Lorbergs v State Transit Authority of New South Wales

[1999] NSWCA 59

CITATION:	Lorbergs v State Transit Authority of New South Wales [1999] NSWCA 59 revised - 31/03/99
FILE NUMBER(S):	CA 40861/97
HEARING DATE(S):	18/03/99
JUDGMENT DATE:	18 March 1999
PARTIES :	Ervins Lorbergs State Transit Authority of New South Wales
JUDGMENT OF:	Priestley JA; Beazley JA; Fitzgerald JA

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	4938/93
LOWER COURT JUDICIAL OFFICER:	Cooper DCJ

COUNSEL:	J Van Aalst (Appellant) K Rewell/M Cleary (Respondent)
SOLICITORS:	John Bettens & Co (Appellant) Ebsworth & Ebsworth (Respondent)
CATCHWORDS:
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40861/97
DC 4938/93

PRIESTLEY JA
BEAZLEY JA
FITZGERALD JA

Thursday, 18 March 1999

Ervins LORBERGS v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1 BEAZLEY JA: The appellant was injured when he became jammed between his boat the Project and either the midship rope or a part of the Watson’s Bay wharf when the appellant was in the process of berthing the Project at the western end of the wharf.
2 The respondent’s ferry, the Alexander, was being berthed on the southern side of the wharf at about the same time. The Alexander arrived at the wharf and commenced to berth after the Project.
3 The Project was unexpectedly subject to a movement away from the wharf, causing the appellant to become squashed or jammed as I have already stated. The trial judge found this movement was caused by some movement of the water in a westerly direction.
4 It was the appellant’s case at trial that the wash or race caused by the Alexander’s propellers and directed by the Alexander’s rudder towards the Project and that the Master of the Alexander had deliberately increased the power of the Alexander’s engines and directed the flow of water towards the Project.
5 On the appeal the appellant submitted that it was not necessary to prove that the actions of the Master were deliberate, but that once it was accepted that the source of the water was from the Alexander, the appellant was entitled to succeed. I do not agree with that submission put in those bald terms. It would still be necessary for the appellant to prove that any wash from the Alexander was caused by negligence on the part of the Master of the Alexander. However, it is not necessary to deal with that point, as I am of the view the appeal must fail for the following reasons.
6 The trial judge accepted the evidence of two of the respondent’s witnesses that, because of the presence of the Project at the wharf, the Alexander was required to come into the wharf at an angle and, that when berthed, the Alexander’s stern was about two metres behind the stern of the Project. There was evidence that it was not possible, in those circumstances, that any wash from the Alexander could have caused the movement of the Project which resulted in the appellant’s injury. His Honour’s acceptance of this led him to conclude that the appellant had not made out his case.
7 In coming to this conclusion, his Honour relied on three main bodies of evidence. This included the evidence of two of the respondent’s witnesses referred to above, as well as a plan of the wharf from which he ascertained the measurements of the wharf relevant to the position of the two vessels and two photographs - exhibits E and H. Exhibit H was a photograph of a ferry identical to the Alexander berthed at Watson’s Bay wharf. His Honour used that photograph to understand the level of the sponson of the ferry at low tide, as it was at the time of the accident. He used exhibit E to understand the level of the water upon the steps at low tide.
8 Counsel for the appellant submitted that the use of exhibit E led his Honour into error, because it was a photograph of the western steps, not the southern steps at which the Alexander had berthed. He submitted that this made a critical difference to his Honour’s understanding of the evidence and demonstrated that his Honour was in error in finding that the stern of the Alexander was two metres further out than the stern of the Project. This was because the western steps depicted in exhibit E were about two metres shorter in length than the southern steps at which the Alexander was berthed. When that was accepted, according to this argument, it meant that the stern of the Alexander could not have been two metres further out as his Honour found. It followed, on this submission, that is was possible for wash from the Alexander to be directed towards the Project so as to cause it to move as it did and cause injury to the appellant.
9 I do not think, however, that this is a correct reading of his Honour’s judgment. In my opinion, his Honour’s reference to exhibit E was to illustrate in his judgment the height of the water on the steps at low tide. That would have been the same height as on the southern steps. It was just that there was no clear photograph of those steps at low tide.
10 Complaint was also made that the trial judge used the measurements from the plan, assisted by the photographs to make his findings of fact which resulted in the verdict for the respondent. It was also submitted that there were other measurements which were relevant to an understanding of the way the accident happened. As to the latter point, there was no other evidence available to his Honour. As to the former, it is clear that his Honour found that the plan and the photographs assisted him to decide what evidence should be accepted. As it turned out, that evidence supported the evidence of the respondent’s witnesses. In my opinion, there was no error in the manner in which his Honour approached his fact finding task.
11 It must be remembered that the appellant conducted his case at trial on a particular basis - namely that the Master of the Alexander had intentionally revved up the engines and had positioned the rudders so as to direct the wash from the propellers towards the Project. The Master of the Alexander admitted that to have done so would be bad seamanship. It was because the trial had been conducted in this way that the trial judge defined the essential issue for determination as being whether the Master had so deliberately acted. Once his Honour found that the Alexander was berthed in such a way that it was not possible for the wash to be directed towards the Project it followed that the appellant’s case had to fail.
12 I am of the opinion that no appealable error has been demonstrated and the appeal should be dismissed with costs.
13 PRIESTLEY JA: I agree with what has been said by Beazley JA.
14 FITZGERALD JA: I agree.
15 PRIESTLEY JA: The order of the Court is that the appeal is dismissed with costs.