Reported Decision: 235 FLR 273261 ALR 441[2010] ALMD 862[2010] ALMD 863[2010] ALMD 985[2010] ALMD 987[2010] ALMD 1024[2010] ALMD 1025[2010] ALMD 1222[2010] ALMD 1223
New South Wales
Court of Appeal
CITATION: CSL Australia Pty Limited v Formosa [2009] NSWCA 363 HEARING DATE(S): 24 June 2009
JUDGMENT DATE:
11 November 2009JUDGMENT OF: Allsop P at 1; Basten JA at 1; Handley AJA at 1 DECISION: 1. Appeal and cross-appeal dismissed.
2. Appellants pay 75 per cent of the costs of the respondent of the appeal and cross-appeal.CATCHWORDS: FEDERAL JURISDICTION – Federal jurisdiction exercised by State Courts – Admiralty and maritime jurisdiction – matter arising under a law of the Parliament - TORTS - negligence – duty of care – duty of ship owner and operator to stevedore – duty to exercise care in respect of the safety of stevedores coming on board ship in order to undertake loading and unloading – nature and scope of duty - relationship between obligations under the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) and the common law duty of care – no statutory cause of action – impact on duty of care of delegated legislation imposing conformable obligations on another person – Marine Orders Part 32 under Navigation Act 1912 (Cth) – Marine Orders do not terminate the duty of care - TORTS - negligence – breach of duty - breach in failing to sweep the iron ore slurry from the deck – breach in failure to direct use of other side of the deck - breach not a failure to warn - evidence before primary judge supported finding of breach Admiralty Act 1988 (Cth) s 4(3)(c) Judiciary Act 1903 (Cth) – s 79 – s 80 Navigation Act 1912 (Cth) – Marine Orders Part 32 Occupational Health and Safety Act (Maritime Industry) 1993 (Cth) – s11 – s13 LEGISLATION CITED: The Constitution s77(iii)
Acts Interpretation Act 1901 (Cth)
Admiralty Act 1988 (Cth)
Civil Liability Act 2002 (NSW)
Judiciary Act 1903 (Cth)
Longshoremen’s and Harbour Workers’ Compensation Act (33 USCA §905(b))
Navigation Act 1912 (Cth)
Occupational Health and Safety (Maritime Industry) Act 1993 (Cth)
Supreme Court Act 1981 (UK)
Workers Compensation Act 1987 (NSW)CATEGORY: Principal judgment CASES CITED: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251
Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; 114 CLR 20
ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 23; 149 FCR 261
Archer v Hall [1967] 1 NSWR 107
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
Bates v Parker [1953] 2 QB 231
Blunden v The Commonwealth [2003] HCA 73; 218 CLR 330
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
Cameron v Nystrom [1893] AC 308
Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141
Cremin v Thomson (1941) 71 Ll L Rep 1
Crimmins v Stevedoring Committee [1999] HCA 59; 200 CLR 1
Compania Mexicana de…
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Details
- Case
- [2009] NSWCA 363
- Decision Date
CaseChat Overview and Summary
CSL Australia Pty Ltd appealed to the Full Federal Court against a judgment of a single judge of the Federal Court, which had found it liable in negligence to Mr Formosa, a stevedore. Mr Formosa had suffered injury while working on board the vessel 'Iron Pacific', which was owned and operated by CSL Australia Pty Ltd. The dispute concerned the extent of the duty of care owed by a shipowner and operator to stevedores engaged in loading and unloading operations.
The central legal issues before the Full Federal Court were whether CSL Australia Pty Ltd had breached its common law duty of care to Mr Formosa, and the nature and scope of that duty. Specifically, the court considered whether the obligations imposed by the *Occupational Health and Safety (Maritime Industry) Act 1993* (Cth) and associated Marine Orders, such as Marine Orders Part 32 under the *Navigation Act 1912* (Cth), extinguished or modified the common law duty of care. The court also examined whether the primary judge's findings of breach, including the failure to sweep iron ore slurry from the deck and the failure to direct the use of another side of the deck, were supported by the evidence.
The Full Federal Court held that the existence of statutory obligations under the *Occupational Health and Safety (Maritime Industry) Act 1993* (Cth) and the Marine Orders did not negate or terminate the common law duty of care owed by the shipowner and operator to stevedores. The court reasoned that these statutory provisions imposed conformable obligations on another party (the stevedoring company) but did not absolve the shipowner of its own duty to exercise reasonable care for the safety of those coming on board its vessel. The court found that the evidence before the primary judge adequately supported the findings of breach, which included failures to maintain a safe working environment on deck.
The appeal and cross-appeal were dismissed. CSL Australia Pty Ltd was ordered to pay 75 per cent of the costs of the respondent of the appeal and cross-appeal.
The central legal issues before the Full Federal Court were whether CSL Australia Pty Ltd had breached its common law duty of care to Mr Formosa, and the nature and scope of that duty. Specifically, the court considered whether the obligations imposed by the *Occupational Health and Safety (Maritime Industry) Act 1993* (Cth) and associated Marine Orders, such as Marine Orders Part 32 under the *Navigation Act 1912* (Cth), extinguished or modified the common law duty of care. The court also examined whether the primary judge's findings of breach, including the failure to sweep iron ore slurry from the deck and the failure to direct the use of another side of the deck, were supported by the evidence.
The Full Federal Court held that the existence of statutory obligations under the *Occupational Health and Safety (Maritime Industry) Act 1993* (Cth) and the Marine Orders did not negate or terminate the common law duty of care owed by the shipowner and operator to stevedores. The court reasoned that these statutory provisions imposed conformable obligations on another party (the stevedoring company) but did not absolve the shipowner of its own duty to exercise reasonable care for the safety of those coming on board its vessel. The court found that the evidence before the primary judge adequately supported the findings of breach, which included failures to maintain a safe working environment on deck.
The appeal and cross-appeal were dismissed. CSL Australia Pty Ltd was ordered to pay 75 per cent of the costs of the respondent of the appeal and cross-appeal.
Orders
Orders of the court
1. Appeal and cross-appeal dismissed.
2. Appellants pay 75 per cent of the costs of the respondent of the appeal and cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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