Seaman injured aboard Marine Scotland vessel awarded over £4,000 in damages after finding of contributory negligence

About this case:

• Citation:
  [2022] SC EDIN 28
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff K J Campbell

Paul Farley, who was employed as an Able Seaman aboard MPV Hirta on a fixed term appointment, argued that he had lost potential future earnings after being injured aboard a craft being loaded aboard the vessel.

The case was heard by Sheriff Kenneth Campbell in Edinburgh Sheriff Court. The pursuer appeared personally, while the defenders were represented by Thomson, solicitor.

Jarring injury

The duties of the pursuer aboard the Hirta included watch keeping, maintenance, and working on the two rigid inflatable boats (RIBs) carried by the vessel. On 4 June 2016 the pursuer was working as a bow-man aboard a Delta RIB. The craft was being lifted back aboard the Hirta using a crane when the pursuer moved towards its bow in an attempt to balance it closer to the horizontal. He was not instructed to do this by anyone on the Hirta.

The RIB was brought over the side and lowered to the cradle on the port side of Hirta. The stern end touched the cradle first. The bow end came down sharply. The pursuer was seated on the floor towards the bow at that time. As a result of the impact, the pursuer suffered a jarring soft tissue injury to his lower back as well as an injury to his right ankle.

Following an X-ray and CT scans at the Western Isles Hospital in Stornoway, no fractures were noted. Keyhole surgery was later required in order to remove debris from his right ankle. The pursuer did not return to work following the accident and felt unable to enjoy his previous hobbies of cycling, mountain biking, hill walking, and swimming. The pursuer’s contract with Marine Scotland reached its termination date in August 2016.

It was the pursuer’s submission that the accident was not his fault to any extent, and that he had lost out on potential future earnings due to the top position he had held on the defender’s reserve list for a permanent position. For the defenders it was argued that the pursuer’s significant experience working aboard RIBs and conduct prior to the accident indicated a significant amount of contributory negligence.

Aware of the risks

In his decision, Sheriff Campbell said of the credibility of the pursuer’s evidence: “I was satisfied the pursuer believed in the truth of what he told me in evidence. However I formed the impression that his account of events is informed in part by the constellation of symptoms which he attributes to his injuries on the day, not all of which are subject of averments on record, and none of which was the subject of evidence from a medical practitioner. I did not find some elements of the pursuer’s evidence about events on 4 June 2016 to be reliable, because it was at variance with the evidence of other witnesses, which, by contrast, was consistent on many key points about these events.”

On the pursuer’s liability for the accident, he said: “I accept that there was shouting from crew members as the RIB was being brought on board. Because of the concerns I have about the reliability of some of his evidence, I do not accept the pursuer’s evidence that people were shouting at him to move for’ard on the RIB. Rather, I consider that his account that he decided for himself to do that is what happened.”

He went on to say: “The pursuer is an experienced seaman, and holds a number of certificates in order to gain which I was told involved safety training. I accept the evidence of all witnesses that on-board health and safety training was mandatory and that included RIB training on a person’s first trip. Accordingly, I conclude that the pursuer was or ought to have been aware of the risks in acting as he did. I therefore find he was contributorily negligent. Taking a broad view of the evidence in the round and having regard to the factors set out above, I assess that contributory negligence at 50%.”

On whether there was any loss of future earnings, he concluded: “The pursuer was not on a full-time permanent contract, and no opportunity for one arose whilst the list was live. Further, no evidence was led to demonstrate the extent to which the pursuer might be unfit for work, nor was evidence led to confirm whether any ongoing difficulties are attributable to the accident rather than other causes, for example pre-existing conditions. I accordingly conclude there was no loss under this head of claim.”

The sheriff therefore assessed loss of earnings at nil, with solatium of £5,080, interest of £2,473, and services carried out by the pursuer’s sister valued at £1,000.