthermore, the judge concluded that the
accident happened, not because of a fault in the system, but
because Captain Sas either carelessly did not wait for the
signal, or because he deliberately put the tug astern to
make the plaintiff move more quickly. We have come to
the conclusion, however, that in the circumstances of this
case it is unrealistic to attempt to draw a clear dividing
line between the system of work which Captain Sas laid
down for the plaintiff to follow, and the actual conduct of
Captain Sas which caused the accident and the plaintiff’s
injuries. Captain Sas did not give evidence and the precise
sequence of events can only be a matter of conjecture. We
consider that it is just as likely that Captain Sas mistook
some other sound for a signal from the plaintiff as that he
– 8 –
carelessly failed to wait for the plaintiff’s signal or that he
put the engines astern deliberately in order to make the
plaintiff hurry up.”
Neill L.J. then discussed at length the principles of law
governing the question of when employers may be held liable for
the acts or omissions of a person who is not their servant. In the
course of that discussion he referred to and cited from two well
known 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 of
Australia, Kondis v. State Transport Authority (1984) 55 A.L.R.
225.
He expressed his conclusions with regard to the proper
principles of law to be applied and the proper approach to be
followed, at pp. 979-980:
“Neither in the cases to which we were referred in the
course of the argument, however, nor in the other
authorities to which we have had regard in the course of
considering this judgment, have we been able to discover
any general principle which provides a sure guide to the
limits of vicarious liability in tort. It is clear that the
legacy of the doctrine of common employment remains,
together with the rather uneasy division between cases
where an employer may be liable for the negligent
performance of his personal duties by a third party and
cases where the employer may be liable vicariously for the
negligence of an employee or agent. It seems to this court,
therefore, that in a case where a plaintiff is suing in
respect of injuries received by him in the course of his
employment and while working at a place at which he is
required by his employer to work, the only satisfactory
approach is to look at all the circumstances in the light of
the fact that it is the basic duty of the employer to take
reasonable care so to conduct his operations as not to
subject those employed by him to unnecessary risk. The
relevant circumstances will include: (a) the skill and
experience of the injured employee, (b) the nature of the
task on which the employee was employed, (c) the place
where the injured employee was employed and the degree of
control which the employer exercised at that place, (d) the
relationship, if any, between the injured employee and the
individual tortfeasor, (e) the relationship, if any, between
the employer and the individual tortfeasor, (f) the interest,
if any, of the employer in the actual task which the
individual tortfeasor was performing when the accident
occurred.”
Neill L.J. went on to apply this statement of the proper
principles of law to be applied and the proper approach to be
followed to the facts of the present case, at p. 980:
“It is true that the tug Ina was owned by Stevin and that
Captain Sas was employed by Stevin. But Captain Sas and
the plaintiff were working together in a small team of three
to perform a contract which, as we understand the matter,
– 9 –
the defendants and Stevin were carrying out together.
Indeed, as we have already observed, on alternate shifts the
captain of the tug was Captain Clifford, an employee of the
defendants. The defendants put the plaintiff (who was a
young and inexperienced deckhand) under the control and
into the care of Captain Sas. He was their agent or
delegate to take reasonable care to devise a safe system of
work on board the tug. In the circumstances of this case,
he was also the agent or delegate to take reasonable care
to see that the safe system was carried out. The
defendants themselves, of course, were a limited company
with headquarters in Guildford. They could only operate
through their employees or other agents. It seems to us
that on any sensible view of the doctrine of vicarious
liability Captain Sas was the agent or delegate of the
defendants to perform their duty towards the plaintiff. If
there had been clear evidence that Captain Sas had put the
tug astern when he knew that the plaintiff had not released
the rope, we would have felt great difficulty in regarding
the defendants as being vicariously responsible for such an
action. The more probable cause of this accident was the
absence of a safe system, or a careless disregard by Captain
Sas of the risks which his unsafe method of work entailed.
With all due respect to the judge, we would decide the issue
of liability in favour of the plaintiff, not because we think
that Captain Sas ‘must be taken to have been the servant
of the defendants, but because he was the person entrusted
by the defendants with performing their duty to take
reasonable 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 of
1894 and section 3 of the Act of 1958, he said that the
defendants would only be entitled to limit their liability if they
could show that they fell into one or more of the following
categories: (1) the owners of the tug, (2) the charterers of the
tug, (3) a person interested in the tug, (4) a person in possession
of the tug, (5) the manager or operator of the tug, (6) the masters
of Captain Sas. The judge, he said, had held that the defendants
were entitled to limit their liability on the ground that they fell
into category (6), namely, masters of Captain Sas. On the Court
of Appeal’s view of the matter, however, Stevin were the masters
of Captain Sas and the defendants were not. The defendants did
not fall into any of the other categories either. Accordingly they
were not entitled to limit their liability.
My Lords, I consider first the primary issue as to whether
the defendants are liable to the plaintiff at all, either on the
ground relied on by Staughton J. or on the different ground relied
on by the Court of Appeal. In relation to this issue I would make
a number of observations. First, there was, in my opinion, no
material on which Staughton J. was entitled to find that a possible
explanation of the action of Captain Sas in putting the engines
astern prematurely was that he did so deliberately in order to
encourage the plaintiff to perform his tasks more quickly. There
was no evidence that Captain Sas thought that the plaintiff worked
too slowly, and, in the absence of such evidence, the suggestion
that Captain Sas deliberately put the plaintiff in danger in order
to teach him a lesson is not one which ought to be entertained.
– 10 –
Secondly, I agree with the Court of Appeal that Captain Sas was,
and remained at all material times, the servant of Stevin, and that
Staughton J. was wrong in holding that, as between the plaintiff
and the defendants, Captain Sas must be taken to have been the
servant of the defendants. Thirdly, I agree with the Court of
Appeal that the real question in the case is whether the
defendants were in breach of the duty of care which they owed to
the plaintiff in not devising and operating a safe system of work
for him. Fourthly, I agree with the Court of Appeal that there
was scope on the evidence for a finding that the system of work
devised by Captain Sas, under which the plaintiff was to inform
him that he had completed his work of unmooring by knocking on
the outside of the wheelhouse, was unsafe. However, for reasons
which will become apparent, I do not consider that it is necessary
to reach a conclusion on that point.
My Lords, the Court of Appeal regarded the case as raising
difficult questions of law on which clear authority was not easy to
find. With great respect to the elaborate judgment of that court,
I think that they have treated the case as more difficult than it
really is. A statement of the relevant principle of law can be
divided into three parts. First, an employer owes to his employee
a duty to exercise reasonable care to ensure that the system of
work provided for him is a safe one. Secondly, the provision of a
safe system of work has two aspects: (a) the devising of such a
system and (b) the operation of it. Thirdly, the duty concerned
has been described alternatively as either personal or non-
delegable. The meaning of these expressions is not self-evident
and needs explaining. The essential characteristic of the duty is
that, if it is not performed, it is no defence for the employer to
show that he delegated its performance to a person, whether his
servant or not his servant, whom he reasonably believed to be
competent to perform it. Despite such delegation the employer is
liable for the non-performance of the duty.
In the present case the relevant system of work in relation
to the plaintiff was the system for unmooring the tug Ina. In the
events which occurred the defendants delegated both the devising
and the operating of such system to Captain Sas, who was not
their servant. An essential feature of such system, if it was to
be a safe one, was that Captain Sas would not work the tug’s
engines ahead or astern until he knew that the plaintiff had
completed his work of unmooring the tug. The system which
Captain Sas devised was one under which the plaintiff would let
him know that he had completed that work by giving two knocks
on the outside of the wheelhouse. I have already said that I agree
with 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. The
crucial point, however, is that, on the occasion of the plaintiff’s
accident, Captain Sas did not operate that system. He negligently
failed to operate it in that he put the tug’s engines astern at a
time when the plaintiff had not given, and he, Captain Sas, could
not therefore have heard, the prescribed signal of two knocks by
the plaintiff on the outside of the wheelhouse. For this failure by
Captain Sas to operate the system which he had devised, the
defendants, as the plaintiff’s employers, are personally, not
vicariously, liable to him.
– 11 –
It was contended for the defendants that the negligence of
Captain Sas was not negligence in failing to operate the safe
system which he had devised. It was rather casual negligence in
the course of operating such system, for which the defendants,
since Captain Sas was not their servant, were not liable. I cannot
accept that contention. The negligence of Captain Sas was not
casual but central. It involved abandoning the safe system of
work which he had devised and operating in its place a manifestly
unsafe system. In the result there was a failure by the
defendants, not in devising a safe system of work for the plaintiff,
but in operating one.
On these grounds, which while not differing in substance
from those relied on by the Court of Appeal are perhaps more
simply and directly expressed, I agree with that court that the
defendants are liable to the plaintiff.
I turn to the secondary issue of limitation of liability. With
regard to this, I agree entirely with the analysis of the relevant
statutory provisions made by the Court of Appeal. In order to
succeed on limitation, the defendants had to bring themselves
within the six categories of persons specified by Neill L.J., to
which I referred earlier. On the footing that Captain Sas was not
to be taken to have been the defendants’ servant, they could not
bring themselves within category (6). Nor, in my opinion, could
they bring themselves within any of the other categories, (1) to
(5). Before your Lordships counsel for the defendants submitted
that they came within category (3) as persons interested in the
tug. In my opinion the expression ” any person interested in …
the ship,” as used in section 3(1) of the Act of 1958, means a
person having a legal or equitable interest in the ship. In the
present case the whole legal and equitable interest in the tug Ina
was, on the evidence, in Stevin. I do not therefore think that
there is any substance in this submission.
My Lords, for the reasons which I have given, I consider
that the Court of Appeal decided rightly both the issues which
arise on this appeal, and I would accordingly dismiss the appeal
with costs.
LORD MACKAY OF CLASHFERN
My Lords,
For the reasons given in the speeches of my noble and
learned friends Lord Hailsham of St. Marylebone and Lord Brandon
of Oakbrook, with which I agree, I would dismiss the appeal.
LORD ACKNER
My Lords,
For the reasons given in the speeches of my noble and
learned friends Lord Hailsham of St. Marylebone and Lord Brandon
of Oakbrook, with which I agree, I would dismiss the appeal.
– 12 –
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