Di Latte v Kailis Australia Shipyards Pty Ltd
[2008] WASCA 44
•4 MARCH 2008
DI LATTE -v- KAILIS AUSTRALIA SHIPYARDS PTY LTD [2008] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 44 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:123/2006 | 12 FEBRUARY 2008 | |
| Coram: | PULLIN JA MILLER JA EM HEENAN AJA | 3/03/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANTHONY DI LATTE KAILIS AUSTRALIA SHIPYARDS PTY LTD |
Catchwords: | Tort Negligence Skipper of boat injured while disembarking at the respondent's premises Whether respondent negligent in failing to warn skipper not to disembark until mooring complete Turns on own facts |
Legislation: | WA Marine (Certificates of Competency and Safety Manning) Regulations 1983 (WA) |
Case References: | Blyth v Birmingham Water Works Co (1856) 156 ER 1047 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Road Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 81 ALJR 177 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DI LATTE -v- KAILIS AUSTRALIA SHIPYARDS PTY LTD [2008] WASCA 44 CORAM : PULLIN JA
- MILLER JA
EM HEENAN AJA
- Appellant
AND
KAILIS AUSTRALIA SHIPYARDS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
Citation : DI LATTE -v- KAILIS AUSTRALIA SHIPYARDS PTY LTD [2006] WADC 137
File No : CIV 3147 of 2001
(Page 2)
Catchwords:
Tort - Negligence - Skipper of boat injured while disembarking at the respondent's premises - Whether respondent negligent in failing to warn skipper not to disembark until mooring complete - Turns on own facts
Legislation:
WA Marine (Certificates of Competency and Safety Manning) Regulations 1983 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A Metaxas
Respondent : Mr P G McGowan
Solicitors:
Appellant : Arthur Metaxas & Co
Respondent : DLA Phillips Fox
Case(s) referred to in judgment(s):
Blyth v Birmingham Water Works Co (1856) 156 ER 1047
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Road Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 81 ALJR 177
(Page 3)
1 PULLIN JA: This is an appeal against the judgment in the District Court of his Honour Judge Sleight who dismissed the appellant's action for damages for personal injuries.
2 There were evidentiary issues at trial, but the facts can now be briefly stated because the appellant does not challenge any of the trial judge's findings about what happened.
3 On 1 May 2000 the appellant, Mr Di Latte, without any crew, took the 'Super Cat II' vessel from Pier 21 on the Swan River, through the harbour at Fremantle and out through the heads, and then around to the respondent's premises at the Fremantle Boat Harbour. The vessel was to be lifted out of the water at the respondent's premises and the respondent company was to carry out repair works on the vessel.
4 On arrival at the respondent's premises, Mr Di Latte manoeuvred the vessel into a U-shaped berthing facility with fingers of the wharf located on the starboard and port sides of the vessel. The vessel was being skippered by Mr Di Latte without any support crew. The WA Marine (Certificates of Competency and Safety Manning) Regulations 1983 provided that a vessel of the length of the 'Super Cat II' was to be manned by at least two persons. The trial judge found that the provision of support crew was important when the vessel was berthed because it enabled the vessel to be secured both starboard and port side before the motor of the vessel was cut off, and before anyone disembarked from the vessel. The usual practice at the respondent'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.
5 Of particular importance was the trial judge's finding that 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.
6 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. The
(Page 4)
- total width of the pen was 9.46 metres and the total width of the 'Super Cat II' was 7.5 metres. Therefore, if the vessel was in the middle of the pen, the gap on each side was 0.98 metres.
7 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.
8 Thus, 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 respondent waiting on either finger jetty, although one of the respondent's employees, Mr Sean O'Donnell, arrived almost immediately and positioned himself on the port side. Mr Di Latte shut off the engine of the vessel. The vessel was moving about within the berth due to a light sea breeze. Mr O'Donnell jumped from the finger jetty on the port side onto the vessel. At the time, the vessel 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 While Mr O'Donnell was securing the vessel, Mr Di Latte came down a set of stairs to the stern of the vehicle. Mr O'Donnell was to his right, on the vessel, securing the ropes on the port side, but with his back to Mr Di Latte. Mr Di Latte 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. As Mr Di Latte was in the process of disembarking, Mr O'Donnell, in the process of securing the vessel, 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. To prevent himself from falling into this gap, Mr Di Latte lunged forward and fell on the wharf on the finger jetty. He landed on a steel railing, causing injury to his right side.
The statement of claim
10 The appellant's statement of claim pleaded out the case in the following way:
5 It was the common law duty … of the defendant to ensure that its premises was safe and free of danger and that it had adequate systems in place to ensure that its customers would not be exposed to dangers.
…
(Page 5)
- 6. At all material times the defendant was vicariously liable for and responsible for negligent acts of its employees.
…
10 The accident was caused by the negligence of the employee.
PARTICULARS OF NEGLIGENCE OF THE EMPLOYEE
- 10.1 The employee was negligent in that he:
10.1.1 entered 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.
10.1.2 failed to wait for the plaintiff to disembark from the boat prior to moving the boat.
PARTICULARS OF BREACH OF DUTY
- 11.1 The defendant was negligent in that it:
11.1.1 failed to give the plaintiff any warning of the dangers of disembarking from boats within the tammy lift system.
11.1.2 failed 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.
11.1.3 failed 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.
11.1.4 failed to supply a gangway to allow people to safely disembark from boats that were within the tammy lift system.
(Page 6)
12 The issues in a case involving the tort of negligence should be straightforward. The cause of action requires proof of the existence of a duty of care, proof of the content of that duty, proof of breach of that duty, proof that the breach caused damage and the measure of that damage. The trial judge in his reasons did not proceed in this conventional fashion. After the trial judge had set out the evidence and made his findings of fact and under a heading 'Conclusions on liability', his Honour commenced by deciding the 'question of causation'. His Honour held that the accident was caused by Mr Di Latte. His Honour then concluded that Mr O'Donnell was not negligent and that the respondent was not negligent in relation to the system it had in place in relation to the berthing of the vessels or by failing to supply a gangway.
13 His Honour made no reference to a duty of care or the content of that duty. The trial judge did not deal with particulars of negligence alleging that the respondent, and in particular Mr O'Donnell, had failed to warn Mr Di Latte before securing and tightening the mooring on the port side.
Grounds of appeal
14 There were three grounds of appeal. The first complained about the trial judge's failure to make any finding about whether a duty of care existed. However, counsel for both parties agreed at the hearing of this appeal, that by dealing with the issues of causation and 'negligence', that the trial judge must implicitly have accepted that the respondent did owe a general law duty of care.
15 Before moving on, I should make a brief comment about the duty of care pleaded by the appellant in the statement of claim and referred to in ground 1. The duty pleaded in par 5 of the statement of claim was a duty said to be owed both at common law and under the statute. As mentioned, the statutory duty is of no relevance in this appeal. The common law duty pleaded was a duty to 'ensure' that the respondent'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. The word 'ensure' means 'to make sure or certain to come, [about or to] occur'. See Macquarie Dictionary. The duty asserted in ground 1 also refers to a duty on the respondent to ensure an outcome. That is not a duty which is imposed under the general law. In Road Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 81 ALJR 177 [50], Gummow J (Heydon J agreeing), said that 'The exercise of reasonable care is always sufficient to exculpate a defendant in an action in negligence'.
(Page 7)
- His Honour there quoted Alderson B in Blyth v Birmingham Water Works Co (1856) 156 ER 1047, 1049, who said in 1865:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
In short, regard must be had to the caution which 'a man of ordinary prudence' would observe.
16 The general law duty is a duty to exercise reasonable care to avoid foreseeable risk of injury. As both parties agreed that the trial judge must have accepted that the respondent owed a general law duty of care, ground 1 must therefore be dismissed.
17 Ground 2 complains about the judge's findings in relation to causation; but before causation is considered, it is necessary to decide whether or not there was a breach of the duty of care owed by the respondent. This was the subject of ground 3, and unless ground 3 is made out, ground 2, dealing with the issue of causation, does not have to be considered.
18 Ground 3 reads:
The learned trial Judge was wrong in fact and in law insofar as he failed to find that the negligence of the respondent's employer O'Donnell was the cause of the accident insofar as:
3.1 O'Donnell failed to warn the applicant before he pulled the vessel to the port side;
3.2 O'Donnell failed to keep any look out for the appellant so as to ensure that the appellant would not be injured by O'Donnell pulling the vessel to the port side; and
3.3 O'Donnell failed to warn the appellant to remain on the vessel until it was secured by ropes on the port and starboard sides.
19 As already mentioned, the appellant did plead negligence by failing to warn. As also mentioned, the trial judge did not deal with this issue and his Honour erred in failing to do so. However, it would not be appropriate to send the matter back for a rehearing. Facts have been fully found. None of the findings are challenged. Nothing turns on the credibility of any witness. This court should therefore decide the issue on the undisputed facts. See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [44].
(Page 8)
20 What appears from the facts is that Mr Di Latte was an experienced skipper. In his evidence Mr Di Latte said that he frequently went to the respondent's premises. The trial judge found the usual practice was that the skipper of the vessel remained in the wheel house until the vessel was properly secured by the mooring ropes. The appellant should have had another person on board and if he had such a person, they could have assisted in the mooring of the vessel. Instead of staying in the wheel house - and therefore remaining on the vessel until it was moored - the appellant went to the starboard side and disembarked while Mr O'Donnell was securing and tightening the mooring rope on the port side. There was no finding that Mr O'Donnell was aware that Mr Di Latte was going to unexpectedly depart from normal practice and disembark while mooring was in progress. The finding was that Mr O'Donnell had his back to Mr Di Latte and nothing was said by Mr Di Latte to indicate that he did plan to disembark. In all those circumstances, it was not reasonable to expect Mr O'Donnell to warn Mr Di Latte not to disembark. Thus, the respondent was not under a duty to warn Mr Di Latte before he commenced pulling the vessel to the port side while he was securing it.
21 Particular 3.2 to ground 3 was not a particular pleaded in the statement of claim, but in any event, Mr O'Donnell was not under any duty to keep a lookout for the appellant to ensure that the appellant would not be injured when Mr O'Donnell was securing the vessel and pulling the vessel to the port side, because based on the usual practice, Mr O'Donnell could not have been expected to know that Mr Di Latte would depart from the usual practice of remaining in the wheel house until the vessel was moored.
22 The result is that while the appellant is correct in his complaint in ground 3 that the trial judge failed to deal with the failure to warn allegation of negligence, there was no substantial miscarriage of justice because the only conclusion which could be drawn on the facts as found, was that the respondent was not under any duty to warn.
23 It is therefore not necessary to deal with ground 2 which deals with the issue of causation.
24 The appeal must be dismissed.
25 MILLER JA: I agree with Pullin JA.
26 EM HEENAN AJA: I have had the benefit of reading in advance the reasons for decision of Pullin JA in which his Honour sets out the
(Page 9)
- background which led to this litigation, the facts as found by the learned trial judge and the grounds of appeal which I, therefore, need not repeat.
27 I agree, with respect, that on the facts as found by the learned trial judge, the respondent did owe a general law duty of care to the appellant to carry out its functions, and the functions of its employees, in relation to the mooring of this vessel with reasonable care. I also agree that it is unnecessary to address the allegation in the statement of claim of a breach of statutory duty under the provisions of the Occupational Health & Safety Act 1984 as that was not pursued on this appeal.
28 Further, I agree, with respect, with the conclusion of Pullin JA that the learned trial judge must have accepted that the respondent owed a general law duty of care to the appellant but that nothing in the facts which emerged at the trial establishes any breach of that duty by the respondent or by its employee, Mr O'Donnell. It follows that I agree that this appeal should be dismissed.
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