Maersk Company Ltd & Anor v Wilson

An employer’s safe system of work is assessed across the work the employee is required to perform. A system may be unsafe where routine work on most access points requires an unsafe method and it is reasonably foreseeable that the employee will develop a habit of using that method elsewhere, even where the accident location has additional handholds. On appeal, findings based on a late-emerging case may stand where the evidence supports them and no injustice has resulted, although warning and submissions should ordinarily be invited. Under the Civil Procedure Rules 1998, r 36.21(4) is discretionary rather than all-or-nothing; an exceptional case may justify only some enhanced costs orders.

An electrical engineering officer employed aboard a container ship was injured while descending a ladder at Bay 28. His pleaded case that the Bay 28 ladder was itself unsafe failed. At trial, however, he advanced a late alternative case that the employer’s system was unsafe because seven other walkway ladders lacked useful handholds, encouraging an unsafe habitual method that he foreseeably used at Bay 28. The Queen’s Bench Division found liability, assessed contributory negligence at 60%, and awarded £76,000 damages. The defendants appealed on evidential grounds. The claimant cross-appealed the costs order made after he beat a £70,000 Part 36 offer. The central issues were whether the late system-of-work case was supported by the evidence and whether the costs rule required all available consequences to be imposed.

Disposition. The defendants’ appeal and the claimant’s cross-appeal were dismissed.

1. Safe system of work. The trial judge was entitled to assess the system by reference to the work Mr Wilson was required to perform throughout the vessel. Although the Bay 28 ladder had additional railings which provided a safe method of descent, the other ladders lacked useful handholds when the ship was rolling. The evidence supported the finding that Mr Wilson regularly used those ladders, developed a foreseeable unsafe habit, and carried that habit to Bay 28. The system was therefore unsafe and a proximate cause of the accident. The finding of 60% contributory negligence was not challenged.
2. Late-emerging case. The alternative system-of-work case emerged only at the end of the trial. The appellate court nevertheless upheld the findings because there was evidence on which the judge could act and no injustice had resulted. The judge was entitled to rely on Mr Wilson’s evidence and his own assessment of the practical method of descending the ladders. It would have been preferable for the judge to warn the parties and invite submissions once he realised that the case might be decided on that footing.
3. Part 36 costs consequences. CPR r 36.21(4) did not require an all-or-nothing order. The rule provided a range of possible consequences after a claimant beat an offer. Although the normal case might justify all the specified orders, the exceptional circumstances permitted the judge to award standard-basis costs with interest while declining indemnity costs and interest on those costs. His exercise of discretion could not be disturbed.

The defendants were ordered to pay the claimant’s appeal costs. The claimant was ordered to pay the defendants’ costs of the costs cross-appeal, with mutual set-off.

• Court of Appeal (Civil Division): The defendants’ appeal and the claimant’s cross-appeal were dismissed. The judgment is reported at [2004] EWCA Civ 313.
• Queen’s Bench Division: Mr Richard Fernyhough found the defendants liable, assessed contributory negligence at 60%, awarded £76,000 damages, and made a limited costs order under CPR Part 36.21.