Evans v Port of Brisbane Authority & Ors [1992] QCA 302

IN THE COURT OF APPEAL [1992] QCA 302 SUPREME COURT OF QUEENSLAND C.A. No. 19 of 1992 BETWEEN: HAROLD KENNETH EVANS (Plaintiff) Appellant AND: PORT OF BRISBANE AUTHORITY (First Defendant) First Respondent AND: UNITED SHIP REPAIR SERVICES (A FIRM) (Second Defendant) Second Respondent AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Defendant AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Party AND: BP AUSTRALIA LIMITED Fourth Party ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒ ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒ The Chief Justice Mr. Justice Davies Mr. Justice Ambrose ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒ ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒ Judgement of the Court given on the Fourteenth day of Sepember 1992 ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒ ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒ THE ORDERS UPON THIS APPEAL AND CROSS APPEAL THEREFORE WILL BE AS FOLLOWS:- 1. THE APPEAL AGAINST THE FIRST RESPONDENT AND THE SECOND -- 1 of 23 -- 2 RESPONDENT IS DISMISSED. 2. THE CROSS APPEAL OF THE FIRST RESPONDENT AGAINST THE APPELLANT AND THE SECOND RESPONDENT IS DISMISSED. -- 2 of 23 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 19 of 1992 Before The Chief Justice Mr. Justice Davies Mr. Justice Ambrose BETWEEN: HAROLD KENNETH EVANS (Plaintiff) Appellant AND: PORT OF BRISBANE AUTHORITY (First Defendant) First Respondent AND: UNITED SHIP REPAIR SERVICES (A FIRM) (Second Defendant) Second Respondent AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Defendant AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Party AND: BP AUSTRALIA LIMITED Fourth Party JUDGMENT OF THE COURT Delivered the Fourteenth day of September 1992 CATCHWORDS Habours Act 1955-1987 s. 98. Port of Brisbane Authority Act 1976 s. 17. Negligence. Quantum of Damages. Whether Port of Brisbane Authority is liable for negligent personal -- 3 of 23 -- 2 injury. Counsel: Mr. K.C. Fleming QC with Mr. W.J. Hodges for the Plaintiff/Appellant. Mr. S.C. Williams QC with Mr. C.G.S.L. Jensen for the Respondent/First Defendant. Mr. G.J. Gibson and Mr. Stewart for the Second Respondent/Second Defendant. Solicitors: Purvis Duncan for the Plaintiff/Appellant. O'Mara Patterson & Perrier for the Respondent/First Defendant. Barker Gosling for the Second Respondent/Second Defendant. Hearing dates: 24th and 25th August 1992. -- 4 of 23 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 19 of 1992 BETWEEN: HAROLD KENNETH EVANS (Plaintiff) Appellant AND: PORT OF BRISBANE AUTHORITY (First Defendant) First Respondent AND: UNITED SHIP REPAIR SERVICES (A FIRM) (Second Defendant) Second Respondent AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Defendant AND: -- 5 of 23 -- 2 ASSOCIATED STEAMSHIPS PTY. LTD. Third Party AND: BP AUSTRALIA LIMITED Fourth Party JUDGMENT OF THE COURT Delivered the Fourteenth day of September 1992. The appellant was the plaintiff in an action for damages for negligence occurring in the course of his employment with the third defendant for which the first respondent and the second respondent were held liable. Judgments were given in favour of the third defendant (also the third party) and the fourth party and they are not parties to this appeal. The appellant appeals only on the ground that the damages awarded were inadequate. It is his case that the learned trial Judge either misunderstood or misapplied certain evidence which resulted in an insufficient award of damages to compensate him for future loss of earning capacity. Both respondents to the appeal contend that the learned -- 6 of 23 -- 3 trial Judge neither misunderstood nor misapplied the evidence and that the quantum of damage therefore is not manifestly inadequate. The first respondent also cross appeals on the ground that the effect of by-law 12 of the Port of Brisbane Dockyard Cairncross By-Laws is to exempt the first respondent from liability to the appellant for damages for negligence resulting in his injury. In the alternative, the first respondent contends that if by-law 12 does not have this effect at least it does not permit the second respondent to recover from the first respondent contribution in respect of damages for which the appellant obtains judgment against both respondents. The learned trial Judge found that the appellant was guilty of contributory negligence and apportioned blame between him and the respondents to the appeal at 15 per cent against the appellant and 85 per cent against the respondents. The second respondent has not cross appealed. On the question of liability therefore, the only issue which was debated upon appeal was that raised by the first respondent as to the effect of by-law 12. Both the plaintiff and the second respondent argue that by-law 12 does not have the legal effect for which the first respondent contends. The facts relevant to the appeal may be stated shortly. On 28th July 1984 in the course of his employment with the third defendant, the appellant was working on the dock -- 7 of 23 -- 4 bottom of the Cairncross dry dock when a defective mobile scaffold fell striking him a glancing blow to the lower back and fracturing his left ankle. The appellant had little if any warning of the falling scaffold and efforts he made to avoid injury were unsuccessful. At the time of his injury, the appellant was employed as second engineer on the vessel upon which work was being performed in the dry dock. He was a very conscientious employee and had a reputation for always endeavouring to achieve the best result possible in the discharge of his duties and, as well, for keeping himself fully occupied in the discharge of those duties. He was described in the course of the trial as something of a perfectionist whose ancestors had worked at sea and who intended to spend the rest of his working life on ships. The evidence showed that had it not been for his injury, he would in the foreseeable future have been employed as chief engineer on a seagoing vessel. The evidence also disclosed that at the time of his injury the appellant was suffering from a degenerative process in his spine - and in particular in the area of his lumbar spine where he suffered a soft tissue injury when struck by the falling scaffold; prior to his injury in the dry dock however he had suffered no pain or disability as the result of such degeneration. It is unnecessary to examine in detail the medical evidence which was voluminous. Two of the doctors called upon the trial were -- 8 of 23 -- 5 Dr. Hardcastle, an orthopaedic surgeon, who had examined and treated the appellant extensively from about twelve months after his injury in July 1984 until January 1991 when he examined him for the purpose of giving evidence at trial, and Dr. Skerritt, a psychiatrist who first saw the appellant on 13th June 1991, next on 25th July 1991 and lastly on 11th October 1991 for the purpose of the preparation of a report to be used upon trial. The significant question debated upon trial, and again upon appeal, was whether the appellant proved at trial (judgment delivered 20th December 1991) that any future loss of earning capacity was attributable to the injury he suffered in July 1984 rather than to the natural progression of the degenerative condition of his spine which had been symptomless prior to injury. It was the appellant's case that although the natural progression of the degenerative condition of his spine may have reduced his working life, that possibility should have properly been accommodated by the learned trial Judge discounting to an appropriate degree the value at date of trial of a loss of earning capacity of between ten and twenty years. For the respondents it was contended that a proper evaluation of the evidence, particularly that of Dr. Hardcastle, showed that quite apart from his injury suffered in July 1984, the appellant would in any event have been disabled by reason of his deteriorating back condition from continuing in that employment within ten to fifteen years -- 9 of 23 -- 6 thereafter. It was contended that on the evidence, the only loss of future earning capacity shown at date of trial was for a period of about four years - that is the difference between the period of earning capacity which would have been left to the appellant at date of his injury in consequence of his degenerative back condition, and the time which had elapsed between date of injury and date of trial. The learned trial Judge found that as at date of trial by reason of his 1984 injury, the plaintiff had lost the earning capacity of a chief engineer in the sum of $950.00 per week. His Honour then assessed future loss of earning capacity "for the full four year period but of course no loss thereafter". Other items of future economic loss were assessed on the same basis. Having reviewed the medical evidence the learned trial Judge accepted the views of Dr. Hardcastle observing that: "His analysis has the benefit of examinations of the plaintiff over an extended period and it also explains the history on a footing consistent with the basic genuineness of the plaintiff which accords with my own assessment of him in his description of his feelings." The appellant's complaints really focussed upon the following passage in the judgment: "In assessing damages I propose to act on the footing that the accident produced symptoms which had not previously been experienced but that the plaintiff would within ten to fifteen years (and much closer to ten than fifteen) have been in a position comparable with his present one so far as pain and disability are concerned. The extent of likely psychiatric interaction with the onset of these symptoms is somewhat speculative but Dr. Skerritt agreed that he was susceptible to the -- 10 of 23 -- 7 onset of psychiatric problems. The most important factor inducing such problems is chronic pain. I do not think it profitable to endeavour to assess the degree to which his psychiatric problems may have been less if his disabilities and pain had been sustained from some other relatively minor incident or if they had simply gradually supervened. It is likely that there would have been a significant psychiatric component once he started to suffer serious back pain and disability." For the appellant, it was contended that the inescapable conclusion to be drawn from the evidence of Dr. Skerritt was that the symptoms of which the appellant complained (and particularly pain) at a time when in Dr. Hardcastle's view any disabling pain in the back resulting from his injury ought to have cleared up, would not have been experienced by the appellant "except for the psychological effect of the accident" upon him. It was further contended that having regard to his personality and to the psychiatric evidence called from Dr. Skerritt, the appellant at the time of the accident had both a spine and a personality at risk of producing disabling consequences, if he were subjected to an unexpected injury of the sort which he suffered in July 1984. It was conceded for the appellant that on medical evidence there does not appear to be very much wrong with his spine except for the degenerative change. It was contended that upon the evidence much of the appellant's disabling pain was merely a manifestation of his psychological inability to adjust to stresses of a psychological kind. For the appellant, it was further contended that the evidence of Dr. Hardcastle who was unaware of the -- 11 of 23 -- 8 psychiatric views of Dr. Skerritt and the evidence of Dr. Skerritt who was unaware of the orthopaedic views of Dr. Hardcastle, could be reconciled. Dr. Hardcastle's view is that the appellant at times of examination had a degenerative spine condition that ought not physically to have disabled him from working. What disabled the appellant from working was disabling pain. Dr. Skerritt's view was that such disabling pain may have been a psychological reaction to other stresses - such as his inability to get a job with his former employer, which apparently had a policy of not employing persons with a history of a back injury or disability whether or not that disability prevented them from adequately performing their duties. It was argued for the appellant that not merely was the learned trial Judge permitted to attribute any future loss of earning capacity beyond four years from date of trial to the appellant's psychological reaction to the physical and psychological stresses imposed upon him by his 1984 injury, but indeed was required to draw that inference upon the evidence and erred in law in failing to do so. In our view an examination of the evidence given by both Dr. Hardcastle and Dr. Skerritt demonstrates that it was open to the learned trial Judge to arrive at the conclusion which he did. We will not attempt to refer in detail to the extensive medical evidence contained in the record of appeal. However to demonstrate that the finding of the learned trial Judge was supported by clear and unequivocal evidence we refer to some of the lengthy -- 12 of 23 -- 9 evidence of Dr. Hardcastle:- "Now in general terms one would expect such an injury to take as I say about four to six weeks and he should be over the effects of the injury but because he has had pre-existing degenerative change I think he started to develop symptoms from that ... Now given that it would be my opinion that the degenerative condition that has subsequently become symptomatic is highly likely at some stage. Now it may have been the next day or it may have been thirty years down the line that it was going to give him trouble. Now in my opinion it is more likely given the radiological features that I am looking at and given the fact too that this chap has got multi-level complaints and one's got to remember that his neck became symptomatic just by being in a brace so he is a susceptible individual to pain even though he had been fairly active prior to his accident that this condition would likely to have become symptomatic and I've got a figure of between ten and fifteen years because in my opinion that is a reasonable figure in this circumstance. It may be one to five years. It may be twenty to thirty but my educated guess would put it into that particular time frame." Dr. Hardcastle made it clear that it was his opinion that within ten to fifteen years of the date of the appellant's injury in July 1984, he would in any event have been experiencing symptomology to the extent about which he presently complained and that that symptomology would have resulted from the natural process of degeneration of his spine. Indeed he also expressed the view that within ten to fifteen years from July 1984 had he not then been injured the appellant would have presented the symptoms of disablement and pain which he was presenting in 1986. Dr. Hardcastle conceded that the views he expressed were based solely on his experiences as an orthopaedic surgeon. He made it clear that pain is subjective and said that from an -- 13 of 23 -- 10 orthopaedic point of view there was no physical reason why the appellant could not have been working at the time of trial or indeed could not have worked within a year or so of his first consulting him. He stated quite clearly that the symptoms which developed in the appellant after his injury stemmed from his pre-existing degenerative changes and that the onset of those symptoms had been accelerated by the 1984 injury from a time between ten years and fifteen years after date of injury to shortly after that date. Dr. Skerritt said that among other things, chronic pain can precipitate psychiatric illness. He said that a highly frightening or traumatic accident is more likely to precipitate a psychiatric illness than pain which develops "insidiously". He said that the appellant had a habit of converting "psychic distress" into "the experience of pain" and he thought that with the appellant this was something "that is going to stick". Dr. Skerritt expressed the view that the appellant "was provoked into a major depressive order by the chronic pain which followed his industrial injury" and that this was a common occurrence. Dr. Skerritt said that he had in fact been involved in the successful treatment of the appellant for depression and said that the major limiting factor to the appellant's future employment would be chronic pain. He then said that it was quite possible that depression from which the appellant had suffered and for which he had received treatment was itself contributing to the pain he experienced or at least to his inability to cope with it. -- 14 of 23 -- 11 We can find nothing in the evidence of Dr. Skerritt which supports the contention made on behalf of the appellant that the symptoms of disabling pain in his lower back which he has suffered since shortly after the 1984 accident, are attributable to anything other than degenerative spinal processes from which he was then suffering and which the injury had the effect of accelerating. The effect of Dr. Hardcastle's evidence is that the back injury accelerated the onset of symptoms from which the appellant suffered at date of trial but which would in any event probably have manifested themselves between ten and fifteen years after the date of injury in 1984. The learned trial Judge accepted the appellant as a genuine witness and accepted his explanation for his inability to work as the result of pain and other disabling symptoms. We are of the view that it was open on the evidence before the learned trial Judge, to make the finding about which the appellant complains. Indeed upon his acceptance of the evidence of Dr. Hardcastle, it seems to us that a finding of the kind challenged follows almost inevitably. We dismiss the appeal. With respect to the cross appeal, the first respondent contends that by its terms by-law 12 of the Port of Brisbane Dock Yard Cairncross By-Laws published in the gazette of 29th August 1975 "protects the first respondent in all circumstances from any suit of this nature". It is -- 15 of 23 -- 12 submitted on behalf of the first respondent that it is not profitable or necessary to read beyond the fifth line of that by-law and indeed that it is "somewhat confusing to read on past the bracketed paragraph without thereby limiting the generality of the By-law". By-law 12 is contained in Chapter 3 of the By-laws. Chapter 3 reads: "CHAPTER 3 Conditions of Use" By-law 5 provides: "5. Application for use of the dock or slipway or fitting-out wharf shall be made by the Master, Owner or Agent of the Owner of the vessel to the General Manager and shall be made in the form prescribed in Schedule G hereto and shall be accompanied by such further information and particulars as the General Manager may require." The application form, when the application is accepted, makes the docking subject to the by-laws. By-law 6 then contains provisions as to how the General Manager, Port of Brisbane Authority, must deal with any application received and the consequences as far as the management of the dry dock is concerned when the application is registered. By-law 7 deals with various pre-requisites for the use of the dock by an applicant. By-law 9 places obligations on the Master of a vessel entering the dock with respect to material stored on the vessel. By-laws 10 deals with obligations upon the Master of a vessel in the dry dock with respect to the contents of tanks -- 16 of 23 -- 13 on the vessel and by-law 11 provides that when a vessel uses the dock, that use is at the risk of the Owner or Master of the vessel. By-law 12 then provides: "The Authority or any officer, employee or servant of the Authority shall not be held liable for any loss, damage, delay or detention whatsoever whether occasioned by the neglect of any such officer, employee or servant or otherwise including (without thereby limiting the generality of this By-law) loss, damage, delay or detention - - (a) which may be sustained by any vessel while entering, leaving, or occupying the Dock or Slipway or Fitting Out Wharf; (b) which may be occasioned by delay in docking or undocking or slipping or unslipping or berthing and departing of the vessel; (c) which may arise from riots, strikes, lock-outs, industrial disputes or combination thereof, in respect of any persons in the service of the Authority or other persons, or from any consequence arising therefrom; (d) due to natural or accidental circumstances; or (e) which may arise from any breakdown of plant or machinery or supply of services." By-law 13 requires various specified persons to obey the direction of the dock master superintending the docking of the vessel concerned. By-law 14 deals with obligations imposed upon the Master of a vessel to comply with the directions and seek the approval of the dock master in certain circumstances. By-laws 15, 16, 17, 18, 19 and 20 place certain obligations on the Master of a vessel entering or in the dry -- 17 of 23 -- 14 dock. By-laws 24 and 25 relate to the class of persons who may perform work within the dry dock area. The by-laws in question were made pursuant to the provisions of s. 17 of the Port of Brisbane Authority Act 1976 which gives the first respondent the powers given to a Harbour Board under s. 98(1) of the Harbours Act 1955-1987. That section empowers a Board from time to time to "make by-laws providing for all or any matters required or permitted by this Act to be so prescribed and subject to this Act and the regulations hereunder for all or any purposes whether general or to meet particular cases that may be convenient for the administration by it of this Act or that may be necessary or desirable to carry out the objects and purposes of this Act". Under s. 98(2) without limiting the generality of the power to make by-laws, the Board may: "(d) regulate and control the laying up of any vessels within the harbour and fix charges for that laying up and exempt any vessels so laid up from any harbour dues." and (e) ... "(f) regulate and control vessels in the harbour in respect of all or any matters relating to the protection of life and property in or on wharves and docks, vessels in the harbour and the harbour." ... ... "(x) Regulate and control the duties and conduct of all persons as well its servants as others (not being officers of the Commonwealth or of the State) who are employed in or about the -- 18 of 23 -- 15 harbour limits or on any land vested in or held by it under its control and management." For the first respondent it is contended that it was clearly within the competence of the by-law making Authority under s. 98(2)(x) to make a by-law having the effect of by- law 12 for which it contends. We agree with the views expressed by the learned trial Judge when dealing with this argument that it would come as something of a surprise to the employees of the first respondent to learn that their employer was under no common law duty to avoid negligently causing injury to them in the course of their employment. However there are other legislative provisions to be found in the Harbours Act which seem inconsistent with the legal effect of by-law 12 for which the first respondent contends. Section 162(1) of the Act provides: "Anything done or omitted to be done by the Minister, the Harbours Corporation, a Harbour Board or any person in or as an incident in performance or purported performance of a duty imposed by this Act or exercise or purported exercise of a power conferred by this Act and done or omitted to be done in good faith and without negligence shall not render the Crown, Minister, the Harbours Corporation, Harbour Board or person concerned or any of them liable in respect thereof." Section 162(4) provides: "(4) As and when required by a Harbour Board or the Harbours Corporation against which an action is or is to be brought on account of personal injury to any person a legally qualified medical practitioner appointed by such Board or the Harbours Corporation shall be permitted by the person alleged to have been injured and by all other persons -- 19 of 23 -- 16 concerned to examine the person alleged to have been injured and such assistance and information shall upon his request be made available to him as may be necessary or desirable to enable him to ascertain the nature and extent of any injury in question. As and when required by a Harbour Board or the Harbours Corporation against which an action is or is to be brought on account of damage to property a person appointed by such Harbour Board or the Harbour Corporation shall be permitted by the plaintiff or as the case may be intending plaintiff and all other persons concerned to inspect the property alleged to have been damaged and such assistance and information shall upon his request be made available to him as may be necessary or desirable to enable him to ascertain the value of the property alleged to have been damaged, the nature and extent of any damage and the amount (if any) expended in remedying such damage." Under s. 162(6) it is provided: "(6) Every action brought in the Supreme Court against a Harbour Board or the Harbours Corporation and wherein the damages sought consist of or include damages in respect of the death of or personal injury to any person (which death or injury has occurred after the passing of the Harbours Act Amendment Act of 1966) shall be heard and determined by a Judge without a jury." In our view it is clear that s. 162 of the Harbours Act in exempting a Harbour Board from liability in respect of the performance or purported performance of a duty imposed by the Act, does so only with respect to the exercise of such power "in good faith and without negligence". Indeed sub-ss. (4), (5) and (6) of s. 162 contemplate that actions will properly be brought against the Board with respect to a purported exercise of its powers either without good faith or negligently: moreover, they contemplate actions for damages for personal injury and for damage to property -- 20 of 23 -- 17 resulting from the negligent exercise of such powers. A statute will not be construed to take away a common law right unless that intention emerges clearly from its terms. In our view having regard to the context in which by-law 12 is found and the legislative provisions in the Harbours Act to which we have referred, it is clear that by-law 12 does not have the effect for which the first respondent contends. The by-law in question is part of delegated legislation expressed in very general terms. Properly construed, however, it has a more limited effect only of exempting the Authority and its employees from liability for economic loss as the result of certain categories of breach of contract. Upon its proper construction it is unnecessary to consider whether it is invalid because of inconsistency with the provisions of s. 162 of the Harbours Act; it does not have the effect of exempting the first respondent from liability for damages for personal injury resulting from the negligence of the first respondent. The cross appeal against the appellant must fail. Each of the respondents in this case gave to the other a contribution notice under R.S.C. O. 17 r. 9. The notices were given to enable each respondent to exercise against the other its rights under s. 5(c) of the Law Reform (Tortfeasors Contribution Contributory Negligence and Division of Chattels) Act of 1952. As against the second respondent, the first respondent cross appeals against the order made that the second -- 21 of 23 -- 18 respondent recover from the first contribution to the extent of 60 per cent of the judgment recovered by the appellant against each of the respondents. The first respondent contends that the contribution order obtained by the second respondent is "a mere pecuniary claim" and that if the concept of loss, damage, delay or detention in by-law 12 is read down to exclude liability for personal injury to the plaintiff then that reading down does not have the effect of excluding the first respondent's liability to the second respondent for any contribution rights under s. 5(c) of the Law Reform (Tortfeasors Contribution Contributory Negligence and Division of Chattels) Act 1952. Once it is accepted that by-law 12 is limited to exemption from liability for breach of contract this argument can have no substance. But in any event prusuant to s. 5(c) of the Law Reform (Tortfeasors Contribution Contributory Negligence and Division of Chattels) Act 1952 the right of the second respondent to contribution from the first depends upon the first respondent being characterised as a tortfeasor "who is or would if sued have been liable in respect of the same damage" as the second respondent. There is no substance in the cross appeal of the first respondent against the second respondent and consistently with the dismissal of the first respondent's cross appeal against the appellant, the first respondent's cross appeal against the second respondent must also be dismissed. The orders upon this appeal and cross appeal therefore -- 22 of 23 -- 19 will be as follows:- 1. The appeal against the first respondent and the second respondent is dismissed. 2. The cross appeal of the first respondent against the appellant and the second respondent is dismissed. -- 23 of 23 --