Elliott v Minister for Transport for the State of Western Australia

[1999] WASCA 134

ELLIOTT -v- MINISTER FOR TRANSPORT FOR THE STATE OF WESTERN AUSTRALIA [1999] WASCA 134

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 134
Court:	THE FULL COURT (WA)
Case No:	FUL:105/1998	Heard:	17 JUNE 1999
Coram:	PIDGEON J ANDERSON J PARKER J	Delivered:	19/08/99
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	MICHELLE ELLIOTT MINISTER FOR TRANSPORT FOR THE STATE OF WESTERN AUSTRALIA SHIRE OF ASHBURTON
Catchwords:	Practice and Procedure Appeal from a refusal to amend Statement of Claim for reason of no arguable case Master drowned when vessel moored outside and part capsized Claim by dependant widow against authority controlling the Port Obligations and duty of care of Port Authority Whether an arguable cause of action against Port Authority
Legislation:	District Court of Western Australia Act (1969) s 79(1)(a) Fatal Accidents Act 1959 (WA) Marine & Harbours Act 1981 (WA) s 4, s 5, s 8 Occupational Safety & Health Act 1984 (WA) s 3, s 5, s 19, s 22 Shipping & Pilotage Act (1967) (WA) s 10
Case References:	Caparo Industries PLT v Dickman [1992] 2 AC 605 Dey v Victorian Railway Commissioner (1949) 78 CLR 62 Donoghue v Stevenson [1932] AC 562 Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Hunter v The Northern Marine Insurance Company Limited [1888] 13 AC 717 in Sutherland Shire Council v Heyman (1985) 157 CLR 424 Lonrho PLC v Fayed [1992] 1 AC 448 Pyrenees Shire Council v Day (1998) 192 CLR 330 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241 Hackshaw v Shaw (1984) 155 CLR 614 Hill v Van Erp (1997) 188 CLR 159 Kondis v State Transport Authority (1984) 154 CLR 672 Schiller v Mulgrave Shire Council (1972) 129 CLR 116 Western Australia v Dale (1990) 15 WAR 464 Westralian Caterers v Eastment Limited (1992) 8 WAR 139 Wyong Shire Council v Shirt (1980) 146 CLR 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : ELLIOTT -v- MINISTER FOR TRANSPORT FOR THE STATE OF WESTERN AUSTRALIA [1999] WASCA 134 CORAM : PIDGEON J

ANDERSON J
PARKER J

HEARD : 17 JUNE 1999 DELIVERED : 19 AUGUST 1999 FILE NO/S : FUL 105 of 1998 BETWEEN : MICHELLE ELLIOTT

Appellant (Plaintiff)

AND

MINISTER FOR TRANSPORT FOR THE STATE OF WESTERN AUSTRALIA
First Respondent (Second Defendant)

SHIRE OF ASHBURTON
Second Respondent (Third Defendant)

Catchwords:

Practice and Procedure - Appeal from a refusal to amend Statement of Claim for reason of no arguable case - Master drowned when vessel moored outside and part capsized - Claim by dependant widow against authority controlling the Port - Obligations and duty of care of Port Authority - Whether an arguable cause of action against Port Authority

(Page 2)

Legislation:

District Court of Western Australia Act (1969) s 79(1)(a)

Fatal Accidents Act 1959(WA)
Marine & Harbours Act 1981 (WA) s 4, s 5, s 8
Occupational Safety & Health Act 1984 (WA) s 3, s 5, s 19, s 22
Shipping & Pilotage Act (1967) (WA) s 10

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Mr E M Heenan QC &
Mr J C R McManus
First Respondent (Second Defendant) : Mr K J Martin QC &
Mr S F Mullins
Second Respondent (Third Defendant) : Mr K J Martin QC &
Mr C B Kent

Solicitors:

Appellant (Plaintiff) : James McManus & Associates

First Respondent (Second Defendant) : Minter Ellison
Second Respondent (Third Defendant) : Barker Gosling

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

Caparo Industries PLT v Dickman [1992] 2 AC 605
Dey v Victorian Railway Commissioner (1949) 78 CLR 62
Donoghue v Stevenson [1932] AC 562
Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Hunter v The Northern Marine Insurance Company Limited [1888] 13 AC 717
In Sutherland Shire Council v Heyman (1985) 157 CLR 424

(Page 3)

Lonrho PLC v Fayed [1992] 1 AC 448
Pyrenees Shire Council v Day (1998) 192 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Case(s) also cited:

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241
Hackshaw v Shaw (1984) 155 CLR 614
Hill v Van Erp (1997) 188 CLR 159
Kondis v State Transport Authority (1984) 154 CLR 672
Schiller v Mulgrave Shire Council (1972) 129 CLR 116
Western Australia v Dale (1990) 15 WAR 464
Westralian Caterers v Eastment Limited (1992) 8 WAR 139
Wyong Shire Council v Shirt (1980) 146 CLR 40

(Page 4)

1 PIDGEON J: The appellant is the widow of the late Gavin Wayne Elliott, who was drowned when the fishing vessel Lady Pamela, of which he was master, capsized and sunk when struck by a cyclone off the port of Onslow. On 23 February 1995 the vessel was at sea fishing near Sholl Island. About 2.30 am the deceased ceased fishing and proceeded to Onslow by reason of cyclone warnings he had received. He approached to within approximately five nautical miles off the coast of Onslow and anchored in open sea. He took up this position because he believed he was not able to enter the port. It is claimed that his reason for reaching this decision was that the master of the Surveyor told him that he could not enter the port as it had been "warped-off". He was also told by the same source that the master of the Harietta had refused permission for the Lady Pamela to moor alongside her. He also heard other radio communications between other vessels to the effect that the port had been secured with warp lines and could not be entered. He spoke by radio to a representative of his employer, Mr McGowan, who was on land further down the coast. He told Mr McGowan that he was unable to obtain access to the port and that he would attempt to do so later in the day and that in the meantime he proposed to moor the Lady Pamela in the open sea. Tragically, as it transpired, the information he had received was incorrect. The warp lines were left slack and he could have entered the port and used a number of vacant moorings. It is claimed that as a result of the information he had received he moored his vessel approximately five nautical miles off the coast in open sea. This was within the boundaries of the Port of Onslow, but was unsheltered. His vessel was in this position when the full force of the cyclone struck in the early hours of 25 February causing the vessel to capsize and all aboard to drown.

2 The appellant has issued a writ against his employers as well as the Minister for Transport, who is the first respondent, and the Shire of Ashburton which is the second respondent. This appeal is in respect of the decision of his Honour Judge Sadleir, who refused to allow the appellant to amend her statement of claim against the Minister and the Shire. His Honour reached the view that the existing pleadings and proposed amendments showed no cause of action and he dismissed the claim against these two bodies. He allowed the claim against the employer to be amended and there is no appeal relating to this. The action is accordingly proceeding against the employer. The question in this appeal is whether there is a reasonably arguable cause of action against the Minister or the Shire.

3 The claim against the Minister and the Shire is set out in a proposed amended statement of claim which is described as the "Fourth Substituted

(Page 5)

Statement of Claim". The nature of the claim against the Minister is that the Minister is the body responsible for operating the port. It was pleaded that the Minister owed the deceased a duty to: (AB113)

"(a) take such steps as were reasonable to manage, staff, equip or otherwise operate the Port during cyclones in such a manner as to facilitate access by, and mooring of such vessels as may be in the near vicinity and may be imperilled by such cyclone; or further and alternatively,

(b) take such steps as were practicable to ensure that the means of access to the Port; and

(c) the system by which the Port was operated,

was reasonably safe and did not expose him to hazards."

4 There were pleaded particulars as to how this duty arose and I shall later refer to this. The breaches pleaded are: (AB114)

"(a) failed to provide an officer or officers to co-ordinate access to the Port and mooring inside the Port prior to 24 February 1995; and

(b) failed to equip such officers as may have been available with radio equipment to communicate with vessels so as to co-ordinate the mooring of vessels prior to and on 24 February 1995;

(c) failed to take the steps mentioned in subparagraphs (a) and (b) when the Second Defendant knew or ought to have known that the region was prone to cyclone activity."

5 The argument in the end reduced down to the proposition that the Lady Pamela operated from the port and consequently, at the time of a cyclone, it should have been possible to radio in to a person at the port to ascertain if it was safe to enter, and there was a duty to provide these facilities. The most obvious means is by radio, but the argument was not confined to radio. It was submitted it could be done by any means of signalling or communication.

6 The claim against the Minister, as pleaded and as argued, is that under s 5 of the Marine and Harbours Act 1981 the Department of the Minister is given certain functions and the argument continues in a way I

(Page 6)

shall later explain that in the circumstances which arose here, there was a duty to perform those functions. The more important functions of the department so far as they relate to ports and matters arising in this action are:

"5. (1) Subject to this Act, the functions of the Department are -

(a) To administer, exercise and perform the powers and duties necessary or convenient for the control and regulation in the State of marine and port affairs and navigation;

(b) to administer, exercise and perform the powers and duties necessary or convenient for the provision and regulation in the State of pilotage services, except in relation to ports where pilotage services are lawfully provided by a Port Authority;

…

(e) to regulate, control, and promote measures desirable to ensure the safety of life in connection with shipping and boating and to construct, maintain, and manage facilities and equipment necessary for that purpose;

(f) to construct, control, manage, operate, and maintain ports within the State, other than those for which a Port Authority is responsible, and to provide such plant, equipment, and facilities as are necessary for the administration and operation of such ports;

…

(h) to construct, control, manage, operate, and maintain fishing boat harbours within the State and to provide such plant, equipment, and facilities as are necessary for the administration and operation of such harbours;

(i) to construct, provide, and maintain facilities and services, both on land and water, that are desirable to meet the needs of effective and efficient shipping and boating, both recreational and commercial, including -


(i) port works;

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(ii) jetties, landing places, slips, platforms, grids, breakwaters, depots, and sheds;

(iii) moorings;

(iv) fishing industry facilities;

(v) launching ramps;

(vi) navigation aids;

(vii) marine craft;

……..

(k) to perform such other duties relating to marine and port affairs within the State, not being inconsistent with this Act, as the Minister may from time to time require."

7 Seven of the ports within Western Australia are operated by Port Authorities each constituted by separate Acts of Parliament. The section I have set out recognises this by excepting from the operation of the section those ports which are operated by a Port Authority. There is no enactment creating a Port Authority for Onslow, so if Onslow is a port, then the Minister's Department has a function to perform for such a port. For example, there is a function under subpara (b) to provide pilotage services and, in particular, there is a function under subpara (f) to manage and operate ports within the State other than those for which a Port Authority is responsible.

8 It is pleaded that Onslow is a port. I would see an arguable case to establish this proposition. Section 10 of the Shipping and Pilotage Act 1967 provides that every port specified in the Schedule continues and is declared to be a port "for the purposes of this Act" and shall be known by the name and bounded by the limit specified in the schedule in relation to that port. Onslow is so specified in the Schedule. The Act empowers the Governor to appoint harbour masters and pilots and sets out the powers and duties of harbour masters. It was suggested in argument that Onslow is a port only for the purposes of that particular Act. It is sufficient to say, at this stage, that there would be a strong argument that it is a port by virtue of that Act and that, in any event, it would be open to prove by evidence, as a fact, that it is a port. We were informed that there are port boundaries designated by some authority.

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9 As there is an arguable case that it is a port and as there has been no Port Authority constituted for that port, there would be an arguable case that the department of the Minister is responsible for operating it under s 5(1)(f) and for carrying out the other functions referred to in the section. There is no plea that the Minister is the person or body operating the port of Onslow. The plea is that the Minister is responsible for the administration of ports generally. I would not see this as presenting a difficulty as the greater would include the lesser.

10 The plea is that the Minister owed the deceased a duty to take the steps specified in the plea I have set out. It is claimed this arose by reason of the relationship between the Minister and the deceased. It is submitted that, in the circumstances which arose, the Minister was under a duty to exercise powers given by s 5. It is claimed in the alternative that the duties arose under the Occupational Safety and Health Act 1984 by reason of the port being a work place.

11 Once it is established that the Minister is operating a port then I would see an arguable case that the duties contended for would arise at common law without resorting to the Occupational Safety and Health Act. The common law duties of a person operating a port were referred to by Halsbury LC in Hunter v The Northern Marine Insurance Company Limited [1888] 13 AC 717 at 722. His Lordship quoted from the Treatise ascribed to Sir Matthew Hale and contained in Hargreaves Law Tracts 46. It would be sufficient for this case to say that there would be an argument at common law that the person operating a port has a duty to provide safe access into the port and that there is a duty that the vessel must be able to safely lie within the port protected from winds. I would not see these propositions of common law being detracted from by a submission at common law that Onslow may only be a harbour as distinct from a port. I would see an argument that the duties are similar. Harbours include ports in a sense that ports may be limited to where imported goods are loaded and unloaded when Customs officers are present. There is much to indicate that the terms are interchangeable.

12 It is apparent from the argument submitted on this appeal on behalf of the respondents and it is implicit from the proposed statement of claim that there was at all times safe access into the port and that the vessel would have been safely protected within the port as were the other vessels moored there which did not come to harm. The appellant's proposed statement of claim does not make allegations to the contrary. It is apparent from the pleaded claim that the deceased made the decision to moor well out to sea. There is pleaded the information he received from

(Page 9)

other vessels that led him to the mistaken view that he was not able to enter the port.

13 The claim, as ultimately explained, is reduced to the proposition that there should have been means available for the deceased to ascertain if the information he received about the port being closed was correct and whether it was open to him to enter the port. The question whether the duty, at common law, would extend as far as this would not arise unless it were foreseeable that the deceased may receive information of this type causing danger to arise.

14 The way the claim was argued was that the department of the Minister had a function under s 5 to do the matters to which I have referred. The submission is that it is arguable that the Minister was negligent in the circumstances which arose through the department not performing the function it had. The submission is based on the cases of Pyrenees Shire Council v Day (1998) 192 CLR 330 and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. In the first case a municipality was given certain powers it may exercise for the purposes of preventing fires. A defect in a chimney was brought to its notice and it did not fully exercise its powers to prevent the danger which arose. It was held that the municipality was liable in negligence. Brennan CJ considered that the municipality was liable as it was under a public law duty to exercise its statutory powers. The other members of the Court considered that there was liability on the ground that the municipality was in breach of a duty of care owed to the adjoining shop owners. In the second case a person received injury when falling on land under the occupation and control of the respondent. It was held by the majority that the respondent was under a duty to persons entering the land to take reasonable care to avoid reasonably foreseeable risks of injury and the risk which occurred was reasonably foreseeable, but it was held that the respondent was not in breach of its duty of care by failing to erect a fence on the cliff from which the plaintiff fell.

15 Judge Sadleir examined each of these cases in detail. His Honour stated that the foundation for the duty of care is derived from statutory powers which powers must be exercised with reasonable care and the particular circumstances. His Honour said: (AB43)

"In Romeo's case, Kirby J said (at para 107) that a claim based in general negligence, as opposed to breach of statutory duty, against an authority (such as the Commission involved in that case) depends on the existence of a duty of care which amounts

(Page 10)

to an elaboration of the responsibilities which the common law exacts from a body having the statutory powers and functions conferred on it by Parliament. As Kirby J also said,

'What the common law does, in effect, is to impose on the statutory body, as a legal person, the liability which it attaches to all other persons.'

The foundation for that duty of care is derived from the statutory powers, which powers must be exercised with reasonable care in the particular circumstances.

As to the finding of a duty of care, Kirby J repeated (at para 115) his preference, expressed in the Pyrenees case, for the conclusion that three considerations are involved in deciding whether or not a duty of care exists:

1. Whether it was reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage, or a person in the same position.

2. Whether there exists between the alleged wrongdoer and such person a relationship characterised by the law as one of 'proximity' or 'neighbourhood'.

3. Whether it is fair, just and reasonable that the law should impose a duty of a given scope on the alleged wrongdoer for the benefit of such person.

Kirby J went on to say (para 118) that the 'touchstone of the existence of proximity was that there was reasonable foreseeability of a real risk of injury to a person such as the appellant'. But, there may also sometimes be a need, as a matter of legal policy, to limit the imposition of a duty of care to that which is fair and reasonable:

'If foreseeability and proximity, alone, take the law into the imposition of duties of care which are unfair, unreasonable and unrealistic, the time will have come to re-express the pre-conditions for the existence of the duty in a way more harmonious with such considerations.'

Kirby J also pointed out (at para 122),

(Page 11)

'It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.'

Finally there is the question of causation - so that even if there was a breach of duty of care in general negligence, it must be shown as a probability that, had the defendant fulfilled its duty as defined, the plaintiff's damage and loss would have been avoided."

16 His Honour then indicated that in order to establish the claim on the basis alleged, that it must be foreseen that a master, seeking shelter in the Port due to the risk of cyclone, may mistakenly be led to believe by others that a mooring in the sheltered area is not available, thus causing him to moor out to sea in a position of risk to the vessel. His Honour concluded in effect that there was no possible argument that it could be said that this could be reasonably foreseeable by either respondent.

17 For my part I consider his Honour was right. Before it can be alleged that there was a breach of duty in not exercising statutory powers, the risk outlined must be foreseeable. Mr Heenan submitted that the risk which should have been foreseen is whether it was likely that a vessel in distress or in impending distress would wish to communicate with the port to inquire whether it can come in. It would obviously not be reasonable to expect the Minister to man every port harbour haven or other place on the coast where vessels moor. The vessels operating from the port use it safely in normal circumstances without having the facility contended for. In times of cyclone the few government officials which can be expected to be in the remoter areas would have many pressing duties to save life and property and it would not be reasonable to ask them to focus on the particular task contended for. It would be difficult to contemplate circumstances when a fishing vessel with a certificated master would be unable to enter a port such as Onslow without communicating in the manner suggested. In my view the duty could not arise unless it were foreseeable that a vessel would receive the type of information referred to causing it to make the decision not to come into port. I can see no possible argument that this situation would have been foreseeable at the time of the tragedy. Nothing has been pleaded or referred to in argument where it could be said that the Minister was liable in damages for not performing functions he had.

(Page 12)

18 This would also dispose of the claim against the Shire. There are, in any event, further hurdles in respect of the claim against the Shire. The pleadings do not disclose an arguable basis whereby the Shire could be liable. It is not claimed that it had statutory powers relevant to the port. The particulars refer to the fact that the port is within its boundaries but this, of itself, would not give rise to liability. The next particular claims that the port is a port the Shire "usually operates". This is inconsistent with the statutory framework to which we have been referred and on which liability for the Minister is based. Under subs (f) of the Act the Department of the Minister operates the Port. It was submitted that evidence will show that an officer of the Shire performed some functions in the port. This, too, of itself, would not establish liability as the officer may be one of the few officials available in the area to carry out such functions and on the face of it would be doing it on behalf of the agency specified by the Act as being the person operating the port.

19 I would dismiss the appeal.

20 ANDERSON J: I have had the advantage of reading in draft the judgment of Parker J. For the reasons expressed by him, I agree that the causes of action pleaded against the defendants are not arguable. I also agree, for the reasons given by Parker J, that no error has been demonstrated in the learned District Court Judge's decision not to grant leave to re-plead. I would therefore dismiss this appeal.

21 PARKER J: The factual and statutory background and the issues relevant to this appeal have been outlined in the reasons of Pidgeon J which I have had the advantage of reading. I will not repeat them.

22 The plaintiff seeks to attach liability to the Minister for a contended failure of the Minister's Department to perform so much of its statutory functions as would have provided an adequate means of communication between vessel and port and navigational information and assistance to the certificated skipper of the fishing vessel the Lady Pamela as it made to enter the port of Onslow for safe mooring while running before an advancing cyclone.

23 The Lady Pamela is a fishing vessel which at the time operated out of the port of Onslow. The port proper lies within Beadon Creek as it enters the ocean. It is located on the northwest coast of this State, which is an extensive coastline lying within the tropics and seasonally the coastline is prone to cyclones. There are only isolated pockets of

(Page 13)

habitation and commercial activity along this coastline. Onslow is one of these.

24 The Lady Pamela did not enter within the mouth of the creek but instead only approached to within approximately five nautical miles off the coast and anchored in the open sea. It appears that where it anchored, although in the open sea, may have been within the outer limits of the port as those limits are proclaimed for the purposes of the Shipping and Pilotage Act 1967. There the Lady Pamela capsized and sank on 25 February 1995 with the loss of all hands while subject to the full force of the cyclone. The plaintiff is the widow of the skipper and sues for the loss of her husband, apparently in reliance on the Fatal Accidents Act 1959.

25 Much of the argument on appeal concentrated on the decisions of the High Court which are reported consecutively as Pyrenees Shire Council v Day & Anor (1998) 192 CLR 330, and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. Of these the Pyrenees decision is the more pertinent because of its extensive consideration of the relevant legal principles. It may fairly be said from these decisions that the principle or principles governing the circumstances in which a public authority might be liable for harm to an individual resulting from a failure to perform a statutory function remains unsettled and the judicial search continues for the most satisfactory approach to this difficult issue. As the cases reviewed in the Pyrenees decision reveal, that is the position throughout the common law world, not merely in Australia.

26 On the basis, in particular, of the Pyrenees decision the plaintiff sought to demonstrate that it had a reasonably arguable case for the existence in the Minister's Department of a common law duty to provide an adequate means of communication with, and navigational information or assistance to, vessels wishing to enter the port in an emergency such as a cyclone, and that there had been a breach of that duty giving rise to liability in this case. It was also contended, though perhaps more feintly, that liability might also attach to the Minister on the basis that the statutory functions of the Department relied on were in the nature of duties per se giving rise to a cause of action to a person harmed as a consequence of a failure to perform such duties. The plaintiff also contended for liability in the Minister for a breach of statutory duty said to arise under the Occupational Health and Safety Act 1984. In the alternative, the plaintiff also sought to call in aid that Act in combination with the common law principles considered in the Pyrenees decision to

(Page 14)

found the existence of a duty of care in the Minister's Department, and its breach.

27 The plaintiff's arguments against the Minister were with some little modification echoed against the second respondent, the Shire of Ashburton. The Shire is the local authority having responsibility inter alia for the Town of Onslow. It had no direct statutory function or power relevant to the port but, on the plaintiff's pleading, by arrangement with the Minister's Department it performed for the Department some functions connected with the operation of the port. No distinct basis for liability of the Shire emerged apart from those relied on as against the Minister. Should the appeal fail as against the Minister, no basis appears on which it might succeed as against the Shire. I propose, therefore, to consider the position as against the Minister. Only if that aspect of the appeal succeeds will it be necessary to consider in detail the appeal as against the Shire.

28 In this case the final form of the plaintiff's pleading was contained in a minute of proposed fourth substituted statement of claim. In the event leave was not granted to allow the statement of claim to be amended in accordance with the minute. Her claim was also dismissed. For the present it is appropriate to concentrate on the second and more significant of these circumstances. It is well settled that a court should be slow indeed to strike out a plaintiff, there being good reason as a matter of principle to hold in favour of a litigant's right to have his or her plea determined after trial of the facts, especially in cases of doubt; Dey v Victorian Railway Commissioner (1949) 78 CLR 62, General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125, 130.

29 Of course, as this last case reminds us, argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed.

30 The clear principles enunciated in these decisions, and in cases such as Lonrho PLC v Fayed [1992] 1 AC 448, 469 and Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241, are of particular importance where, as here, the state of the applicable law is somewhat unsettled. Care is necessary not to risk stifling the development of the law; Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365, 373.

31 It is against the background of such clear statements that the task of assessing whether the plaintiff's intended case is clearly not arguable must

(Page 15)

be determined. Because of these considerations, and the course of events below, I proceed on the bases which most favour the plaintiff. In particular, to the extent that submissions for the plaintiff went beyond what is pleaded in the minute of proposed fourth substituted statement of claim. I propose to treat those submissions as indicating the case the plaintiff would plead were the plaintiff's claim not dismissed.

Breach of statutory duty

32 The relevant provisions of the Marine and Harbours Act 1981 ("the M & H Act") are set out in the reasons of Pidgeon J. The most pertinent provision is s 5(1) which identifies the "functions" of the Department. More than one of the functions listed could serve the plaintiff's purposes in this case, although the most obvious is s 5(1)(e) which provides:

"(e) To regulate, control, and promote measures desirable to ensure the safety of life in connection with shipping and boating and to construct, maintain, and manage facilities and equipment necessary for that purpose."

33 The responsibility of the Department, accepting for the present submissions of the plaintiff in this respect, extend to all ports in the State other than the seven major ports for which provision is made by separate statute for a Port Authority. Hence it may loosely be said that the Department stands in the place of a Port Authority in respect of the port of Onslow.

34 The language of s 5(1), the nature of its subject matter, and the scheme of the whole M & H Act, all point unmistakably to s 5(1) being an empowering provision intended to enable the Department to take whatever steps, in the exercise of its statutory functions, are considered appropriate from time to time in respect of each of the many ports which are subject to is statutory administration. Neither the language nor the scheme of the M & H Act provides any adequate foundation, in my view, to support an argument that the legislature intended, in effect, the functions identified in s 5(1) to be duties, to be exercised by the Department in respect of all or any of the ports under its statutory responsibility, either per se or in any specific situation, and in respect of which by force of the statute an action should lie by individuals who might suffer harm as a consequence of any failure to perform any such duties. In my view it is unmistakable that the legislative scheme is to the contrary of any proposition that s 5(1) itself gives rise to a statutory duty in favour of any person who might suffer harm as a consequence of the

(Page 16)

failure to perform any of the functions which the statute assigns to the Department.

Common law duty

35 It is necessary, therefore, to consider whether there is shown to be a reasonably arguable case for the existence, in the circumstances raised by the plaintiff's case, of a common law duty to perform or exercise the statutory function contemplated by s 5(1)(e), or any of the other potentially relevant paragraphs of that subsection. For practical purposes it is enough to identify the duty contended for as one to provide adequate means of communication to enable vessels to obtain navigational information and assistance should they seek to enter the mouth of Beadon Creek, and moor within it, in times of emergency by virtue of approaching cyclonic conditions. That is the essence of the plaintiff's case as it is sought to be pleaded and as it was argued.

36 On the plaintiff's case, the Lady Pamela was one of a number of fishing vessels which regularly conducted ocean fishing operations out of Beadon Creek. When not at sea they normally moored within the Creek. It is not pleaded or contended that these vessels, including the Lady Pamela, normally relied in any way on the Department to provide either a means of communication or navigational information or other assistance to enable them to operate from Onslow or to enter or leave Beadon Creek or to moor within it. Theirs may be described as a self-supporting operation. Nor is contended that the Department had in any way entered upon the exercise of any of its potentially relevant statutory functions in respect of the port of Onslow, so as to provide at any time any means of ship to shore communication or navigational information or other assistance to vessels operating out of Onslow or entering or leaving Beadon Creek or the proclaimed port area.

37 As indicated in the reasons of Pidgeon J at all times material to this action, the port and in particular Beadon Creek was open to the Lady Pamela, which could have safely entered and moored within Beadon Creek. The Lady Pamela did not attempt to enter Beadon Creek. It is the case to be raised that the master decided against entering Beadon Creek because he wrongly understood from radio communications with or of other vessels, either or both that he could not enter because of ropes stretched across the Creek securing the moored vessels within to each bank, or because the mooring he hoped to use was not available.

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38 The facts accepted as part of the plaintiff's case are that there were many moorings available within Beadon Creek and no ropes were stretched so as to impede vessels entering Beadon Creek from the sea, although lines had been laid to secure all moored vessels to each bank but these were slack and lay on the bed of the Creek.

39 Clearly enough, were Onslow maintained as a manned port by the Department, and were there adequate means of communication between the port and vessels at sea, whether generally or, as the plaintiff argues for, during times when cyclonic conditions threaten, the Lady Pamela could have been correctly informed and might well have entered the Creek and moored safely.

40 Hence the issue is squarely raised whether there was a duty owed to the skipper and crew inter alia of the Lady Pamela to provide appropriate staffing and means of communication so that navigational information and assistance of the type indicated could be provided to vessels wishing to enter Beadon Creek, at least in times of danger from cyclones.

41 Because of the different bases upon which the various members of the High Court in the Pyrenees decision approached the question of the existence of a duty, no one test or approach can be applied in the present case. It is necessary to have regard to the differing approaches that commended themselves in that case, save that the plaintiff does not seek to rely upon the position taken by the learned Chief Justice. The Chief Justice took a position quite different from the other members of the Court. He held that, in the circumstances existing in the Pyrenees decision, there was a public law duty to exercise the statutory powers re fire prevention which were available to the local authority. This approach has not commended itself to any other member of the Court, despite the full consideration given to the principles in the Pyrenees decision and the Romeo decision and other later cases. That may therefore be put aside.

42 In the Pyrenees decision, Toohey, McHugh, Gummow and Kirby JJ each held the local authority to be in breach of a duty of care owed to the other shop owners but, unlike Gummow and Kirby JJ, Toohey and McHugh JJ did not extend that duty to include the tenants of the shop in which the fire occurred. While there were some marked differences between the approach of their Honours each of them accepted the need to demonstrate the existence of a reasonably foreseeable risk of harm. In his reasons for decision Pidgeon J has reached the conclusion that in the present circumstances the plaintiff has not been able to demonstrate the existence of a reasonably arguable case as to foreseeability. I would not

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wish to add to what his Honour has said in this respect and I respectfully agree with the conclusion he has reached. That alone is a sufficient basis for concluding that this appeal should fail. There are, however, other difficulties in the way of the plaintiff's submissions which I will canvass, albeit briefly.

43 Particularly at 356 - 361 in the Pyrenees decision Toohey J considered and adopted the notion or doctrine of general reliance, as relevant in particular to the issue of proximity in a three fold test of foreseeability, proximity and fairness (361 [76-77]). The notion of general reliance which Toohey J adopted was that considered by Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 where at 464 Mason J said:

"[T]here will be cases in which the plaintiffs reasonable reliance will arise out of a general dependence on an authority's performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury or disability, recognised by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their protection. The situation generates on the one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realisation that there is a general reliance or dependence on its exercise of the power … the control of air traffic, the safety inspection of aircraft and the fighting of fire in a building by fire may well be examples of this type of function."

At 360 [72] Toohey J identified the relevant approach to be to ask whether, having regard to considerations bearing upon general reliance and proximity, a duty of care arose, and at [74] his Honour adopted the view that proximity directs attention to the fact that enquiry must be made to determine whether there are factors additional to reasonable forseeability that will justify a finding of proximity.

44 It appears to me that the circumstances of this present case fall short of demonstrating an arguable case of general reliance in the sense adopted by Toohey J.
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45 On the plaintiff's own case there would appear to be a complete absence of any provision at the port of Onslow of the type contended for, a complete absence of any possible basis for any general reliance or expectation that there would be a communication and navigational service of the type contended for, and a complete absence of any basis for the Department to realise that there was any general reliance or dependence on the Department to provide and staff a communication and navigational service of the type contended for.

46 The plaintiff sought to contend that there was a vulnerability and therefore necessarily a dependence demonstrated by the particular circumstances which befell the Lady Pamela and her crew in this case. In my view, that misunderstands the concepts of particular vulnerability and special dependence as expressly contemplated by Toohey J and the decisions on which he relied.

47 I also note that at 301 [77] his Honour would confine the use of general reliance as a basis of the finding the existence of a duty of care to cases where the omission by the authority was not a result of policy considerations such as a lack of funds or resources, but is more properly to be viewed as within the "operational" sphere of that authority's activities; this refers back to a passage which his Honour quoted at 368 [67] from Mason J in the Heyman decision which is further discussed by Toohey J at 358 - 359 [68]. It is the plaintiff's case that the Department had failed at all to staff and equip the port of Onslow to provide the communication and navigational service contended for. That commends itself as raising issues of policy and provides no arguable foundation for a contention that the failure was operational in the relevant sense. In my view the approach which commended itself to Toohey J in the Pyrenees decision would not support, even on an arguable basis, the case which the plaintiff seeks to advance against the Minister.

48 While there are clear distinctions between the reasoning of McHugh and Toohey JJ in the Pyrenees decision, McHugh J also endorsed and his decision turned on the notion of general reliance. At 370 - 371 [107] McHugh J identified the general reliance doctrine as only applying in limited situations which he described in terms which paralleled those used by Mason J in the passage quoted earlier from the Heyman decision. In particular reference was made to situations of such magnitude or complexity that individuals cannot take steps for their own protection ie where individuals are vulnerable to harm from immense dangers which they cannot control or understand and often enough cannot recognise. His Honour further reasoned that reliance is not a fiction where an authority

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provides a service in that area, particularly so where the authority "has supplanted private responsibility as in the case of air traffic controllers and in cases such as fire control". This was further emphasised at 372 [114] where his Honour noted in Victoria for many years councils had exercised extensive statutory powers for the purpose of reducing dangers to safety and health from risk of fire and, as a natural consequence of which, owners or occupiers looked to councils to eliminate that danger. Even so, it was his Honour's view that it was not reasonable in that case for occupiers of premises to rely on the council to protect them from defects in their own premises.

49 I find nothing in the reasons of McHugh J which would support the plaintiff's contention that it has a reasonably arguable case for there to have been general reliance by the skipper, or others in a like position, on the Department providing the staff and communication equipment necessary to provide the navigational information and assistance identified in the plaintiff's case.

50 Neither Gummow nor Kirby JJ were prepared to accept the general reliance doctrine.

51 As I understand the reasons of Gummow J his Honour approached the Pyrenees decision on the basis of settled common law principles. His Honour found the existence of a duty of care owed, and a breach of that duty, by the Council, on two distinct bases:

"(1) Particularly at 389 [168] his Honour reasoned that the Council had a duty of care to safeguard others from a grave danger of serious harm in circumstances where the counsel 'was responsible for the continued existence of the grave danger and was aware of the likelihood of others coming into proximity of the danger and had the means of preventing it or of bringing it to the knowledge of those in danger; and

(2) At 391 [177] a public authority which enters upon the exercise of statutory powers may place itself in a relationship to others which imports a common law duty to take care to be discharged by the continuation of, or additional exercise of those powers. This was founded in his Honour's view in the rule that when statutory powers are conferred they must be exercised with reasonable care."

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52 In the present case, there is no possibility of liability attaching to the Minister on either of these bases. It is enough to note the following. With respect to the first, the Department was not responsible for the continued existence of the grave danger presented by the cyclone. With respect to the second, the very foundation of the case for the plaintiff is the failure by the Department to enter in any relevant way upon the exercise of its statutory functions.

53 Kirby J not only rejected the general reliance doctrine, but also recognised what he saw to be limitations on the usefulness of proximity as a basic criterion. In the result his Honour was led to favour the approach which the House of Lords turned to in Caparo Industries PLT v Dickman [1992] 2 AC 605, 617 - 618 which required three questions to be determined in the affirmative viz forseeability, proximity, and whether it was fair, just and reasonable to impose a duty of care in the circumstances, the onus being on the plaintiff to establish each of these (419 - 420 [244]).

54 Kirby J recognised that this approach lacked exact precision and sure predicability but he concluded that attempts to achieve such qualities had failed. This led his Honour to accept the view that the outer boundary of liability and negligence is fixed by a reference to a spectrum of factors and by policy considerations (419 [255]). Apart from the issue of forseeability, in the circumstances of this case it is to be foreseen that the plaintiff's proposed case is untenable with respect to the third limb of the test accepted by Kirby J. As was observed by Kirby J at 420 [245] this third limb involves the weighing of competing considerations of legal policy in order to determine whether, notwithstanding the proof of forseeability and proximity, the law should impose a duty at all or a duty of a scope which the injured party needs in order to succeed. In the present case, even if it were to be assumed that forseeability and proximity could be established, there would remain obvious problems. The generality of the empowerment provisions, the wide range of functions they empower, and the number and variety of ports to which they apply. Then there is the extremely confined factual setting in which it is contended that the forseeability of the harm relied on could be demonstrated ie circumstances of emergency from cyclones where those on the vessel are misled into thinking they cannot enter the port or perhaps that they cannot moor if they do. Given these matters it is not apparent on what basis even arguably, it would be open at a trial to conclude to that it would be fair, just and reasonable that appropriate staffing and communication equipment should be provided against the risk of such harm. It is to be noted that the practical reality, if the plaintiff's case in

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this respect were to succeed, would be to require the provision of appropriate staffing and communication equipment at all northwest ports, at least during the cyclonic season, although it must be questioned that a distinction might validly be maintained between emergencies due to cyclonic conditions and the other forms of foreseeable emergency which might befall vessels, whether due to nature or other causes. Indeed there is reason to doubt that northwest ports could be distinguished from other ports on any sound basis. Even putting aside those possible consequences, the basic proposition that the Department should provide the staffing and communication equipment contended for is so manifestly heavily dependent on matters of policy and finance, and depends upon such a limited base of foreseeable risk that I am not persuaded that the plaintiff has demonstrated that there is an arguable case in this respect. Indeed, the submissions for the plaintiff invited this Court to disregard the approach of Kirby J as one not likely to prevail. While that might enable the plaintiff to avoid the problem presented by the third limb of the test favoured by Kirby J it would appear to throw the plaintiff back to the problems presented by the general reliance doctrine favoured by Toohey and McHugh JJ.

55 For these reasons I am not persuaded that the plaintiff has demonstrated that she has a reasonably arguable case against the Minister on any of the approaches which might be followed in the resolution of the plaintiff's claim. I am left, in the end, quite unpersuaded that the result arrived at in this respect by the learned District Court Judge was wrong.

The Shire of Ashburton

56 As previously indicated I see no basis on which the plaintiff might succeed against the Shire in the absence of a case against the Minister. It has no reasonably arguable case against the Minister so that I will not give further consideration to the appeal as against the Shire.

Occupational Safety and Health Act

57 The plaintiff also sought to invoke the Occupational Safety and Health Act 1984 ("OS&H Act") to found the existence of a duty of care in the Minister's Department owed to the plaintiff's deceased husband, the skipper of the Lady Pamela. Reliance is placed on the Act itself and alternatively on the Act in conjunction with the common law.

58 It is contended that, relevantly, the effect of the Act is to achieve by legislation what has in effect been achieved by the course of common law

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decisions, namely that the standard of care owed by a defendant as employer or as occupier of premises to persons entering the defendant's premises or ambit of control is governed by a single standard of care expressed in terms of the general duty formulated in Donoghue v Stevenson [1932] AC 562, 580.

59 In particular, reliance is placed on s 22 of the OS&H Act which provides:

"(1) A person who 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.


(2) Where a person has, by virtue of a contract or lease, an obligation of any extent in relation to the maintenance or repair of a workplace or the means of access to and egress from the workplace, the person shall be treated for the purposes of subsection (1) as being a person who has control of that workplace or that means of access or egress.

(3) A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).

(4) A person who contravenes subsection (1) commits an offence and is liable to a fine of $100 000.

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(5) A person who contravenes subsection (1) and by that contravention causes the death of, or serious harm to, any person commits an offence and is liable to a fine of $200 000."

60 These provisions are to be read in the plaintiff's contention with the definition of workplace in s 3 which is:

"'workplace' means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work."

To that I would add the definitions of "practicable" and "hazard" in s 3 which are:

"'practicable' means reasonably practicable having regard, where the context permits, to --

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about --


(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

and


(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

'hazard', in relation to a person, means anything that may result in --


(a) injury to the person; or

(b) harm to the health of the person."

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61 As I understand the plaintiff's argument it is that the skipper and other crew of the Lady Pamela were likely in the course of their work, at times, to be within Beadon Creek at the port of Onslow, that being a place under the statutory control of the Minister's Department, so that by s 22(1)(b) the Department was obliged by that provision "to take such measures as are practicable to ensure that … the means of access to or egress from" the port are such that the master and crew "are not exposed to hazards". In the present case the hazard being the danger of the cyclone and the measures contended for being the provision of staff and adequate means of communication to provide navigational information and assistance to the Lady Pamela as it made to enter the port.

62 In my view there are fundamental difficulties with the submission. On a general basis it depends on giving to the OS&H Act a meaning and effect beyond that arguably intended or achieved by the legislature. The objects of the OS&H Act are set out in s 5 which provides:

"The objects of this Act are:

(a) to promote and secure the safety and health of persons at work;

(b) to protect persons at work against hazards;

(c) to assist in securing safe and hygienic work environments;

(d) to reduce, eliminate and control the hazards to which persons are exposed at work;

(e) to foster co-operation and consultation between and to provide for the participation of employers and employees and associations representing employers and employees in the formulation and implementation of safety and health standards to current levels of technical knowledge and development;

(f) to provide for formulation of policies and for the co-ordination of the administration of laws relating to occupational safety and health;

(g) to promote education and community awareness on matters relating to occupational safety and health."

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Part III, of which s 22 forms a part, contains general provisions relating to occupational safety and health. In particular, s 19 details the duties of employers which in general are "so far as practicable" to "provide and maintain" a working environment in which his employees are not exposed to hazards". Section 20 details the duties of employees which in general are to take reasonable care to ensure his own safety and health at work and to avoid adversity affecting the safety or health of others. There are also duties imposed on manufacturers who supply plant for use in a workplace, provisions for the prohibition of certain activities in prescribed areas which threaten the safety and health workers, and provisions for the resolution of occupational safety or health issues at a workplace which include the capacity of an inspector, who has been notified of a risk of imminent and serious injury or harm to health, taking appropriate preventative measures.

63 The OS&H Act is manifestly directed to occupational health and safety in the course of work and in that context, and for that purpose, provisions such as s 22 are clearly pertinent and their operation both with respect to a workplace and to the means of access to and egress from a workplace are clearly appropriate. The plaintiff's case, however, seeks to apply these provisions to the facilities provided by what may be described loosely as a Port Authority for the navigational safety of vessels at sea and entering or leaving a port, and to do so not by reference to some hazard to safe navigation created or maintained by the Port Authority but by reference to a hazard of nature, ie the effects of a cyclone on the safe navigation of a vessel at sea. It was to avoid such a risk of nature that the Lady Pamela sought to enter the safety of Beadon Creek.

64 In my view, it is so manifestly obvious that the operation of s 22 contended for is beyond the intended scope and effect of the provision and the Act that the contrary is not reasonably arguable.

65 Looking more particularly at s 22(1), the plaintiff's submissions appear to involve a confusion of some of the statutory concepts. In my view, in the circumstances of this case, there is a clear distinction between a "workplace" and those waters of the sea (whether within or without the proclaimed outer limits of the port of Onslow) in which the Lady Pamela sailed as the skipper wrestled with the question whether he should put into Beadon Creek or anchor at sea, or in which she would need to sail to enter Beadon Creek. These waters of the sea may well be within the proclaimed area of the port in whole or part, but it is not a valid reading of the provision to say that they are thereby a workplace for the purposes of the Act. The means of access to or egress from the port for shipping was

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to sail in waters of the sea. The statutory question is whether persons using those waters of the sea for access or egress were exposed to hazards which could have been avoided or abated by reasonable measures by the Port Authority. There was nothing about those waters of the sea per se which exposed the Lady Pamela or her crew to hazard. Hazard there was, but that was the cyclone, not the sea approaches to Beadon Creek. No practical measures are suggested in the plaintiff's case which could have made those parts of the sea less hazardous in the face of a cyclone. The hazard of the cyclone could not be abated by any practicable measure which the Port Authority could take with respect to the waters of the sea which were the means of access or egress to Beadon Creek. The want of care contended for was the failure to provide the master of the Lady Pamela with means of attaining navigational information and assistance so that he could clear those waters of the sea which comprised the means of access or egress to Beadon Creek and enter the relative safety of the Creek before the forces of nature overcame the vessel. It is not to such a want of care that s 22(1) operates. In my view there is no arguable case demonstrated for a construction of s 22(1) which would support the duty of care contended for in the Department and owed to the skipper and crew of the Lady Pamela.

Conclusion

66 For these reasons I agree with Pidgeon J that the learned District Court Judge was right not to allow amendment in accordance with the minute of the fourth substituted statement of claim. Normally, of course, if there is a discernible case the plaintiff would be allowed to re-plead. In the present case the learned Judge could not discern a case. It must be remembered, also, that the plaintiff had re-pleaded several times, but without success, and that even though the plaintiff had been granted leave to file yet a further statement of claim a conscious decision was made to stand by that in the minute of the fourth substituted version. Given these circumstances, it has not been shown that there was error in the decision of the learned District Court Judge to dismiss the plaintiff's claim as against the Minister and the Shire.

67 Hence, in my view, this appeal must fail.

68 The plaintiff's case against the owner and operator of the Lady Pamela remains on foot, of course, and no doubt it will be pursued in due course.