Merrin v Cairns Port Authority - [2001] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION: Merrin & Anor v Cairns Port Authority [2001] QCA 178

PARTIES: ANNETTE ELIZABETH MERRIN
(first plaintiff /first appellant)
THOMAS WILLIAM MERRIN
(second plaintiff/second appellant)
v
CAIRNS PORT AUTHORITY
(defendant/respondent)

FILE NO/S: Appeal No 11540 of 1999
DC No 153 of 1997

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Cairns

DELIVERED ON: 15 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 23 and 24 April 2001

JUDGES:
McPherson and Williams JJA, Chesterman J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:
1.   Appeal allowed with costs;

2.   Set aside the verdict and judgment in favour of the defendant;

3.   Order that there be a new trial of the action;

4.   Order that the defendant pay the plaintiffs’ costs of the first trial.

CATCHWORDS:
TORTS – NEGLIGENCE – STANDARD OF CARE – OTHER CASES – where respondent constructed and maintained a marina which broke up during a cyclone – where appellants’ boat allegedly hit and sunk by floating debris – where evidence that the respondent negligently constructed and maintained the marina by using materials of inferior quality – where evidence that the respondent negligently failed to recover debris from the marina following a cyclone – where defendant a “corporatised” government entity - limitations on the defendant’s financial resources do not exclude liability for breach of a common law duty

JURY – THE JURY IN CIVIL PROCEEDINGS – OTHER MATTERS – where trial judge determined that there was insufficient evidence to put the question of breach of duty to the jury – jury directed to find for the defendant – the law of Queensland confers a right to trial by jury – the test as espoused in Wyong Shire Council v Shirt is whether it would be open to the jury to find for the plaintiff – where there are technical questions of fact involving skill and expertise a jury is still the appropriate arbiter – the trial judge erred in removing the matter from the jury

EVIDENCE – GENERAL – RESPECTIVE FUNCTIONS OF JUDGE AND JURY – SUFFICIENCY OF EVIDENCE

EVIDENCE – WITNESSES - IN GENERAL - CONTROL OF COURT OVER WITNESSES – where trial judge ruled that no more witnesses could be called by the plaintiff; other than those already opened – where relevant evidence thus excluded – where too much time was taken up with objections whish prevented uninterrupted submissions

PROCEDURE - COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT ETC. – IN PROCEEDINGS – CONDUCT OF CASE – an order that the costs of the first trial should follow the retrial is not universal - where defendant wrongly applied to have case taken from jury – defendant to pay costs of first trial

Evidence Act1977 (Qld), s 92
Government Owned Corporations Act 1993 (Qld), s 16(a)

Government Owned Corporations (Ports) Regulations 1994 (Qld)

Harbours Act 1955 (Qld)

Transport Infrastructure Act 1994 (Qld), s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] QCA 178
Decision Date: 15 May 2001

CaseChat Overview and Summary

The case of Merrin v Cairns Port Authority involved a dispute where the appellants claimed damages for injuries and loss of their boat, which they alleged was caused by the respondent’s negligence in the construction and maintenance of a marina. The marina broke up during a cyclone, and the appellants claimed that they were injured when their boat hit floating debris. The appellants alleged that the respondent was negligent in using inferior quality materials for the marina and in failing to remove debris after the cyclone. The respondent, a corporatised government entity, argued that its financial limitations should exclude its liability for the breach of a common law duty.

The legal issues before the court included whether the respondent was liable for the appellants' injuries and losses due to the alleged negligence in constructing and maintaining the marina, and whether the trial judge correctly removed the matter from the jury. The court had to determine if the evidence was sufficient for the jury to find the respondent in breach of duty, considering that the issues involved technical questions of fact requiring skill and expertise. Additionally, the court examined whether the trial judge appropriately limited the number of witnesses and if this affected the sufficiency of the evidence presented.

The court held that the trial judge erred in removing the matter from the jury, as the evidence was sufficient to allow the jury to find for the plaintiff. The judge should have considered whether it would be open to the jury to find for the plaintiff, in accordance with the test from Wyong Shire Council v Shirt. The court found that the trial judge’s decision to limit the number of witnesses and the time taken with objections impeded uninterrupted submissions, leading to relevant evidence being excluded. The court also noted that the respondent’s application to remove the case from the jury was improper, resulting in an order for the respondent to pay the costs of the first trial.

The orders made by the court included allowing the appeal with costs, setting aside the verdict and judgment in favour of the defendant, ordering a new trial of the action, and directing the defendant to pay the plaintiffs' costs of the first trial.

Orders

Orders of the court

1. Appeal allowed with costs;

2. Set aside the verdict and judgment in favour of the defendant;

3. Order that there be a new trial of the action;

4. Order that the defendant pay the plaintiffs’ costs of the first trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Merrin & Anor v Cairns Port Authority [2001] QCA 178
PARTIES:	ANNETTE ELIZABETH MERRIN (first plaintiff /first appellant) THOMAS WILLIAM MERRIN (second plaintiff/second appellant) v CAIRNS PORT AUTHORITY (defendant/respondent)
FILE NO/S:	Appeal No 11540 of 1999 DC No 153 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	15 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	23 and 24 April 2001
JUDGES:	McPherson and Williams JJA, Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed with costs; 2. Set aside the verdict and judgment in favour of the defendant; 3. Order that there be a new trial of the action; 4. Order that the defendant pay the plaintiffs’ costs of the first trial.
CATCHWORDS:	TORTS – NEGLIGENCE – STANDARD OF CARE – OTHER CASES – where respondent constructed and maintained a marina which broke up during a cyclone – where appellants’ boat allegedly hit and sunk by floating debris – where evidence that the respondent negligently constructed and maintained the marina by using materials of inferior quality – where evidence that the respondent negligently failed to recover debris from the marina following a cyclone – where defendant a “corporatised” government entity - limitations on the defendant’s financial resources do not exclude liability for breach of a common law duty JURY – THE JURY IN CIVIL PROCEEDINGS – OTHER MATTERS – where trial judge determined that there was insufficient evidence to put the question of breach of duty to the jury – jury directed to find for the defendant – the law of Queensland confers a right to trial by jury – the test as espoused in Wyong Shire Council v Shirt is whether it would be open to the jury to find for the plaintiff – where there are technical questions of fact involving skill and expertise a jury is still the appropriate arbiter – the trial judge erred in removing the matter from the jury EVIDENCE – GENERAL – RESPECTIVE FUNCTIONS OF JUDGE AND JURY – SUFFICIENCY OF EVIDENCE EVIDENCE – WITNESSES - IN GENERAL - CONTROL OF COURT OVER WITNESSES – where trial judge ruled that no more witnesses could be called by the plaintiff; other than those already opened – where relevant evidence thus excluded – where too much time was taken up with objections whish prevented uninterrupted submissions PROCEDURE - COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT ETC. – IN PROCEEDINGS – CONDUCT OF CASE – an order that the costs of the first trial should follow the retrial is not universal - where defendant wrongly applied to have case taken from jury – defendant to pay costs of first trial Evidence Act1977 (Qld), s 92 Government Owned Corporations Act 1993 (Qld), s 16(a) Government Owned Corporations (Ports) Regulations 1994 (Qld) Harbours Act 1955 (Qld) Transport Infrastructure Act 1994 (Qld), s…