Evans v Port of Brisbane Authority & Ors [1991] QSC 364 (1992) ATR 81-169

/' TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. Q. 4000 Tel. (07) 22:7.4360 (Copyright in this trc,J1script is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 3148 of 1986 HAROLD·KENNETH EVANS and PORT OF BRISBANE AUTHORITY and I R'.::'/ISE0 COPI.ES ISSUED i I Court ~ortinQ-!l!~~u Ii Date, ff1~ME Plaintiff First Defendant UNITED SHIP REPAIR SERVICES (a firm) Second Defendant and ASSOCIATED STEAMSHIPS PTY LTD and ASSOC'IATED STEAMSHIPS PTY LTD and BP AUSTRALIA LIMITED BRISBANE •• DATE 20/12/91 JUDGMENT Third Defendant Third Party Fourth Party 1 -- 1 of 61 -- 10 20 30 40 50 60 201291 JUDGMENT HIS HONOUR: The primary findings are findings of negligence on the part of the first defendant and the second defendant. I have not found negligence against the third defendant. I have found contributory negligence against the plaintiff assessed at 15 per cent. As between the first defendant and the second defendant the apportionment is 60 per cent against the first defendant and 40 per cent against the second defendant. I have found in favour of the third defendant's per quod claim to the extent of $37,143.84. 'Ihe plaintiff's damages that assessed come to a total of $445,530. The total of the interest that would be payable on that assessment comes to $30,150. There must, of course, be a 15 per cent deduction from the total of those sums. Based on those findings there will be judgment for the plaintiff for $404,328 against the first defendant and the second defendant with costs, including such costs as the plaintiff is required to pay to the third defendant, less any costs attributable to the issue of quantum after 22 November 1991, to be taxed. There will be judgment for the third defendant against the -Govt. Printer, Qld. 2 I ha ' ' 10 30 40 50 60 -- 2 of 61 -- 10 20 30 40 50 60 201291 JUDGMENT plaintiff with costs to be taxed. There will be judgment for the third defendant against the first defendant and the second defendant for $37,143.84 with costs to be taxed on the third defendant's claim in that behalf. There will be orders for costs in favour of the third defendant against the first defendant with respect to the first defendant's claim against the third defendant and against the second defendant with respect to the second defendant's claim against the third defendant to be taxed. There will be judgment for the fourth party against the first defendant on the first defendant's claim against the fourth party with costs fixed at the $2,500. As between the first defendant and the second defendant judgment will be entered with respect to their claims against each other so that the first defendant is responsible to pay 60 per cent of the judgment moneys, including costs, ordered in favour of the plaintiff and ordered in favour of the third defendant and so that the second defendant is responsible to pay 40 per cent of all such sums. There will be liberty to apply. I publish my reasons. · -Govt. Printer, Qld. 3 10 20 30 40 50 60 -- 3 of 61 -- IN THE SUPREME COURT OF QUEENSLAND No. 3148 of 1986 BETWEEN: HAROLD KENNETH EVANS Plaintiff AND: PORT OF BRISBANE AUTHORITY First Defendant UNITED SHIP REPAIR SERVICES (a firm) Second Defendant ASSOCIATED STEAMSHIPS PTY. LTD. Third Defendant ASSOCIATED STEAMSHIPS PTY. LTD. Third Party BP AUSTRALIA LIMITED Fourth Party REASONS FOR JUDGMENT - THOMAS J. Delivered the 20th day of December, 1991. CATCHWORDS: Negligence - Multiple contractors - Duties of care - Worksite where employer had no power to control movement of equipment - Contributory negligence - Employer absolved of actual fault although duties non-delegable - Whether servants borrowed by contractor - Apportionment between defendants - Whether Port of Brisbane Authority regulations remove liability of P.B.A. for damages for negligence. Damages - deductibility of monies received by plaintiff - Action per quod by employer for payments compulsorily made by it to plaintiff Navigation Act payments Seamen's Compensation Act payments. Counsel: K. Fleming Q.C. with W. Hodges for c. Hampson Q.C. with C. Jensen for G. Gibson Q.C. with R. Douglas for M. Boulton for third defendant, fourth party plaintiff first defendantsecond defendant third ~arty and Solicitors: Purvis Duncan for plaintiff O'Mara Patterson & Perrier for first defendant Barker Gosling for second defendant Thynne & McCartney for third defendant, third party and fourth party Hearing dates: 18-27 November, 1991. -- 4 of 61 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: HAROLD KENNETH EVANS PORT OF BRISBANE AUTHORITY No. 3148 of 1986 Plaintiff First Defendant UNITED SHIP REPAIR SERVICES (a firm) Second Defendant AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Defendant AND: ASSOCIATED STEAMSHIPS PTY. LTD. Third Party AND: BP AUSTRALIA LIMITED Fourth Party REASONS FOR JUDGMENT - THOMAS J. Delivered the 20th day of December, 1991. The plaintiff was at the material time the second engineer on the ship "B. P. Enterprise". He was injured on 28th July, 1984 in the course of overhaul and repair work which was being performed\upon the ship whilst it was in the \ Cairncross dry dock in Brisbane. -- 5 of 61 -- 2 He was injured when he received a glancing blow from a falling mobile scaffold. He sustained a fractured ankle and an abrasion and bruising to the lower back. the action against: He has brought (a) the authority which occupied and managed the dry dock, and which had contracted to perform certain of the work to be performed in connection with the ship (Port of Brisbane Authority - "P.B.A."); (b) the contractor which was engaged upon' the overhaul and repair of the ship (United Ship Repair Services "U . S . R . S . " ) ; and ( c) his employer (Associated Steamships Pty. Ltd. "A.S.P."). The shipowner, B.P. Australia Limited, was brought in as a fourth party, but in the end no claim is maintained against it. Thus the essential contest is between the plaintiff and three separate defendants, with numerous cross-claims for indemnities and contributions between the respective defendants. The case occupied eight days. The only issues are the extent of the plaintiff's injury and damage, and questions related to liability and indemnity. It is important to understand the various roles played by the various parties in relation to the operation in question, namely the overhaul of the vessel. The overhaul was initially authorised by B.P., but i~s agent for all material activity, \ including the letting of the necessary contract, was A.S.P. ' That company was the employer of the ship's company, including -- 6 of 61 -- 3 its engineers. It entered into a contract whereunder U.S.R.S. was to be the repair contractor. Included in the work undertaken by U.S.R.S. was the removal of the ship's propeller and shaft, and the performing of any necessary repairs thereto. A.S.P. also found it necessary to enter into a contract with the P.B.A. for the purposes of getting the work done. The P. B. A. owned the dry dock and certain cranes and other equipment associated with the use of a dry dock, and it engaged dock labour to perform certain work in and around the dock. Under its contract with the P.B.A., A.S.P. agreed to pay $309,000.00 to A.S.P. for its provision of "dry docking and services". The services included the erection and dismantling of staging and the provision of cranage. The P.B.A. is a statutory corporation constituted under the Port of Brisbane Authority Act 1976. Under that Act some regulations have been made which have some effect upon legal relationships between those whom it permits to use the dock. In the event A.S.P. had two separate contracts under which the work on the vessel was to be carried out. with U.S.R.S. and the other with the P.B.A. One was The vessel arrived at the dry dock during the preceding week. The dock was drained and the ship wedged. After the dock was drained, the boss of the propeller was approximately 15 feet about floor level. The necessary mobile staging pieces were then lowered onto the dry dock floor to enable the work to be carried out. \ This staging was supplied by the '· P.B.A. and lowered by cranes operated by P.B.A. 's employees. -- 7 of 61 -- 4 days. Work had been proceeding on the vessel for a number of The role to be played by the plaintiff, and other ship's personnel during the carrying out of the repairs is not easily stated, but it might best be described as one of keeping an eye on things. From the plaintiff's point of view, as second engineer, he was interested to see the amount of wear that had occurred in the moving parts and generally, I suppose, to understand how the ship worked, given that his main function was to help keep it mechanically operational when at sea. It might also be supposed that if he saw anything untoward or substandard in the performance of the necessary repairs he would report it to his superior so that A.S.P. might then deal with it by raising the matter with the relevant contractor. So from time to time he moved about the ship looking at the ship's parts as they were dismantled. However he had no right to give directions to the contractors or their staff. His function was the making of observations for the potential enlightenment of himself and his employer. At the relevant time, about 12.30 p.m. on Saturday, 28th July, 1984 the plaintiff and three other officers or employees of the ship were standing on the bottom of the dry dock near the rudder, discussing or inspecting pieces of timber (lignum vitae) which had acted as bearings for the shaft and which had just been removed from the area around the propeller shaft. At the same time work was obviously in process in relation to I the removal of the prope~ler. The large dock crane was in position; and its hook had been lowered nearby. A number of riggers and dogmen were engaged upon activity which would soon -- 8 of 61 -- 5 fasten one end of a loose wire cable (about one inch thick and about 20 metres long) to the propeller. The other end of that cable would then be fastened to the crane hook. The slack would then be taken out of the cable. The propeller, which weighed about 14 tonnes was at that stage suspended about 15 feet above the dry dock floor. It had been disconnected from the shaft and was suspended by chains in a position about eight feet to starboard of its usual fixed position. At that time there were five mobile scaffolds (or stagings) situated in the rudder area. Each of these was probably similar to the one which ultimately fell on the plaintiff. Each staging had four wheels or casters which made it manually mobile. Each had two working platforms, the top one being about 15 feet above the ground. There was also a handrail, so the overall height may have been of the order of 18 feet. Four of the stagings were in working positions, generally to facilitate rigging duties or work in the propeller shaft area. The fifth was a discarded staging which had been moved a short distance from the relevant working area. The event leading up to this was the loss of a wheel from that particular staging, probably some three hours earlier. At that time it had been wheeled by painter and docker "stagehands" to a designated working position near the ship' s rudder. Upon the wheel falling off, the stage hands moved it a short distance from the ship, and decided to move I it no further, declaring fhat a crane should be used to take it away. There it remained whilst the various workers went -- 9 of 61 -- 6 about their activities, including the slinging activity to which I now return. As mentioned above, the propeller had already been disconnected from the shaft. It was supported by chains fastened to bollards on both sides of the stern deck. The port side chain had then been extended to its full extent permitting the propeller to move some distance to starboard. The intention was, in due course, to lower the propeller to the ground and then move it by crane somewhere else for appropriate treatment. In order to do this the P.B.A. 50 tonne crane had to be used. It was situated on the starboard side of the dock, which was possibly some 50 feet or so above the floor of the dry dock, and some distance above the deck level of the vessel. Its boom extended over the top of the vessel's stern and its hook hung down on the port side so that in due course the loose cable already mentioned could be connected to it. One end of that cable was secured to the propeller and the other end of it to the crane hook shortly before the accident. It was intended that when the cable was attached to the hook the slack should be taken out of the cable. The weight of the propeller would then be shared by the crane as well as by the chains-which were still supporting the propeller. By this means the port side chain could then be disconnected without causing any undue swing of the propeller. The I propeller would then be alple to be lowered to the ground by extending the crane cable. -- 10 of 61 -- 7 It is not necessary to examine the mechanics of that particular operation in further detail, because the accident happened before the disconnection of any of the chains. It occurred in fact while the slack was being taken up by the crane driver after the cable was fastened to the hook, and before the release of the port side chain. As the slack was being taken up, the cable lost contact with the ground and swung some distance sideways coming into contact with the discarded mobile scaffold that was standing nearby. The scaffold started to fall; someone shouted "run" to the group of four which included the plaintiff; those men ran for cover but the plaintiff was the slowest. He was struck a glancing blow to the lower back probably by the handrail of the scaffold, and was thrown to the ground. The above is introductory narrative. In order to appreciate the responsibility of various persons, and ultimately of the various parties it is necessary to examine the circumstances in considerably greater detail. It will be of assistance if I list the various employees of the various parties who were at the scene on the day in question, and whose names have been mentioned in the course of the evidence. \\ -- 11 of 61 -- A.S.P. (Employer ofPlaintiff) Mr. Tiernan (A.S.P. 's representative on the site) Capt. Young - Master of the Vessel P.A. Holizer, First Officer H.J. Ellis, Chief Engineer H.K. Evans, Second Engineer (Plaintiff) K. Adam, Third Engineer T. Taylor - a cadet 8 U.S.R.S. (Repairer - Contractor) E. Sykes, MarineSuperintendent J. Canning, Foreman Supervisor N. Staples, (Fitter on starboard scaffold at rear end of propeller tube) A.S. Ellis, Foreman Rigger (on Starboard scaffold adjacent to suspended propeller) V. Seaton, Rigger (With A.S. Ellis) D. Wallace, Rigger (on dry dock floor) P.B.A. (Occupier - Contractor) B. Davies, Dock Master G. Hiscock, Dock Master on duty A crane driver Bruce Saunders, Degman, on dock floor. Another dogman on the upper dock, the linkman between Saunders and the crane driver. Several dogmen Bill Macdonald (foreman of Painters andDockers) Various (probably six) painters and dockers known as"stage hands" The persons whose names are underlined were called as witnesses. P.B.A. called evidence of unsuccessful attempts to find Mr. Saunders. No such evidence was led in relation to Mr. Macdonald, who on the evidence was available in Brisbane at the time of trial. There is considerablr difficulty in presenting a clear picture of events. Counsel did not choose to use diagrammatic aids, and the only diagramlof any assistance is that drawn by -- 12 of 61 -- 9 Mr. A.S. Ellis, (ex 39). Despite its unpromising appearance there is little else that can give any relativity to the scaffolds, the cables and the propeller. It is a bird's eye view of the rudder-skeg section, including the suspended propeller, the chain slings supporting it, the four mobile working scaffolds, and the damaged mobile scaffold that had been pushed by the painters and dockers away from the ship. That scaffold is marked "x". Mr. Ellis was on the one marked "E". The diagram also shows the spare cable where it was at two separate stages. The green line is a rough representation of where it was lying on the ground before it was drawn over the skeg (through the area between the rudder and the hull); the red line is a rough representation of the position of the cable at or about the time of fastening it to the crane hook before the slack was taken up. Mr. Wallace (a rigger employed by U.S.R.S.) and Mr. Saunders ( a dogman employed by P. B. A. ) were on the ground, generally concerned with the fixation of the cable. The wider activity in hand was the lowering of the propeller to the dock floor on the starboard side, and all persons in the vicinity, (including the plaintiff) were generally aware of this. Initially Mr. Wallace and Mr. Saunders had been on the starboard side of the rudder where the cable was initially brought. At some stage Mr. Ellis and Mr. Seaton ascended the scaffold near the propeller for fastening one end of the cable to the propeller. I Mr. Walllace took the other end of the cable \ through the opening between the rudder and the hull, that is ! to say above the skeg. From that time on Mr. Wallace and Mr. -- 13 of 61 -- 10 Saunders were generally on the port side, and probably forward of the cable which is shown as the red line on ex. 39. Mr. Ellis could see Mr. Wallace and Mr. Saunders through the opening forward of the rudder. The position of the plaintiff and his group at material times was also on the port side, but aft of the cable and the discarded staging. They were quite close to the operation I have been describing and were probably something of the order of four to six metres away from the cable after Mr. Wallace had brought it through the opening. The evidence is far from precise, but it would seem that the crane hook probably came into position at about 12.15 p.m. and that the accident happened at about 12. 30 p.m. The preparatory activities in which Mr. Ellis and Mr. Saunders were involved occupied most of that time. The plaintiff and his group were also there for most of the time, and were present for approximately 10 or 15 minutes before the accident. Although I accept that the plaintiff had his back to the scaffold in the moments immediately preceding the accident, I accept Mr. Ellis' evidence describing the plaintiff and his group as "coming up close to the rudder and picking up some of the timber, then walking back a bit and looking around the rudder and so forth". They ,were in white overalls and were probably wearing hard hats. The plaintiff was interested in the pieces of lignum I vitae. He was aware of\ the presence of a fitter on the scaffold, probably the person who had knocked out the wooden pieces. He seems to have been aware of little else. He saw -- 14 of 61 -- 11 no cable on the ground, and nothing of the preparations concerning the fastenings of the cable. He heard nothing of the communications of the men that led to the operation of the crane. When the cable was hooked to the crane Ellis called out to Wallace that he was ready to take the slack out of the wire, or, perhaps simply, "take the slack out". Wallace then told Saunders that he could go ahead. Ellis and Wallace were riggers employed by U.S.R.S., and Saunders was a dogman employed by the P.B.A. Ultimately the crane driver (a P.B.A. employee) would take directions only from his dogmen. The crane driver was out of sight on the upper dock on the other side of the ship and was neither able nor expected to be able to see what was happening below. The chain of direction was from Saunders, the first dogman, to a second dogman on the upper dock (the caisson) and from him to the crane driver. Wallace and Saunders were standing very close, possibly only a metre or two apart. Wallace told Saunders he could go ahead. Saunders then signalled the second dogman who signalled the crane driver. The wire was lying in "a snake fashion on the ground". As it was being taken up it started to lift and ran or swung across the dock floor towards the staging. Wallace called "stop" to Saunders and both yelled to the engineers to get out of the way, or to run. The wire skipped under the missing I wheel. The caisson dogma\n stopped the crane driver but too late. The staging had been picked up enough to make it I topple. Mr. Evans had started to move away but the handrail -- 15 of 61 -- 1 2 on the staging hit him on the lower part of the back, knocking him away from the staging and onto the ground. The events leading up to the leaving of the staging in that position are of sufficient relevance to deserve mention. At about 9. 30 that morning Mr. Ellis told the painters and dockers (probably the leading hand} that he wanted a staging and indicated where it should be placed. The gang (probably six men) obtained a staging and pushed it towards the designated place at the port side of the pr~peller. When it was about ten feet from the desired position a caster broke. This made it unsuitable for use. Mr. Ellis asked Mr. Macdonald (the foreman painter and docker} if he could have it removed and another brought in so that they could carry on with the job. Mr. Wallace recalls that the request to the painters and dockers was to move it "right out of the way". At that stage it was "close to the rudder". Mr. Ellis' evidence is that "later on" the men pushed the staging to one side and brought in another staging. However it was pushed only a short distance to the position already mentioned, about eight or ten feet from the rudder. It was pushed just far enough to enable it to be lifted out by a crane. Apparently in the course of pushing it, one corner tipped down onto the concrete. On- Mr. Wallace's evidence "once that happened the painters and dockers said that they wouldn't move it any more because it was far enough outside for the crane to pick it up". No crane was brought to the scene and the staging l remained where it was until after the accident. No-one but -- 16 of 61 -- 13 painters and dockers were permitted to move such equipment. Industrial trouble would have been a virtual certainty had the riggers or the dogmen attempted to move it. It would seem that the request for it to be moved was conveyed to someone in authority in the P.B.A., probably to Mr. Hiscock, the dock master on duty. I accept the evidence of Captain Young, with the reservation that his reference to Dock Master Davies should be a reference to Dock Master Hiscock. Probably at some time shortly after 9.30 a.m. while Captain Young was talking to Mr. Hiscock, a call came through on Mr. Hiscock's walkie-talkie set informing him that there was a mobile staging in the dock bottom which had lost a caster. Captain Young and Mr. Hiscock were on the upper dock and were able to see the person who was transmitting the message from the dock bot tom on the port side . Captain Young could see what he assumed to be the staging, although it will be appreciated he was a considerable distance away. The dock master appeared to have the matter in hand, and Captain Young assumed, quite reasonably in my view, that the dock master would make the necessary arrangements to have it removed. Although the precise terms of the message are not in evidence, it seems quite likely that this was the request for the crane which the painters and dockers wanted. Mr. Hiscock recalls being "called up" but could not remember the details. The loss of a wheel on a mobile staging was not unusual. When this happened sometimes h~ would arrange to have a fitter put on a spare wheel. At other times it would be "pushed over to I the side of the dock" (implying that the labour force did not -- 17 of 61 -- 14 always find it physically impossible to do so) and on other occasions "when we got a chance, if we wanted to lift it out we would lift it out" (implying the use of a crane). The initial task would be to get the damaged staging where it would not be in the way, and this was generally near the side of the dock. It would seem that this could have been done manually or by crane. move it was the P.B.A. The Contracts The only party with the authority to The contract between A.S.P. and U.S.R.S. included the removal of the propeller and associated work which would allow the bearings to be presented for survey. A.S.P. submitted its specification both to U.S.R.S. and to the P.B.A., no doubt in recognition of the fact that the work would have to be performed in the dry dock and of the P. B. A. 's provision of cranage and other services. by A. S. P. with both parties. In the event contracts were made That with the P.B.A. involved acceptance of P.B.A. 's letter offering certain prices for various services. This included: "Group D.D. - dry docking and services $309,000.00". This was expanded elsewhere as follows: "D. D. 14 - propeller, tail shaft and stern gland - the authority will erect and dismantle staging only and provide cranage. Any requests to remove and replace staging other than for the original erection and dismantling will be charged as an extra ~ $4440.000." I In order to provide spch services, and other services the P.B.A. employed a wide variety of workmen. The personnel who moved the staging ("the ·stagehands") and its dogmen were -- 18 of 61 -- 15 members of the Painters and Dockers Union. The same person might act as a stagehand one day and a dogman on another, if so assigned, but his role on a particular shift would be one or the other. The day in question was a Saturday, and it was an overtime shift. The need for staging work and cranage on that particular day arose because U.S.R.S. wanted to work on that day. The P. B. A. was prepared to make the necessary arrangements, provided that it was given notice at least by 3. 00 p.m. on the previous day. This was done. Pursuant to arrangements no doubt negotiated some time ago by the Union, the P.B.A. did not maintain the right to select the personnel who would work on overtime shifts. This was determined by the Union or by the men pursuant to some method not fully explained by the evidence. I do not regard this as of any particular significance, although Mr. Hampson Q.C. on behalf of the P.B.A. relied upon this circumstance in support of his submission that on overtime shifts such as this one, the P.B.A. employee's were "assigned" to U.S.R.S. and that they were thereupon borrowed servants for whom· the P.B.A. was no longer responsible. For reasons more fully stated later I do not consider that there was any transfer of the right to control these men or that P.B.A. ceased to be vicariously liable for any negligent act by its servants or agents. Work Practices In a dockyard such\ as this there are certain well established and rigidly respected customs and work practices. ! The dogmen and painters a·nd dockers employed by the P. B. A. -- 19 of 61 -- 16 were members of the Painters and Dockers Union. The riggers employed by U.S.R.S. were members of the Federated Iron Workers' Association. No-one but the stagehands were permitted to move staging. They or their foreman would decide how it was to be done and whether they were capable of pushing it any further or whether a crane would be used. These practices were accepted by employers and employees alike. One could not reasonably expect either an employer or an employee to break such rules, or industrial stoppage would be a certainty. Thus once the stagehands decided that they would take the discarded staging no further, it was not reasonably possible for U.S.R.S. or any of its employees to move it any further. That is not to say that they should continue to work in the vicinity if it was reasonable to suppose that the staging constituted a danger to any person. It merely underlines that if such a danger were evident their ultimate remedy would be to refuse to continue to work until such time as the staging no longer constituted a danger. There was also a fairly rigid demarcation between the functions performed by riggers and those performed by dogmen. The riggers performed all the chain block work and the fastening of the cable to the object to be lifted. The rigger tells the dogman when the lift is ready; the dogman tells the crane driver when to lift and how far to lift. not certificated to dog the crane. Riggers are That having been sai~, it is inevitable that co-operation should exist between the riggers and the dogmen and this was no doubt the case on the occasion in question. Thus although -- 20 of 61 -- 17 the final order to the crane driver to take out the slack would come via his dogmen, it is not surprising to find Mr. Ellis, the rigger, calling out "take out the slack" when he had completed his linkage to the propeller. Warning the Plaintiff Mr. Wallace gave evidence of a specific warning to the plaintiff's group that he was about to do a lift. He went on to acknowledge that "no-one said anything back to me" but said "I got the idea that they knew what type of job we were doing ... they were looking at me, went about with what they were doing, I figured that they knew what I was talking about". Whilst I accept Mr. Wallace as generally truthful, I interpret his efforts in this respect as an unsuccessful warning, insufficiently persisted in. I am satisfied that whatever his communication with the plaintiff's group, it was not clearly understood by the plaintiff or the group, which remained intent upon its own activity. The question whether the plaintiff ought to have known what was going on around him and if paid more heed his own situation is a different question. For present purposes I accept that Mr. Wallace failed to penetrate the interest of the men from the ship. Sufficient primary facts have now been stated to enable the question of negligence to be addressed. Negligence On a work site such \as this where different groups have different tasks to perform and where other persons are from : time to time in proximity with one another, each person -- 21 of 61 -- 18 involved has a duty to the persons who may be put at risk by his activity. Prima facie his employer will be vicariously liable for any breach by its employee of that duty. The discarded staging was not immediately in the way, but quite obviously if one was about to engage in an activity in which a cable might swing into contact with it such an exercise would be a risky one which would put at risk anyone near the staging. Obviously the cable was introduced to the area and placed in a position where it might so swing. This should have been apparent to those involved in that particular operation. Mr. Saunders. In this I include Mr. Ellis, Mr. Wallace and Quite simply the crane should not have been activated and no permission or instruction for it to be activated should have been given until the area was cleared of personnel. As indicated above, no sufficient warning was given to the plaintiff and his group. I regard this as a clear case of negligence on the part of Mr. Ellis, Mr. Wallace and Mr. Saunders. The matter of relative degrees of fault will arise more acutely when I come to the question of contribution between defendants, but for the present it is enough to observe that although th~ riggers and dogmen had different functions to perform, they were involved in a co-operative task and each of them was a part of the chain of command that led to the crane driver causing the cable to move. \\ What of the culpability of P.B.A. through those ! responsible for leaving the staging where it was? Plainly if -- 22 of 61 -- 19 left alone it was not a danger. It was slightly unstable, and would need considerable force to make it topple. However it was a potential danger if left close to where lifting operations might occur. It was within the range of foreseeability that persons might work closer to it than was wise in the circumstances, and cause force to be applied to it such that it might become a danger to others. A question of degree is involved here, as it was at least some distance from the immediate area of activity. However I think it was sufficiently close to be a potential hazard, as events proved. I realise the danger of hindsight, and am conscious that these findings may appear somewhat artificial. That is not entirely avoidable in the area of compensation for industrial injury. The trend of authority seems to contemplate a wide ambit of foreseeability ( cf. Wyong Shire Council v. Shirt ( 1980) 146 C.L.R. 40, 47-8), and many years have passed since there was a discernible tendency to exculpate early wrongdoers on the footing that the last wrongdoer was the proximate and only cause of the injury ( cf. Thorpe Nominees v. Henderson and Lahey (1988) 2 Qd.R. 216, 219-220). The gang which left the staging, and the dock master who failed to respond effectively to the request for its removal, were collectively responsible for its presence at the material time, and the P. B. A. , which employed all such persons is responsible for whatever consequences this may entail. With respect to I the\ plaintiff's claim against his own \ employer, A.S.P., the allegations are rather general, but they I include "exposing the plaintiff to a risk of damage or injury -- 23 of 61 -- 20 in circumstances when it knew or ought to have known that a mobile stage positioned at or near the aft of the 'B.P. Enterprise' had a broken castor and was thereby left less stable in that condition and likely to fall if touched" and "failing to warn the plaintiff of the condition of the said mobile stage". In order to consider the employer's duty in a complex situation such as the floor of the dry dock it is necessary to consider the position of each party. A.S.P. 's role on the site was at best inspectorial. It was in the position of an owner acting as its own architect. The plaintiff was part of the A. S. P. team fulfilling that role. The plaintiff's duty, as a relatively superior officer, was to inspect and report to assist his principal to get the benefit of its contract. Neither A.S.P. nor any member of its staff had any authority on the site over matters such as the placement of scaffolds, or the means of carrying out the contract. Any interference in such matters would produce adverse industrial consequences. I take it as elementary that on a work site where co-contractors and their employees have different roles to perform there is a general duty and a general expectation that one should watch out. It may be impossible for an employer to arrange matters so that its employees will act discreetly and free f ram dangers f rem other sources over which the employer has no direct control. No case was pleaded or litigated • I against the plaintiff's employer on the footing that it failed to give him adequate instructions in relation to a workplace ! such as the dry dock floor.' Indeed he was well experienced in -- 24 of 61 -- 21 such exercises and instructions such as "Watch out while you are on the dock floor" would have been gratuitous. It was however submitted that A.S.P. was negligent in failing to react adequately to the knowledge obtained by Captain Young at 9.30 a.m. that a wheel had fallen off a staging, having regard to his knowledge that it was somewhere near the propeller area. In particular it was submitted that the Captain was under a duty to cause the plaintiff to be warned about this particular danger. This seems to me to be unrealistic. In the first place, in the presence of Captain Young, P.B.A. appeared to be already responding to the question of its removal. His distance from the scene was such as to make recognition by him of its potential for danger an unrealistic possibility. Captain Young had no knowledge that the ship's officers or employees would be in that particular area that day. Of course the bare possibility existed that some of his company's employees might go there during the day, but if they did, they would be in a much better position to appreciate any risk associated with that piece of equipment than that available to a viewer some hundreds of feet away such as Captain Young. In truth there would only be a risk if other activity ( not occurring when Captain Young heard the message) occurred in the vicinity of the staging when the potential employee happened to be there. Neither he nor anyone else in A.S.P. had any authority to require such staging to be moved to an~ particular place. He had reason to believe that the P.B.A. was attending to its removal in any ! event. I cannot think iri circumstances such as these that -- 25 of 61 -- 22 Captain Young, or any other person in authority in A.S.P., was obliged to chase up every ship's employee and advise them to stay away from this piece of staging. The plaintiff was fairly free to move about as he chose, for the benefit of his employer, and was in any event authorised by the first engineer to look at the parts of the ship which were opened up and to go to the dry dock floor. He had come through a hole in the starboard side of the ship and had checked various salt water injections before returning to the stern. The plaintiff said in evidence that a junior officer, the third engineer, "wanted to know about wear down measurements of the tail shaft". The claim of negligence on the part of A.S.P. will fail unless it is proved that there was a risk of injury which was reasonably foreseeable on its part, having regard to information in its possession or which ought to have been obtained by it. I do not understand any submission to be directed against any act or omission of the chief engineer.· He knew that the plaintiff was going to the dock bottom, but it is difficult to see why that should worry him or call for any particular action on his part. The question whether the plaintiff's colleagues who were with him at the time of the inspection, were negligent in failing to advert to the danger of the nearby hoisting I operation and in failing to warn the plaintiff, was not pleaded and not litigated. That aspect should therefore not ! be further considered on this question. -- 26 of 61 -- 23 Of course an employer cannot wash his hands of his duty to his employees when they go onto a work site that is effectively controlled by other parties. On the authority of Kondis v. State Transport Authority (1984) 154 C.L.R. 672, 687-688, and Stevens v. Brodribb Sawrnilling Co. Pty. Ltd. (1985) 160 C.L.R. 16, 44 the employer has a duty in relation to the provision of a safe place of work, and in particular that duty cannot be delegated to an independent contractor upon whose site or with whose equipment the employee works. The statement of Wilson and Dawson JJ. in Stevens' case (above) includes the statement "the duty to take care becomes a duty to ensure that reasonable care is taken In such cases at least it would seem that liability for the acts or omissions of a contractor is personal rather than vicarious, but that aspect of the matter is not beyond debate". The liability is not that of an insurer, and must surely be one to take reasonable care to ensure that reasonable care is taken. As Murphy J. put it in Kondis (above) (p. 689) "it is well settled that an employer has a personal, non-delegable duty, to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk". On this footing I do not consider that the third defendant, A.S.P., revealed any lack of personal care or that it unreasonably failed to take any precaution open to it to protect the plaintiff. However if the true b~sis of the principle is a vicarious \ liability for the acts of the other contractors, based on the ! mere fact th~t the employer permitted its employee to work in -- 27 of 61 -- 24 proximity with other contractors whose negligence in a potentially dangerous situation caused injury to the plaintiff, then the plaintiff would obtain judgment against his employer along with the contractors. If that is the basis of such a judgment, the employer should, in my opinion, be able in due course to recover 100 per cent contribution from the active tortfeasor or tortfeasors. As Wilson and Dawson JJ. in Stevens v. Brodribb express a preference for a personal basis of liability rather than a vicarious one, I shall act on that view. I do not consider that the servants and agents of A. S. P. were individually or collectively guilty of personal fault or negligence. I need not pursue this topic at greater length here. It seems to me that the operative negligence was that of the servants or agents of U.S.R.S. and the P . B. A. , and that in the circumstances A. S. P. did not fail to take any step that it ought to have taken in relation to the safety of the plaintiff. It is not suggested that A.S.P. should have supplied a mentor who should follow the plaintiff about and warn him of danger or pull him away from danger whenever it might appear. No-one associated with A.S.P. was in any position where he could in any real sense control or direct the way in which the work of the contractors was to be performed. I do not consider it has been proved that A.S.P. ought reasonably to have foreseen that the plaintiff would be I exposed to a risk of in~ury by moving around the dry dock floor looking at salt water injections and checking on the I wear of items removed from the tail shaft. -- 28 of 61 -- 25 Port Authority By-Laws The P.B.A. in its defence pleaded an immunity from liability for any loss or damage whatsoever occurring during the use of the dry dock, pursuant to By-law 12 of the Port of Brisbane Dockyard, Cairncross - By-laws 1977. These by-laws were made pursuant to the Port of Brisbane Authority Act 1976, apparently pursuant to s. 17 of that Act and also under the Harbours Act 1955 (s. 98). By-law 12 states: "12. 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 entering, leaving, or occupying Slipway or Fitting Out Wharf; vessel while the Dock or (b) which may be occasioned by delay in docking or undocking or slipping or unslipping or berthi_ng 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." It may be noted that with respect to the claims of the other / defendants, the P.B.A. has pleaded By-law 12 and two additional by-laws namely By-laws 25 and 35A. The painters and dockers, and others who work at the Port \ of Brisbane dockyard wouid, I think, be very surprised to learn that whilst working :at that site they are deprived by by-law of the right to common law damages for the negligence -- 29 of 61 -- 26 of their employer. Various statutes are in force providing a comprehensive system that recognises the rights of employees to obtain such damages, and which provide for funds to ensure the payment of such damages. They include the Workers' Compensation Acts, and, to the extent to which vehicles may be involved, the Motor Vehicles Insurance Acts. Mr. Hampson initially submitted that the by-law is "completely general" but later submitted an alternative reading down of the by-law so that it applied only to people who enter the dock with or in relation to a ship. In other words he submitted that the by-law should be read in the context of liabilities that arise because a ship has entered the dock, in which case it would not apply to claims by the authority's own employees, but would apply to workers such as the plaintiff. Reference was made to Fitzpatrick v. Jackson (1989) 2 Qd.R. 542 where a wide coverage was given to the word "damage" ins. 95 of the Public Trustee Act 1978. However the statutory context in that case was very different and I do not think that it is of assistance in construing the effect of By-law 12. Lengthy submissions were made on behalf of all parties on this issue, but I do not think it useful to discuss them at length. I shall simply state my conclusion that By-law 12 (and indeed the other by-laws to be mentioned later including 35A) are drawn in a commercial context. One does not need extensive knowledge of merchant shipping law in order to know that very large claims caJ result from relatively minor delays \ and detentions, and in the context of by-laws that are ! necessary or convenient for the carrying out of the objects of -- 30 of 61 -- 27 the Harbours Act and the Port of Brisbane Authority Act a by-law to protect the authority from claims of this kind is to be expected. The by-law does not intend to destroy the common law rights of injured workmen who have the misfortune to be injured whilst working at that place. In short I read By-law 12 as having no application to claims for damages for personal injuries. I consider that clearer words than those contained in By-law 12 would be needed before such well recognised common law rights should be construed as having been taken away. Contributory Negligence The plaintiff and his colleagues were close to the activity that was being carried out by the riggers and Mr. Saunders, and this probably went on for about 10 or 15 minutes. He was quite close to the cable, probably somewhere between four and six metres away. It was an area and a situation where there was a general need to watch out . He was familiar with the sequence needed for removal of a propeller. He and his group were not active workers and were there in effect for surveillance or inspection. Others had a duty to look out for him and to take reasonable precautions to avoid injuring him, but I am presently concerned with his duty to look out for himself. I think that in such a situation there was a reasonably high duty in this regard, and that the absence of need for any strenuous physical activi~y or of constructive work on his behalf served to enhance that duty. It was reasonably ! foreseeable to him that others engaged in physical activity -- 31 of 61 -- ,r 28 might fail to look after him just as it was reasonably foreseeable to the other workers that the plaintiff might not look out for himself. Mr. Ellis and the others had no difficulty in knowing of the presence of the plaintiff and his group and equally the plaintiff and his group should have had no difficulty in knowing of the presence of Mr. Ellis and the various other workers on and off the scaffolds in that particular area. The activities of those workers in fastening the cable to the propeller and the activity preceding its connection to the hook of the crane followed by the order to take up the slack must have been available to be seen by the plaintiff, and the others in his group, if they had bothered to look. The plaintiff seems to have taken notice of nothing other than the lignum vitae, his companions, and the fitter on the scaffold who had knocked out the pieces of timber. He saw no cable on the ground and nothing of the preparations or fastening of the cable or the commencement of the operation of the crane. He was not aware of the shouted orders to take up the slack, although very close to the operation. I accept that there was some background noise, but not of such a level as to make the statements of Mr. Ellis and others inaudible. In these., circumstances I think that the plaintiff was guilty of some fault in failing to have due regard to his own safety and that there should be a finding of contributory negligence. Essentially \it was a failure to keep a proper lookout over a fairly extended period when the need to keep a I reasonable lookout should have been apparent. I have no doubt -- 32 of 61 -- 29 that if he had looked and seen the obvious preparations to lift the cable which might swing into the nearby scaffold of even close to the position where they were standing, he would have moved to a safe place which was probably only a few metres away. In the circumstances I apportion responsibility of 15 per cent against the plaintiff and 85 per cent against the defendants. Contribution Between the Defendants (a) Port Authority By-laws By-law 12 has already been discussed. states:- By-law 35A "Any person wishing to use or hire plant or equipment from or be supplied with services by the Authority, for use within the Dockyard shall undertake such use, hire or services in accordance with the conditions contained in Schedule E hereto." Schedule E is headed "Conditions Applicable to Hire of Plant, Equipment and Services". All conditions in that schedule refer specifically to the "hire" of plant or equipment, and some also refer to services. The one relied upon by the P.B.A. is (v). "(v) The Authority will not accept any responsibility whatsoever for any accident which may arise out of or be incidental to the use or transportation of any plant or equipment during the period of hire. The Hirer will be held responsible for all damage which may occur to the plant or equipment during the period of hire, fair wear and tear expected." Some of the conditions ofviously apply only to the hire of plant or equipment, such a~ condition (iv) which requires them to be accepted in "as is" condition. -- 33 of 61 -- 30 The P.B.A. 's letter of tender stated "the prices are rendered under By-law numbers 26 and 31 (i) of the Port of Brisbane Dockyard, Cairncross, By-laws and the conditions of these prices include all relevant conditions imposed by those by-laws". (My underlining). I take those words to refer to the designated by-laws namely numbers 26 and 31 ( i). It is possible that it is a reference to all the by-laws, but it seems to me that the only reference is to "By-law numbers 26 and 31(i) of the by-laws" and that the later reference to "those by-laws" is to those particular ones. Further, the context is a reference to "the conditions of these prices" and the subject matter of By-laws 26 and 31(i) expresses conditions that can affect the application of such prices. I therefore conclude that the by-laws as a whole have not been introduced into the contract between the P.B.A. and A.S.P. The question remains whether they operate to affect the rights of A.S.P. and U.S.R.S. by their force as public law. Mr. Hampson submitted, on behalf of the P.B.A., that By-law 35A, along with Schedule E, refutes any legitimate expectation of care on the part of the authority, and that they prevent a duty of care from arising. Alternatively it was submitted that it would make it "just and equitable" under the Law Reform (Tortfeasor's Contributory Negligence and Division of Chattels) Act of 1952 to order zero contribution by P.B.A. with respect to claims against P.B.A. by U.S.R.S. and by A.S.P. I To the exeent to which the submission proceeds \ on the footing that this is a disclaimer of liability of which ! due notice is given to the parties, I do not think it is ; ( -- 34 of 61 -- 31 maintainable. Its wording is not sufficiently clear to avoid liability for negligence, in line with the usual construction of such clauses (Graham v. Royal National Agricultural (1989) 1 Qd. R. 624, 628-629; Davis v. Pearce Parking Station Pty. Ltd. (1954) 91 C.L.R. 642). There are other reasons why this by-law fails to protect the P.B.A. from the present claims of contribution. It may be doubted whether the relevant staging was in "use" at the material time, or that the accident arose out of or was incidental to its use. at the material time. It was not being transported or used Further, so far as U.S.R.S. is concerned, it was never a "person wishing to use or hire plant or equipment from or be supplied with services by the authority". Furthermore, for reasons similar to those given earlier with respect to By-law 12, I do not interpret By-law 35A and Schedule E as intending to apply to claims of damages for personal injuries, or to claims· consequential thereto, such as the present contribution proceedings under the Law Reform (Tortfeasors, Contributory Negligence and Division of Chattels) Act. ( b) Whether P. B. A. 's Employees were Borrowed Servants under the Control of U.S.R.S. At common law the general employer has a heavy onus in proving that his servant became the servant pro hac vice of another when temporarily \1ent to that other (Mersey Dock & Harbour v. Coggins (1947) A.C. 1; Karuppan Bhoomidas v. Port : of Singapore Authority ( 197"8) 1 W. L. R. 189). -- 35 of 61 -- 32 However Mr. Hampson submitted that the P.B.A. was not on the day in question the general employer of the painters and dockers, or of the crane driver and dogmen who usually worked for it. He pointed to the circumstance that the painters and dockers were casual workers selected by the Union after notification was received that they would be required for overtime work on the following day. He submitted that in the circumstances they were exclusively assigned to U.S.R.S. for the particular job on that day. Much evidence was addressed to this aspect of the case, but in the end I have no doubt that such workers remained for all relevant purposes employees of the P.B.A., and were subject to the direction and control of the P.B.A. The preponderance of the evidence is that on the day in question such workers performed duties for P.B.A. over and above those of the P.B.A. pursuant to its contract with A.S.P. Plainly the division of this work was a partial performance by P.B.A. of its obligations to A.S.P. to provide necessary cranage etc. in association with the propeller and tail shaft. It is difficult to see that its work on a Saturday took on any different character than its work on other days. The P.B.A. 's chain of authority was still in place. The main difference in,relation to Saturday work was that there was not so much other P. B. A. activity for the P. B. A. employees to perform as there was on other days. Mr. Macdonald (a P.B.A. employee) was the only pefson with the authority to tell the painters and dockers what to do. He could tell them when to do it, how many men to use, what equipment to use and -- 36 of 61 -- 33 generally how to carry out the work. Such authority did not exist on the part of any person associated with U.S.R.S. They could merely make a request for the provision of staging. Naturally in making the request they would indicate where they desired the staging to go, but the movement of the staging and its fixation was then a P.B.A. activity. The same may be said of the P. B. A. dogmen who gave the necessary signals to the crane driver to take the slack out of the cable. They necessarily co-operated with the U.S.R.S. workmen, but were not subject to their directions. They did not become borrowed servants subject to the command of U.S.R.S. I hold that there was no assumption of vicarious liability by U.S.R.S. with respect to the P.B.A. employees (cf. Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1985-1986) 160 C.L.R. 16, ~~E 29, 33, 35; Bhoomidas (above) at p. 194). (c) Apportionment of Blame The above findings of negligence against the P.B.A. and U.S.R.S. entitle the plaintiff to judgment against those parties, but not against his employer A.S.P. It will be recalled that I have expressed some hesitation with respect to that last conclusion. However the conclusion is that having been sued it , is not liable in respect of the same damage ( cf. s. ·5 ( c) of the Law Reform ( Tortfeasors, Contributory Negligence and Division of Chattels) Act). Accordingly the I • question of ! resolved between P.B.A. and U.S.R.S. contribution falls to be -- 37 of 61 -- 34 The fault of the P.B.A., by its employees, was in a sense cumulative. Its stagehands set the scene by creating the potential danger adjacent to the area where work might proceed. Then, with the plaintiff and others nearby, its dogmen gave the signals which led the crane operator to tighten the rope causing it to swing. The fault of U.S.R.S., by its employees, was that of the riggers who helped fasten the cable to the propeller and who then issued the request or instruction to remove the slack. Mr. Gibson Q. C. for U.S. R. S. submitted that the dogmen -were more responsible for this phase of the activity than the riggers, because the dogmen were "in charge" of the lifting operation which was the immediate cause· of the incident. However, on this aspect of the matter I regard the riggers and the dogmen as equally culpable. Each of them ought to have contemplated the risk to the plaintiff and to have avoided it. Each had an equal opportunity of doing so. In the result, when account is taken of the initial responsibility of the P.B.A. for leaving the staging where it was, I apportion responsibility between these two defendants as to 60 per cent against the P .B.A. and as to 40 per cent against U.S.R.S. The apportionment between the respective defendants would remain the same even if I had given judgment for the plaintiff against all three defendants, including the employer (A.S.P.). I The judgment against A.s.r. would be on the footing that as employer it remained responsible to the plaintiff for the I condition of the workplace, even though it had no right to -- 38 of 61 -- 35 remove the staging or to require others to remove it. Because of the absence of personal fault on the part of A. S. P. 's servants, and the difficulty in introducing any practical and reasonable system that could have avoided the accident, the employer's liability would in substance be a form of substituted liability for the faults of others. That is of course another way of describing vicarious responsibility for the acts of persons other than its own servants and agents. On that basis a proper apportionment between all three defendants should give A.S.P. the benefit of 100 per cent contribution against the active tortfeasors. This result could be framed in a number of ways but the practical result would be met by an apportionment between the three defendants of 60 per cent against the first defendant, 40 per cent against the second defendant and nought per cent against the third defendant. Damages The plaintiff was born on 25th October, 1947 and was 36 years old at the time of his accident . ( 28th July, 1984). He left school at age 13 and had a constant association with the Merchant Navy, and with the volunteer Naval Reserve. By age 21 he was working in State Ships as a junior engineer. By 1971 he had ,obtained a second engineer's certificate. He became qualified for a first engineer's certificate in 1976, but had not attained the status of first engineer by the time of the accident. That hbwever was his ambition and it was '· clearly realisable within the short-term future. Before the -- 39 of 61 -- 36 ·accident he had briefly acted as chief engineer when seconded to duty on leave. At material times he lived in Perth. His roster required him to serve on a vessel for six or eight weeks, followed by an entitlement to six or eight weeks' off duty. However not infrequently duties would be undertaken during the off-period. On the occasion in question he had been on leave at Quinana when a message came that he was needed at Sydney. He flew to Sydney and joined the "B. P. Endeavour" there. He remained with the ship when it came to Brisbane for its overhaul in the dry dock. There were only two areas of injury. The first was a fracture to the left ankle. This was a discrete injury and does not present any particular problem in the assessment of damages. It is not suggested that in itself it presents any serious level of disability or that it took an unduly long period to mend. The difficulties in the case arise out of the injury he sustained to his back. He was struck in the lumbar region by part of the falling scaffold and thrown clear. Hospital notes confirm that an abrasion was susta:i:ned. I am satisfied that there was also bruising to this area, and that the bruise became increasingly visible over the ensuing weeks. A great deal of medical evidence was called in relation to the back injury and its consequences. Plainly he suffered only soft tissue damage.\ Despite this, he has, since he \ returned home on 2nd August, 1984, continued to complain of \ extreme pain and extensive disability. He symptoms have -- 40 of 61 -- 37 extended to include other areas of his body. returned to work and he claims to be unemployable. He has never He consulted a variety of doctors in Perth, including more than one rehabilitation specialist. I note that by January 1986 Dr. Finch had suggested that light shore work was "very desirable". More than one doctor expressed a suggestion that he needed to get back into the work force. Towards the middle of 1986 a brace was prescribed which he wore for some months. He then complained of left shoulder pain radiating down his left arm. In May 1986, upon his complaining of such pain Dr. Hardcastle asked him to remove the brace and when he did the pain subsided. It is uncertain precisely when he discontinued using the brace, but in any event, upon its discontinuance the additional areas of pain in the left shoulder and arm remained. present day. He complains of these to the Most of the active treatment in relation to his back was undertaken between 1984 and 1987, much of this by Dr. Hardcastle. This included taking various drugs, various exploratory proced:ures, a rhizotomy, a myelogram, and some facet injections. The only relief that is recorded followed the facet injections or "facet blocks". This relief was noted particularly in March 1986. At that stage Dr. Hardcastle attempted to assist his return to duties by writing to his employer stating that he would be fit for light duties. He commented that he would b~ able to do ordinary work so long as he did not have to lift more than five kilograms or undertake bending activity, and that "he is able to sit and walk round -- 41 of 61 -- 38 and so should be able to perform a number of the jobs that would be available on board a ship, particularly if it involves supervising". Unfortunately his employer did not respond positively to this initiative. One is not critical of the employer, as it may well be undesirable to contemplate "passengers" in the role of an engineer upon a sea going vessel. Be that as it may, there is little doubt that the plaintiff felt let down, and resented the failure of his employer to take him back in a position acceptable to him. There is a psychiatric component in the plaintiff's problems. His father and 9randfather before him had pursued lifelong careers at sea, and he intended to do likewise. He had planned his life along a single career pattern and found it very difficult to come to terms with anything else when that pattern was interrupted. He was a good engineer and was described by some as a perfectionist. Dr. Skerritt, a psychiatrist, considered that his self-image had been injured and that this contributed to his depression. He observed:- "It is quite possible that his depression itself is contributing to his experience of pain." and that:- "One might anticipate that any rehabilitativeefforts will be more easily achieved once his depression is thoroughly controlled." He suspected that "even at his best, he will be unable to work I physically at the level w~ich he previously enjoyed". He did not think the plaintiff would ever rejoin the workforce. The ! plaintiff did not make contact with Dr. Skerri tt until five -- 42 of 61 -- 39 months before the action came on for trial. At that time (June 1991) he was in a significantly depressed condition, taking excessive quantities of pain killers, and was showing signs of feelings of worthlessness, inability to concentrate, suicidal ideation and suffering from insomnia. As the result of change of drug therapy a considerable improvement occurred in the ensuing months. Within a few months there had been a return of some warmth in relations with his family, he smiled occasionally and revealed less irritability. There is reason to expect further improvement in his psychiatric condition after the conclusion of the litigation, and as this factor seems to have something to do with his pain, or his belief in pain or his response to perceived . pain, some corresponding partial relief in those problems might also be expected. There is a considerable conflict of medical evidence in this case. A number of doctors ( including Dr. Adam, Dr. Finch, Dr. Stewart and Dr. Robinson) accept the existence of serious pain in consequence of physical injury, despite the relative absence of objective evidence of physical injury, and they conclude that the plaintiff will never return to gainful employment. On the other hand Ors. Reid, Morgan and to some extent Dr. Weidman find it impossible to justify any physical basis for the .. continuation of the symptoms and consider that the complaints are substantially accountable by reason of the litigation. In the end I have decided to act upon the views I of Dr. Hardcastle anq_ I find further support for Dr. Hardcastle' s main premise in the views of Dr. Morgan. Dr. Hardcastle is a well qualified expert in the field of -- 43 of 61 -- 40 spinal complaints. 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. In Dr. Hardcastle's view prior to the accident the plaintiff was afflicted with arthritic problems which had not to that time produced symptoms, but which would inevitably produce them in the relatively short term by natural progression and the ordinary knocks of life. The soft tissue injury he sustained in 1984 produced symptoms and caused an aggravation of his pre-existing condition. The acceleration of the degenerative change brought about by the injury (which is a different matter to the onset of pain and symptoms) was not very great, Dr. Hardcastle considering that it has been brought forward by only one or two years in terms of the underlying pathology. An opinion as to the extent to which the sustaining of these soft tissue injuries brought forward the manifestation of his arthritic symptoms is a difficult matter. In the end Dr. Hardcastle expressed the opinion that the accident probably brought forward the onset of his disabling symptoms by between 1 0 and 15 years, favouring, as I interpret his evidence, the shorter period. The evidence concerning x-rays is not altogether satisfactory, and the destruction of the Princess Alexandra I Hospital x-rays, along witp conflicting notations, and on some points the absence of notations in the records of that : hospital make it very diffi·cult to attribute any weight to the -- 44 of 61 -- 41 report concerning that particular x-ray. In the end I think Dr. Hardcastle's analysis of the available x-rays provides the best evidence and I am prepared to act on it. Dr. Hardcastle's conclusion finds further support in the recorded history in relation to the onset of the symptoms in his neck and shoulder. It is not suggested that he suffered any injury in the neck at the time of the accident, yet in 1986 he suddenly developed symptoms in the neck and shoulder without any particular trauma. Indeed it seems to be accepted that the symptoms followed his wearing of the prescribed brace for his back. Dr. Hardcastle observes that the only possible trigger for the onset of those symptoms was his "slight alteration in posture". He then observes "if with slight alteration in posture you are going to make something symptomatic it was going to happen at any rate". That observation seems sensible and acceptable. The plaintiff would seem to have been a susceptible individual to whom only a slight event (or relatively short term natural progression) was likely to make symptomatic his degenerate condition, whether in the lumbar or cervical spines. Dr. Morgan took a similar view, although his opinion was that the plaintiff's degenerate condition would have occurred far more quickly than the 10 to 15 years opined by Dr. Hardcastle. He considered that the plaintiff had a natural relentless progressive condition and that it would I have produced symptoms e~ual to the present ones by 1990 (i.e. within six years) quite apart from the occurrence of the accident in question. He considered that the accident -- 45 of 61 -- 42 temporarily produced symptoms and that this focussed attention upon them. 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 10 to 15 years (and much closer to 10 than 15) have been in a position comparable with his present one so far as pain and disability are concerned. The extent of likely psychiatric inter-reaction with the onset of these symptoms is somewhat speculative, but Dr. Skerritt agreed that he was susceptible to the 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. The plaintiff has since the accident developed a fairly miserable lifestyle. He sleeps poorly and usually rises by 6.00 a.m. Most weekdays he drives his children to school (which involves driving for about half an hour). His back is always stiff and "achy". He will often do a little weeding or spend time with birds which he breeds in a small way. He reads a little including ~gricultural journals. Sometimes he will pot a few cuttings and sometimes assist with cooking. He lies down a good deal and is usually on the settee to watch -- 46 of 61 -- 43 the news at 6.00 p.m. His daughter is now 17 and his son 15. His family life degenerated somewhat under the stress of his altered attitudes and lifestyle, although as noted earlier the relationship is now appreciably better since Dr. Skerritt altered his medication. It is difficult to predict what the future holds for him. Even with the expectation of some improvement after the litigation, he is not likely to return to any useful form of employment, and no feasible suggestion could be made by counsel for the defendants on this score. He does however have some capacity to contribute to a family business if he chooses to promote one after he receives the relatively substantial award which will result from this litigation. Once again it is impossible to be specific, and the answer will depend very much upon his motivation. He certainly has the capacity to contribute in a supervisory way to any venture, and the prospect of his assisting or contributing to work of the assessing kind in marine insurance, or relating to marine survey is a possibility but no more than that. He simply has not tested the water so far as any return to gainful work is concerned in the seven years since the accident. So far as physical consequences of the accident are concerned he is to be compensated for a fractured ankle which, of itself has not produced any particularly significant I disability; and for the adceleration of serious back symptoms, \ which acceleration should be rated as somewhere between 10 and I 12 years, associated with a related psychiatric condition -- 47 of 61 -- 44 which is primarily a response to the pain associated with his back condition. I shall as far as possible take a period around 11 years. So far as the additional symptoms associated with his neck and left arm are concerned, it is true that the symptoms initially appeared as a secondary consequence of treatment for a consequence of his primary injury. It would seem that these consequences must also be regarded as having been accelerated, but to have been inevitable in due course, quite apart from the present accident. It will certainly not err against the plaintiff if I link these symptoms with the acceleration of his back condition and treat them as having been similarly accelerated in consequence of the accident. I have been assisted in the quantification of the various heads of damage by substantial submissions from all counsel. Pain and Suffering and Loss of Enjoyment of Life This must compensate him essentially for the effect upon his life between 1984 and 1995. By that time, on the findings which I have made, he would by natural causes have been suffering from disabilities similar to those of which he now complains. In short, instead of being forced into premature retirement at age 47, he was forced into it by this accident at age 36. He did not have the satisfaction of becoming a chief engineer in his own right, and such a period would in all probability have been one of considerable satisfaction to him. His work was a very important part of his life, and his suffering over the past 11 I years has been of a high order. His lifestyle is miserable and he has given up most of the ( pursuits in which he formerly participated with his family. -- 48 of 61 -- 45 On the other than the award must recognise that it is not compensation that the defendants are required to pay to cover the whole of his life. heading. $45,000.00 is assessed under this Past Economic Loss Some difference results according tq whether the assumption is made that he would have continued to work on a tanker or a dry cargo vessel. Certain economic advantages attach to the former. It is a factor that depends to some extent upon the ships that are in commission at the time, and it is not a factor that would have been entirely within the plaintiff's own keeping. His case is that he would have become a chief engineer by 1 st May, 1986. Assuming he had, there was a good chance that it would have been on a dry cargo vessel. There are equally good chances that he would have managed to get back onto tankers before now. After his accident he was paid salary until 1 st May, 1986, and after that for a time he received payments from the Seamen's Compensation Fund and a supplement from his superannuation fund bring his receipts up to 75 per cent of salary. At the end of 1988 or early 1989 he received a substantial superannuation payment (about $306,000.00), upon which weekly benefits from that fund ceased. He also received further payments of seamen's compensation, but these have now finished. I The question arises as to which of the payments received \ by him between accident and trial are deductible. Apart from -- 49 of 61 -- 46 the lump sum superannuation he received the following payments from the following sources:- (a) Payments under the Navigation Act (b) Payments under Seamen's Compensation Act (c) Award make up payments (paid by employer pursuant to cl. 20 of award - ex. 47) (d) Ex gratia payments by employer (paid with fortnightly pay to bring payments up to normal salary) (e) Superannuation Fund Temporarily Disability payments Total $12,358.38 $105,795.20 $15,974.50 $34,832.38 $51,806.07 $220,766.53 There was no consensus as to whether the benefits received under the Navigation Act ( in (a) above) are to brought into account in assessing the plaintiff's damages. There is no provision requiring such benefits to be repaid, as there is for example in relation to benefits such as seamen's compensation or under most workers' compensation acts. It seems to be a kind of sick pay, and the relevant section speaks of the workman being "entitled to receive wages" (s. 132). It seems to me that to the extent to which the plaintiff received these payments, he did not suffer a loss of earnings. They are payments in lieu of wages or equivalent to sick pay, and are not subventions qf the kind referred to in National \I Insurance Co. of New Zealahd Ltd. v. Espagne (1961) 105 C.L.R. 569 where the receipt is t~eated as being for the benefit of a plaintiff and not as an alternative form of earnings. In my -- 50 of 61 -- 47 view these payments must be brought into account in reduction of this head of damage (cf. Graham v. Baker (1961) 106 C.L.R. 340). It is common ground that the payments ( in (b) above) under the Seamen's Compensation Act are not to be brought into account. They will be repayable by the plaintiff out of the judgment monies. They will of course be relevant in the assessment of interest, but that will be taken account of later. The award make up payments (in (c) above) are plainly to brought into account. So are the "ex gratia payments" (in (d) above) during the time when the employer saw fit to make up the difference in his wages. The superannuation fund payments (in (e) above) were made pursuant to a superannuation trust deed and this seems to me to be an independent benefit which the plaintiff is entitled to keep. It would be inappropriate to bring it into account in reduction of his loss. Accordingly the total of the receipts between accident and trial which should be brought into account is $63,165.26. Counsel for the plaintiff submitted, on the basis that the plaintiff would have been promoted to chief engineer in May 1986, for. total earnings between accident and trial of $284,777.00. Counsel for P.B.A. submitted, on the footing of three years' earnings as second engineer up to 1st May, 1986 I and then at chief engineer's rates on a dry cargo vessel \ thereafter, for total earnings of $245,000.00. Similarly \ submissions were made on behalf of the other defendants, along -- 51 of 61 -- 48 with submissions that there should be a reduction for contingencies. The plaintiff's counsel also submitted alternative calculations based upon less favourable premises. On the assumption that he had remained fit and able to work with his then employer for the entire period between 1984 and 1991 I assess his probable nett earnings would have been in the region of $260,000.00. When one deducts the above receipts, one is left with a figure around $197,000.00. The contingency of non-retention of full employment, or a change of direction seems fairly low in the present case, but full employment over such a long period was by no means a certainty and some reduction should be made in respect of it. I would assess his loss of salaries and allowances during the relevant period to be of the order of $190,000.00. He must also be compensated for a loss of earnings in the Naval Reserve during the same period. His prospects of promotion were good. His likely maximum earnings over the relevant period (tax free) were $13,333.00 (ex. 51). There is a small contingency that his interest may have diminished as his family commitments increased. for this loss. I would assess $12,500.00 A further claim was maintained in respect of loss of a benefit known, as fuel rebate ( see ex. 16). It is a 25 per cent rebate on the cost of fuel used in the plaintiff's car or cars. He continued to receive this until June 1987 and claims that the benefits between\that time and June 1991 would have \ totalled $3,400.00. Some confusion was revealed in the : plaintiff's evidence on this point, but his claim is that this -- 52 of 61 -- 49 would now have been worth about $1,000.00 per annum to him. That presupposes fuel bills of $4,000.00 per annum. This implies a usage of about 65,000 kilometres per year, which seems rather high having regard to the proposed habits and lifestyle mentioned by the plaintiff. For the period for which an assessment should be made in the future for this item I shall allow $600. 00 per annum; and with respect to the period 1987 to the present damages will be assessed at $3,000.00. I do not understand any other items of past economic loss to have been claimed. follows:- Accordingly it will be assessed as Loss of salary etc. Loss of Naval Reserve earnings Loss of fuel rebate benefits Total Future Economic Loss $190,000.00 $12,500.00 $3,000.00 $205,500.00 The base rate for a chief engineer at present on a tanker (including tanker allowance) is $968.00 nett per week. That on a dry cargo vessel is approximately $790.00. The prospects that he would have been a chief engineer on a tanker by the present time are very good, and I shall project his likely , earning rate at a figure of $950.00 nett per week. On the basis of the above findings, he should be further compensated for a further four years, but not beyond. I think \ that the contingencies I in relation to this assessment virtually cancel out. Cer~ainly, no further allowance for the uncertainty of the finding (on the reasoning in Malec v. J.C. -- 53 of 61 -- 50 Hutton Pty. Ltd. 169 C.L.R. 638) needs to be made in view of Dr. Hardcastle' s strong views about the likelihood of the plaintiff having reached this state by this time or sooner. In other words the prospect that the error is in favour of the plaintiff seems at least as strong as the prospect that it errs against him. However, al though no submi.ssions were addressed upon the point, it seems to me that the plaintiff would pr6bably have obtained some economic benefit as a home handyman. The loss of some such savings over the relevant period needs to be remembered when one takes a broad view of the question of economic loss. This assists me to decide upon a figure that gives him an assessment of full economic loss of $950.00 per week for the full four year period but of course no loss thereafter. Taking into account the present receipt of monies, and an actuarial calculation based upon five per cent interest, this comes to $180,500.00. The future loss of Naval Reserve earnings over the same period would come to approximately $7,500.00. His loss of the fuel rebate over the next four years should be assessed at $2,280.00. His residual abilities to obtain future employment or to earn income in his own right arises only in relation to the next four years having regard to the finding that after another four years his loss of gainful employment will be fairly attributable to a\ pre-existing condition. \ I do not propose to discount his award for any residual earning ! capacity, which is at best ~peculative. -- 54 of 61 -- 51 Chemist's expenses over the next four years are likely to continue at about $25. 00 per week, and will be assessed at $4,750.00. Matters of future economic loss may be summarised:- Future salary and allowances Future Naval Reserve earnings Future fuel rebate Future pharmaceuticals Total The full award may now be summarised: Pain, suffering and loss of amenities Past economic loss Future economic loss Total Interest $180,500.00 $7,500.00 $2,280.00 $4,750.00 $195,030.00 $45,000.00 $205,500.00 $195,030.00 $445,530.00 This matter took seven and one-quarter years to get to trial. There are a number of suggestions in the medical reports (including that of Dr. Robinson in June 1987) suggesting that the resolution of the litigation was important. It would seem that these reports were not exchanged with the other parties, this action having been commenced before the now familiar practice directions under R.S.C. 0. 39 rr. 29A to 29I. I think that the duty to bring this matter to trial expeditiously was greater than in the usual case and that the i~formation making this quite obvious was in the possession of the plaintiff and his advisers. It ( is not a case in which i'nterest should be allowed for the -- 55 of 61 -- 52 whole period between accident and trial. I take account of the circumstance that one unsuccessful attempt to bring the matter to trial was the result of an application by a defendant, resulting in it being heard six months later than would otherwise have been the case. Taking all matters into account I am prepared to allow interest on appropriate components for five years. In relation to the first head of damage (pain, suffering and loss of amenities) applying the reasoning in Gogic, as applied by the Full Court in Camm v. Salter (unreported, 4th October, 1991) and Jackson v. Bagwell (unreported, 4th October, 1991) apportioning 70 per cent of those damages ($31,500.00) as having been suffered between accident and trial, the appropriate amount is $31,500.00 x 5 x 4% x ½. This comes to $3,150.00. As to past economic loss, counsel for the plaintiff conceded that his client has received the benefit of the payments earlier set out, and that all these should be brought into account for the purpose of calculating interest except the payments made from the superannuation fund. I reject the contrary submission on behalf of the defendants that superannuation fund payments (whether lump sum or periodic payments) should be brought into account for this purpose. There is nothing in the reasoning of Haines v. Bendall (1991) 65 A.L.J .R. 349 that calls for the bringing to account of benefits of this kind ir\ calculating interest. The total conceded to be brought into account is $168,960.00. This was -- 56 of 61 -- 53 progressively received during the earlier part of the period of loss. The total of his past economic loss, progressively suffered over the entire period between accident and trial is $205,500.00. That assessment has already brought into account items (a), (c) and (d) of the pre-trial receipts (seep. 46 of these reasons) . However, for purposes of interest i tern ( b) ($105,795.00) also must be recognised as having been received. Thus the extent to which he has truly been out of pocket is $205,500.00 minus $105,795.00. That is to say, the monies of which he has been deprived have reached the sum of $99,705.00 by the present time. Most of this has been suffered over the last three or four years, although there was some small loss earlier than this. The loss of Naval Reserve earnings and the loss of fuel rebate benefits have for example been at a fairly steady rate of loss over the entire period. The assessment of interest on past economic loss must to some extent be arbitrary in these circumstances. The rate of six per cent should be allowed with respect to the economic loss compo~ents (see Camm v. Salter and Jackson v. Bagwell (above)). I shall allow five years on $90,000.00 at six per cent. This comes to $27,000.00. The total interest allowed will be $30,150.00. Judgments Only one of the multiple claims made between the parties 1 in this litigation presents further difficulty at this stage. \ The third defendant (A.S.P.) has counter-claimed against the ! first defendant (P.B.A.) ·and has also claimed against the -- 57 of 61 -- 54 second defendant (U.S.R.S.) not only for indemnity or contribution, but also for the "repayment of the wages and compensation paid by the third defendant to the plaintiff pursuant to the Navigation Act 1912 and the Seamen's Compensation Act 1911" to the extent that the first defendant or the second defendant caused or contributed to the plaintiff's injuries. It should be recognised at the outset that such a claim does not lie under the Law Reform (Tortfeasors, Contributory Negligence and Division of Chattels) Act, as it is not a loss suffered by the plaintiff, let alone a loss which the third defendant would be obliged to pay the plaintiff pursuant to a judgment. Questions of contribution by or against the third defendant are in any event irrelevant in view of the findings I have made absolving this defendant from negligence and responsibility. It is however pleaded that "since the plaintiff's injury ( the third defendant) has been obliged to pay wages and compensation to the plaintiff". I am therefore prepared to interpret the claim as an action per guod servi tium amisi t ( compare Commissioner for Railways (N. S. W.) v. Scott (1959) 102 C.L.R. 392, 440). So identified, there is merit in the claim to the extent to which the employer was forced by virtue of statute to make those payments, assuming t.hat such payments are not recoverable in due course by the employer. In other words the claim must be limited to those amounts that will not flo~ back to the third defendant. In my view the Seamen's Compensation Act payments will flow back : pursuant toss. 10 and 10A of the Seamen's Compensation Act. -- 58 of 61 -- 55 The same cannot be said however of the payments under the Navigation Act ($12,358.38) and the award make up payments ($15,974.50). The true basis of the ex gratia payments (mentioned in para. (d) of the ex. 46) has not been adequately demonstrated by the evidence. It was paid with the plaintiff's fortnightly pay to bring the amounts up to normal level, but it was a voluntary payment and I fail to see how it is recoverable by an employer against third parties in an action for the loss of the benefit of the services of an employee. It was not suggested that the third defendant had made the superannuation fund payments, and these were not pressed. Accordingly, the only payments contained in ex. 46 that are made out come to $28,332.88. Mr. Boulton for the third defendant further submitted that $8,810.96 proved by Miss Hendley to have been paid under s. SA of the Seamen's Compensation Act towards medical treatment should be included. Without the benefit of much assistance from counsel on this question, I am unable to conclude that it is "compensation" that will flow back to the employer along with the payments referred to ins. 10 of the Act. On the limited materials and submissions available to me I am satisfied that these monies were necessarily paid by the third defendant and that prima facie this claim is made out. There will therefore be judgment for the third defendant I against the first defendapt for $37,143.84 and judgment for the third defendant against the second defendant for ' $37,143.84, in each case with costs attributable to the making -- 59 of 61 -- 56 of those particular claims. The first two defendants will be jointly liable for that sum. Although the contribution claims do not expressly refer to this particular liability, it should be included in the judgments to be formulated concerning the rights of the first defendant and the second defendant inter se. These have been determined at 60 per cent responsibility on the part of the first defendant and 40 per cent responsibility on the part of the second defendant. Although the plaintiff will be obliged to repay compensation payments out of the judgment monies, this will be effected by charge rather than by my deducting it from the judgment. Had the judgment gone against the employer ( the third defendant) such sums would require to be deducted from the judgment, but this does not arise in view of the above findings. Accordingly but for the necessary deduction for contributory negligence there would be judgment for the plaintiff for:- Damages Interest Total $445,530.00 $30,150.00 $475,680.00 After deduction of 15 per cent the amount will be $404,328.00. There will be judgment for this sum against the first defendant and the second defendant with costs, including such costs as the plaintiff \is required to pay to the third defendant, to be taxed. There will be judgmeqt for the third defendant against the plaintiff with costs to be taxed. -- 60 of 61 -- 57 There will be judgment for the third defendant against the first defendant and the second defendant for $37,143.84 with costs to be taxed on the third defendant's claims in that behalf; there will be further orders for costs in favour of the third defendant against the first defendant with respect to the first defendant's claim against the third defendant; and against the second defendant with respect to the second defendant's claim against the third defendant, to be taxed. There will also be judgment for the fourth party against the first defendant on the first defendant's claim against the fourth party with costs fixed at $2,500.00. As between the first defendant and the second defendant judgment will be entered with respect to their claims against each other so that the first defendant is responsible to pay 60 per cent of the judgment monies (including costs) ordered in favour of the plaintiff and ordered in favour of the third defendant, and so that the second defendant is responsible to pay 40 per cent of all such sums. Liberty to apply. \! -- 61 of 61 --