Collins v McDermot
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murphy |
| Judgment Date | 18 December 2003 |
| Neutral Citation | [2003] IEHC 111 |
| Court | High Court |
| Date | 18 December 2003 |
[2003] IEHC 111
THE HIGH COURT
Mr. Murphy
BETWEEN:
AND
Negligence - Duty of care Accident on ship - Plaintiff slipped on wet floor - Whether employer negligent in choice of floor covering - Contract of employment - Breach - Terms and conditions relating to disability pay - Term in employment contract that disability pay to continue until plaintiff reached stage of "maximum medical improvement" - When plaintiff reached stage of "maximum medical improvement" reached - Whether plaintiff satisfied Court that there was breach of contract by defendant ceasing to make disability payments to plaintiff.
Facts: the plaintiff slipped on a wet floor and fell down stairs aboard a ship chartered by the defendant. He suffered a significant head injury. The plaintiff claimed that that trauma caused meningitis which in turn caused epilepsy subsequently. The plaintiff alleged that the defendant employer was not meeting the standard of taking reasonable care for the safety of his employees when such a linoleum type surface would be slippery when wet and, as such, unsafe. There was a term in the plaintiff's employment contract which provided that the plaintiff was to be paid disability pay on the basis of US$150 per day for a period of two months and thereafter to receive half pay in the sum of US$75 per day for an additional ten months or until maximum medical improvement. The evidence was that the two months' payment was made, together with the half pay, for eighteen months. Both the medical expert for the defendant and that for the plaintiff agreed that the plaintiff's risk of epilepsy returned to the base level after five years following the head trauma. Both doctors said that maximum medical improvement would have occurred five years post-accident when the risk of epilepsy would have diminished to that of the general population. The plaintiff claimed loss of earnings by reason of breach of contract and/or negligence of his employer and for the balance of disability pay under the contract based on the date of maximum medical improvement.
Held by Murphy J in finding that the plaintiff succeeded with his contractual claim and failed in his claim for negligence that an employer will have discharged his duty of care to an employee if he does what a reasonable and prudent employer would have done in the circumstances and that the evidence given by the plaintiff was unsatisfactory in relation to a proof, on the balance of probabilities, of negligence on the part of his employer.
In relation to the contractual claim, based on the medical evidence, absent meningitis, maximum medical improvement was at October, 1998, and having accepted that the contractual terms were not limited to two months' full compensation and two months' half compensation, the plaintiff was entitled to the sum calculated by his actuary as being the balance owing to him after the disability payments actually made by the defendant were taken into account.
Reporter: P.C.
Mr. Justice Murphy delivered the 18th day of December, 2003.
1.1 The plaintiff's claim is that through the negligence and breach of contract of the defendant he suffered loss and damage resulting from a fall aboard a ship. The plaintiff was a commercial diver on contract from 1983 onwards, mainly with the defendant. He had been involved with saturation diving, laying pipes. While this work involved the used of a compression chamber, no case was made that this was material to his claim.
On the 6 th July, 1996 he was on a six week contract in Dubai on the M.V. Pacific Construction which had been chartered by the defendant. On the 17 th August, 1996 he came back into port when his contract ended, with a view to flying back home. He went to the Seamen's Club in the vicinity and had a meal and two bottles of beer. He returned to the ship, had a shower and changed. There had been about twelve people showering and walking in the corridor outside which, he said, had become wet.
He had two bags, one in his left hand and a shoulder bag on his right shoulder. He remembers coming around towards the stairs and turned right. As he did so he apparently fell and was left in a heap at the bottom of the stairs. He had no memory of falling. He spent nine days in hospital and suffered a cerebral contusion, had a loss of hearing in the right ear with tinnitus and separated the acromiun clavicular in each shoulder.
On the 1 st September, 1996 he was airlifted home.
In April, 1998 he got meningitis and an epileptic fit and was put on medication.
He was in the Mercy Hospital for ten to twelve days and saw Dr. Harrington who prescribed anti-seizure medication.
He continued to suffer from loss of memory and loss of balance.
He is no longer fit to work as a diver or to move into a supervision position.
In his evidence he said that the floor outside the shower and his cabin was of shiny vinyl with a polished surface. There were wet patches on the corridor floor from the flip-flops of the other men criss-crossing from shower room to cabins.
His luggage consisted of a large hold-all in his left hand and a shoulder bag and brief case in the right. He was wearing rubber soled sandals. Someone had shouted that the bus was on the jetty to bring him to the airport. He had to go sideways because of the bag and went to grab the banisters. The last thing he remembered was tumbling downstairs. He had no memory of putting his foot on the step. He concluded that he had slipped on the water in that area. He was vague regarding his period in hospital. He could not hear his wife on the telephone.
He was examined by a neurologist in Dubai. He flew back to England with a doctor. He was very confused. The tinnitus was driving him crazy and he could not balance. His shoulder was uncomfortably sore. He went to a doctor in Portsmouth who told him that to put the shoulder back would cause more problems.
He said he was not intoxicated as it would be dangerous to be so in Dubai.
Afterwards he had some seasonal work lobster fishing. His shoulder was sore and he had problems with balance. His earnings were never over £150 per week and he needed to spend a lot on an old boat. A year ago he and his wife started off a gym. He takes home €250 gross.
He can now drive but was not allowed to do so for two years because of meningitis. His social life was limited.
In late 1998 he sold him home and at present runs a gym and does some fishing with an angling boat.
He is in receipt of disability payments in the UK and here.
He claims loss of earnings by reason of breach of contract and/or negligence of his employer.
He agreed, in cross-examination, that there were slack periods with McDermot's.
He did not complain about the floor. He said that one always walked carefully, on guard. He went to grab the rail with the right hand and recalled slipping, with his legs going from under him. He said he didn't put a foot on the stairs. He said he never got to the stairs, never got that far. He said that there was a lip on the stairs which was too steep and the surface of the stair area was wet from the shower area.
1.2 It was put to him that paragraph 6 of the Statement of Claim stated that he was caused to fall on a stairway. He said that he did not remember if he slipped.
He said that he was leading down the stairs with his left shoulder.
It was put to the witness that "you were caused to fall on the stairway". He agreed.
The witness was referred to an affidavit of a Mr. David O'Donoghue, sworn the 19 th July, 1999, in relation to proceedings against J. Ray McDermot Diving International which were not before the Court.
He agreed that when the statement of claim was issued in March, 1998 and Mr. O'Donoghue's affidavit sworn in July, 1999, he did not have the recollection that he had in the witness box. He said an awful lot had come from being in court and seeing the video of the vessel. From talking about the vessel he remembered "stuff that I had not remembered up to now". He said that "Nobody set a snare up there so I had to have slipped. It had to have been wet and slippy."... "It would have to have been that." The witness said what he did remember was going to the stair, making a right turn. He said he could only say that it was usual, that normally when people were showering, that area was going to have wet patches. He did not inspect it nor did he see anything on it. He did not recall its condition.
The plaintiff was asked if he remembered what the floor was like and responded as follows (p.44 of the transcript of the 28 thNovember, 2002):
"I didn't inspect it, Your Honour. I can only say usual, normally when people are showering that the area is going to have wet patches."
Judge: When you say you did not inspect it; you didn't see anything on it?
No.
Mr. Gardiner: You do not recall the condition of it?
I do not.
You don't know why you slipped, if indeed you did slip?
No.
Now, in any event, you fell down the stairs with no hands free. You did not have hands free when you fell?
I remember I was reaching on the turn, reaching for the rail on the right hand side.
You had let go of your bag on you right hand shoulder that was Hanging?
Hanging on my shoulder.
Do you recall letting go of it, taking your hand off the handle. Do you actually recall this?
I recall reaching.
I see. When did that recollection come to you?
Long ago. I don't know."
The witness was then questioned regarding the onset of meningitis in 1998, his return to Ireland and his occupations since then.
In re-examination the plaintiff had only a vague recollection of having met a neurologist in Dubai,...
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