Essaiyd v Saint - [2021] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ESSAIYD -v- SAINT [2021] WADC 61
CORAM:   GILLAN DCJ
HEARD:   19-22 & 28 JANUARY 2021
DELIVERED          :   18 JUNE 2021
FILE NO/S:   CIV 3552 of 2018
BETWEEN:   MOHAMMED ESSAIYD
Plaintiff
AND
MARK ROBERT SAINT
First Defendant
MARETERRAM FISHERIES PTY LIMITED
Second Defendant
GAVIN CARTER
Third Defendant

Catchwords:

Personal injury to hand - Share fisherman - Operation of hydraulic hopper lid - Failure to warn and direct - Safe system of work

Legislation:

Civil Liability Act 2002 (WA)
Occupational Safety and Health Act 1984 (WA)
Occupiers Liability Act 1985 (WA)
Workers' Compensation and Injury Management Act 1987 (WA)

Result:

Judgment for the plaintiff against the first and third defendants
Action against second defendant dismissed

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr G R Hancy
Second Defendant	:	Mr G R Hancy
Third Defendant	:	Mr G R Hancy

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Cocks Macnish
Second Defendant	:	Cocks Macnish
Third Defendant	:	Cocks Macnish

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

ACE Insurance Limited v Trifunovski (2013) 209 FCR 146
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 381 ALR 457
Corbett v Town of Port Hedland [2021] WADC 55
Cullen v Trapell [1980] HCA 10; (1980) 146 CLR 1
Dominic B Fishing Pty Ltd and Federal Commissioner of Taxation [2014] AATA 205
Hayes v Mazurak & Union International Pty Ltd (Unreported, WADC, Lib No D990024 (CIV 3045 of 1996), 5 February 1999)
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Jaensch v Coffey [1984] HCA 52, (1984) 155 CLR 549; (1984) 58 ALJR 426; 54 ALR 417
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
The Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563
Todd v Adam [2002] EWCA Civ 509
Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272
Williamson v Catholic Homes Inc [2009] WADC 81
Yamin v Komatsu Australia Pty Ltd [2011] WADC 144

GILLAN DCJ:

It is common ground that during the 2017 fishing season,[1] on 24 September 2017, the plaintiff's hand was injured while he was on a shipping vessel, the NW Carnarvon II (the Vessel), as a share fisherman.
[1] Exhibit 2, pages 38 - 58 at [53] Period of season from 16 March to 31 October 2017.
The Vessel was owned by the second defendant. The first defendant was the operator of the Vessel and its nominated skipper for the season and the third defendant was the temporary skipper for the period 22 September to 2 October 2017.
The plaintiff seeks damages in negligence or breach of statutory duty or both from each of the defendants.
The matters in dispute are:
1.How the plaintiff injured his hand on 24 September 2017?
The defendant pleaded and opened its case on the basis that the plaintiff deliberately injured his hand so as to claim money from the defendants. Even though the defendants abandoned that assertion during the trial,[2] a great deal of cross‑examination was directed to the credit of the plaintiff and the defendants relied on that cross‑examination in holding the plaintiff to the proof of how the injury occurred.
2.The extent of injury the plaintiff suffered?
In that regard the plaintiff asserted in his pleadings that in addition to the injury to his right hand and the residual injury to his hand, he had suffered a psychological injury. The plaintiff abandoned his claim to have suffered a psychological injury at the start of the trial. With respect to any residual injury to his hand the plaintiff accepted that he could work at some of the occupations he had worked at before he was injured but maintained that his injury had effected a permanent although limited impairment to his hand which affected his ability to work.
3.What relationship did the plaintiff's engagement as a share fisherman on the Vessel give rise to?
4.Did the first and or third defendants, respectively as the skipper and the substitute skipper, owe the plaintiff any duty of care pursuant to the common law, the Occupational Safety and Health Act 1984 (WA) (OSHA) or pursuant to the Occupiers Liability Act 1985 (WA) (OLA)? If they did, was any duty owed breached?
5.Did the second defendant, as owner of the fishing vessel, owes the plaintiff any duty of care pursuant to the common law? If it did, was any duty owed breached?
6.If the plaintiff makes out his case in liability against any of the defendants, the extent of any damages to which he is entitled.
7.Is the plaintiff's claim to be reduced for contributory negligence?
[2] ts 358.
Before turning to the resolution of these matters it is convenient to set out the matters which are background, were common ground or uncontentious between the parties. The matters are:
1.The relevant fishing season was between 16 March 2017 and 31 October 2017 (the Season).[3]
[3] Exhibit 2, pages 38 - 58 at [53]; Item 6 The Schedule.
2.During the Season the second defendant owned a fleet of fishing vessels, including the Vessel, which operated out of Carnarvon. For the Season the Vessel was operating on a share fishing basis pursuant to a Sharefishing Joint Venture Agreement Owner Skipper[4] (JV Agreement) entered into 1 March 2017 between the second defendant as Owner and the first defendant as both the Operator and Nominated Skipper.
[4] Exhibit 2, pages 38 - 58.
3.By the JV Agreement the first and second defendants relevantly agreed:
(a)Recital B and Clause 1: They would operate the Vessel as a share fishing joint venture on the terms provided;
(b)Clause 2: the first defendant, as Operator, entered the agreement as an independent contractor and at no time would the first defendant or the Crew become an employee of the second defendant;
(c)Clause 3(b): the first defendant would ensure that all fishermen who become crew are engaged on a 'Share Fishing Agreement' that must be signed by the first defendant and the fishermen and which ensures the fishermen will hold all of their own necessary insurances and provide for their own taxation requirements;
(d)Clause 3(f): the first defendant would keep a Ship's Log and such other records required for the efficient operation of the agreement;
(e)Clause 3(l): the first defendant would generally carry out such other duties and responsibilities as may (be) [sic] necessary during the course of the Season for the safe and efficient running of the Vessel, the success of the voyage and the safety of those on board, including without limitation compliance with cl 7 of the agreement;
(f)Clause 6: expressly acknowledged that the first defendant as a share fisherman is not covered by Workers Compensation or Seaman's Compensation by the second defendant;
(g)Clause 7.1: Responsibility
(1)The Operator acknowledges and agrees that it is responsible for, the daily operation of the Vessel, and that the Owner has no ability to control the system of work on the Vessel due to:
(a)the Operator's role as a certified operator of the Vessel; and
(b)the Vessel being off shore during the Season.
(2)As a result of the Owner not having the ability to control the system of work on the Vessel, the Operator will, to the extent permitted by law, be responsible for occupational health and safety (OHS) on the Vessel during and associated with the performance of this Agreement. This responsibility will include ensuring that the system of work on the Vessel complies with the relevant OHS legislation and standards, including ensuring the safety and protection of the Operator, the Crew, the public and all other people on the Vessel and for the protection of the property of the Owner, the public and third parties.
(3)The Owner will prescribe certain standards to be implemented by the Operator in the system of work used on the Vessel and these are set out in the Fishing Operation Manuals.
Clause 7.2: Compliance
(1)The Operator will comply at all times with the content and intent of the Owner's Safety Management Plan contained in the Fishing Operations Manual supplied to each vessel and any changes or additions thereto as will be notified from time to time and will ensure that all Crew also so comply.
(2)The Operator will adopt the Owner's Safety Management Plan and adequately ensure:
(a)the health and safety of all persons on the Vessel;
(b)that persons on the Vessel are not exposed to risk arising from the activities undertaken pursuant to this Agreement; and
(c)compliance with all applicable OHS legislation.
(3)The Operator will ensure that all Crew and all visitors on the Vessel:
(a)are appropriately inducted pursuant to the terms detailed in the Fishing Operations Manual;
(b)are familiar with the particular hazards and responsibilities of their jobs and of the Vessel;
(c)have read, understood and comply with all notices and procedures in the Fishing Operations Manual;
(d)comply with all rules, regulations and directions which may be issued or given from time to time by the Owner relating to any matter of safety including but not limited to the safety of any person or third party and the preservation and protection of property.
(4)The Operator must appoint a sufficient number of safety officers to ensure that there is not less than one safety officer appointed by the Operator on shift on the Vessel at any one time. The name, qualifications and rostering of each of the Operator's appointment safety officers must be recorded in the Vessel's log for the duration of the Operator's control of the Vessel.
(5)The Operator must supervise compliance by the Crew with all measures put in place to ensure health and safety on the Vessel including requirements of the Fishing Operation Manual.
Clause 7.3: Safety Inductions and Safety Meetings
(1)Prior to commencing work on the Vessel all of the Crew engaged by the Operator to perform work on the Vessel must have attended and satisfactorily completed a Vessel specific safety induction course conducted by the Operator or his representatives.
(2)The Operator or its duly appointed delegate will from time to time receive briefings or publications arranged by the Owner to be relayed to the Crew.
Clause 7.4: Work Methods
(1)As the Owner has no ability to control the system of work on the Vessel, the Operator will be responsible for ensuring that this Agreement is carried out using safe work methods and for ensuring that such work methods are observed by the Crew at all times.
(2)Should the Owner, or any representative of the Owner observe, in his opinion, an unsafe act or become aware of a planned act, which is, or is potentially, unsafe the Owner or the Owner's appointed representative may direct the Operator or any of the Crew concerned to cease, or not to proceed with the unsafe act. It will then be the Operator's responsibility to modify the method of work in order to satisfy the Owner and to proceed to work in a safe manner.
(3)Due to the Owners inability to control the system of work during the Season, the Operator will be responsible for ensuring that the Crew meet these standards.
…
Clause 7.13: Contractual Indemnity
(1)Without limiting the liability of the Owner at law or in tort, the Operator agrees to indemnify and keep indemnified the Owner, the directors and officers of the Owner against any liability incurred by any of them at law arising out of any breach by the Operator, or any of the Crew, of this cl 7 or any applicable OHS legislation with which the Operator and the Crew is required to comply under this Agreement.
(2)The amount of such liability will be a debt due by the Operator to the Owner.
(h)Clause 19: Fishermen's Training Programme
The Operator will provide induction training to the crew in accordance with cl 7 of this Agreement.
The Shore Based Training and On Board Training programmes as contained in Fishing Operations Manual, must be followed, completed and signed by both the trainer and fisherman during the first full trip on the Vessel.
(i)Clause 20.1: The Owner and the Operator agree and the Operator acknowledges that:
(a)the Operator and the Owner enter into this Agreement as joint venturers, and the Operator is not the employee, agent or partner of the Owner and it is the intention of this Agreement and the parties to this Agreement that any such relationship is expressly denied;
(b)the Operator has neither the power nor the authority to, and shall not, directly or indirectly whether through the Operator's servants or agents or otherwise how so ever, provide and warrant or make any representation to, or enter into any negotiations or any binding relationship with any person on behalf of the Owner; and
(c)the Operator shall be responsible for all taxes and levies in respect of all or any payments made to him by the Buyer including without limitation;
(i)income tax;
(ii)sales tax;
(iii)goods and services tax;
(iv)fringe benefits tax;
(v)withholding tax; and
(vi)accident and workers' compensation levies or compulsory insurance.
(j)Clause 24: Definitions and Interpretations
That unless repugnant to the sense or context whenever herein used, the following meanings shall apply throughout this Agreement.
…
'Crew' means any individual or company engaged by the Operator under a Sharefishing Agreement for the operation of the Vessel at or about the same date of this Agreement.
'Fishing Operations Manual' means the manual provided to the Operator by the Owner at the commencement of the Season, which sets out all statutory, safety and training requirements applicable to the Operator, the Nominated Skipper and the crew.
'Nominated Skipper' means the party whose name is specified in item 3(a) of the Schedule and includes permitted assigns being the assignees consented to, in writing, by the Owner.
'Share Fishing Agreement' means any Sharefishing Agreement entered into between the Operator and the Crew form [sic] time to time.
…
4.By 22 September 2017 the plaintiff had travelled by bus to Carnarvon for the purpose of seeking agricultural work with a tomato grower. When he took a room at a hostel in Carnarvon he was told that there was work available on a fishing trawler.
5.On 22 September 2017 the plaintiff was collected from the hostel by the first defendant and taken by car to the second defendant's office at the wharf in Carnarvon. There the plaintiff and the first defendant entered a Sharefishing Agreement Skipper and Crewman[5] (the Sharefishing Agreement) by which he would work on the Vessel. The agreement was prepared by an employee of the second defendant using a standard form and the plaintiff provided to that employee his ABN number, his bank details and other information which were inserted into the Sharefishing Agreement by that employee.
[5] Exhibit 2, pages 69 - 81. The plaintiff agreed that it was his mark on a document shown to him during his evidence but was reluctant to confirm that exhibit was the Sharefishing Agreement. The document was tendered through the first defendant.
6.The Sharefishing Agreement provided that the plaintiff and other crew including the first defendant would each receive a share of the proceeds of the catch and would each contribute to the costs of the voyage. Certain obligations of the working relationship between those parties and between the plaintiff and the first defendant were expressed in the Sharefishing Agreement as:
7. LEGAL RELATIONSHIP
7.1Nothing in this Agreement will or is intended to establish a relationship of partnership or employment between the Skipper and the Fisherman or the Fisherman and the owner of the Vessel and it is the intention of this Agreement and the parties to this Agreement that any such relationship is expressly denied.
7.2Without limiting in any way the generality of this clause, the Fisherman expressly agrees and acknowledges that the Fisherman:
(a)is not entitled to annual leave, long service leave or sick leave or any other benefit or entitlement that ordinarily accrues in the context of an employment relationship nor will the Skipper or the owner of the Vessel be responsible in any way for the provision of any such entitlement to the Fisherman;
(b)in accepting and performing services under this Agreement, is merely contracting with the Skipper to achieve a result which the Skipper has contracted with the Fisherman to achieve namely the provision of services to the Skipper on a fee for service basis.
7.The first defendant did not act as Skipper on the voyage commencing immediately after the Sharefishing Agreement was signed.
8.The first defendant had injured himself and for the period of 22 September 2017 and 2 October 2017 was replaced as Skipper by the third defendant. The defendants each entered into a Change of Nominated Skipper (ie Temporary Skipper) agreement on 22 September 2017. The Change of Nominated Skipper agreement provides for the replacement of the first defendant as the Nominated Skipper of the Vessel and that the third defendant confirmed that he would comply with the terms of the JV Agreement between the first defendant and the second defendant which are known to him, that he was fully aware of all of the duties and operating procedures and would operate the Vessel in a safe and competent manner in line with the terms of the JV Agreement and he agreed to be bound by the terms of the JV Agreement for the period he was the Replacement Skipper.
9.The Vessel left the port of Carnarvon later that day after both the Change of Nominated Skipper agreement and the Sharefishing Agreement had been entered into. The Vessel commenced fishing. Fishing took place between about 4.00 pm 22 September 2017 and 11.00 am the following morning after which time the crew slept. Fishing recommenced at 4.00 pm on 23 September 2017.
10.The Vessel was primarily trawling for King and Tiger prawns but by‑products would include among other things Coral prawns, crabs, squid and cuttlefish, fish and octopus.[6] The way in which fishing was undertaken was by the extension of a net from the rear of the vessel. The ship would trawl for its catch and at a time determined by the Skipper, the cob end of the net would be retrieved onto the vessel and the catch emptied onto the hopper lid which sits over a stainless sea water filled container called the hopper.[7] The hopper had a fibreglass brine tank on each side of it.[8]
11.The hopper lid, or more accurately lids, are two heavy metal lids[9] with a curved rail on their top edge.[10] Each lid is adjacent to and mirrors the other. Each lid is in a horizontal position lying flat when the catch is emptied onto the lids. The two parts of the lid sit next to each other and are not joined or hinged to each other in the middle. Each lid is able to be lifted hydraulically so that the outside and opposite edge of each swings up.[11] As the outside edge of each lid is raised - they form a V shape and the middle edge of each lid remains close to the hopper. The ends move apart so that a gap opens between them. The catch can then slide down and through the gap between the two arms of the V and into the hopper below.
12.When the catch is emptied from the lids into the hopper it is full of water. The hopper has a conveyor belt in it which picks up the catch lifting it out of the hopper onto a moving platform or sorting line from which the prawns and by-products are sorted into their respective types and by size by fishermen standing on both sides of the sorting line. The catch suitable for sale is, on sorting, conveyed via a chute to another crewman who was responsible for bagging and snap freezing it. Any by-product not suitable for sale remains on the sorting line and is conveyed back to the ocean.
13.The plaintiff's role on the vessel was to work, under instruction, as one of the fishermen at the sorting line, splitting bags and undertaking general crew work which included hosing off the lids and bins/metal containers. He worked opposite and at the direction of Joshua David Sheehy at the sorting table. Mr Sheehy also operated a control panel which could stop and start the movement of the sorting table and raise and lower the hopper lids.[12] Noel Douglas Howson, another fisherman, was responsible for bagging and snap freezing the catch and the third defendant was driving the Vessel.
14.It was necessary to hose the hopper lids off between catches. The plaintiff's hand was injured when a hopper lid closed on it during that hosing process. My findings as to how that occurred are below.

The plaintiff's history, general evidence leading up to events and assessment of him as a witness

[6] Exhibit 2, pages 38 - 58 at [54], [55], [58].

[7] The hopper was initially (and confusingly) also referred to by the defendant's counsel as a brine tank.

[8] The hopper lids extended over the heavy metal hopper and over two approximately 600mm wide fibreglass brine tanks on either side of the hopper. The brine tanks were removed on a refit of the NV Carnarvon II sometime after the Season. Exhibit 6, a video of the operation of a hopper lid on the NV Carnarvon II, was taken after the refit but the mechanism of the hopper and its lids and its manner of operation remained the same: Evidence of Razga especially at ts 302 - ts 303.

[9] ts 268 (Sheehy).

[10] ts 266 (Sheehy).

[11] Exhibit 6: The action of one part of the lid is demonstrated on the video. The two sides can be lifted independently of each other. When they are both raised they form the arms of a V shape.

[12] ts 269 (Sheehy).

The plaintiff spoke English but his first language is Arabic and he gave evidence with the assistance of an interpreter. More often than not the plaintiff was able to understand and answer questions in English but when he required assistance he would turn to the interpreter.
When the plaintiff did not use the available interpreter his English and manner of description was sometimes difficult to follow partly because his English was insufficient to describe with precision the actions about which he was speaking or the technical names of the equipment which he was describing and partly for reasons I will expand on below. There were times when his answers were unresponsive by reason of limitation of language but sometimes because he was evading the question. Even when the plaintiff did speak through the interpreter there were times when he did not appear have the vocabulary to describe adequately the various moving parts of the Vessel and he was not a precise witness as to what he had seen and done. In addition, the events of 22 September 2017 to 24 September 2017 and some of the matters about which the plaintiff was cross‑examined are now many years ago and in some cases quite unrelated to the proceedings. That the plaintiff may have some difficulty in remembering matters from years ago with precision is not surprising. He even commented during his cross‑examination of Mr Sheehy that he did not have a full recollection of the Vessel, for instance, that there were two lids on the hopper.[13] I have taken all of these matters into account when considering his reliability as a witness.
[13] ts 285 - ts 286.
The defendants made closing submissions about the reliability of the plaintiff's evidence[14] invited me to look closely at some particular aspects of the plaintiff's evidence as they related to:
1.His changes of name since he arrived in Australia.
2.How he had previously suffered injuries including one where he injured his ankle at the Perth Mosque (the Mosque) and made a claim in negligence relating to that injury, particularly, whether he gave inconsistent accounts of that injury and inflated his claim with respect to that injury along with whether the claim was motivated to fund a chicken farm in Morocco.
3.Lies told by the plaintiff in videos he had posted to the internet relating to physical abuse he suffered at the hands of the police in Morocco on a trip there.
4.Particular instances of evasion in his evidence and his cautiousness in admitting documents were his.
5.By assessing the plaintiff's evidence against the evidence of the defendants' witnesses, Dr Dare, Dr Bolton and a psychologist Mr Abiyat.
[14] Closing submissions ts 474 - ts 478.
Even taking into account the challenges of the plaintiff giving his evidence in English, the plaintiff was excitable and his answers were often discursive, defensive and at times demonstrated that he was fearful of being tied to an answer which might adversely impact on his case. To give an example, he was reluctant to accept that the Sharefishing Agreement was the document signed by him on 22 September 2017[15] notwithstanding that he relied on that document in his statement of claim. This was one reason to scrutinise the plaintiff's evidence carefully. There are other reasons for concern which are addressed later in these reasons.
[15] ts 64 ‑ ts 67, ts 102 ‑ ts 103 (Essaiyd).
As a general proposition I have accepted the plaintiff's evidence with respect to those matters about which the plaintiff gave a consistent and straightforward account not refuted by evidence which I accept from another witness or where his evidence was consistent with the evidence of other witnesses or consistent with independent documents or where he made admissions against his own interest.
The plaintiff was born in Algeria in 1974.[16] The plaintiff said he did not know his date of birth because at the time of his birth in Algeria formal written records were not kept. Accordingly, when he came to Australia in 1997, the date of 1 January 1974 was nominated as his date of birth.
[16] ts 49 (Essaiyd).
The plaintiff went to primary school in Algeria[17] but had no high school education at all. In about 1990, at a time of political difficulty and upheaval, the plaintiff left Algeria.[18] He went to Morocco[19] and stayed for a period of years. While in Morocco the plaintiff worked at swap meets or in trading in second hand goods and did not receive further education. In about 1997 he left Morocco and was smuggled through Spain and Italy to Australia.[20]
[17] ts 50 (Essaiyd).
[18] ts 50 (Essaiyd).
[19] ts 50 (Essaiyd).
[20] ts 50 (Essaiyd).
The plaintiff can read and write a little but his ability to read more complex documents in English is limited. In the 23 or so years since coming to Australia the plaintiff undertook varied but largely unskilled work such as in cleaning,[21] in aged care,[22] the farm industry fruit picking,[23] pushing trolleys[24] and as a factory hand.[25] He was never a full‑time worker and performed mostly casual work.[26] He would usually work at seasonal jobs for about six months or so and would have two months off between jobs.[27] He also received social security benefits.
[21] ts 104 (Essaiyd).
[22] ts 51, ts 52, ts 53 (Essaiyd).
[23] ts 51 (Essaiyd).
[24] ts 54, ts 56 (Essaiyd).
[25] ts 52 (Essaiyd).
[26] ts 54 (Essaiyd).
[27] ts 56 (Essaiyd).
The plaintiff's birth name was Abdullah Slama. While in Australia he changed his name on three occasions. In 2004 he changed his name to Mohammed Essaid. His evidence was that he changed his name for political reasons in case he went back to Algeria where they would be looking for the name of Slama.[28] The plaintiff also accepted that the name of Essaid or Essaiyd was an illustrious name in Morocco and he could pass himself off as having connections with an influential family in Morocco.[29]
[28] ts 96 (Essaiyd).
[29] ts 99 (Essaiyd).
In 2010 the plaintiff changed his name to Yama Kou. The plaintiff gave a long and defensive explanation for that name change which I found unconvincing but denied that he had changed his name to Yama Kou because he had spent six months in the prison system in 2007. In 2012 he changed his name back to Mohammed Essaiyd with its current spelling.
I am not convinced that the plaintiff's changes of name, while perhaps unusual, should cause me to doubt his reliability as a witness generally. The plaintiff had reasons to reinvent himself as a consequence of leaving Algeria and his experiences since including his detention on remand in Western Australia. His official documents, such as his ABN details revealed each of his names and he admitted the changes, so there appeared to be no attempt to conceal any change of name.[30] Further, the interpreter explained a linguistic matter that the current spelling of Essaiyd represented a glottal letter, represented by the 'aiyd', which is not otherwise found in the English language and which made that spelling of the name the correct spelling.[31]
[30] Exhibit 2, page 110.
[31] ts 98, ts 99 (Essaiyd).
In about May 2005, when working as a cleaner in Kalgoorlie, the plaintiff suffered an injury to his back. His evidence was that he slipped on steel stairs that were wet after rain, injured his back and developed anxiety. The plaintiff did not work from May 2005 for several years.
The plaintiff's unrefuted evidence was that his employer did not accept liability so he received no workers compensation payments but that he did receive a lump sum settlement payment of $18,000 in about 2008. The plaintiff also denied that he remained out of work between 2005 and 2008 as a consequence of the injury to his back. He said that no one would employ him because he was involved in a workers' compensation claim during that period.[32] The plaintiff's answer to whether he also took that time off because he was suffering from anxiety was evasive and is an example of why I have treated the plaintiff's evidence with care.[33]
[32] ts 106, ts 107 (Essaiyd).
[33] ts 107 (Essaiyd).
The plaintiff admitted that he had spent six months during this period of time off work on remand in the prison system in Western Australia.[34] The plaintiff was clearly uncomfortable about being asked this matter which he did not consider to be relevant to the resolution of this matter. He became agitated. I understood his evidence, which was difficult to follow, to be that he had been on remand for charges relating to an alleged assault and kidnapping and perhaps other charges. At the very least the kidnapping charge was dismissed and other charges resulted in a suspended imprisonment order.
[34] ts 108 (Essaiyd).
In respect to the underlying incident it was put to the plaintiff, by reference to an unidentified and untendered document, that at an unspecified time or in respect to an unspecified occasion that the plaintiff had told someone at Royal Perth Hospital that he had lied to the police about the event leading to the charges. The plaintiff denied that he had lied. The matter was collateral to the matters in issue. The plaintiff's answer binds the defendants.
In December 2009 the plaintiff returned to work for Flying Swan Manufacturers making lollies. He had worked there two weeks when he cut his left thumb on a circular cutting wheel. He stopped working for Flying Swan Manufacturers after that injury and ultimately received $3,000 by way of settlement. It was put to the plaintiff that he had told Dr Overmeire that he had cut his thumb while cutting bread in a café.[35] He denied saying that to Dr Overmeire. This is another collateral matter and given that the plaintiff's first language is not English I cannot be satisfied that the plaintiff told a deliberate untruth to Dr Overmeire. In any event, nothing turns on this.
[35] As recorded in Dr Overmeire's report dated 6 December 2018, exhibit 3.
In 2011 to 2012 the plaintiff was working as a trolley collector.[36] His evidence was that this was the longest period of continuous employment he had in Australia. He worked for about a year during which time he visited Morocco for a two month visit.[37] The plaintiff's income tax return for 2012 showed that he worked that year as a trolley collector from which he had gross earnings of $15,825 which together with payments of $5,540 of Australian Government allowances and payments and $208 from an Australian Government pension or allowance made a total gross income of $21,581.
[36] ts 54 - ts 56 (Essaiyd).
[37] ts 54, ts 113 ‑ ts 115 (Essaiyd); exhibit 2, pages 5 - 6.
It is a unclear as to when in that chronology of his working life the plaintiff worked in fruit picking or as a factory hand but it would appear that at some time, possibly 2005, the plaintiff was working in Kalgoorlie where he was injured, in 2010[38] or, perhaps later, in 2012 in Broome, Fitzroy Crossing and Kununurra in aged care.[39]
[38] This may be the cleaning job at which he was injured.
[39] ts 53 - ts 54, ts 112 (Essaiyd).
In May 2013 the plaintiff injured his ankle at the Mosque. The defendants accepted that the plaintiff had suffered an ankle injury and that a surgeon he consulted in late December 2014 was of the opinion that the plaintiff would require surgery to repair and reconstruct a ligament requiring six weeks in a cast and three to four months of rehabilitation.[40]
[40] ts 138, ts 139 (Essaiyd).
The plaintiff commenced personal injury proceedings in the Magistrates Court in respect to this injury.[41] There was considerable cross-examination relating to the circumstances of the injury and the motivation behind the plaintiff's claim. Among other things it was put to the plaintiff and he, for the most part denied, that before the injury that he had been heard to say that a person could live like a king in Morocco with only a small amount of money and that he had wanted money to start a chicken farm in Morocco, he had asked his friend, Mr Huxtable, to take out a loan and provide an advance to him for that purpose, that he was not injured in the manner set out in his claim in the Magistrates Court but rather when he fell out of the orange tree and he had given different accounts about how the injury occurred to doctors,[42] that he had asked Mr Huxtable, who had witnessed his injury,[43] to assist him with the personal injuries claim, he had claimed $50,000 in the Magistrates Court based on an inflated estimate of the costs of surgery to his ankle[44] and that he had settled the case for $30,000 in 2016.
[41] Exhibit 2, page 24; exhibit 2, pages 27 - 30.
[42] Exhibit 2, page 8.
[43] It would appear that Mr Huxtable had provided a witness statement to the Mosque on which the defendants' cross-examination relied.
[44] This assertion put in cross-examination was inconsistent with exhibit 2, pages 27 - 30.
The plaintiff denied that he had any discussions with Mr Huxtable prior to being injured about being able to live like a king in Morocco, chicken farming in Morocco or taking out a loan. He denied that after the injury he said to Mr Huxtable that he wanted to get compensation money out of the Mosque, they could afford it and that Mr Huxtable should help him or Mr Huxtable would go to hell.[45]
[45] ts 120 (Essaiyd).
The evidence establishes that the Magistrates Court claim was made and finally settled in February 2016 without admission of liability on the basis that the plaintiff would be paid $30,000 by the Mosque (or its insurer) plus the Mosque would pay any necessary amounts to Medicare and to Centrelink.
With respect to the question of how the injury in the Mosque occurred, the plaintiff gave an account under cross-examination which was consistent with his claim in the Magistrates Court - that in the rear courtyard of the Mosque he had injured his ankle when he stepped on a brick holding open a door, had fallen, twisting his ankle, was briefly unconscious and taken to hospital by ambulance. An alternative version based, presumably, on a statement made by Mr Huxtable that the plaintiff had climbed up a tree to pick an orange and fallen from the tree injuring his ankle was put to the plaintiff and he admitted picking an orange in the front courtyard of the Mosque, denied climbing any tree and stood firm on the injury occurring in the rear courtyard.[46]
[46] Presumably based on the Huxtable statement.
Mr Huxtable was not called to give evidence and I provisionally refused the tender of any statement by him into evidence because the matter went only to the plaintiff's credit on a collateral issue. Counsel did advise the court that his instructor was looking to find Mr Huxtable to subpoena him and the final question of tender was left to a later time. The tender of the statement was not re-agitated either by establishing on evidence that Mr Huxtable was unavailable or by a tender pursuant to s 79C of the Evidence Act 1906 (WA).
Further cross-examination was directed to a discharge letter dated 31 May 2013 by Dr Harding of Royal Perth Hospital[47] which records that:
This morning he was picking an orange from a tree and stepped onto a rock. He inverted his ankle and fell to the ground. He had a brief loss of consciousness. Since then he has had left ankle pain and swelling.
That alternative version was also put to the plaintiff as being a truthful account of what occurred[48] and his evidence about that was lengthy and convoluted but essentially the plaintiff held firm to his account. The doctor had not recorded what he said about the event correctly.[49]
[47] Exhibit 2, page 8.
[48] ts 129 (Essaiyd).
[49] ts 119 - ts 120, ts 122, ts 129 - ts 135 (Essaiyd).
Further cross-examination seemed to me to be directed to whether the plaintiff's claim was inflated. Documents filed by the plaintiff in respect to his Magistrates Court claim rely on the assertion that he had six weeks off work immediately after the injury,[50] that he did not work between May 2013 and 2016 because he could not do so[51] and that he would require further time, 6 weeks, off once he had the surgery.[52]
[50] Exhibit 2, page 24.
[51] Exhibit 2, pages 27 - 30 at [29].
[52] Exhibit 2, pages 27 - 30 at [27] and [29].
Part of the defendants' cross-examination about this matter seemed to proceed on a misunderstanding of the plaintiff's claim that the plaintiff was claiming $20,000 for the cost of surgery.[53] The General Procedure Claim was for $20,000 which sum was not particularised. An affidavit of the plaintiff sworn 12 January 2016[54] in support of increasing the claim to $50,000 refers to a loss of income of $20,000 per year. A second affidavit of the same date refers to the necessity for six weeks of rehabilitation, the cost of the operation (with concession card) of $3,685, the cost of the ambulance of $1,000 and ongoing pain and suffering along with permanent damage to the plaintiff's ligament. Those documents do not state that the basis of the plaintiff's claim is that the costs of the surgery would be $20,000.
[53] ts 135 - ts 139 (Essaiyd).
[54] Exhibit 2, pages 27 - 28.
During the exchange about these matters the plaintiff and counsel were somewhat at cross purposes. While some of the plaintiff's answers were defensive and not easy to follow I do not find that he was telling lies about those matters and note that consistently with the claim, the necessity for six weeks off after the proposed surgery is consistent with a report dated 22 December 2014 from Mr Hurworth, a specialist to whom the plaintiff had been referred, by the plaintiff's general practitioner (GP) which was read to the plaintiff in cross‑examination.[55] Mr Hurworth said the surgery would require an overnight stay in hospital and 'Six weeks in a cast and approximately three to four months rehabilitation time.'
[55] ts 137 - ts 139 (Essaiyd).
The plaintiff travelled to Morocco in 2016 shortly after receiving the settlement funds[56] staying for nine months.[57] He did not then have surgery on his ankle and he has not had it since.[58] He said that was because his GP thought that he ankle would recover sufficiently to make the surgery unnecessary.[59] The plaintiff did not work again in Australia until he went to Adelaide for work in early 2017.
[56] This is the trip where he stayed for nine months.
[57] ts 54, ts 147 (Essaiyd).
[58] ts 147 (Essaiyd).
[59] ts 147 (Essaiyd).
It is not necessary for me to, and I could not without a proper contradictor, resolve whether or not the plaintiff would have been successful in his claim in negligence against the Mosque had the matter proceeded to trial. Given that the plaintiff had suffered a substantial ankle injury I cannot be satisfied that there was anything improper about the plaintiff bringing his claim or that the settlement of the claim was on an improper basis.
I do, however, find it hard to accept that the plaintiff was completely incapacitated by reason of his ankle injury from any work for the whole of the period from May 2013 to January 2016. I am led to this view because of the nature of the injury, the plaintiff's evidence that he did not go ahead with the surgery proposed in December 2014 on his GP's opinion his ankle would improve, the fact that he had recovered sufficiently to seek work in early 2017 without surgical intervention, his later claim to be incapacitated from work by reason of physical and psychological difficulties arising from his treatment at the hands of the Moroccan police, the fact that he made no mention of any ankle or other injury at the time he signed on with the Vessel together with the written evidence relating to consultations with Dr Mohan in Adelaide, the evidence of Dr Bolton and Mr Abiyat which I will outline.

When in early 2016 the plaintiff travelled to Morocco he stayed for about nine months.[60] He tried to stay a year. It emerged in cross‑examination that while in Morocco the plaintiff was arrested in relation to an alleged stabbing and held by the police. The plaintiff's evidence in cross‑examination was that he was not the aggressor, he had been defending himself and while in custody for seven days he was beaten by the police and this was very traumatic for him. There is no evidence to the contrary and so I accept the plaintiff's evidence in this regard.
[60] ts 54 (Essaiyd).
It was not pressed in closing that I should find the plaintiff an unconvincing witness, and I would not have been satisfied it was the case, simply by reason of the fact that he had committed a criminal offence and spent a period of time in custody in Western Australia and had been held after arrest and without conviction for a period of time in police custody in Morocco. The plaintiff's evidence about those matters could only have gone to his credit and he admitted his involvement with each criminal justice system. There was no evidence put before me to suggest that his evidence about the charges he faced and their outcome was inaccurate or that he had other relevant convictions such as for matters of dishonesty.
After returning from Morocco the plaintiff travelled to Adelaide in February 2017. His intention was to take a job at the Ali Baba Café where he would be responsible for the shisha pipes smoked at that establishment. The plaintiff also seems to have undertaken some outdoor work[61] in very cold weather and which led to him seeing Dr Mohan in March 2017 complaining of, among other things, lower back pain and pain in the ligament of his ankle and asking for a certificate for Centrelink and later, in September 2017, Dr Bolton.[62]
[61] ts 167 (Essaiyd).
[62] ts 161 - ts 162 (Essaiyd).
Dr Mohan referred the plaintiff to an orthopaedic surgeon, Mr Krishnan, who confirmed in April 2017 that the plaintiff's ankle was still unstable and would still benefit from surgical repair[63] and to Mr Abiyat for psychological counselling. The referral to Mr Abiyat was for treatment of anger and chronic pain syndrome.[64]
[63] ts 163 (Essaiyd).
[64] Exhibit 2, pages 121, 125, 128 and 130.
Mr Medhi Abiyat gave evidence. Mr Abiyat was qualified with a degree from the University of Adelaide and has been a registered psychologist in private practice since 2009. I found him to be an honest and careful witness. He works with mainstream psychology patients but also with a big group of the migrant and refugee communities, asylum seekers and international students. He has a particular interest in anxieties and depressions and he speaks a number of languages including Arabic which was his mother tongue and in which he could communicate with the plaintiff. Mr Abiyat confirmed the reports he had sent to Dr Mohan, the referring GP.[65]
[65] Exhibit 2, pages 121, 125, 128 and 130.
Mr Abiyat first met with the plaintiff on 22 March 2017 and then weekly for a total of six sessions. At the first session Mr Abiyat found the plaintiff to have symptoms consistent with depression and anxiety along with his physical health issues. The remainder of the sessions were with the aim of working through the plaintiff's issues with anger arising from his treatment at the hands of the Moroccan police and his physical pain arising out of his injuries.
Mr Abiyat came to the opinion that the plaintiff was resistant to addressing his symptoms and learning the strategies that he could apply to bring his symptoms under control and thereby improve his mental health.[66]
[66] ts 227 (Abiyat).
Mr Abiyat said that the plaintiff's emphasis was in ceasing ongoing engagement with Centrelink via way of obtaining a permanent disability pension. The plaintiff's thinking was to the effect that if the plaintiff could access a disability pension or otherwise be exempted from looking for a job then the plaintiff would improve his mental health. The plaintiff's friends were encouraging him in that thinking.[67]
[67] ts 227 - ts 278 (Abiyat).
Mr Abiyat also gave evidence that the plaintiff was insistent that he could not return to work until he had resolved the issue he had with the Moroccan police and that the plaintiff was thereby avoiding getting better by prioritising stressors that were not then immediately affecting him and ignoring stressors arising in his normal life. The issue with the Moroccan police was not an immediate stressor because at that time there was no one questioning him, sending him a warning or involving him in anything to do with that past matter whereas there were immediate stressors including his physical health issues in his back, neck, shoulder, left leg and numbness in his ankle and his depression.[68]
[68] ts 228 - ts 279 (Abiyat).
Mr Abiyat said that the plaintiff had expressed to him that if he was able to get a disability pension then he would be set for life and he would not have to worry about any of the other stressors. This rigid thinking demonstrated to Mr Abiyat at the end of their sessions that there was no improvement in the plaintiff as a consequence of the treatment offered by Mr Abiyat.
The plaintiff in cross-examination took issue with whether he was seeking a full pension as opposed to a partial disability pension because he said a full pension to 60 or 70 years of age would not be available to him. Mr Abiyat agreed he was not asked to assist with a pension application but all conversation with the plaintiff was addressed to the improvement in the plaintiff's life should he be able to access a pension.
The plaintiff was also adamant that he had assessed his own psychological difficulties which arose from the abuse at the hands of the Moroccan police and these were unconnected with his physical health problems.[69]
[69] ts 235 (Abiyat).
I have no difficulty in accepting the evidence of Mr Abiyat. It is supported by videos which the plaintiff admitted posting on the internet relating to the actions of the Moroccan police[70] against him and others which included vigorous statements where:
[70] ts 148 (Essaiyd); exhibit 2, pages 159 - 162; and exhibit 2, pages 163 - 170.

Video of 5 July 2017[71]
[71] Exhibit 2, pages 159 - 162.

1.He untruthfully said that he had been serving with the Australian Army in Afghanistan and East Timor.[72]
[72] ts 14 (Essaiyd).
2.He untruthfully asserted he was a retiree and exempted from work as a result of abuse at the hands of the Moroccan police. When asked about this in cross-examination he gave conflicting answers to the effect that he was saying 'I will not work, I don't work, I - but that is to Morocco, is not to Australian Government so I - under the law of Australian Government I have to work', that if he was called on to fight in a war for Australia he would not be able to do so for psychological reasons and that the purpose of saying this was to create an argument that what the police did to him in Morocco had caused difficulties for him in Australia.[73]
3.Further to that he untruthfully said that what the police had done to him had caused him retire early in Australia.[74]

Video of 17 November 2017[75]

4.He made similar claims that he was then retired in Australia as a consequence of the actions of the police against him in Morocco.[76]
5.He asserted that Australia spent $13,000 on him every year which was the equivalent of someone working as a judge or a doctor or a lawyer in Morocco. When the plaintiff asked if this meant he considered that he did not need to work because he would have enough money from Centrelink he responded in a confusing and defensive way which both asserted that he wanted to work, that he could live 'perfect' on Centrelink but if he worked he lived like a king in Australia and later said that he was making a political point to people in Morocco. Finally, he denied that he did not want to work.[77]
[73] ts 152 (Essaiyd).
[74] ts 152 - ts 153 (Essaiyd).
[75] Exhibit 2, pages 163 - 170.
[76] ts 154 (Essaiyd).
[77] ts 155 - ts 158 (Essaiyd).

I also heard evidence from Dr Paul Bolton. He was a direct and forthright witness.
Dr Bolton saw the plaintiff in Adelaide as a new patient on 5 September 2017. He said it was a slightly unusual consultation. The plaintiff told Dr Bolton that he had not been working for five years with back pain and ankle pain. When Dr Bolton asked why the plaintiff had come to see him as a new patient and the plaintiff said that it was because each GP can only certify for six months at a time and the plaintiff needed a new GP for the next six months. Dr Bolton presumed that the certification was for Centrelink.
Dr Bolton considered the consultation to be unusual and suspicious for a first consult (because the plaintiff wanted to be certified for six months against a history of not having worked for five years. Dr Bolton's evidence was that Dr Bolton told the plaintiff that he would work with him to try and get his medical condition better controlled so that the plaintiff could function and return to work but the plaintiff was clearly not inclined to do that and the consultation was brought to an end.
It was put to Dr Bolton in cross‑examination that the plaintiff was only seeking a certificate to work reduced hours because he was suffering additional pain from the low temperatures and Dr Bolton was not able to remember whether the certification that was sought was with reduced hours as opposed to not working at all. It was also put to Dr Bolton that he had offered to give the plaintiff a certificate for three months a matter which Dr Bolton denied because they had not at that stage established any basis for a medical certificate. I accept Dr Bolton's evidence.
Shortly after the consultation with Dr Bolton that the plaintiff returned to Western Australia and made his way to Carnarvon to find work.
Taking all of that evidence into account I am of the view once injured the plaintiff has a tendency he was to catastrophise and fix on an injury as a reason to resist rehabilitation and use it as an excuse to not return to paid employment until he absolutely has to. This is his general approach, to adverse events in his life and he has found that he can live adequately for a period on Centrelink payments in Australia. Any return to work would occur when he needed the money because Centrelink or any compensation payment has run out.

What happened leading up to and on 24 September 2017

Turning now to the evidence about how plaintiff came to be injured.
On the afternoon of 22 September 2017 the first defendant, as the permanent skipper of the Vessel, spoke with the plaintiff in the car and at the harbour, explained some things to him about the paperwork the plaintiff signed including his status as a share fisherman, took the plaintiff to meet the third defendant but did not go down to the Vessel or undertake any induction of the plaintiff as to the operation of the Vessel or any dangers.
The plaintiff may well have told the first defendant that he had had a 'bit of experience on boats' (which would have been untrue) but that was the extent of what the first defendant was told. There was no substantive 'talking up' by the plaintiff of his experience and it was immediately obvious to all on board that he had little to no experience in fishing of the type being undertaken.
The plaintiff's evidence was that there were four people including him on board the Vessel when it left Carnarvon on the afternoon of 22 September 2017. He had no recollection of their names. Other witnesses confirm they were the relief skipper, the third defendant, another was the man who was bagging the catch, Mr Howson, and the third sorting the catch with the plaintiff, Mr Sheehy.
The third defendant's evidence that he was a properly qualified marine engineer driver with a Master Class 5 Radio Operator Certificate Ticket and First Aid Certificate. He was the relief skipper for the voyage and usually worked on another vessel owned by the second defendant.
He met the plaintiff with a quick handshake going from 'boat to boat to office' and just before they left the wharf he took the plaintiff into the galley and gave him a very quick rundown on the induction course. The third defendant gave him a pamphlet and pointed out to the plaintiff where the life raft was, life rings, first aid, lifejackets and a grab bag and then he went into the wheelhouse to start leaving to go fishing and the second in charge took over. The third defendant said that the plaintiff had induction documents with him when they spoke. Those induction documents or copies of them were not produced in evidence.
After the vessel left the wharf the third defendant said he did not leave the wheelhouse because he was not permitted to do so by law unless there was an emergency in the engine room or somewhere on the boat that needed his attention.
While in the wheelhouse the third defendant was responsible for fishing. Fishing included lowering the net, driving the run, raising the net so the catch could be dropped onto the hopper lid and then lowering the net again to make another run. While on a run, including when the catch was being sorted, the boat moves at about 3.4 knots or 3.5 knots but while the net is being winched up, the catch spilt onto the hopper and the net is being put back into the water the Vessel travels at about 1.9 knots. His recollection is that the conditions at sea were not dead smooth but were not really rough. There were waves but not 'rough rough' waves.
The third defendant confirmed that he was his practice to tell any new crewmember 'make sure you've got three points of contact during what you're doing while - while you're working', 'three points of contact if possible at all times' and he told the plaintiff that.
The third defendant confirmed that he did not make decisions about matters on the sorting line and those decisions were made by the crew on the back deck. This was because the third defendant could not see what was happening elsewhere on the Vessel while he was driving it. If he looked out the rear window of the wheelhouse he would be able to see only the freezer hatch where a crew member processed the prawns into boxes and the back of the person operating the sorting tables.
The next in charge was Mr Howson. His role in instructing the plaintiff is set out below.
On the plaintiff coming on board, Mr Sheehy also had a role in providing some rudimentary training to him. That training consisted of what the plaintiff was required to do in the daily job and identifying hazards such as where to stand if poisonous fish were bought on board, and where to stand generally especially with respect to ropes on deck. There was no specific training or identification of any hazard in respect to the operation of the hopper lid.[78]
[78] ts 281 - ts 282 (Sheehy).
Fishing took place during the first night starting in the afternoon of 22 September 2017. The plaintiff was only involved in sorting the catch and not in bringing up the net. The plaintiff said he was told 'Don't touch anything unless we tell you what to do'.
Only the plaintiff and Mr Sheehy were present near the hopper at the time the injury to the plaintiff's hand occurred. The third defendant was in the wheel house and Mr Howson was bagging the catch and neither of them saw any part of what occurred. Any of their evidence about how the accident occurred was surmise on their part.
Mr Clement, an executive director of the second defendant's parent company at the relevant time gave evidence and expressed an opinion that the hopper lids moved so slowly that once the plaintiff felt the lid on his hand he would have had time to remove his hand. Mr Clement did not physically test his theory. Having viewed a video of one of the hopper lids moving I do not accept Mr Clement's opinion about that.[79]
[79] Exhibit 6.
Mr Razga, now the General Manager of the second defendant and then the projects/fleet manager, took that video of the hopper on the Vessel sometime after the injury and after the hopper had been renovated to remove fibreglass brine tanks which had been at each end of the hopper.[80] I pause here to note that the taking of the witness' evidence in this matter was complicated[81] by the defendants utilising still photographs of a hopper from other vessel,[82] not exactly the same as the hopper on the Vessel, by the fact that the video of the hopper on the Vessel was taken after renovation of the hopper to remove the brine tanks, by some imprecision in descriptions of the parts of the hopper and questions about the manner of function of the hopper.[83] It was Mr Razga who, on day three of the trial, gave clear evidence about how the hopper operated and thereby cleared up the confusion.
[80] Exhibit 6.
[81] Including the plaintiff who did not even know what the piece of machinery was called.
[82] Exhibit 1.
[83] Initially the hopper was referred to as a brine tank but it later became apparent that as at September 2017 unlike the hopper shown in Exhibit 1, the hopper on the vessel had two fibreglass brine tanks immediately adjacent to the metal hopper tank.
Mr Razga confirmed that the video was taken from the stern (or rear) of the vessel looking forwards towards the starboard (right) side lid of the hopper. The port (left) side lid was largely out of the frame of the video. From Mr Razga's evidence and from the video I find that the sorting table ran between port and starboard and forward of the hopper. I will return to this later in these reasons when I describe where the plaintiff was standing vis-à-vis the hopper and the sorting table.
The evidence of Mr Howson and Mr Sheehy was that the plaintiff suffered sea sickness at the start of the voyage which the plaintiff agreed was the case. Mr Howson maintained that he had told the plaintiff to stay in the galley while he was unwell and that the plaintiff did little work that first night. Mr Howson was a witness of fixed views. From the manner in which he gave his evidence it was clear to me that he did not think well of the plaintiff and had formed a fixed view that the plaintiff had deliberately injured his hand. That view was formed notwithstanding that Mr Howson had been working in a different area of the boat, could not and did not see how the injury occurred. By reason of that fixed view I cannot accept the evidence of Mr Howson unless it was consistent with that of another witness or is uncontentious.
The third defendant did not see what happened. His evidence was that he undertook an investigation about how the injury occurred after the return to the wharf by asking the other two 'deckies', Mr Howson and Mr Sheehy, what happened. The third defendant knew that neither of them saw what had happened. After the injury, the third defendant complete a ships log and an incident report.[84] The incident report was completed by the third defendant after speaking with Mr Sheehy and Mr Howson neither of whom saw the incident and, I infer, after speaking with Mr Clement[85] but the plaintiff had no input into its preparation. I have discounted anything said in the incident report except insofar as it records the time of injury.
[84] Exhibits 4 and 2, pages 84 - 85.
[85] Mr Clement holding the view that the plaintiff had the time to remove his hand once the lid had touched it.
The plaintiff evidence was that on the first night, 22 ‑ 23 September 2017 he was seasick and so stayed in the galley for a while but was then able to work, he worked alongside a man he referred to as his 'supervisor' sorting the catch and hosing down the hopper lids on a number of runs. From 11.00 am on 23 September they all slept and recommenced work at 4.00 pm where he again worked alongside his 'supervisor' until he was injured.
Mr Sheehy, was the man working with the plaintiff on the sorting table. Mr Sheehy presented to me as an honest witness who was endeavouring to assist the court with respect to a matter which happened a long time ago and where he had no interest in the outcome. Largely for those reasons, Mr Sheehy's recollection was not perfect.

An allowance for the payment of superannuation should also be made. I have assumed in this calculation that the guaranteed superannuation sum of 9.5% should be calculated on the gross weekly sum less 15% for tax and that figure should be reduced by the contingency of 35% referred to above. On my calculation the appropriate sum is $694.90 x 9.5% x 39 weeks x 85% x 65% = $1,422.
Interest on past earnings and on the superannuation sum is calculated as follows:
Past loss of earnings  $15,638
Past loss of superannuation  $1,422
Interest on past loss of earnings and
Superannuation at 3% for 3 years  $1,535
Total$18,595
To those sums I add a small lump sum of $5,000 to compensate the plaintiff for the potential minor loss of earning capacity and from his minimal discomfort to his hand.
I have had no evidence of the plaintiff's past medical costs. The plaintiff's particulars of damages dated 18 October 2019 claimed a global allowance of $1,000 for past and future for travel to and from medical and pharmaceutical providers. I am not prepared to make any award in the absence of any evidence.
I have had no evidence to support any claim for future medical costs and the evidence is that treatment is complete.

Contributory negligence

Part 1A div 5 of the Civil Liability Act deals with the issue of contributory negligence. In summary it relevantly provides that the standards for determining whether a person is liable for harm caused by the fault of that person also apply in determining whether the person who suffered harm have been contributorily negligent in failing to take precautions against the risk of harm and for the purpose of determining the appropriate standard the court must treat the person who has suffered harm as a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at that time.
Essentially, a plaintiff is guilty of contributory negligence if he ought reasonably foreseen that if he did not act as a reasonable and prudent person he would expose himself to risk of injury.[160] The onus is on the defendants to prove contributory negligence.
[160] The Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563.
I am not persuaded that the plaintiff was contributorily negligent. He was new to fishing and to the Vessel, the engine of the Vessel was noisy and the movement of the hopper arm was not, he had been told to keep three points of contact on a moving and rocking boat in the middle of the night where he did not expect that the hoppers arm was going to be bought to a horizontal position. A reasonable person in his position may not have done anything differently to what he did.

Conclusion

I find for the plaintiff as against the first and third defendants and assess damages for pecuniary loss in the sum of $23,595.
I dismiss the plaintiff's claim against the second defendant.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Court Officer
18 JUNE 2021