Alison McAteer

The court ruled in Paul Farley v The Scottish Ministers that notwithstanding an admission of liability by Mr Farley’s employers for an incident where he sustained injuries, he was 50 per cent contributorily negligent. This meant his award of damages was reduced by 50 per cent. Although fact specific, there are some general takeaways from the case that may be of interest to employers and insurers looking to argue contributory negligence in employer’s liability claims.

Case Circumstances

Mr Farley (“the pursuer”) was employed by Marine Scotland as an Able Seaman aboard the MPV Hirta (“the vessel”). His duties included watch keeping, maintenance and working on the two rigid inflatable boats (RIBs) carried by the vessel.

On 4 June 2016, the pursuer was one of a group of personnel working aboard the Delta RIB (“the RIB”). Following its excursion at sea, the RIB returned to the vessel and required to be lifted out of the water and back onto the vessel by a crane. As it was being lifted out of the water, the RIB came out at an angle, with the bow above the stern.

The pursuer’s evidence was that he had never experienced the RIB being at this angle before. He stated people were shouting for “someone” to go forward in the RIB, and the pursuer decided to go forward to try and balance the RIB into a horizontal position. He claimed that when the RIB was then lowered down onto the vessel, the crane let it “freefall” into place and the bow end came down sharply. The pursuer was seated on the floor towards the bow at the time. As a result of the impact, the pursuer claimed he suffered a jarring soft tissue injury to his lower back and an injury to his right ankle.

In defending the action, his employers admitted primary liability for the incident but argued the pursuer had been contributorily negligent. In evidence, the vessel’s Captain stated that it was not unusual for the RIB to leave the water at an angle, that he had not told the pursuer to go forward, and he was not aware of anyone else telling the pursuer to do so.

Decision

In reaching his decision to find the pursuer contributorily negligent, the Sheriff considered the reliability and credibility of the pursuer’s evidence. He found that some elements of the pursuer’s recollection of events were coloured by his symptoms, which he linked to his injuries on the day. The Sheriff considered the pursuer’s evidence was at variance with the evidence of the other witnesses, whom the Sheriff regarded as being credible and reliable. As a result, the Sheriff noted that whilst he accepted that there was shouting from crew members as the RIB was being lowered, he did not accept that they were instructing the pursuer to move forward to the bow. Rather, he concluded the pursuer had moved forward of his own accord.

In addition, key to the Sheriff’s decision to find the pursuer partially responsible was the pursuer’s own experience and training. The pursuer, aged 55 at the time of proof, had worked on a variety of jobs, all at sea, from the age of 19. He held a number of certificates which included safety training, and witness evidence led also confirmed that on board health and safety training was mandatory, including RIB specific training. Taking this into account the Sheriff concluded that the pursuer ought to have been aware of the risks in acting as he did, in going forward on the RIB while it was being lifted out of the water.

Key Takeaways

This decision is a reminder to employers of the importance of ensuring that employees have regular up to date training on the tasks to be performed by them, and that tasks are allocated to those with appropriate skills and training. The evidence produced by the defender demonstrated not only that the pursuer was an experienced worker, but also that he had received training specific to the task which was being performed and that he knew, or should have known, not to move in the RIB as he had done. This was key in the court concluding that the pursuer had some responsibility for the incident.

It is also a reminder that a worker cannot simply abdicate responsibility for their own safety and must exercise a degree of care in relation to this. The Sheriff concluded, based on the evidence given, that while there was shouting from crew members, no one was shouting at the pursuer to move forward on the RIB; and that while the pursuer was trying to help by going forward to try and balance the RIB, this was contrary to safe practice. In doing so, he was or ought to have been aware of the risks and so was contributorily negligent. This case demonstrates that while the employer accepted liability, employees also have responsibilities to meet, failing which they may find that as here, any award of damages is reduced.

Alison McAteer is an associate and Rebecca Neilson is a trainee at Brodies LLP.