Heesom v ASP Ship Management Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Heesom v ASP Ship Management Pty Ltd [2020] NSWDC 653

Hearing dates:

21, 22, 23 October 2020

Date of orders:

2 November 2020

Decision date:

02 November 2020

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant for $2,152,091.

(2)   Order the defendant to pay the plaintiff’s costs.

(3)   Grant leave to the parties to approach my Associate within 7 days to re-list the matter if any different costs order is sought.

Catchwords:

NEGLIGENCE — worker fell down a stairway on a ship — stairway obstructed by stored hoses — whether the risk of a crew member tripping on the hoses was foreseeable — whether a reasonable person would have barricaded the port midships stairway when hoses were blocking the stairway — whether a reasonable person would have directed crew not to use stairway when hoses blocked entrance — whether or not a reasonable person would have found an alternative hose storage location

CONTRIBUTORY NEGLIGENCE — comparison of 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 — alternative walkway and stairway available — need for care in negotiating an obvious hazard

QUANTUM OF DAMAGES — future economic loss – whether there was a prospect of worker getting back to work

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B(1)(f)

District Court Act 1973 (NSW), s 44(1)(d1)

Workers Compensation Act 1987 (NSW), ss 151, 151E, 151F, 151G, 151H, 151I,

151 IA, 151G, 151L

Cases Cited:

Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867

March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

Category:

Principal judgment

Parties:

Terry Owen Heesom (Plaintiff)
ASP Ship Management Pty Ltd (Defendant)

Representation:

Counsel:
B McManamey (Plaintiff)
D Kelly (Defendant)

Solicitors:
Turner Freeman (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2020/88914

Judgment

Introduction

1. On 18 September 2013 the plaintiff was employed by the defendant as the second engineer on board the “Whitnavigator”, a fuel tanker which operated in Sydney Harbour and Botany Bay. The plaintiff fell down a stairway and suffered significant injuries to his back, neck and right shoulder.

2. By a Statement of Claim filed on 20 March 2020 the plaintiff seeks damages for injuries which he alleged were sustained as a result of the negligence of the defendant employer.

3. The Civil Liability Act 2002 (NSW) does not apply to this claim: s 3B(1)(f). There is no monetary limit on the damages which may be awarded by this court on a claim of this nature – s 44(1)(d1) District Court Act 1973 (NSW).

4. The claim is governed by Part 5 of the Workers Compensation Act 1987 (NSW) (the…