Goodwin v La Macchia
[1999] NSWSC 963
•23 September 1999
CITATION: Goodwin v La Macchia & Ors [1999] NSWSC 963 CURRENT JURISDICTION: Common Law FILE NUMBER(S): W200002/95 HEARING DATE(S): 2 August 1999-6 August 1999 JUDGMENT DATE:
23 September 1999PARTIES :
Kerry Goodwin (Plaintiff)
B.A. La Macchia (1st Defendant)
William Thomas John Easdown (2nd Defendant)
Texole Pty Limited (3rd Defendant)
Stephen Walker (4th Defendant)JUDGMENT OF: Studdert J
COUNSEL : L. King SC/N.C. Canosa (Plaintiff)
S.J. Longhurst (1st Defendant)
I. Mescher (2nd Defendant)
S.J. Longhurst (3rd Defendant)
F.S. Stevens (4th Defendant)SOLICITORS: Hansons (Plaintiff)
Miller Harris (1st Defendant)
Michell Sillar (2nd Defendant)
Miller Harris (3rd Defendant)
South and Geldard (4th Defendant)CATCHWORDS: Negligence; injury in accident at sea off coast of Queensland; action in New South Wales; selection of law governing the assessment of damages. ACTS CITED: Workers Compensation Act 1987
Motor Accidents Act
Jurisdiction of Courts (Cross Vesting) Act 1987
Employees Liability Act 1991
Law Reform (Miscellaneous Provisions) Act 1946CASES CITED: Breavington v Godelman (1988-89) 169 CLR 41
Byrnes v Groote Eylandt Mining 10 MVR 297
McKain v R.W. Miller & Co (SA) Pty Limited (1991) 174 CLR 1
Stevens v Head (1992) 176 CLR 433
John Pfeiffer Pty Ltd v Rogerson (unreported, Full Court of the Federal Court, 9 July 1998)
Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711
Leonard v Smith (1992) 27 NSWLR 5
Smith v Leighton Contractors & Anor (unreported, Studdert J, 19 June 1998)
Malec v J.C. Hutton Pty Limited (199) 169 CLR 638DECISION: See para 161
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSTUDDERT J
Thursday 23 September 1999
2/95 KERRY GOODWIN v B.A. LA MACCHIA & ORS
JUDGMENT
1 HIS HONOUR: Kerry Goodwin is seeking damages in respect of personal injuries which she sustained whilst working as a deckhand and cook on a fishing trawler known as “Tagula Bay”. The accident happened on 10 January 1992 off the Queensland coast from Yeppoon, somewhere near Great Keppel Island.
2 The plaintiff has joined four defendants in this cause: the first defendant is B.A. La Macchia, who is sued as the owner of the “Tagula Bay”; the second defendant is William Easdown, who became a receiver appointed in circumstances to which I shall presently refer; the third defendant is Texole Pty Limited, who it is claimed employed the crew of the vessel; and the fourth defendant is Steven Walker, who it is claimed was the skipper of the “Tagula Bay”.
3 The case has presented an issue as to the plaintiff’s status on the trawler and, if the plaintiff was an employee, there is an issue as to the identity of her employer. However, at the outset it is convenient to consider the circumstances in which the plaintiff sustained her injuries.
The circumstances of the accident and the issue of negligence
4 The accident happened after dark on 10 January 1992, although I am satisfied that the vessel was well lit and that the time of the occurrence assumes no practical significance. The plaintiff was engaged in paying out a lazy line, an integral task in the process of putting out the trawling nets. This process has been described in evidence as “shooting out” . It involved casting the nets out to sea, and these nets, two in number, were connected by a line called a marriage line. There were two other attachment lines known as “lazy lines”, and these lazy lines had to be connected by clips to the top of the fishing nets. Each of the lazy lines were paid out from a winch, and the process of paying out the lazy lines required the services of two deckhands, that is to say one working on each line.
5 The winches from which these lines were paid out were located on an upper deck of the trawler which was some twelve feet above the deck where the plaintiff and the second deckhand were required to stand. The “Tagula Bay” was described as being some twenty-five to twenty-six feet wide and the console from which the winch controls were operated was located midway across the winch deck. The operator of the winches stood facing the stern as he controlled the winches which were hydraulically operated. I am satisfied on the evidence that from his control point the winch operator was able to see each deckhand involved in paying out the lazy lines, as they proceeded with their tasks on the deck below him. Exhibit B is a photo which depicts where the plaintiff was required to stand, the location of the winch deck and the path of the lines from the point of leaving the winches.
6 In paying out the lazy line which the plaintiff was required to attend, her task required her to grasp the lazy line above her head and to pull it downwards in a “hand over hand” fashion by her outboard side.
7 The plaintiff’s evidence was that as she was paying out the lazy line it was coming freely when it “just changed direction suddenly” and “reversed suddenly” . The plaintiff then described what occurred in the following response (T 15):
“I was just jerked suddenly up in the air hanging on to the rope because I had a firm grip on it, pulling it one way and when it reversed it just yanked me up in the air.”
8 The plaintiff said that she was lifted some ten to fifteen feet into the air before she let go, falling to the deck and sustaining the injuries I shall later identify.
9 Steven Walker was the skipper of the trawler at the time and he was operating the relevant winch when the plaintiff was injured. He did not actually see the plaintiff being lifted from the deck. His account was as follows (T 164):
“A. Well I was working the winch looking at both parties, I noticed watching each winch the winch had back fed. I observed Kerry being hauled in the air. I immediately stopped the winch and she fell to the deck.
Q. You saw her being hauled into the air?
A. I didn’t actually see her come off the deck. I seen her when she started to come back down as in level, well not level with me either, just down like that.
Q. What kind of motion then did you have to execute to stop the winch?
A. I had to apply the lever to neutral. I had to push the lever down to neutral.
Q. What did you do then?
A. After I had put it into neutral?
Q. Yes?
A. Raced downstairs to attend to Kerry.”
10 I am satisfied that the accident happened in the manner described by the plaintiff.
11 It was submitted on the plaintiff’s behalf that had the fourth defendant been watching closely he would have been able to stop the winch before the plaintiff was hoisted into the air and that her accident could thus have been avoided.
12 The evidence in the case satisfies me on the balance of probabilities that it was by no means a rare occurrence for the lazy line to suddenly reverse during the paying out process. The plaintiff gave evidence of this having happened before and so too did Miss Hibbard. I accept their evidence to that effect. Indeed, the fourth defendant acknowledged in his evidence that overriding, or “back feed” as he described it (T 163), can occur, and that this was “very common” (T 171).
13 I am satisfied that the tendency for the operation of the winch to reverse the direction of the lazy line was foreseeable and that it created a foreseeable risk of the deckhand who was paying out the lazy line being hoisted from the deck. I am satisfied that this was a risk of which the fourth defendant was aware or of which he ought to have been aware. Indeed, Miss Hibbard gave evidence that she had been paying out the lazy line on an occasion before the plaintiff’s injury when the fourth defendant was the winch operator for Miss Hibbard and that she had been jerked up off the deck. Although the fourth defendant said he had not been the winch operator for Miss Hibbard, Miss Hibbard was not cross examined about the evidence in point which she gave, and I accept it.
14 It seems to me that the very nature of the operation of the paying out of the lazy line required the winch operator to keep a close look out having regard to the very risk to which the plaintiff was exposed, so as to be able quickly to stop the winch if overriding occurred.
15 There was evidence placed before the Court, which evidence I accept, that it was possible to obviate or minimise the risk of what happened to the plaintiff from occurring by prompt response by the winch operator: the plaintiff gave evidence that she had experienced the overriding before and that “usually the person operating the winch would stop it straight away” and that this would “just stop the rope dead” (T 14). Later (T 60), the plaintiff referred to the practice of letting go of the rope if there was overriding but said “usually you wouldn’t have to, because the skipper would turn it off” . Then Miss Hibbard gave evidence as to the response in the winch once the lever was operated to stop the override. She described the response of the rope to the operation of the lever as “usually pretty instant” and agreed that the lever operation brought about “an immediate reaction on the spool of the winch” .
16 Mr Toghill, the expert relied upon by the plaintiff, had no opportunity of inspecting the winch on the “Tagula Bay” but, notwithstanding this fact and notwithstanding concessions elsewhere made by Mr Toghill in cross examination by Mr Stevens, I accept the evidence which Mr Toghill ultimately gave (T 113-114) that regardless of whether the winch was hydraulically controlled or electronically controlled he would have expected a winch operator exercising proper diligence in the control of the winch to be able to shut the winch off in time to prevent a deckhand paying out the lazy line from being hoisted into the air.
17 The fourth defendant gave evidence contrary to that which I have just reviewed and said that the winch operator could not react quickly enough to overriding so as to prevent a deckhand being lifted off the deck (T 175), but I prefer the preponderance of evidence before me to the contrary.
18 Mr Stevens submitted that because the winch operator had to watch and control the operation of two winches at the same time, he could not be expected to have kept the plaintiff under observation all the time, and that casual negligence had not been proved. However, having reflected on the relevant evidence and the competing submissions, I have concluded that the arguments advanced on the plaintiff’s behalf are to be preferred. Accepting, as I do, the evidence to which I have already referred from the plaintiff, Miss Hibbard and Mr Toghill, I am satisfied that had the fourth defendant been keeping a proper look out he would have detected the overriding in sufficient time to have prevented the plaintiff from being lifted from the deck in the manner in which she was, and that his prompt response by placing the winch lever into neutral would have avoided the harm which the plaintiff sustained.
19 Accordingly I am satisfied that casual negligence by the fourth defendant has been proved.
20 Mr King adopted in effect an element in the fourth defendant’s cross claim against the other defendants, asserting that the winch equipment should have been modified in such a manner as would have reduced the risk to the winch operator. The contention was that there could have been installed a free-riding bar to minimise the risk of back-feeding of the lazy line or alternatively there could have been installed a large A frame on the stern rail of the vessel. These suggested modifications were addressed in Mr Walker’s report tendered as Exhibit 4.
21 Mr Walker said he had seen these devices on some trawlers but did not contend they were invariably employed.
22 Mr Toghill was cross examined about the use of such devices. It would be fair to summarise his responses as being that he was not enthusiastic about their proposed uses. He had never seen an A frame mounted in front of the deckhands’ position and had never heard it suggested as a modification until he gave his evidence. When cross examined by Mr Stevens about the use of the A frame device, Mr Toghill was asked the following questions and gave the following answers (T 110):
“Q. If she is standing to the aft of the A frame and she is pulling it under the horn, then she wouldn’t go up into the rigging?
A. If it, this on the transom. The transom is on the rear end of the boat.
Q. If she is standing aft of that A frame?
A. You are saying if the A frame is ---
Q. If that A frame is situated with sufficient working space for the employee to pull the rope under the horn, and if she stands to the aft of the horn, then she can’t be pulled up into the rigging?
A. That’s correct.
Q. Her hand could be pulled into the horn?
A. Yes.
Q. She might mangle her hand?
A. Yes.
Q. But that would effectively prevent the accident happening, which is alleged to have happened on the ‘Tagula Bay’?
A. It would prevent her being pulled up, yes.”
23 It would seem from Mr Toghill’s evidence to which I have just referred that the use of the A frame, whilst it may have minimised the risk of the plaintiff being hoisted into the air would have introduced an alternative risk of hand damage.
24 I am not convinced that either the free-riding bar or the A frame suggested was a practicable modification which should have been introduced by those responsible for the equipment on this trawler. I am not satisfied on the balance of probabilities that the failure to have either such modification was unreasonable so as to amount to negligence.
25 The result is that I am satisfied that there was the casual negligence on the part of the fourth defendant that I have identified but no other head of negligence has been proved.
26 Contributory negligence has been raised as against the plaintiff. This defence was pleaded on behalf of the first defendant, the second defendant, the third defendant and the fourth defendant, although it was really only pressed at the hearing by the second and the fourth defendants.
27 There were two aspects in particular the focus of the defence. The first was that the plaintiff, possibly because she had a weakened arm by reason of an earlier injury, had wrapped the lazy line around her forearm. Indeed Mr Stevens submitted that the reason why she was lifted from the deck at all was because she had done this. He submitted that in the plaintiff’s behaviour in this regard was the explanation for the accident, that I should so find and that in consequence should find that the accident was due only to the plaintiff’s negligence. In the alternative though, he submitted that the plaintiff’s behaviour amounted to contributory negligence.
28 In cross examination the plaintiff denied that she had wrapped the rope around her forearm. The plaintiff was subjected to testing cross examination on this issue but the plaintiff impressed me generally as being an honest and reliable witness and I accept the evidence that the plaintiff gave that she did not wrap the rope around her arm.
29 The fourth defendant of course had the plaintiff under observation prior to the accident as she worked on the lazy line and he gave no evidence that he had seen the plaintiff wrap the rope around her arm. Had the plaintiff done this Mr Walker would have been in a position to see the plaintiff adopting this unsafe procedure.
30 There was no direct evidence to support the contention that the plaintiff handled the rope in this improper way. What was relied upon by Mr Stevens and by Mr Mescher were matters of history recorded in hospital records. In the Yeppoon Hospital records (Exhibit 3), the following was recorded:
“History of R arm caught in rope in winch, hauled up, then falling 12 ft from mast of boat.”
There is a second matter of history recorded in Exhibit 3 in these terms:
“Working on back deck of trawler, rope caught around R elbow. Fell 10-12 ft on to deck on all 4s.”
31 Then in the report from the Illawarra Hospital, part of Exhibit A, there is a reference to the plaintiff having sustained (inter alia) “minor abrasions right arm” .
32 I am asked to infer that the plaintiff was the source of those matters of history on which the head of contributory negligence is based and further that whoever it was that recorded the various notes did so accurately.
33 Accepting as I do the sworn evidence which the plaintiff gave that she did not wrap the rope around her arm, I do not find that the hospital notes establish the contrary.
34 It is not clear what the source was for any of those matters of history above set out but, having regard to the plaintiff’s evidence in this Court, the defendants have not persuaded me that the plaintiff gave either of the histories abovementioned. Nor do I consider the reference in the Illawarra notes to abrasions to the right arm to establish that the plaintiff had wrapped the rope around her right arm as contended.
35 It is, of course, for the defendants relying upon contributory negligence to prove this defence and it has not been proved on the balance of probabilities that the plaintiff sustained any abrasion as a consequence of handling the lazy line without the exercise of reasonable care.
36 The other aspect of contributory negligence upon which reliance has been placed is that the plaintiff should have let go of the lazy line before she did. The plaintiff’s evidence about this was that she did let go as quickly as she could. There was close cross examination about this (see, for instance, T 45-46). Miss Hibbard, who was very experienced as a deckhand on fishing trawlers with some eleven to twelve years experience, gave evidence the effect of which was that once overriding occurred the deckhand had to rely upon the winch operator and that there was no time for the deckhand to let go. In cross examination at T 84-85 Miss Hibbard gave the following evidence:
“Q. Once the deckhand feels that tightness or reverse action occurring, the appropriate remedy is to let go of the rope, would you agree with that?
A. Stop the winch. It happens very quickly.
Q. What I am suggesting to you is that another way of avoiding having any accident during the course of that operation, is to let go of the rope immediately, would you agree with that?
A. It doesn’t work like that. There is not enough time. It happens so quickly.
Q. When you say it happens so quickly, it takes at least a few seconds, doesn’t it?
A. No, it is quicker than that.
Q. Before it occurs?
A. It is quicker than that.
Q. Would you agree it would be about 2 to 3 seconds at least?
A. I have had it happen to me on another boat, and it was one second you are on the deck, the next second you are up in the air. It happens that quickly.
Q. I am trying to obtain an estimate of the time it would take--
A. There is no time to let go. That was my own experience when it happened to me on another boat.”37 I was generally impressed with Miss Hibbard as a witness and evaluating her evidence and that of the plaintiff on this particular issue the defendants have failed to satisfy me that the plaintiff was negligent in failing to let go of the rope any earlier than she did.
38 The defence of contributory negligence has not been proved against the plaintiff.
The basis upon which damages are to be assessed
39 This accident happened off the coast of Queensland and the parties invited me to approach the matter therefore upon the basis that it occurred in Queensland. How then are damages to be assessed?
40 I am satisfied that the status of the plaintiff on the “Tagula Bay” was that of employee. For reasons I shall state later, I find that the plaintiff was employed at the relevant time by the third defendant. I find that the plaintiff was working under a contract of service rather than a contract for services. Had the accident happened in New South Wales, the provisions of the Workers Compensation Act, 1987 would govern the assessment of damages against her employer.
41 The plaintiff was not, of course, engaged in New South Wales but in Queensland. Neither was she required to work in New South Wales but in Queensland. There is no evidence to suggest that there was in place a policy of insurance insuring the plaintiff’s employer against liability to provide compensation benefits to the plaintiff under the New South Wales Workers’ Compensation Act .
42 Exhibit 1 discloses that in January 1992 the third defendant had its registered office at “The Meadows Convenience Centre, Shop 10, 63 Karawatha Street, Buderim” in the State of Queensland and that its principal place of business was at 24 Poinciana Avenue, Mooloolaba, Queensland.
43 Exhibit K, being the agreement whereunder the third defendant operated the “Tagula Bay”, identified the proper law governing the agreement as the law of Queensland and stated a Queensland address for the third defendant.
44 What links the plaintiff’s accident to New South Wales is simply that the plaintiff returned to New South Wales after her accident, had part of her treatment in this State in Wollongong and therefore suffered part of her damage in New South Wales.
45 There have been a number of decisions in the past decade or so which have addressed the problem that arises in the present case.
46 In Breavington v Godelman (1988-89) 169 CLR 41 the High Court was concerned with a case involving a collision in the Northern Territory at a time when all parties were residents in the Northern Territory. However later the plaintiff moved to Victoria and brought proceedings there. The issue that arose was whether Northern Territory legislation precluded the plaintiff from recovering damages other than for pain and suffering and loss of the amenities of life. The trial judge ordered that a defence in reliance upon provisions of the Northern Territory legislation be struck out because the law to be applied was the lex fori, that is the law of Victoria. On appeal to the Full Court of the Supreme Court of Victoria, the trial judge’s decision was reversed. The plaintiff appealed to the High Court, arguing that the law of Victoria was to be applied and that the law of the place where the tort had happened, the Northern Territory, was irrelevant. The appeal was dismissed.
47 Because the reasons of the justices of the High Court differed in Breavington it is not easy to distil a common principle from the various judgments. Subsequently in Byrnes v Groote Eylandt Mining 10 MVR 297 the decision in Breavington was considered. In his judgment Kirby P reviewed the various judgments in Breavington , observing at 301:
“Because of the differences in the reasoning of the justices it is not easy to derive the holding in Breavington which is binding on this, as on other Australian courts.”
48 Kirby P favoured the approach that Mason CJ had adopted in Byrnes when the Chief Justice rejected the argument that the principles for the assessment of damages should be regarded as procedural law and be governed by the law of the forum. The Chief Justice considered the measure of damages was a question of substantive law and this was the approach which found favour with Kirby P but the President remarked the Chief Justice’s approach was not followed by the other justices of the High Court in Breavington .
49 On the other hand Hope A-JA observed, concerning the decisions of the High Court in Breavington (at 314-315):
“The judgments of the members of the court arrived at this conclusion in varying ways, but all held that the law of the lex loci delicti, that is Northern Territory, and not lex fori, that is the law of Victoria, applied as regards the damages which the plaintiff might recover. An approach adopted by some members of the court was to adopt the principles of private international law previously applied in such a case to the requirements of the federal system such as exists in Australia, in order, inter alia, to prevent forum shopping. For this purpose, even if principles as to damages were part of procedural law as opposed to substantive law for ordinary private international purposes, they were to be regarded as part of the substantive law in the adaptation of those principles to the States and Territories of Australia.”
50 On the above analysis of Hope A-JA, the principles of the assessment of damages were to be regarded as part of the substantive law.
51 However there then followed the decisions of the High Court in McKain v R.W. Miller & Co (SA) Pty Limited (1991) 174 CLR 1 and in Stevens v Head (1992) 176 CLR 433. Since the decisions in these two cases, it seems to be settled that, prima facie at least, the quantification of damages is governed by the law of the forum.
52 In McKain the principles relating to interstate torts were defined by the majority of the court (at 39):
“A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if - 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.”
53 Later in Stevens a plaintiff injured in a motor vehicle accident in New South Wales claimed damages in Queensland and the judge at the trial assessed damages according to Queensland law and did not apply the provisions of s 79 of the Motor Accidents Act which govern the assessment of damages in respect of motor accidents in proceedings in New South Wales. The High Court, by majority, determined that approach was correct and that once, consistently with McKain , an action was maintainable, the quantification of damages was to be determined by the law of the forum.
54 In their joint judgment in Stevens , Brennan, Dawson, Toohey and McHugh JJ said at 456-457:55 Their Honours later went on to say, as to s 79 (at 460):
“In determining whether, by the lex loci, the relevant facts give rise to a civil liability of the kind which the plaintiff seeks to enforce, the courts of the forum distinguish between substantive and procedural laws. Procedure is governed exclusively by the laws of the forum, but the substantive laws of the place of the tort determine whether, by those laws, there exists a civil liability of the kind which the plaintiff seeks to enforce. In McKain, it was held that a South Australian law which imposed a limitation on the time within which to bring an action in the courts of that State for damages for a tort committed within that State but which did not extinguish the cause of action was not a substantive law which precluded the bringing of an action in the courts of New South Wales for damages for a tort committed in South Australia. The majority followed a line of authority ((1991) 174 CLR at 40-43) which distinguished between a statute of limitation which does no more than cut off resort to the courts for the enforcement of a claim and a statute which extinguishes civil liability and destroys a cause of action. The former is classified as a procedural law, the latter as substantive.”
“It follows that s.79 of the Motor Accidents Act is not to be construed as containing substantive provisions for the purposes of the conflict of law rules governing the assessment of damages for extraterritorial but intranational torts. Adopting the distinction between heads of damage and the quantification of damages in respect of heads of damage, s.79 is a law with respect to quantification. Therefore it is not the law which a Queensland court applies in assessing damages for non-economic loss suffered by a plaintiff who was injured in an accident occurring in New South Wales… Double actionability (in the sense explained in McKain) operates satisfactorily, with respect to causes of action; with respect to the quantification of damages, no law other than the lex loci can work effectively.”
56 Following Stevens v Head , at least in the absence of any relevant statutory provision to the contrary, the law of the forum governs the assessment of damages, but the substantive laws of the lex loci have their role in determining whether there is a civil liability in the person sued.
57 The provisions of Pt 5 of the New South Wales Workers’ Compensation Act in their application to the assessment of damages in proceedings in New South Wales are by analogy to the scheme under the Motor Accidents Act to be regarded as procedural. Indeed, the full court of the Federal Court so held in John Pfeiffer Pty Ltd v Rogerson (unreported, 9 July 1998). However, Mr King submitted that even if the law governing the assessment of damages is to be classified as procedural, I should still assess damages without reference to the Workers’ Compensation Act, 1987 as amended. He submitted that I should adopt that approach in any event, by the application of the Jurisdiction of Courts (Cross Vesting) Act, 1987 , and he referred to an interlocutory application earlier made in this court in these proceedings.
58 After the originating process had been served in this cause, at a time when there were nine defendants, application was made by one of those defendants, supported by most of the other defendants, for the transfer of this cause to Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act, 1987. Newman J dismissed the application, and it is plain from a reading of his Honour’s judgment that the judge was influenced in so doing by the fact that most of the plaintiff’s treatment was carried out in New South Wales and that her indigent circumstances would have made it difficult for her to sue in Queensland. In the circumstances no order was made by his Honour other than the order for costs. Had an order for transfer been made, then of course damages would have been assessed without reference to the New South Wales workers’ compensation legislation.
59 Mr King submitted on behalf of the plaintiff that I should approach the matter upon the basis that this Court has jurisdiction under the Jurisdiction of Courts (Cross Vesting) Act and by reason of s 4, in conjunction with s 11(1)(c), I should apply the law of Queensland to the assessment of damages, considering it appropriate in the circumstances to do so.
60 Mr Longhurst, on behalf of the first and third defendants, adopted Mr King’s submissions under the Jurisdiction of Courts (Cross Vesting) Act .
61 Mr Mescher and Mr Stevens in their respective written submissions urged me to take a different approach. They both submitted that the proper application of s 11 of the Jurisdiction of Courts (Cross Vesting) Act attracts the application of Pt 5 of the Workers’ Compensation Act .
62 Section 11(1) of the statute provides:
“Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of the Commonwealth or a State relating to cross-vesting of jurisdiction:
(a) subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or Territory in which the court is sitting (including choice of law rules);
(b) subject to paragraph (c), if that matter is a right of action arising under a written law of another State or Territory, the court shall, in determining that matter, apply the written and unwritten law of that other State or Territory; and
(c) the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory.”
63 It would, in my view, be an odd and unsatisfactory result if damages were required to be assessed in this case by reference to the Workers’ Compensation Act, 1987 (NSW), not only because the accident did not happen in this State but the services of the plaintiff were not engaged here. Moreover, there is no evidence to suggest that the employer/defendant had a policy of insurance complying with the legislation in New South Wales, or that it ever contemplated the need for such a policy. It did not employ workers in this State and it did not carry out its operations in this State. The plaintiff was not employed in New South Wales nor was it in contemplation that she would be required to perform any part of her contract of service in New South Wales. Accordingly, if the statute would otherwise govern the assessment of the plaintiff’s damages, and the discretion under s 11(1)(c) of the cross vesting statute was enlivened, I would regard it as appropriate to order that the rules of procedure (governing the quantification of damages) of the State of Queensland apply to the assessment, so as to avoid the application of the statute.
64 However I do not consider that it is correct to proceed on the basis that s 11(1) of the cross vesting statute has become applicable. Newman J made no order under the cross vesting legislation, and in my opinion this Court is not strictly hearing this case by reason of jurisdiction extended to it under the Jurisdiction of Courts (Cross Vesting) Act at all. The Supreme Court of New South Wales has jurisdiction to hear this case independently of the cross vesting legislation. Much of the plaintiff’s harm attracting an entitlement to damages has been suffered in New South Wales. More fundamentally though, by reason of effective service of the statement of claim upon the defendants, each of the defendants filed appearances and in due course a defence. No challenge was made to the jurisdiction of this Court. The application under the cross vesting legislation did not challenge the jurisdiction of this Court, but sought transfer to Queensland on the basis that the interests of justice called for a transfer on the well settled principles identified in Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711.
65 For these reasons I have concluded I should not, and indeed I cannot, make the order Mr King and Mr Longhurst have asked me to make to apply the procedural laws of Queensland. In my opinion, following Stevens v Head , damages are to be assessed by the application of the appropriate law of New South Wales.
66 It does not follow however that the Workers’ Compensation Act of 1987 necessarily applies. That statute does not govern the assessment of damages in all cases. It only applies, speaking generally, to work related injuries addressed by the statute.
67 To begin with, the Act has no application to cases not involving “injury” as defined in s 4. For relevant purposes, s 4 defines “injury” as meaning “personal injury arising out of or in the course of employment.
68 However, the ambit of the statute to “injury” as defined extends outside New South Wales only in the circumstances contemplated in s 13(1):
“(1) If:
(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
the injury is an injury to which this Act applies, and compensation is payable accordingly.”
69 Because the plaintiff’s employer has not been proved to have had a place of employment in New South Wales at any relevant time, and because it has not been proved to be present in New South Wales and there to have employed the plaintiff, s 13(1) has no proven application in this case.
70 In my opinion it follows that Pt 3 of the Workers’ Compensation Act which provides for compensation benefits has no application and had the plaintiff sought to recover benefits under that provision from her employer, her application would have been doomed to fail.
71 Part 5 makes provision for common law damages in a modified form only in respect of “an injury to a worker” (s 151E(1)(a)). However s 151 expressly preserves common law liability not affected by the Act:72 The definition of “injury” in s 4, which I have set out above, applies to Pt 3 and Pt 5 alike, so that when Pt 5 introduces modified common law damages, it does so “for personal injury arising out of or in the course of employment” , but there is nothing in Pt 5 to indicate that the provisions of that part apply to injuries beyond those contemplated in Pt 3. It follows, in my opinion, that Pt 5 can and does only apply to injury sustained outside New South Wales if:
“This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act -
(a) otherwise expressly provides.”
“(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and
(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,
Subparagraph (a) has not been satisfied here.
73 In this case, since the plaintiff has sued her employer and parties other than her employer, were the statute to apply, it would be necessary to consider whether s 151Z of the statute applies, calling for separate assessment of damages and giving rise to the complexities and anomalies considered by Allen J in Leonard v Smith (1992) 27 NSWLR 5 and by me in Smith v Leighton Contractors & Anor , (unreported, 19 June 1998).
74 However s 151Z, in addressing this possibility of recovery against both the employer and a stranger begins:
“ If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury the following provisions have effect:”
75 The reference to compensation being payable under the Act is a reference to compensation under Pt 3. Compensation was plainly not payable to this plaintiff under Pt 3 because the plaintiff’s injuries were sustained outside New South Wales and did not attract an entitlement to benefits under s 13(1). It seems to me that s 151Z affords a further clear indication, if such were needed, that the provisions of Pt 5 do not attach to “an injury” sustained in circumstances that gave rise to no right to compensation under Pt 3.
76 I refer also to Pt 7 Div 1 of the statute, which deals with insurance. Section 155 renders it compulsory for an employer to obtain and maintain in force a statutory policy. Section 155(1) provides:
“An employer (other than a self insurer) shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act…”
77 The sub-section provides for a penalty for the failure to obtain and maintain such a policy of 200 penalty units or imprisonment for six months or both.
78 It would be an extraordinary result if the legislature intended to render an employer which is not conducting business in this State and which is not employing a worker to carry out duties here, liable to an offence for not maintaining a policy complying with Pt 7. Such a requirement by the legislature would be invalid. In order to attract the provisions of the Act, the legislature would be required to introduce some element so as to sufficiently connect the compensable injury to the State: see the discussion on s 13 in Mills Workers’ Compensation Practice at p 1850.
79 In my opinion the Workers’ Compensation Act does not govern the assessment of damages in this case because I do not find on the evidence that the plaintiff sustained her injuries in circumstances attracting liability in her employer under s 13(1).
80 I conclude that damages are to be assessed by reference to common law principles as applicable in New South Wales.
The plaintiff’s injuries and disabilities
81 The evidence satisfies me that the plaintiff sustained injuries to her left upper limb, to her left knee, to her right foot and to her nose.
82 The plaintiff had been injured before and, indeed, she had fractured her left forearm and injured her neck in a motor vehicle accident in the ‘70s. In 1981 she fell and refractured the left forearm. The injury to that forearm was treated by Dr Conacher successfully, according to the plaintiff, and she was able to return to quite heavy work as a barmaid and later as a deckhand. Miss Hibbard, who worked with the plaintiff on the “Caledon Bay” and the “Tagula Bay”, observed no physical disability and I accept, as Miss Hibbard said, that the work on the fishing trawlers is physically demanding. I accept that the plaintiff was able to work without restrictions by reason of her earlier injuries as at the time of the accident on the “Tagula Bay”.
83 The plaintiff was taken from the “Tagula Bay” to Yeppoon Hospital. X-rays revealed a fracture of the left patella, a fracture of the left radius and a possible impacted fracture of the right heel. The plaintiff was transferred to Rockhampton Base Hospital on the same day and on 12 January 1992 an operation was carried out to reduce the fracture of the patella. The left ankle and calcaneum were immobilised under anaesthetic and stabilised in a back slab. On 16 January 1992 the plaintiff was discharged to return home to Wollongong.
84 On the following day the plaintiff was admitted to hospital in Wollongong under the care of Dr Panjrathan. He found that the patella fragments had separated and revised the wiring of the left patella. He performed an open reduction procedure on the left radius and fixed it internally. The fracture of the right heel was treated conservatively. The plaintiff was discharged on 13 February 1992. After some follow-up visits to Dr Panjrathan the plaintiff was referred to Dr Maloney and Dr Maloney performed a number of operations on the plaintiff:
(i) On 22 April 1992 Dr Maloney performed a partial patellectomy. That procedure proved to be successful in alleviating to a very large extent the plaintiff’s problems in the left knee.(ii) On 5 August 1992 Dr Maloney performed an arthodesis procedure to address the right heel problem and used bone from the right iliac crest. At the same time he realigned the heel cord. Following that procedure the right leg was immobilised in plaster until 15 October 1992.
(iii) On 16 December 1992 Dr Maloney performed a further procedure to reduce discomfort in the right heel. This procedure was in the nature of a closed wedge osteotomy of the os calcis.
(iv) Because of persisting problems in the foot which the doctor felt were coming from the mid foot area, Dr Maloney operated again on 21 April 1993, performing a fusion of the mid tarsal joints.
85 Those procedures were successful in reducing the plaintiff’s problems with the right foot.
86 The plaintiff has been reviewed from time to time by Dr Maloney and I accept Dr Maloney’s assessment in this case. He reported on 23 April 1996 that the plaintiff’s prognosis was as follows:
“One is quite pleased to see the level of function present in the left forearm, wrist and hand considering the mal-union present in the fractured radius. However there still remains a significant cosmetic disability in this region, but fortunately Mrs Goodwin feels she has had enough of surgery over the past few years and is happy enough to accept the present cosmetic disability, as well as the degree of weakness in the left arm.
I believe her left knee situation will ‘hold up’ indefinitely.
Her major problem relates to her right hindfoot, where she suffered gross damage to the os calcis and sub-talar region and it was most difficult to sort out this problem, but in general, the situation has been improved significantly by osteotomy and triple fusion of the hindfoot.
I was quite pleased to see how well she walked in her boots today and I feel that this situation will not alter significantly as the years go by.
She now appears to be weight bearing on a plantar grade foot and there is no evidence of any excess localised weight bearing under the tread. I feel that this right foot and ankle will ‘hold up’ for many years to come.”
87 Other medical reports have been tendered in this case but I do not understand there to be any medical issue and I am satisfied to accept the position is as stated by Dr Maloney.
88 Dr Maloney gave evidence and was not challenged as to his assessment of the plaintiff.
89 So far as the plaintiff is concerned, her evidence is that her condition has not changed over the last few years.
90 The plaintiff said that at the present time she experiences a lot of pain in both lower limbs by the end of the day. The pain is in the left knee and in the right foot and pain is experienced in those areas if she has been on her feet throughout the day. On days when she is at rest she does not experience this pain.
91 The plaintiff said that she is unable to wear high-heel shoes and she is unable to walk barefoot. She said that she wears boots with inner soles. The plaintiff said that she is not as agile as she was and has difficulty moving quickly. She said that her knee gives way on her on occasions. She said she is unable to run and when asked specifically about this, the plaintiff said that her condition has remained much the same since 1995.
92 I accept that the plaintiff has these continuing complaints which I have reviewed, and I am satisfied that these problems are the consequence of the injuries she sustained whilst working on the “Tagula Bay”.
93 The plaintiff has scarring of the right foot, of the left knee and, of course, in the left upper limb. There is also scarring in the hip areas at the sites from which the donor bone was taken for the arthodesis procedures.
94 The plaintiff also makes complaint that since the accident she has experienced pain in the area of the bridge of the nose, radiating out to the cheekbones, and the plaintiff said that she has been experiencing that pain since the accident and she described it in evidence as being “like a half migraine” . The plaintiff for this problem was referred to Dr Loane, an ear, nose and throat surgeon, who reported that “her x-rays showed an old fracture of the nasal pyramid to the left of the midline with minimal displacement.” It was the doctor’s opinion that the plaintiff had post traumatic pain. I am satisfied that the nose problems the plaintiff has experienced resulted from her fall in this accident.
95 The injuries which the plaintiff sustained were undoubtedly severe and, although she has made a reasonably good recovery, the plaintiff has been left with significant ongoing problems, particularly in the left knee and the right foot. I consider it unlikely that the plaintiff will improve any further.
The assessment of damages
96 The plaintiff impressed me as an honest and reliable witness and having watched her closely I consider that the plaintiff did not seek to overstate the effect of this accident upon her. I observed earlier that there does not appear to have been any medical issue in this case and the only doctor who was called was Dr Maloney.
97 This plaintiff sustained what were serious injuries and she was required to undergo a great deal of treatment, submitting to a number of operations which I have reviewed.
98 The plaintiff has been left with disabilities and persisting symptoms that I have identified. The plaintiff will be required to continue to work and being on her feet throughout the day will continue to be productive of symptoms as this activity has been in the past.
99 In all the circumstances, I consider that an allowance for the non economic aspects of general damages of $80,000 is appropriate. I include that sum in my assessment.
100 That assessment attracts interests which I allow at two percent on $40,000. Rounding the calculation off, I allow interest of $6200.
101 A claim is made for the value of services provided by the plaintiff’s daughter. This claim has been quantified at two hours per day for two years at a rate of $15 per hour.
102 The evidence in point was meagre but unchallenged. The plaintiff said that for a period of “a couple of years” the plaintiff’s daughter helped her with housework and during the period that she was in plaster the daughter also helped her to shower. The daughter gave assistance with cooking also. The plaintiff’s estimate was that the services were provided on average by the daughter for two hours per day over the period of two years. That evidence was not challenged. I note that the plaintiff gave a history to Dr Middleton that it was in about January 1994 that she was able to walk without aids. That history accords with the plaintiff’s evidence.
103 The plaintiff’s evidence does suffer from understandable imprecision on this point. There may well have been some tapering off of the need for assistance over that two year period but it seems to me on the balance of probabilities that it is fair to allow the sum of $20,000 for this claim.
104 The plaintiff is entitled to interest on this sum, which I allow in the sum of $8000, rounding my calculation off.
105 Out of pocket expenses have been agreed in this matter in the sum of $27,589.45. That sum I include in my assessment. I do not understand that there is any claim for interest for any part of that amount.
106 So far as the future is concerned, I propose to make some allowance for medical assessment and analgesics. The plaintiff did say that since 1995 she has made forty to fifty visits to a doctor in Queensland where she is now residing. There was no report from this doctor and the estimate of the number of visits is the only feature of the plaintiff’s evidence about which I have some reservations. Nevertheless, the plaintiff will probably have some need for medication in the future and there is the possibility of further surgery to which I shall refer when considering the plaintiff’s claim for future loss of earning capacity. I propose to make a modest allowance for future medical and pharmaceutical expenses. In doing so, I do not ignore the content of Dr Bracken’s report of 1 August 1994 and his assessment therein expressed concerning the costs associated with future surgery should the plaintiff come to this. I allow for future medical and pharmaceutical costs the sum of $4000.
107 The plaintiff makes a claim for loss of earnings and for loss of earning capacity.
108 The plaintiff was born on 21 August 1954, so that she is presently forty-five years of age. The plaintiff left school at the end of form three. After the plaintiff left school she found work in an office in Dubbo but soon turned to manual work, taking up employment at the Mudgee Abattoirs. Her next position was in a butcher’s shop in the Illawarra district. The plaintiff married at a young age in 1971 and has a grown-up daughter. The marriage did not last and the plaintiff was divorced many years ago.
109 Whilst the plaintiff was working in a butcher’s shop she was involved in the motor vehicle accident in which she fractured her arm. When next she returned to employment, the plaintiff took up bar work and said that she had no problem coping with it. The plaintiff worked at the RSL Club at Figtree for eight years until 1988 but in the late ‘80s moved to Queensland looking for work. The plaintiff found work at the Broadbeach Bowling Club, doing bar work.
110 Employment was not plentiful and it was in 1991 that the plaintiff had the opportunity of first working on a fishing trawler, taking up employment as a deckhand and cook on the “Caladon Bay”. Her engagement on that vessel took her to sea for three months. At the conclusion of that work the plaintiff returned to Wollongong and it was when she was pursuing payment for her services on the “Caladon Bay” that she was offered a further opportunity of work at sea, this time on the “Tagula Bay” and on the voyage in which her accident occurred.
111 The plaintiff did not work again until 1995, although the plaintiff said she was looking for work from 1993 onwards. The plaintiff did undertake some retraining in Queensland and she said that over a period of six months she endeavoured to learn new skills but it would seem she was not successful in this retraining and has not learnt to type. She has been unable to learn computer skills.
112 The plaintiff has however returned to work as a cleaner and the hours that the plaintiff has worked since 1995 in this calling have varied depending upon availability of work. Sometimes the plaintiff has worked as often as six days per week but on other occasions work has been available for only three days per week. Hours of employment have been from 8.30 am to 4.30 pm and the nature of the work requires the plaintiff to be on her feet all the time, and the plaintiff said, and I accept, that when she does a full day’s work this causes the complaints in the knee and the right foot which I have reviewed earlier.
113 Dr Maloney considered that the surgical procedures which he undertook necessitated lengthy convalescence and he considered it was reasonable that the plaintiff was unable to work until 1995. I accept that assessment and it seems to me that it is appropriate that the plaintiff should be compensated for an inability to earn from the date of the accident until early 1995. Mr King submitted that I should allow $250 per week for this period and that seems to me to be reasonable. Accordingly, I allow for loss of earnings for the three years immediately following this accident the sum of $39,000.
114 Although the plaintiff has been able to return to work as a cleaner, I accept that full time bar work would be beyond her and I also accept that she would be unable to return to the sort of work she was doing on the “Tagula Bay”.
115 Theoretically, clerical work and sedentary work would be within the plaintiff’s capacity but the plaintiff is not trained for that sort of work.
116 The plaintiff, it seems to me, is limited to doing the sort of work that she is presently undertaking. Although being required to stand during a working day causes pain, worse by the end of the day, I accept that the plaintiff is capable of working full time as a cleaner.
117 It seems to me that the plaintiff is to be regarded as at a disadvantage on the open labour market by reason of her disabilities, and that she is incapable now of doing bar work. The plaintiff would no longer be capable of trawler work, but the evidence in this case does not satisfy me that trawler work is well paid, or that the plaintiff would have wanted to pursue such work even if she had not been injured.
118 I am satisfied that, had she not been injured, the plaintiff would have continued to work on a regular full time basis provided work became available but her pre-injury working history was not uninterrupted. There were times that the plaintiff was unable to find work and, even if the plaintiff had not been injured in January 1992, it is nevertheless likely that there would have been interruptions to her employment.
119 Exhibit N is a schedule which sets out in summary the plaintiff’s annual earnings commencing with the year ended 30 June 1983. What the schedule shows since the plaintiff returned to work in 1995 is that the plaintiff has been able to build up her earnings over that period of three years and Mr King has not sought to claim any actual loss of earnings since the plaintiff resumed working in 1995. What I allow for the past then is the sum of $39,000 I have earlier recorded.
120 The plaintiff is entitled to interest on that sum, less the value of benefits received in the period of three years to which the sum relates. Hence I allow interest in the sum of $11,750, rounding my calculation off.
121 At the present time and in the foreseeable future, the plaintiff appears to be capable of doing full time work as a cleaner and there is no ongoing economic loss. Mr King does not submit otherwise but has submitted that the plaintiff should be allowed compensation in the nature of a “buffer” allowance for the future.
122 Two reports have been tendered from Dr Bracken who assessed the plaintiff in August 1994 and again in April 1996. It was Dr Bracken’s assessment in August 1994 that the plaintiff was going to experience osteoarthritic changes in the joint behind the left kneecap and that she would need a formal patellectomy by the time she reached the age of fifty. Dr Bracken considered that there was no reason to change his opinion having seen the plaintiff again in 1996. Nevertheless, accepting as I do the opinions expressed by Dr Maloney who treated this plaintiff, I do not consider it likely that the plaintiff will require further operation on the knee either at the age of fifty or later. Dr Maloney last saw the plaintiff on 23 April 1996, about the same time as Dr Bracken saw the plaintiff for the second time. The plaintiff says that her condition has remained about the same over the course of the last three years.
123 Whilst I do not regard it as probable that the plaintiff will require further surgery, there is a chance, the prospects of which I must assess consistently with the decision in Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638.
124 Should the plaintiff require further surgery, or should her knee deteriorate so as to further restrict her in the sort of work she could do, that would impact upon her loss of earning capacity.
125 I take this factor into account and also the difficulties which I have identified already that the plaintiff would have when required to seek work on the labour market. The plaintiff is not as well placed as she would be were she uninjured. With these considerations in mind, I propose to allow for loss of earning capacity for the future the sum of $25,000. In doing so, I am mindful of the fact that the plaintiff’s economic circumstances are such that she would be likely to want to work to the age of sixty-five years.
126 I summarise my assessment then as follows:
General damages (non economic aspects) $80,000Interest 6,200
Allowance for provision of necessary services 20,000
Interest 8,000
Out of pocket expenses 27,589.45
Provision for future medical and pharmaceutical expenses 4,000.00
Past economic loss 39,000.00
Interest 11,750.00
Allowance for future loss of earning capacity 25,000.00
$221,539.45
The employment of the plaintiff
127 Earlier, in tracing the plaintiff’s working history, I referred to the plaintiff’s engagement on the “Caladon Bay” and subsequently on the “Tagula Bay”. The plaintiff was offered the position on the “Caladon Bay” through a friend, and she joined that vessel at Darwin. The plaintiff worked on it for three months. The plaintiff was paid by way of a percentage of the catch and in the statements accompanying the payments received, the payments were expressed as coming from “B.A. La Macchia” (the first defendant).
128 After her work on the “Caladon Bay”, the plaintiff returned to Wollongong where, in the belief she was owed more than she had been paid for that work, she rang Mrs Keogh (then Miss Buckley) in Cairns. Mrs Keogh gave evidence that she was acting at that time as the agent for shipping vessels. As such, Mrs Keogh would perform a number of tasks, including finding crew for vessels and selling the catch. When the plaintiff sought to be paid in full for her work on the “Caladon Bay”, Mrs Keogh offered the plaintiff work on the “Tagula Bay” and the plaintiff accepted the position, which was as cook and deckhand. Mrs Keogh arranged the plaintiff’s airfare and picked her up at Cairns.
129 Upon arrival in Cairns the plaintiff was introduced to the fourth defendant and I am satisfied the plaintiff joined the “Tagula Bay” in the company of the fourth defendant. However, I do not find him to be her employer.
130 There are no wage records nor payment records to identify the plaintiff’s employer, because in fact the plaintiff was paid nothing for her work on the “Tagula Bay”, and it is necessary to consider the evidence of Mrs Keogh and certain exhibits to determine the plaintiff’s status on the “Tagula Bay”.
131 Mrs Keogh, whose evidence I accept, said that she was appointed as agent for the “Tagula Bay” at a time when that vessel was under receivership and her appointment came from the receiver, William Easdown (the second defendant). Mrs Keogh understood that the second defendant was the agent appointed by the Commonwealth Bank, but it was her understanding that she had to obtain authority from the second defendant for whatever money she spent on the “Tagula Bay”. In due course the arrangement was relaxed somewhat and she was able to spend up to $2000 without prior approval. Mrs Keogh said that her agency sold the catch from the “Tagula Bay” but had to account for it to the second defendant and would invoice the second defendant for the agency’s commission of twenty-five cents in the kilo.
132 Mr King submitted that I should find that the second defendant was the employer of both the plaintiff and the fourth defendant because their remuneration was controlled by the second defendant as the receiver. No monies became available on the evidence of Mrs Keogh until distributed by the second defendant, so both the fourth defendant and the plaintiff were dependent upon the receiver to be paid. According to Mrs Keogh, subject to the authority to spend up to $2000 on a cheque account, the receiver’s authority was required for all expenditure and the receiver had to be consulted before crew members were engaged. Mrs Keogh had to make a regular report to the receiver. So it is, Mr King submitted, that I should find that the critical criterion of control over both the plaintiff and the fourth defendant pointed to the second defendant as their employer.
133 I do not consider this to be the case. In considering this submission I have had regard to the evidence given by Mr Beazley, an accountant with Price Waterhouse, who worked with the second defendant and who had an active role in the discharge of the receiver’s duties concerning the “Tagula Bay”. Mr Beazley said that the receiver made available to the third defendant the funds from which the crew was to be paid. Their remuneration was, he confirmed, a percentage of the catch and what Texole was paid by the second defendant was twenty-five percent of the catch. Mr Beazley said that he had no knowledge of fishing and sought guidance, mainly from Mrs Keogh. He said that the second defendant had no interest whatever in the crew because they were not employees of the receiver. He was not aware of the split up of commissions to go to the crew and a decision in that regard was for the third defendant.
134 Mrs Keogh was aware that Texole Pty Limited, the third defendant, had been appointed by the receiver to operate the vessel.
135 Mrs Keogh said it was common practice in her experience that crew on shipping vessels were paid a share of the catch.
136 I now turn to consider a number of exhibits:
(i) Exhibit H is a deed of mortgage between the first defendant and the Commonwealth Bank, which deed was expressed to secure advances. The security was identified as “64 shares in the ship known as Tagula Bay…” . The deed provided in part:
“2. At any time after the moneys hereby secured become payable or after this mortgage shall have become enforceable the Bank or an authorised officer of the Bank may appoint in writing any person to be a receiver of the mortgaged premises or any part thereof and may remove any such receiver and in case of the removal retirement or death of any such receiver may appoint another in his place and may fix the remuneration of any such receiver at such amount or at such rate as the Bank shall think fit PROVIDED ALWAYS that every such receiver shall be the agent of the Mortgagor and the Mortgagor alone shall be responsible for his acts and defaults and such receiver so appointed shall without any consent on the part of the Mortgagor have power:-
(a) to enter upon and take possession and/or to enter into receipt of the rents and profits of all or any of the mortgaged premises and to employ the same in any trade and to manage the same and to rebuild alter and add and to do all such things as the Bank may deem necessary to manage and efficiently carry on the mortgaged premises or to obtain income therefrom and for any of such purposes to employ managers workmen and others and otherwise to act in all respects as the Bank in its absolute discretion may think fit…”
(iii) Exhibit K is an agreement entered into by the second defendant (identified in the agreement as the “Operator”) and the third defendant (identified in the agreement as the “Skipper”). This agreement recited that the second defendant had been appointed as the receiver and manager of the “Tagula Bay” and that it had agreed to employ the third defendant to fish the vehicle on the terms set out in the agreement. One provision of the agreement was that the third defendant would
(ii) Exhibit J evidences that on 7 January 1991 the bank exercised its power under the deed of mortgage to appoint a receiver and the second defendant was appointed as the receiver.
“engage as contractors or share fishermen all necessary fishermen for the efficient and lawful operation at all times of the vessel and to attend to payment of such fishermen from the skipper’s share of the proceeds of the catch”: cl 3(b)
137 Mr Longhurst, who appeared for the first and third defendants, called no evidence concerning the role of either defendant and evidence introduced by Mr Longhurst was documentary only.
138 Whilst the evidence in point is meagre, I am persuaded on the balance of probabilities that the plaintiff was employed by the third defendant. Although the plaintiff was to be paid by receipt of a share of the catch, the meagre evidence does satisfy me that her status was that of an employee rather than that of an independent contractor. To the extent that there was scope for it, there was control, not only of the duties the plaintiff was to perform but of the way in which she performed those duties, and that control was exercised through the fourth defendant as the skipper of the vessel.
139 The fourth defendant was no more fortunate than the plaintiff in being paid for his work on the “Tagula Bay”. He received nothing but I am satisfied that his services were engaged as the skipper of the “Tagula Bay” by Miss Buckley and that like the plaintiff he was employed as skipper by the third defendant.
140 Evidence was introduced in documentary form from Mr Downing, an accountant practising in Nambour in Queensland (Exhibit 7). Mr Downing is the fourth defendant’s stepfather and acted as the fourth defendant’s accountant for a period of approximately fifteen years during which time he prepared the fourth defendant’s taxation returns. Mr Downing stated in Exhibit 7:141 The above evidence of Mr Downing was unchallenged and I am influenced by it in finding that both the plaintiff and the fourth defendant were at all relevant times employed by the third defendant.
4. “I can say that all of the income which was included in the income tax returns of the Fourth Defendant in the financial years ended 1981 to 1996 was earned as an employee and that none of the income was earned as an independent contractor. I can say this because all of the income included in those tax returns had corresponding group certificates issued to the Fourth Defendant by each of his employers.
5. I have acted for many fisherman [sic] and, in particular, a number of skippers of fishing vessels in Queensland over my years of practice. In my experience it is usual for fishermen and skippers of fishing vessels in Queensland to be engaged as employees and to be paid wages with PAYE tax deducted. Those wages are often calculated based on a percentage of the catch or of the net catch. It is not, in my experience, common for fisherman [sic] and skippers of fishing vessels in Queensland to be engaged as independent contractors.”
The liability of the defendants to the plaintiff
142 I find that in operating the winch on the occasion on which the plaintiff was injured, the fourth defendant was acting in the course of his employment with the third defendant and I am satisfied on the balance of probabilities that the third defendant is vicariously liable for the negligence of the fourth defendant such as I have earlier described.
143 Mr Stevens submitted that even if I were to find, as I have indeed found, that the fourth defendant was negligent, the plaintiff should nevertheless fail against him. Put shortly, Mr Stevens’ submission is that under s 11 of the Jurisdiction of Courts (Cross Vesting) Act I should apply the law of New South Wales and part of the law of New South Wales is the New South Wales statute known as the Employees Liability Act , 1991. Mr Stevens submitted that under that Act once the employer of the fourth defendant was identified the fourth defendant was not liable in damages. Alternatively, Mr Stevens submitted that the fourth defendant was entitled to be indemnified by the third defendant in respect of any liability to the plaintiff.
144 The Employees Liability Act 1991 repealed the Employee’s Liability (Indemnification of Employer) Act 1982, and was given retrospective effect by s 9:145 The statute affords protection for a negligent employee, by extending to him a right of indemnity against his employer. Section 3 provides:
“This Act applies whether the cause of action concerned arose before, or arises after, the commencement of this section.”
“(1) If an employee commits a tort for which his or her employer is also liable:
(a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer; and
(b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability).
(2) Contribution under this section includes contribution as joint tortfeasor or otherwise.”
146 It is to be observed that, where applicable, the section does not provide a negligent employee with a defence to a claim brought by a person injured as a result of his negligence. What the section does is to provide a negligent employee with a defence to a claim for indemnity that might otherwise have been made by his employer, and further it provides that employee with a right of indemnity against his employer in respect of liability to the person injured because of the employee’s negligence.
147 Assuming for the moment its application in this case, the submission that the statute defeats the plaintiff’s claim against the fourth defendant must be rejected. The statute does not shield a negligent employee against a liability for his negligence should a person injured by reason thereof choose to sue him.
148 It follows from the findings I have made that the plaintiff is entitled to a verdict and to judgment against both the third defendant and the fourth defendant.
149 No negligence has been established in the plaintiff’s case against either the first defendant or the second defendant. On the findings I have made the only negligence that the plaintiff has proved is the casual act of negligence by the fourth defendant, and neither the first defendant nor the second defendant is vicariously liable for such negligence. In the result, the plaintiff fails against these defendants and both the first defendant and the second defendant are entitled to judgment in their favour on the plaintiff’s claims.
The various cross claims
150 There have been a number of cross claims filed between the parties to this cause. The third defendant has pursued a claim against the second defendant based upon a breach of an alleged contractual obligation to insure. The second defendant has filed a cross claim against the third defendant. When the hearing concluded in Wollongong on 6 August last Mr Mescher made an application to defer the completion of the hearing in respect of the cross claims between the second and third defendants, indicating that he may wish to reopen to introduce evidence against the third defendant bearing upon the cross claims between these two parties. That application was acceded to and the matter was adjourned to 23 August. On that date a further adjournment application was made in respect of those cross claims and the matter came back before this Court on 16 September. The Court was then informed that further short evidence in documentary form would be sought to be introduced on these cross claims and the matter has been listed for hearing in respect of those cross claims only on 11 October 1999.
151 The outcome of those cross claims cannot however affect the outcome of the proceedings between the plaintiff and the defendants nor the proceedings on the remaining cross claims.
152 The second defendant has filed a cross claim against the fourth defendant claiming relief pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. In that cross claim, the second defendant seeks indemnity or contribution in respect of any liability found to exist towards the plaintiff. Since the plaintiff has failed against the second defendant it follows that this cross claim must fail and that the fourth defendant is entitled to judgment on this cross claim.
153 The remaining cross claim is a claim brought by the fourth defendant against the first defendant, the second defendant and the third defendant. The claim against each of these defendants by way of cross claim is one for indemnity or contribution towards any verdict recovered against the fourth defendant by the plaintiff.
154 The fourth defendant bases his cross claim against each of the cross defendants identified in negligence, identifying the negligence as follows:
“(a) failure to provide any, or any adequate, proper professional and/or effective equipment for the operation of scallop trawling nets on the vessel ‘Tagula Bay’;
(b) failure to ensure that the plaintiff was a fully and properly trained deckhand with experience in scallop fishing and the operation of net lines from the vessel used in the said operation;
(c) failure to erect any or any adequate signs on the said vessel warning the plaintiff of the possibility of the recoil of the said rope;
(d) failure to warn or properly warn the plaintiff of the dangers involved in scallop trawling in the circumstances.”155 The fourth defendant has failed to prove any of the above assertions of negligence against any of the cross defendants. Particular (a) relates to the failure to equip the trawler with a free riding bar to minimise the risk of back-feeding of the lazy line and the failure to install an A frame on the vessel for use in conjunction with the operation of the winches. As I have earlier indicated, I am not satisfied that the failure to afford either one of these devices was negligent.
156 As to the remaining particulars of negligence in this cross claim, I am not satisfied that any of these heads of negligence have been proved. Even assuming that they had been, I would not be satisfied that any one of them was causative of the accident, which I have found to be due simply to the casual act of negligence of the fourth defendant.
157 It follows that the first defendant and the second defendant are each entitled to judgment on the fourth defendant’s cross claim against them.
158 So far as the cross claim against the third defendant is concerned, in his written submissions to which I earlier made reference in para 143, Mr Stevens submitted that the fourth defendant had a statutory right of indemnity against the third defendant, but that has not been pleaded, and Mr Longhurst has not addressed any submission to the cross claim as asserted on that basis.
159 In the circumstances I will defer my decision on the fourth defendant’s cross claim against the third defendant so as to afford to the fourth defendant an opportunity to apply to amend his cross claim against the third defendant should he decide to do so, and to hear any submissions Mr Longhurst may care to make as to why an amendment should not be granted. If the pleading is amended, then the fourth defendant and the third defendant must be given the opportunity of making submissions as to whether or not any statutory right of indemnity is available to the fourth defendant when the subject accident occurred in Queensland.
160 Since the cross claims as between the second and the third defendants and the fourth defendant and the third defendant, the hearing of which are yet to be finalised, can have no bearing on the outcome of the plaintiff’s claim against the defendants and the remaining cross claims I have identified, I propose to give judgment on the claims and cross claims that have been determined without further delay.161 (1) On the plaintiff’s claim against the first defendant, verdict and judgment
Judgments and orders
for the first defendant.
(2) On the plaintiff’s claim against the second defendant, verdict and judgment for the second defendant.
(3) On the plaintiff’s claim against the third and fourth defendants, verdict and judgment for the plaintiff against each of these defendants in the sum of $221,539.45.
(4) On the second defendant’s cross claim against the fourth defendant, judgment for the fourth defendant.
(5) On the fourth defendant’s cross claims against the first and second defendants, judgments for each of those cross defendants.
(6) On the cross claims as between the second and third defendants, I make no further order pending the further hearing in respect of those cross claims on 11 October 1999.
(7) On the cross claim by the fourth defendant against the third defendant, I direct that that cross claim be listed for mention on 30 September 1999.
(8) I reserve all questions of costs on the various claims made by the plaintiff and on the various cross claims so as to afford to the parties the opportunity of making submissions as to those costs after consideration of my judgment now published.**********
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