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Thomson (AP) (Respondent) v. Kvaerner Govan Limited (Appellants) (Scotland)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Thomson (AP) (Respondent) v. Kvaerner Govan Limited (Appellants) (Scotland)
THURSDAY 31 JULY 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Thomson (AP) (Respondent) v. Kvaerner Govan Limited (Appellants) (Scotland)
 UKHL 45
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives I would allow this appeal.
2. I am persuaded by the judgment of Lord Morison that this appeal should be dismissed. I am therefore unable to agree with the order proposed by Lord Hope of Craighead.
LORD HOPE OF CRAIGHEAD
3. This is an appeal against an interlocutor of the First Division of the Court of Session (the Lord President (Cullen) and Lords Abernethy and Morison) allowing the respondent's reclaiming motion against an interlocutor of the Lord Ordinary (Lord Philip) granting to the appellants decree of absolvitor from the respondent's claim against them for damages. The action arose out of an accident which the respondent sustained on 24 January 1995 while he was working in the course of his employment with the appellants as a welder at their Govan shipyard.
4. The respondent had been working during the morning attending to defects in welding work in one of the ballast tanks in a ship which was under construction in the shipyard. He had completed his work there before the lunch break. He returned to the tank after lunch to collect his equipment from the tank to take it to his next place of work. The tank was 14 feet 2 inches high, 12 feet 2 inches long from its forward to its after end and 6 feet 7 inches wide from its port side to its starboard side. The port and starboard sides of the tank were reinforced at various levels by steel stiffeners or bulb-bars protruding 12 inches from each side. Staging had been laid at various levels within the tank. The staging consisted of planks resting on the bulb-bars on either side of the tank. Entry to the tank was by means of a vertical fixed steel ladder, in front of which there was a guard rail to prevent people who had descended the ladder from stepping back into a hatchway in the floor which gave way to a lower compartment.
5. The respondent was alone when he sustained his accident, so there were no eyewitnesses to what happened as he entered the tank. After it had happened a fellow employee, Michael Kerr, came to his assistance. He found the respondent lying on the floor of the tank between the bottom of the ladder and the guard rail. He was lying on top of a plank of wood which had broken into two pieces. The broken ends of each piece were adjacent to each other and only slightly displaced from their relative positions before the plank broke. A number of other planks were scattered on the floor of the tank or still in position on the bulb-bars at various levels within the tank. Michael Kerr was unable to say how the accident had happened. But the respondent said that after entering the tank he descended the ladder until his feet were level with the second bulb-bar from the top. One of the pieces of equipment which he was seeking to recover was his face mask which was lying on the staging at that level. He stepped onto one of the planks which made up the staging. It immediately snapped and gave way, and he fell to the floor of the platform. He struck his head as he fell and the next thing he remembered was waking up in hospital.
6. The respondent's case on record was that the plank was found to be thin and inadequate for use as a staging plank on which men would walk. The accident was said to have been caused by the appellants' breach of Regulation 17(1) of the Shipbuilding and Shiprepairing Regulations 1960 (SI 1960/1932), which provides that all staging and every part thereof must be of suitable and sound material and of adequate strength for the purpose for which it is used. The respondent's case was simply that the plank was not strong enough to support him and that it broke when he stepped on it, causing him to fall. It was not disputed that if the accident happened as the respondent described the appellants were in breach of the regulation.
7. The evidence which was led at the proof was not so straightforward. The respondent gave a description of the layout of the tank which in several respects was admitted to be inaccurate. His fellow employee, Michael Kerr, described the scene as he found it after the accident. The appellants' safety officer took a number of photographs of the inside of the tank and of the plank on which the respondent was found to be lying by Michael Kerr. He showed the plank to Graham Cox, a health and safety inspector, who visited the shipyard on 6 February 1995. He was the only witness who examined the plank and gave details of its dimensions and its condition after the accident.
8. Mr Cox said that the plank was 5 feet 10 inches long, 9 inches wide and 2 inches thick. He said that a plank of these dimensions was designed to support the weight of a man when bridging a gap as large as 11 feet 6 inches, and that it was of adequate strength to span the space between the bulb-bars. He found no flaw in the plank which would have caused it to break under a man's static weight. His conclusion was that it was unlikely that it could have snapped simply as a result of the respondent placing his weight on it in the circumstances which he had described. But he accepted that the inference could be drawn that the plank was not of adequate strength if it did indeed snap beneath the respondent when he stepped on to it.
9. The question which the Lord Ordinary had to decide was whether the respondent's account of the accident had been proved on a balance of probabilities. The issue, as the Lord Ordinary saw it, was whether the respondent's account could be accepted as reliable. It was not disputed that his recollection of the layout within the tank was faulty. He said that the ladder was on the starboard wall of the tank, roughly halfway between the forward and aft bulkheads and that when he got down to the level of the second bulb-bar he came off the right hand side of the ladder and stepped onto the plank nearest the ladder. In fact, the ladder was positioned parallel to and about 3 feet 3 inches forward of the centre of the aft bulkhead, and it would have been impossible for the respondent by coming off the right hand side of the ladder to make the movement which he described.
10. Another matter on which the respondent's recollection was admitted to have been at fault was the question whether or not the broken plank had been painted. He said that it was, and so did Michael Kerr. Neither of these witnesses was challenged in cross-examination on this point. But when Mr Cox was asked about this he said that he was fairly sure in his own mind that it was not painted. He also said that he would have noted this if it had been, as this would have been relevant to his inspection of it. It is not now disputed that the plank which Mr Cox inspected was the plank which was found beneath the respondent after the accident. The Lord Ordinary's conclusion was that the respondent's description of the few seconds leading up to the accident must be regarded as inaccurate.
11. On the other hand there was Mr Cox's evidence. The Lord Ordinary noted that he did not profess any specific expertise in the effect of force on wooden planks. But he regarded Mr Cox as an impartial witness, and he noted that he had 21 years' experience in the shipbuilding and chemical engineering industries. His evidence was that prior to the facture the plank was of adequate strength to support the weight of a man when bridging a span between the bulb-bars of 4 feet 7 inches. He also said that, if the plank snapped 11 feet above the floor of the tank in the way the respondent described, it was unlikely that the respondent would be found lying on top of it or that the two broken pieces of it would be found so close to their original position relative to one another. This evidence seemed to the Lord Ordinary to accord with common sense. There was no contrary expert evidence.
12. There were a number of other factors which the Lord Ordinary took into account before concluding that, in the end and after assessing the weight of the evidence, the respondent had failed to satisfy him on a balance of probabilities that the accident happened as he said it had. It was suggested that the respondent, who was unable to communicate for several weeks after the accident, may have been suffering from retrograde amnesia. Two consultant neurosurgeons gave evidence on this matter, although their evidence was not all one way. Mr Philip Barlow said that the respondent had suffered a moderately severe head injury, as a result of which he would have expected some degree of retrograde amnesia. Mr Kenneth Lindsay said that he would not necessarily have expected the respondent's memory to be impaired as a result of the accident. The Lord Ordinary said that he found it difficult to resolve the difference of view between these witnesses, but that he was inclined to accept Mr Barlow's evidence as he was unable to accept that the respondent had an accurate recollection of the accident.
13. Another factor in the case was the possibility that the respondent had derived his account of the accident from Mr Kerr, whose evidence that the plank had snapped and that it had been painted was in very similar terms to the respondent's own evidence. Mr Kerr said that he had never discussed the accident with the respondent, but the respondent's brother worked in the same shipyard and it was suggested that Mr Kerr's account of the circumstances was communicated to the respondent by members of his family. The Lord Ordinary said that he was not in a position to find it established that the respondent's information about the accident originated with Mr Kerr, but that the similarities between the evidence of the respondent and Mr Kerr did nothing to deter him from concluding that the respondent's description of it could not be accepted as reliable.
14. As a result of the accident the respondent sustained a serious head injury. Among the disabilities from which he suffers is a form of paralysis in the throat, the effect of which is to render speech difficult. The Lord Ordinary paid tribute to the courage and patience which the respondent showed when he was giving evidence, and it is clear from the transcript that the Lord Ordinary took great care to set him at his ease as far as possible and to assimilate his account of the accident. I think that it is also clear that he reached the decision which he did with reluctance. He said that he was forced to the conclusion, in the light of Mr Cox's evidence, that the respondent's evidence could not be accepted as reliable. Overall, the impression which I have is of a compassionate and careful judgment. The result was unfavourable to the respondent. But it was reached as a result of weighing up various factors, of which the most important was the obvious difficulty of reconciling the respondent's account of the accident with the evidence of Mr Cox.
15. The opinion of their Lordships of the First Division was delivered by Lord Morison. He said that the court was of the opinion that the reasons given by the Lord Ordinary for holding as he did were not satisfactory and that he erred in attaching the weight which he did to Mr Cox's evidence. In their opinion Mr Cox's evidence was not in itself sufficient to justify the conclusion that the respondent's evidence of the immediate cause of his accident should be rejected as unreliable. As Lord Morison put it, the respondent must be regarded as an honest witness whose mistaken recollection of the accident, if it was mistaken, was unexplained. He said that it was of major importance, in considering Mr Cox's evidence as bearing on the respondent's reliability, to consider whether he or anyone else put forward a credible explanation of the accident if it did not happen as the respondent said it had, and that it was obviously much easier to accept the respondent's account of the accident in the absence of evidence of a possible alternative. The court's conclusion was that Mr Cox's evidence was not of sufficient weight by itself to justify rejection of the respondent's direct evidence as to the occurrence of the accident.
16. The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. In Clarke v Edinburgh and District Tramways Co, 1919 SC (HL) 35, 37, Lord Shaw of Dunfermline said that the duty of the appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong. The words "plainly wrong" were picked up and repeated by Lord Macmillan in Thomas v Thomas 1947 SC (HL) 45, 59-60 when he said:
17. As Lord Stott observed in his dissenting opinion in McLaren v Caldwell's Paper Mill Company Ltd, 1973 SLT 153, 168, a Lord Ordinary's view on the credibility or reliability of a witness is not sacrosanct. But the jurisdiction of the appellate court must be exercised within narrow limits where the only issue is whether it should take a different view from that which the trial judge formed on the facts. Viscount Simon said in Thomas v Thomas at p 48 that Lord Greene MR had admirably stated the limitations to be observed in the course of his judgment in Yuill v Yuill  P 15. In that case, at p 19, Lord Greene MR said:
18. Although Lord Morison said that the reasons given by the Lord Ordinary for holding as he did were not satisfactory, the opinion which he delivered falls short of saying that the Lord Ordinary had gone plainly wrong. He said that the conclusion which the court had reached was that Mr Cox's opinion was not of sufficient weight by itself to justify rejection of the respondent's direct evidence as to the occurrence of the accident. I am left with the clear impression that their Lordships, for their part, did not give the weight which an appellate court ought to give to the decision on the facts by the judge who was sitting at first instance. Instead they appear to have given way to the temptation which must always be resisted by an appellate court of retrying the case on the printed evidence.
19. The rule to which I have referred is so familiar that I would regard it as quite unnecessary for an appellate court as a matter of routine to cite the well known authorities. But one ought to be able to detect some signs, in the language used or at least in the general approach which as been taken, that the court had the rule in mind when it was addressing the argument. One would expect it to be said that the Lord Ordinary had gone plainly wrong or that it unmistakably appeared from the evidence that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses. Those indications are absent from Lord Morison's opinion. What one finds instead is a re-examination of the question which was pre-eminently a matter for the Lord Ordinary - namely whether the respondent's account was to be regarded as reliable having regard to the weight of the evidence.
20. Lord Morison was, of course, right to point out that the respondent's evidence must be approached on the basis which the Lord Ordinary accepted that he was not being deliberately untruthful when he gave his account of the accident. Credibility was not an issue in this case, as it was ultimately seen by the Lord Ordinary. The question to which he addressed his mind was whether the account which the respondent gave was to be rejected as unreliable. But the fact that reliability, not credibility, was the issue does not mean that an appellate court is in as good a position to resolve it as the trial judge. This is because there are various ways of testing a witness's reliability. One way is to see how his account fits in with the other evidence. If that were to be regarded as the only test, it would no doubt be capable of being performed equally well by an appellate court as by the judge who is sitting at first instance. But another way is to examine the witness's demeanour in all its various aspects when he is giving his evidence. If his version of the facts is in conflict with that which is given by another witness whose honesty is not in doubt, the demeanour of that other witness too will also be relevant. The demeanour of the respondent and Mr Cox when they were giving their evidence was part of the material before the Lord Ordinary. An appellate court should be slow to interfere with a decision based on a view of the reliability of witnesses of whom the Lord Ordinary was able to make a personal assessment.
21. At the heart of the decision which their Lordships reached were two factors. The first, which is discussed in paragraph 9 of the Lord Morison's opinion, was their conclusion that the respondent's evidence on the crucial question whether he stepped on a plank which broke was independently supported by facts which, ultimately at least, were not disputed. The second, which is discussed in paragraph 11 of the opinion and was said to be a feature of major importance in the case, was the fact that neither Mr Cox nor anyone else put forward a credible explanation of how the accident occurred if it did not occur as the respondent said it did.
22. Various facts that are narrated by Lord Morison in paragraph 9 of his opinion, subject to one point that has to be qualified, were indeed not disputed. The respondent undoubtedly fell from a considerable height within the tank. The breaking of the plank which was found beneath him was certainly associated in some way with the accident. The broken plank was a staging board which was in the tank for use as a platform or part of a platform. And the respondent was engaged in retrieving his equipment. But all these facts are neutral, as Mr Jones QC for the appellants was right to point out. They do not point one way or the other to the conclusion that the respondent's evidence that he fell because the plank snapped when he stood on it must be accepted as reliable.
23. One other fact is mentioned in paragraph 9. Lord Morison said that the equipment which the respondent was engaged in retrieving was later found at the height from which the respondent said that he had fallen. That plainly would have been an important fact, if it was an accurate statement of the evidence. But it was not. The respondent said that he had gone into the tank to collect the rest of his equipment. He said that he had a whole lot of equipment, including his mask, his mask box and various tools. He said that he had left this equipment in different places within the tank, that the mask which he was trying to retrieve was separate from his mask box and that the mask was on the staging at the level of the second bulb-bar from the top. He did not say where the rest of his equipment was, other than that it was in different places on staging and shelves within the tank. Mr Kerr said that when he examined the scene after the accident the respondent's mask box was placed with his other belongings on the bottom of the tank. There was no evidence from any other source than the respondent himself as to where his belongings were before the accident.
24. As Lord Morison observed in paragraph 11 of his opinion the Lord Ordinary reached no conclusion as to how the plank could have broken in the accident if it did not happen as the respondent stated in his evidence. Mr Cox rejected the respondent's account on the grounds that, if the plank snapped while he was standing on it, the ends of the two broken parts would pivot upwards while he fell through between them and that in any event they would be unlikely to end up in the position in which they were found afterwards. He was also of the view that the plank was of adequate strength to span the tank and that, as it had been in use for some time, it would have gone at an earlier date if there was a serious flaw in it. Various other hypothetical situations were put it him in cross-examination to see if he could come up with an alternative explanation as to how the respondent could have ended up in the position where he was found with the broken plank beneath him. But there were flaws in each of them and he was unable to provide a satisfactory alternative.
25. The Lord Ordinary said that, as the onus of proof was on the respondent, he did not think that any useful purpose would be satisfied by his examining these alternative theories in detail. Lord Morison criticised this approach. He said that in the court's opinion any comparison of the respondent's evidence with that of Mr Cox should take into account that fact that Mr Cox was unable to put forward any credible alternative to the respondent's explanation that the plank broke when he stepped on it. He said that the court took this feature into account in holding that the respondent's evidence could be more readily accepted than would have been the case if there had been a satisfactory alternative.
26. In my opinion the Lord Ordinary's approach to this matter cannot be faulted. Mr Cox's difficulty in finding a satisfactory alternative explanation for the accident was, of course, a factor which had a bearing on his reliability. But there other factors too which bore on this issue, such as the coherence and weight of his reasons for rejecting the respondent's account of it. The assessment as to where the balance lay on this issue was pre-eminently a matter for the Lord Ordinary. He was right, also, to remind himself that the onus was on the pursuer to prove that the plank was not fit for the purpose for which it was being used. There is no doubt that cases do arise from time to time where the onus passes to the defenders to provide an explanation for an accident which does not point to fault on their part. But if that is to happen the evidence must first raise a presumption that they were to blame for the accident. The paradigm case is where the pursuer shows that he is entitled to the benefit of the maxim res ipsa loquitur: see Scott v The London and St Katherine Docks Co (1865) 3 H & C 596, 601 per Erle CJ; Devine v Colvilles Ltd 1969 SC (HL) 67. This requires circumstances to be established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. But that is not this case. It was for the respondent to prove that the plank was of inadequate strength and that it broke when he stepped on it. It was not for the appellants to provide an alternative explanation for the accident.
27. For all these reasons I would allow the appeal and restore the interlocutor of the Lord Ordinary.
LORD HOBHOUSE OF WOODBOROUGH
28. For the reasons given by my noble and learned friend Lord Hope of Craighead, with which I agree, I would allow this appeal and restore the interlocutor of the Lord Ordinary.
LORD RODGER OF EARLSFERRY
29. I have had the advantage of considering in draft the speech of my noble and learned friend Lord Hope of Craighead. I am in full agreement with it and would accordingly allow the appeal and restore the interlocutor of the Lord Ordinary.
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