Coltman and Anor v Bibby Tankers Ltd

[1988] A.C. 276
[1987] 3 All ER 1068

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(Judgment by: Lord Oliver of Aylmerton)

Between: Coltman and Anor - Appellants
And: Bibby Tankers Ltd - Respondents

Court:

Judges: Lord Keith of Kinkel
Lord Roskill
Lord Griffiths

Lord Oliver of AylmertonLord Goff of Chieveley

Subject References:
HEALTH AND SAFETY
EMPLOYER'S LIABILITY
SHIP
Vessel lost at sea with all hands
Dependants' claim based on defective construction of ship
Whether vessel 'equipment'

Legislative References:
Employer's Liability (Defective Equipment) Act 1969 (c. 37) - s. 1(1)(a) (3)

Case References:
Davie v. New Merton Board Mills Ltd - [1959] A.C. 604; [1959] 2 W.L.R. 331; [1959] 1 All E.R. 346, H.L.(E.)
Dilworth v. Commissioner of Stamps - [1899] A.C. 99, P.C.
Donoghue v. Stevenson - [1932] A.C. 562, H.L.(Sc.)
Inland Revenue Commissioners v. Parker - [1966] A.C. 141; [1966] 2 W.L.R. 486; [1966] 1 All E.R. 399, H.L.(E.)
Munby v. Furlong - [1977] Ch. 359; [1977] 3 W.L.R. 270; [1977] 2 All E.R. 953, C.A.
Robinson v. Local Board of Barton-Eccles - (1883) 8 App.Cas. 798, H.L.(E.)
Yarmouth v. France - (1887) 19 Q.B.D. 647, D.C.

Hearing date: 26-27 October 1987
Judgment date: 3 December 1987

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Judgment by:
Lord Oliver of Aylmerton

My Lords, the appellants in this appeal ("the plaintiffs") are the personal representatives of Leo Thomas Mackenzie Coltman deceased who was, at the date of his death, employed by the respondent company ("the defendants") as third engineer aboard the carrier Derbyshire. Derbyshire was a vessel of some 90,000 tons which sank off the coast of Japan on 9 September 1980 with the loss of all hands whilst on a voyage from Canada to Japan with a cargo of iron ore. On 5 February 1982 the plaintiffs commenced proceedings in the Admiralty Court claiming damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 and alleging that the sinking of the vessel and the death of the deceased had been caused by the negligence of the defendants.

The particulars of negligence included allegations of defective construction and design of the vessel rendering her unseaworthy. Paragraphs 7 and 8 of the statement of claim contain a plea that the defects, which are said to be attributable wholly or in part to fault on the part of the manufacturers of the vessel, were defects in "equipment" provided by the defendants for the purposes of their business within the meaning of the Employer's Liability (Defective Equipment) Act 1969 and were thus deemed to be attributable to the negligence of the defendants. The defendants by their defence denied that the vessel constituted "equipment" within the meaning of that Act. Accordingly, on 13 February 1986 the Admiralty Registrar ordered by consent that there be determined as a preliminary point the question whether the vessel was equipment provided by the defendants within the meaning of section 1 of the Act. On the trial of the preliminary point on 14 March 1986 Sheen J. [1986] 1 W.L.R. 751 answered the question in the affirmative but on 27 January 1987 the Court of Appeal by a majority (Lloyd L.J. E dissenting), ante, p. 280c, allowed an appeal by the defendants declaring that the vessel was not equipment provided by the defendants within the meaning of the Act and gave leave to appeal to your Lordships' House.

My Lords, it is common ground that the Act of 1969 was introduced with a view to rectifying what was felt to be the possible hardship to an employee resulting from the decision of this House in Davie v. New Merton Board Mills Ltd. [1959] A.C. 604. In that case an employee was injured by a defective drift supplied to him by his employers for the purpose of his work. The defect resulted from a fault in manufacture but the article had been purchased by the employers without knowledge of the defect from a reputable supplier and without any negligence on their part. It was held that the employers' duty was only to take reasonable care to provide a reasonably safe tool and that that duty had been discharged by purchasing from a reputable source an article whose latent defect they had no means of discovering.

Thus the action against them failed although judgment was recovered against the manufacturer. Clearly this opened the door to the possibility that an employee required to work with, on or in equipment furnished by his employer and injured as a result of some negligent failure in design or manufacture might find himself without remedy in a case where the manufacturer and the employer were, to use the words of Viscount Simonds, at pp. 620-621, "divided in time and space by decades and continents" so that the person actually responsible was no longer traceable or, perhaps, was insolvent or had ceased to carry on business. Parliament accordingly met this by imposing on employers a vicarious liability and providing, in a case where injury was due to a defect caused by the fault of the third party, that the employer should, regardless of his own conduct, be liable to his employee as if he had been responsible for the defect, leaving it to him to pursue against the third party such remedies as he might have whether original or by way of contribution.

The purpose of the Act, as set out in the long title, is:

"to make further provision with respect to the liability of an employer for injury to his employee which is attributable to any defect in equipment provided by the employer for the purposes of the employer's business; and for purposes connected with the matter aforesaid."

The relevant provisions of the Act, for present purposes, are contained in subsections (1) and (3) of section 1 and are as follows:

"(1)

Where after the commencement of this Act -

(a)

an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer's business; and

(b)

the defect is attributable wholly or partly to the fault of a third party (whether identified or not),

the injury shall be deemed to be also attributable to negligence on the part of the employer (whether or not he is liable in respect of the injury apart from this subsection), but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or in contract or otherwise which is available to the employer in respect of the injury ...

(3)

In this section -

'business' includes the activities carried on by any public body;

'employee' means a person who is employed by another person under a contract of service or apprenticeship and is so employed for the purposes of a business carried on by that other person, and

'employer' shall be construed accordingly;

'equipment' includes any plant and machinery, vehicle, aircraft and clothing;

'fault' means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort in England and Wales or which is wrongful and gives rise to liability in damages in Scotland; and

'personal injury' includes loss of life, any impairment of a person's physical or mental condition and any disease."

My Lords, if subsection (1) stood alone and without such assistance as is provided by subsection (3), I would not, for my part, have encountered any difficulty in concluding that, in the context of this Act, a ship was part of the "equipment" of the business of a shipowner. In the Court of Appeal, O'Connor L.J. ante, p. 281A, expressed the view that the word in its natural meaning denoted something ancillary to something else and an echo of this is to be found in the judgment of Glidewell L.J. Thus both Lords Justices would, I think, regard machinery attached to a ship as "equipment," because it would be ancillary to the main object, the vessel, but both regarded the word as inappropriate to describe the vessel itself. I do not doubt that the word is frequently and quite properly used to describe the appurtenances of some larger entity, but I can see no reason either in logic or as a matter of language why its use should be so confined. Indeed, there is nothing in the entry in The Oxford English Dictionary quoted by O'Connor L.J. which necessarily imports that "equipment" is restricted to parts of a larger whole. The meaning is given as "anything used in equipping; furniture; outfit; warlike apparatus; necessaries for an expedition or voyage."

Moreover, your Lordships are concerned not with the meaning of "equipment" simpliciter but of the composite phrase, "equipment provided by his employer for the purposes of the employer's business." Speaking for myself, I can think of no more essential equipment for the setting up and carrying on of the business of a shipowner than the ship or ships with which the business is carried on. This involves, in my judgment, no misuse of language. As Lloyd L.J. observed in his dissenting judgment in the Court of Appeal, ante, p. 284E-F, one would talk naturally of a fleet being "equipped" with battleships, cruisers and destroyers or of the "equipment" of an expedition as including supply ships. In my judgment, a shipowner's fleet of ships is properly described as the equipment of his business. They are, in truth, the tools of his trade and I can see no ground for treating the word "equipment" in subsection (1)(a) - leaving aside for the moment the more difficult questions posed by subsection (3) - as excluding this particular type of chattel as opposed to other articles, of whatever size or construction, employed by a trader in carrying on his trade.

It has been submitted on behalf of the defendants that the word derives a more restricted flavour from its juxtaposition with the word "provided" and that that word imports the notion of something provided to the employee for use in the course of his work and is therefore more appropriate to the type of small tool provided to the appellant in Davie v. New Merton Board Mills Ltd. [1959] A.C. 604. There is, however, no context from which this can properly be deduced - indeed the extended definition in subsection (3) leads to a precisely contrary conclusion - and I can see no reason for reading the word "provided" in anything other than its normal signification of "furnished."

Then it is said that "equipment" is to be distinguished from the factory or workplace in which working tools or machinery are provided or to which they are affixed and that a ship - or, certainly, an oceangoing vessel of the size of Derbyshire - is akin to a factory in the sense that it provides the accommodation within which the employee does his work. Whilst, therefore, it is accepted that the various mechanical contrivances which are installed in or affixed to a vessel are properly described as equipment, the ship itself, taken as a whole, is, it is argued, not "equipment" because it constitutes the employee's "workplace."

It is, of course, true that the provisions of the Occupiers' Liability Act 1957 apply to a ship as they do to real property, but they equally apply, in appropriate circumstances, to a vehicle or an aeroplane, so that nothing can, I think, turn on this. It is also true that it is inherent in the nature of a vessel that those whose task it is to navigate it are accommodated within it for the purposes of their employment. But here, as it seems to me, any analogy with real estate ends. No one, I venture to think, would regard the power-boat provided for the purpose of a water-skiing school or a pleasure launch on the river Thames as being in the slightest degree akin to real estate or as being anything other than a chattel employed in a business. Such a vessel would, in my judgment, be comprehended in the term "equipment of the business" even in the most everyday use of language and I can see no justification for excluding from it some category of vessel merely by reason of its size and of its necessarily providing accommodation for the crew who are required to be on board in order to operate it for the proper carrying on of the business of carrying cargo from one part of the world to another.

It is, however, argued that subsection (1) does not stand alone. It has to be read in the context of an Act which also contains subsection (3) and it is this which, in my judgment, constitutes the strongest argument for the defendants. Here, it is said, is a specific definition of "equipment" which goes out of its way to include plant and machinery, vehicles and aircraft and clothing. Is it conceivable, it is asked, that the draftsman of the statute, who evidently regarded himself as indicating, in subsection (3), particular articles which might possibly not be thought of as ordinarily embraced in the phrase "equipment provided... for the purposes of... business," should have specifically included vehicles and aircraft but should have omitted any reference to vessels if such omission were not intentional?

Thus, it is argued, if vessels were omitted deliberately from the expanded or clarifying definition in subsection (3) this demonstrates that the word is used in subsection (1)(a) in a more restricted sense. My Lords, I have found myself unable to accept this approach to the problem of construction. To begin with, it is quite clear, as was pointed out by Lloyd L.J. ante, p. 285B-G, that the word "includes" in subsection (3) cannot be construed as "means and includes" so as to confine that which is embraced in the word "equipment" to the exemplars there specified. Granted that there may be circumstances in which an inclusive definition of this sort can have a restrictive effect, that cannot, in my judgment, possibly apply in the case of this statute. Here, where the draftsman intends a restricted meaning, he makes it quite clear. One has only to contrast the definitions of "business," "equipment" and "personal injury," all of which are by reference to what is included, with those of "employee" and "fault," where the Act makes it clear that there is to be a single exclusive meaning for the purposes of the Act. Subsection (3) cannot, therefore, be used to cut down the meaning of the word "equipment" as it is used in subsection (1). It must have been inserted in the statute either for the purpose of enlarging the word by including in it articles which would not otherwise fall within it in its ordinary signification or it must have been inserted for clarification and the avoidance of doubt.

For my part, I agree with Lloyd L.J., ante, p. 285F-G, that the definition is a clarifying and not an enlarging one. Why the draftsman felt it necessary to clarify in this way is a matter for speculation. Quite clearly, for instance, some "plant and machinery" would be properly described as "equipment" even in the most ordinary use of the term and the purpose of the express inclusion of plant and machinery can, I think, only have been to make it clear that every type of plant and machinery is to be regarded as equipment within the meaning of the Act. The key word in the definition is the word "any" and it underlines, in my judgment, what I would in any event have supposed to be the case, having regard to the purpose of the Act, that is to say, that it should be widely construed so as to embrace every article of whatever kind furnished by the employer for the purposes of his business. Thus it is not just particular plant and machinery or vehicles (for instance, a combined harvester) or particular types of aircraft (for instance, a crop-spraying aeroplane) which are to be regarded as "equipment" but plant and machinery, vehicles, aircraft and clothing of all types and sizes subject only to the limitation that they are provided for the purposes of the employer's business.

It is certainly curious that, having resolved to refer specifically to means of transport, the draftsman should have omitted to refer in terms to water transport. Indeed, it is difficult to see why, after the express inclusion of "plant and machinery," it was thought necessary to refer to any further examples. The word "plant" is itself one of the widest import and is apt to embrace anything from a wharfinger's cart-horse (see Yarmouth v. France (1887) 19 Q.B.D. 647) to a lawyer's text book (see Munby v. Furlong [1977] Ch. 359). "Plant and machinery" is even wider and had at the date of the passing of the Act a well recognised meaning to those familiar with taxing statutes. In the ordinary way, therefore, had it not been for the express reference to vehicles and aircraft, I would, in any event, have been disposed to regard a ship as something properly embraced in the phrase "plant and machinery" - see, for instance, the Capital Allowances Act 1968, section 31, where new ships are specifically referred to and are treated as a special type of plant and machinery for the purposes of initial allowances.

However, the express reference to vehicles and aircraft, whilst it indicates that the word "equipment" is to be construed in its widest sense - a conclusion reinforced by the inclusion also of "clothing" - does seem to indicate at least a doubt in the draftsman's mind whether every type of vehicle or aircraft had been embraced in what had gone before and highlights the omission of any express reference to water-borne means of transport, for if the draftsman considered that some or all of the possible land-borne or airborne means of locomotion might not properly be described as "plant and machinery" it seems curious that he did not entertain at least equal doubt about water-borne craft. It has been suggested that a ship may properly be described as a water-borne vehicle and reference has been made to the Hovercraft Act 1968 in which a hovercraft is defined as a

"vehicle ... designed to be supported ... by air expelled from the vehicle ...": section 4(1).

It would, it is submitted, be absurd that a hovercraft should be a vehicle for the purpose of the definition and that a water-borne craft of commensurate size and purpose should not be. I find myself, however, unpersuaded by the transposition into this Act of a definition from a quite different statute. The juxtaposition of "vehicle" and "aircraft" demonstrates, I think, that "vehicle" is used in this Act as referring specifically to a land-borne means of transport. It must, in the light of this, be at least doubtful whether, in the context of this Act, the expression "plant and machinery" is properly to be construed as including ships, and I am, for my part, content to approach the problem on the footing that it is not. The omission is certainly curious but I find myself entirely unpersuaded that there can be deduced from it an intention to cut down the very wide meaning of "equipment" in subsection (1) which is indicated both by the legislative purpose of the statute and by the width of the clarifying definition.

Various explanations have been suggested for what it is submitted was a deliberate omission. It is said, for instance, that having regard to the provisions of section 458 of the Merchant Shipping Act 1894 (57 & 58 Vict. c. 60) a ship may have been deliberately omitted because of a perceived possible conflict between liability of the shipowner under that section (which imposes only an obligation of reasonable care to ensure seaworthiness) and the vicarious liability imposed by this Act. It is also submitted that there could be difficulty in reconciling that vicarious liability with the limitation of a shipowner's liability for injury or loss of life under section 503 of the Act of 1894 in the absence of actual privity or fault. Again, it is said that to apply the provisions of the Act to a ship would give rise to problems of conflict of laws in cases where injury was caused on ships under foreign flags or where it occurred on the high seas or in a foreign port - a difficulty, however, which would equally arise in the case of an aircraft.

These suggested difficulties are to my mind more illusory than real and, in so far as they exist at all, constitute a quite insufficient reason for imposing on the wide words of the statute an unexpressed limitation which would produce some quite extraordinary anomalies. Whatever may be embraced in the expression "plant and machinery" it quite clearly includes any machinery installed in or affixed to a ship in the absence of some compelling context to the contrary; and there is no context whatever in this Act for reading the expression as excluding maritime machinery from "any" plant and machinery. Unless, therefore, one is to read the Act as if it contained some unexpressed limitation excluding from its operation plant or machinery which comes to be installed in a ship, the exclusion from the definition of "equipment" of a ship itself produces the absurd position that the employer is liable for injury caused by defective machinery on or in the ship but not for injury caused by anything which can properly be described as constituting the ship itself, i.e. the hull or a part of the hull.

This at once raises almost insoluble problems of demarcation between those constituent parts of the ship which may properly be described as "plant" or "machinery" and those parts which are properly to be described as the hull or parts of the hull. There simply is no context in the Act which enables one to read "equipment" as including the ship's winches, derricks, generators, pumps, engine-room plant, steering gear and so on, but as excluding the structure of the ship itself. The alternative approach of treating all ships and all their gear, machinery and accoutrements as sub silentio excluded from the operation of the Act raises, to my mind, equal difficulty. It seems to me almost unarguable that "equipment" does not include at least some vessels.

The example of a dredger, for instance, was suggested by Lloyd L.J., ante, p. 286c in his judgment and it is not difficult to think of other examples of water-borne craft which would clearly be properly styled "business equipment." "Business" includes, by definition, the operations of a public body. The customs cutter, the fire-tender or the Trinity House launch, would, I should have thought, be quite clearly "equipment" of the operations for which they were provided. If, then, some ships are equipment, where is the line to be drawn? It cannot, in my judgment, be drawn simply by reference to size as the majority of the Court of Appeal appear to have concluded. There is no logic in such a criterion nor any functional difference between vessels of different types which enables a line to be sensibly drawn.

The purpose of the Act was manifestly to saddle the employer with liability for defective plant of every sort with which the employee is compelled to work in the course of his employment and I can see no ground for excluding particular types of chattel merely on the ground of their size or the element upon which they are designed to operate. Indeed, the express inclusion of all vehicles and all aircraft militates strongly against any such distinction. Like Lloyd L.J., I am impressed both by the width of the words used by the legislature and by the legislative purpose behind the statute and I am driven to the same conclusion that he reached.

I would allow the appeal and answer the question raised on the preliminary issue in the same sense as it was answered by Sheen J.