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Alan Pearson v. Ray McDermott Diving International Inc [2008] CSIH NUMBER 39


Reclaiming Motion:- On 6 May 1997 in the course of his employment with the defenders the pursuer suffered injury whilst working on a barge in assistance of two divers. An action was raised in May 2000 and, following a proof in 2003, on 18 February 2004 the Lord Ordinary assoilzied the defenders. Here the pursuer reclaimed against that decision. The only ground of fault that the pursuer relied upon at proof was in the following terms:- "They (the defenders) knew or ought to have known that if the pursuer was given instruction to haul in the diver he would follow the instruction. They knew or ought to have known that if the pursuer was required to haul in a taut umbilical he would be likely to sustain loss, injury and damage. It was their duty to take reasonable care to see that the pursuer was not required to pull up a taut umbilical." In his findings thed Lord Ordinary stated inter alia that:- "It cannot therefore be held that the pursuer was instructed to do something known to be impossible." The court considered whether the Lord Ordinary misdirected himself in relation to that finding. The question for the court here was whether fault on the part of the supervisor could be inferred from the evidence led at proof, in particular, whether any evidence was led by the pursuer from which the inference necessary to establish fault on the part of Harrison, the supervisor, could be drawn.