Facchini v Facchini - [2002] WADC 127

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FACCHINI -v- FACCHINI & ORS [2002] WADC 127

CORAM: DEANE DCJ

HEARD: 10 JUNE 2002

DELIVERED : 26 JUNE 2002

FILE NO/S: CIV 1767 of 1999

BETWEEN: CORRADO FACCHINI
Plaintiff
AND
PAOLINO FACCHINI
Defendant
DEBORAH LEE FACCHINI
FRANCESCO SAVERIO FACCHINI
BAFILIA ASSUNTA FACCHINI
Third Parties

Catchwords:

Partnership law - Plaintiff in partnership with defendant in owning/running a crayfishing vessel - Plaintiff injured on vessel in course of voyage - Plaintiff alleges negligence on part of defendant as skipper/master of vessel - Whether plaintiff can sue defendant - In what capacity were plaintiff and defendant acting at relevant time

Legislation:

Workers' Compensation and Rehabilitation Act of Western Australia (1981)

Result:

Preliminary issue decided in favour of plaintiff

Representation:

Counsel:

Plaintiff:     Mr P J Patterson
Defendant:     Ms P A Saraceni
Third Parties                 :     No appearance

Solicitors:

Plaintiff:     Taylor Smart
Defendant:     Cocks Macnish
Third Parties                 :     No appearance

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

AMP Society v Allan & Anor (1978) 52 ALJR 407
Ellis v Joseph & Co (1905) 1 KB 324
Huston v Burns & Anor [1955] Tas S.R.3
Mair v Wood (1948) SC 83
Meyer & Co v Faber (1923) 2 Ch 421
Radley v Moffatt (1862) 1 SCR (NSW) 112

Case(s) also cited:

Harbottle v Hargraves (1866) 5 SC (NSW) 104
Kliendienst v Kliendienst (1959) SR (NSW) 150
Jones v Chaseling (1914) 14 SR (NSW) 422
Wilson v Carmichael (1904) 2 CLR 190

DEANE DCJ: On 6 August 2001 relevant to this matter a Judge of this Court ordered that:
(1)the questions of mixed fact and law be tried as a preliminary issue before the trial of the action;
(2)until a determination of the preliminary issue or issues or further proceedings in the action be stayed;
(3)costs be in the cause.
Initially there was a question as to whether the plaintiff was a partner in a partnership which included the defendant and which partnership ("Facchini Fishing Co") operated a crayfishing vessel known as "Spellbound". That issue no longer requires determination because it is conceded that the plaintiff was a partner in the partnership which owned and operated the vessel in question. The issue that remains to be determined in these proceedings is whether the plaintiff is entitled to sue the defendant for damages for negligence causing personal injury, loss, damage and expenses to the plaintiff such injury, loss, damage and expenses being incurred whilst a partnership existed between the plaintiff and the defendant.
The plaintiff's case is that on or about 27 May 1996 he and the defendant were involved in a partnership which conducted a crayfishing business involving the "Spellbound" vessel which at the time was operating in waters off the Abrohlos Islands, near Geraldton, in the State of Western Australia. It is further alleged that at the time in question the defendant was the master skipper of the vessel, whilst the plaintiff was carrying out the duties of a deckhand. It is further alleged that on 27 May 1996, as the vessel was returning to port from a fishing expedition the weather was extremely rough. During the course of the day a spring on a tipper which, as I understand it, is an instrument used in retrieving the craypots from the bottom of the ocean and upending them so the contents of the pots are tipped onto the boat, had broken. The plaintiff asserts that as a result it was decided to use an ockie strap as an interim measure to replace the broken spring on the tipper. The relevance of the ockie strap is said to be that it was originally attached to a hatch, weighing about 50 kilos, which was flush with the deck of the vessel and which when lifted allowed access down into the engine room of the vessel. The engine room contains an instrument called an inverter which is relevant to the power source which runs the vessel. Whilst the vessel is actually operating and fishing 24 volts of power are required to run and maintain the vessel. Once the crayfishing is complete and the vessel is merely travelling, less power is required and so in that situation generally the inverter is turned from 24 to 12 volts.
According to the Statement of Claim on the day of the alleged accident the defendant instructed the plaintiff, in the course of his duties as a deckhand, to enter the engine room of the vessel in order to switch the inverter from 24 to 12 volts. It is said that the only means of access to the engine room was by means of lifting the hatch and then stepping down a ladder. As the ockie strap had been removed from the hatch, for the reason previously explained, there was no mechanism to fix the hatch in place once it had been lifted up. The plaintiff gained access to the engine room through the hatch and switched the inverter to 12 volts before commencing to climb back up the ladder in order to return to the deck. It is the plaintiff's case that as he stood on the ladder and grasped the access way, the hatch suddenly fell shut causing the plaintiff to let go of the edging in order to prevent his fingers from being severed or severely injured. As a result it is said that the plaintiff slipped and fell onto his back on the engine room floor thereby sustaining injury.
The plaintiff alleges that the defendant was negligent by:
(a)requesting the plaintiff to turn off the inverter when the vessel was still at sea in rough waters;
(b)requesting the plaintiff to perform a function which it was his duty to perform and which he normally performed as skipper of the vessel;
(c)failing to ensure there was a suitable mechanism such as a serviceable ockie strap to enable the hatch to be fixed in place or to direct someone to hold the hatch open whilst the plaintiff was inside the engine room;
(d)requiring the plaintiff to undertake a task which was unnecessary at the time and which could have been performed as the vessel neared shore in smoother waters;
(e)failing to have in place or enforce a system whereby the floor in the engine room/step ladder was maintained so it was not wet and slippery;
(f)in all the circumstances, failing to take proper care for the plaintiff's safety.
The defendant admits that at all material times he was the skipper of the vessel "Spellbound" but denies all allegations of negligence and further pleads that if the plaintiff was injured in any way, which is denied, then such injuries and any consequential loss or damage were caused by or contributed to by the plaintiff's own negligence.
It is common ground that the plaintiff and defendant were involved in the partnership at all material times, which partnership owned, operated and funded the crayfishing vessel "Spellbound" on which the plaintiff was allegedly injured. There is no debate as I understand it that the plaintiff, in his capacity as a partner, from time to time did work as a deckhand on the vessel and further contributed to the running costs of the vessel. It is not alleged nor is it argued that the plaintiff was an employee or worker pursuant to the Workers' Compensation and Rehabilitation Act (1981). In this regard I accept the submission made on behalf of the defendant that a partner who performs work for other partners in the partnership and receives remuneration for the work is not an employee: Ellis v Joseph & Co (1905) 1 KB 324; AMP Society v Allan & Anor (1978) 52 ALJR 407. I do not understand the plaintiff's position to be that whilst working on the vessel he was doing so in the capacity as an employee. Further in March of 1999 a Deputy Registrar of the District Court made a finding that the plaintiff was not a worker within the definition contained in the Workers' Compensation and Rehabilitation Act (1981). The plaintiff's application for leave to commence proceedings against the defendants was dismissed.
There is no doubt that if the plaintiff was a third party and was injured as alleged that the matter would be resolved by reference to s 17 of the Partnership Act 1895 (WA) which provides that:
"Whereby any wrongful act or omission any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injuries are caused to any person not being a partner in the firm or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act."
The position in this case however is that the plaintiff does not seek to avail himself of this provision.
The plaintiff maintains that he is proceeding against the defendant as the actual tortfeasor and not against the partnership or the defendant in his capacity as a member of the partnership on or about 27 May 1996.
The defendant takes issue with this and argues that the plaintiff's cause of action against it is in the defendant's capacity as a partner properly operating the partnership as a part of that business. The defendant does not accept the action is against him personally as the wrongdoer or tortfeasor. Further, the defendant's position is that in all of the circumstances the partnership was not incidental to the plaintiff's presence on the vessel at the time of the alleged injury.
With reference to the allegations contained in the Statement of Claim the defendant claims that the allegations relate primarily to the state of the vessel and not to any acts or omissions on the part of the defendant personally in his capacity as master or skipper, but rather in his capacity as a partner. It is the said that the particulars of negligence contained in par 6(c) and par 6(e) are essentially allegations regarding the lack of appropriate equipment on the vessel and therefore are allegations against the owners of the vessel, that is the partnership, for also failing to have a non-slip surface on the engine room floor and stepladder leading down into the engine room. Criticisms are directed at par 6(a), par 6(b) and par 6(f) because it is said that they are either non-particulars or contain allegations which are not causative of the alleged accident, the proximate cause of which is alleged to have been the absence of an ockie strap or similar device whereby the steel hatch could be supported and kept open at particular times. This it is argued is a matter which falls clearly within the responsibility and purview of the partnership. This is not an allegation or situation according to the defendant's argument, whereby for example a skipper or a master of a vessel is travelling too fast or handling the vessel in a dangerous and/or irresponsible manner which has caused a person in the plaintiff's position to lose balance, fall and injure himself. In relation to this aspect of the matter the plaintiff maintains that its case is the defendant was well aware that there was no appropriate equipment to hold the hatch back in a secure manner and despite this the defendant made a decision to instruct or request the plaintiff to go down into the engine room in rough seas to turn the inverter down to 12 volts. Further it is submitted that such a decision on the defendant's part did not relate to contractual or property rights and moreover it was a decision made in his capacity as skipper or master of the vessel at the relevant time.
It is the case that a partner who suffers damage or loss which is caused by the negligence of a co-partner does not necessarily have a right of action against that co-partner; Higgins and Fletcher, "The law of Partnership in Australia and in New Zealand" (7th Edition) p 311. A tortious action against a co-partner however can be maintained if it does not relate to a matter that arises in the course of the partnership and does not relate to property in which the defendant is entitled to share; Radley v Moffatt (1862) 1 SCR (NSW) 112. Counsel for the defendant relies on this proposition in the sense that it is argued that in the circumstances of this case the plaintiff does not have a maintainable action against the defendant because it is brought in respect of a matter or matters which arose in the course of the partnership business and matters which relate to partnership property. The practical effect of the plaintiff being entitled to maintain this action, according to argument of counsel for the defendant, is that if the plaintiff were to succeed in establishing liability against the defendant then any damages that might be awarded would come from monies paid out of a fund to which the plaintiff as a partner contributed and this would lead to what counsel describes as a "circuity of action" From a purely hypothetical perspective at this point in time, if the plaintiff were to succeed against the defendant in his personal capacity, it is not entirely clear whether the defendant would be able to satisfy the claim by means of access to funds of the partnership. That issue however is not one that requires determination in the context of the question before the Court in this part of the proceedings.
Somewhat unusually there appears to be a paucity of authority on the precise point at issue in this matter. Counsel for the plaintiff informed the Court that he had been able to locate only one authority which appeared to be on point, being Huston v Burns & Anor [1955] Tas SR 3. Counsel conceded that the authority was in all likelihood not binding on this Court but urged that it was of assistance and should be followed in the circumstances of this case. Briefly the circumstances in Huston v Burns & Anor (supra) were that three individuals who were described as A, B and C were partners in a business which was engaged in the winning of mining timber from the bush and the delivery of that timber to a mining company. The partnership was based on each partner contributing his labour and part of the necessary equipment, whilst running expenses were shared as agreed, with all profits being divided equally. On the day in question, while travelling in a truck driven by B in the course of the partnership business, A was injured as a result of B's negligent driving. The truck was actually registered in C's name as the owner but at the time of the accident B was driving with C's authority and acquiescence. As I understand the case report, C was not actually physically present at the time of the accident. In any event A took action against both B and C and Crisp J held that despite the fact that they were partners, B was none the less liable to A, but the action by A against C was dismissed. In dismissing A's claim against C His Honour was guided by the decision of a Scottish Court in Mair v Wood (1948) SC 83 where Lord Keith observed; "in such a case the injured partner has a common law remedy against the wrongdoer personally. He has none, in my opinion, against the partnership". It is that observation in combination with the comments in Huston v Burns & Anor (supra) that counsel for the plaintiff argues supports the proposition that where one partner sues a fellow partner who is the actual wrongdoer or tortfeasor, he can sustain an action against that co-partner in his capacity as the wrongdoer/tortfeasor rather than in his capacity as a partner.
After a comparatively full review of the authorities Crisp J observed:
"The answer is I think that the texts cited are concerned with actions in which the partnership is concerned qua partnership ie where the action is directly concerned with the contractual obligations arising out of the partnership relation and not with delictual actions between partners where the relationship is an incidental circumstance merely."
It must be appreciated that relevant to Mair v Wood (supra) in Scottish law a firm or partnership has a separate legal persona as distinct from the individuals who compose it. The situation in this jurisdiction and the English jurisdiction is somewhat different in that the law does not recognise the existence of a firm as distinct from the members of it; Meyer & Co v Faber (1923) 2 Ch 421 at 439. Interestingly however, and in my view of some relevance is that in Lindley and Banks on Partnership (17^th ed) the observation is made at 12‑90 footnote No 42, that the position as enunciated in Mair v Wood (supra) is now a fortiori in England, where the firm has no such personality.
Notwithstanding the contention on behalf of the defendant that the observations in Huston v Burns & Anor (supra) do not apply in the circumstances of this case and in this jurisdiction, I am not persuaded that this is the case.
Further, whether ultimately this is an action that is brought in respect of a matter arising in the course of partnership business and relating strictly to partnership property ought be the subject of evidence.

For the foregoing reasons on the material before me at this point, I am of the view that the plaintiff should be afforded the opportunity to take the specified legal action against the defendant and therefore I decline to strike out the action as presently pleaded against the defendant or to delete par 6(c) and par 6(e) of the Statement of Claim.