McLean's Roylen Cruises Pty Ltd v McEwan

[1984] HCA 43

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ.

McLEAN'S ROYLEN CRUISES PTY. LTD. v. DONALD VICTOR McEWAN

31 July 1984

Decisions

GIBBS C.J. On 21 February 1979, the respondent, who was employed by the appellant as a deckhand on a barge, was injured when his arm was crushed between the barge and a jetty on Hayman Island. He instituted an action in the Supreme Court of Queensland against the appellant, alleging that his injuries were caused by the negligence of the appellant, its servants and agents. The action was tried by Connolly J., who found no breach of duty on the part of the appellant. An appeal was taken to the Full Court of the Supreme Court, which, by a majority, held that the appellant had been negligent, and that the respondent had not been guilty of contributory negligence. From that decision the appellant has appealed to this Court.

2. On the morning of 21 February 1979, the barge was approaching the eastern side of the jetty where it was intended that she should be tied up and unloaded. The wind was blowing quite strongly from the south-south-east, at a rate of 20-25 knots, and there was a swell of a couple of feet, causing the barge to roll. The barge approached the jetty on an angle, and the wind of course increased the speed of her approach. When the barge was about two metres from the jetty, and the master was in the course of straightening her to a line parallel to the jetty, the respondent was standing with a line in his left hand and a boat hook in his right, preparing to cast the line around a pile of the jetty. The rail at the top of the bulwark on the port side of the barge was then some 2-3 feet below the decking of the jetty, but that distance varied as the vessel rose and fell with the swell.

3. The line was secured to a cleat set in the bulwark on the port side of the barge. The respondent was standing on some bollards fixed to the deck below the cleat. He threw the coiled line at a pile underneath the jetty and caught it with the boat hook as it came around. He said in evidence that it was necessary for his arm to overhang the rail in order to catch the line and that he pulled in his arm as soon as he caught the line with the boat hook, but that the swell lifted the barge and trapped his arm underneath the jetty. The learned trial judge considered that the respondent's explanation that his arm was caught as the swell lifted the vessel was implausible; the probability is that it was caught when the barge moved in towards the jetty.

4. At the trial various heads of negligence were alleged against the appellant, but in argument before us it was submitted on behalf of the respondent that the appellant was negligent in three respects only, namely:

(1) in failing to provide, on the barge, a point (such as a cleat or a bollard) to which the line might be secured aft of the existing cleat (for example, at the point where a bollard was subsequently installed);

(2) in failing to warn the respondent that he should not put his right arm over the railing when he was attempting to catch the line with the boat hook; or, alternatively, in failing to instruct the respondent that unless he could secure the line while the barge was at a level lower than the point of attachment to the pile he should not attempt to tie up the vessel; and

(3) in failing to instruct the respondent to attach the line to a pile above the deck of the jetty and in failing to ensure that the barge, as it approached the jetty, was in such a position that the cleat was near to such a pile.

5. The cleat to which the line was secured was attached to the inward side of the port bulwark forward of the middle of the barge, at about the point where the bow of the barge commenced to curve inwards. Along part of the side of the barge was a rubbing strake, which was intended to protect the sides of the vessel and which ended about the area in which the cleat was placed. Some time after the accident another bollard was installed about five feet or so aft of the existing bollards and cleat. The installation of the new bollard was not effected in consequence of the accident suffered by the respondent. It was intended to be used for the attachment of permanent lines when the vessel was in harbour during weekends, particularly in bad weather, when it might be desirable to use two bollards instead of one. It was installed after another vessel, not owned by the appellant, had sunk when a bollard was torn out of its deck. However, when Mr McDonald, a consulting engineer who gave evidence for the respondent, observed the new bollard, which he thought had been in position at the time of the accident, he formed the opinion that a person standing near the new bollard would be less likely to have his arm caught between the top rail of the deck and the jetty than a person standing near the cleat. This is because the side of the barge slopes inwards as it comes up from the rubbing strake at a greater angle at the new bollard than at the cleat, so that the horizontal distance from the outside edge of the top rail to a vertical line dropped down to the rubbing strake was 290mm at the bollard, but only 65mm at the cleat. Mr McDonald accordingly concluded that an angular change of 15 would be necessary to bring the topmost part of the bulwark in the area of the bollard into contact with another surface, whereas in the area of the cleat a change of 2.5 would be enough. In his opinion, the risk would be virtually eliminated if the person tying up the barge was standing near the new bollard. There was some evidence that it would have been practicable for a person standing in that position to tie up the vessel. The respondent himself said that the new bollard would be a much more secure and effective place to moor the vessel than the cleat and the master of the barge, Mr MacLean, said that the bollard could be, and sometimes was, used for berthing to unload cargo, although he was not asked to elaborate on the matter.

6. Mr McDonald had no special experience in the design and construction of sea-going vessels. On behalf of the appellant evidence was given by Mr Richards, a naval architect. He said that the barge was of a standard design, with some original bollards at the round of the bow and others near the stern. The cleat was necessarily placed in the same area as the forward bollards; it could be used as an alternative to the bollards, to secure a lighter line. In Mr Richards' opinion the new bollard was not situated in a convenient place from which to tie up the vessel. He said that it was necessary to have the bollards, to which the tie line could be fixed, near to the bow, since the vessel would usually be brought in nose first, and the bollards should be near to the part of the vessel which first touches the wharf. In addition, the further aft the bollards were placed the less effective the tie lines were likely to be in controlling the movement of the vessel. When asked why it would make a difference if a bollard was five feet further back from the existing cleat, he said that the rounded beam ends more or less at the situation of the original bollards, and when asked why that made a difference replied:

"Because you have got a straight side and you have got the turn of the deck forward. If the bollard is on the flat you are a long way from the wharf. Either that or the vessel has somehow miraculously landed dead square up against the wall (sic, scil. wharf). The vessel would be nosed in, secured and backed off."

7. The evidence of Mr Richards appears to be inherently convincing and obviously the learned trial judge accepted it, for he found that the bollards above which the cleat was attached were where they would normally be placed in a vessel of that type. He added that it would be mischievous in the extreme for the courts to insist on inefficient design in order to safeguard deckhands against the known consequences of unseamanlike conduct. As I understand the judgment of the majority of the Full Court, their Honours also took the view that there was no negligence on the part of the appellant in failing to install a bollard or cleat amidships.

8. The duty of the appellant, as the employer of the respondent, was to take reasonable care to avoid exposing his employee to unnecessary risk of injury. In a case such as the present, for the respondent to succeed "it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment": Vozza v. Tooth &Co. Ltd. (1964) 112 CLR 316, at p 319. Notwithstanding the evidence of Mr MacLean that the new bollard could be used in berthing, the evidence of Mr Richards fully justified the conclusion that the use of a cleat or bollard amidships would have unduly impeded the accomplishment of the task of tying the barge up to a jetty. In any case there is no evidence that the design of the barge was inadequate or defective. It is true that the provision of a bollard or cleat amidships, where there would be greater clearance between the barge and the jetty, might have decreased the risk that a deckhand tying up the barge might suffer injury, if it had been convenient to use a bollard or cleat so placed. However, when one considers that the cleat was in the position where it would normally be found, that there had been no previous accidents of a similar kind on the barge, and that it would generally be inefficient and inconvenient to tie up the vessel from a point in the area of the new bollard, I find it impossible to conclude that the fact that the appellant did not before the accident provide a new bollard or cleat in the position suggested amounted to a failure to perform its duty to take reasonable care for the safety of its employee.

9. The second alleged head of negligence - the failure to warn - was that on which the respondent succeeded in the Full Court. In O'Connor v. Commissioner for Government Transport (1954) 100 CLR 225, at p 229, the Court said:

"The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury."

It is not implied by this statement that an employer is never under a duty to warn his employees of risks which are usual or expected; for example, if it is apparent that the employees are making a practice of ignoring an obvious danger, a warning may be necessary. No detailed rules can be laid down; the question simply is whether in all the circumstances of the case the taking of reasonable care by the employer involved the giving of a warning: see the discussion by Mason J. in Raimondo v. South Australia (1979) 23 ALR 513, at pp 517-518.

10. By the time of the accident, the respondent had had considerable experience in boats, over a period of from 10-20 years. He had been employed by the appellant as a deckhand on cruise vessels during the period 1967-1969, and again on and off between 1975-1978; during the latter period he had made twenty or thirty trips on the barge and had engaged in tying up that vessel to a jetty on about 100 occasions. In argument, some reliance was placed on the fact that the respondent had not worked as a deckhand during the period of six months before the accident and reference was made to a question and answer of the respondent in re-examination:

"Have you ever moored it previously in equivalent conditions such as those, with high tide and swell and wind? -- No -- Not on that jetty, no."

Neither piece of evidence justifies the conclusion that the respondent was inexperienced, or not fully aware of the danger of getting his hand or arm caught between the side of the vessel and the jetty - on the contrary, he repeatedly said in evidence that he was aware of the risk, which he described as an occupational hazard.

11. The learned trial judge was clearly correct in saying that "Making a line fast in the course of coming alongside is one of the commonest of the tasks a deckhand is called on to perform." Moreover, it should be obvious to anyone who has performed such a task that there is a danger that if the deckhand allows his arm to extend beyond the rail of the vessel it may be caught between the vessel and the jetty to which it is being made fast. It is not reasonable to expect that the employer of an experienced deckhand should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary - and there was no circumstance of that kind in the present case. The respondent said that although he had never received any warning of the danger of trapping his arm between the barge rail and the pile, he thought that the employees were all cautioned at different times to be careful, anyway, on any boat. No more explicit warning was shown to be necessary. With all respect to the judgment of the majority of the Full Court, I am unable to find anything in the evidence that supports the view that the appellant failed to take reasonable care for the safety of the respondent when it did not ensure that the respondent was warned of the danger involved in tying up the barge to the jetty.

12. The alternative argument was that the appellant should have instructed the respondent that he should not attempt to pass the line round a pile unless he could do so while the barge was at a level lower than the point at which the line would meet the pile, because, it was said, there would be less risk that the respondent's arm would be exposed to danger if he was throwing upwards rather than downwards. The alleged failure to give a warning to that effect was not specifically pleaded, and the allegation finds no foundation in the evidence. Since the barge was only a few feet below the decking of the jetty, and there was a swell which the learned trial judge found was of a couple of feet, there was obviously little choice as to the part of the pile underneath the jetty at which the line should be thrown. Counsel for the respondent, very properly, disclaimed the unreal suggestion that the master of the barge should have given up his attempt to pull alongside the jetty until the tide dropped or the wind abated, but submitted that he should have repeated the manoeuvre of approaching the jetty until it was safe to make the cast - that is, presumably, until the barge was in a trough of the swell. There was however no evidence as to whether the barge was on the crest or the trough of the swell when the respondent made the cast. The respondent gave evidence that he had to throw the line downwards, slightly at an angle, but later said that he threw virtually straight out, and that the line naturally dropped. The master of the barge was not questioned about the matter. There is no evidence to support a finding that the appellant was negligent in failing to give an instruction of the kind suggested, or that in the circumstances it would have made any difference if he had done so.

13. The final argument, that the respondent should have been instructed to cast the line over a pile where it protruded above the decking of the jetty, was not pleaded or raised at the trial. An application for leave to amend was made to the Full Court, which, in the event, found it unnecessary to consider that application. The photographs which were tendered in evidence revealed that some of the piles of the jetty do protrude above the decking, and Mr Richards did suggest that one possibility was to throw the line over the top of such a pile. The respondent himself said that the reason why the rope was thrown round a pile underneath the jetty was to allow the boat to move up and down with the tide. No one in evidence explored the questions whether there was any disadvantage in taking the course now suggested, or whether the master of a barge, acting reasonably, would have instructed a deckhand to secure the barge only to a pile above the level of the decking of the jetty. It is well settled that where a point has not been taken in the court below and evidence could have been given there which could have prevented the point from succeeding, it cannot be taken afterwards. The respondent should not be permitted now to attempt to rely on the third head of negligence alleged.

14. For these reasons the learned trial judge was right in reaching the conclusion that the respondent had not established that his unfortunate injuries were caused by any negligence of the appellant.

15. I would allow the appeal and would restore the judgment of the learned trial judge.

MASON J. For the reasons given by the Chief Justice, I would allow the appeal and restore the order of Connolly J.

WILSON J. I would allow the appeal for the reasons given by the Chief Justice.

BRENNAN J. I agree with the reasons of the Chief Justice. I would allow the appeal and restore the judgment of the trial judge.

DAWSON J. I agree with the judgment and proposed order of the Chief Justice and have nothing to add.

Orders

Appeal allowed with costs.

Order of the Full Court of the Supreme Court of

Queensland set aside and in lieu thereof order that the appeal to that court be dismissed with costs.