High Court 

Hearne v Marathon Petroleum Ireland Limited

1996/929 P 

27 February 1998 

MORRIS P: 

This matter comes before the court in the form of an appeal from the Order of the Master of the High Court made herein on the 16 December, 1996. The matter came before the Master as an application under Order 50 Rule 4 of the Superior Court Rules seeking permission for an engineer engaged by the plaintiff to examine a certain property belonging to the defendants namely the area on the platform situate in the Irish Sea off Cork where the accident, the subject matter of these proceedings, happened. 

The Master made an order that the plaintiff's engineer be entitled to carry out an inspection of the defendants Oil Rig subject to signing a Form of Indemnity that is Form No 1306. 

From this order the plaintiff appeals and seeks an order that the plaintiff's engineer be entitled to inspect the defendants Oil Rig without the limitations imposed by this release and indemnity. 

In practical terms the issues between the parties can be identified as follows:- 

The plaintiff suffered an injury while on the defendants Oil Rig and he alleges that this occurred by reason of the negligence of the defendants. In order to establish his case he requires that the Oil Rig to be inspected by his engineer. The defendants have no objection to this inspection being carried out however they will only allow the inspection to be carried out providing that the plaintiff's engineer provides them with an indemnity in respect of any loss or damage or personal injuries which he may suffer "whether or not due to the negligence in whole or in part of (the defendants) . . .". In other words the defendants wish to be absolved from all responsibility for the safety of the engineer while he is on their Oil Rig. The engineer has refused to carry out the inspection on that basis and it is in these circumstances that the matter comes before the court. The plaintiff says that his engineer should be entitled to carry out the inspection without the necessity of giving the defendants the total indemnity which they seek or indeed any indemnity. The defendants say that since they do not wish to have the plaintiff's engineer on board their Oil Rig they must be allowed to impose such terms as they consider appropriate if he is to carry out his inspection and these terms amount to a total indemnity against any loss or damage which he may sustain. 

Order 50 Rule 4 of the Superior Court Rules provides:- 

"The court, upon application of any party to a cause or matter, and upon such terms as may be just, may make any order for the detention, prevention or inspection of any property or thing being the subject, cause or matter or as to which any question may arise therein, and for all or any of the inspection aforesaid may authorise any person to enter upon or into any lands or buildings in the possession of any party to such cause or matter and for all or any of the purposes aforesaid may authorise any samples to be taken or any observations to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence". 

Since there is no dispute that the carrying out of this inspection is a reasonable request for the plaintiff to make, the issue that arises in this case is whether the defendants are reasonable in seeking a full indemnity and if they are not then what terms, if any, should be imposed as being "just" in the circumstances. 

Counsel for the parties have informed the court that this matter has not been considered on any previous occasion by the court. This is true, but in Bula Limited v Tara Mines Limited (No 1) [1987] IR 85 Murphy J had to consider an analogous matter and he pointed out on that occasion that the purpose of the rule was to ensure that the litigant is given the information he needs "to present his case properly" and to that end the court has power to determine the terms on which such an inspection should take place so as to ensure that the business of the court is not obstructed by the party against whom the order for inspection is to be made. 

In Wymes v Crowley (unreported) Murphy J, 27 February, 1987, the plaintiff sought liberty for the drilling of bore holes on the defendants land and he claimed that the defendants liability could be established by so doing. Murphy, J granted the order for making the bore holes but required the plaintiff to indemnify the defendants against any damage caused by the plaintiff's occupation of the site. This then is, in my view, a clear indication of the principles which should guide a court in considering applications of this sort. It must in the first instance ensure that circumstances are created in which the plaintiff will have facilities for presenting his case to the court so as to enable the court to have the benefit of all the advises and information which the plaintiff may wish to make available to the court. On the other hand the defendants rights as a property owner must be protected during this inspection so as to ensure that the inconvenience of the inspection is not injurious to his rights as a property owner. 

In the circumstances of the present case the court must and does recognise that an Oil Drilling Rig off the Cork coast is undoubtedly a place of considerable danger to anyone boarding the Rig but, however unwelcome this visitor may be, the defendant is not absolved from the obligation to take reasonable care for his safety since the business of the court requires that he attend and carry out his examination. To allow the defendants a total immunity from responsibility would of necessity mean that no inspection would take place and the court would be deprived of the benefit of engineering evidence and would so be obstructed in the administration of justice. 

During debate the provisions of the Occupiers Liability Act, 1995 have been considered. This Act entitles occupiers of land in certain circumstances to limit their liability towards visitors. In my view a court when engaged in fixing the terms upon which an inspection by an engineer may take place, may, in appropriate circumstances, fix terms other than those which the occupier of land would provide for under the provisions of the Occupiers Liability Act, 1995 and, in an appropriate case, to provide that the duties, liabilities and rights which subsisted prior to the coming into operation of the Act shall apply to the engineer carrying out the inspection. 

In the present case the defendants have made it clear that they will agree to the inspection providing that they get a total indemnity from the engineer absolving them from all responsibility for injury on the Drilling Rig however it is caused. In my view this is not a reasonable provision and I reject this as the appropriate terms under which such an inspection shall be carried out. I direct that the inspection shall be carried out and that the engineer shall not be required to sign the release and indemnity referred to in these proceedings. 

Since this proposed release and indemnity is not reasonable then the liability and obligations of the defendants shall remain and subsist, whatever they may be, without reference to the proposed release and indemnity. 

I accordingly allow the appeal and make an order that the engineer engaged by the plaintiff be entitled to inspect the defendants Oil Rig at such time and in such manner as may be agreed between the parties.