Ship's ladder that had been used daily for 4 years not a foreseeable risk

John Mulligan (plaintiff/ appellant) v Holland Dredging Co (Irl) Ltd (defendant/ respondent).

Negligence - Employer's liability - Standard of care - Employee allegedly fell descending a ladder - Whether ladder and hatch arrangement represented a foreseeable risk - Whether the relationship of employer and employee existed between the parties.

The Supreme Court (before the Chief Justice, Mr Justice Hamilton; Mr Justice O'Flaherty and Mr Justice Murphy); judgment delivered 21 November 1996.

WHERE a plaintiff had allegedly fallen from a ladder on board a dredging vessel, then, in determining the liability of an employer, in general, it was sufficient to ask whether the employer had taken reasonable care for the safety of his employees to prevent injury or damage to them from a foreseeable risk. In determining that the plaintiff had failed to satisfy the court that the ladder and hatch arrangements represented a "real or significant danger to crew members", the trial judge had put the obligation on the plaintiff too high. However, the Supreme Court was in as good a position to judge the issue of negligence in this case and on the evidence the plaintiff failed to establish negligence.

As it was established that there was no negligence then it was not necessary to resolve the issue of whether the relationship of employer and employee existed between the parties.

The Supreme Court so held in affirming the decision of the High Court.

Henry Hickey SC and Miriam O'Riordan BL for the plaintiff/ appellant; Liam McKechnie SC and Gerard Danaher BL for the defendant/ respondent.

MR JUSTICE O'FLAHERTY said that this was an appeal brought by the plaintiff from the decision of the High Court dismissing his claim for damages for personal injuries arising out of an accident alleged to have occurred in the course of his employment with the defendants on 16 July 1987. On that occasion he was working as a deckhand on the dredger Neptune in the port of Haifa when he fell from a vertical ladder linking the deck of the vessel to a stores area below and he sustained an injury to his back.

Mr Justice O'Flaherty said that the plaintiff, who was 3 at the date of the accident, had spent all his working life on construction work on land as well as on vessels at sea. In 1987 he was offered work on the Neptune and he was kept on from March until 16 July 1987. Mr Justice O'Flaherty said that the evidence established that the plaintiff had used the ladder in question on hundreds of occasions prior to the accident.

Mr Justice O'Flaherty said that the defendant company was a subsidiary of a Dutch company and the work in Haifa was being carried out by another subsidiary of the Dutch parent company. The trial judge had found that the parent company in the Netherlands had accepted responsibility for payment of the plaintiff's wages while he was working in Haifa and also the cost of transport of the plaintiff between Ireland and Israel. While on board the Neptune in Haifa, the plaintiff was under the command of a captain who was employed by the parent company.

Mr Justice O'Flaherty said that the plaintiff claimed that when making his way from the hatch opening at deck level on to the ladder beneath it was necessary for him to put one leg down until his foot rested on a narrow bracket linking the top of the ladder to the structure of the vessel and to then bring down the other leg to the top rung of the ladder and descend. On the day of the accident he had just reached the position with one foot on the bracket on top of the stile of the ladder and the other on the top rung, when he slipped and fell more than twelve feet to the floor beneath, striking his back against a freezer. Mr Justice O'Flaherty pointed out that it was relevant that the plaintiff did not seem to know what caused him thus to slip.

An engineer, who gave evidence on behalf of the plaintiff, but who did not see the original ladder described the new ladder installed replacing the vertical ladder from which the plaintiff had fallen as safe and he said that it had a safe and secure foothold in the steps. Mr Justice O'Flaherty said that the case presented in negligence was that the ladder that should have been available was the new ladder and not the one from which the plaintiff fell.

Referring to the defendants' evidence, Mr Justice O'Flaherty said that Mr Van Weperen, the project manager for the dredging operations in Haifa, testified that the vessel had been constructed in accordance with Dutch shipping regulations and the ship had a certificate of seaworthiness from Bureau Veritas which was valid at the time of the accident. Mr Van Weperen also gave evidence that the plaintiff had told him during a stay in his apartment, that the accident had occurred when he was coming up the ladder carrying a tin of paint attached to a rope.

The captain also gave evidence that the ladder was safe and the new ladder was intended to give help to those going up, rather than down, as people going up would be more likely to be carrying something.

Mr Justice O'Flaherty said that the trial judge had concluded that the relationship of employer and employee did not exist between the plaintiff and defendant on the date of the accident. While his wages for his time at Haifa were paid as a matter of in-company convenience by the Irish company, all powers of control over him were exercised by those in charge of the vessel during the continuance of the charter to Holland Dredging Israel Ltd and no control in the workplace rested with the defendants while the vessel was in Israel. The trial judge had gone on to say that, while the decision on this issue of law appeared to dispose of the case, in any event the plaintiff had failed to satisfy the court as a matter of probability that the ladder and hatch arrangements presented any real or significant danger to crew members taking reasonable care for their own safety. The trial judge had also been of the view that the accident did not happen as described by the plaintiff.

Mr Justice O'Flaherty said that it was not necessary to resolve the issue as to whether the relationship of employer and employee existed between the parties as he had reached a clear conclusion that there was no negligence on the part of the defendants.

Mr Justice O'Flaherty rejected the plaintiff's submission that the trial judge's conclusion of the lack of a proximate relationship between the parties coloured the rest of his judgment.

It was also submitted that the trial judge had phrased the test of the duty of care owed by the employer in the wrong fashion when he referred to the failure of the plaintiff to establish that the ladder and hatch arrangement presented "any real or significant danger to crew members". Mr Justice O'Flaherty agreed that the statement of the duty of care could have been phrased differently and in general, in deciding whether the employer had any liability, it was sufficient to ask whether he had taken reasonable care for the safety of his employees to prevent injury or damage to them from a foreseeable risk, having regard to all the circumstances of the case.

Mr Justice O'Flaherty referred to a case with analogous facts, Kenny v Irish Shipping (unreported, 4 November 1969) where Mr Justice O Dalaigh and Mr Justice Budd placed the duty owed by a ship owner to a crewman as being one not to expose the plaintiff to any unusual danger or risk, and therefore to equate it to the duty owed to an invitee coming on to particular premises.

Mr Justice O'Flaherty said that the trial judge was echoing this language to a degree when he referred to a danger and by referring to a "real or significant danger" he was putting the obligation on the plaintiff too high.

However, Mr Justice O'Flaherty said that the Supreme Court was in as good a position to judge the issue of negligence in this case (cf Moore v Fullerton [1991] ILRM 29). The evidence was clear that the vertical ladder had been in daily use for four years without any significant mishap and the employers had fulfilled the requirements in Holland where the vessel was built. While it was true that the replacement ladder was safer, Mr Justice O'Flaherty said that this may be to view the matter with the wisdom of hindsight. There was also the fact that the plaintiff could not say what caused him to fall.

Mr Justice O'Flaherty said that there was a final point in the case and that was the trial judge's inclination to doubt the credibility of the plaintiff. This turned on the account that he had given to Mr Van Weperen and also from certain photographs put in evidence that he had exaggerated his symptoms to a degree which also tended to affect his credibility in the eyes of the judge. Mr Justice O'Flaherty said that in view of the clear failure of the plaintiff to establish that the hatch and ladder arrangement involved any negligence either to a crewman (assuming that the plaintiff was an employee) or, even taking him to be owed the same duty of care as is owed to an invitee, then it was not necessary to comment further on the matter of credibility except to say that matters of credibility were essentially for the trial judge.

In the circumstances, Mr Justice O'Flaherty dismissed the appeal.

THE CHIEF JUSTICE and MR JUSTICE MURPHY agreed with the judgment of Mr Justice O'Flaherty.

Solicitors: Timothy J. Hegarty (Cork) for the plaintiff/ appellant; P. J. O'Driscoll (Bandon) for the defendant/ respondent.