Ziemniak v ETPM Deep Sea Ltd.

On 21 November 1997, the Appellant, George Ziemniak, suffered serious personal injuries in an accident in the course of his employment. His claim for damages arising from his accident, alleging that it was caused by the negligence and/or breach of statutory duty of the Respondent, was dismissed by His Honour Judge Lyon sitting in the Manchester County Court on 29 May 2002. He appeals against that decision accepting the judge’s finding as to negligence but contending that he was wrong not to find that the allegation of breach of statutory duty was made out.

The Appellant is a marine engineer. In November 1997, he was taking part in a drill to test the launching and recovery of the lifeboats on board the DSV Norlift with other members of the crew when it was moored alongside the jetty at the Teesport Offshore Base at Middlesborough. At a time when the Appellant was seated in the port lifeboat, a suspension chain holding the lifeboat failed causing the lifeboat to plunge into the water below. The Appellant and others were thrown into the water and the Appellant sustained multiple injuries including severe head and maxillofacial injuries. The injuries have resulted in long term consequences for him both in social and employment terms. The Respondent was responsible for the vessel.

It was agreed that the probable cause of the accident was the failure of a link caused by Stress Corrosion Cracking. On the evidence called before him, the judge concluded that the chain was not visibly corroded to such a degree that a reasonably prudent employer would have considered it necessary to replace it nor that it was unsafe to launch the lifeboat with the chain as it was. There is no appeal against this finding that was determinative of the issue of negligence.

Apart from the allegation of negligence, the Appellant also claimed that he was entitled to be compensated for the Defendant’s breach of its statutory duty. The breach alleged was a breach of Regulation 43(10) and Schedules 16 Part II (c) of the Merchant Shipping (Life Saving Appliances) Regulations 1980, SI 1980 No. 538 (“the Life Saving Regulations”).

The Life Saving Regulations were made pursuant to powers conferred by Section 21 of the Merchant Shipping Act 1979 (“the 1979 Act”). Sub-section 1(a) of the section gave a power to the Secretary of State to make by regulations (referred to as “safety regulations”) “such provision as he considers appropriate for … securing the safety of United Kingdom ships and persons on them and for protecting the health of persons on United Kingdom ships”. Sub-section 5 permitted such regulations to provide for the granting of exemptions from specified provisions of the regulations “for classes or individual cases”. Sub-section 6 permitted such regulations to make provision for criminal sanctions for breach of the regulations.

The relevant provisions of the 1979 Act have now been consolidated into the Merchant Shipping Act 1995 (“the 1995 Act”) as Section 85 of that Act. No regulations have been made under the 1995 Act Part IV "Safety" Section 85 but the Respondent accepted that the Regulations relied on by the Appellant had effect as if so made by virtue of the Interpretation Act 1978 Section 17(2)(b).

Regulation 43(10) provides:

Schedule 16 Part II 1c then provides:

The duty was conceded to be an absolute one and breach of the duty was admitted by the Respondent. It was further conceded that the Appellant was a member of the group for whose protection these regulations were promulgated. The only issue for determination was whether breach of that regulation gave rise to a right of civil action vested in the Appellant.

The Judge concluded that the regulation did not in law give rise to any such right and it is that conclusion that is challenged in this appeal.

On behalf of the Appellant, Mr Hytner QC submitted that in deciding whether a breach of a statutory duty will give rise to a right to damages there is no single formula that is determinative in all cases and the Court must look at the statute as a whole to determine the intention of the legislature.

However, where the statute is passed for the protection of a particular class, and no criminal penalty is provided for in the event of a breach, then a breach undoubtedly gives rise to a civil remedy. Mr Hytner supported this contention by reference to the judgment of A.L. Smith LJ in Groves v. Wimborne (Lord) [1898] 2 QB 402 in which, when dealing with a claim for breach of a duty to fence dangerous machinery under section 5 of the Factory and Workshops Act 1891, he said (at p.407):

Where the statute does provide for a criminal penalty, there is a presumption that no other remedy is intended. However Mr Hytner submitted that there are two clearly established sets of circumstances in which the law recognises exceptions to this general proposition, one of which arises where the statute is intended for the protection from injury of a particular class. That was the situation in Groves v Wimborne where notwithstanding that section 5 provided for a fine, the breach was held to give rise to a civil remedy. Mr Hytner drew attention to the case of Butler v Fife Coal [1912] AC 149, a Scottish case heard in the House of Lords, in which Lord Kinnear at page 165 said:

Mr Hytner pointed to the fact that Groves v Wimborne and Black v Fife Coal have frequently been cited with approval (see e.g. Phillips v Britannia Hygenic Laundry [1923] 2 KB 823 per Atkin LJ at p. 841; Lonrho v Shell [1982] AC 173 per Lord Diplock at p. 185). In X (Minors) v Beds CC [1995] 2 AC 633, Lord Browne-Wilkinson at p. 730 said:

Applying those principles to the breach of statutory duty alleged, it was argued on behalf of the Appellant that no criminal penalty was provided by the Regulations for the particular breach of the duty alleged in this case. Regulation 53 of the relevant regulations makes provision for penalties providing:

Since the ship had not gone to sea but was moored at port, it was clear that no offence pursuant to Regulation 53 was committed. Thus it was argued that the case came squarely within the general principle stated in Groves v Wimborne to which reference has already been made.

Even if it could be argued that the general principle did not apply because a criminal penalty might in some circumstances be applicable other than under Regulation 53, the case would come within the recognised exception to which reference has already been made as being a provision intended to give protection from injury to a particular class of people. Hence a breach leading to injury would give rise to a civil remedy to a person from that class injured as a result of the breach.

Mr Benson QC on behalf of the Respondent submitted that the question of whether a failure on the part of the Respondent to comply with Regulation 43(10) gives rise to a civil liability was an issue which primarily was to be determined by reference to the 1995 Act. If the effect of Section 85 is that non-compliance with its provisions cannot give rise to civil liability then the Regulations made thereunder cannot do so. He drew attention to the fact that both the primary legislation and the Life Saving Regulations are silent as to whether a civil action in damages for breach of any duty is conferred.

It was submitted that Parliament clearly did not intend to confer on members of a limited class of the public (merchant seamen) a private right of action for breach of the statutory duty relied on because provision was made to secure compliance with the statutory duty by other means since:

Mr Benson next pointed to the fact that Section 21 of the Merchant Shipping Act 1979 effected significant change in legislative approach by giving wide enabling powers so that detailed safety matters could be dealt with in regulations issued under it. It was submitted that this approach was analogous to that to be found in the Health & Safety at Work Act 1974 in contrast to the legislation it replaced where successive Factories Acts and other kindred legislation had contained the detailed safety provisions within the primary legislation. If the two Acts were to be seen as broadly analogous then it was to be noted that the 1974 Act dealt specifically with civil liability at section 47(2) providing:

Mr Benson’s next submission was that it was important to observe that Section 85 of the 1995 Act does not place an obligation on any specific person in relation to matters of safety leaving it to the Regulations to do so and to prescribe who may be convicted of an offence for contravention of a regulation. (Under Section 98 criminal responsibility attaches to the owner and master). The duties under Regulation 43(10) and Schedule 16 are not imposed on any particular person. Since the statutory duty, which the Appellant sought to enforce, was not one which the legislature has imposed expressly on any specific person, it was therefore unlikely that Parliament intended there to be civil liability.

The Respondent relied upon the decision of this Court in Todd & Others v Adams & Another [20021 EWCA Civ 509, {2002] 2 Lloyds Law reports 293. That case is one of undoubted importance in considering the correct outcome of this case and it is necessary to look at the relevant parts of the decision in some detail.

The case involved the capsizing and sinking of a beam trawler at sea with the loss of all hands. The widows of three of those who lost their lives brought an action pursuant to the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 alleging that the deaths of their husbands resulted from breach of statutory duty by the then owners of the vessel. They contended that the Vessel capsized and sank as a result, inter alia, of its failure to comply with Rule 16 of the Fishing Vessel (Safety Provisions) Rules 1975, SI 1975 No. 330 (“the Fishing Vessel Construction Rules”) in that the vessel did not satisfy certain specified stability criteria set out in Rule 16 in “all foreseeable operating conditions”.

The Fishing Vessel Construction Rules were made under the Fishing Vessels (Safety Provisions) Act 1970, which was also consolidated into the 1995 Act with some modifications not relevant to the issues then being considered. Section 121 of the 1995 Act permitted the Secretary of State to make rules “prescribing requirements for the hull, equipment and machinery of United Kingdom Fishing vessels of any description”. With the passing of the 1995 Act, the Fishing Vessel Construction Rules were deemed to be made under that enabling provision.

At first instance the court had ordered trial of two preliminary issues, one of which was whether the Fishing Vessel Construction Rules imposed civil liability on persons in breach of those rules. Aikens J. concluded that they did not and that decision was the subject of appeal. The Court of Appeal dismissed the appeal.

Neuberger J., with whose judgment the other two members of the court agreed on this issue, concluded that it had not been the intention of the legislature to confer on persons sailing on fishing vessels the right to make a civil claim for any loss suffered as a result of a breach of any rules made pursuant to section 121 of the 1995 Act. He reached that conclusion for a number of reasons which he set out:

The Court concluded that no one of the arguments identified was conclusive but taken together they pointed “firmly in favour of the contention that a breach of the rules issued pursuant to section 121 of the 1995 Act cannot itself form the basis of a civil claim by a person who has suffered damage as a result of such a breach”.

The Court recognised that there were arguments the other way and in particular saw the strength of a comparison between the relevant part of the 1995 Act and the Factories Acts. Neuberger J. considered the case of Groves v Wimborne but distinguished it by reason of a number of factors:

In giving judgment, Neuberger J., at paragraph 15, quoted an observation from Clerk & Lindsell on Torts (18^th Edition, 2000) at paragraph 11-02, which very much mirrored my own thoughts on listening to the argument in the instant case:

An appeal to the House of Lords against the Court of Appeal’s decision was commenced but we are told that it was compromised upon terms that remain confidential to the parties in that case.

Mr Benson recognised that the decision in Todd’s case was under a different set of rules made pursuant to a different section of the 1995 Act. He further recognised that at first sight the factual basis of the two cases was, at least, potentially suggestive of a different answer. The question of the construction of the vessel raised by Todd’s case was considerably removed from the typical facts that gave rise to a claim under the Factories Acts whereas the failure of the chain in this case bore a much closer relationship to matters frequently encountered in other statutorily controlled work places. The construction was something that could be checked on survey and the conclusion would remain the same throughout the period of certification unless alterations were made which would require re-certification. The provisions with which this case is concerned deal with matters that need to be kept under constant review. However, he submitted that the decision in Todd’s case was that any breach of rules made pursuant to Section 121 of the 1995 Act would not attract liability and he referred to other provisions of the Fishing Vessel Construction Rules that closely resembled those being considered in this case.

Just as Rule 43(10) of the Life Saving Regulations required that davits, winches, falls, blocks and all other launching gear provided in accordance with the regulations should comply with the requirements of Schedule 16 or 17 to the Regulations so Rule 95(9) of the Fishing Vessel Construction Rules required that such equipment should comply with Schedule 15 to the Rules. Schedule 15 at paragraph 1(c) contained a like provision to Paragraph 1(c) of Schedule 16 of the Life Saving Regulations.

Mr Benson argued that since, following the decision in Todd’s case, no civil liability would arise from a breach of Rule 95(9) and Schedule 15 paragraph 1(c) of the Fishing Vessel Construction Rules, it would make no sense if a breach of an identical obligation under Regulation 43(10) and Schedule 16 paragraph 1(c) of the Life Saving Regulations could do so. This was all the more so since the two different provisions arose from powers in force as a result of the 1995 Act.

In reaching his conclusion that there was no civil liability for breach of the relevant regulation, Judge Lyon felt himself able to give his reasons quite shortly. He said:

Mr Hytner contends that the judge fell into error in two distinct ways. The first is that although, as he accepted, at paragraph 27 of his Judgment, the breach of the Regulation admitted by the Respondent did not attract a criminal penalty, he found that this was overridden by the provision “for a system of enforcement and regulations to ensure so far as possible the safety of the class of persons at risk”. It is submitted that this finding has no basis in authority. It runs counter to the observations of A.L. Smith LJ in Groves v. Wimborne, and even were it permissible so to ignore the absence of a criminal sanction, the Judge failed both to give it sufficient weight and to identify the system upon which he relied. In fact neither in section 85 of the 1995 Act nor in the Regulations themselves is any such system provided for. At most, there is no system that goes beyond that provided for in, for example, the various Factories Acts. Furthermore, whilst the enabling section permitted the Secretary of State to make breaches of Regulations subject to a criminal penalty, this is to be contrasted with section 121 which empowered the Secretary of State to make Regulations, contravention of which shall be punishable by a fine.

The second error that Mr Hytner submits that the judge made is in the only actual reasoning for his decision contained in paragraphs 26 and 27 of his Judgment, in which he states “In the present case there exists a system of inspection and improvement notices. The Secretary of State has powers to exempt parties from specific obligations” and “ … the regulations do provide for a system of enforcement and regulation to ensure so far as possible the safety of the class of persons at risk”. It is suggested that this reflects a misunderstanding of the decision in Todd’s case. Mr Hytner contends that there is nothing out of the ordinary in the existence of a system of inspection in a safety at work context and that such a system was “all part and parcel of any statute relating to industrial safety”. He points, by way of example to the existence of a system of inspection in the Factories legislation throughout the century or more in which Parliament saw fit to intervene to protect workers and submits that there has never been any question that such legislation, whether primary or subordinate, gave rise to a civil remedy. He complains that the judge, having referred in passing to the Factories Acts, made no attempt to identify the actual regulatory provisions in the Regulations themselves upon which he thought it right to rely, nor did he attempt to distinguish them from the regulatory provisions pursuant to other legislation where a civil remedy was accepted to arise such as the Factories Acts.

Mr Hytner contends that if such a comparison had been made, the judge could not have concluded other than that the Factories legislation had provided for a more widespread regime of inspection and enforcement even prior to 1974 when the form of that legislation was very much changed. He submits that it was never doubted that despite that regime, civil liability would arise from a breach. He relies on the continuing approval of the relevant passage in Groves v Wimborne in the many years that have elapsed since that date.

Mr Hytner contends that the judge was wrong to equate the provisions of the Life Saving Regulations made under Section 85 of the 1995 Act with those under the Fishing Vessel Construction Rules made under section 121 and thus wrongly applied Todd’s case to the present facts. He submits that the inspection regime under the Life Saving Regulations cannot be equated to the system of certification of fishing vessels. Under the latter, an owner is required to have the vessel inspected by a surveyor to oversee compliance, and certification of compliance, in the absence of fraud, is conclusive of compliance. The Regulations on the other hand provide for no such regime.

Next, Neuberger J. in Todd’s case was clearly impressed by the extent of the powers granted to the Secretary of State to exempt a vessel from the Fishing Vessel Construction Rules and considered that they were wide enough to permit of exemption for “purely political reasons”. Whilst recognising that there is a power to permit exemptions contained within section 85 of the 1995 Act, that power he submits could not, and would not, be used for such ends. He points to the fact that Judge Lyon recognised it to be “impossible to conceive of a Secretary of State exempting any party from an obligation requiring the safety equipment to be in working order”. He further submits that the power of exemption contained in later Factories legislation was no different from that found in this statute and illustrates his point by reference to three sections of the Factories Act 1961 and the Regulations made thereunder, section 1 relating to cleanliness, section 25 in respect of hoists, lifts etc and section 37 dealing with steam boilers.

Mr Hytner’s contention is thus that if one embarks on the detailed examination of the particular safety provisions, adopting the approach of Neuberger J., which he contends the judge never carried out in this case, it may in circumstances such as those in Todd’s case lead to the conclusion arrived at by the Court of Appeal which enabled a distinction to be drawn between the legislation being considered and other legislation in the field of safety in the work place, such as the Factories Act. Here no such distinction could properly be made out and it would be wrong to introduce an inconsistency between the position of seamen and other workers when Parliament must have been well aware of the approach of the courts to civil liability in such fields that had been clearly understood for most of the century prior to the passing of the legislation, and cannot be taken to have intended that seamen should be in a worse position than others unless either that distinction was set out in the legislation or the positions were distinguished in some other manifest way such as the Court concluded to be the case with the regime of certification in Todd’s case.

If it were not for the decision in Todd’s case, I should have had little difficulty in readily accepting Mr Hytner’s contentions. It does not seem to me that any valid distinction can be made between the legislation relied on by the Appellant and the many other legislative provisions in a wide context relating to industrial safety such as factories, mines and docks where I have no doubt that the approach of all concerned with such legislation has been for a very considerable period of time that that breach of safety provisions designed for the protection of workers would generally lead to civil liability. In his response to the Respondent’s submissions, Mr Hytner pointed to a passage in the General Notes to Current Law Statutes Annotated dealing with the 1979 Act which reflected on the reasoning for the change of legislation.

It is, however, perhaps helpful to take such consideration back one stage further. Prior to 1975, the power to make regulations “for securing as far as practicable, safe working conditions and safe means of access” for seamen employed in ships registered in the United Kingdom lay with the Board of Trade under section 19 of the Merchant Shipping Act 1970 (“the 1970 Act”). That legislation followed upon and was in response to the final report of a Court of Inquiry under the provisions of the Industrial Courts Act 1919 (the “Pearson Report”), which inquired into various matters concerning the shipping industry. The inquiry resulted from an industrial dispute between shipowners and the National Union of Seamen. Included in the terms of reference of the court, which was under the chairmanship of Lord Pearson, were the provisions of law, particularly the earlier Merchant Shipping Acts, which were relevant to the terms and conditions of service of seamen, taking into account the national interest, technological change and the need for an efficient and competitive shipping industry, and to the relations between shipowners, officers and seamen.

The Act, as it was passed, was largely an enabling Act empowering the Board of Trade to make regulations. The General Notes to the Current Law Statutes Annotated of 1970 relevant to the Act said of the Act that:

Commenting on Section 19 of the 1970 Act, the enabling provision for safety regulations, the General Notes said:

Section 19 of the 1970 Act was replaced by Section 21 of the 1979 Act. In the General Notes to the Statute in Current Law Statutes Annotated 1979 (the annotation being by D.R. Thomas, a lecturer in Law at University College, Cardiff), it was said:

When the 1979 Act was passed, it contained no provisions equivalent to those contained in the 1995 Act relating to fishing vessels. However, the Fishing Vessels (Safety Provisions) Act 1970 contained those provisions that were to find their way into Part V Chapter II of the 1995 Act including the provisions that became Section 121 and the provisions as to certification. When the 1975 Act was passed no alteration was made to these provisions (save a limited change as to criminal penalty). Thus although important changes were being made in respect of seamen seen as “a substantial step towards the elimination of the differences in the employment safety legislation between terrestrial and maritime employees" no similar alteration was made for fisherman. This apparent inconsistency is perhaps addressed by Professor Gaskell, Professor of Maritime and Commercial Law at the Institute of Maritime Law, University of Southampton in his General Note to Chapter II of Part V of the 1995 Act in Current Law Statutes Annotated when he explains that “by contrast to merchant shipping generally, there has been less international agreement on the subject of fishing vessel safety and construction rules”.

Since the 1995 Act reproduced with no relevant changes section 21 of the 1975 Act, it is difficult to see how Parliament can have been taken to have intended that it should alter the position of seamen as it had been since 1979. Against the historical background to which I have referred, the argument advanced by Mr Hytner against Parliament having intended that either the 1979 Act or the 1995 Act should leave a seamen in a totally different position when compared to someone working in a factory is a powerful one even though a fisherman may not enjoy the same degree of protection.

I am unimpressed by Mr Benson’s argument that the absence of reference to civil liability in the 1979 Act is significant in the light of the express provision in the Health and Safety at Work Act 1974. Parliament must have been aware of the approach of the courts where there was no reference to civil liability and must have intended that this legislation would be treated in the same manner. The absence of any express reference in the 1979 Act may well be because the legislation was an expanded version of that contained in the 1970 Act that made no reference one way or the other to civil liability.

The only difficulty that I see in this case arises from the decision in Todd’s case and the arguments advanced by Mr Benson in that regard. For my part I am not entirely persuaded by all of the reasoning contained in the judgment of Neuberger J. in that case. For example, I do not believe that all the distinctions drawn between the Fishing Vessel Construction Rules and the Factories Acts can be sustained. The view of the law expressed in Groves v Wimborne, undoubtedly remained the law after the demise of the doctrine of common employment and I do not see that the doctrine can therefore be advanced as an explanation for the approach. Comparison between the provisions of the Fishing Vessel Construction Rules and the Factories legislation at the time of that decision may be valid but ignores the fact that there were substantial changes in later legislation that meant that the two were much more closely related and such changes did nothing to alter the accepted view that the principle enunciated in Groves v Wimborne was correct and equally applicable to the changed legislation.

However, whatever reservations I may have about the reasoning in Todd’s case, I have to recognise that it is binding on this court and it would be for the House of Lords to decide that it was wrong if that were the case. The only circumstances in which I would consider that I could depart from that decision would be if it could properly be distinguished, or if arguments had been advanced in the present case that were not considered by the court in Todd’s case or if the decision in Todd’s case could be shown to conflict with the earlier authorities emanating from the House of Lords.

I do not see that it is possible to say that the third of those possibilities can apply. There is nothing that I can see that enables a conclusion that the decision in Todd’s case was inconsistent with such guidance as can be derived from the earlier authorities. It would, of course, have been illuminating to know what view would have been taken if the appeal against the decision in the Court of Appeal had been pursued by the parties but there is nothing that would suggest that the House of Lords would have concluded that it was a matter that was resolved by earlier cases.

I turn, therefore, to consider whether the decision in Todd’s case can properly be distinguished. Mr Benson’s arguments in this regard were attractive. He properly posed the question how can two parts of the same Act lead to such different conclusions for different classes of workers offered protection as a result of different parts of the same statute. Further to that his careful comparison of the subordinate legislation protecting the two classes demonstrated just how closely related they are in some of the obligations imposed on those in a position to safeguard the two different types of workers, including those relating to the very dangers that manifested themselves in this case. However comparison between the position of fisherman and seaman is not the only legitimate comparison and the comparisons between the position of seamen and other workers facing dangers of a not dissimilar kind as advanced by Mr Hytner are every bit as valid. Accepting that Todd’s case is rightly decided, there must be a distinction to be drawn in one regard or the other and the issue is whether it must necessarily be between fisherman and seamen on the one hand and others employed in a different context on the other as submitted by Mr Benson, or whether it is fishermen alone, who find themselves in this exceptional position because of the precise nature of the legislation relating to their industry.

In resolving that issue, it does not seem to me that we are constrained by anything that was decided in Todd’s case. Although the subordinate legislation is made under two sections of the same Act, the history of how the two sections came to find themselves under the same legislative roof to my mind demonstrates that this is not the powerful factor suggesting the likelihood of a common approach being intended to the two distinct problems that it might otherwise be thought to be. The legislation passed in the 1970s, I believe, was clearly intended to sweep away as far as possible the distinctions between seamen and on-shore workers in respect of safety considerations but for one reason or another Parliament did not feel able to treat fishermen in the same manner. They were not covered by the same statutory provision in 1970 and the legislation enacted to protect them addressed the problems in a different way offering them protection by means of the certification route. In 1975 when the 1975 Act was passed which moved forward again the protection for seamen no similar legislation advancing the interests of fishermen was passed. Finally in 1995, Parliament took no steps to alter the position of either seamen or fishermen in this regard simply consolidating the separate positions into the right act of parliament. I can find no valid reason for distinguishing the legislation made under Section 85 from other similar provisions intended to protect many other types of workers. I can, however, see a basis for the distinction between fishermen and others by reference to the certification scheme drawn in Todd’s case and as suggested by Mr Hytner I am satisfied that that factor played a significant role in that decision. It is not suggested that the certification scheme is matched in any of the corresponding legislation and accordingly it does seem to demonstrate that Parliament did intend a difference of approach in the case of fishermen.

For these reasons, I do not consider that we are bound to reach a similar conclusion to that arrived at in Todd’s case and I can find nothing that causes me to think that application of the normal and well-recognised principles in this case does not lead to the inevitable conclusion that Parliament must be taken to have intended that civil liability would arise for a breach of the Life Saving Regulations just as it does in so many similar instances involving workers who do not face the rigours of going to sea.

If I had reached a different conclusion as to whether Todd’s case could be distinguished, I should have felt obliged to proceed to consider whether the arguments advanced in this case suggested implications of that decision that had never been addressed in that case and whether that decision, or more particularly the conclusion that the whole of the Fishing Vessel Construction Rules, as opposed to the particular aspect of the rules relevant to that case, could not give rise to civil liability should properly be revisited now in the light of this argument in order to address the wider considerations raised in this case. However, that exercise has become unnecessary in the light of my earlier conclusions.

I would, therefore allow the appeal, set aside the judgment and substitute for it judgment for the appellant for damages to be assessed.

I agree.

I also agree.