Davis v Shipgap Pty Ltd & Anor

NEW SOUTH WALES COURT OF APPEAL

CITATION: Davis v Shipgap Pty Ltd & Anor [2000] NSWCA 14

FILE NUMBER(S):
40102/99

HEARING DATE(S): 21 February 2000

JUDGMENT DATE: 22/02/2000

PARTIES:
Allan George Davis v Shipgap Pty Ltd & Anor

JUDGMENT OF: Mason P Priestley JA Handley JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2964/97

LOWER COURT JUDICIAL OFFICER: Her Honour Acting Judge Balla

COUNSEL:
Appellant - T.D.F. Hughes
Respondents - J.E. Sexton SC / R.S. Sheldon

SOLICITORS:
Appellant - G.H. Healey & Co, Sutherland
Respondents - Ebsworth & Ebsworth

CATCHWORDS:
Negligence claim
passenger injured disembarking from ferry
reasonable care taken by defendants
claim fails
no new principles

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA     40102/99
  DC     2964/97
MASON P
  PRIESTLEY JA
  HANDLEY JA
Tuesday, 22 February 2000

DAVIS v SHIPGAP PTY LTD & ANOR

MASON P: I agree with Priestley JA.
PRIESTLEY JA: On 8 June 1994 Mr Davis fell from the gangway to the wharf while disembarking from the ferry “Banksia” at the Lynton Street wharf, Davistown. He was taken to Gosford Hospital where he was found to have “sustained a comminuted fracture of his right distal tibia”. He later brought proceedings as plaintiff against the owner of the ferry (first defendant) and its Master at the time of the accident (second defendant). His case was tried by Acting District Court Judge Balla on 25 and 27 January 1999. She delivered judgment dismissing the plaintiff’s claim on 1 February 1999. The plaintiff appealed.
The only direct evidence concerning the circumstances of the plaintiff’s accident before the trial judge was that of the plaintiff and the second defendant. From the plaintiff’s evidence it appeared that for three years before the accident he travelled three times a week from his home at Saratoga to catch the ferry to Woy Woy and back, usually boarding the ferry in the morning and catching it back late in the afternoon. It also appeared that he had suffered from alcoholism for twenty years before the accident and spent most of his time on his visits to Woy Woy drinking with friends in a particular hotel. He said he would drink ten to twelve schooners during most days. He agreed in cross-examination that he had no real recollection of any of the events leading up to his fall and injury.
The second defendant’s evidence was that he knew the plaintiff from carrying him as a passenger on occasions before the accident and knew that he was affected by alcohol on the night of the accident. On the basis of the second defendant’s demeanour while giving evidence and the lack of any conflicting evidence, the trial judge accepted the second defendant’s account of the circumstances of the plaintiff’s fall. The trial judge summarised the second defendant’s evidence as follows:
“He described the plaintiff as appearing the same as usual and smelling of alcohol and recalled that he had to assist the plaintiff on to the vessel and to take a seat. When the vessel arrived at the wharf, he put the gangway in place and helped three or four other passengers to disembark. He agreed that it was raining. The second defendant maintained that it was his practice to stand next to the gangway with one foot on the vessel and one on the wharf and to place one hand on the passenger’s upper arm and his other hand on the passenger’s forearm while they disembarked.
When the plaintiff reached the top of the stairs adjoining the gangway, he saw the plaintiff look towards the sky and then take a step away from the gangway. The second defendant said that he grabbed the plaintiff and said ‘The gangway’s there’. The plaintiff then put his left leg on the gangway and as he then put down his right foot at about the middle of the gangway, the foot rolled on to its side and he slipped. Although the second defendant was holding the plaintiff, he was unable to stop him from falling on to the wharf.
The second defendant described the gangway as made of timber and around three feet long with four or five cross-members placed evenly along the gangway. Adhesive non-slip tape had been placed between the cross-members. He believed that the gangway was placed at an angle of twelve degrees and described the plaintiff as falling twelve-fifteen inches. The gangway was not fitted with any handrails. It was the evidence of the second defendant that a gangway fitted with handrails and operated by one crew member was unsafe as it could not be handled quickly in an emergency and that a gangway with one handrail was unsafe as passengers tended to put their weight on the side with the handrail which made the gangway unstable.”
The trial judge recorded that there were no photographs of either the vessel in its docked position or of the gangway itself tendered in evidence.
A good many particulars of negligence were pleaded in the statement of claim in its final form before the trial judge. Not all of these were pressed before her. The trial judge listed those that were relied on and found that none of them was proved.
The trial judge accepted that the defendants owed a duty to the plaintiff in the circumstances. She also accepted that that duty must take into account the second defendant’s knowledge of the plaintiff’s intoxication and the potential increase to risk of injury in disembarking following from that intoxication.
The trial judge then said that the difficulty in the case was in determining what a reasonable man would do by way of response to the risk to the plaintiff at the time of the accident. This was a reference to the well-known passage, which she had earlier cited, from the reasons of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
The plaintiff’s principal submission to the trial judge in regard to this appears to have been that there should have been a handrail on the gangway.
As to this submission the trial judge said:
“The proposition that a handrail would have stopped the plaintiff from falling does initially appear reasonable. However counsel for the defendant has made a number of submissions in relation to this claim - that the proposition needs to be proven by expert evidence, that the onus is on the plaintiff to particularise in sufficient detail the type of handrail which should have been installed, the unchallenged evidence of the second defendant that only a gangway without handrails was practicable to be used on a vessel under the control of one person, that the plaintiff had made his way down either the same or a similar gangway while intoxicated without injury on previous occasions and the possibility that such a gangway could have caused a different injury.
On the evidence before the Court it is not possible to assess whether it would have been reasonable or appropriate for the defendants to have been using a different gangway or whether a different gangway would have prevented the injury. Counsel for the plaintiff has not even explained the type of handrail which it is suggested would have prevented the injury. I accept the submission made by counsel for the defendant that these issues cannot be determined without expert evidence. Further there is no evidence as to the magnitude of the risk, the degree of the probability of its occurrence or the other matters which are to be taken into account in applying the second limb of the test. I reject this submission.”
The trial judge also rejected submissions that the plaintiff should have been warned that the gangway was too narrow, alternatively that it was too unstable or slippery for him to safely disembark, alternatively that the gangway should have been secured to the wharf. The trial judge rejected the first of these submissions because there was nothing to support the view that the width of the gangway caused or contributed to the plaintiff’s injuries; the second because there was no expert evidence suggesting the gangway was either unstable or slippery and in view of her findings of fact; and as to the third that, again, there was nothing connecting the allegation, even if accepted, to the plaintiff’s injury.
Extensive written submissions were filed in the plaintiff’s appeal, expanding upon the eight grounds of appeal in the amended notice of appeal. The written submissions were explained and elaborated in the oral hearing of the appeal.
The first ground of the notice of appeal was abandoned.
The second ground was that the trial judge erred in finding that (in the words of the ground itself) “without expert evidence, it was not possible to assess whether it would have been reasonable or appropriate for the defendants to use a different gangway, or whether a different gangway would have prevented the plaintiff’s injury”.
In my view the plaintiff was correct in submitting in the appeal that there are many cases where common knowledge is sufficient to permit a trial court to say what reasonable and appropriate precautions might be taken to avoid a foreseeable risk of danger: Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 per Taylor and Owen JJ at 368-9, and cases there cited. However, I do not think that the trial judge was departing from the accepted position in saying what she did in the second of the paragraphs of her reasons last set out. In that paragraph the trial judge seems to me to be saying that on the state of the evidence as it was left before her there was no material upon which she could find in the plaintiff’s favour on the particular contention.
The sentence “I accept the submission made by counsel for the defendant that these issues cannot be determined without expert evidence” can, in context, be read two ways. The first is the way the plaintiff would seek to have the court read it, the second is that on the evidence as it had been left, the judge did not think, in the absence of expert evidence, she could find in the plaintiff’s favour.
I read the sentence as having the second meaning; but even if the first construction be correct, it seems to me to be quite plain that the trial judge was not basing her conclusion on that bald proposition alone, but was making it clear that (a) she did not think in any event the evidence as left enabled a conclusion to be arrived at in favour of the plaintiff, and (b) as an alternative and additional reason, expert evidence would have been necessary for the plaintiff to succeed on the point. The first basis appears to me to have been quite sound.
The second ground of appeal therefore fails.
The third ground of appeal was that the trial judge was wrong in finding, and again I quote the words of the ground itself,
“... within the meaning of the second limb of the test in Wyong Council v Shirt ... there was no evidence from which the court could assess the magnitude of the risk, the degree of probability of its occurrence, or the expense, difficulty and inconvenience of taking alleviating action, or consider any other conflicting responsibility which the defendants might have.”
The criticism in this ground is also based on the passage from her Honour’s reasons earlier set out. Again, I think the ground misconstrues what her Honour was saying, which in my opinion was that on the evidence before the court it was not possible to find in the plaintiff’s favour that the magnitude of the risk, the degree of the probability of its occurrence or the other matters mentioned in Shirt were such that the defendants were in breach of duty in not taking further steps for the plaintiff’s safety than were taken at the time of the accident.
Understood in this sense, it seems to me that the trial judge’s opinion was a perfectly tenable one with which this court would not interfere. A feature of the case as it was left before the trial judge was the extreme sparsity of the evidence concerning the circumstances of the plaintiff’s accident.
The court was left with the fact (once the second defendant’s evidence was accepted) that the gangway was about three feet long and the distance between the ferry and the wharf about two feet. There was no evidence of any unusual swell or disturbance in the water near the wharf at the time of disembarkation. The detail of how the plaintiff fell was very obscure. On the second defendant’s account, although it was itself rather unclear, it was fully open to the trial judge to conclude that he was in no way to blame, in any legal sense, for the accident that befell the plaintiff.
There was no evidence of the size of the ferry, there was no evidence of how the gangway was put in place. Apart from the few details of it earlier mentioned there was neither description nor photograph of the gangway, while, on the other hand, there was evidence that the plaintiff had many times previously used the ferry without mishap while in a similar state of intoxication and that three or four women in high heels had disembarked by means of it without incident immediately before the plaintiff’s accident.
In my opinion this ground of appeal fails.
The fourth ground of appeal was that the trial judge failed to find that (i) the gangway was wet and slippery; (ii) was not a suitable and safe gangway, and (iii) did not constitute an adequate precaution “to ensure that the plaintiff could disembark safely without falling”.
As to (i), the trial judge did take into account that it was raining at the time of the accident. She did not find that the gangplank was slippery, and quite correctly, in my opinion, because it does not follow from the fact that it was raining that the gangway was as a result slippery, particularly in view of the second defendant’s evidence of the cross-members and the adhesive non-slip tape placed between them.
The error alleged in (ii), in not finding the gangway to have been not suitable and safe, has been covered in what I said in regard to the third ground.
Complaint (iii) in the fourth ground misstated the defendant’s duty (as counsel in oral argument readily acknowledged): the defendant’s duty was to take reasonable steps for the plaintiff’s safe disembarkation, not to ensure or insure that safety. The judge’s findings earlier summarised seem to me to have justified her conclusion, which was, in substance that on the available evidence she was not satisfied that the defendants had not taken reasonable steps for the plaintiff’s safety.
Ground 4 also, in my opinion, fails.
Grounds 5, 6 and 7, although expressed differently from the preceding grounds, raised essentially the same matters as those I have already dealt with and in my opinion also fail for the same reasons as the earlier grounds.
Ground 8 again raised the same matters as the previous grounds, but characterised the alleged negligence as
“casual negligence in (i) inviting or permitting the plaintiff to disembark from the ferry when as the defendants well know or ought to have known it was unsafe as the plaintiff was intoxicated; (ii) failing to conduct him safely from the ferry when they knew or ought to have known he was intoxicated, and (iii) allowing the plaintiff to disembark when the defendants were ‘unable to safely ensure such disembarkation’.”
This ground recognised the possible difficulties in the plaintiff’s attack upon the defendants’ disembarkation system and sought to restate the facts in a way which would justify a finding of negligence against the second defendant in the way he carried out the usual system on the particular night. In the written submissions it was put
“... that even had Her Honour found that the steps normally taken by the Respondent satisfied the test of the appropriate response to the risk (or indeed that no other method was reasonably practicable) in the circumstances, the casual acts of the Respondent in:
a. allowing the Appellant to disembark ...
whilst being aware
b.that the Plaintiff was intoxicated, and even at the best of times was unsteady on his feet
and
c.whilst straddling the wharf and the ferry (at a higher level), reaching upwards and grabbing the Appellant by the shirt and ‘doing the best I could’
including
d.directing the Appellant where to step on the downward angled gangway ...
when
e. it was raining and dark
whilst all the time
f.knowing that he (Second respondent) was a ‘small fellow’ who was unable to hold the Appellant as he came down the gangway.
were of themselves all acts of casual negligence, of the Second Respondent that entitled the Appellant to compensation for the loss and damage suffered as a consequence of such negligence at the hands of the Respondents.”
Facts a. and b. in the submission were correct. The fact that “at the best of times” the plaintiff was unsteady on his feet does not seem to me to help the plaintiff’s argument in view of the great many times he had boarded and disembarked from the ferry without incident. Fact c. introduces an aspect of the case I have not previously elaborated on. This is that on the evidence accepted by the trial judge, and unchallenged and unchallengeable in the appeal, the gangway was about three feet long and pointing downwards from the ferry to the wharf at an angle not greater than twelve degrees, with the second defendant standing with his left foot on the ferry and his right foot on the wharf. All this emphasises the shortness of the distance between the ferry and the wharf, along with the shortness of the gangway.
In the absence of any evidence that the ferry was in any way unsteady, even in darkness and light rain (there was some evidence of artificial light) there was nothing particularly dangerous in the use of the gangway as it was in fact used. What was done by the second defendant, on the night and in the known circumstances, seems to me to have been quite a reasonable way of helping the plaintiff safely from the ferry.
The last comment takes account also of facts d., e. and f.
In my opinion the conclusion of the trial judge on this aspect of the case was not only properly open to her, but was one with which I in any event agree. What happened to the plaintiff seems to me to have been an accident not the fault of the second defendant in the sense required to make out a case of negligence. The line between non-negligently caused accidents and negligently caused ones is often a fine one, and seems to be growing finer. Nevertheless, in my opinion the trial judge was right in finding, on the evidence as it was left before her, that this case was of the former kind.
In my opinion the appeal should be dismissed with costs.
HANDLEY JA: I agree with Priestley.

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LAST UPDATED: 22/02/2000

[2000] NSWCA 14

22 February 2000

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