Farmer v The Australian Volunteer Coast Guard Association Incorporated

[2008] NSWDC 12

CITATION:	Farmer v The Australian Volunteer Coast Guard Association Incorporated [2008] NSWDC 12
HEARING DATE(S):	30-31 January 2008, 1 February 2008
EX TEMPORE JUDGMENT DATE:	8 February 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1.Verdict and judgment for the plaintiff in the sum of $70,334.26. 2.The defendant is to pay the plaintiff’s costs of the proceedings. 3.The exhibits will be retained for 28 days except for the x-ray film Exhibit K which is released.
CATCHWORDS:	Boating accident - Credit - Duty of care to persons on floating pontoon
PARTIES:	John Farmer The Australian Volunteer Coast Guard Association Incorporated
FILE NUMBER(S):	Newcastle 404/06
COUNSEL:	Plaintiff - C A W Hart Defendant S E Torrington
SOLICITORS:	Plaintiff - Bale Boshev Defendant - McCabe Terrill

JUDGMENT

1 Mr John Farmer suffered a significant injury when he fell from a floating pontoon into the waters of Port Stephens at Lemon Tree Passage. The pontoon was available to the public as a boat launching facility and was used by the defendant for the purposes of its coastal patrol operations. In the course of assisting the defendant in one such operation the plaintiff fell. He claims that he fell because of the way in which the defendant’s volunteers operated the defendant’s vessel when berthing it at the pontoon.

2 The issues to be decided are:

1. credit, that is which versions of what occurred at the incident is to be accepted.
2. whether on the facts as found there was negligence on the part of the defendant, and
3. the compensation, if any, payable to the defendant in respect of non economic loss, domestic care and out-of-pocket expenses.

3 The plaintiff is retired and does not make a claim for income loss.

4 There are a number of facts which are not in dispute. They are as follows:

1. The pontoon at Lemon Tree Passage is described by Mr Burge in Exhibit H as having been made up of a number of moulded plastic pontoons linked together with moulded plastic links. The links are designed to allow slight movement to accommodate the effects of wind, current, vessel wash and vessel impact without damage to the structure of the pontoon. The pontoon is held in place by three timber piles on its northern face. It extends 28.5 metres into the water from the point at which it is secured to the shore. There are a number of steel horned cleats on the pontoon to which vessels can tie up.

A sketch of the pontoon assembly was attached to Mr Burge’s report. It was apparent from this description, therefore, that the pontoon was not a stable structure but that it moved with the movement of the water upon which it floated and with the effects of forces applied by wind, or in the course of its use by pedestrians or vessels.

2. The incident occurred on 25 October 2005 which was a fine, clear day.

3. The plaintiff on that day had spent the morning fishing in the waters off Lemon Tree Passage with his son-in-law, Garry Smith, and his two grandsons. They tied up their boat on the northern side of the pontoon and took the children to a pool for a swim. They had lunch.

4. As they were returning to their boat at about 2.30pm, a coastal patrol vessel approached the pontoon. It was returning from its task of ferrying volunteers from Schnapper Island. It was carrying three crew members and a number of volunteers.

5. The coastal patrol vessel was about eight metres long with a beam of 2.5 metres. It was equipped with two outboard motors and was of welded metal construction.

6. The crew comprised Mr Higgins, the port hand, Mr Bow, the starboard hand and Mr Sherwood, the coxswain, who was in charge of the vessel. All of these gentlemen were appropriately qualified for the tasks that were allocated to them.

7. The plaintiff fell into the water at the time the coastal patrol vessel was berthing at the pontoon.

8. As he fell the plaintiff hit his head on an anchor positioned almost at the point of the bow of the vessel.

Issue 1 - Credit

5 The plaintiff’s version of what occurred was as follows.

6 He said that as the coastal patrol vessel approached the pontoon, Mr Higgins slid towards the bow on his backside. The vessel approached at a 45 degree angle and hit the pontoon hard. It jolted the pontoon. He said he was handed a rope by Mr Higgins, who said: Would you mind tying this up for me please? Mr Higgins passed the rope over rather than under the railing on the vessel. The plaintiff said he attempted to tie the rope to the cleat on the pontoon, but it was about one metre short. He said to Mr Higgins: The rope is too short.

7 He then heard the motors of the vessel engaged into gear and it moved forward and hit the pontoon a second time, this time very hard. He said this pushed the wharf from under his feet and he was propelled forward. As a consequence he was thrown through the air and forward so that he struck his head on the bow of the boat and fell into the water.

8 The plaintiff said the tide was going out at the time of the incident and was carrying the vessel into the wharf. He said the tide was flowing fast. He noted this because when he was in the water he saw leaves and debris flowing past him and he noted that his body was being dragged under the pontoon.

9 The plaintiff said that he was holding the rope in the air at the time of impact between the vessel and the pontoon.

10 Mr Garry Smith, the plaintiff’s son-in-law, said he was walking two or three metres behind the plaintiff when he saw the coastal patrol vessel approaching at about 45 degrees from his right. At that time it was about two or three metres from the pontoon. He said one member of the crew was standing on the gunwale ready to tie the vessel up. That member of the crew asked the plaintiff to take the rope. Mr Smith did not remember the words used but said that the crew member was the first to speak. He said that the jetty jolted sharply and the plaintiff then fell into the water.

11 Mr Smith did not remember a number of other features. He did not remember any noise at the time the plaintiff fell or the speed of approach of the vessel, or whether it was stopped before the rope was handed to the plaintiff. He said he did not see the length of the rope. He said that Mr Higgins did not move from the bow of the vessel.

12 The defendant challenged this evidence by calling each of the members of the crew of the vessel at the time. In its challenge it stated the following:

1. The plaintiff offered to take the rope and was not invited to do so.

2. The rope was of more than adequate length.

3. The vessel did not impact with the wharf at all, or if it did, it impacted with very minor force.

4. The plaintiff fell into the water as a result of some physical infirmity that predated the incident.

Point 1 – offer/invitation

13 Mr Higgins was the port hand. He was responsible for tying the vessel at the bow. He agreed that he stood at the front of the vessel and he marked his position on the photograph, Exhibit 4. This was on the starboard side of the vessel adjacent to the on board cleat. He said he tied the rope to this cleat as the vessel approached the pontoon. He said the plaintiff extended his hand.

14 Mr Higgins was unable to say what, if anything, the plaintiff said to him. It was put to the plaintiff in cross-examination that he had said words to the effect of here, or can I help? This was denied by the plaintiff and there was no evidence that he said this. The evidence of Mr Smith in fact was that Mr Higgins was the first to speak. In the circumstances I accept the plaintiff’s evidence and that of Mr Smith and I find that Mr Higgins invited him to take the rope.

Point 2 – the length of the rope

15 The evidence of the defendant’s witnesses was that the vessel was equipped with two ropes, each of 7.5 metres in length for tying off at the bow and the stern. It was also equipped with ropes called springers which were one and a half times the length of the vessel. I accept that it was probable that the rope handed to the plaintiff was 7.5 metres in length. There remains a possibility that the plaintiff was handed insufficient length of rope. There was evidence of Mr Bow that the bow line was not tied off at the time he saw the plaintiff in the water and that the line was loose.

16 Mr Higgins said the plaintiff still had the rope in his hand at the time that he fell. This indicates that whatever the length of the rope the plaintiff did not have the opportunity to tie it before he fell into the water. The evidence is equivocal concerning the length of the rope and I am unable to conclude that it was too short to allow the plaintiff to tie it. I find, however, that regardless of the rope the plaintiff did not tie off the bow of the vessel before falling from the pontoon.

Point 3 - the force of impact of the vessel with the pontoon

17 The plaintiff’s evidence on this aspect was criticised because it differed from the evidence both of Mr Smith and the facts related in the report of Mr Burge, Exhibit H.

18 Mr Smith gave evidence to the effect that he felt one impact only. It was apparent from Mr Smith’s evidence that he paid little attention to the detail of what occurred prior to the plaintiff’s fall and, in the light of the plaintiff’s evidence that the initial impact did not significantly jolt the pontoon, I find that it is probable that this feature did not register with Mr Smith or that it was forgotten by him along with many other details of the afternoon.

19 At paragraph 21 of his report Mr Burge referred to an initial light contact between the pontoon and the starboard shoulder of the vessel. At paragraph 26 he said his instructions were that the vessel was pushed strongly onto the pontoon jolting it sharply sideways.

20 On reviewing the evidence it is apparent that the only issue between the plaintiff and Mr Burge was the speed at which the vessel travelled at the time of the first impact and whether that was a heavy or a light impact. The plaintiff’s evidence was that it was hard or heavy, but that it did not jolt the pontoon to any significant degree.

21 I accept, therefore, as suggested by the plaintiff that there was probably a misunderstanding by Mr Burge of the circumstances of the initial impact.

22 The defendant’s witnesses gave evidence that there was no impact at all. It was agreed by all witnesses that the vessel approached the pontoon at about a 45 degree angle. Mr Higgins said that as the vessel approached the pontoon its engines were put into neutral and the vessel was allowed to drift into the pontoon. He said at the time the plaintiff fell the vessel was hard up against the pontoon. Mr Sherwood said the engines were put into neutral and when the vessel was one metre from the pontoon, they were put into reverse to bring the stern around and alongside the pontoon. Similar evidence was given by Mr Bow who also stated that the vessel was assisted into the pontoon by a gentle north easterly breeze. He said that the bow at this time was one to two metres from the pontoon and was in fact drifting away from the pontoon.

23 There are some difficulties with the evidence of the defendant’s witnesses.

24 The evidence of Mr Bow and Mr Sherwood was that the stern line was tied off before they heard a noise in the nature of a thud or a thump at the front of the vessel. They stated that the vessel was not moving at the time the plaintiff fell.

25 From photographs in evidence it is apparent that the stern and bow cleats on the vessel are roughly aligned with the metal cleats on the pontoon. If Mr Bow had in fact tied off the stern then the cleat on the bow of the vessel would have been aligned with that on the pontoon to which the plaintiff was to tie the bow rope. According to Mr Higgins, however, the cleat was two metres shorewards of the point where he was standing adjacent to the bow cleat. This suggests that it was indeed necessary as stated by the plaintiff for the vessel to move forward to allow the stern and bow ropes to be tied.

26 Further, the plaintiff, Mr Smith and Mr Higgins gave evidence that Mr Higgins was able to hand the rope to the plaintiff. This suggests that the bow of the vessel was at that time closer to the pontoon than indicated by Mr Sherwood or Mr Bow.

27 The location of the vessel’s anchor is shown on Exhibit 7. The nature of the laceration to the plaintiff’s head indicated that he had struck it on the anchor as he fell. Mr Higgins, indeed, stated that he witnessed the impact between the anchor and the plaintiff’s head. Had the plaintiff been standing beside the cleat in the position shown on the photograph, Exhibit 7, it was highly improbable that he fell in a trajectory that brought his forehead into contact with the anchor particularly, if as stated, by Mr Bow the bow of the vessel was at the time drifting one to two metres away from the pontoon.

28 The result, therefore, is that I accept the plaintiff’s evidence that the engines were engaged in a forward direction to align the vessel with the cleats. This was necessarily done before the stern line was tied off. It was at this time that the plaintiff fell into the water and at this time, neither Mr Sherwood nor Mr Bow were aware of the plaintiff’s presence on the pontoon. I would suggest that the noise that they reported was likely that of some further impact between the plaintiff and the vessel, noting that in the course of the incident the plaintiff suffered a spiral fracture to his left femur.

4 - the reason the plaintiff fell

29 Mr Higgins said that he had a conversation with Mr Smith while they were in the process of helping the plaintiff from the water. He stated that Mr Smith said words to the effect: He’s ex-Navy, he likes to help but with his age and arthritis he’s getting hard to handle. Mr Smith denied any conversation of this nature. The plaintiff denied that he had any infirmity of this nature. The defendant claims support from the plaintiff’s medical records. These records, however, did not provide the level of support needed to maintain this part of the defendant’s claim.

30 There was evidence that the plaintiff suffered from some arthritis in his hands prior to the incident. There was evidence that the plaintiff’s treating orthopaedic surgeon, Dr Harrington, after the incident suggested that the possibility that the plaintiff suffered from an inflammatory disease affecting his joints be investigated and he recommended consultation with a rheumatologist. There was no evidence of the outcome of any such investigations, if any. In the circumstances, I find it highly improbable that Mr Smith would make a comment such as that alleged by Mr Higgins. This part of Mr Higgins’ evidence is rejected.

31 In summary the findings that I make in respect of the facts of the matter are based upon my acceptance, in the main, of the evidence of the plaintiff. They are:

1. Mr Higgins invited the plaintiff to take the bow rope and to assist him in tying up the front of the vessel.

2. The rope involved was of the standard 7.5 metre length. It is not possible on the evidence to make a definite finding concerning the length of that portion of the rope handed to the plaintiff.

3. The plaintiff was holding the rope at the time he fell. Thus he did not tie the rope to the cleat on the pontoon, either because it was too short or because he was allowed insufficient time.

4. There was at least one impact between the bow of the vessel and the pontoon of sufficient force to jolt the pontoon.

5. This jolt caused the plaintiff to fall from the pontoon into the water.

6. There was no evidence that the plaintiff suffered from any physical or mental infirmity such that it caused him to fall into the water.

Issue 2 - Negligence

32 There are two aspects to this part of the claim. It is necessary to decide if it was negligent of Mr Higgins to have invited the plaintiff to participate in tying up the vessel and if there was negligence in the manner in which the vessel approached the pontoon.

33 Mr Sherwood and Mr Bow declined to express an opinion on whether it was appropriate for Mr Higgins to invite the plaintiff to take the bow rope. Both said that they would not have done so. Mr Bow said this was because he would not leave to another the responsibility that had been allocated to him. Had this action on Mr Higgins’ part been the only feature I would have concluded that this part of his conduct was no more than inappropriate. I do not regard this action in isolation as negligent.

34 There were, however, several additional features concerning the manner in which the vessel approached the pontoon that, coupled with this action put the plaintiff in a position of foreseeable risk. Mr Higgins and Mr Sherwood were in a position to take action to avoid that risk but they did not do so.

They were:

1. Approaching the pontoon with rather than against the tide.

There is no evidence before me of the precise times of the tides. However, I was influenced by the plaintiff’s evidence of tidal movement after he had fallen into the water.

There was evidence that a log book was maintained on the vessel that recorded tidal information. This evidence indicated that the defendant had the means available to it of establishing the state of the tide at the time of the incident. This would have supported the evidence of the defendant’s witness’ that the vessel approached the pontoon at the head of the tide and that there was, therefore, no tidal influence. This information was not produced and I have inferred that it would not assisted the defendant on this point.

2. Mr Sherwood stated that he did not see the plaintiff on the pontoon.

This is probably because Mr Higgins was standing in a position on the gunwale, obscuring his view as he brought the vessel into the pontoon. He was, therefore, unaware of the need to take care to avoid jolting the pontoon.

The position adopted by Mr Higgins was contrary to the principles stated by Mr Sherwood, namely that the port hand does not walk on the starboard side of the vessel. The purpose of this principle was said, logically, to be to avoid blocking the coxswain’s view from the cabin of the vessel. Mr Sherwood in any event did not recall where Mr Higgins was standing at the time of the incident. He said he assumed he was standing behind him. This suggests that Mr Sherwood was not looking forward at the time he was berthing the vessel.

3. Finally, in inviting the plaintiff to assist Mr Higgins brought the plaintiff close to the edge of the pontoon and into a position where he was at risk.

35 The incident could have been avoided had proper procedures been followed. They were: that Mr Higgins not obscure the coxswain’s view, that Mr Higgins not invite assistance from a member of the public and that Mr Sherwood look forward to the bow of the vessel and to the pontoon to take account of the need to modify the approach of the vessel to ensure the safety of persons on the pontoon. These steps were not taken and I find the defendant liable in negligence.

Issue 3 - Damages

36 In relation to non economic loss the plaintiff claims to have suffered a laceration to his forehead, a fracture to his left femur and shock.

37 There was some difficulty retrieving him from the water after the incident. First aid was applied to the laceration by Mr Higgins and an ambulance was called which delivered the plaintiff to the John Hunter Hospital where the laceration was stitched.

38 On diagnosis of a spiral fracture of the left femur, it was fixed by Dr Harrington with a femoral nail. The nail remains in situ.

39 The plaintiff was transferred from the John Hunter Hospital to the Hunter Valley Private Hospital for rehabilitation. He was discharged in a wheelchair which he said he used for eight months intermittently with crutches. He used crutches for a further four months and then progressed to using a walking stick until three months prior to the hearing. He demonstrated that he continues to limp with the left leg. For three months after discharge his rehabilitation continued with twice weekly hydrotherapy which he found to be of assistance.

40 He continues to complain of a constant throbbing pain in his left thigh and some pain in his left knee. This has affected his personal and social activity and he, according to his wife Mrs Farmer, drove only on open roads for 12 months after the incident. This is because of a loss of confidence and he remains reluctant to drive, Mrs Farmer doing 95 per cent of the couple’s driving.

41 Dr Ghabrial noted mild wasting of the quadriceps muscles and some knee pain, but without evidence of osteoarthritic changes. He reported a residual fixed flexion contracture in the left knee of about 25 degrees.

42 Dr Stephen also noted muscle wasting and restriction in the range of movement of the left knee of 15 degrees. He accepted as reasonable the plaintiff’s complaints of continued pain and tenderness in the knee and thigh and resulting restrictions on his activities.

43 The defendant raised with the plaintiff his reluctance to give up his crutches and the delay which was evident in his progression to weight bearing on the injured leg. There is no claim on the part of the defendant of failure to mitigate. The plaintiff said that he was told by Dr Harrington to exercise caution because another fall could have caused him considerable difficulty. On 9 October 2006, that is one year after the incident, Dr Harrington described as not unreasonable scenario the plaintiff’s reliance on his walking stick, his inability to stride out and his caution.

44 In the circumstances and given the general consensus in the medical evidence, I have not regarded as significant the reluctance to give up the crutches in assessing the claim.

45 The laceration to the forehead has left the plaintiff with a scar described by Associate Professor Haertsch as six centimetres in length, soft, flat, white, non tender and non adherent to underlying structures. I have viewed the scar I would have measured it at closer to ten centimetres in length. The scar is visible but it is not prominent. The plaintiff also has scars on his left thigh and left buttock as a result of the surgery. Associate Professor Haertsch considered that no surgery was warranted in respect of any of the scars.

46 In relation to the claim of shock I have no doubt that the plaintiff suffered some shock as a result of his fall and his subsequent injuries. There was evidence that the plaintiff suffered from a pre-existing post traumatic stress disorder as a result of trauma to which he was exposed while in naval service. There is a report of Ms Kraihin of 22 October 2007 which suggested that there had been an exacerbation of this condition as a result of this incident. She recommended a psychiatrist’s opinion be obtained in relation to, among other things, the extent of the exacerbation. There is none in evidence.

47 The plaintiff suffered from significant pre-existing medical conditions of bowel cancer with ongoing requirement for colostomy, type 2 diabetes, hypertension and alcohol dependence. These all had some consequence to his quality of life.

48 I was reminded by the defendant that I should take into account the plaintiff’s age in assessing his damages. He was 67 at the time of the injury and he is now 69 years old.

49 Taking into account the plaintiff’s age, his pre-existing conditions, the scarring, the shock and exacerbation of the post traumatic stress disorder and his ongoing pain and restriction in activity, I have assessed his general damages at 26 per cent of a worst case or $35,500.

50 In respect of the domestic care claim there was evidence that prior to the incident the plaintiff shared household duties with Mrs Farmer. It was apparent, however, from their evidence that this was not an even sharing and that Mrs Farmer did the majority of the housework within the house with some assistance from Mr Farmer, whilst Mr Farmer was mainly concerned with external house cleaning with some assistance from Mrs Farmer. Mrs Farmer also assisted with some personal care prior to the incident. Mrs Farmer gave evidence that immediately after the incident the plaintiff required a considerable degree of personal care. This has been claimed at the maximum amount for 34 weeks. However, the evidence did not establish that a full requirement was required for 34 weeks as claimed. Mrs Farmer stated that the plaintiff was able to attend to his own showering at about four to six months after the incident, and at that point his requirements gradually reduced.

51 I accept that there has been established a six month period where voluntary assistance in excess of the threshold of seven hours per week was required. For this period I have allowed 13 weeks at the full rate in the sum of $14,557.50 and I have allowed 13 weeks at one half in the sum of $7,278.75 making a total of $21,836.25.

52 Thereafter, given the considerable degree of domestic work provided by Mrs Farmer prior to the incident, I am not satisfied that the threshold requirement of seven hours per week has been made out and no allowance is made. Similarly, no allowance is made for the future.

53 Some equipment to assist the plaintiff has been recommended by the occupational therapist. It is appropriate in my view to allow those listed on page 2 of the schedule of damages, Exhibit 11, and a calculation of the sum claimed is required.

54 For out-of-pocket expenses, the past expenses are agreed in the sum of $12,285.51. For the future the evidence indicated that the plaintiff is reviewed regularly by his general practitioner in respect of his diabetic condition and, therefore, no further allowance is necessary. The evidence was that the plaintiff used Panadol Osteo prior to the incident in respect of the arthritic condition of his hands and, therefore, no further allowance is necessary. There was no evidence of any requirement for or intention to undertake hydrotherapy or to obtain occupational therapy. No allowance on those head is therefore made.

55 The result is, in summary, general damages in the sum of $35,500; an allowance for past domestic care in the sum of $21,836.25; an allowance of past out-of-pocket expenses in the sum of $12,285.51 and allowance for equipment once that sum has been calculated.

56 Noting that the plaintiff does not seek to recover in respect of recurrent costs for the equipment, I allow the initial outlay in the sum of $712.50.

ORDERS

1.Verdict and judgment for the plaintiff in the sum of $70,334.26.

2.The defendant is to pay the plaintiff’s costs of the proceedings.

3.The exhibits will be retained for 28 days except for the x-ray film Exhibit K which is released.

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