Mulligan v.Holland Dredging (Irl) Ltd
| Jurisdiction | Ireland |
| Judge | O'Hanlon J., |
| Judgment Date | 23 January 1995 |
| Neutral Citation | 1995 WJSC-HC 2897 |
| Docket Number | No. 6097P/1990 |
| Court | High Court |
| Date | 23 January 1995 |
1995 WJSC-HC 2897
THE HIGH COURT
BETWEEN
AND
Citations:
KEEGAN V OWENS 1953 IR 267
MULCARE V SHB 1988 ILRM 689
DUNNE V HONEYWELL 1991 ILRM 595
MCDERMID V NASH DREDGING LTD 1987 2 AER 878
WHITE CIVIL LIABILITY FOR INDUSTRIAL ACCIDENTS V1 CH 11
LYNCH V PALGRAVE MURPHY LTD 1964 IR 150
CONOLE V RED BANK OYSTER CO 1976 IR 191
CIVIL LIABILITY ACT 1961 S35
Synopsis:
EMPLOYMENT
Employer
Identity - Ascertainment - Ship - Deck-hand - Engagement - Plain tiff offered work abroad as deck-hand on dredger - Offer made by defendant company - Defendant company being subsidiary of Dutch parent company who owned dredger - Dredger chartered to another subsidiary of parent company for work in Israel - Plaintiff injured in fall while working on board dredger in Israel - Plain tiff paid by defendant company who were recouped by Dutch parent company - Plaintiff not in employment of defendants at time of accident - (1990/6097 P - O'Hanlon J. - 23/1/95)
|Mulligan v. Holland Dredging (Ireland) Ltd.|
NEGLIGENCE
Employer
Ship - Deck-hand - Ladder - Fall - Injuries - Work on dredger in port of Haifa - Negligence not established - Defendant not being the plaintiff's employer - (1990/6097 P - O'Hanlon J. - 23/1/95)
|Mulligan v. Holland Dredging (Ireland) Ltd.|
Judgment delivered by O'Hanlon J.,the 23rd day of January, 1995
The Plaintiff is a married man, living in Cork. There were five children of his marriage, one of whom, aged 14, is still living at home. The Plaintiff is now aged 53 and has spent his working life in construction work while on land, and as motor man, marine engineer, or deck-hand while at sea.
In the year 1987 he was contacted by Mr. Dominic Daly, who is a director of the Defendant Company and offered work as a deck-hand on board the dredger "Neptune" then engaged on dredging work in the Port of Haifa, Israel. He agreed to take on the work, which initially was only for a short period of some weeks, and flew out to join the vessel in Haifa. His work proved satisfactory and he was kept on from March up to the 16th July, 1987, working nine weeks on, followed by four weeks off. During his weeks on board he worked a 12-hour day, seven days a week, but with occasional breaks for shore leave. He was one of only two Irish members of the crew of the vessel - the other being Robert Jones who was the chef on board.
The Defendant Company is a subsidiary company of a Dutch Company named Baggermaatschappij B.V. and the evidence disclosed that the dredging work in Haifa was being carried out by another subsidiary of the Dutch parent company, Holland Dredging Company (Israel) Limited, which at that time was operating the "Neptune" under a hiring agreement made in the Netherlands on the 1st January, 1986.
It also emerged that the parent company in the Netherlands was the party accepting responsibility for payment of the Plaintiff's wages while he was working in Haifa, and also the cost of transport of the Plaintiff between his home in Ireland and Israel. The inter-company arrangement was that the Defendant (the Irish company) would initially make the necessary payments to the Plaintiff having made the appropriate deductions in respect of a person whose domicile was in Ireland, and were later recouped for such expenditure by the Dutch parent company. While on board the "Neptune" in Haifa, the Plaintiff was under the command of Captain Volker, who, in turn, was employed by Baggermaatschappij B.V., the parent company.
The Plaintiff met with an accident in the course of his employment on the 16th July, 1987, when he fell from a vertical ladder linking the deck of the vessel to a stores area beneath. He sustained a back injury in respect of which the present claim for damages is maintained, and was flown home to Ireland and was unable to resume his duties on the "Neptune" until the following year.
The Plaintiff claims that when making his way from the hatch opening at deck level onto the ladder beneath, it was necessary for him to put one leg down until his foot rested on a narrow bracket linking the top of the ladder to the structure of the vessel and then bring the other leg down to the top rung of the ladder and begin the descent in that manner. He said that on the day of the accident he had just reached a position with one foot on the bracket or top of the stile of the ladder and the other on the top rung, when he slipped and fell over 12 feet to the floor beneath, striking his back against a freezer which was located beside the ladder.
Expert evidence was given on his behalf by Anthony Brennan, Consulting Engineer, and by a Naval Engineer, Michael J. Connolly. However, the Plaintiff did not initiate a claim for damages against the Defendant for almost three years after the accident, and Mr. Brennan's inspection of the vessel did not take place until the 26th September, 1994, by which time a staircase set at an angle had been constructed to replace the vertical ladder from which the Plaintiff had his fall. Mr. Connolly did not inspect the vessel and based his evidence on information given to him by the Plaintiff and on Mr. Brennan's photographs, andmeasurements.
The hatch opening at deck level is surmounted by a box-like structure the top of which is capable of being opened fully to allow stores to be loaded and unloaded, but there is a smaller opening in the top cover which would normally be used on all other occasions. This measures 22" by 22" so it isjust sufficient to allow a person to enter and make his way onto the ladder. It is still possible to distinguish where the ladder was fixed by brackets to the wall inside the hatch opening and the distance from the hatch opening down to the bracket would have been 28" and from the hatch opening down to the first rung of the ladder, 31".
The Plaintiff said that his practice was to stand on the deck, bring his right leg in through the hatch opening until his foot rested on the top stile of the ladder and then swing his other leg in over the hatch opening and bring his foot down to rest on the first rung of theladder.
Both Mr. Brennan and Mr. Connolly expressed the view that this was an unsafe procedure because of the danger of the foot resting on the bracket or stile of the ladder slipping at some stage due to the inadequacy of the foothold, and also because of what they regarded as inadequate handhold around the rim of the hatch.
Mr. Munson, a Naval Engineer, gave evidence on behalf of the Defendant, in the course of which he produced a cardboard replica of the surface of the open hatch through which the crew-man's body had to be brought and he demonstrated that it gave just sufficient space to admit a person of normal build, and that the arms and hands would have to be brought in close to the body when they were passing through the opening. From the evidence available to him as to how and where the ladder was located he said that the feet could go down a couple of steps of the ladder while the upper body was still projectingout through the hatch superstructure at deck level, and the hands and arms could then be brought in and he said there should be no difficulty about continuing down the ladder in safety. He said the bracket should not be used as a step and that it was unnecessary to do so. He said he was regularly on small vessels with such an arrangement and did not experience any difficulty using the ladders.
Captain Volker, the skipper of the dredger, who had been associated with the vessel from the time it was in the course of construction in 1983, said he had gone up and down the ladder many times without difficulty, and no complaints had been received from any crew members about difficulty in getting onto the ladder. There could be some difficulty if coming up the ladder while carrying cans of paint or similar loads and the system adopted was to haul them up from below byrope.
Patrick Condon, a seaman, said he worked as relief cook on board the "Neptune" on a number of occasions from 1984 onwards. He said that he went up and down the hatch regularly and entered it by squatting on the far side of the hatch and had to be cautious getting onto the ladder. He said it was difficult when the old ladder was there. In cross-examination he said he used the hatches maybe five times a day - very often - and made no complaint about them. He said he was never injured or fell off, but had a few near misses on several ladders and on this one. They resulted from moving too fast, and did not arise when getting onto the ladder.
He said he would get onto the ladder by putting both legs in on the top rung, move his body out of the hatch and go down a few rungs before taking his hands off the rim of the hatch. He said he would lean back first and then bring his hands in.
Robert Jones worked as a chef on board the "Neptune" while it was operating in Israel and on other occasions in Holland, Ireland, England and West Africa. He said he used the bracket on top of the ladder when entering the hatch opening, and then put his left leg on the top rung and brought his right leg down onto a lower rung and brought one hand down to hold the ladder. He agreed that he went up and down the ladder about 17 times a week, about 150 times per tour of duty and about 2,400 times in all. He said he had "a few escapes", "a...
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