6 CHAPTER SIX

VOLUME 5�CHAPTER EIGHT - SOME LEGAL QUESTIONS

8.1.General In the course of the proof in these cases a great many legal questions arose. Some of these relate to specific areas of the case and are dealt with where they arise. Some relate to the interpretation of the indemnities and will be dealt with in the chapter relating to indemnities. However some of the points I have to consider can be dealt with as separate issues and it is convenient to treat these in this chapter.

8.2.Evidential Issues8.2.1Computer ProgrammesA matter which arose on a number of occasions and indeed prompted various objections by the defenders was the evidence required to set the basis for expert evidence on the results of various computer programmes they employed. At times there were debates on the evidence required to establish computer input and output data but at the end of the day the main question was the evidence required to establish the validity of the programme itself. Indeed anticipating correctly that the defenders would press these issues the pursuers addressed me at some length on the matter in their initial submissions.The computer codes which caused the defenders concern were the FLACS programme relied on be the witness Dr Bakke and the BLOWDOWN programme which was used by the witnesses Dr Richardson and Dr Saville. Mr Clark who produced a chart showing the chemical composition of various flows used the CHEMSHARE programme but the defenders took no objection to this, perhaps because they did not really quarrel with the results of the exercise. The question is essentially whether or not there exists an obligation on the pursuers to lodge copies of the computer programmes their experts have used. To put the matter in context these programmes are likely to be lengthy and complicated, written in computer code, and to be totally unintelligible to the lay person. Thus for example we were told by Dr Bakke that the FLACS code contains 10,000 lines of computer code. The BLOWDOWN code we were told contains 70,000 lines of computer material. This information gives some idea of the scale of what is involved. A further consideration arises. The detail of most of the complicated models used by experts are closely guarded commercial information and those owning the intellectual property in them would be most reluctant to have external experts having access to their valuable secrets. As can be readily understood considerable sums of money are employed in evolving such programmes and the owners of them earn profits by allowing interested parties to use them. In such transactions the user of the code does not see the detail of it. Needless to say the pursuers in fact did not produce either the FLACS or BLOWDOWN programmes.Dr Bakke used the FLACS programme to calculate his pressure pulse and his results were at the foundation of the conclusions of Dr Palmer. In relation to this programme the input material was made available to the defenders but apart from the results set out in Dr Bakke’s Report no output data was produced. In fact the output data was destroyed towards the latter part of 1989 so that it could not be made available. An interesting point is that Dr Bakke was one of the co-authors of the FLACS code. The actual simulation which was the subject of his evidence in these cases was initially carried out at the behest of the Inquiry Team of the Cullen Inquiry.The pursuers’ contention on the other issue was that there is no obligation on them to lodge a computer code provided that it is an appropriate tool for the task being assigned to it. That proposition of course may beg a number of questions.No matter how well contrived a code may be theoretically, to gain general acceptance it has to be validated by empirical methods. This means that the assessment of the worth of a code tends to depend at the end of the day on how well it performs in practice. In any event the evidence was that even the best finite element code will only produce an approximate result. Dr Bakke said that the FLACS code could be as much as 30% out one way or another. Of course it is possible that a distinction may be drawn between codes that are so well-known that it can be held that they have general recognition and codes which are less well-known and can perhaps be regarded as exclusive. Some computer codes can of course be bought off the shelf. No-one suggested that the FLACS code was of that category. Likewise however it was never suggested that it could not be made available to any person prepared to pay a commercial price for it.As far as the FLACS code was concerned this certainly was not unknown to the defenders’ experts and Professor Magnussen said he knew about the existence of the code, knew about Dr Bakke’s involvement with it , and was aware of publications relating to its development.The pursuers contended that Dr Richardson and Dr Saville were not in fact experts originally instructed by them since they had prepared their original material on behalf of the original Cullen Inquiry Team. Thus just as the pursuers had approached them and questioned them about the evidence they could give it was open to the defenders to do the same. They could in particular have asked them about the code they used. In fact Dr Bakke also began by giving evidence on behalf of the Government at the Cullen Inquiry although he had later accepted a retainer for the pursuers. Dr Richardson and Dr Saville had felt themselves unable to accept instructions from the pursuers. However there may have been a measure of misunderstanding about this in that the defenders understandably were not clear about the position of the witnesses in question and therefore hesitated to approach them. The pursuers led Dr Palmer and Dr Saville and chose to bring out the evidence relating to the BLOWDOWN code. If they wanted to use material dependent on the code they require to persuade me on general grounds of principle that the evidence is acceptable and I do not think that an exploration into the exact status of the witnesses in relation to their instructions really casts too much light on the matters I have to decide. In any event I was left in some uncertainty as to exactly how the witnesses under consideration came to be regarded as the pursuers’ witnesses.From Dr Bakke’s Report (66/1 of process) which he himself spoke to we are told the critical elements of what he used as input for his employment of the FLACS code. Thus although the binary input material was not produced we have evidence from the person who organised the computer exercise as to what he had put into it. He could of course have been questioned about this. There is a machine which converts the binary output of the FLACS code into graphic material and the latter material was produced. Dr Bakke explained that this conversion had been carried out as part of his exercise. If the defenders had wished they could have asked Dr Bakke about the detail and quality of the programme which had carried out the conversion. We were told little other than it was called VIEW. The pursuers contention was that the application of VIEW was simply an extension of the FLACS programme because that is how FLACS is used - namely to produce graphic material. Thus the material which represented the conclusion of the computer exercise had been produced.In my view there was evidence given as to what had gone into the computer and evidence as to what had come out at the conclusion of the FLACS run. Of course I have to assess the quality of that evidence. In a sense that can be done quickly for I found Dr Bakke to be a totally reliable and well qualified witness. The question however still remains as to whether the programmes that had been applied to reach that result ( FLACS and VIEW) were reliable. I do not think that it was ever suggested that the reliability of the computing machines themselves had to be established. There was no evidence to suggest that the binary material from the main FLACS programme had ever been printed out. It was simply carried forward in the computing process so that after having been converted by the VIEW programme a result finally emerged in graphic form. Moreover, according to Dr Bakke the binary material would have been meaningless if it had not been reduced to graphic form.The FLACS programme had been developed by the Christian Michelson Institute in connection with a variety of oil companies. The two dimensional version of the programme had formed the subject of Dr Bakke’s PhD thesis. (He had used the three dimensional version - FLACS 3D - for the work I am concerned with but he had also been a co-author of this). The code had been validated by reference to about 2000 experiments using different geometry although as yet none of these had been extrapolated to a full scale situation. However the tests had shown the validity of the code over a range of scaling. Dr Bakke himself used the code for an exercise involving a physical scaled-down model). Dr Bakke considered that FLACS was the best code available for what he had to do and no expert nominated another code as being better. Indeed he made reference to a recent review of predictive methods for gas explosions which concluded that at present FLACS was the best available tool for pressure prediction. It had been used in connection with at least 20 oil platforms. In respect of the validation exercises these formed the basis for Dr Bakke’s opinion that the code was likely to be accurate to about 30% or better. It was not suggested by the defenders to Dr Bakke that his code had not been properly validated.Dr Bakke explained that FLACS is owned now by Christian Michelson Research (a Norwegian organisation) together with a number of oil and gas companies. He did not think that the owners would voluntarily release details of their code. How a Norwegian Court would respond to a Scottish Commission and Diligence, or to any question of confidentiality was not explored. Dr Bakke testifies that if he had to assess an evaluation based on a computer code such as FLACS what would most interest him is to what extent had the code been validated. Dr Bakke agreed in cross-examination that one factor in assessing the worth of a code would be to consider how accurately it will replicate the Module involved in the exercise. This would be an engineering value judgment. The initial conditions within the Module (that is to say wind conditions, leak conditions , cloud size, concentration and matters of that sort ) are other factors about which choices have to be made. The questions arising from the validity of the physical laws built into the code such as for example the application of the Navier Stoke Equations would be resolved by the empirical tests on the code. Dr Bakke explains that the FLACS code uses discretization in space and time and by varying the discretization say by making control volumes bigger or smaller, or making time steps longer or shorter the results of the code exercise can be varied. The optimum values for such parameters should be derived from empirical tests. Indeed Dr Bakke says “for a situation like this experiments are crucial”. Moreover the results should be evaluated by reference to what one would expect from general engineering experience. However the detailed monitoring is done in the initial validation process. Thus I think it is possible to conclude that at best the use of a code such as I have been discussing is not going to produce a result that can be relied on within fine limits. On any view the benefit of the code is going to be dependent on engineering judgments applied to the input material. The value of the code itself will depend on an evaluation of the validation process. However such a code if used with appropriate engineering skill can produce approximate results which can then be tested against general engineering judgments. In the present cases the input material which Dr Bakke spoke to such as the material configurations of the model had themselves been calculated by the use of computers in this case using a code called “ HIDDEN” and figures relating to the geometry of the Module were worked out using a code known as Computer Aided Design Scenario Programme (CASD). The defenders did not mount any attack on the validity or reputation of these codes and the enormity of the task involved in producing the programmes of every code used in a computer exercise is well illustrated by reference to these ancillary codes. The pursuers argued, I think with some justification, that HIDDEN and CASD are part of the general suite of FLACS programmes. Dr Bakke explained that he had cross-checked some of the geometry thrown up by his computer exercise by physical measurement relating to some of the features of the ModuleIt requires to be observed that the defenders if they desired could have checked such of the input material as appears in Dr Bakke’s Report by their own computer programmes or by measurement but no detailed criticisms were advanced of his actual results. The assumptions fed into the computer are set out in 66/1 of process. Thus the principle of referring to the codes without producing their programmes is attacked but it was not suggested that the codes had not been used in an appropriate way.The pursuers accept that only output material thought to be relevant to the problems in hand had been produced and that other material was available which had not been produced. I have no reason to suppose that the parts of the results which they decided to produce do other than represent a fair reflection of the output material relevant to Dr Bakke’s evidence. Certainly the defenders never suggested what additional material could have affected the implication of the results which were produced. I can only decide any point depending on the computer material on the basis of what was produced and of course had there been expert evidence to suggest that additional material not produced would or could have produced different conclusions then I should have had to consider that but that did not happen. If the defenders were correct in their submission that the evidence emanating from the FLACS exercise is not admissible then that would eliminate Dr Bakke’s estimate of pressure pulse and that in turn would eliminate any value in Dr Palmer’s calculations since he based these on the pressure pulse.Considering the position in relation to the BLOWDOWN programme it has to be observed that this had evolved from a thermo-dynamic programme called PREPROP which had been developed by Dr Saville. Dr Richardson explained in his evidence how he and Dr Saville had been approached by Shell to develop a validated blowdown model and the evolution of the programme began about 1985. The validation was achieved by Dr Saville and Dr Richardson carrying out experiments at Imperial College. Further large scale validation tests had been carried out both at Imperial College and at the Spade Adam site. Moreover the BLOWDOWN programme had been used to predict the blowdown of a number of offshore platforms. The programme is used primarily to analyse blowdown on oil platforms and petroleum and oil shore installations. The programme is reasonably well known and is used in a third or even a half of Chemical Engineering Departments in Britain. Papers on it have been published in the Transactions of the Institute of Chemical Engineers. In 1993 these were awarded the Moulton Medal as the best paper of the year in any institutional publication. The programme has been used by about 40 oil platforms. Shell use it on all their platforms and British Gas also use it. I can safely conclude that BLOWDOWN is a programme widely acknowledged as an appropriate tool in the oil and gas industry and that the programme has also been fully validated. The programme has not been published because no publisher would consider publishing 70,000 lines of computer code and in any event because Imperial College have an effective monopoly of the programme they use this advantage to their profit. Clients who use the programme are given the results and details of the material surrounding the exercise but they are never given details of the programme. Dr Saville confirmed that PREPROP and had been effectively analysed. Of course BLOWDOWN could not function without PREPROP.Dr Richardson explained how BLOWDOWN would be used. The programme was interactive so that a separate input file was not prepared but once the exercise began the computer asked questions and the information required was fed into it. There is no production of input material as such but the input is detailed in the front page of the output. In 1989 the machine ceased to function and most of the material on the hard disc was lost. The computer over a period produces a mountain of paper. The exercise we are concerned with was originally produced for the Cullen Inquiry at the instigation of the Crown. After the Inquiry it was thought by Dr Richardson’s associates that there was no need to retain the output material and in a clean-out of their office the material was destroyed. It has to be noted that Dr Richardson explained fully in his evidence what had been done in relation to the geometry of the situation he had looked at and the essence of the output was contained in two Reports which were produced and which had originally been prepared for the Cullen Inquiry.In relation to the loss of the BLOWD0WN output files the defenders sought to rely on Scottish and Universal Newspapers Limited v Gherson’s Trustees 1988 SLT 109. In that case the contents of certain accounts were material to the pursuers’ case and in particular the pursuers’ witness claimed that items in the accounts had been erroneously taken from the business’s prime financial records. Objection was taken to this evidence on the basis that it was not the best evidence. The pursuers argued that the records had been lost without their fault. The core of the opinion of the Inner House is given in the Opinion of Lord President Emslie where at page 113 he declares:“From these passages I take the true rule applicable to a case such as this to be that secondary evidence of the contents of the missing records will be admitted only if it is shown that they have been lost or destroyed without fault on the part of the pursuers who had effective control of the records when the Action began”.There can be no doubt as to the authority of what I have just quoted. However even ignoring the facts surrounding the loss of the computer outputs in this case there are distinctions between the present cases and Scottish and Universal Newpapers . In that case the evidence being led was central to the issues between the parties. The Lord Ordinary had held that the absence of the prime financial records would be likely to prejudice the defenders who would be unable to test the evidence of the supposed errors in the transcription from the records to the accounts. The witness who was objected to was not independent but was an accountant employed by the pursuers. The pursuers had had the critical documents in their control when the litigation began. In the present case the documents were not in the pursuers’ hands when the cases I am dealing with began. Indeed the pursuers at no time had any control over these documents since they had not originally been prepared under their instructions. The computer exercise was not an essential issue in the case but merely an expression of the use of a calculating tool that had been used by an independent expert as the basis of his opinion evidence. The input and output evidence would alone have no ex facie significance since they were only part of a large computer exercise and only had content if the person who carries out the exercise explained how the inputs had been chosen. The details of the exercise had been recorded in Reports by independent experts before the present cases were begun. Whether or not these differences might serve to bring these cases into a different perspective from Scottish and Universal Newspapers need not concern me for I think that the present cases are quite different in respect of the attribution of blame for the loss of evidential material. Mr MacAulay for the pursuers was prompt to accept that if a party had control of documents at the beginning of a case he cannot object to a prohibition against secondary evidence of their contents if carelessly they are lost. The documents we are concerned with here were destroyed in December 1989 and a small number of the cases in respect of which the present seven cases are to be regarded as test cases may have been raised in August 1989. However that date was even before Lord Cullen’s Inquiry was concluded. At the time when the first actions which affect these cases were raised it was not even clear that the defenders would resist the fact that the explosions began in Module C and I was told that this was the stance they took at the Cullen Inquiry. I was informed that the present defenders were represented collectively at the Inquiry and that they did not resist the hypothesis that the explosion was caused by a leak at PSV 504. I was referred to 12/352 of process. But no matter for the issues between the parties were only clarified as the pleadings in the present cases evolved. It was only at that stage that the defenders advanced the hypothesis that the explosion may have originated in Module B.In any event Dr Richardson gave qualitative evidence which covered the same questions as the results produced by BLOWDOWN and in that respect he was not relying on the code at all. He gave evidence that from hand calculations he could show that the re-pressurisation of the Condensate Injection Pump could be effected very quickly, that the fluid inside the condensate system would not be seriously restricted by the internals of the pump and that leaks of certain sizes could occur. He regarded BLOWDOWN as a confirmation that his hand calculations were approximately right. However it can be said that the evidence relating to particular leak apertures depended heavily on BLOWDOWN as did the detailed evidence of the effect of the pulsation dampeners. On the other hand Dr Richardson’s conclusion which was that the volume of the relevant condensate system was 400 litres is consistent with the evidence of Mr Wottge. Of course it can be said that even supposing that the pursuers could have recovered the relevant documents from Dr Richardson in 1989 , which in itself is open to doubt, then if that is so, the defenders for their part could also have recovered these documents if they thought that their absence might at some stage prejudice them. They had had the Reports which they knew came from these documents. They had the possibility of access to Dr Richardson as a witness outlining they way in which he had conducted his BLOWDOWN exercise. He had the Reports which had not earlier been impugned to confirm his recollection and they at no stage challenged his integrity.There was perhaps some issue as to the actual facts relating to the instruction of Dr Richardson and Dr Saville. However I can do no better than to refer to what the defenders themselves submitted to me had been the factual position. About mid-1990 the defenders’ agents took steps to retain both these experts. To their surprise some months later the witnesses advised the defenders that they had in fact been retained by the pursuers. Whatever had led to this confusion the said witnesses eventually decided that they would act for neither party although they were prepared to be brought to court to speak to the contents of their Reports. There is clearly some doubt relating to the instructions received and accepted by Dr Richardson and Dr Saville but what seems clear is that these witnesses had not accepted instructions from either party at the time the documents were destroyed.The pursuers of course urged me to admit the BLOWDOWN evidence but argued that in any event the qualitative evidence was sufficient to establish that a two jag operation could have generated sufficient gas by way of a leak to have caused the explosion.The defenders suggested that there are three categories of use for computers. They can be used to record data without the need of human intervention. The Spectra-Tek programme was described as being of this type. It was said that what this programme prints out may be regarded as real evidence. However Counsel had to concede that even this type of computer exercise depends on the reliability of the material programme. Unless it is properly programmed it will not store and regurgitate facts accurately. The best evidence that such a programme was reliable would be evidence that it has been used extensively and works. In any event the defenders accepted that in general the Spectra-Tek programme was acceptable. However it should not be assumed that the Spectra-Tek was an uncomplicated programme because it was recording a variety of data from different installations and correlating this. The defenders did however make an incidental point. They suggested that Dr Drysdale’s explanation for delay in the escape of condensate into Module B depended on the failure of ESV 208. It was submitted that if this valve had failed to close this would have been recorded on the Spectra-Tek system at Claymore and that the pursuers had failed to produce these records. I have dealt with the question of Dr Drysdale’s evidence but in any event I am not satisfied that the recording at Claymore would have coped with the situation where the valve failed to close only after the devastating effect of the accident which would have of course affected the telemetric system. It was certainly observed to have failed after a few seconds. In any event I am making no finding that valve ESV 208 failed to close.Another category of computer use was said to be where data is recorded by the computer and the data is put in manually. Thus Piper would regularly send information to the beach and this would be entered in the computer system. It was accepted that to prove this material would involve some hearsay evidence unless the persons who entered the material in the computer were led as witnesses. However the defenders did not explore just what evidence would be required in the situation under consideration. In general it seems to me that there must be many cases where it would not be practicable to lead the person who generated the data and the person who fed it into the computer so that there must be some practical limits as to what proof can be expected in this kind of computer evidence.It was submitted that the third type of computer situation is where the computer is used by experts to carry out calculations or simulations. It was claimed that in this kind of situation the general rules relating to expert evidence should be applied. Certainly in this kind of situation one can get a distorted result if one factor is in-putted wrongly. The kind of computer models used by experts of course generally requires more than normal discrimination and judgment in the selection of in-put material. Thus the expert will have to prove how the input material was arrived at and the justification for selecting what was put in. However I am not sure that the three categories of computer exercise referred to by the defenders’ Counsel can be distinguished quite as neatly as he attempts. Even in a simple office system distorted results will arise if the proper material is not fed into the computer. Thus it was argued that the first requirement in considering computer evidence given by an expert is to consider the input. That may be so but it cannot be exclusive to expert computer evidence. Of course it was said that the best evidence of in-put and out-put material is in the print-outs of such material. After the proof of input should come proof of the sufficiency of the programme used. Since the expert’s opinion must be tested by inquiring if it is intelligible, convincing, and tested it was contended that this necessarily involves the production of the computer programme. If the programme had been tested by experiments then the direct data relevant to these experiments should have been produced and proved. It was argued that there is no mechanical difficulty about producing a programme because it can be copied onto disk. However that in itself raises questions about copies. Also according to the strict standard of proof desiderated by the defenders does the defender require of prove that the computer copies accurately? Not all computers are totally reliable in this respect. Moreover who supplies the copy where the programme is owned by a third party. In relation to confidentiality of programmes it was said that it is for the pursuers to choose a programme that they are able to prove. It was said that commercial confidentiality is not a ground for resisting disclosure. I was referred to Santa Fe International Corporation v Napier 1988 SLT 430. It has to be noted that although the confidentiality in that case affected a third party the recovery claimed was in relation to a party. The point was that there had been what the Court described as a private promise of confidentiality and it was the effect of this that the Court was considering. It is well established law that a private contract of confidentiality must yield to the public interest. It should also be noted that recovery will not be ordered unless the material sought is shown to be essential. I was referred to Section 45 of the Copyright, Designs and Patents Act 1988 which provided that use in judicial proceedings is not a breach of copyright. Where material is protected it can only be used for the purposes of the litigation itself so it was said that the holder of the Copyright has protectionI was referred to another authority that I was told was the only reported case about computer evidence in Scotland and that was Northern Metco Estates Ltd v Perth and Kinross District Council 1993 SLT (Lands Tribunal) 28. The Claimant’s expert had used a computer programme to arrive at a method of value. However he did not produce the input data, the details of the computer process or the output data. The expert only gave a general description of the procedure and some limited information about the input and output data. The programme which he used had been designed to carry out an investment appraisal of business projects. It had been developed by Leisure Consultants (Surveyors) for the appraisal of leisure projects. The Tribunal held that there was not enough information before it to justify the acceptance of the results of the computer exercise. Of course in the case there was no indication that the programme had been devised by a team of highly specialist experts as in the present cases. There was no indication that it had been extensively validated nor that it was acknowledged by the scientific community.The defenders also referred to the matter of the output data. In the case of Dr Saville’s programme the output data had been destroyed. Dr Richardson gave express evidence that he had recorded the results of the computer exercise from the output data. It was also argued that in relation to the flow diagram (numbers 13/40 and 55 of process) which was prepared by Mr Martin Clark the output data had not been produced. The notes on the latter document were not the same as those in the former but I am prepared to accept that they were intended to apply to both. Note 5 states “All data should be considered approximate. Data was produced from a computer simulation of the operation based on the best estimates available” Much of the input data spoken to by Mr Clark was clearly hearsay but the defenders made no issue of that. Moreover Mr Clark claimed that he had run computer tests to check certain aspects of the exercise so there was validation. The original output was not produced but Counsel was prepared to accept that the said productions reflect the results of the computer simulation. The validation was post-disaster so by that time the actual flows were not available for physical analysis. The defenders’ complaint here was that the validation runs had not been produced. At the end of the day Counsel accepted that the point he was making may go to weight of evidence rather than to any intrinsic incompetence. Mr Clark seemed to be well qualified for his job and I do not find it difficult to suppose that probably his charts are sufficiently accurate for the purposes of these cases. Nevertheless the results do have to be treated with some care since small adjustments to their accuracy can result in materially different results. The defenders did not seek to recover any documentary evidence of the validation tests so the pursuers has no notice that their chart was likely to be questioned.I have no difficulty in deciding that the evidence relating to the various computer exercises which the defenders challenged is admissible. Nowadays there are numerous occasions when parties advance as evidence results that have been derived from a computer. Every computer is governed by the programmes fed into it. It would be extraordinary, if the extreme case is taken , that every time a party wanted to rely on a figure derived from a computer the whole computer programme had to be produced. Apart from other consideration this would be a wasteful exercise since in the average case there would be no quarrel about the adequacy of the computer programme. If not all computer programmes have to be produced to prove a case which relies on computer generated evidence then the question would arise as to where to draw the line. The defenders suggest that the line should be drawn where an expert has to rely on a computer simulation for his opinion. However I think such a rigid rule is not justified as the true test. A party really requires to decide the amount and quality of evidence required to establish the authenticity of any computer programme likely to be challenged. If for example the programme is obscure or untried or its lack of reliability is notorious then the party relying on the programme may require to produce the programme itself if the Court is to be persuaded that the programme can be relied upon. However I do not accept that the validity of a programme can only be established by the binary details of the programme itself. As Dr Bakke said the true test of the utility of a code is the extent of its validation and how it works in practice. Thus even in the situation where the binary details were produced a judge may hesitate to ascribe too much credit to a programme without knowing how it has been found to perform. Thus if parties fail to produce the programmes itself (and this may in many cases reflect all that it is possible) they will have to depend for acceptance of the code on matters such as the general acceptance of the programme within the scientific community, the extent to which the programme has been validated, and how it has operated in practice. At the end of the day I do not see the problem as exclusively technical and it would be for parties to decide what evidence they consider is required to establish the credentials of a particular programme and leave it to the Court to decide the sufficiency of that particular evidence.In the present case the programmes have been supported by expert witnesses of considerable credit and experience. Indeed they lent their own authority to the values of the codes since they had participated in their evolution. They gave evidence that the programmes in question had been extensively validated and that they had worked in practice. There was no suggestion that any of these programmes had been the subject of doubt or criticism by the appropriate professional communities. Nor can I accept that as a generality when it is claimed that a programme has been validated it is necessary to produce the validation data. This may be required in special circumstances but not as a rule. The quality of validation tests will often depend on the reputation and experience of the persons who conduct the tests. Experts often refer to scientific experiments to prove their view but it is not generally necessary to produce the experimental data. If the opposing party is not satisfied about validation he can of course ask the expert about it. In the present case the programmes being used are the product of major research and are being used in significant situations. If an expert of the quality of Dr Bakke gives evidence to the effect that the programmes have been subject to extensive validation tests I think I am entitled to accept that evidence in the absence of any contrary indication.If the defenders had come along and produced the results of their own exercise which differed from the pursuers’ results then the pursuers would have had to consider what steps were necessary to reinforce their claim that their own code should be accepted. If a situation arose where there was material which cast doubt on a code used so as to make it essential to consider the detail of the programme in depth then if a party found himself unable to produce the actual programme then this perhaps is a consideration which should have been taken into account before reliance was placed on it. It would be very unfortunate if in esoteric areas of science where there may not be too many acceptable programmes available a party was precluded from using a programme and had to settle for an inferior programme simply because the programmed details are not readily available. Of course the party has to make a choice. If the programme is available the party may be in a better position to meet a criticism of it. Conversely if the programme is not or cannot be produced the weight of the evidence at least in certain situations may be much less. The defenders say that without an actual programme available to them they may not be able to test it. A question may arise if a party is confronted with evidence derived from a complicated computer programme and there has been insufficient time to consider it. However whatever the solution to that problem it did not arise here. The defenders had timeous access to the use that Dr Bakke, Dr Richardson , and Dr Saville were going to make of computer programmes. If they wanted to suggest that these programmes were obscure or had no standing in the relevant fields of expertise then they could have called their own experts in support of such a point of view. If they thought that it would be useful to examine the programmes theoretically rather than to place weight on the practical experience of the programme then they could have attempted to recover the programmes by Court order. They could have instructed their own computer exercise and shown, were it the case, that different results emerged. It is noteworthy that at no stage did the defenders suggest that any other particular programme or programmes would be more reliable than the ones actually used.Likewise I do not think that the pursuers are precluded from using BLOWDOWN because the input and output print-outs were destroyed. At the time these records were destroyed the pursuers had no right to them or control over them. It is not suggested that they knew of their pending destruction. They were not in a professional relationship with the owners of the records at the time they were disposed off. We are here dealing with an extremely complex situation as the proof itself has demonstrated and I do not think it reasonable to suggest that at the relevant time the pursuers should have anticipated the importance of these records to their case. The records did not bear upon any issue between the parties at the time. In fact the result of the Cullen Inquiry was not even known. I think this case is very different to Scottish and Universal Newspapers Limited where the authenticity of the accounts was the central issue in the litigation, where the relevant primary documents had been under the party’s own control, and where the documents in question were their own business records which they had allowed to be lost without acceptable explanation.

8.2.2Examination of WitnessesA matter that arose frequently in these cases was the effect of failing to examine or cross-examine a witness on a factual point. The defenders were prompt to argue that if a witness was not challenged or cross-examined they were entitled to assume that the relevant matter was not at issue. Thus they say that they were entitled to refrain from cross-examining a witness if his evidence did not appear to be challenged and equally from leading such other evidence as they may otherwise have led. However at various stages they made points that had not been put to the pursuers’ witnesses and when this happened they were not so keen on the application of strict rules. The fact is that in a vast Proof such as this turned out to be it was not always possible for parties to predict precisely points that might emerge at a later stage of the case and generally I was prepared to show some indulgence, allowing disputed evidence to be received under qualification and sorting out questions of prejudice at the end of the Proof. However during the Proof I indicated at certain points that if a party felt a circumstance had developed which might justify recalling a witness I would be ready at least to consider any motion for such a recall. This did not in fact generally happen and I can understand why this might have been so. Some of the experts were obviously busy people residing at a distance from the Court and recalling them may have imposed practical difficulties apart from the question of expense. Some of the eye-witnesses obviously found that it was an ordeal to attend at court and re-live the difficult events of the accident and it may not have been fair to them to recall them to Court. There was also a patent reluctance to further prolong what was an exorbitantly long case. In any event I doubt if further evidence from recalled witnesses would have affected the outcome of the case.There was some resort to the leading of additional evidence after proof was closed. Thus the defenders raised in relation to Texas jurisdiction the matter of equal treaty rights. This complicated and difficult matter had not been put by the defenders to the pursuers’ experts and long after these experts had returned to from whence they came - generally America - the defenders not only raised the issue but also sought leave to lodge further productions. I allowed this subject to the pursuers’ right to lead additional evidence and the pursuers did this by leading Professor Baade.The law on this aspect of the case is succinctly stated by Sheriff Macphail in his book on Sheriff Court Practice ( at page 567) and I have no difficulty in accepting his expression of the relevant rules. He states “ it has been authoritatively pointed out that if it is intended later to contradict a witness upon a specific and important issue to which that witness has deponed , or to prove some critical fact to which the witness ought to have a chance of tendering an explanation or denial, the point ought normally to be put to the witness in cross-examination. If such cross-examination is omitted , the witness may have to be recalled with the leave of the court, possibly on conditions as to expenses, and in some cases the omission may cause fatal damage to the case“.....Whether failure to cross-examine on any matter implies that the cross-examiner accepts the witness’s evidence as credible and reliable on that point appears to depend on the tenor of the cross-examination on other matters and on considerations of fairness. Failure to cross-examine a witness on a material point has been said to preclude the cross-examiner from leading evidence to contradict the witness, but that drastic rule does not appear to be followed in modern practice, no doubt because the court is able to prevent prejudice to the other party by such means as recalling the witness for cross-examination and awarding expenses or allowing proof in replication , or admitting the evidence subject to comment”. That exposition of the law seems to me to be more flexible than the position that the defenders were sometimes asking me to take and in that respect I agree with it entirely.I think this cases must be viewed against a background where men who were in fear for their lives were being asked to recollect events which they had only a limited and very short opportunity to observe. Differences in detail were inevitable and I do not think it was incumbent on a party in relation to all such evidence to suggest to a witness that he was unreliable if it was obvious that the recollection of the witness was candid, represented the best he could do, and was unlikely to be altered. In some such cases there was evidence of a different quality from which support could be derived for one version of detail rather than another. Of course the situation may be such that a comment can be made adverse to the weight to be given to the evidence.Where as in these cases there were occasions where important technical points were not put to witnesses well able to express an important opinion about them then of course the Court may be reluctant to accept all that the witness has said without the possibility of contradiction. The pursuers, for example, emphasised that many of the points made by Professor Reid were not put to Dr Palmer who was effectively his counterpart. These so far as they may be material have already been commented upon. Of course the fact that a matter was not put to a particular witness is not necessarily a matter for criticism because it was obvious that as the years enveloped the case new points evolved.In relation to the points I have been discussing I was referred by the pursuers to McKenzie v McKenzie 1943 SC 109, Stewart v Glasgow Corporation 1958 SC 28 and Dawson v Dawson 1956 SLT (Notes) 58. These cases it was said support Sheriff Macphail and I do not quarrel with that.

8. 2.3.Conflict on Foreign LawOne short point was taken by the defenders in relation to the ascertainment of foreign law. They contended that if there was conflicting expert evidence about foreign law it is open to the Court to assess that evidence by itself examining the cases said to be applicable. In this connection I was referred to Anton on Private International Law ( 2nd Edit) pages 774 to 777 and the case of Kolbin v Kinnear 1930 SC 737. I did not understand the defenders’ submission to be challenged and I think it is justified.

CHAPTER NINEINDEMNITIES

9.1GeneralThe key question is whether on the basis of the facts surrounding the accident which I have held established the various pursuers are entitled to recover under the indemnities granted by contractors in their favour. Senior counsel for the pursuers argued that OPCAL and the fellow members of the operating consortium were liable to pay compensation to the victims of the accident or their families. The primary contention of the pursuers is that the accident was caused by a leakage of condensate from the valve PSV 504 and that this was directly due to the negligence of the fitters working on the valve. This being so (it was said) the defenders had a clear liability to indemnify the pursuers under the contractual indemnities. However even if the pursuers were unable to prove that the accident was attributable to the said valve the defenders were still contractually obliged to indemnify the defenders. The contention was that the accident was on any view triggered off by an initial explosion. That being so it was possible to infer that the pursuers had been in breach of the off-shore regulations and thus liable to make reparation in respect of those killed or injured as a result. Looking to the regulatory regime in 1988 the pursuers and the members of the consortium were faced with claims which could reasonably be regarded as at least having a material prospect of success. Thus it was claimed that the defenders could only escape liability if they could bring the situation within the ambit of the exception provisions of the indemnities and establish that the accident was caused by the sole negligence or wilful misconduct of the party to be indemnified It was contended that the defenders had failed to prove that either branch of the exception provisions were applicable to the facts of the accident.

9.2Indemnity termsThe contracts which had been entered into between the platform operators and the seven defenders involved in the leading cases were all agreed by Joint Minute. These contracts contained a number of cross-indemnities and in particular they each contained indemnities in favour of the pursuers. The indemnity provisions in each of the contracts are broadly similar but there are differences in some of the contracts which are significant. I was asked by senior counsel for the pursuers to treat the contract entered into with the contractors London Bridge Engineering Limited as containing indemnity provisions which are generally representative of those relied upon by the pursuers in the various actions. The material contract is 12/283 of process. The indemnity provisions in the contract are to be found in article 17 of Exhibit A. What is described as “CONTRACTORS INDEMNITIES” at Article 17.1 sets out that :-“The Contractor shall indemnify, hold harmless and defend the Company and its parent, subsidiary and affiliate corporations and Participants, and their respective officers, employees, agents and representatives from and against any claim, demand, cause of action, expense or liability (including but not limited to the costs of litigation) arising (whether before or after completion of the work hereunder) by reason of:-” Thereafter the contract defines a series of situations that would bring the indemnity into operation. Thus provisions are set out which cover Intellectual Property Infringement, Third Party Injury and Property Damage, and Pollution. The paragraph upon which the pursuers found is however paragraph (c) which is entitled “ Injury to Employees and Damage to Property of Contractor”. That provides as follows;“Injury to or death of persons employed by or damage to or loss or destruction of property of the Contractor or its parent, subsidiary or affiliate corporations, or the Contractor’s agents, sub-contractors or suppliers, irrespective of any contributory negligence, whether active or passive, of the party to be indemnified, unless such injury, death, damage, loss or destruction was caused by the sole negligence or wilful misconduct of the party which would otherwise be indemnified” In this contract the “Company “ were OPCAL and the “ Participants” were the other members of the consortium. Article 19 defines “PARTICIPANTS” as follows;-“The Contractor recognises that the Company is the operator for a consortium (the members of which area collectively described in this Contract as “Participants”). The interest of the Participants in the consortium is limited to a certain percentage fixed by agreement between themselves.”The Contract then goes on to provide:“Notwithstanding the number of names, styles or titles of the individual members of the consortium or their limited interests therein, the Contractor hereby waives any right it may have to require that claims hereunder for indemnities or damages should be pursued by the individual Participants and agrees that all claims for indemnities or damages shall be pursued by the Company as the Operator.”Article 17.3 defines “wilful misconduct” as follows:-“For the purpose of this Article “wilful misconduct” shall mean an intentional and conscious disregard for:-a.good and prudent practices normally associated with the type of operations envisaged herein, orb.of any of the terms of this contract, not justified by any special circumstances, but shall not include any error of judgement or mistake made either in acting or failing to act by any director, officer, employee, agent, contractor or subcontractor of the party to be indemnified provided such party acted in good faith.”It should be noted that the indemnity granted in Article 17.1d for “ Third Party Injury and Property Damage” has an overall limit of £500,000 Sterling in respect of performance of the Contract at an onshore location and £1 million in respect of performance at offshore locations.In Article 4 of the contract “SCOPE OF WORK” is defined in the following terms:-“Subject to all the terms contained within this Contract, Company requires and Contractor agrees to provide the following (“the Work”):-Contractor shall provide safety operators to work, as instructed by the Company on Piper ‘A’ and Claymore ‘A’ Platforms or such work location(s)as may be advised by the Company.The Work to be performed shall be carried out in accordance with the requirements of Exhibit ‘C’- Scope of Work and to complete satisfaction of Company”Exhibit ‘C’ contained detailed provisions outlining the work to be performed by the safety officers supplied by the Contractor .In Article 1.2 of Exhibit A work is defined in the following terms “ ‘work’ shall mean all the obligations of the Contractor to be performed by the Contract Staff hereunder as more particularly described in Exhibit C hereto”Unlike the case with certain of the other contracts there is no provision for the Company undertaking responsibility for the transit of the Contractor’s property.Article 17.2 sets out cross-indemnities granted by the Company in favour of the Contractor. After setting out the indemnity granted by the Company to the Contractor in terms effectively the same as the indemnity in favour of the Company the contingencies which the indemnity covers in relation to injury to Employees and Damage to Property is set out as follows:-“Injury to or death of persons employed by or damage to or loss or destruction of property of the Company, Participants or their respective parent, subsidiary or affiliate corporations, irrespective of any contributory negligence, whether active or passive, of the party to be indemnified, unless caused by the sole negligence or wilful misconduct (in case of injury or death) or wilful misconduct (in the case of property damage, loss or destruction) of the party which would otherwise be indemnified .”Thus in the case of the Company’s indemnity in respect of damage to the Contractor’s property the Company has apparently not required a specific exclusion in the case of sole negligence Article 5 of the Contract provides that it be construed and interpreted exclusively according to Scots Law.There are Insurance provisions and these are substantially the same as shall be discussed in relation to other contracts. The Public Liability insurance has to provide cover for £500, 000 for each incident arising out of the performance of the work.It should perhaps be noted at this point that not all the contracts were due to be performed exclusively on oil platforms in the North Sea. However the other contracts contained provisions which were effectively very similar to the London Bridge Engineering contract except for two Contracts which I shall be discussing later and even in similar Contracts there were certain differencesThe contract involving the contractors Wood Group Engineering Contractors Limited is to be found in number 16/11 of process. In this contract the contractors were to provide a variety of platform support duties as set out in the contract. In fact the deceased employee Michael O’Shea was provided as an electrician. The range of services to be provided by the employees of Wood Group means that there were a wide range of Regulations or Codes covering the operations they were specifically to perform which included electrical work, scaffolding work, rigging and helicopter operations. Indeed the contract contains extensive provisions as to how the performance of the contractual operations are to be regulated on both sides. In the case of the Contractor’s indemnities under this contract the indemnities are preceded by a provision in the terms following;-“Contractor shall indemnify, hold harmless and defend the Company and its parent, subsidiary and affiliate corporations and Participants, and their respective officers, employees, agents and representatives from and against and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, costs (including but not limited to the cost of litigation ) and expenses of whatsoever kind or nature whether arising before or after completion of the Work and in any manner directly or indirectly caused, contributed to in whole or in part, by reason of omission or negligence whether active or passive of Contractor, or anyone acting under Contractor’s direction, control or on Contractor’s behalf in connection with or incidental to the Work. Provided always that the Contractor’s total liability arising pursuant to this indemnity shall not exceed £1,000,000 per occurrence” There then follows a second paragraph to the Preamble which is in terms almost equivalent to what is set out in relation to the Kelvin Catering Contract but contains what may be a significant difference in that it is preceded by the words “In addition”. The implications of this I shall discuss later.The particularisation of the indemnities in favour of the Company which then follow are in essential respects the same as those in the contract last considered . The Contract is also equivalent to the Kelvin Catering Contract (which will shortly be discussed) in different respects.The Insurance provisions in the Contract which relate to Public Liability provide for compulsory cover of £ 5 million for each incident arising out of the performance of the work.The contract between OPCAL and Northern Industrial & Marine Services Company Ltd. is contained in number 10/17 of process. The indemnity provisions are for practical purposes the same as those in the London Bridge Engineering case except in relation to Article 13. 3.1 where the definition of wilful misconduct contains a punctuation difference which could be significant. The definition is:-“.....‘wilful misconduct’ shall mean an intentional and conscious disregard for:-(a) good and prudent practices normally associated with the type of operations envisaged herein, or (b) of any of the terms of this Contract : not justified by any special circumstances, but shall not include any error of judgement or mistake made either in acting or failing to act by any director, officer, employee, agent, contractor or subcontractor of the party to be indemnified provided such party acts in good faith”The presence of the colon and following gap raises a possible question as to whether the exception for special circumstances applies both to sub-paragraphs (a) and (b) rather than to (b) alone as may be the case with other contracts.The indemnity granted by the Contractor in respect of “ Third Party Injury and Property Damage” contains an overall limit of £ 500,000 per occurrence.In addition unlike the contracts earlier discussed, this contract in Article 13.3.2 contains a specific definition of “sole negligence” namely :-“sole negligence” shall mean the exclusive negligence of the party to be indemnified and shall not apply where any other party bears a proportion of the negligence”. The defenders contended that it does not matter if the reference to any other party signified any other party to the contract or any other party at all. Their submission was that the critical factor was that it was necessary that the Contractor had contributed to the accident by negligence or breach of statutory duty. If the Contractor was only liable because of some statutory duty not involving negligence then a contribution to the accident by the Company which did involve the latter’s negligence would be sole negligence. However it is somewhat strange to use language in this way if another third party has been negligent and has also contributed to the occurrence. He is apparently not to be accorded what might seem to be his due status as “any other party”. It is only when the Contractor himself is partly responsible in law for the accident (and by way of negligence) that OPCAL will be indemnified and thus excused. In my view it would be difficult to construe “any other party” as meaning “any other party to the contract” since if that were intended it would have been more natural to say “the other party” or “ any other party to the contract “or even“ any other party for whom the other party has responsibility hereunder” As it is the words used are wholly unqualified and to read into them qualification is a rather strained exerciseThe contract under consideration was for the provision of a winch and operator in connection with the installation of the Chanter Caisson Riser.Number 10/21 of process is the contract with the contractor Eastman Christensen Ltd. The contract was fairly extensive (£3 million) and was for the supply of directional drilling services.In Article 6 of Exhibit ‘B’ OPCAL assumed the risk of loss of, or damage to, materials provided by the Contractor “ except when such loss or damage is due to the negligence or wilful misconduct of Contractor or its servants, agents or subcontractors in which case Contractor shall repair the damage or replace the materials or equipment.” In that case the exception is based on “negligence” rather than “sole negligence”. The core indemnity provisions are in terms equivalent to those in the Kelvin Catering Contract (still to be discussed). The general preamble here, ( Article 15 of Exhibit B) has a limit imposed of £1 million. This means that when we get to the specific provision about Third Party Injury and Property Damage then unlike the position in the next Contract considered there is no limit imposed in that provision. The limitation provision comes at the end of the first paragraph of the Preamble and refers to “this indemnity”. This might be a strange place to put it if it is to be regarded as applying also to the second paragraph of the preamble. On the other hand if each paragraph is to be regarded as a totally separate indemnity then there would be no limitation applying to claims arising under the second paragraph. The answer may be that the second paragraph is to be regarded not as a totally separate indemnity but as an extension of the first indemnity. A part of the indemnity that is an alternative to the first paragraph and therefore to be regarded as without prejudice to its terms which create an obligation in its own right. This perhaps becomes better illustrated when we look at the second paragraph of the preamble in the Wood Group Contract because it begins with the words “In addition but without prejudice to the foregoing generality”. The words “ in addition” do not appear in the other contracts such as the Eastman Christensen and the Kelvin Catering Contract but they are important because they show that the second paragraph of the preamble even is expressed in the last-mentioned. The contract is in terms which fit comfortably with it being not a particularisation but an addition. The defenders say that the liability limitation which appears at the end of the first paragraph of the preamble in the Wood Group Contract would not apply to the second paragraph at all if it were a separate indemnity. Although the second paragraph adds additional indemnity rights as I have already said I do not think it necessarily need to be regarded as a separate indemnity not covered by the liability limitation. What we would have is a composite indemnity. Indeed the individual specific indemnities are in one sense separate indemnities stipulating separate qualifications to each of the particular contingencies covered. In the Wood Group Contract the limit for liability for third party injury is £5 million which of course is different to the limit imposed by the first paragraph of the preamble. It could therefore be argued that the limit in the first paragraph does not apply to the individual indemnities which are specified after the second paragraph but I need not decide that point . Certainly it is difficult to see how a specified limit of £5 million can be without prejudice to a limit of £1 million per occurrence unless possibly the larger amount is intended to cover a situation where there have been at least five “ occurrences”. In addition the third party indemnity covers matters not included in the first paragraph of the preamble such as negligence by a supplier or the supplier’s employees. It may be that the £1 million per occurrence limit is only intended to effect the losses occasioned by the Contractor’s own negligence and not that by its suppliers but if so the limit provisions are very clumsily expressed. The Contract contains provision for General Public Liability Insurance with a ceiling on liability of £5 million. This is not confined to losses arising from a supplier. Thus there is a general liability with a total limit of £1 million per occurrence, third party liability provisions with a total ceiling of £5 million and Public Liability insurance with a total limit of the same amount. However the question of the application of the limitation does not arise so that I do not need to form a concluded view about this. In respect of the insurance provisions I shall discuss these further in relation to other contracts.Number 12/16 is the contract involving the contractor Kelvin International Services Ltd (formerly Kelvin Catering Ltd). This contract was also a large contract (£5, 750,000) and covered the provision of catering, housekeeping and laundry services on the Piper Alpha and Claymore platforms. Whereas the pursuers treated the London Bridge Engineering Contract as the key Contract the defenders took the Kelvin Contract for this purpose and they analysed it in detail. They pointed out that in the basic provisions it was stated that OPCAL were acting as agents for the Participants as defined in the Contract. It was also provided that the company (OPCAL) was the operator for a consortium of companies of UK petroleum licences in the North Sea. I was asked to note that none of the Participants were identified. The Preamble continues “Whereas the company, as part of its interest in oil and gas exploration, development and production is desirous of having the services defined herein carried out by the contractor”. The defenders insisted that the Contractor was carrying out what were essentially services for the operation of the platform. I think this is quite right. The implication that the defenders sought to draw is that the contract was for the mutual benefit of the parties and the Operators were not doing the Contractor any kind of favour in permitting the Contractor’s men to work on the platform. I was asked to note that “the Work” is to be contrasted with “the type of operations envisaged herein” when the latter phrase is used in relation to “wilful misconduct”. Indeed Article 3 is entitled “Scope of Work” and it defines the “work” to be carried out by the contractor. The execution clause shows that the contract was executed by OPCAL and Kelvin Catering Ltd and these are defined as “ the parties hereto”. Thus it would seem that only those who signed were intended to be parties to the contract. In Exhibit A what are headed “Special Terms and Conditions” are set out. Article 7.1 of the Exhibit makes clear that although the contractor is an independent contractor he is working at all times subject to the instructions, guidance and standards of the Company. For practical reasons and to comply with their strict statutory responsibilities it is obvious why the Company requires such a provision. Article 15 provides that the company will transport all the Contractor’s materials and equipment between the shore base and the offshore work site. The Contractors personnel are to be similarly transported by the Company. The defenders asked me to note these provisions and also provisions in Article 15.3 about the provision by the Company of accommodation and other facilities. I think the point that was being made by the defenders was that the Company had obligations under the Contract not directly related to the execution of the work. Thus when I come to consider the meaning of “wilful misconduct” as defined in the Contract it was said that it would be odd if the Company’s obligation to refrain from such conduct only extended to the actual work being carried out in terms of the workscope. Exhibit B contained the General Terms and Conditions of the Contract (as distinct from the Special Conditions). It is provided that the Exhibit embodies the entire agreement between the Company and the Contractor and also that the parties shall not be bound by any statement, representation, promise, inducement or understanding of any kind or nature not set forth. Once again therefore there is very clear confirmation that the only “parties” to the Contract are the Company and the Contractor. Article 3 provides that “the Work shall be performed on any of the Company’s offshore installations etc.” If “the type of operations envisaged herein” only relates to “work” then the Company would have no express contractual obligation to avoid “wilful misconduct” in let us say the provision of safe accommodation or the supply of helicopter transport. Indeed in Article 6 it is provided that upon delivery to the Company’s shore base they shall assume the risk for damage to or loss of materials and equipment furnished by the Contractor except where the loss is due to the “negligence or wilful misconduct” of the Contractor or its servants . The reference to an exclusion of recovery in the event of “negligence” is interesting because it demonstrates that where a party causing loss by his own negligence is not to recover there is a specific provision made for this and it also shows that a distinction is made in the contract between “negligence” and “sole negligence” The defenders pointed out that here was a provision where the question of “wilful misconduct” arose in a situation which had nothing to do with “Scope of Work” as defined in the Contract. Article 9 makes provision that all work performed by the Contractor is to be subject to the inspection and approval of the Company, Article 13.1 provides in effect that the Contractor will ensure that when work is to be performed on the Company’s premises or offshore locations the employees of the Contractor and others persons acting for the Contractor will conform with the Company’s safety regulations and procedures ; and also in 13.2 that employees and sub-contractors will be properly qualified to do the work. It has to be said that the standards imposed are said to apply to “the work” and not to “the operations”. Article 13.3 imposes an obligation to provide certain training vouchers and is stated to be “Without Prejudice to the generality of sub-Article 13.2”. The defenders argues that this shows how “without prejudice to the foregoing generality” is a formula often used to indicate that a particularised instance is qualified or governed by the general requirements of the particular words which are referred back to.The relevant indemnities in the Kelvin Catering Contract are in Article 15 and Article 15.1 contains a general preamble to the Contractor’s indemnity. This is in its terms essentially the same as the preamble in the Eastman Christensen contract although there is not the same limitation of liability. The defenders contended that as in the Eastman Christensen Contract the first paragraph of the preamble to the Contractor’s indemnity made it clear that the claims covered were those in whole or part by reason of omission or negligence whether active or passive of the Contractor. Thus at least in the first part of the preamble it was stipulated that the negligence of the Contractor was a prerequisite of indemnity rights. Of course up to this point the general preamble is not dealing specifically with claims arising from the death or injury of the Contractor’s employees.After the first paragraph of the preamble in the Kelvin Catering Contract (as in the Eastman Christensen Contract) we find a further paragraph equivalent to the indemnities to be found in other Contracts. Since the defenders asked me to consider its specific terms I shall repeat it and it is in the following terms:“Without prejudice to the foregoing generality, the contractor shall indemnify, hold harmless and defend the Company and its parent, subsidiary and affiliate corporations and Participants, and their respective officers, employees, agents and representatives from and against any claim demand, cause of action, loss, expense, or liability (including but not limited to the costs of litigation ) arising ( whether before or after completion of the Work hereunder) by reason of:-”.Then follow five particularisations of the circumstances when there will be indemnity . The defenders contend that the general requirement of the initial paragraph of the preamble that there should be negligence by the Contractor is an overriding requirement that applies to all five of those particularisations. Insofar as some of the particular indemnities add to the right of the indemnified party by providing that contributory negligence by the Company will not affect the indemnity contributory in such cases must mean “contributing to negligence of the Contractor in causing the accident”. Certainly all five specified indemnities are sub-heads of Article 15.1.The pursuers contend contrary to this that the first part of the preamble to Article 15 contains an indemnity separate to what follows in the second paragraph. I find the defenders’ arguments difficult to accept. Thus the first contingency calling the indemnity into operation as outlined in 15.1 is non-compliance with Laws. If the whole indemnity is governed by the first paragraph of the preamble then there could I suppose be a breach of law brought about by an omission. On the other hand a loss occasioned by a deliberate breach of the Law would not be covered by the terms of the indemnity. The defenders sought to argue that a deliberate breach of law would be an omission in the sense of an omission to carry out the duty to observe the law. However logical that may be the common understanding of an omission when associated with negligence is failure to take an active step required in pursuance of a duty to take care. The suggestion that it is necessary that the breach of the law is covered by the indemnity if it is caused by an “omission” involves a blatant tautology because a breach of law by definition must be caused by an omission to observe the law. The same comment would apply to the indemnities in sub-head b (intellectual property infringement). Such a result would be rather absurd.Sub-head c of Article 15.1 relates to “Injury to Employees and Damage to Property of the Contractor.” The provision is equivalent to that found in other Contracts and is in the following terms:- “Without prejudice to Article 6 hereof, injury to or death of persons employed by or damage to or loss or destruction of property of the Contractor or its parent, subsidiary, or affiliate corporations, or the Contractor’s agents, sub-contractors or suppliers, irrespective of any contributory negligence, whether active or passive of the party to be indemnified, unless such injury, death, damage, loss or destruction was caused by the sole negligence or wilful misconduct of the party which would otherwise be indemnified.”. If, as is argued, the reference to “irrespective of any contributory negligence” is to be taken as referring only to situations where there is contributory negligence by the Company in relation to the Contractor’s negligence then again we may have a tautology because the first paragraph of the preamble sets out quite specifically that the indemnity is to cover any negligence “caused, occasioned or contributed to in whole or in part”. The defenders would no doubt argue that it would be necessary to provide that the Contractor’s position is not to be affected if the other contributor happens to be the indemnified party.Article 15.1 sub-head d deals with Third Party Injury and Property Damage. Thus the Company are to be indemnified in respect of claims against them ensuing from such loss. Article 15.1 sub-head e indemnifies the Company against claims arising out of pollution damage.In Article 15 .2 of the Kelvin Catering Contract the Company grants indemnities in favour of the Contractor. They provide that “The Company shall indemnify, hold harmless and defend the Contractor and its parent, subsidiary and affiliate Corporations, and their retrospective officers, employees, agents and representatives from and against any claim, demand, cause of action, loss, expense or liability (including but not limited to the cost of litigation) arising (whether before or after completion of the Work hereunder) in relation to the Contract by reason of”. Thus there is not the double paragraphed preamble which there is in the indemnity in favour of the Company. The Company are only giving the Contractor an indemnity arising “in relation to the Contract”. However if the defenders’ submissions are well founded for some reason the Company are giving an indemnity in wider terms than the Contractor granted because it is not a condition precedent that the Company should have caused or contributed to the loss by omission or negligence. The general indemnity provision I have just quoted does cover “a,“ injury or death of persons employed by or damage to and loss or destruction of property of the Company, Participants or their respective parent, subsidiary or affiliate corporations, irrespective of any contributory negligence, whether active or passive, of the party to be indemnified, unless caused by the sole negligence or wilful misconduct (in the case of injury or death) or wilful misconduct (in the case of property damage, loss or destruction) of the party which would otherwise be indemnified. The next indemnity (which is for Pollution Loss caused by any facility of the Company) also has an exclusion for wilful misconduct but no specific exclusion for sole negligence of the Contractor The defenders argued that looking at the indemnities favouring each of the contracting parties they certainly do not have the structure of “knock for knock” arrangements as found say in motor insurance. The defenders suggested that in motor insurance the purpose of “knock for knock” agreements is that they save complex investigations into the cause of accidents. Since each underwriter will win or lose according to the laws of chance the advantages and risks will tend to balance out. If “knock for knock” is aimed solely at the avoidance of detailed investigation then the reciprocal indemnities certainly do not achieve that. The present cases have illustrated that cogently. On the other hand the indemnities if not perfectly balanced may achieve respective benefits that the parties are prepared at least within certain limits to tolerate. It is difficult to know to what extent the cross-indemnities achieve a rough balance. OPCAL will have more personnel on the platform than Kelvin Caterers. On the other hand if only OPCAL’s employees suffering loss while doing work related to the Kelvin Catering Contract can implicate the indemnity there may be a degree of balancing out through this. Moreover it may simplify the parties’ economic arrangements if they can know in advance where any loss in connection with their employees is likely to fall. There was quite important evidence from Mr Crain in that connection. Mr Crain was the Senior Counsel with the United Texas Petroleum Group and obviously had wide experience of the petroleum industry. He gave unchallenged evidence that it was common practice throughout the industry for parties involved in contracts with offshore implications each to accept the whole risk for loss connected with their own employees. He stated that the economics of the industry is designed to take account of that practice and that in particular contractors’ rates were adjusted to allow for it. The defenders contended that such evidence is irrelevant. However it is well established that the circumstance surrounding the completion of a contract may affect construction. In many of the cases to which I was referred there was judicial comment that any suggestion that a party would agree to offer an indemnity covering loss caused by the negligence of the indemnified party was difficult to believe. In these present cases there is evidence that, to put it no higher, confirms that at least in some contracts with contractors it is practice to have what in effect are cross-indemnities designed to achieve a situation where parties are responsible for their own employees. It must of course be the case that individual interests may choose not to follow such a practice. The only effect of Mr Crain’s evidence is that were I in a situation where the Contracts seemed to point towards parties bearing responsibility for their employees in all or most circumstances it would be difficult to reject this approach purely on the view that it produced a result which was intrinsically absurd.The Kelvin Catering Contract contains a definition of “ wilful misconduct” in article 15.3 which is in the same terms as the definition which I have already quoted in the London Bridge and Engineering case. There is no definition of “sole negligence” in this and five other of the Contracts.In relation to Article 16 of the Kelvin Catering Contract we find that there are certain contractual obligations which relate to insurance. The defenders contended that the mandatory insurance provisions make sense if their construction of the indemnities is accepted. On the other hand if Kelvin were required to indemnify in respect of say an act of negligence by an employee of Score then the compulsory insurance arrangements would not cover them.Article 15 of the Kelvin Contract provides that “The Contractor shall, at its sole cost and expense, procure and maintain (and shall require its sub-contractors to maintain in effect) during the contract period, insurance coverage with insurers under forms and policies satisfactory to the Company as specified in article 16. 2 hereof”. At article 16.2 we can find the particular insurance that is required. The first is “Employer’s liability and workers compensation insurance to comply with the statutory requirements”. That provision highlights that there are indeed statutory requirements and of course the insurance described would cover the Contractor’s liability to its own workmen. The second insurance that is required is General public liability insurance in respect of the persons and property of third parties to the extent of at least £ 2 million for each incident arising out of the performance of work”. It is suggested by the defenders that this provision would cover the liability to third parties and their property which is the risk which the indemnity provides for. There is a further provision in 16.1 that “Such policies other than Workers Compensation and Employers Liability must include the company and the participants as additional insureds and shall provide that the policies will indemnify the additional insureds against claims brought by any other of the insureds”. The last proviso seems to be to ensure that an assured is covered in respect of a claim brought against him by another assured in respect of a contribution to the payment made by the latter to a third party in settlement of a claim Then there is again a further provision “Such policies other than Workers Compensation and Employers Liability must also provide that this insurance shall be primary and not contributing with any other insurance available to the Company or its Participants”. The Contract also provided for the furnishing by the Contractor to the Company of certificates vouching that the stipulated insurance has been effected. There is also to be a waiver of subrogation in favour of the Company. The defenders contended that the insurance provisions in the other Contracts (which apart from the case of the British Telecom Contract) are similar in effect should be regarded as complementary to the indemnities and that they support the defenders’ construction. The Contract further provides that certificates, notices and other communications regarding insurance and insurance claims shall be sent to the Company and be marked “For the attention of the Insurance Co-ordinator”. This was said to show yet again that the Compulsory insurance was for the benefit of OPCAL. The defenders argued that the Public Liability policy would give OPCAL adequate protection in respect of the third party claims it covers. I do not believe that it is intended to be a substitute for the indemnity. The insurance stipulations in the Contract would at first sight cover claims by third parties against the Contractor. Normally these would be based on negligence or breach of statutory duty on the part of the Contractor. This would mean that if OPCAL were involved at all it would be as contributors to the Contractor’s negligence or breach of duty. There would be contributory negligence and this would not affect OPCAL’s claim under the indemnity. I had rather thought that this is just the situation where the defenders would accept that the indemnities would bite. Of course it could be said that a situation could arise where the claim against the Contractor was based only on statutory liability without negligence and that therefore on the defenders’ argument the Contractor would not be obliged to indemnify OPCAL if they were co-defenders not only on the basis of sole negligence (which would be excluded anyway) but alternatively on the basis of non- negligent statutory liability. This scenario is I suppose possible but with the Contractors not being the Operators of the Platform may seem rather remote. It would perhaps be odd if the insurance provisions were just designed to give OPCAL protection against that risk. The final Article in the Kelvin Catering Contract that the defenders referred to was Article 25. It was headed “Company and Contractor Representatives”. Then it proceeded “Prior to commencement of the Work, Company shall designate in writing a staff management representative who shall have authority to act for and on behalf of the Company and Contractor shall designate in writing a senior representative who shall have authority to act for and on behalf of Contractor in all matters connected the implementation of this contract. Any change in either party’s representative shall be noted..........”. The contract between OPCAL and British Telecommunications Plc. was for the refurbishment of Offshore Microwave Antennae and is number 16/16 of process. In relation to indemnities its general terms are the same as in other contracts although it is worded rather differently and this may be significant. OPCAL is referred to therein not as “the Company” but as “the Customer”. Paragraph 8 of the contract places certain limitations on B.T.’S liability including a total limitation in amount of £1 million. In Clause 10 which is the general indemnity provision regulating the indemnities for offshore work in Sub-clause 1 we find that the Clause is to apply at all times during the transportation of the equipment, BT personnel and BT materials between the Customer’s Onshore premises and Piper Alpha and during performance of the work by BT on Piper Alpha. The defenders submitted that the reference to “during performance of the work” was not merely temporal and suggested that the involvement of BT in the accident through act or omission was an essential prerequisite of the indemnities which follow. However I think the phrase “at all times” is a clear indication that the clause is intended to be temporal in effect. If it was the intention that the indemnities were only to operate during the actual performance of work the words “at all times” would be superfluous. Moreover It would not make sense if a claim were to be available if an engineer was overcome by fire while working on antennae but not available if he was overcome by fire while in his cabin. The indemnities include non-compliance with the law and it is difficult to see how in many instances that could be connected to actual performance of th