Healey v Farrell

SUPREME COURT OF QUEENSLAND

CITATION:	Healey v Farrell [2007] QSC 252
PARTIES:	MATTHEW IAN HEALEY (Plaintiff) v PETER DAMIEN FARRELL (First Defendant) QUINTESSENTIAL DIVING PTY LTD (ACN 054 172 628) (Second Defendant) SILVER SALE CRUISES PTY LTD (ACN 053 526 284) (Third Defendant)
FILE NO/S:	131 of 1998
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	13 April 2007
DELIVERED AT:	Cairns
HEARING DATE:	26 February 2007
JUDGE:	Jones J
ORDER:	1.  Judgment for the plaintiff against each of the defendants the sum of $216,420.74. 2. As between the defendants, each defendant is equally responsible for the plaintiff’s damages. 3. I adjourn the consideration of the question of costs, allowing the parties seven days within which to make written submissions.
CATCHWORDS:
COUNSEL:	Mr C Ryall for the plaintiff Mr K McCreanor for the first and second defendants No appearance for the third defendant
SOLICITORS:	Gayler Cleland Solicitors for the plaintiff Mellick Smith & Associates for the first and second defendants No appearance for the third defendant

1. The plaintiff was injured on 16 July 1997 whilst working on the dive vessel “Falla” at Cairns in the State of Queensland.  By this action he seeks damages for personal injuries from the first defendant, Peter Damien Farrell, the second defendant Quintessential Diving Pty Ltd of which Peter Farrell was a Director, and the third defendant Silversail Cruises Pty Ltd which was the registered owner of the vessel.

1. The second defendant carried on the business of providing instructional courses for persons interested in gaining underwater diving qualifications and of providing diving excursions for persons generally.  To this end the second defendant entered into an arrangement with the third defendant, Silversail, as owner of the “Falla” to use the vessel to convey its customers to dive locations and to be used as the support facility for the diving operations, e.g. the storage of equipment and the provision of lunches, etc. 

1. The precise terms of this relationship between the second and third defendants is not known.  If it was ever evidenced in writing, the writing is now said by Mr Farrell to have been lost.[1]  It seems however that the third defendant provided only the boat and the skipper who was in charge of the boat’s operation.  The usual skipper, who was identified only by the name “Peter”, was an employee of the third defendant.  On some occasions the first defendant skippered the boat.  On those occasions he was paid by the third defendant.  The second defendant provided all other staff necessary, both for the dive operations and for the running of the boat.  These included employed dive instructors and trainees who were neither employed nor paid.  The commercial relationship between the two corporate entities is not satisfactorily explained by the evidence.  Whilst in broad terms the second defendant was responsible for the diving and the third defendant responsible for the boat operation, there is some uncertainty about which entity was responsible for the training and directing of persons in the plaintiff’s position.