Brennan v Teekay Shipping (Australia) Pty Ltd - [2019] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BRENNAN -v- TEEKAY SHIPPING (AUSTRALIA) PTY LTD [2019] WADC 53
CORAM:   BIRMINGHAM QC DCJ
HEARD:   1-5, 9-12 OCTOBER 2018
DELIVERED          :   15 APRIL 2019
FILE NO/S:   CIV 3596 of 2016
BETWEEN:   KEVIN JOHN BRENNAN
Plaintiff
AND
TEEKAY SHIPPING (AUSTRALIA) PTY LTD
First Defendant
GRACE OCEAN PRIVATE LIMITED
Second Defendant

Catchwords:

Personal injury - Negligence - Duty owed to crew of tug by ship's crew during berthing operation - Plaintiff struck by rope dropped to deck of tug from ship during berthing - Trial on liability only - Turns on own facts

Legislation:

Occupational Safety and Health Act 1984

Result:

Plaintiff's claim against first defendant dismissed
Plaintiff's claim against second defendant proved with damages to be assessed
No contributory negligence

Representation:

Counsel:

Plaintiff	:	Ms E Carlean
First Defendant	:	Mr D R Clyne
Second Defendant	:	Mr G P Bourhill

Solicitors:

Plaintiff	:	Frichot & Frichot
First Defendant	:	Mills Oakley
Second Defendant	:	Ausship Lawyers

Case(s) referred to in decision(s):

CSL Australia Pty Ltd v Formosa [2009] NSWCA 363
Leighton Contractors v Fox [2009] HCA 35
NR & RC Smith Pty Ltd v Wyatt [No 2] [2004] WASCA 110
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

BIRMINGHAM QC DCJ:

Background

Introduction

The first defendant is the owner and operator of tug boats out of Port Hedland Harbour. At all material times the plaintiff was employed by the first defendant as general hand on the first defendant's tug 'RT Tough' (Tough).
On 17 August 2014 the second defendant was the owner and operator of the 300,000 tonne bulk iron ore carrier, 'Mineral Nippon' (Nippon) transporting iron ore from Port Hedland to, inter alia, ports in China.
It is the plaintiff's case that on 17 August 2014, whilst on the foredeck of Tough to secure the tow line during the berthing of Nippon at Port Hedland Harbour, he was struck on the head by coils of rope thrown or dropped from the deck of the Nippon and thereby suffered personal injury. The plaintiff says that the injury was caused by the negligence of the first defendant and/or the second defendant.
On 2 October 2018 I refused the plaintiff's application to adjourn the trial and directed that the trial proceed limited to the issue of liability only. The assessment of the damages suffered by the plaintiff was adjourned to abide the outcome of the trial.

The issues

The plaintiff's claim against the first defendant is pleaded in negligence, breach of contract and/or breach of statutory duty arising pursuant to s 19(1) of the Occupational Safety and Health Act 1984 as follows:
13.On 17 August 2014, in the course of employment with the First Defendant, the Plaintiff was carrying out work duties as a General Purpose Hand on the tug boat 'RT Tough' to receive the heaving line rope from the 'Vessel' that was travelling on inward passage towards the Port Hedland Harbour to dock at AP3 berth. About 3 kilometres off the entrance to the Port Hedland Harbour, the Plaintiff was standing on the deck of the tug boat 'RT Tough' attempting to grab to retrieve the end of the heaving line rope hanging from the bow starboard shoulder panama of the 'Vessel', when a bunched up bundle of rope thrown or loosened from the 'Vessel' fell down and struck the Plaintiff's head and he suffered personal injury.
14.The Plaintiff was struck by the bunched up bundle of rope and suffered personal injury as aforesaid as a result of the negligence of the First Defendant, its servants, contractors and/or agents.
PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT
The First Defendant, its servants, contractors and/or agents were negligent in that they:-
(a)Failed to provide the Plaintiff with a safe system of work by requiring the Plaintiff to carry out work duties on the tug boat deck whilst the bunched up bundle of heaving line rope was thrown out or loosen from the bow upper deck of the 'Vessel' above, in circumstances where they knew or ought to have known that to work on the tug boat deck posed a foreseeable risk of injury to the Plaintiff of the type sustained by him.
(b)Failed to warn the Plaintiff of the risk of injury in performing the tug boat deck hand duties.
(c)Failed to instruct the Plaintiff on how to avoid risk of injury in performing the tug boat deck hand duties.
(d)Failed to provide adequate lighting onto the tug boat deck where the Plaintiff was working.
(e)Failed to provide a safe area for the Plaintiff on the tug boat deck whilst heaving line rope was thrown or loosen from the bow upper deck of the 'Vessel'.
(f)Failed to warn the Plaintiff of the risk of injury from falling bunched bundle of rope.
(g)Failed to ensure the falling bunched heaving line rope would not come into contact with the Plaintiff working on the tug boat deck below in close proximity.
(h)Failed to provide adequate safety helmet for tug boat duties.
(i)Failed to warn the Plaintiff of the risk of injury when an employee or agent of the Second Defendant was on the starboard side bow upper main deck of the bulk carrier throwing off or loosening bunched up bundle of heaving line rope directly above the tug boat deck.
(j)Failed to provide information, instruction, training and supervision of the Plaintiff as was necessary to enable him to perform the deck hand duties in such a manner that he was not exposed to the risk of injury.
(k)Maintained and operated unsafe system of work for handling of heaving line rope from 'Vessel' to the tug boat.
(l)Failed to give instructions to the Second Defendant, its servants and/or agents not to throw out or lessen bunched up bundle of heaving line rope from the upper deck of 'Vessel' into the vicinity of the Plaintiff working on the tug boat deck below.
(m)Failed to instruct the Plaintiff not to work on tug boat deck whilst the Second Defendant, its servants and/or agents was throwing or loosening bunched up bundle of heaving line rope onto the tug boat deck below.
(n)Failed to give any safety instructions or warn the Second Defendant, its servants and agents not to throw or loosen bunched up bundle of heaving line rope until the tug boat deck was clear.
(o)Allowing the bunched up bundle of messenger heaving line rope to strike the Plaintiff.
(p)Failed to keep any or a proper look out of the presence of the Plaintiff.
(q)Permitting and allowing the Second Defendant, its servants or agents to throw or loosen the bunched up bundle of heaving line rope into the path of the Plaintiff working below when it was unsafe to do so.
(r)Failed to ensure that whilst working on the tug boat deck, the Plaintiff was not exposed to danger, hazard and risk of injury.
(s)Failed to provide the Plaintiff with the means of direct communication with the deck crew of the 'Vessel' such as mobile telephone whilst transferring heaving line rope to the tug boat deck below.
(t)Failed to maintain and establish a procedure for the safe transfer of heaving line rope from the 'Vessel' to the tug boat.
(u)Failed to prevent risk of injury to the Plaintiff in performing the tug boat deck hand duties by the adoption of any other alternative system of work.
15.Further and/or alternatively, the Plaintiff was struck by the bunched up bundle of rope and suffered personal injury as aforesaid as a result of the breach of statutory duty of the First Defendant, its servants, contractors and/or agents.
PARTICULARS OF BREACH OF STATUTORY DUTY OF FIRST DEFENDANT
The First Defendant, its servants, contractors and/or agents have breached section 19(1) OF THE Occupational Safety & Health Act in that they:-
(a)The Plaintiff relies upon and repeats the particular of negligence pleaded in paragraph 14 of the Statement of Claim.
16.Further and/or alternatively, the Plaintiff was struck by the bunched up bundle of rope and suffered personal injury as aforesaid as a result of the breach of the express or implied terms of the contract pleaded in paragraph 4 of the Statement of Claim.
PARTICULARS OF BREACH OF CONTRACT OF THE FIRST DEFENDANT
The First Defendant, its servants, contractors and/or agents have breached the expressed or implied contractual terms in that they:-
(a)The Plaintiff relies upon and repeats the particulars of negligence pleaded in paragraph 14 of the Statement of Claim as compromising particulars of the First Defendant's breach of the express or implied terms of the contract.
The plaintiff's claim against the first defendant falls to be considered under common law principles insofar as the Civil Liability Act 2002 does not apply: Civil Liability Act s 3A(1), table item 3. The plaintiff's pleaded claim in par 15 alleging breaches of obligations owed pursuant to the Occupational Safety and Health Act s 19 adds nothing. No separate cause of action arises under that Act: Leighton Contractors Pty Ltd v Fox [2009] HCA 35 [49].
The first defendant accepts that as the plaintiff's employer it owed the plaintiff a non‑delegable duty to provide him with a safe place and system of work - such obligation being to take reasonable care: NR & RC Smith Pty Ltd v Wyatt [No 2] [2012] WASCA 110 [155] – [162].
The first defendant denies that it breached the duty owed to the plaintiff.
The plaintiff's claim against the second defendant is pleaded in negligence as follows:
17.Further and/or alternatively, the Plaintiff was struck by the bunched up bundle of rope and suffered personal injury as aforesaid as a result of the negligence of the Second Defendant, its servants, contractors and/or agents.
PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT
The Second Defendant, its servants, contractors and/or agents were negligent in that they:-
(a)Failed to keep any or a proper look out whilst throwing or loosening the bunched up bundle of heaving line rope from the deck of the 'Vessel'.
(b)By throwing or loosening the bunched up bundle of heaving line rope without looking onto the deck of the 'RT Tough' when by reason of the close proximity to the Plaintiff, it was unsafe to do so and thereby created a hazard to the Plaintiff and to the risk of injury of the type sustained by him.
(c)Failed to have any or any sufficient regard to the presence of the Plaintiff on the deck of the 'RT Tough'.
(d)Failed to take any notice of the Plaintiff's hand signal to stop, as he signalled his intention to retrieve the dangling hanging end of the previously lowered heaving line rope.
(e)Exposed the Plaintiff to the risk and hazard of injury or damage by throwing or loosening the bunched up bundle of heaving line rope onto the tug boat deck without ensuring that it was safe to do so.
(f)Failed to warn the Plaintiff of the intention to throw or loosen the bunched up bundle of heaving line rope from the upper main bow deck of the 'Vessel' onto the tug boat deck below.
(g)Failed to throw or loosen the bunched up bundle of heaving line rope from the upper main bow deck of the 'Vessel' in a safe manner.
(h)Failed to provide adequate lighting onto the upper main bow deck of the 'Vessel' where the bunched up bundle of heaving line rope was thrown or loosened.
(i)Failed to provide direct communication with the tug boat crew such as mobile telephone whilst transferring heaving line rope to the tug boat deck below.
(j)Permitted or caused the bunched up bundle of heaving line rope to be thrown or loosen from the upper main bow deck of the 'Vessel' and to strike the Plaintiff.
(k)Failed to prevent risk of injury to the Plaintiff by the adoption of any other alternative safety system to reduce the risk of injury whilst the Plaintiff was carrying out his duties on the 'RT Tough'.
The second defendant says the duty of care owed to the plaintiff as a member of the crew of Tough assisting Nippon was to take reasonable care under the circumstances. The second defendant says however that in discharging that duty it was entitled to rely on the independent skill and expertise of the crew on Tough attending the Nippon: CSL Australia Pty Ltd v Formosa [2009] NSWCA 363 [71] – [74], [88].
Whilst seemingly accepting that it would be liable to the plaintiff if the plaintiff's account of the incident was accepted, the second defendant disputes the plaintiff's account of the incident. The second defendant accepts that some rope dropped onto the deck of Tough but says that it was a short amount of thin heaving line and that it did not strike the plaintiff.
Each of the defendants allege that the plaintiff was guilty of contributory negligence in failing to take reasonable precautions against the risk of harm that resulted in his injury.
The second defendant further pleads that any risk created was obvious to the plaintiff such that there was no duty to warn the plaintiff of the risk: s 5O(1) Civil Liability Act 2002.
Whilst the plaintiff's fatigue was pleaded in the further and better particulars of claim as contributing to the plaintiff's injury, such matter was abandoned by the plaintiff and is not a matter for my determination.
The issue of liability depends upon the resolution of what occurred when the heaving or messenger line from the Nippon was passed to Tough during the berthing of the Nippon on the evening of 17 August 2014.

Matters not in dispute

On 17 August 2014 the weather at Port Hedland was clear and mild with 11 km per hour wind from the south: exhibit 3.
The Nippon has a dead weight tonnage of in excess of 203,000 tonnes. It is 350 m in length and has a beam of 50 m. When empty, its deck is approximately 20 m above the water line: exhibits 7, 9, 14 and 18. The vessel was then engaged in transporting bulk iron ore from Port Hedland to China.
At all relevant times the Nippon was under the command of the pilot and required to maintain a speed of approximately 10 knots whilst entering Port Hedland harbour to maintain steerage capability.
Each of the tugs engaged in the berthing operation were required to be in position near navigation marks 30 and 31 in the Hedland shipping channel and to all be made fast to the Nippon to assist in berthing by the time it had reached Hunt Point, a distance of approximately 4 nautical miles.
To assist in manoeuvring the Nippon during berthing, the tugs were to be secured to the Nippon's forward and aft bollards.
Relevantly the Nippon has bollards situated on the port and starboard bow positions and on the sides of the vessel some 60 m astern of the bow adjacent to the fairlead rollers. The fairlead rollers are on the side of the vessel at the junction of the forecastle and deck approximately 50 m astern of the bow and between Cargo Hatch No 1 and No 2 as shown on exhibits 34A and 34B.
On 17 August 2014, Tough was allocated the task of securing the tow line from the forward starboard position as the Nippon steamed toward the harbour. Tough caught up with Nippon near mark point 31 and then moved into position on the forward starboard bow lift off position such that the port side of Tough was in contact with the hull of the Nippon. Both vessels then proceeded in the channel parallel with one another at a speed of approximately 10 knots.
The procedure for securing the tow line from Tough to the Nippon is relatively routine. There are international guidelines and practices as to the manner in which the procedure is undertaken and the signals or commands that are required to be used by those engaged in the procedure: exhibit 33.
The various lines usually deployed to secure Tough to the Nippon are represented in the plaintiff's sketch: exhibit 24. The lines range in diameter from 10 mm ‑ 12 mm for the heaving line, 25 mm – 28 mm for the messenger line, 60 mm for the Tiger line and 105 mm for Tough's tow line.
Generally the process of securing a tow line from Tough to the Nippon involves the lowering of a relatively small diameter unweighted rope ('heaving line') from the Nippon onto the foredeck of Tough that is then secured to a heavier rope (messenger line) from the Tough. The messenger line is in turn is attached to increasing heavier, thicker lines and ultimately connected to Tough's tow line. The Nippon crew then retrieve the heaving line and draw the Tough's messenger line onto the deck and it is coupled to the Nippon's winch. Thereafter the tug's messenger line with the tow line attached is winched onto the deck of the Nippon where the tow line is then secured to a bollard.
The foredeck of Tough was approximately 17 m below the deck of the Nippon.

Factual disputes for resolution

The primary matter for resolution in this trial involves a narrow factual issue.
The plaintiff says he was struck on the head by a number of coils of heavy rope dropped without warning from the deck of the Nippon as he moved to secure the tow line. A member of Nippon's crew apologised to him.
The defendant says some coils of a much lighter 'heaving' rope unfurled when it was being lowered from the Nippon and landed on the deck of Tough in the vicinity of the plaintiff. The defendant says that the rope did not strike the plaintiff.
The second issue is, if the plaintiff was struck by a bundle of rope dropped from the Nippon, did the plaintiff thereby suffer injury.

The evidence

The plaintiff case

It was the plaintiff's evidence that he was on the bridge as Tough moved into position to secure the tow line. He observed that the crew of the Nippon had run a rope from the winch at the bow of the Nippon, through the forward starboard panama and then along the outer perimeter of the Nippon's forecastle to a point near the starboard side rollers on the Nippon.
The plaintiff said that Tough's captain positioned the Tough so that it was touching the hull of the Nippon approximately 7 m forward of the starboard side rollers on the ship and directly below the place where the crew on the Nippon were positioned to take the tow line from Tough. Both vessels were steaming parallel to each other at approximately 10 knots.
Upon Tough being secured against the side of the Nippon, the captain of Tough, Captain Dix, instructed the plaintiff to go onto the foredeck and receive the heaving line from the Nippon.
The plaintiff says that he proceeded to the lower deck and went to the port side of Tough from where he then signalled to the ship's officer on the Nippon to drop the heaving line. He pointed the direction and the area where it was to be dropped. At that time the Nippon crew were slightly forward of the plaintiff's position and approximately 17 m above his position.
The plaintiff says that the Nippon crew dropped the tow line, however it was not sufficient to reach the deck of the Tough with the end from the Nippon hanging about 1.5 m above the deck of Tough. As it was within his reach, the plaintiff signalled to the crew on the Nippon to stop lowering any further rope and then walked forward to take hold of the rope and secure it to Tough's messenger line. The plaintiff described the rope that was lowered from the Nippon as being 20 mm - 25 mm in diameter.
The plaintiff says that as he grabbed the rope from the Nippon and began to turn to take the length of rope towards Tough's messenger line for connection, he felt a heavy impact on the helmet he was then wearing. He said that a bundle of rope had been dropped directly on his helmet and landed on the deck at his feet. He estimated the weight of the rope to be in the order of 15 kg - 17 kg and having been dropped from a height of approximately 17 m from the deck of the Nippon to the deck of Tough.
The plaintiff says he immediately felt pain in his neck and some tingling in his hand.
The plaintiff says that he then observed that a quantity of coiled rope had been dropped onto the deck of the Tough and that some had gone into the gap between the hulls of the Tough and Nippon. As the two vessels came together the rope became jammed between them. The plaintiff says he signalled the skipper of the Tough to ease Tough off Nippon's hull and was then able to retrieve the line that had been dropped and was then dragging in the water between the two vessels. The plaintiff said that he pulled some 30 m - 40 m of rope onto the deck of the Tough.

Once the rope had been pulled onto the deck of Tough, the plaintiff located the end, went forward on the deck of the Tough and attached the rope that had been dropped from the Nippon to the messenger and tow lines of Tough. He then signalled to the crew of the Nippon to winch up the Tough tow line and signalled to Tough's engineer, Mr Cini, to pay out Tough's tow line as it was winched up by the Nippon.
The plaintiff says that as he moved from the bow of Tough back towards the door to the accommodation area of the Tough, a person on the deck of the Nippon above him raised his hand and called out the word 'Sorry'.
The plaintiff says he then went into the accommodation area and got some pain killers from the first aid kit. He said at that time he had pain in his neck and his right hand was tingling. The plaintiff then returned to the bridge of Tough and spoke with the captain and the engineer – inquiring as to whether they had each seen what had occurred. The plaintiff remained on the bridge for a short period before then going to the accommodation area, collected his iPad and then took photographs of the Nippon: exhibits 8.1 ‑ 8.4.
I pause to note that the photograph shows the tow line from Tough was passed through the forward starboard panama of the Nippon and then secured to the bollard at that location: exhibit 8.3. The defendant had originally maintained the Tough tow line had been attached to the starboard winch of the Nippon near the side rollers, approximately 50 m ‑ 60 m aft of Nippon's bow.
As the vessels proceeded to the berth, the plaintiff completed an incident report. He described suffering a sore neck and slight tingling in the right hand: exhibit 17. The plaintiff placed the report in the mail box at the tug pens that night after the berthing of the Nippon had been completed.
The plaintiff sought medical attention the following day. Upon examination the medical practitioner recorded the plaintiff as sustaining a ligamentous neck injury requiring rest and anti‑inflammatories to reduce inflammation. When the plaintiff's condition did not resolve he was referred for an MRI of his cervical spine.
For the purpose of this aspect of the trial it is sufficient to note that the plaintiff did not return to work and thereafter was reviewed and treated by a number of medical practitioners. His treatment included surgical intervention on 5 June 2015 including decompression and fusion of his cervical spine at the C5/C6 vertebrae level.
When cross‑examined by counsel for the first defendant the plaintiff readily acknowledged that the captain of the Tough was a careful and cautious skipper. The plaintiff agreed that the berthing operation was, so far as those persons on the Tough were concerned, a perfectly safe operation until the rope was dropped on him from the Nippon. The plaintiff acknowledged that there was no issue in respect of the lighting to the deck of the Tough.
Whilst the plaintiff contended that he had not received any training from the first defendant in relation to the correct berthing procedures and signals to be used, he accepted that he knew what was required of him to carry out his duties as deckhand on the Tough.
The general thrust of the plaintiff's evidence was that there was no conduct or failing on the part of the first defendant that had caused or contributed to him being injured during the berthing of the Nippon on 14 August 2014.
The matters pleaded by the plaintiff against the first defendant in par 14, 15 and 16 of the statement of claim were not supported by his evidence.
Counsel for the second defendant cross-examined the plaintiff on inconsistencies identified in previous accounts of the incident attributed to the plaintiff from time to time. The plaintiff accepted generally that he had made the statements attributed to him. It was submitted that such inconsistencies go to the credibility and reliability of the plaintiff as a witness. The matters said to be inconsistent included:
•The plaintiff's email to the MUA dated 23 August 2014 where in the plaintiff described the incident as follows (exhibit 29):
On approach we noticed the line had been walked back which was great. Once we were alongside and we were holding the speed I left the bridge and headed for the deck. I signalled the ship's crew when it was safe to throw and where and they did! The heaving line ended up dangling shoulder height against the ship! I then signalled to the crews mate to stop and grabbed the heaving line! I straightened up and was about to turn to go forward to make fast to messenger when I felt a sudden large impact on my head! I went into shock because I wasn't expecting anything else to be coming down! Approximately 15-20 m of 20mm nylon rope bundled up has been dropped! The majority on my helmet! I was only when I went to make fast I noticed the joint to the next heaving line. Which was now wedging itself between tug and ship Radio to skipper to ease tug off hull and struggled to retrieve a ridiculous amount off line from the water ...
[emphasis added]
•WorkSafe report dated 25 August 2014 the plaintiff is recorded as describing the incident as follows (exhibit 30):
Caller had an incident last week where they were working three storeys high, the tug and the ship were doing 14 knots, he had to grab a line and when he went to grab it, it fell onto his head'.
[emphasis added]
•The consultation notes taken by his medical practitioner Dr Divya Pande on 28 August 2014 wherein the plaintiff's account of the incident is noted as follows (exhibit 28):
2 weeks into last swing had an incident at 9.30pm – weight – unknown - of 20 mm rope bundle landed on head and jarred neck, had tingling. Incident report done as per protocol. (Normally only 1 line dropped, but this time a second one was dropped on his head as he tried to get the first.)
[emphasis added]
•In the report by Sonic Health dated 5 August 2016 the plaintiff's account of the incident is recorded as 'both vessels at 11 knots', that the heaving line was 'a 25 mm diameter usually 20 m long rope' that he recalled (exhibit 32):
Turning to his right to tie it [the heaving line] onto the messenger line when he was suddenly hit on top of the head and the upper back with a large 'bang'. This stunned and disorientated him. Mr Brennan recalled that he initially thought he had been hit by a falling human body such was the force of the blow. After several seconds he realised that there was an amount of rope on the foredeck and it was the rope that had fallen and hit him. Mr Brennan later estimated that the heaving line bundle which had hit him weighed approximately 17 kg and had fallen more than 10 m, estimated force 170 newtons.
[emphasis added]
Notwithstanding the inconsistencies in his account of the incident from time to time, the plaintiff impressed as a generally honest witness. Where there are inconsistencies in his evidence they are seemingly consistent with the plaintiff trying to reconstruct what happened. The plaintiff's estimates of the size and weight of rope dropped are a good example of that exercise. The plaintiff did not see the rope being dropped and could only speak of events after it struck him. Prior to that time his focus was on the rope that had been lowered and securing it to the Tough's messenger line.

Medical evidence

Two medical practitioners, Dr Jenkins and Dr Andrew Miles gave evidence on behalf of the plaintiff on the issues of causation, namely that if the plaintiff was struck by the rope did it cause him to suffer the injuries claimed.

Dr Andrew Miles

Dr Miles, a specialist spinal neurosurgeon, examined the plaintiff on 26 March 2015 and subsequently prepared a report of his observations and opinion: exhibit 44.
At that time Dr Miles had the results of the MRI scan of the plaintiff's cervical spine conducted on 27 August 2014, 13 days after the incident.
Dr Miles said that the MRI scan disclosed changes in the plaintiff cervical spine. Dr Miles said the plaintiff had pre‑existing narrowing or stenosis at C5/C6 level that had been observed in 2010. He considered that such condition was asymptomatic prior to the incident in August 2014.
Dr Miles said the MRI disclosed an acute or fresh disc protrusion that aggravated the stenosis and made it symptomatic. Dr Miles opined that the pre‑existing stenosis would not have impacted on the likelihood of the plaintiff suffering a disc protrusion.
Dr Miles opined that the pathology at C5/C6 noted was acute and a direct consequence of axial loading and sudden flexion of the plaintiff's spine that occurred when the plaintiff was struck to the head on 17 August 2014.
Dr Miles said that whilst the plaintiff was wearing a hard hat designed to protect injury to the skull, it would not assist if there was an axial loading to the spine.
Dr Miles opined that if the plaintiff was to have been struck directly on the top of his head with a bundle of rope weighing some 17 kg dropped from a height of 20 m, greater injury than a disc protrusion and injuries such as bone fractures would be likely. He noted no bone fracture was evident.
Dr Miles considered that the plaintiff's injuries were a direct consequence of axial loading and sudden flexion of the plaintiff's spine when the plaintiff was struck to the head on 17 August 2014.
I have no hesitation in accepting Dr Miles' evidence. The opinions expressed by him are largely unchallenged.

Dr Evan Jenkins

Dr Jenkins is a general practitioner practicing in occupational medicine. He was appointed to be a WorkCover WA approved medical specialist in 2012. Dr Jenkins examined the plaintiff on 5 August 2016 at the request of the plaintiff's solicitors and prepared a report: exhibit 32.
Dr Jenkins noted that the plaintiff developed neck pain and bilateral, but predominantly right hand, sensory disturbance following a flexion injury to his cervical spine on 17 August 2014.
Based on his clinical assessment and examination of the radiology Dr Jenkins opined that the plaintiff's right arm sensory disturbance was a result of damage to the spinal cord in the neck.
I pause to note that significantly the plaintiff recorded right hand sensory disturbance when completing the incident report immediately following the incident and before seeking medical attention: exhibit 17. The plaintiff's description of the physical symptoms suffered is seemingly consistent with the injury later identified in the MRI, namely C5/C6 disc protrusion.

Captain Mathias

Captain Mathias was a maritime expert called by the plaintiff.
Much of his evidence was the subject of challenge and was seemingly beyond his expertise. Captain Mathias' most recent relevant experience was as the master of a 35,000 tonne bulk carrier operating between the United States and Japan in 1988. He was unfamiliar with Port Hedland, its harbour or the procedures and protocols applicable to vessels operating in that port. His previous experience in his capacity as an expert witness on maritime matters seemingly related to appearances in the Land and Environment Court in New South Wales in relation to the widening of jetties and matters concerning marine safety on inland waterways.
Captain Mathias had no experience on the audit of ships or procedures save for involvement in the preparation of a package in relation to yachts on Sydney harbour and writing a code for white water rafting.
Counsel for the plaintiff rightly conceded that much of Captain Mathias' written report was inadmissible and accordingly struck out by agreement with defence counsel.
To the extent that Captain Mathias was permitted to give opinion evidence, it was largely confined to the extent to which each of the defendants should have undertaken a risk assessment and would thereby have safeguarded the plaintiff from risk of injury. Whilst that issue was pleaded as part of the plaintiff's case, having regard to the plaintiff's account of the incident, it has little relevance.
I place no weight on Captain Mathias' evidence in relation to any matters in issue.

First defendant's case

Captain Dix

The Master of the Tough, Captain Dix, and the engineer, Mr Patrick Cini, gave evidence for the first defendant. Each described the berthing of the Nippon on 17 August 2014 as a routine procedure. Save to the extent to which the attention of each was directed to their respective tasks during the berthing operation, their evidence largely accords with the plaintiff's account.
Captain Dix said during the process of securing the tow line, his attention was focused on keeping Tough in position with the hull of the Nippon.
As was his practice, he required all of the crew to remain on the bridge of the Tough until he had securely positioned Tough alongside the Nippon and was satisfied that it was safe for the plaintiff to go onto the deck to receive the heaving line. He said that the Tough would be positioned such that its bow would be near the break in the forecastle of the Nippon as marked by him on exhibit 34A. Upon the Tough being in position, the plaintiff was sent below to receive the line from the Nippon.
Captain Dix said that when the Tough was holding its position against the hull of the Nippon it was not possible for him to see those on the deck of the Nippon lowering the tow line due to the curvature of the Nippon's hull relative to the position of the Tough.
Captain Dix said that he later saw the plaintiff go forward to the winch on the bow of the Tough and connect the line. Whilst he did not see the rope dropped onto the deck of the Tough, he recalled seeing a quantity of rope on the deck as the plaintiff was dragging it towards the Tough's winch.
Captain Dix said that after the Nippon tow line had been secured to the Tough, the plaintiff returned to the bridge in a distressed state and said that the rope from the Nippon had hit him. The plaintiff requested Captain Dix to prepare an incident report. The plaintiff then left and was later seen taking photographs on his iPad.
Captain Dix accepted what the plaintiff has said about being hit by the rope, however at the time he was not getting a lot of information and he was focused on what he was doing in skippering Tough. It was his recollection the plaintiff said that the rope had clipped him on the helmet and neck.

Mr Patrick Cini

Mr Patrick Cini was the engineer on the Tough. Mr Cini was on the bridge of the Tough with the plaintiff and Captain Dix as the tug was positioned to pass Tough the tow line. It was his job to control the winch and the spotlight on Tough.
Mr Cini said that the plaintiff remained on the bridge until Tough had made firm contact and was alongside the Nippon. Captain Dix then instructed the plaintiff to go below to take the line from the Nippon and connect it to Tough's messenger line. He said that the light on Tough was trained onto the hull of the Nippon.
Mr Cini said that as Tough approached the Nippon he observed a person positioned between the break in the forecastle and the forward starboard panama on the bow of the Nippon holding a bundle of rope. He described how the rope came from the starboard bow forward panama lead and was carried along the railing of the Nippon to another person.
Mr Cini said that he observed that other person on the deck of the Nippon near the starboard rollers. That person was holding a rope that was dangling down like a fishing line. He described the rope diameter as being approximately as thick as an index finger.
Mr Cini said that he did not see what had occurred as the deck was below him and not within his vision.
Mr Cini said that rope from the Nippon got caught between the hulls of the two vessel. The plaintiff had signalled for the skipper to nudge Tough off to enable the line to be retrieved. He said he saw the line go slack and then drop onto the deck. He considered that there was about 10 m of rope on the deck. Mr Cini said that he did not see the incident, however saw rope sprawled abreast of the main deck and out from the bow and overboard. He said that after the line had been connected and the messenger line taken to the Nippon, the plaintiff came into the bridge, 'ranting and raving' that the line had been dropped on him. He said that he could not see anything amiss and could not see what the plaintiff was 'going on about'.
Both Captain Dix and Mr Cini impressed as truthful witnesses giving honest accounts of what had occurred. Whilst neither witnessed the rope strike the plaintiff, their evidence is largely consistent in all other respects with that of the plaintiff.

Second defendant's case

The second defendant's evidence included the affidavit and annexures of the Nippon's master, Captain Noel Dulaca sworn 5 January 2018 (exhibit 51) and the oral testimony of Captain Chris Palacios, the Nippon's Chief Officer in August 2014.
The annexures to Captain Dulaca's statement included:
•A letter to the Harbour Master dated 22 August 2014: exhibit 31.
•Document entitled 'Deck Part Accident Investigation Report' dated 17 August 2014: exhibit 36.
Each of the documents were counter‑signed by Captain Palacios.
The letter to the Harbour Master (exhibit 31) was written by Captain Dulaca in response to a request for information wherein he described the incident as follows:
During our inbound passage in Port Hedland AP3 berth, as we are about to pick the tug line in the forward starboard bow, wherein the usual procedure is to wait for the tending tug personnel for their signal, before we can give our messenger line. Because of the windy weather condition that time, after giving the messenger line, the rope bundled before reaching the deck of the tugboat about two meters hanging above the tug. Looking as if it was stuck, on to the vessel's crew who gave the messenger line pulled it up lightly then move it down back and forth to unbundle the rope, the rope was loosen but unfortunately because the tug's crew is a bit near and his is positioned on the windward side he was almost hit by the messenger line. We asked sorry to him after the incident and he acknowledged it. Nothing more serious incident happened during the rest of the duration of berthing.
The incident was a miscommunication between ship's crew and tugboat personnel but still the fault is ours.
[emphasis added]
Captain Dulaca seemingly attributed the incident, in part, to the windy conditions causing the rope to become tangled and then blow towards the plaintiff when it unfurled.
The investigation report prepared by Captain Dulaca and Chief Officer Palacios included (exhibit 36):
DESCRIPTION OF ACCIDENT
On August 17 2014 during inbound passage while ship's crew were about to pick up the tug's line at forward bow. One of tug boat personnel nearly hit by messenger line that still bundle before it reaches the deck of tug boat because of miscommunication of signalling during the operating.
FINDINGS ON CAUSES LEADING TO THE ACCIDENT
Miscommunication between ship's crew and tugboat personnel, strong wind and cold weather condition that cause the messenger line to tangled.
Each of the abovementioned documents were tendered as part of the second defendant's case pursuant to s 79C Evidence Act 1906. Save to the extent to which it is confirmed by Captain Palacios, the material provided is largely comprised of hearsay evidence.
The chief officer from the Nippon, Captain Chris Palacios, gave evidence for the second defendant. He stated that he was a master mariner and engaged as the chief officer of the Nippon in August 2014.
Captain Palacios said that prior to berthing, the master required all crew to undertake a pre‑arrival safety meeting and receive instructions from the local agents in relation to safety procedures in berthing including all signals to be obeyed. The safety meeting occurred approximately two hours before arriving on 17 August.
Captain Palacios said that it was his task to secure the tow line from Tough on the forward starboard quarter. He said he was stationed on the forecastle of the Nippon with three other crew. One crew member had the heaving line. It was a rope 10 mm ‑ 12 mm in diameter and approximately 50 m long and probably made of propylene as it was 'the cheapest available'.

Captain Palacios said that the Nippon was approximately 17 m above the deck of the Tough. He said that the tow line was to be secured to the bollard on the shoulder of the Nippon adjacent to the fairlead rollers on the starboard quarter. The fairlead rollers are located on the starboard side approximately 60 m astern of the bow, between Cargo Hatch No 1 and No 2: exhibits 34A, 34B.
Captain Palacios said that as Tough approached, he saw the plaintiff on the port side of Tough. When the plaintiff signalled to receive the line he then instructed a seaman to pass the heaving line. Captain Palacios said that when the line was thrown it was tangled and did not reach the deck of the Tough. He said it was less than a metre above the plaintiff's head. The plaintiff signalled stop and approached the dropped line. At that time the crewman on the Nippon shook the rope up and down to shake out unfurled coils in the line. Captain Palacios said that when the loops in the rope unfurled, the rope, estimated by him to be about 5 m, landed on the deck of the Tough and almost struck the plaintiff. He said that when he saw the rope land the plaintiff was upset saying 'gibberish and shouting'. The plaintiff connected the line to the Tough's messenger line, signalled and the tow line was then winched up and secured to the bollard near the rollers.
Captain Palacios said that he waved to the plaintiff and said sorry as a matter of courtesy. He was adamant that whilst the rope dropped close to the plaintiff, it did not hit the plaintiff. Captain Palacios stated that he was unaware of the allegation of the plaintiff being struck by the rope until after the Nippon had departed Port Hedland.
When cross‑examined and shown exhibit 8.3, the photograph taken by the plaintiff on the night, Captain Palacios accepted that his recollection of the events was flawed. He acknowledged that the tow line had been placed through the forward starboard panama and not the fairlead rollers as he had previously thought.
When opening the second defendant's case, counsel stated that Captain Palacios when proofed was unsure as to whether the incident occurred on the inbound or outbound journey and the relevant height between the two vessels but recalled the incident clearly. Captain Palacios expressed no such uncertainty when giving evidence before me until shown exhibit 8.3.
In the end I was left with the impression that Captain Palacios' recollection of the incident was, at best, a reconstruction based on what may have been generally done rather than any memory of what had in fact occurred on the night.
The critical distinction between the plaintiff's account and that of Captain Palacios is the weight and length of rope that was dropped onto the deck of the Tough and where it was dropped in proximity to the plaintiff.
Captain Palacios' account was seemingly premised upon the tow rope being secured to the bollard near the starboard rollers and not through the starboard bow panama. The difference is significant. On his account only approximately 35 m – 40 m of rope would be required to go from the winch between Cargo Hatch No 1 and No 2 through the rollers to the deck of the Tough.
In contrast, to carry the tow line from Nippon's bow winch to the deck of the Tough in the same position would require at least 70 m – 80 m of rope. Further, it would necessarily require the rope to be held up on the forecastle of the Nippon as it was carried around the bow to the point at which it was to be lowered to the Tough. That the rope was being managed on the deck of the Nippon accords with the observations of the plaintiff and Mr Cini, namely that a person holding a bundle of rope was on the starboard bow section of the Nippon some metres away from the others holding a bundle of rope as the Tough moved into position.
I consider that it is more probable that on this occasion, the line originating at the bow of the Nippon was the Nippon's messenger line and not a light heaving line. The Nippon's messenger line was then secured to the messenger line of the Tough and the tow line from the Tough winched up to and secured on the bollards at the bow of the Nippon through the forward starboard panama.
I consider it improbable that the crew of the Nippon would have pulled over 70 m of the Tough's messenger line to the forward winch position with 50 m heaving line comprised of light 10 mm – 12 mm propylene rope. A heaving rope was 50 m would have been insufficient to extend from the winch at starboard forward panama to a position adjacent to the break in the forecastle and then dropped to the deck of the Tough. Further, such a task would have necessarily required the crew to manhandle the Tough tow line rather than use the winch ‑ an improbable circumstance given the size and speed of the vessels and the need to have the tow line secured as quickly as possible to enable the other tugs to then be secured to assist in berthing the Nippon.
The Tough was positioned to take the line adjacent to the deck and forecastle approximately 50 m astern from the bow of the Nippon (exhibit 34 as marked).
When scaled on exhibits 34A and 34B, the distance from between the winch, through the forward panama and along the side of the Nippon to a point where it can then be dropped 17 m to the deck of the Tough below, would necessarily require in excess of 70 m of rope.
Given that the crew on the Nippon would not have known precisely where the Tough would dock against Nippon's hull, particularly having regard to speed and weather conditions, is likely that they would have had additional rope available to them to allow for some flexibility in relation to the position where the rope would be passed to the Tough. Had the Tough taken up a position further astern at the break in the forecastle or near the fairlead rollers, an additional 20 m – 30 m of rope would have been required.
Whilst I consider that the plaintiff was at times inclined to exaggerate, such as his estimates of the weight of the rope dropped upon him at 17 kg and on another occasion said that he thought that a person had fallen from the Nippon onto him, I find the plaintiff to be generally a truthful and reliable witness. I consider that his account is supported by the evidence of Captain Dix and Mr Cini and accords with the probabilities.
Having regard to the whole of the evidence I prefer the evidence of the plaintiff to that of Captain Palacios as to the circumstances in which the tow line was passed to the Nippon from the Tough on 17 August 2014.
Further, as a matter of common sense and experience, the plaintiff's conduct immediately following the incident is consistent with the incident having occurred in the manner described by the plaintiff in that there is a consistency between the account that he has given to his captain and the chief engineer on the night, the physical symptoms recorded immediately in the incident report and the images observed on the MRI on 28 August 2014. It is improbable that the plaintiff could have then known that the tingling sensation in his right hand was causally linked to the disc protrusion later observed in the MRI.
I am satisfied that as the plaintiff took the end of the messenger line passed from the Nippon, a bundle section of the messenger line was dropped by a member of the crew of the Nippon onto the deck of the Tough, such bundle being the slack or spare line held by the crew member observed by Mr Cini and the plaintiff to be standing a short distance away from Captain Palacios. I am satisfied that the bundle of rope struck the plaintiff on his helmet and neck area causing the plaintiff's neck to suddenly flex. Some of the rope then trailed into the water and the Tough had to be manoeuvred away from the Nippon's hull to enable it to be retrieved by the plaintiff.
Captain Dix and Mr Cini each confirm the plaintiff's account that it was necessary to ease the Tough from the hull of the Nippon to enable the rope to be retrieved and later observed a quantity of loose rope on the deck as the plaintiff was attaching the end to the Tough's messenger line.
I do not accept Captain Palacios evidence that the rope that was dropped onto the deck was simply the unfurling of a few coils of light heaving rope.
I accept the plaintiff's evidence and find that the rope was 20 mm – 25 mm in thickness and not a light 10 mm – 12 mm thick propylene rope. I am fortified in this view by the fact that had the rope simply been 10 mm – 12 mm in diameter as Captain Palacios stated, it is improbable that such a light unweighted rope dangling some 17 m would have hung straight down and been able to be grasped by the plaintiff on the deck below whilst both vessels were travelling at 10 knots. Common sense would suggest that it is probable even in still conditions, a breeze of the Nippon travelling at 10 knots would have made a light rope move in the air so as to not hang vertical. Captain Palacios estimated the Nippon's speed at some 11 – 13 knots.
In my opinion, it is more probable that the rope lowered to the plaintiff and the coiled loops dropped onto the deck of the Tough was the Nippon's heavier 20 mm – 25 mm thick messenger line that had been trailed aft from the bow winch through the starboard panama to the point on the forecastle immediately adjacent to where the Tough was positioned.

Findings

I find on the balance of probabilities:
•The messenger line from the Nippon came from the winch position on the forward starboard panama position on the Nippon was trailed along the side of the Nippon to a position slightly forward of the rollers on the starboard side.
•The rope that was being lowered from the Nippon was 20 mm – 25 mm in diameter.
•One of the crew of the Nippon on the forward starboard quarter of the bow held a coiled section of Nippon's messenger line while Captain Palacios and another crew member lowered the end of that line to the deck of the Tough.
•The rope was lowered to approximately 1 1/2 m above the deck of the Tough.
•As the plaintiff moved forward to collect the rope, the bundle of coiled rope was dropped without warning to the deck of the Tough, striking the plaintiff on his helmet and shoulders.
•The blow to the plaintiff's head was not a direct impact but rather a glancing blow described by Dr Miles as an axial loading and with a sudden flexion of the plaintiff's neck.
•The axial loading and sudden flexion of the plaintiff's neck when struck by the rope caused an aggravation of the asymptomatic pre‑existing degenerative changes together with the disc protrusion at C5/C6 that was evidenced in the MRI on 28 August 2014.
I am satisfied that in the circumstances as I find them to be there was no conduct on the part of the first defendant that caused or contributed to the plaintiff's injury. The particulars of negligence pleaded in pars 14, 15 and 16 of the statement of claim have not been made out on the evidence.
As the plaintiff readily acknowledged, he had been instructed in relation to where to stand, was fully cognisant of all necessary signals to give and that Captain Dix had ensured that he was always in a safe position at all times. Furthermore, there is no issue as to the lighting, or proper training of the plaintiff to discharge his duties that contributed to him suffering the injury as he did.
The plaintiff's claim against the first defendant must be dismissed.
I am satisfied that whilst securing the tow line between the Tough and the Nippon on 17 August 2014 at Port Hedland the plaintiff was struck on the head by a length of rope dropped without warning by a crew member of the Nippon that caused the plaintiff to suffer injury.
In failing to properly secure the bundle of rope and dropping it onto the deck of the Tough without warning, the second defendant breached the duty of care owed to the plaintiff as a member of the crew of the attending tug. The plaintiff having signalled to Captain Palacios and the crew to hold fast and not drop any further rope, the bundle of rope should not have been released.
I find that each of the matters pleaded (somewhat repetitively) in pars 17(a) – 17(f) and 17(j) of the statement of claim have be established on the evidence and that second defendant breached the duty of care owed by it to the plaintiff.
Accordingly, I find that the second defendant is liable to the first defendant in respect of such damages as may be assessed upon receipt of further evidence.

Contributory negligence

The second defendant says that the plaintiff failed to take reasonable care for his own safety and is guilty of contributory negligence. The applicable principles were stated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involved a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
[citations omitted]
Having regard to the whole of the circumstances as I find them to be, I am satisfied the plaintiff's injury was caused solely by the breach of the duty of care owed to the plaintiff by the second defendant. The plaintiff had no reason to expect that the bundle or rope would be dropped onto the deck as he walked forward to receive the line from the Nippon.
I find that the plaintiff did not by his conduct cause or contribute to the injury suffered by him.
I will hear from the parties as to the orders sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Associate to Judge Birmingham
15 APRIL 2019