Fremantle Ports v P & O Ports Ltd - [2008] WASCA 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FREMANTLE PORTS -v- P&O PORTS LTD [2008] WASCA 126

CORAM: STEYTLER P
McLURE JA
NEWNES AJA

HEARD: 13 MARCH 2008

DELIVERED : 17 JUNE 2008

FILE NO/S: CACV 108 of 2007

BETWEEN: FREMANTLE PORTS
Appellant
AND
P&O PORTS LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
Citation  :MILLS -v- FREMANTLE PORTS [2007] WADC 101
File No  :CIV 808 of 2005

Catchwords:

Tort - Negligence - Apportionment of liability between tortfeasors - Turns on own facts

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(2)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr I R Freeman
Respondent: Mr L A Tsaknis

Solicitors:

Appellant: Lavan Legal
Respondent: Cocks Macnish

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

House v The King (1936) 55 CLR 499
Mills v Fremantle Ports [2007] WADC 101
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

STEYTLER P: I have had the advantage of reading the judgment of McLure JA. It is consequently unnecessary for me to re‑state the facts and circumstances giving rise to this appeal, save insofar as is necessary for me to explain the different outcome at which I have arrived.

The question arising

Essentially, the question arising is whether the trial judge correctly apportioned liability for negligence between two tortfeasors, the appellant and the respondent, who were found to be liable for injuries suffered by the plaintiff, Mr Kim Mills. An apportionment of this kind involves a comparison of the respective degrees of departure from the required standard of care and of the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 494. This exercise is in the nature of a discretionary decision. Any challenge must consequently satisfy the principles stated in House v The King (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).

Events leading up to the accident

As McLure JA has said, Mr Mills was injured when his sweeper truck was struck by one of two large gantry cranes whilst he was in the course of cleaning a jetty. The appellant had exclusive control of the jetty. However, it had contracted with Wesfarmers CSBP Ltd (Wesfarmers) that Wesfarmers should have access to, and use of, the cranes. Wesfarmers in turn contracted with the respondent to provide stevedoring services to it at the jetty. Under that contract, the respondent used the cranes to unload fertiliser from ships. The trial judge found (Mills v Fremantle Ports [2007] WADC 101 [22]) that the 'arrangement' between the appellant and the respondent was that the respondent handled the movement of the cranes.
On the day of the accident, the appellant had arranged to clean the jetty and wash down the cranes. It instructed Mr Terry Stainton, employed by it as an acting team leader, to supervise a small team that was to carry out the cleaning work.
In order to clean the jetty and the cranes it was necessary to move the cranes. Ordinarily, the cranes were washed down at the northern end of the jetty. They were then moved to the southern end so that the northern end could be washed down. The cranes moved along rails. When not in use they were secured in place by large pins placed into holes in the jetty. Mr Stephen Kelly, an employee of the respondent, gave evidence that was that this was to prevent them from moving in severe storms. There were four sets of holes. There was one set at each end of the jetty and two sets in the middle of the jetty.
Neither Mr Stainton nor any member of his team was authorised by the appellant to move the cranes and they did not know how to do so. Consequently, Mr Kelly and another employee of the respondent, Mr George Whale, participated in the cleaning. Their primary role was to move the cranes.
Messrs Kelly and Whale went to the jetty, early on the appointed day, at 7.00 am. They unpinned the cranes and tried to move them in a northerly direction. The wind was blowing from the north. The fertiliser on the rails caused the cranes' wheels to slip. Although the fertiliser was a new product, Mr Kelly's evidence was that its effect on the cranes was no different than that of other fertiliser products (ts 126). The combined effect of the slipping of the wheels and the force of the wind had the result that it was not possible to move the cranes against the wind, other than for a short distance. However, because the cranes had moved a short distance, they were not in a position where they could be secured by pins. Messrs Kelly and Whale consequently decided to move them down wind to positions where they could be secured. They first moved the No 2 crane. However, when they did so the wind moved the crane some 10 ft past where they had planned to stop it. Mr Kelly said that he had never previously seen this happen. He said (ts 127):
We'd never had the situation before … ‑ if the wheels were spinning we would wash around the wheels fairly quickly, and they would drive. This particular time they wouldn't drive. We washed around the wheels, as we would normally do, and the wind was still causing us a problem.
Mr Kelly also said that he had never, in any circumstances, seen the cranes move on their own before (ts 130). Notwithstanding that there were pin holes further south, Mr Kelly and Mr Whale decided not to try to move the cranes to those holes because, if the cranes overshot them, they could cause damage to conveyor belts and other equipment on the jetty. Mr Kelly and Mr Whale accordingly decided to leave the cranes where they were, unsecured by pins, until the cranes and the wharf had been cleaned sufficiently for the cranes to move freely along the rails ([18] and [19] of the trial judge's reasons).
The Weather Bureau had issued a strong wind warning for that day, forecasting 18 to 23 knot north‑westerly winds at first, increasing to 20 to 30 knots in the morning, ahead of a 20 to 30 knot south‑westerly change (trial judge's reasons [23]). Mr Kelly had not checked the weather forecast.
Mr Stainton arrived at the jetty after Messrs Kelly and Whale had tried to move the cranes. The cranes were consequently unsecured at the time. Mr Kelly and Mr Stainton discussed this. The trial judge made the following finding concerning this discussion [24]:
Mr Stainton's evidence was that Mr Kelly told him that the cranes were not secured because he could not do so due to some product on the rails. Mr Kelly suggested that if the wheels and rails were cleaned the cranes could be moved to a position where they could be pinned. Mr Stainton suggested that his team clean the cranes where they were and asked Mr Kelly if that posed a problem for him. Mr Kelly said it did not.
The evidence given by Mr Stainton in this respect, accepted by the trial judge (who posed the relevant questions) was as follows (ts 97 and ts 98):
When you say 'position the unloader', can you just explain what you mean by that?---Well, when we arrived unloaders were not in the secured position, as in being locked down in a storm pin, locking system … So the discussion we had with Steve was what we were going to do about it. And he suggested that if the wheels, bogies and the rails were clean, we could position them. I said, 'Okay, are you going to do that?' And there was further discussion, and I suggested - I spoke to Steve and said 'Well, we need to wash these unloaders. We can wash them where they are, and if that poses a problem with you?' And he didn't have any issues with that.
When you say 'that poses a problem with you', what did you mean by that?---Well, are you happy for us to wash these unloaders in the position they are? And Steve had no problem with that.
Mr Stainton also said that he had not been told by Mr Kelly, and did not know, that earlier that morning one of the cranes had been blown south from its pin position when Messrs Kelly and Whale had tried to move it (ts 112, 115).
The plaintiff arrived at the jetty at about midday. He was instructed by Mr Stainton to drive his sweeper truck up and down the wharf so as to clear away the fertiliser. Mr Stainton and his team had been cleaning the No 2 crane. They took a break for lunch. Mr Kelly, who had washed the wheels of the No 2 crane, decided to try and move it to a pin down point. He was able to do so. He made no attempt to move the No 1 crane, which had yet to be washed. He, too, left to have his lunch. During the lunch break the wind swung around to the south‑west and increased in intensity. Crane No 1 began to move along the rail in a northerly direction. Mr Kelly was too far away to put a motor vehicle or forklift in its path in order to stop it. It picked up speed as it was blown to the northern end of the jetty. In the course of moving down the jetty it struck Mr Mills' truck, causing him to be injured.
Mr Kelly did not recall seeing Mr Mills' truck before the accident. The trial judge concluded [41] that Mr Kelly had paid no attention to it because the co‑ordination of the cleaning of the jetty was not his responsibility.

The trial judge's principal conclusions

The trial judge accepted the evidence of each of Mr Stainton and Mr Kelly that, although each had previously worked in windy conditions, neither had previously seen a crane move when not in use. However, he found that it was reasonably foreseeable to both men that the wind might move a crane that was not pinned down along the rail tracks [59]. He also found ([60] and [61]) that:
The cranes were very large and heavy objects. They had the capacity to cause serious injury or even death if they moved when not being controlled by an operator. The risk of injury could have been removed simply and with little risk to other workers. One [method] would have been to clean the wheels of the cranes and the tracks between the cranes and the closest position to which they could be pinned down before doing any other cleaning. The cranes could then have been moved to a position where they could be pinned down and, once they were pinned down, the balance of the cleaning could have been completed in safety.
Another method of removing the risk would have been to secure the cranes by tying them down, or to fixed objects, with ropes and wires. The cleaning could then have been completed without the risk of the cranes moving.
The trial judge went on to draw the following conclusions concerning liability [62] ‑ [66]:
The cleaning of the jetty and the cranes was being handled by Fremantle Ports. It was Fremantle Ports which arranged for Mr Mills to attend at the jetty and it was Mr Stainton, an employee of Fremantle Ports, who told Mr Mills what he was to do. Mr Stainton told Mr Mills to sweep along the edge of the wharf while Mr Stainton and his crew were at lunch. This task required Mr Mills to concentrate on the control of his vehicle while he was near to the tracks along which the cranes moved.
In my view it was negligent of Mr Stainton to permit Mr Mills to undertake that task when it was foreseeable that the crane could move in the wind.
I have concluded that it was foreseeable to Mr Kelly that the crane could move when it was not pinned down. Mr Kelly did not notice Mr Mills' truck until after the accident. I have concluded that was because he was not the person who was co-ordinating the cleaning of the wharf. Nevertheless Mr Kelly knew that people would be on the jetty cleaning it when the crane was not pinned down. In those circumstances it was foreseeable that a worker could be injured if the crane moved. In my view Mr Kelly owed a duty of care to the class of people of whom Mr Mills was a member, namely people cleaning the jetty.
While the cleaning of the jetty and the cranes was Fremantle Ports' responsibility Mr Kelly and Mr Whale were the people who were able to move the cranes. I conclude that Mr Kelly was also negligent in allowing Mr Stainton to carry out the cleaning of the cranes, other than just the wheels, before they were secured in position. If Mr Kelly had told Mr Stainton that he could not clean the cranes in the unsecured position, but that only the wheels and a portion of the track were to be cleaned until they were secured or that the cranes were first to be secured by ropes and wires, it is likely that Mr Stainton would have agreed. If that had occurred then the risk of injury to workers on the jetty, including Mr Mills, would have been reduced and Mr Mills would not have been injured.
It is my view that Fremantle Port's responsibility for the accident, both in terms of relative importance of its acts for it occurring and culpability, is far greater than that of P & O Ports. I reach that conclusion bearing in mind that it was Mr Kelly and Mr Whale, not Mr Stainton or his crew, who could move the cranes. I have reached the conclusion because the cleaning operation was the responsibility of Fremantle Ports, because Mr Stainton did not accept Mr Kelly's suggestion to clear the wheels and tracks and then move the cranes to positions where they could be secured and because Mr Stainton told Mr Mills to continue working on the jetty while Mr Stainton and his crew took their lunch break when Mr Stainton knew that the cranes were not secured. I apportion responsibility for the accident 80 per cent against Fremantle Ports and 20 per cent against P & O Ports.
As McLure JA has pointed out, the plaintiff's claim against the appellant and the respondent was for direct liability in negligence and not one for vicarious liability for the negligent act or omission of their employees. The breaches alleged against each included failing to provide a safe system to secure the cranes in place, failing to warn the plaintiff of the dangers and failing to take steps to lock down or secure the crane in the conditions. The trial judge made no findings on these allegations of breach against each of the appellant and the respondent. Instead, he identified breaches by reference to the conduct of Mr Stainton and Mr Kelly. However, neither party challenges the trial judge's approach in this regard. Nor does either of them seek additional findings.

Grounds of appeal

There are three grounds of appeal. Grounds 1 and 3 essentially contend that, in the light of his findings of fact, it was not open to the trial judge to make the apportionment ordered by him and that he should have found that the respondent's degree of responsibility was considerably higher than 20%. Ground 2 relies upon the finding by the trial judge that, if Mr Kelly had told Mr Stainton that the crane should be secured, after cleaning their wheels so as to enable them to be moved, before completing the balance of the cleaning work, it is likely that Mr Stainton would have agreed. The appellant contends that, in this circumstance, it was not open to the trial judge to conclude that Mr Stainton's failure to accept Mr Kelly's suggestion to clean the wheels and tracks and then move the cranes to positions where they could be secured was one of the factors that should result in a finding that the appellant's responsibility was far greater than that of the respondent.

Grounds 1 and 3

I would uphold grounds 1 and 3. It is unnecessary for me to consider ground 2.
With due respect, the findings of fact made by the trial judge seem to me to demand a significantly greater allocation of responsibility to the respondent than that arrived at by him.
It is, of course, important that the cleaning operation was the responsibility of the appellant, as the trial judge found. It is also important that it was Mr Stainton who told Mr Mills to continue working on the jetty during the lunch break, at a time when Mr Stainton knew that the cranes were unsecured and when it was foreseeable by him that the wind might move the cranes. However, these findings must be considered in the light of the trial judge's other findings that:
(a)neither Mr Stainton nor any member of his team was authorised by the appellant to move the cranes and they did not know how to do so [22];
(b)Messrs Kelly and Whale had tried to move the cranes before Mr Stainton and his crew arrived and had seen one of them moved by the northerly wind approximately 10 ft past where they had planned to stop it [17];
(c)neither Mr Kelly nor Mr Stainton had previously seen either of the cranes moved by the wind, but this was not surprising because the usual practice was that the cranes were pinned down when not in use [59];
(d)it was reasonably foreseeable by both men that the wind might move a crane that was not pinned down along the rail tracks [59];
(e)Mr Kelly knew that people would be on the jetty cleaning it when the crane was not pinned down and it was foreseeable by him that a worker could be injured if the crane moved [64]; and
(f)if Mr Kelly had told Mr Stainton that he could not clean the cranes in the unsecured position, but that only the wheels and a portion of the track were to be cleaned until they were secured, or that the cranes were first to be secured by ropes and wires, it is likely that Mr Stainton would have agreed [65].
I should add that it seems to me that, Mr Kelly having (unlike Mr Stainton) seen the wind shift one of the cranes that very morning, the risk of this being repeated was more apparent to him than to Mr Stainton. However, as McLure JA points out, there was no finding by the trial judge to that effect and nor is any such finding contended for by the appellant. I will consequently put this to one side.
Even putting that circumstance to one side, it seems to me that Mr Kelly's failure, as found by the trial judge [65], to tell Mr Stainton that he could not clean the cranes in the unsecured position was a serious omission that made a very significant contribution to the accident. Although the appellant had overall responsibility for the cleaning operations, it is plain that the trial judge accepted, as the evidence required him to do, that the principal responsibility for the operation of the cranes was that of the respondent. In that circumstance, and given that it was foreseeable by Mr Kelly that the crane would be moved in a southerly direction if the wind shifted, it seems to me that he should have insisted that each of the cranes should have its wheels washed down, enabling it to be secured before the cleaning operations were undertaken. It also seems to me that his failure to do so was such, in all of the circumstances found by the trial judge, that the respondent's responsibility for the accident was very much greater than 20%.
That is so, in my opinion, notwithstanding that the ultimate responsibility for the cleaning exercise was that of the appellant and that

Mr Kelly had no authority to direct the appellant as regards the manner in which the cleaning operations should be carried out. As I have said, the trial judge accepted that, if Mr Kelly had 'told' Mr Stainton that he could not clean the cranes in the unsecured position, it is probable that Mr Stainton would have agreed. The trial judge having found that Mr Stainton was likely to defer to Mr Kelly in that respect, Mr Kelly (and consequently the respondent) must, in my opinion, take a substantial share of the blame for the accident arising out of his failure to urge Mr Stainton to adopt what Mr Kelly knew, or at least should have known, was the appropriate and reasonably prudent procedure. This is more especially so in circumstances in which Mr Stainton had asked Mr Kelly if washing the cranes in their unsecured position posed a problem for him.

I would consequently allow the appeal and substitute for the finding of the trial judge a finding that responsibility be apportioned upon the basis that the appellant is held to be 60% liable and the respondent 40% liable, for the damages awarded to Mr Mills.

McLURE JA: This is an appeal from an apportionment of liability between tortfeasors. The appellant, Fremantle Ports, was held to be 80% liable and the respondent, P&O Ports Ltd, 20% liable for damages awarded to the plaintiff, Mr Mills. On 17 October 2002 the plaintiff suffered personal injuries in the course of cleaning the Kwinana Bulk Cargo jetty (jetty). The plaintiff was driving his road sweeper truck on the jetty when the truck was struck three times by a large gantry crane. The appellant contends the learned trial judge ought to have found that the respondent was more culpable, alternatively not less culpable, than the appellant for the accident.

Background

The appellant owned and, subject to any direction given by the Minister under the Port Authorities Act 1999 (WA), had exclusive control of the jetty. There were two large cranes weighing approximately 400 tonnes on the jetty. They were identified as crane No 1 and crane No 2. They were used to unload fertiliser from ships. The cranes moved along rail tracks on the jetty. When not in use they were secured by pins placed into holes in the jetty. There were four sets of holes in the jetty, one at the northern end, one at the southern end and two in the middle. The cranes were owned by the appellant.
At the time of the accident, the appellant had a contract with Wesfarmers CSBP Ltd (Wesfarmers) which provided for access to and use of the cranes by Wesfarmers. Wesfarmers had a contract with the

respondent which provided for the respondent to provide stevedoring services to Wesfarmers at the jetty. Pursuant to that contract, the respondent used the cranes to unload fertiliser from ships.

The appellant had responsibility for cleaning the jetty and the cranes. The appellant engaged a company carrying on business under the name Clean Sweep to sweep the jetty. On the day of the accident, the work at the jetty was undertaken by the plaintiff who carried on business as a cleaning subcontractor to Clean Sweep. There was no contractual relationship between any of the plaintiff, the appellant or the respondent.
Cleaning of the jetty and the cranes was scheduled to occur on 17 October 2002. An employee of the appellant, Mr T Stainton, was supervising the cleaning by the appellant's Port Services Team. Neither Mr Stainton nor any member of his team was authorised by the appellant to move the cranes and they did not know how to do so. The trial judge found that the appellant had an arrangement with the respondent whereby the respondent handled the movement of the cranes.
On 17 October 2002 the material to be cleaned from the jetty and the cranes was a type of fertiliser called 'SMAP' which had recently been unloaded. It was a new product that had not previously been unloaded at the jetty.
The practice was for the cranes to be washed down at the northern end of the jetty. They would then be moved to the southern end of the jetty following which the northern end would be washed down.
Two employees of the respondent, Mr S Kelly and Mr G Whale, participated in the cleaning. Their primary role was to move the cranes. The cranes could be moved by controls on the ground or by controls in the cranes.
On the morning of 17 October 2002, Mr Kelly went to crane No 1 and Mr Whale went to crane No 2. Mr Kelly removed the pins, climbed into the crane, turned on its power and attempted to move it to the north. The crane moved a short distance and then would not move any further. Mr Whale did the same with crane No 2 and had the same experience. The SMAP on the rails was causing the wheels of the cranes to slip and it was not possible to move the cranes against the wind which was coming from the north. The wind was very strong. As both cranes had been moved a short distance they were not in positions at which they could be secured by pins. Mr Kelly and Mr Whale decided to move the cranes in the same direction as the wind to positions where they could be secured. They moved crane No 2 but were not able to stop it when it was in a location to be pinned. The trial judge noted that the northerly wind moved the crane approximately 10 ft past where they had planned to stop it.
Mr Kelly and Mr Whale decided to leave the cranes where they were, not secured by pins, until the cranes and the wharf had been cleaned sufficiently for the cranes to move freely along the rails.
When Mr Stainton arrived at the jetty, the cranes had been moved and were not pinned down. Mr Stainton's evidence was that Mr Kelly told him that the cranes were not secured because he could not do so due to product on the rails. According to Mr Stainton:
Mr Kelly suggested that if the wheels and rails were cleaned the cranes could be moved to a position where they could be pinned. Mr Stainton suggested that his team clean the cranes where they were and asked Mr Kelly if that posed a problem for him. Mr Kelly said it did not [24].
The trial judge accepted Mr Stainton's evidence of his conversation with Mr Kelly.
When the plaintiff arrived at the jetty at about midday he met with Mr Stainton. Mr Stainton gave the plaintiff instructions to drive up and down the wharf to sweep up the fertiliser.
Mr Stainton and his team had commenced cleaning crane No 2 before the plaintiff arrived. While they were washing the crane, Mr Kelly washed around the crane's wheels. Mr Stainton and his crew took their lunch break. They intended to wash crane No 1 after lunch. While Mr Stainton and his team were having lunch, Mr Kelly decided to try to move crane No 2 to a pin down point. He was able to do so. Mr Kelly did not try to move crane No 1. It was his view there was no point in trying as it still had fertiliser around the wheels.
While Mr Stainton and his team and Mr Kelly were in the amenities room having lunch, the wind suddenly changed direction to the south‑west. Crane No 1 began to move along the jetty in a northerly direction. Mr Mills was concentrating on his driving as he was close to the edge of the wharf. The crane picked up speed until it crashed into Mr Mills' truck.
The trial judge accepted the evidence of Mr Kelly and Mr Stainton that they had never before seen a crane move other than when it was in use. However, he found that it was reasonably foreseeable to both men that the wind might move a crane that was not pinned down.
The trial judge concluded that the appellant and the respondent were both liable in negligence to the plaintiff. He identified the negligence as that of Mr Stainton and Mr Kelly. He said it was negligent of Mr Stainton to permit Mr Mills to undertake the task of sweeping the edge of the wharf when it was foreseeable that the crane could move in the wind. Mr Kelly's breach is identified in [65] below.
In considering apportionment the trial judge said:
65.While the cleaning of the jetty and the cranes was Fremantle Ports' responsibility Mr Kelly and Mr Whale were the people who were able to move the cranes. I conclude that Mr Kelly was also negligent in allowing Mr Stainton to carry out the cleaning of the cranes, other than just the wheels, before they were secured in position. If Mr Kelly had told Mr Stainton that he could not clean the cranes in the unsecured position, but that only the wheels and a portion of the track were to be cleaned until they were secured or that the cranes were first to be secured by ropes and wires, it is likely that Mr Stainton would have agreed. If that had occurred then the risk of injury to workers on the jetty, including Mr Mills, would have been reduced and Mr Mills would not have been injured.
66.It is my view that Fremantle Port's responsibility for the accident, both in terms of relative importance of its acts for it occurring and culpability, is far greater than that of P & O Ports. I reach that conclusion bearing in mind that it was Mr Kelly and Mr Whale, not Mr Stainton or his crew, who could move the cranes. I have reached the conclusion because the cleaning operation was the responsibility of Fremantle Ports, because Mr Stainton did not accept Mr Kelly's suggestion to clear the wheels and tracks and then move the cranes to positions where they could be secured and because Mr Stainton told Mr Mills to continue working on the jetty while Mr Stainton and his crew took their lunch break when Mr Stainton knew that the cranes were not secured. I apportion responsibility for the accident 80 per cent against Fremantle Ports and 20 per cent against P & O Ports.
There are three grounds of appeal all of which overlap. The primary ground is that the judge erred in concluding that the appellant's responsibility for the accident was far greater than that of the respondent having regard to the fact that it was the respondent's employees who were permitted to move the cranes, the respondent's employee cleaned the wheels of crane No 2 and pinned it but left the wheels of the other crane uncleaned and the findings in [65].
The appellant also relies on an alleged inconsistency in [24], [65] and [66] relating to the exchange between Mr Kelly and Mr Stainton.

Legal principles

In proceedings for contribution between two or more tortfeasors, s 7(2) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) provides that 'the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable'.
The making of an apportionment between two or more tortfeasors involves a comparison both of culpability (that is, the degree of departure from the standard of care of the reasonable man) and of the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 494. A finding on apportionment is in the nature of a discretionary decision which can only be challenged on appeal in accordance with the principles stated in House v The King (1936) 55 CLR 499, 504 ‑ 505. Material error must be demonstrated.

Analysis

The plaintiff's claim against the appellant and the respondent was for direct liability in negligence not vicarious liability for the negligent act or omission of their employees. The breaches alleged against the appellant and the respondent included failing to provide a safe system to secure the cranes in place, failing to warn the plaintiff of the dangers and failing to take steps in the windy conditions to lock down or secure the crane. There was evidence, including expert evidence, adduced in support of the claimed breaches. The trial judge did not make findings on these allegations of breach but rather identified breaches by reference to the conduct of Mr Stainton and Mr Kelly. However, neither party challenges any of the factual findings made by the trial judge or seeks additional findings.
The appellant accepts that the trial judge did not make an express or implied finding that, as between Mr Kelly and Mr Stainton, Mr Kelly knew or ought to have known that there was a greater risk of the cranes being moved by the wind. The finding (at [17]) that the northerly wind moved the crane is not sufficient to justify an implication to that effect. That finding relates to the time and distance required to bring a moving crane to a stop, not the risk of the wind initiating the movement of a stationary crane.
The appellant's primary contention was that the statement in [66] that 'Mr Stainton did not accept Mr Kelly's suggestion to clean the wheels and tracks and then move the cranes to positions where they could be secured' is inconsistent with the findings at [24]. In essence, the appellant contends that in the exchange noted in [24], Mr Stainton was deferring to and relying on Mr Kelly's determination as to whether or not cleaning of the cranes should proceed in their unsecured position. That reads too much into the exchange, particularly in the surrounding circumstances. It was the appellant's responsibility to clean the cranes, the rail tracks and the wharf. Mr Stainton was supervising that operation. There is no evidence that Mr Kelly had the express or implied authority to direct the appellant (or its employees) as to where, or in what position, the cranes could be cleaned. In that context, Mr Kelly made a suggestion as to the order of cleaning. Having impliedly rejected Mr Kelly's suggestion, Mr Stainton does Mr Kelly the courtesy of inquiring whether Mr Kelly had any objection to proceeding in the way proposed by Mr Stainton.
That is consistent with Mr Stainton's evidence on the subject (ts 97 ‑ 98):
When I arrived at work there was a discussion with Steve [Kelly] regarding the positioning of the unloaders. He indicated that he couldn't position the unloader because of some product that was on the crane rails.
When you say 'position the unloader', can you just explain what you mean by that?---Well, when we arrived unloaders were not in the secured position, as in being locked down in a storm pin … So the discussion we had with Steve was what we were going to do about it. And he suggested that if the wheels, bogies and the rails were clean, we could position them. I said, 'Okay, are you going to do that?' And there was further discussion, and I suggested ‑ I spoke to Steve and said 'Well, we need to wash these unloaders. We can wash them where they are, and if that poses a problem with you?' And he didn't have any issues with that.
When you say 'that poses a problem with you', what did you mean by that?---Well, are you happy for us to wash these unloaders in the position they are? And Steve had no problem with that.
The trial judge's statement that Mr Stainton did not accept Mr Kelly's suggestion [66] is entirely consistent with [24].

The only finding of breach against the respondent was that Mr Kelly failed to tell Mr Stainton that Mr Stainton 'could not clean the cranes in the unsecured position, but only the wheels and a portion of the track were to be cleaned until they were secured or that the cranes were first to be secured by ropes and wires [65]'. That is a comparatively slender basis for liability, particularly when the trial judge accepted that it was the appellant's responsibility to clean its cranes and rail tracks and in the absence of a finding (or evidence) that Mr Kelly (or the respondent) had authority to direct the appellant's employees.
The facts identified by the trial judge as underlying the appellant's liability included that the cleaning of the jetty and the cranes was the responsibility of the appellant; the appellant arranged for the plaintiff to attend at the jetty; the appellant's employee Mr Stainton instructed the plaintiff as to what he was to do, which task required the plaintiff to concentrate on the control of his truck while he was near the tracks along which the cranes moved. Those matters are relevant to relative culpability and causative impact to which the trial judge added Mr Stainton's failure to accept Mr Kelly's suggestion and that Mr Stainton told Mr Mills to continue working on the jetty while Mr Stainton and his crew took their lunch break when he knew the cranes were not secured.
I am satisfied that it was open to the trial judge to conclude that the appellant's responsibility for the accident was far greater than that of the respondent and to apportion responsibility in the way he did. I would dismiss the appeal.
NEWNES AJA: I agree with Steytler P, for the reasons his Honour gives, that the appeal should be allowed and responsibility apportioned upon the basis that the appellant is held to be 60% liable and the respondent 40% liable.