Fishing News – WHAT HAPPENS AFTER A PERSONAL INJURY OCCURS ON BOARD? Part 3
Fishing News has been the voice of the fishing industry since 1913, bringing the latest news and features about the UK and Irish commercial fishing to the industry. Bartons Marine Department were delighted to be invited to write a number of legal based articles for the publication, which we are pleased to reproduce one of them below:
“In this final article considering what happens following an accident at sea, we look at witness statements and provide further general insight regarding the process once the injured party has appointed their own solicitor.
Most accidents will not require solicitors to attend in the immediate aftermath of an accident, however it is prudent for solicitors to attend on board in the early stages, whilst memories are fresh, in order that statements can be written and signed. Most crewmembers working on board are self-employed share fishermen, meaning crewmembers can move between boats regularly and can be difficult to track down at a later date. Statements which are taken as soon as possible will usually be considered to be of greater evidential value than those taken years later.
All statements must be signed with a statement of truth, which confirms the maker of the statement believes the contents of the statement are true. The witness must also confirm they understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. When preparing the statement, the solicitor will explain in more detail what this means for the crewmember signing.
The statement should be an account of the facts known personally by the witness, in the witness’s own words. It is usual for the solicitor to take notes whilst speaking to the crewmember, which are then put into the required statement format and sent to the crewmember for approval. The crewmember should read the statement very carefully. If there are any limitations regarding literacy or English not being a first language, this should be made clear to the solicitor. The witness should not sign the witness statement until they are completely happy the contents correctly reflect their recollection. The witness can ask for the statement to be amended however they see fit; whether this is to add, amend or remove text.
If an injured crewmember wishes to bring a claim, they will usually appoint a solicitor under a Conditional Fee Agreement. Broadly speaking, this means the solicitor representing will agree not to make any charges to their client throughout the claim, however will look to recover their fees from the opponent, in the event of the claim being successful. This does not mean the claim has to go to court, it simply has to settle with the injured party making a recovery. Sometimes a solicitor will charge a success fee, which will come out of the recovery.
The usual position in personal injury claims is that if a claim is issued at court but is lost, the injured party does not have to pay the other side’s (the defendant) costs. This is an important consideration for insurers, when conducting a costs/benefit analysis of defending a claim. However if the claim is struck out by the court, the injured party will be ordered to pay the defendant’s costs, up to the extent of any judgment awarded. The court can also order the injured party to pay the defendant’s costs if it decides they have been acting fraudulently, or they do not beat an offer of settlement made by the defendant. Again, this will be limited to the extent of any judgment awarded in the injured party’s favour.
Your assistance and cooperation throughout any claim is imperative, whatever position is taken as to the liability of the owner/skipper. If you have any relevant information regarding the conduct of the injured party at any point throughout the claim, this should be reported to solicitors, who can discuss with your insurers whether the claim is suitable for further specific investigations to be made, such as surveillance.
If the claim is defended, you will be asked to review and approve the court documents including the Defence and Counter Schedule of Loss. The court will set a timetable for relevant documents to be exchanged, witness statements to be disclosed, any expert reports to be exchanged and for the claim to be set down for trial. You will be required to provide input throughout this process and provide availability for you and your crew to attend the trial to give evidence. Depending upon the value of the claim and which court it is issued in, there can be a significant delay between the claim being issued at court and a trial taking place, which could in some instances take a number of years.
An injured party has 3 years (in some cases 2 years) to issue a personal injury claim at court. After this period they will usually be time-barred from bringing a claim, except in rare circumstances.
Evidence of a good system of health and safety and compliance on board means it is likely proper consideration has been given to implementing safe practices and the avoidance of accidents by reducing risks to the lowest acceptable level. No one wants injuries to happen at sea and having good systems in place can be relatively inexpensive and should, in the long run, save considerable time and expense by avoiding having to deal with the potentially litigious aftermath of an accident at sea.”
Jo Pummery, a solicitor with the specialist marine law firm Bartons, is a qualified new-entrant fisherman who has been to sea on several commercial fishing trips. Bartons is an award winning law firm that also specialises in fishing related personal injury matters and in the sale and purchase of fishing vessels, as well as representing fishermen, owners and fish producers in MMO, IFCA, MCA or HSE interviews and investigations. To discuss any fishing-related legal issues, please call Jo or the team on 01752 675740. Further details can be found at www.bartons.co.uk/marine-law/.
