Guernsey Law Reports 2007–08 GLR Note 23
STONE v. HICKMAN
COURT OF APPEAL (Bailhache, Bailiff of Jersey, Vaughan and Steel, JJ.A.): April 23rd, 2008
Employment—safety—breach of statutory duty
The appellant brought an action in the Royal Court against his employer, who was the owner and skipper of the fishing boat of which the appellant was a crew member. He had been seriously injured in the course of his work and claimed damages for breach of his employment contract (the duty to provide a safe working environment), negligence (the failure to provide a safe system of work) and breach of statutory duty owed to him under the Health and Safety at Work (General) (Guernsey) Ordinance 1987.
The appellant’s job was to load crab pots on to a platform (“the shooting table”) on the boat from which they were dragged into the sea attached to a long piece of rope (“the string”). There was a dispute on the evidence as to whether a pot fell from the shooting table, which the appellant picked up and replaced on the table—but it was clear that in some way his wrist became entangled in the rope attaching a pot to the string and his hand was amputated as the pot was dragged into the sea.
Expert witnesses gave evidence that an accident of this sort should be reasonably foreseeable by experienced fishermen (both the skipper and the crew) and were unwilling to apportion blame between the appellant and respondent. They gave their opinion that both were responsible because the skipper was overseeing the operation from the wheelhouse and the appellant was “handling the ropes” but they were not cross-examined and their views were not explored further.
The judge (Collas, Deputy Bailiff) correctly directed the Jurats in detail on the issues of responsibility, stressing on the issue of contributory negligence that (a) it operated differently in relation to common law liabilities and breach of statutory duty, and (b) it was necessary to look at the nature of the statutory duty to determine whether the conduct of the appellant could amount to contributory negligence. He specifically directed them that they need only consider contributory negligence if they were to find as a fact that the appellant had picked up and replaced on the shooting table a pot which had fallen off.
The Jurats found that (a) a pot did not fall off the table and was therefore not replaced by the appellant; (b) the installation of a different shooting system (which was in fact installed some weeks later) would have significantly reduced the risk of injury; (c) the respondent had not given any formal training to the appellant about the risks inherent in his work, including the risks of contact with a “live” rope but the appellant was nonetheless aware of these risks; and (d) the respondent had not carried out an assessment of the health and safety risks of the operation being conducted.
They therefore found that the appellant had been exposed to risk to his health and safety and required to work in an unsafe system of work and the respondent was liable to him at common law. They attributed 40% liability to the appellant and 60% to the respondent. They also found that there had been a breach of statutory duty by the respondent, which was the cause of the appellant’s injury. They again attributed 40% liability to the appellant and 60% to the respondent.
Held: (1) It was well established that the Court of Appeal would only interfere with a decision of the Jurats in the Royal Court if it was satisfied that there was no evidence before the Jurats on which they could reasonably have arrived at the findings under appeal, or that for some other reason those findings were perverse (Smith v. Slawther (1998), 25 GLJ 59, applied). Here, the Jurats had made findings which, had they followed the directions of the Deputy Bailiff, were in fact mutually contradictory—namely, finding that a pot did not fall from the shooting table but nevertheless going on to consider and make a finding on contributory negligence. The latter finding could not stand and the appeal would succeed on this ground alone.
(2) The Jurats had properly found that the respondent had breached his duty under the Health and Safety at Work (General) (Guernsey) Ordinance 1987, s.1(1) and (2) to provide a system of work which was, so far as reasonably practicable, safe and without risk to the employee’s health. He had also failed to provide the necessary information, instruction, training and supervision to prevent injury to the appellant. Although, under s.6 of the Ordinance, an employee had a duty to take reasonable care for his own health and safety, the respondent had failed to satisfy the burden of proving that the appellant did not do so. The appellant knew that he was working in a dangerous environment but nothing suggested that he had failed to take reasonable care. He had not consciously done anything wrong, disobeyed instructions or wilfully taken any greater risk than he was required to take (Davies v. Swan Motor Co. (Swansea) Ltd., [1949] 2 K.B. 291, considered; Stapley v. Gypsum Mines Ltd., [1953] A.C. 663, considered; Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608, considered) and was not otherwise at fault. At worst, he may have been guilty of an act of momentary inattention which was not sufficient to constitute contributory negligence (Staveley Iron & Chemical Co. Ltd. v. Jones, [1956] A.C. 672, dicta of Lord Tucker applied).
(3) The appellant would therefore also succeed on this ground and the finding of contributory negligence would be discharged, with an order for the recovery of damages on a 100% basis.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR Note 23