Evans v Port of Brisbane Authority - [1992] QCA 302

IN THE COURT OF APPEAL

[1992] QCA 302

SUPREME COURT OF QUEENSLAND

C.A. No. 19 of 1992

BETWEEN:

HAROLD KENNETH EVANS

(Plaintiff) Appellant

AND:

PORT OF BRISBANE AUTHORITY

(First Defendant) First Respondent

AND:

UNITED SHIP REPAIR SERVICES

(A FIRM)
(Second Defendant) Second Respondent

AND:

ASSOCIATED STEAMSHIPS PTY. LTD.

Third Defendant

AND:

ASSOCIATED STEAMSHIPS PTY. LTD.

Third Party

AND:

BP AUSTRALIA LIMITED

Fourth Party

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The Chief Justice
Mr. Justice Davies
Mr. Justice Ambrose

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgement of the Court given on
the Fourteenth day of Sepember 1992

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
THE ORDERS UPON THIS APPEAL AND CROSS APPEAL THEREFORE WILL
BE AS FOLLOWS:-

1. THE APPEAL AGAINST THE FIRST RESPONDENT AND THE SECOND RESPONDENT IS DISMISSED.
2. THE CROSS APPEAL OF THE FIRST RESPONDENT AGAINST THE APPELLANT AND THE SECOND RESPONDENT IS DISMISSED.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 19 of 1992

Before The Chief Justice

Mr. Justice Davies
Mr. Justice Ambrose

BETWEEN:

HAROLD KENNETH EVANS

(Plaintiff) Appellant

AND:

PORT OF BRISBANE AUTHORITY

(First Defendant) First Respondent

AND:

UNITED SHIP REPAIR SERVICES

(A FIRM)
(Second Defendant) Second Respondent

AND:

ASSOCIATED STEAMSHIPS PTY. LTD.

Third Defendant

AND:

ASSOCIATED STEAMSHIPS PTY. LTD.

Third Party

AND:

BP AUSTRALIA LIMITED

Fourth Party

JUDGMENT OF THE COURT

Delivered the Fourteenth day of September 1992

CATCHWORDS

Habours Act 1955-1987 s. 98. Port of Brisbane Authority Act 1976 s. 17. Negligence. Quantum of Damages. Whether Port of Brisbane Authority is liable for negligent personal injury.

Counsel:	Mr. K.C. Fleming QC with Mr. W.J. Hodges for the Plaintiff/Appellant. Mr. S.C. Williams QC with Mr. C.G.S.L. Jensen
for	the Respondent/First Defendant.

Mr. G.J. Gibson and Mr. Stewart for the

Second	Respondent/Second Defendant.
Solicitors:	Purvis Duncan for the Plaintiff/Appellant. O'Mara Patterson & Perrier for the

Respondent/First Defendant.

Barker Gosling for the Second
Respondent/Second Defendant.

Hearing dates: 24th and 25th August 1992.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 19 of 1992

BETWEEN:

HAROLD KENNETH EVANS

(Plaintiff) Appellant

AND:

PORT OF BRISBANE AUTHORITY

(First Defendant) First Respondent

AND:

UNITED SHIP REPAIR SERVICES

(A FIRM)
(Second Defendant) Second Respondent

AND:

ASSOCIATED STEAMSHIPS PTY. LTD.

Third Defendant

AND:

ASSOCIATED STEAMSHIPS PTY. LTD.

Third Party

AND:

BP AUSTRALIA LIMITED

Fourth Party

JUDGMENT OF THE COURT

Delivered the Fourteenth day of September 1992.

The appellant was the plaintiff in an action for damages for negligence occurring in the course of his employment with the third defendant for which the first respondent and the second respondent were held liable.

Judgments were given in favour of the third defendant (also the third party) and the fourth party and they are not parties to this appeal.

The appellant appeals only on the ground that the damages awarded were inadequate. It is his case that the learned trial Judge either misunderstood or misapplied certain evidence which resulted in an insufficient award of damages to compensate him for future loss of earning capacity.

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 Evans v Port of Brisbane Authority

Details

AGLC: Evans v Port of Brisbane Authority [1992] QCA 302
Case: [1992] QCA 302
Decision Date: 14/09/1992

CaseChat Overview and Summary

appellant and the second respondent is dismissed.

In the case of Evans v Port of Brisbane Authority, the plaintiff, Harold Kenneth Evans, appealed against the damages awarded to him by the lower court, arguing that the award was inadequate. Evans was injured in the course of his employment while working on a vessel in the Cairncross dry dock. He suffered a glancing blow to the lower back and fractured his left ankle when a defective mobile scaffold fell. Evans argued that the trial judge misunderstood or misapplied certain evidence, resulting in an insufficient award of damages to compensate him for future loss of earning capacity. The first and second respondents, the Port of Brisbane Authority and United Ship Repair Services respectively, argued that the trial judge neither misunderstood nor misapplied the evidence and that the quantum of damage was not manifestly inadequate. The first respondent also cross-appealed, arguing that by-law 12 of the Port of Brisbane Dockyard Cairncross By-Laws exempts the first respondent from liability to Evans for damages for negligence resulting in his injury.

The Court of Appeal found that the trial judge's assessment of damages was supported by the evidence, and the appeal was dismissed. The Court also found that by-law 12 did not exempt the first respondent from liability for damages for personal injury resulting from negligence, and the cross-appeal was also dismissed. The Court held that the by-law had a more limited effect, only exempting the Authority and its employees from liability for economic loss as a result of certain categories of breach of contract. The Court further held that the first respondent's cross-appeal against the second respondent must also be dismissed, as the right of the second respondent to contribution from the first depends on the first respondent being characterised as a tortfeasor "who is or would if sued have been liable in respect of the same damage" as the second respondent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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