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Ladder Fall Compensation Claim
Ladder Fall Injury
The Maersk Co Ltd & Anor V Keith Jeremy Wilson (2004)
Where the judge was considering as the basis for his decision a scenario that had not been explored by the parties before the close of the evidence, it was best that they were warned of the course that the judge might take and given the opportunity to make submissions upon it
Unsafe Work System
The defendant shipping company (M) appealed against a finding that it operated an unsafe system of work which had resulted in an accident causing personal injury to the claimant employee (W). W cross-appealed against a failure to award him costs on an indemnity basis. W was employed by M as an electrical engineering officer working on board one of its container ships. W had over 20 years sea-going experience and had sailed on this particular ship on many occasions. At the time of the accident W was about to descend a ladder leading from a raised walkway.
The ladder's handrail extended only about 10 inches above the walkway, and although there was an adjacent steel railing, W reached down to grasp the handrail before descending the ladder. As he did so, the ship lurched, causing him to fall some eight feet, and causing him injury. The judge found that the ladder was not unsafe given that, despite its handrail extending only a short distance, there was the additional railing, which W could have used to steady himself.
Health And Safety Regulations
After the close of the evidence, W submitted that this particular ladder was different from the others on board the ship in that it was the only one with an additional railing close by, and he argued that the way he had begun to descend that ladder was the way in which all the other ladders had to be descended, and that he was thus required to comply with an unsafe system of working.
The judge found that the system for descending the other ladders was unsafe, that it was reasonably foreseeable that an experienced seaman would develop the habit of descending all the ladders in a way that was unsafe, and that this unsafe system of working provided by M was a proximate cause of the accident.
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No Warning Given
W beat an earlier offer under CPR Part 36 and the judge ordered that M should pay W's costs on the standard basis. M submitted that there had been no evidence on which the judge's conclusions could be justified. W argued that having beaten the Part 36 offer, costs should have been awarded to him on an indemnity basis.
HELD: (1) When the judge realised that he was going to decide the case on a new footing, it would have been better if he had given the parties a specific warning that he might take that course, and had invited submissions upon it. However, the judge's conclusions had plainly been open to him, and he had ample evidence on which to base his findings.
Employer Negligence Claim
(2) Decisions about costs were for the trial judge. The judge's main reason for awarding costs on the standard rather than the indemnity basis was that the point on which W had succeeded had not been pleaded and had been raised late in the case, and it was open to the judge to mark those matters in the costs order. CPR r.36.21(3) was not an "all or nothing" provision, requiring the court to make either all of the orders envisaged by r.36.21(2) and
(4) or none of them. Rather, the rules provided the judge with a range of possible ways of marking a failure to meet a Part 36 offer. This was an exceptional case in which the judge had been entitled to use his discretion and judgment.
Appeal dismissed, cross-appeal dismissed.
Personal Injury - Civil Procedure - Health And Safety - Negligence
CA (Dyson LJ, Buxton LJ, Ward LJ) 25/3/2004
LTL 25/3/2004 (Unreported elsewhere)
Document No.: AC0108075
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