Thomson v Kvaerner Govan Ltd (Scotland)

The House of Lords allowed the appeal and restored the Lord Ordinary's interlocutor which had granted the defenders (appellants) a decree of absolvitor. The court emphasised the narrow limits within which an appellate court may overturn a trial judge's findings on facts, particularly where assessment of witness reliability and demeanour played a central role. The pursuer bore the onus of proving on the balance of probabilities that a staging plank was unsound and broke when he stepped on it in contravention of Regulation 17(1) of the Shipbuilding and Shiprepairing Regulations 1960; the court held that the Lord Ordinary was not plainly wrong to conclude the pursuer had not discharged that onus. The court also held that the circumstances did not establish res ipsa loquitur so as to shift the evidential burden to the defenders.

This personal injury action arose from an accident on 24 January 1995 when the respondent (the pursuer) fell inside a ballast tank while employed as a welder at the appellants' shipyard. He alleged a staging plank snapped when he stepped on it, causing him to fall and sustain serious head injuries. The pursuer relied on Regulation 17(1) of the Shipbuilding and Shiprepairing Regulations 1960, which requires staging to be of adequate strength.

The Lord Ordinary (trial judge) examined witness evidence, including the pursuer's account, the observations of a colleague who assisted after the accident, and the inspection evidence of a health and safety inspector (Mr Cox) who measured and assessed the plank. The Lord Ordinary found inconsistencies and inaccuracies in the pursuer's recollection, accepted aspects of Mr Cox's impartial evidence about the plank's dimensions and condition, and concluded the pursuer had not proved on the balance of probabilities that the plank broke when he stepped on it. The Lord Ordinary therefore granted the defenders decree of absolvitor.

The First Division allowed the pursuer's reclaiming motion, preferring the pursuer's account and concluding the Lord Ordinary had given insufficient weight to the neutral facts and to the absence of a credible alternative explanation for the accident. The appellants appealed to the House of Lords.

The main issues framed were (i) whether the pursuer had proved that the plank was inadequate and broke as he described, (ii) how an appellate court should approach an appeal challenging a trial judge's assessment of witness reliability, and (iii) whether the circumstances gave rise to any presumption (such as res ipsa loquitur) shifting the evidential burden to the defenders. The House of Lords analysed earlier authorities on appellate review (including Clarke v Edinburgh and District Tramways Co and Thomas v Thomas) and reiterated that an appellate court should only disturb a trial judge's factual findings when it can say the judge was plainly wrong. Applying that principle, the majority held that the Lord Ordinary had properly assessed demeanour, the coherence of evidence and onus, and that the First Division had improperly re-tried the case on the printed record. The court therefore allowed the appeal and restored the Lord Ordinary's interlocutor. Lord Steyn dissented and would have dismissed the appeal.

The appeal is allowed. The House of Lords held that the First Division had erred in substituting its assessment of the facts for that of the Lord Ordinary. The Lord Ordinary was entitled to assess the pursuer's reliability and demeanour and to conclude on the balance of probabilities that the pursuer had not proved the plank was inadequate and broke when he stepped on it. The circumstances did not give rise to a presumption of negligence (res ipsa loquitur) shifting the evidential burden to the defenders.

At first instance the Lord Ordinary (Lord Philip) granted the defenders decree of absolvitor. The First Division of the Court of Session (Lord President Cullen, Lords Abernethy and Morison) allowed the pursuer's reclaiming motion and reversed the Lord Ordinary. The defenders appealed to the House of Lords: Thomson v Kvaerner Govan Ltd (Scotland) [2003] UKHL 45.