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In pursuit of the fundamental truth
Elliot Lambert v (1) V J Glover Limited & (2) Carl Friday (AKA Carl Snell)  EWHC 776 (Admlty)
Keoghs recently acted for the successful defendants in a personal injury action brought by a self-employed fisherman in the Admiralty Court. James Watthey of 4 Pump Court was instructed as Counsel. The claimant suffered a serious hand injury aboard the small fishing vessel, mfv REJOICE (“the vessel”) and sued the owners of the vessel as well as the skipper, Carl Snell. At the time of the accident the vessel was tied up in Brixham harbour. The claimant boarded the vessel and was then asked by the skipper to have a general tidy up of the wheelhouse in preparation for what was hoped to have been a lucrative trip to the Baie de Seine to fish for scallops. Amongst other tasks this involved hoovering up a quantity of protein powder that had been spilled on the floor. This is apparently a commonly used food substitute amongst fishermen.
As the claimant carried out this task the hand held hoover quickly became full and he decided to empty it over the side of the vessel. His evidence was that he had no other option and that there were no bins available on board. He also said that he was directly instructed by the skipper to throw it over the side. The claimant described the vessel surging against the harbour wall and pitching violently in the prevailing conditions which at the time were easterly gales. The claimant also maintained that the vessel was poorly lit and inadequately secured. In his view additional fenders should have been deployed and additional mooring lines used and had they done so this would have reduced the movement of the vessel. This was hotly disputed. After having dumped the contents of the hoover over the side on around six previous occasions, his next attempt resulted in his left hand becoming trapped between the vessel and the harbour wall. The claimant sustained a very serious hand injury and during the course of the claim quantum was assessed at approximately £800,000.00.
We were instructed to investigate this accident at an early stage in order to preserve evidence and protect our insured clients’ position. During the course of the investigation we discussed matters with the skipper who showed us a Facebook messenger conversation between himself and the claimant. Messages from the claimant appeared to offer the skipper £10,000.00 if he were to go along with a certain version of events which would help support the claimant’s case. An initial offer of money was made which the skipper rejected on the basis that he refused to get drawn into the claimant’s scheme and wished only to tell the truth. This refusal prompted an increased offer from the claimant who further tried to persuade the skipper to assist his claim on the basis that the money he was offering was only insurance money. We preserved these messages and disclosed them to the claimant whilst at the same time maintaining a denial of liability.
Disclosure of these Facebook messages prompted the claimant into providing the defendants with a further Facebook message purporting to be from the skipper of the vessel. The claimant also contended that this was not tantamount to a bribe because the offer of money was only made to persuade the skipper to tell the truth. This message effectively contained an apology on the part of the skipper for having to lie about the ropes and fenders and the way in which the accident occurred in order to protect himself and his family. The skipper vehemently denied ever sending this message and Keoghs jointly instructed forensic IT specialists to interrogate both parties’ Facebook accounts. The mobile phone belonging to the skipper was also available for interrogation but the one belonging to the claimant was no longer in the claimant’s possession. The results of this expert analysis and interrogation of Facebook accounts concluded that on the balance of probability the message disclosed by the claimant was a fake.
The claimant contended that the vessel was not properly secured and lit and that the owners of the vessel had failed to appoint a suitably qualified skipper. The claimant further contended that the skipper ordered him to throw the hoover contents over the side of the vessel. The claimant relied on a number of merchant shipping and general workplace regulations but at trial counsel for the claimant accepted these had no application to self-employed crew. The claimant also referred to “duties at common law and/or pursuant to an implied contract” to provide a safe working environment and safe system of work as well as a common duty of care under the Occupiers’ Liability Act. The Admiralty Registrar rejected these arguments. Under the Occupiers’ Liability Act, the owners of the vessel were required to ensure “that both the equipment is in good order and that the person appointed as skipper is reasonably competent”. This accident did not occur as a result of equipment failure or incompetence on the part of the skipper.
The defendants’ evidence was that the vessel was properly moored by two shore ropes and one spring line. There were sufficient fenders and all the deck lights were illuminated at the time of the accident. Additional lighting was provided by quayside lamps. The skipper accepted that he asked the claimant to clear up the accommodation and that this would have included clearing up the protein powder. However at no point in time did he ask the claimant to throw the contents of the hoover over the side of the vessel. There was a bin available in the galley and the claimant should have used it.
The defendants submitted that the cause of the injury was the claimant’s decision to put his hand over the side of the vessel and into a position of clear danger. The claimant’s own evidence was that the vessel was surging violently against the quayside and yet he still chose to put himself in that position. Reflecting on the maxim of ex turpi causa non oritur action, the defendants submitted that it was also contrary to Torbay Harbour Bye-laws to throw rubbish over the side of the vessel and that the claimant should not be entitled to rely on his own illegal conduct. We also considered the issue of what on the face of it appeared to be a bribe made by the claimant to the skipper of the vessel and whether this could potentially engage section 57 of the Criminal Justice and Courts Act 2015 relevant to fundamental dishonesty.
In terms of duty of care the defendants submitted that this needed to be considered against a back drop of what were well known dangers of life as a fisherman and the importance of self-preservation. The Admiralty Registrar described fishing operations as “even more potentially dangerous than more ordinary forms of seafaring which carry their own inherent risks.” He continued to describe such fishermen as “volunteers to the ordinary dangers involved in the industry such as working on an unstable platform in whatever weather conditions are being experienced.” He did however accept that a skipper owes a duty to his crew “not to negligently expose them to dangerous situations from which they cannot protect themselves by the exercise of good seamanship in carrying out their duties”. This notion of good seamanship was expanded upon to mean “the exercise of common sense as exemplified by the old adage ‘one hand for the ship and one hand for yourself’” with respect to how a seaman should perform his duties.
The job that the claimant was tasked with was merely to clear up the accommodation areas of the vessel. It did not require any technical ability and would not in the ordinary course of events involve any elements of danger “provided that the member of the crew doing that did not place a part of his body in an obviously dangerous place”. The Admiralty Registrar’s view was that “it is a fundamental tenet of good seamanship not to place any part of one’s body between any part of a ship and a jetty whatever the weather conditions. This is something which is, or should be, obvious to every person in any way involved in the operation of any vessel however large or small”.
In dismissing the claim the Admiralty Registrar confirmed the claimant’s injury was not caused by any fault on the part of the skipper and was entirely the result of the claimant failing to take reasonable care of himself. The owners of the vessel were not at fault on the basis that the injury was not caused by someone for whom they were vicariously liable and neither was it caused by a defect in the vessel or its equipment. The skipper was an entirely proper person to be appointed as skipper and the instruction to clean the galley did not demonstrate any lack of competence on his part.
On the basis that the claim was dismissed the Admiralty Registrar did not consider the issue of fundamental dishonesty. However, in relation to the Facebook messages he states:
“There is, effectively, a clear offer to share the damages recoverable from the insurers if Mr Snell agrees to support Mr Lambert’s version of events, at least with respect to the ropes, fenders and lighting. Whichever version of events the court accepts, that appears to me to be an attempt to suborn a witness which can never be the act of an honest man. In my view that is an aspect which I should bear in mind when considering the claimant’s evidence as a whole.”
Whilst on this occasion the court was not required to consider the fundamental dishonesty point further, we can perhaps draw our own conclusions in circumstances where money has been offered to a witness in exchange for supporting a certain version of events. In any event the Facebook messages clearly affected the credibility of the claimant and his evidence in general and bolstered the defence.
This case highlights the dangers of fishing and the importance of common sense and good seamanship even in relation to tasks that on the face of it pose no danger. It also serves as a reminder that the prompt and thorough investigation of accidents helps safeguard key evidence and maximises the chances of a successful defence.