Di Latte v Kailis Australia Shipyards Pty Ltd - [2006] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DI LATTE -v- KAILIS AUSTRALIA SHIPYARDS PTY LTD [2006] WADC 137

CORAM: SLEIGHT DCJ

HEARD: 1-5 MAY 2006

DELIVERED : 1 SEPTEMBER 2006

FILE NO/S: CIV 3147 of 2001

BETWEEN: ANTHONY DI LATTE
Plaintiff
AND
KAILIS AUSTRALIA SHIPYARDS PTY LTD (ACN 008 768 367)
Defendant

Catchwords:

Injury to skipper whilst disembarking ferry at ship repairers - Claim for damages for personal injuries - Alleged negligence of ship repairers - Contributory negligence - Turns on its own fact

Legislation:

Occupational Safety and Health Act 1984 s 22
Western Australian Marine Act 1982
W A Marine (Certificates of Competency and Safety Manning) Regulations 1982

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr P G McGowan

Solicitors:

Plaintiff: Not applicable
Defendant: Phillips Fox

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

Husher v Husher (1999) 197 CLR 138
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Trigwell v Trigwell (1997) 18 WAR 83

Case(s) also cited:

Nil

SLEIGHT DCJ: The plaintiff's claim is for damages for personal injuries arising from an accident on 1 May 2000 when the plaintiff, whilst disembarking from a boat known as "Super Cat II", fell onto a wharf, being part of premises from which the defendant carried on the business as repairers of boats.
The plaintiff (Mr Di Latte) is a director of a private company which owns and operates "Super Cat II" as a ferry.
On 1 May 2000 Mr Di Latte, without any crew, took the "Super Cat II" vessel from Pier 21 in Fremantle down the Swan River, through the harbour at Fremantle and out through the heads, and then around to the Fremantle Boat Harbour to the defendant's premises. The vessel was to be lifted out of the water at the defendant's premises and the defendant company was to carry out repair works on the vessel.
On arrival at the defendant's premises, Mr Di Latte manoeuvred the "Super Cat II" vessel into a U-shaped berthing facility with fingers of the wharf located on both the starboard and port sides of the vessel. It was whilst Mr Di Latte was disembarking onto the wharf on the starboard side that he says the boat moved causing him to fall onto the wharf and suffer injuries.

Pleadings

Mr Di Latte's claim against the defendant falls into two categories –
(a)A claim that the defendant owed a common law duty and statutory duty to Mr Di Latte to ensure that the defendant's premises were safe and free of danger, and that it had adequate systems in place to ensure that its customers would not be exposed to danger. Mr Di Latte's claim based upon a statutory duty is alleged to arise from s 22 of the Occupational Safety and Health Act 1984.
(b)A claim based upon vicarious liability for the negligence of an employee of the defendant.
Mr Di Latte's claim against the defendant was pleaded as follows –
"9The plaintiff immediately thereafter was disembarking from the boat onto a tammy lift runner on the starboard side of the boat when at the same time an employee of the defendant ('the employee') caused the boat to move away from starboard side tammy lift runner, such movement being caused by the employee standing on the boat and pulling on a rope which was attached to a bollard on the port side tammy lift runner which movement caused the plaintiff to lose his balance and as a result he fell and his right leg struck the wheel guide of the starboard side tammy lift runner and his head and right shoulder struck the starboard side tammy lift runner.
PARTICULARS OF THE EMPLOYEE
9.1      The employee was known to the plaintiff as Sean.
10The accident was caused by the negligence of the employee.
PARTICULARS OF NEGLIGENCE OF THE EMPLOYEE
10.1     The employee was negligent in that he:
10.1.1entered upon the boat and gave the plaintiff no warning or notice that he was on the boat, and began moving the boat towards the port side tammy lift runner without giving the plaintiff any warning that he was about to do so.
10.1.2failed to wait for the plaintiff to disembark from the boat prior to moving the boat.
11The accident was caused by the defendant's breach of its duties as pleaded in paragraph 5 above.
PARTICULARS OF BREACH OF DUTY
11.1     The defendant was negligent in that it:
11.1.1Failed to give the plaintiff any warning of the dangers of disembarking from boats within the tammy lift system.
11.1.2failed to instruct its employees to not manoeuvre boats within the tammy lift system whilst people were in the process of disembarking from any such boats.
11.1.3failed to have a system in place to ensure that boats were secured and not likely to move whilst such boats were within the tammy lift system and whilst people were disembarking from such boats.
11.1.4failed to supply a gangway to allow people to safely disembark from boats that were within the tammy lift system."
In the defence the defendant pleaded as follows:
"8.Further to paragraph 9 of the Statement of Claim the Defendant says;
8.1At all material times the Plaintiff was the master of the Boat.
8.2The plaintiff did not have any other crew on the Boat when he skippered the Boat to the premises and manoeuvred it into the Berth.
8.3At all material times the Boat was required by the Uniform Shipping Laws Section 2 to have at least 2 people on board during any journey.
8.4At all material times the Plaintiff was wearing leather soled dress shoes.
8.5As he entered the Berth the Plaintiff turned off the engines of the Boat and left the controls of the Boat.
8.6At all material times after the Plaintiff turned off the engines, the Boat was moving slowly towards the wharf or pier at the end of the Berth.
8.7Once the Plaintiff turned off the engines of the Boat, he was no longer able to control the Boat or to stop the Boat moving toward the end of the Berth.
8.8After the Plaintiff turned off the engines, the Defendant's employee, Shaun O'Donnell (O'Donnell) threw a bollard rope from the port side onto the vessel and boarded the Boat to assist the Plaintiff in bringing the Boat to a halt, and to prevent it from hitting the end of the Berth.
8.9After boarding the Boat O'Donnell went to the port side of the Boat and started tying off the port bollard rope.
8.10The Plaintiff knew that O'Donnell had boarded the Boat and moved to the port side of the Boat and knew or ought to have known that O'Donnell would start tying off the port bollard rope.
8.11While O'Donnell was tying off the port bollard rope the Plaintiff went to the starboard side of the Boat.
8.12The Plaintiff disembarked the Boat from the gap in the railing on the starboard side of the Boat.
8.13The Boat was still moving as the Plaintiff disembarked from the Boat.
8.14At all material times the rubbing strake in the region of the gap in the railing on the starboard side of the Boat was damaged in that it was pushed in and upwards to create a lip on the edge of the rubbing strake.
8.15At all material times the non‑slip surface on the area of deck in the region of the gap in the railing on the starboard side of the Boat was worn and the aluminium surface was shiny and smooth.
8.16There were no special dangers in disembarking from the Boat at the Berth, as opposed to tying along side any other fixed wharf structure.
8.17At the time of the accident the Boat was moving toward the end of the Berth and was approximately 1 – 1.5 metres from the starboard side of the Berth.
9.The Defendant denies each and every allegation pleaded in paragraph 10 of the Statement of Claim and says that the accident was caused, or alternatively contributed to, by the negligence of the Plaintiff.
PARTICULARS OF THE PLAINTIFF'S NEGLIGENCE
9.1 The Plaintiff was negligent in that he:
9.1.1took the Boat on a journey without the requisite number of crew required by the Uniform Shipping Laws and did not therefore have a crew member available to assist in safely berthing the Boat.
9.1.2failed to maintain proper control of the Boat by shutting down the engines and leaving the controls of the Boat before any mooring lines were attached and while the Boat was still moving.
9.1.3disembarked while the Boat was still moving.
9.1.4disembarked before the Boat had been secured with a minimum of 2 mooring lines.
9.1.5disembarked while wearing inappropriate footwear.
9.1.6allowed the deck and rubbing strake in the region of the gap in the railing on the starboard side of the Boat to remain in a damaged and unsafe condition.
10The defendant denies each and every allegation pleaded in paragraph 11 of the Statement of Claim and says that the accident was caused, or alternatively contributed to, by the negligence of the Plaintiff.
PARTICULARS OF THE PLAINTIFF'S NEGLIGENCE
The Defendant repeats the particulars to paragraph 9 above."
The defendant also denied that the provisions of the Occupational Safety and Health Act 1984 (WA) provided a private right of action for breach of statutory duty.

Evidence on liability

Mr Di Latte's evidence was that on 1 May 2000 he skippered the "Super Cat II" ferry from Pier 21 on the Swan River in Fremantle to the defendant's premises at the Fremantle Boat Harbour. He stated that arrangements had been made several days before to deliver the vessel to the defendant's premises at approximately 10 am on 1 May 2000 for the purposes of having the boat lifted out of the water and maintenance work carried out.
He stated that he skippered the vessel himself without any support crew to the defendant's premises. He was of the view that the Uniform Shipping Laws Code required a support crew of two, but he was comfortable in skippering the vessel without a crew because he believed it was equivalent to moving the vessel from pen to pen or to be fuelled, which was normally done without a support crew.
On arriving at the defendant's premises he steered the vessel into a U‑shaped lifting berth which consisted of two finger jetties which ran out on either side of the berth. Each finger jetty had ropes located on it for the purpose of securing any vessel that was berthed between the two finger jetties.
He stated that he stopped the vessel by putting the engine into reverse and once the vessel had stopped, he then placed the engine in neutral.
He said that there was a person on the starboard side of the finger jetty. Mr Di Latte identified the person to be a Mr Jubb, an employee of the defendant. Mr Di Latte stated that Mr Jubb secured one of the ropes on the finger jetty to the stern of the "Super Cat II" vessel on the starboard side.
Mr Di Latte said that he then turned the engine off and disconnected the batteries under the dash in the wheel house. He said that he did this because welding work was to be performed on the vessel and the batteries had to be disconnected. He stated that he disconnected the batteries using a spanner, and the process took him two or three minutes. He then left the wheel house, walked down a set of stairs onto the deck at the stern of the vessel, and made his way to the starboard side of the vessel to disembark.
He stated there was a railing around the vessel. He removed a gate in the railing so as to create a gap in the railing to enable him to disembark.
He stated that he commenced to step off the vessel onto the wharf, but as he did so, the vessel moved and a gap suddenly appeared between the vessel and the wharf. His right foot was on the wharf and his left foot was still on the vessel, and he lunged forward in order to compensate for the gap appearing.
He stated his right foot made contact with a steel girder on the wharf which was a wheel guide for a tammy lift (a tammy lift is an overhead gantry used to lift vessels out of the water).
He stated that he fell onto his right side on the wharf, landing on the steel wheel guide for the tammy lift. The wheel guide was similar to a railway track and protruded about six inches above the wharf's surface.
He stated that a couple of people, including Mr Jubb, came to help him. He said he was unable to walk properly because of an injury to his right leg caused in the fall. He was also experiencing pain up the right side of his body into the right shoulder area and along his right arm.
He said that a Mr Sean O'Donnell who assisted him said to him "Sorry Tony. I was tying up the port side. I didn't see you". As a result of this Mr Di Latte said he swore at Mr O'Donnell.
Mr Di Latte stated that the owners of the wharf should have had people at the wharf available to assist. He stated that normally at the shipyard people are provided to secure the vessel to the jetty.
Under cross‑examination Mr Di Latte said he was aware of someone on the vessel on the port side when he went to disembark from the vessel. He denied he was aware Mr O'Donnell was securing the port side.
The plaintiff also called a Captain Peter Douglas as an expert witness. Captain Douglas explained that the Uniform Shipping Laws Code was adopted by all States and the Commonwealth under legislative provisions [in Western Australia the code is encapsulated in the "WA Marine (Certificates of Competency and Safety Manning) Regulations 1983" made pursuant to the Western Australian Marine Act 1982].
Captain Douglas stated that he would have expected there to be at least two people provided by the defendant to assist with the berthing of the vessel, one on each finger of the wharf.
He stated that as a general proposition a skipper should not shut down the engine and leave the controls of the vessel until the mooring lines are secured.
He also agreed that it was inappropriate for a skipper, where he had no support crew, to leave the boat until the boat had been secured by two mooring lines – one on the starboard side and one on the port side.
He stated that the nature of the facility provided by the defendant did not make it easy to have a gangway that could be easily and quickly put in place. To his knowledge, none of the boat lifters around Fremantle had such a gangway because of this difficulty.
Mr Di Latte also called a Mr Shane Warren Brown, who was employed by the defendant at the time of the accident.
He stated that the normal practice was for the defendant to provide one person on each finger jetty to assist with the berthing of a vessel, but that it was not always possible to have someone waiting on the jetties at the exact time of the arrival of the vessel as they simply did not have enough personnel to do this.
He stated that the normal practice was to throw the ropes which were attached to the jetty to the crew on board the vessel who then secured the ropes to bollards on the vessel.
He stated that there was always a danger in jumping off the vessel onto the jetty if the vessel had not been finally secured.
He stated that if there was no support crew on the vessel or the crew was inexperienced, then it was the practice of the defendant's employees to jump on board the vessel to assist, even before the boat was properly secured.
He stated that the two methods used to assist the crew in safely disembarking from a vessel were to either pull the vessel close to the wharf using the ropes secured to the stern of the vessel or to use the tammy lift to move the vessel over closer to the wharf.
He did not recall seeing a Mr Jubb anywhere in the vicinity of the jetty at the time the "Super Cat II" was berthed.
Mr Di Latte also called a Mr William Robert Edgar who is the owner of a ferry service operating in competition to the plaintiff's business.
He stated that he would not expect a competent master to leave the wheel of the vessel until the vessel had been fully secured.
He stated that in his experience the defendant sometimes had staff waiting on the wharf when a vessel arrived and on other occasions it did not.
The defendant called a number of witnesses who were present at the defendant's premises on the day of the accident.
The first witness to give evidence on behalf of the defendant was Mr Earl Hope‑Pearson who gave evidence de bene esse on 28 November 2005.
He stated that on 1 May 2000, he was standing on the finger jetty on the starboard side of the "Super Cat II" as it entered the wharf. He was standing on the jetty talking to another person.
He observed a Mr Sean O'Donnell, an employee of the defendant, go towards the finger jetty on the port side of the "Super Cat II".
He observed Mr Di Latte shut down the motor of the "Super Cat II" and then come down some steps and go to the starboard side of the vessel.
He stated that Mr Di Latte then jumped off the vessel. He stated that at the time Mr Di Latte jumped, the vessel was unsecured on the starboard side and was still moving forward towards the end of the pen.
He stated that later Mr O'Donnell came to the starboard side and secured the vessel.
The defendant also called Mr Sean O'Donnell, who was a foreman employed by the defendant. He explained how the tammy lift operated at the defendant's premises to lift boats out of the water. He stated that when a vessel enters the berth, it was secured by two ropes at the stern of the vessel ‑ one from the starboard side and one from the port side. The tammy lift then runs out along the two finger jetties so that the tammy lift straddles across the berth. Straps hang down from the tammy lift which pass under the vessel, and which are used to lift the vessel out of the water.
Mr O'Donnell stated that the usual procedure was that when they were aware of the arrival of the vessel, two persons would position themselves on the wharf to assist, one on the starboard finger jetty and one on the port finger jetty.
He stated that there were ropes attached to the edge of each finger jetty which were thrown to the vessel and secured on the vessel by the crew of the vessel.
Mr O'Donnell stated that on 1 May 2000 he was informed by telephone from the office of the defendant that Mr Di Latte's vessel was arriving at the berth facilities. At the time he received the telephone call he was about 50 metres from the berth.
He walked towards the berth and observed Mr Di Latte's vessel at the mouth of the finger jetty manoeuvring into the berth.
He stated that he did not observe any other staff of the defendant on the wharf at that point in time .He stated he went to the port side finger jetty as the vessel appeared to be closer to this side. He heard the vessel's motor being switched off.
He stated that there was a gentle sea breeze which was pushing the vessel forward. He observed that there was no crew on board other than the skipper Mr Di Latte. Mr O'Donnell jumped on board to secure the vessel on the port side. Whilst he was securing the vessel on the port side, he heard footsteps behind him which he assumed were those of Mr Di Latte. He said that he thought that he acknowledged Mr Di Latte's presence by saying "Tony".
He stated that he was pre‑occupied with securing the port side so as to prevent the vessel from continuing to move forward and hit the end of the pen.
He stated that whilst he was securing the port side he heard a noise behind him and turned around to see Mr Di Latte lying on the starboard side jetty over the steel wheel guide.
Mr O'Donnell stated that he thought he then secured the starboard side of the vessel and assisted Mr Di Latte to a "smoko" room. He then later transferred Mr Di Latte to the office of the defendant using a forklift to lift Mr Di Latte.
He stated that a Mr Jubb was employed by the defendant but he did not recall seeing Mr Jubb that day on the finger jetty.
He stated that when securing a vessel, they normally allow sufficient slack in the rope so that when both sides of the vessel were secured, the vessel would be positioned in the centre of the berth. This is to enable the straps from the tammy lift to pass under the vessel to lift the vessel out of the water.

Under cross‑examination Mr O'Donnell stated that the only conversation he could recall in the lunch room with Mr Di Latte was to express concern about Mr Di Latte's injuries.
The defendant also called an expert, Captain Christopher Olivier.
Captain Olivier stated in a written report that, based upon the Uniform Shipping Laws Code, the "Super Cat II" required at least two persons (inclusive of the master) on board when operating in sheltered waters and in shore operational areas.
Captain Olivier attended the defendant's premises where the accident took place and made various measurements. The width of the berth was 9.46 metres. The width of the "Super Cat II" was 7.5 metres. The length of the vessel was 19.99 metres.
He suggested that to safely disembark from a vessel, the mooring ropes should be pulled so as to move the vessel closer to one wharf. Alternatively, the tammy lift straps could be used to move the vessel towards the wharf.
Captain Olivier stated that, due to the changing circumstances and the differing vessel types that use the berth, it was not normal to provide a gangplank. Also, the use of a gangplank would involve delays and would require the use of a crane to place it in position.

Findings

I make the following findings:
1.On 1 May 2000, the "Super Cat II" vessel was being skippered by Mr Di Latte without any support crew. The WA Marine (Certificates of Competency and Safety Manning) Regulations 1983 provide that a commercial vessel of a length between 15 metres and over, but less than 20 metres, is to be manned by at least two persons. The regulations are somewhat ambiguous, and Mr Di Latte's interpretation was that the vessel was required to be manned by the master plus two crew, whereas the evidence of Captain Olivier was that it was sufficient if the vessel was manned by the master and one other crew member. Either way, Mr Di Latte was in breach of the regulations. The provision of support crew is important when berthing a vessel because it enables the vessel to be secured both starboard and port side before the motor of the vessel is cut off, and before anyone disembarks from the vessel.
2.The usual practice at the defendant's premises was that someone would be positioned on each finger jetty on arrival of the vessel. The persons on the finger jetties would throw ropes positioned on the finger jetties to the vessel, and these ropes would be used by the support crew on the vessel to secure the vessel. This was done by wrapping the mooring ropes around bollards on the vessel.
3.The usual practice was that the skipper of the vessel remained in the wheelhouse and had the engine of the vessel running until the vessel was properly secured by the mooring ropes. Once this was done the skipper could then turn off the motor.
4.The usual practice was that the mooring ropes would have sufficient slack or length in them so that when both sides were secured, the vessel was positioned approximately in the centre of the pen with an equal gap on both sides. This was to enable the straps from the tammy lift to pass under the boat for the purpose of lifting the boat out of the water.
5.The total width of the pen is 9.46 metres and the total width of the "Super Cat II" is 7.5 metres. Therefore, if the vessel is in the middle of the pen, the gap on each side is 0.98 metres.
6.In order to enable the crew to safely disembark the vessel, the vessel could be pulled to one side by either using the mooring ropes or by using the straps on the tammy lift. Once the vessel was secured close to the wharf, then the crew could disembark the vessel safely.
7.On 1 May 2000, Mr Di Latte arrived at the berth without any support crew. At the time of his arrival there was no personnel of the defendant waiting on either finger jetty although Mr Sean O'Donnell arrived almost immediately and positioned himself on the port side.
Mr Di Latte shut off the engine of the "Super Cat II" and as a result the vessel was moving about within the berth due to a light sea breeze.
8.I accept the evidence of Mr Sean O'Donnell that he jumped from the finger jetty on the port side onto the "Super Cat II". At the time, the "Super Cat II" was more closely positioned to the port side jetty. On jumping onto the vessel he then commenced to secure the vessel on the port side.
9.Whilst Mr O'Donnell was securing the vessel, Mr Di Latte came down a set of stairs to the stern of the vehicle. At that time, to his right was Mr O'Donnell on the vessel securing the ropes on the port side, but with his back to Mr Di Latte.
10.Mr Di Latte then went to the starboard side, removed a section of the railing which ran around the edge of the vessel, and went to step from the vessel onto the wharf. Whilst he was doing this, the vessel moved causing the gap between the vessel and the finger jetty on the starboard side to widen. To prevent himself from falling into this gap, Mr Di Latte lunged forward, causing himself to fall on the wharf on the finger jetty. He landed on a steel railing causing injury to his right side.
11.I conclude that the starboard side had not been secured at this stage. Although Mr Di Latte stated that a Mr Jubb had secured the starboard side before Mr Di Latte came down the stairs, no other witnesses observed Mr Jubb in the vicinity at that time, including Mr Brown who was a witness called by the plaintiff. Mr Sean O'Donnell was not completely sure whether he secured the starboard side after the accident, but he believed that he did. Mr Hope‑Pearson stated that the starboard side was secured by Mr O'Donnell after the accident.
12.I find that at the time Mr Di Latte went to the starboard side to disembark, the vessel was still moving forward in a light sea breeze. The movement had not been sufficient to prevent Mr O'Donnell from jumping onto the vessel. I find that as Mr Di Latte was in the process of disembarking, Mr O'Donnell secured and tightened the mooring rope on the port side causing the vessel to move to the port side. This movement created an increase in the gap on the starboard side which led to Mr Di Latte lunging forward. This is consistent with Mr O'Donnell's evidence that at the time that Mr Di Latte was disembarking, Mr O'Donnell was in the process of securing the port side of the vessel.
13.After Mr Di Latte's fall, a number of people came to his assistance and he was taken to the lunch room of the defendant's premises. It was after the accident that the starboard side of the vessel was secured.
14.I find that when Mr Di Latte was taken to the lunch room there was a conversation between Mr Di Latte and Mr O'Donnell to the effect that Mr O'Donnell regretted the accident that had taken place. I do not accept Mr Di Latte's evidence that Mr O'Donnell said, "Sorry, Tony, I was tying up the port side. I didn't see you". At the time of the conversation, Mr Di Latte was in a distressed state due to his injuries and I do not believe his account was a reliable account of exactly what was said. I find, that whatever was said by Mr O'Donnell was not meant to be an expression of accepting responsibility for the accident, but simply expressing his regret that the accident had occurred.

Conclusions on liability

The question of causation is a question of fact to be decided based upon a common sense appraisal and judgment of the circumstances (see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, per Mason CJ at 515; Deane J at 523).
I find that the cause of the accident which led to the injuries to Mr Di Latte was the negligence of Mr Di Latte in not ensuring he had sufficient crew on board to secure the vessel in a proper manner and disembarking from the vessel before the vessel had been properly secured. If Mr Di Latte had at least one additional crewman on board, then Mr O'Donnell could have thrown the mooring rope on the port side finger jetty to the crewman to secure the port side of the vessel, then walk around to the starboard side jetty and throw the mooring rope to the crewman who could then have secured the starboard side. This would have meant that the vessel could have been properly secured on both the starboard and port sides before Mr Di Latte disembarked. Further, the vessel could have been pulled tight up against one of the finger jetties, either by the mooring ropes or the tammy lift so as to prevent any gap appearing between the vessel and the finger jetty whilst Mr Di Latte disembarked.
Further, I find that Mr O'Donnell was not negligent in tightening the mooring rope as Mr Di Latte was about to disembark. Mr O'Donnell was pre‑occupied with securing the port side to prevent the vessel colliding with the end of the U‑shaped berth, and had insufficient time to be concerned about the possibility of Mr Di Latte attempting to disembark.
Further, I find that the defendant was not negligent in failing to provide a gangplank. This was not the usual practice due to the varying circumstances and sizes of vessels that used the berth. Providing the vessel was properly secured and then pulled over to one side of the berth (either by using the mooring line or the tammy lift) so that the vessel was up against the wharf, then a person could safely disembark without a gap suddenly appearing between the vessel and the berth.
I find that the system the defendant had in place was adequate to enable vessels to be berthed and for crew to disembark safely providing the vessels were properly manned with at least one crew member, which I find the defendant was entitled to assume would be the case in light of the regulations under the Western Australian Marine Act 1982. The fact that the defendant did not have a person positioned on the starboard finger jetty was not negligent and did not cause the accident. As I have mentioned the vessel could have been adequately secured before Mr Di Latte disembarked by Mr O’Donnell covering both starboard and port sides if there had been support crew on the vessel.
The plaintiff also relies upon an alleged breach of duty which he says arises from s 22 of the Occupational Safety and Health Act 1984. Section 22(1) provides as follows:
"(1)A person that has, to any extent, control of –
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b)the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards."
In my view I do not need to consider whether the section gives rise to any private right of action in view of my findings as to causation.
Accordingly, I find the defendant is not liable for the injuries suffered by the plaintiff.

Provisional assessment of damages

I make the following provisional assessment of damages.
The statement of claim pleads that the plaintiff suffered as a result of the accident the following injuries:
"12.1Rupture of the supraspinatus tendon of the right shoulder.
12.2Soft tissue injury to the neck.
12.3Soft tissue injury to the lumbar spine.
12.4Aggravation of a pre‑existing degenerative condition of the lumbar spine which was previously asymptomatic.
12.5Soft tissue injury to the right knee."
No evidence was produced at the trial of any injury to the right knee.
However, evidence was given of a left shoulder injury but this was not pleaded.
As a result of Mr Di Latte's fall, he was taken by his wife to Dr Peter Winterton, general practitioner, who noted that Mr Di Latte had a large haematoma to the right thigh and a rotator cuff injury to the right shoulder.
Dr Winterton referred Mr Di Latte to Mr Jeffery Ecker, orthopaedic surgeon. Mr Ecker noted that on the initial presentation Mr Di Latte had right shoulder pain and also pain highly suggestive of pain referred from the neck.
Mr Ecker obtained an ultrasound scan and an MRI of the right shoulder, both of which indicated a large full thickness tear of the central portion of the supraspinatus tendon.
On 3 July 2000 Mr Ecker performed surgery on Mr Di Latte's shoulder.
In a report dated 21 October 200, Mr Ecker concluded that the shoulder would not return to normal. He expressed an opinion that the level of disability was 10 per cent expressed as a percentage of the upper limb as a result of the right shoulder injury.
He believed it was highly improbable that Mr Di Latte will be able to return to tasks and activities which involve repetitive elevation of the arm above shoulder height, and in particular, elevation of the arm above shoulder height against resistance. His opinion was not changed by viewing a surveillance video of Mr Di Latte presented in evidence by the defendant.
Mr Ecker was of the opinion that Mr Di Latte will not require any more treatment but should maintain an exercise programme.
Dr Ross Goodheart, a Consultant Neurologist, gave evidence that he saw Mr Di Latte on 21 January 2003. Dr Goodheart concluded from an examination he made of Mr Di Latte that Mr Di Latte had suffered a soft tissue injury to his cervical spine. He believed Mr Di Latte had also suffered soft tissue injuries in relation to both the left and right upper limbs. He considered these injuries permanent. He considered that Mr Di Latte suffered a permanent injury to his spine of 20 per cent and a 10 per cent disability to both the right and left arm functions above the elbow.
Mr Di Latte was also seen by Mr Anthony Robinson, orthopaedic surgeon, who examined the plaintiff in his rooms on 25 February 2003.
In a report dated 26 February 2003, Mr Robinson concluded that Mr Di Latte had suffered the following disabilities:
"(a)A permanent residual disability of the right shoulder with regard to the whole of the right arm to the extent of 15 per cent.
(b)A permanent residual disability of the left shoulder with regard to the whole of the left arm to the extent of 15 per cent.
(c)A permanent residual disability of the thoraco lumbar spine in regard to the whole of the spinal column to the extent of 10 per cent."
Mr Robinson was also shown the surveillance video presented by the defendant. The video surveillance film tendered into evidence by the defendant showed Mr Di Latte engaging in various activities including ‑
(a)Walking up and down steep steps without apparent restriction.
(b)Assisting a group of about five persons pushing into place a propeller shaft under the vessel.
(c)Assisting another person remove and carry a role of carpet.
(d)Assisting a male person placing stickers on the side of the vessel.
In regard to portions of the video which showed free movement of the shoulder area and Mr Di Latte engaging in activities which placed a strain on his back, Mr Robinson concluded that these were inconsistent with the level of disability he had stated in his report.

Findings on disabilities

I do not believe that I can take into account the evidence of the left shoulder injury. It was not pleaded and the first description of such a disability arose in examinations about three years after the accident. I am not satisfied that such an injury is related to the accident suffered by Mr Di Latte.
I find that the plaintiff suffered the following injuries as a result of the accident:
1.A haematoma to the right thigh.
2.A rotator cuff tear to the right shoulder.
3.A soft tissue injury to the spine.
I am satisfied on the basis of Mr Ecker's evidence that Mr Di Latte has suffered a permanent disability to his right shoulder, being a 10 per cent disability of the upper limb.
In view of the activities undertaken by Mr Di Latte shown in the surveillance video, and the evidence given by Mr Robinson, I am satisfied that although Mr Di Latte has a disability to the spine as a result of his accident injury, it is of a minor nature and less than 10 per cent.
I conclude that an appropriate award for general damages is $25,000.

Loss of earning capacity

Mr Di Latte was born on 6 September 1944 which means he was 55 years of age at the time of the accident and is now 61.
Mr Di Latte gave evidence that he operates two businesses. One of these businesses is owned by West Boat Builders Pty Ltd, as trustee of the Di Latte A Family Trust which trades as "West Boat Building Contractors". This company conducts a business of construction and maintenance of boats.
The plaintiff operates a second business using a private company, Anthony & Sons Pty Ltd, which trades as "Oceanic Cruisers". This company conducts a business of conducting river cruises, whale watching cruises, wine cruises, cruises in Broome and Rottnest ferries.
The two businesses employ together approximately 42 people (the staff are employed as independent contractors rather than as employees).
Mr Di Latte's pleaded case is that his loss of earning capacity resulted in both businesses being forced to employ substitute labour. In further and better particulars dated 2 October 2002, Mr Di Latte pleaded that the loss to Mr Di Latte arising from the need to employ substitute labour amounted to $24,000 per annum.
As a matter of general principle, to be successful in relation to a claim for loss of earning capacity, Mr Di Latte must establish:
(a)the extent to which his earning capacity has in fact been diminished by reason of his injuries;
(b)the extent to which the earning capacity is or maybe productive of financial loss.
[See Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3; Trigwell v Trigwell (1997) 18 WAR 83
In some cases involving businesses the cost of employing substitute labour is a guide to the value of the loss of earning capacity. However, the task of ascribing a value to the loss of earning capacity requires close attention to the facts of each case (see Husher v Husher (1999) 197 CLR 138 at 148 per Gleeson CJ, Gummow, Kirby and Hayne JJ and at 153 Callinan J).
After the accident Mr Di Latte stated that he was off work for about three weeks. He also stated that after he was operated on in July 2000 his arm was in a sling for five to seven weeks and then he was unable to do much at all for a further five to seven weeks.
Mr Di Latte gave evidence that in relation to the business Oceanic Cruisers, he was not able to continue to properly operate as a skipper of a vessel following his accident injuries. His explanation for this was that as a skipper he was required to conduct a commentary during cruisers. This involved holding a microphone in his right hand. The reason why the right hand had to be used was the accelerator levers on the vessels were on the left hand side. He stated in his evidence that by the end of the day his arm was stiff and sore and therefore he was unable to continue with the task of conducting cruisers.
He also said that he was restricted in the business of "West Boat Builders Contractors" as a result of being unable to perform maintenance work due to his shoulder injury.
He described himself before the accident as being a hands‑on manager doing maintenance work which included all light maintenance work required from time to time in the business.
Mr Di Latte's evidence was supported in part by a Mr Bosveld, who gave evidence that prior to the accident Mr Di Latte carried out maintenance work on the vessels operated by Oceanic Cruisers, but that since the accident other people have performed maintenance work, including himself who had been trained by Mr Di Latte to perform such tasks. He described Mr Di Latte performing a more supervisory role since the accident.
Mr Di Latte produced a bundle of documents to support his claim for employing substitute labour to perform tasks as a skipper and also to carry out maintenance work.

The documents relating to the employment of substitute skippers cover a period from 12 July 2000 to 11 February 2001. This period is meant to be representative of the loss suffered by the plaintiff since the accident. The loss claimed in this period up to 11 February 2001 is $6,878.25.
The records consist of roster sheets and pay‑roll advice slips which purport to show pay rates for persons employed as substitute skippers for Mr Di Latte.
These records I conclude to be unreliable. They were prepared on the basis of looking back at roster sheets and Mr Di Latte’s wife, who prepared the rosters, assessing what she thought were rosters that Mr Di Latte would have worked.
Further, I am not satisfied that the degree of disability suffered by Mr Di Latte meant that he could not operate a vessel as a skipper.
No medical evidence was produced saying directly that Mr Di Latte was incapable of acting as a skipper on a boat. According to the evidence of Mr Ecker, the disability to Mr Di Latte's shoulder restricted Mr Di Latte only from performing tasks involving repetitive elevation of the arm above the shoulder. Also the surveillance video tendered into evidence showed Mr Di Latte performing various tasks and being quite active. On the basis of the medical evidence and the surveillance video evidence it is difficult to see why Mr Di Latte would be prevented from performing work as a skipper.
Mr Di Latte stated in his evidence that he had hoped to retire at the age of 55 but had continued operating the business. I conclude that his accident injuries may have provided some limitations but these limitations were only one of the factors which led him to make decisions not to work as a skipper as often as he has previously done.
Mr Di Latte also provided a bundle of documents, prepared by office staff, which listed persons who Mr Di Latte claimed were employed as substitute labour to perform maintenance work. The documentation included amounts paid to such persons for the alleged maintenance work performed. The records covered a period from 5 May 2000 to 11 May 2003. The total amount allegedly paid was $128,235.40. Again this was meant to be representative of the costs of substitute labour arising since the accident.
No evidence was called to substantiate the amounts included in these records as to the nature of the work performed or as to the basis for the amount paid (for example, the hours worked and the hourly rate paid).
I conclude that I am not able to place any reliance upon these records.
It is clear from the income tax returns tendered into evidence that the businesses of Mr Di Latte's companies in fact expanded after the accident. The combined gross income of both businesses in each year over a five year period was as follows:
1999/2000 - $2,562,636
2000/2001 - $3,270,001
2001/2002 - $4,498,344
2002/2003 - $5,400,678
2003/2004 - $6,488,980
I find that the increase in the size of the businesses since the accident meant that Mr Di Latte was unlikely to have continued to do all of the light maintenance work of the businesses and his role would have changed to a more supervisory role.
Further, I am not satisfied the degree of disability suffered by Mr Di Latte as a result of his accident prevented him from carrying out all maintenance work. Again, no medical evidence was produced saying directly that he could not perform maintenance work. Also, as I have mentioned, the surveillance video shows Mr Di Latte performing various vigorous tasks which I find indicates that it is likely that he is capable of performing many light maintenance tasks.
The income tax records of Mr Di Latte show that he was paid a gross salary by Anthony and Sons Pty Ltd trading as Oceanic Cruises as follows:
1997/1998 - $21,000
1998/1999 - $24,500
1999/2000 - $26,000
2000/2001 - $26,000
2001/2002 - $17,800
2002/2003 - $18,900
2003/2004 - $20,900
There was no evidence which provided any explanation for the fluctuations in the salary paid to Mr Di Latte. Nor was there any evidence as to the basis on which the quantum of the salary was determined.
There is no recording in the tax returns of Mr Di Latte that he drew any salary or received any income during the above relevant years from West Boat Builders Pty Ltd.
I find that Mr Di Latte's accident injuries caused restrictions which contributed to him making a decision to utilise more employed labour in the two businesses and assume a more supervisory role. However, this would have been required to a large extent as a result of the expansion of the businesses.
I believe that an allowance should be made for Mr Di Latte being off work for some time immediately after the accident and also a small allowance for the restrictions that his injuries impose on him performing maintenance work. However, on the evidence presented at the trial I am unable to make a precise arithmetic calculation of the loss suffered. I believe the appropriate approach is to award a global amount for past and future loss of earning capacity, and I believe that in all the circumstances an amount of $32,000 should be awarded for past and future loss of earning capacity.
In reaching this sum I take into account the following:
1.I conclude that Mr Di Latte was close to full incapacity for a period of approximately 16 weeks, and allowing $750 net per week, this would amount to $12,000.00.
2.I believe a moderate amount should be awarded for the remainder of the past and future loss of earning capacity, in view of my findings as to the extent of Mr Di Latte’s disabilities and its impact on his ability to work as a skipper and do maintenance work. . I believe a lump sum of $20,000 is appropriate. I find that it is unlikely that Mr Di Latte would have worked as a skipper and do maintenance work beyond the age of 65. The sum of $20,000 equates to $2,000 per year over a 10 year period which I believe to be an appropriate allowance. I have not used a discount table as to the calculation from the present day until Mr Di Latte reaches the age of 65 as the annual figure of $2,000 per annum over 10 years has been used simply as a guide.

Future treatment

The plaintiff's claim includes a claim for future treatment but the medical evidence is that the only form of treatment that he will require is an exercise programme. To the extent that this might require expenditure for professional assistance I believe an allowance of $1,000 should be made.

Special damages

Special damages have been agreed. A schedule of special damages was submitted which showed a total of $9,509.75. However, there was an arithmetical error and the total amount should be $10,737.75. This represents a difference of $1,228.00. This appears to relate to an expenditure for a hospital bed on 3 July 2000 of $1,228.00.
In summary I provisionally assess damages as follows:
General damages  $25,000.00
Past and future loss of earning capacity               $32,000.00
Future treatment   $1,000.00
Special damages  $10,737.75
Total$68,737.75
However, on the basis of my findings on liability this is a provisional assessment only and the claim is dismissed.