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Essaiyd v Saint

Essaiyd v Saint

Case [2021] WADC 61 18 June 2021

Unconscionable Conduct

Civil Litigation & Procedure

Tort Law

Contract Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Essaiyd v Saint

Details

AGLC: Essaiyd v Saint [2021] WADC 61
Case: [2021] WADC 61
Decision Date

CaseChat Overview and Summary

Essaiyd v Saint is an action for damages for personal injury. The plaintiff, Essaiyd, suffered an injury to his right hand while working as a share fisherman on the fishing vessel, the NW Carnarvon II, in September 2017. He sued the operator and nominated skipper of the vessel, Saint, the temporary skipper, Carter, and the owner of the vessel, Mareterram Fisheries Pty Limited. The plaintiff alleged that the defendants were negligent in failing to warn and direct him to the risks of injury when working with the hydraulic hopper lid and that this was a breach of a safe system of work. The defendants denied liability. The plaintiff also claimed for breach of statutory duty under the Occupational Safety and Health Act 1984 (WA) and the Occupiers Liability Act 1985 (WA). The defendants denied liability and pleaded that any breach of statutory duty did not cause the injury. The owner also pleaded that it owed no duty of care to the plaintiff. The trial took place before Gillan DCJ over 5 days in January 2021. The plaintiff gave evidence and relied on the Sharefishing Agreement, the Sharefishing Joint Venture Agreement and the Fishing Operations Manual. The defendants gave evidence and relied on the Sharefishing Agreement, the Sharefishing Joint Venture Agreement and the Fishing Operations Manual. The defendants also gave evidence of the operation of the hopper lid. The defendants argued that the plaintiff had deliberately injured himself in order to make a claim against the defendants. This argument was abandoned during the trial. Gillan DCJ found in favour of the plaintiff against the first and third defendants and dismissed the plaintiff's claim against the second defendant. The Court found that the first and third defendants had breached their duty of care by failing to warn and direct the plaintiff to the risks of injury when working with the hydraulic hopper lid. The Court also found that the second defendant owed no duty of care to the plaintiff. The Court assessed the plaintiff's damages at $23,595.

Orders