Miller v BP (Fremantle) Limited - [2001] WADC 153

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MILLER -v- BP (FREMANTLE) LIMITED & ORS [2001] WADC 153

CORAM: BLAXELL DCJ

HEARD: 2-6, 9-11 APRIL 2001

DELIVERED : 25 JUNE 2001

FILE NO/S: CIV 486 of 1998

BETWEEN: DESMOND LAWRENCE MILLER
Plaintiff
AND
BP (FREMANTLE) LIMITED
First Defendant
FREMANTLE PORT AUTHORITY
Second Defendant
FREMANTLE LAUNCH AND TUG CO PTY LTD
Third Party

Catchwords:

Negligence - Employer and employee - Duty of care - Bunkering attendant accessing wharf - Fall while attempting to step over mooring ropes - Turns on own facts

Negligence - Injury sustained on wharf under control and management of defendant Port Authority - Duty of care - Turns on own facts

Legislation:

Occupational Health Safety & Welfare Act 1984 s 22

Occupational Health Safety & Welfare Regulations reg 318 and reg 319

Result:

Claims dismissed

Representation:

Counsel:

Plaintiff:     Mr M E Herron
First Defendant             :     Mr P K Walton & Mr P V Lansell
Second Defendant         :     Mr P K Walton & Mr P V Lansell
Third Party                   :     Mr M H Zilko

Solicitors:

Plaintiff:     Gibson & Gibson
First Defendant             :     Jackson McDonald
Second Defendant         :     Jackson McDonald
Third Party                   :     M H Zilko

Case(s) referred to in judgment(s):

Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean's Cruises v McEwan (1984) 54 ALR 5
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Raimondo v South Australia (1978 - 79) 23 ALR 513
Smith v Austin Lifts Ltd (1959) 1 All ER 81
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Western Australia v Watson [1990] WAR 248

Case(s) also cited:

Abbott v Pacific Industrial Co (WA), unreported; SCt of WA; Library No 970079; 4 March 1997
Astley v Austrust (1999) 197 CLR 1
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Australian Ship Building Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bowen v Tutte [1990] A Tort Rep 81-043
Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 13 October 1988
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Potter v State Government Insurance Commission (1990) A Tort Rep 81-015
Purkess v Crittenden (1965) 114 CLR 164
Stewart v Stolzenhein, unreported; SCt of WA; Library No 940449; 24 August 1994
The Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Thomas v O'Shea (1989) A Tort Rep 80-259
Tubemakers of Australia Pty Ltd v Fernandez (1976) 50 ALJR 720
Wade v Allsopp (1976) 50 ALJR 647
Watts v Rake (1960) 108 CLR 158
Wylie v The ANI Corporation Ltd [2000] QCA 314
Wyong Shire Council v Shirt (1980) 146 CLR 40

BLAXELL DCJ: The plaintiff in this action claims damages for personal injuries sustained in an accident on 28 February 1995 which is said to have occurred as a result of the negligence of each of the defendants. The accident occurred in the course of the plaintiff's employment with the first defendant as a bunkering attendant at Fremantle Harbour, and on an area of wharf which was leased to the third party but was under the overall control and management of the second defendant.
The defendants admit that the plaintiff sustained injury by accident on 28 February 1995 but do not admit the manner in which the accident allegedly occurred, and also deny liability. The defendants further allege that there was contributory negligence on the part of the plaintiff. There were also contribution and indemnity proceedings between the defendants and against the third party, but these were settled at the commencement of the trial and are the subject of consent orders.
Accordingly, the only issues requiring determination are the liability of each of the defendants, and (depending upon the outcome of those issues), the question of contributory negligence and the assessment of the appropriate quantum of damages.

The background to the accident

At all material times the first defendant traded as Fremantle Bunkering Services and conducted a business supplying fuel to ships which were either berthed or anchored in Fremantle Harbour. In respect of ships anchored in Gage Roads the fuel had to be supplied by means of a bunkering barge owned and operated by the third party, Fremantle Launch and Tug Co Pty Ltd.
In order to conduct its business, the first defendant had installed a system of 200mm and 300mm diameter pipes which carried the bunkering fuel from a terminal in Amherst Street, Fremantle, to Victoria Quay and North Wharf in the inner harbour. These pipes ran under the wharves, and had outlets at each berth so that flexible hoses could be connected to the ships being refuelled. Three such outlets (two for fuel oil and one for diesel) were provided at Berth 12A so that the bunkering barge could be loaded.
Berth 12A was situated at the north eastern corner of the inner harbour hard up against the embankment for the Fremantle railway bridge. Unlike other berths in the inner harbour it had a relatively narrow area of wharf space. The alignment of the wharf was in a roughly north/south direction.
The configuration of the wharf at Berth 12A is depicted in the various photographs which have been tendered as exhibits (and in particular on p 21 of the agreed book of documents). It can be seen that approximately halfway along the wharf there was a small shed where the fuel outlets and valves were located. In order that a bunkering attendant could reach that shed it was necessary for him to walk down a bituminised slope which then levelled out on to the wharf area.
The outer edge of the wharf comprised a concrete lip or apron approximately 900mm wide which had bevelled edges and was raised approximately 200mm above the surface of the rest of the wharf. Immediately inside the concrete apron was a bituminised strip (approximately 2m wide) along which were located four double bollards to which the bunkering barge was moored.
Immediately to the left of the bituminised strip was a red fuel pipe (described in evidence as the "Caltex" pipe) which was 200mm high and ran along the full length of the wharf. To the left of this again there was a unsealed strip approximately 1.6m wide. Finally, at the back of the wharf there was a rack of three raised pipes which carried the fuels supplied by the first defendant. The fuels loaded on to the bunkering barge passed from these pipes through valves at the back of the shed, through a meter inside the shed, through a hose coupled to a fitting in front of the shed, and then directly into the tanks on the barge.
The barge was moored to the four bollards by means of a steel cable and rope spring to each of the outer bollards, and by chains affixed to the two inner bollards. Because of the configuration of the berth, each of the mooring ropes and cables when taut would be in a raised position above the bitumen, and (when the barge was low enough) would lie flat across the concrete apron. However, depending upon tides, wash from other boats, and the extent to which the barge was loaded, a taut mooring rope would sometimes lift above the level of the concrete apron.
The northernmost of the bollards (the "first bollard") was mounted on a tilted concrete plinth which rose approximately 230mm above the surface of the bitumen. The inside edge of this concrete plinth was approximately 370mm from the red Caltex pipe.
At the date of the accident the plaintiff had been employed by the first defendant as a bunkering attendant for approximately 18 years. His duties required him to refuel ships and barges at various locations within Fremantle Harbour including Berth 12A. He was usually part of a three man team who shared the collective responsibility of setting up the hoses and monitoring the flow of fuel into a vessel. At Berth 12A a bunkering attendant also had to dip the tanks on the barge prior to and immediately after loading. This necessitated him getting on and off the barge on each occasion.
In order to reach the bunkering shed on Berth 12A the plaintiff customarily walked down the bitumen strip towards the first bollard. He then walked through the 370mm wide space between the edge of the bollard and the Caltex pipe, so avoiding any need to step over the mooring lines. He would then continue along the bitumen, and step over the chain attached to the second bollard before reaching the shed.
The area of wharf where the plaintiff's accident occurred (near the first bollard) was not under the control of the first defendant and was in fact leased to the third party. However, under the terms of the lease the second defendant retained the right of overall control and management.

The plaintiff's evidence as to the accident

On 28 February 1995 at about 1.15 pm the plaintiff was instructed to attend at Berth 12A in order to load the bunkering barge with fuel. It is his evidence that after arriving at the berth he followed his usual path down towards the shed but unexpectedly found the gap between the first bollard and the red pipe to be obstructed by a large concrete block.
According to the plaintiff the concrete block was approximately 18in x 18in x 2ft long and it was jammed into the gap between the plinth and the pipe at an angle. The block was higher than the concrete plinth and "could have been just halfway up the bollard itself" (T 38).
The plaintiff had previously noticed the block but not in the particular position it was in on 28 February 1995. As I understand the plaintiff's evidence, on some past occasion or occasions he had seen the block at the bottom of the bituminised slope where it had been used temporarily to fill an excavation at the edge of the wharf.
It is the plaintiff's evidence that when confronted by the concrete block obstructing his path he decided to veer to the right and step over the mooring lines lying flat on the wharf apron. His evidence‑in‑chief as to what then happened is as follows:
"I made the choice - I felt it was safer for me and I made the choice of stepping up onto the concrete apron and went to step over the mooring line. At that time the vessel moved forward, the line lifted and it was coming towards me. I back‑peddled, I lost my footing and landed hard on the wharf. I think on recollection I hit my left shoulder on the wharf - my left shoulder on the wharf and my left hit the bollard." (T 36)
During cross‑examination the plaintiff confirmed that his attempt to step over the mooring lines was not made inadvertently but was a deliberate decision on his part. He was essentially confronted with three choices: to step over the concrete block, to cross to the left over the red pipe, or to step over the mooring ropes. He made the latter choice because he "felt it was the safest way to go" (T 104 - 5).
In this regard it is relevant to note the plaintiff's evidence that he normally got on and off the bunkering barge at either the bow or the stern. This necessitated him stepping over the mooring lines on most occasions. Accordingly, he was well aware that the mooring lines were susceptible to movement as a result of tides and the wash from passing vessels (T 100 ‑ 101).
Although the plaintiff has not expressed any specific reason why he felt it was unsafe to step over the concrete block, I draw the inference from his evidence that he considered the block to be too high for him to do so. He did not pass to the left across the red pipeline because in the area beyond there were "bits of timber and rubble and various pieces of rubbish" (T 29, 105).
As a result of his fall the plaintiff injured both shoulders and also tore both knees on his work overalls. He was in a lot of pain, but with the help of the barge master, Mr Peter Hughes, was able to complete the work that he was required to do.
When the plaintiff later returned to the first defendant's depot he reported the accident to his supervisor, Mr Brian Coulson.

Other evidence relevant to the circumstances of the accident

Mr Peter Hughes was the barge master in charge of the barge which was to be loaded with fuel at the material time. Mr Hughes was present on the barge when the plaintiff arrived at the top of the bitumen slope, and saw the latter walking down towards the bunkering shed. However, his view of the plaintiff as the latter approached the scene of the accident became obscured by a pump cowling on the barge.
Mr Hughes then walked across the barge towards the wharf expecting the plaintiff to emerge from behind the pump cowling but "he wasn't there". Mr Hughes thought to himself "where is he?" and then saw the plaintiff emerge into view near the front end of the barge (T 240). According to Mr Hughes, the plaintiff at this time:
"… didn't look too good. He was very sort of taut, and he was not walking properly like I had seen him originally walking down the ramp, and he had blood on his knee." (T 241)
The plaintiff told Mr Hughes that he had fallen over near the bollards, and because of his condition the latter then assisted him to couple up the hose and carry out the fuel loading operation.
Mr Hughes was aware of the concrete block which he had previously seen used in connection with two excavations at the bottom of the bitumen slope. After the second excavation the block "ended up" in between the red pipeline and the first bollard and at an angle of about 45 degrees to the bollard (T 243). The concrete block had been in this position "for months" and Mr Hughes had regularly used it as a stepping stone when passing behind the bollard to access the barge. In this regard "it was only a minor inconvenience to step on top of it" (T 251 - 2).
It is also Mr Hughes' evidence that when the barge was moored at Berth 12A, there was always a rope springer as well as a steel sling attached to the first bollard. (This being so, the plaintiff at the time of the accident must necessarily have been approaching the steel sling when it allegedly lifted.) Accordingly to Mr Hughes, if the barge had moved forward he would have expected the mooring lines to slacken rather than become taut. However, it is possible that the effects of tide and wash may have moved the barge out from the wharf as well as forwards thus causing the mooring lines to lift above the apron (T 248 ‑ 250).
Mr A W Mackenzie was another bunkering attendant and workmate of the plaintiff who had been employed by the first defendant for approximately eight years as at the date of the accident. He also regularly attended at Berth 12A, and his usual route during daylight hours was to walk down the full length of the concrete apron, stepping over mooring lines as he went. He considered this route to be "fairly safe" except in rough weather when "you would have to watch the lines" (T 151 ‑ 2). (Note that the evidence is that in the present instance the weather was fine - T 101.)
When attending at Berth 12A during the night‑time, Mr Mackenzie would take a torch and walk down the unsealed strip between the red Caltex pipeline and the first defendant's pipelines (T 152). Mr Mackenzie also recalls that at about the material time there was a concrete block situated "somewhere near" the first bollard which could have been in that position for three months or longer (T 155 ‑ 6).
Mr L H Banks has been a bunkering attendant with the first defendant for approximately 25 years and has performed similar duties to those of the plaintiff. His normal route to the bunkering shed on Berth 12A was the same as that described by the plaintiff.
Mr Banks recalls that there was a concrete block in the vicinity of the first bollard "sitting fairly flush against the red pipeline". It remained in that position for "quite some time", during which period Mr Banks diverted to the right of the bollard and stepped over the mooring lines while continuing along the bitumen. He took this route because it "was simpler to step over the rope" than to step over the concrete block. He did not step over the red pipeline to the unsealed area because "at the time there was rubbish and litter behind the pipeline". Although it was possible to walk between the red pipeline and the other pipelines, it was again "simpler to step over the rope" (T 198 ‑ 200).
Mr P C Close is yet another of the first defendant's bunkering attendants who was called as a witness. He has been employed by the first defendant for approximately 21 years, and his route down to the bunkering shed on Berth 12A has always been straight along the bitumen. When he passes the first bollard he does so by stepping over the mooring lines. Mr Close recalls that at about the time of the plaintiff's accident there was a concrete block on the berth, but he cannot recall its exact position.
Mr B R Coulson is presently the first defendant's terminal superintendent, but at the material time was its bunkering superintendent. He attended Berth 12A intermittently during the relevant period.
From the first defendant's records Mr Coulson was able to confirm that the plaintiff was on leave between 16 January and 7 February 1995, and that he had a rostered day off on 1 March 1995. (Other records also establish that the plaintiff attended Berth 12A on at least 13 occasions during the year prior to the accident and most recently on 12 and 14 February 1995.) Mr Coulson also recalls that on the day of the accident the plaintiff's overalls had rips in both knees, and the plaintiff stated that he had had a fall and hurt himself.
According to Mr Coulson, the concrete block had been adjacent to the first bollard for the whole of the time from when he had commenced as bunkering manager in June 1994. Mr Coulson customarily walked behind the bollard and used the block as a stepping stone. The block was slightly lower than the concrete plinth of the bollard and fitted in the space between the bollard and the pipe with room to spare. Because it was approximately the same length as the concrete plinth he thought the block was part of the bollard.
Walking over the block did not present any difficulties and Mr Coulson did not consider that it obstructed his path. No complaint was ever made by any of the first defendant's employees to the effect that the block was an obstruction. However, following the plaintiff's accident he contacted the second defendant with a request that "if nobody could show me a reason why the block was needed to be there could it be removed" (T 421). The block was then removed.
It is also Mr Coulson's evidence during cross‑examination that the first defendant did not instruct it's employees as to the route they were to take when walking down Berth 12A. Similarly, and prior to the plaintiff's accident, there was never any instruction that employees were not to walk over mooring lines and bollards.
Mr A R Watters was the first defendant's bunkering manager at the material time, but he was away on holiday at the date of the plaintiff's accident. Soon after the accident Mr Watters attended with the plaintiff at the scene, and the concrete block was pointed out to him. The block was between the bollard and the red pipeline and had dimensions which were approximately 300mm wide, 200mm long, and 160 ‑ 170mm high (which meant that it was lower than the concrete plinth of the bollard).
Mr Watters then prepared an incident report in which he stated that "clean up of rubbish required" and "employees not to step over ropes". In stipulating that rubbish was to be removed Mr Watters was referring to rubbish which was "predominantly south of the shed". With regard to the second stipulation in the report it is Mr Watters' evidence that:
"… our people walk down the wharf there all the time and they take various routes to go down to the wharf. It seemed to me at the time that if someone had fallen over going over that rope that we should at least advise them that is something they need to be careful about." (T 343)

Although Mr Watters could not recall any previous instructions given to bunkering attendants in relation to walking over ropes:
"I feel sure that we would have had discussions, two‑way discussions, at all our safety meetings about issues that happened around the wharf. Some of the mooring ropes on the ships have had some rather catastrophic injuries associated with them but the barge wharf was slightly different inasmuch as the ropes there didn't move and they were quite low. It's not like you have a ship tying up to them. I'm not sure that I would have. I just feel that we would have discussed that at safety meetings somewhere along the line. It's just we had safety meetings six times a year and HSC meetings six times a year and all conversations were two‑way so I'm sure we would have had discussions." (T 343)
Mr Watters' incident report also proposed action to "remove cement block (FPA)". In this regard, Mr Watters "just felt there was no need for it to be there" and therefore directed Mr Coulson to request the second defendant to remove it (T 344).
It is Mr Watters' evidence that the first defendant had had employees working on Berth 12A for 20 years without incident. As to whether or not the mooring ropes constituted a hazard, Mr Watters' evidence during cross‑examination was as follows:
"When you normally walk down to the berth on your monthly meetings, how would you walk down?---I would've walked a variety of ways and I still - I probably still would step over the rope on occasions. I don't see it as any more unsafe than stepping between the pipe and the bollard or stepping over the back of the pipe.
There's not a concern about the ropes rising with movement of the barge?---No. The rope generally sits at a constant level unless the barge really rises on a high tide but it's all about knowing that it's a hazard or at least knowing what you're working with and keeping your eyes open really.
Sure. So do you accept it is a hazard - - -?---No; I wouldn't call it a hazard, no.
- - - that certainly you have to be aware of?---I think it's just another obstruction that we deal with in the industry. If you were able to see the way some of our guys work under wharfs and pipelines, I mean, some of the work they do is quite - quite amazing.
Sure?---They're very aware, I think, of what surrounds them when they're working.
Do you accept it would be better for issues of safety that your employees didn't have to step over mooring lines? It would be better from a safety perspective that they walked down to the bunkering shed without having to step over mooring lines?---In retrospect? I'm not - I'm not sure about that. I think I would feel safer myself walking down the front of the berth. I mean, I - but I've been around boats for a long time and I know what ropes do and I watch what I'm doing. I would rather walk that way myself than the way Des would like to walk, between the two, because it makes me change the gait of my walk and I've got to walk feet in front because it's not very wide. So I feel quite comfortable walking up to the rope and stepping over it.
But being careful of it?---You've got to watch what you're doing, yes." (T 388 - 9)
The plaintiff also called as a witness an expert safety and health consultant, Mr G C Gardiner. Mr Gardiner spoke to the plaintiff and attended at Berth 12A during September 1998 in order to prepare the report which has become Exhibit 24. Mr Gardiner also took measurements at the scene.
In Mr Gardiner's opinion, the configuration of the bollards and mooring lines constituted a trip hazard, and the gap between the red pipeline and the bollards was insufficient to provide a safe passage. The presence of a concrete block in that gap would have added to the hazard (T 274 & Exhibit 24).
Mr Gardiner has also confirmed in evidence that as stated in his report, the plaintiff:
"… indicated that he had not been able to pass behind the bollard for some months as a large concrete block (approximately 450mm square by 600mm long), had been placed in a position adjacent to and blocking clear access to the narrow gap behind the first bollard …
As clear access to the narrow gap was obstructed, Mr Miller was required to deviate from the level surface and to choose to either step over the mooring lines securing the barge to the wharf bollard, or step over the concrete block."
(It should be noted that the plaintiff's evidence during cross‑examination at T 99 ‑ 100 as to what he told Mr Gardiner in 1998 can be fairly described as equivocal.)
The final area of evidence relevant to the circumstances of the accident comes from the second defendant's property manager, Ms L J S Knox. Ms Knox has testified to the effect that the area of Berth 12A where the plaintiff's accident occurred was at the material time leased to the third party, Fremantle Launch & Tug Co Pty Ltd, (who were the operators of the barge).
Under the terms of the lease, the third party had the responsibility of keeping the area clean and tidy whereas the second defendant had the responsibility of maintaining the structural assets.

Findings of fact

As is self‑evident, there is a broad consistency in the evidence from nearly all of the witnesses, and accordingly I have little difficulty in determining most of the relevant facts. Although I consider that the plaintiff has given a basically honest account of events, his evidence in some respects differs significantly from that of other witnesses, and in my view cannot be accepted as reliable. It would seem that the plaintiff's memory on some points has become magnified over time, as for example with his evidence as to the dimensions of the concrete block. The plaintiff's evidence that the block was 18in high and "halfway up the bollard" (consistent with the approximate 450mm dimension he gave to Mr Gardiner) would make it two to three times higher than the estimates of other witnesses. In my view the plaintiff is clearly incorrect in his estimate.
Similarly, the great weight of the evidence (including the plaintiff's own statements during 1998 to Mr Gardiner) establishes that the concrete block had been in the position it was in for some months prior to the date of the accident. Accordingly, I cannot accept the plaintiff's evidence that his usual path to the bunkering shed became obstructed for the first time on 28 February 1995 because he must necessarily have passed over or by the block on many occasions prior to then. Although I am unable to make any finding as to the precise route or routes that the plaintiff had previously taken, his comments to Mr Gardiner in 1998 suggest that he sometimes stepped over the mooring lines and sometimes stepped over the concrete block.
I am satisfied that on 28 February 1995 the plaintiff did not step over the concrete block but on this occasion attempted to step over the mooring lines where they crossed the concrete apron. The plaintiff's evidence as to what then happened is consistent with what he told his employer at the time, and I am satisfied that the accident happened broadly in the way that the plaintiff claims.
Accordingly, I find that as the plaintiff approached the mooring lines they tightened and lifted. The plaintiff then stepped backwards and in doing so he slipped off the concrete apron causing him to lose balance. Consequently he fell to the bitumen and suffered injury.
The plaintiff was an experienced bunkering attendant and on many occasions during his 15 years employment with the first defendant he had had to step over mooring lines, and in particular the mooring lines securing the bunkering barge to Berth 12A. On each occasion that the plaintiff had loaded fuel at Berth 12A, he had had to step over those mooring lines at least twice while climbing on and off the barge to dip the tanks.
I find that on the date of the accident the concrete block was almost flush with the red pipeline and was in the position as depicted by the plaintiff on p 21 of the agreed book of documents. I am also satisfied that the height of the block was less than the height of the concrete plinth of the bollard and most probably in the vicinity of 160 ‑ 170mm as estimated by Mr Watters. The block hindered the plaintiff in passing behind the bollard only to the extent that it caused him to break his normal stride or gait. Although the length of the block would have made it awkward for the plaintiff to step over it, it was relatively easy for him to step onto it while passing through.
I also find that on 28 February 1995 there was some rubbish situated on the unsealed area between the red pipeline and the first defendant's pipelines at the rear of the wharf. I find that this rubbish posed a relatively minor impediment, and would not have prevented the plaintiff from stepping over the red pipeline and picking his way through.
I am satisfied the plaintiff did not himself at any time prior to 28 February 1995 consider that the concrete block or the rubbish between the pipelines constituted significant hazards In this regard I accept the plaintiff's evidence (at T 100) that if he saw anything that was unsafe on the wharf he would report it immediately.
I also find that the first defendant did not at any material time instruct its employees as to any preferred path they should follow when accessing the bunkering shed on Berth 12A. Similarly no instruction was issued to employees prior to the accident that they should not step over mooring lines or ropes. I find that the first defendant by its bunkering superintendent, Mr Coulson, was aware of the presence of the concrete block at the material time. However, Mr Coulson did not consider it to be a hazard and in fact believed it to be part of the wharf structure.
Nevertheless, at all material times it was within the power of the first defendant to request that the second defendant remove the concrete block. The first defendant was similarly able to request the third party to clean up any rubbish and in general tidy up its leased area. The evidence establishes that if either of those requests had been made it is likely that it would have been complied with.

Findings as to liability

The plaintiff's re‑amended statement of claim essentially alleges that the first defendant was negligent by:
(a)failing to ensure that the plaintiff had safe means of access along the wharf apron;
(b)failing to ensure that the large concrete block was removed from the wharf apron to enable the plaintiff safe access to the barge;
(c)failing to provide the plaintiff with any or any adequate supervision in relation to walking on the berth;
(d)failing to provide the plaintiff with any or any adequate instructions or guidelines in relation to accessing the berth;
(e)failing to provide the plaintiff with any or any adequate instructions or guidelines in relation to designated walkways on the berth, clear areas of the berth or bollards and mooring ropes.
Also pleaded are similar alleged breaches by the first defendant of the Occupational Health Safety & Welfare Regulations 1998 ("the Regulations") and of implied terms of the contract of employment between the parties.
As against the second defendant it is alleged that it was negligent by:
(a)failing to ensure the berth was free of obstacles and in particular failing to ensure that the large concrete block was removed from the berth;
(b)failing to ensure that the berth was designed such that the plaintiff had safe access to the barge moored at the berth.
It is also alleged against the second defendant that it failed to ensure that the plaintiff was provided with a means of access without exposing him to a hazard, in contravention of s 22 of the Occupational Health Safety & Welfare Act 1984 ("the Act").
Dealing firstly with the claim against the first defendant, the legal principles governing an employer's liability for accidental injury suffered by an employee, are well established. The employer owes the employee a duty to take reasonable care to avoid exposing the employee to an unnecessary risk of injury (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25). This does not mean that the employer must safeguard the employee from all risks, and for a plaintiff 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, 318 - 9)
The employer's duty of care is non‑delegable and extends to risks to be found in the premises of third parties visited by the employee in the course of his employment. Depending upon the particular fact situation, the exercise of reasonable care may require the employer to inspect a third party's premises and to ensure that a source of danger, if any, is removed (Smith v Austin Lifts Ltd (1959) 1 All ER 81, 94).
The exercise of reasonable care by the employer will usually require the provision of proper and adequate means for the employee to carry out his work without unnecessary risk, warning him of unusual or unexpected risks, and instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury (O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, 229).
However, this responsibility is not confined to unusual or unexpected risks; and in appropriate cases the duty to warn or give instructions might extend to risks which are obvious to both the employer and to the employee (Raimondo v South Australia (1978 - 79) 23 ALR 513, 517). If, for example, it is apparent that employees are making a practise of ignoring an obvious danger, the exercise of reasonable care may make a warning necessary (McLean's Cruises v McEwan (1984) 54 ALR 5, 7).
In McLean's Cruises v McEwan the plaintiff deckhand crushed his arm between the employer's barge and a jetty. He claimed that the defendant was negligent inter alia in failing to warn the plaintiff that he should not put his arm over the railing when the barge was approaching the jetty, and in failing to instruct the plaintiff appropriately. The High Court held in that particular case that the employer was not liable because:
"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." (Gibbs CJ at 8).
An employer can nevertheless become liable in respect of an obvious danger if the employee has injured himself as a result of thoughtless or inadvertent conduct. In considering the precautions that the exercise of reasonable care will require in any particular case, the possibility of inadvertence or thoughtlessness on the part of a workman needs to be taken into account (Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 218).
The present case is not of course one where the injury resulted from any thoughtlessness or inadvertence on the part of the plaintiff. It is his evidence that he deliberately chose the route that he took to pass by the bollard because he thought it to be the safest. That route took him towards the mooring lines which were the risk relevant to the present proceedings.
As a bunkering attendant with 18 years experience the plaintiff had regularly encountered such mooring lines and was familiar with their tendency to lift depending upon the movements of the vessel to which they were attached. This tendency of the mooring lines to lift was a potential hazard to anyone attempting to step across them, and it was a hazard which was as obvious to the plaintiff as it was to his employer.
This being so, the exercise of reasonable care by the first defendant would have necessitated a warning to employees about the mooring lines only if there was something in the surrounding circumstances to indicate that a warning was necessary. The unchallenged evidence is that there had never been any previous such incident involving an employee and I can find nothing in the surrounding circumstances to indicate that the first defendant should have warned an employee of the plaintiff's experience of the danger that the mooring lines might move while he was stepping over them.
To the extent that it is claimed that the first defendant failed to provide safe access to the berth and failed to provide adequate supervision, instructions and guidelines, the relevant risk was that the mooring lines would move when attempting to step over them. Accordingly, I am not satisfied that the first defendant breached its duty of care by failing to instruct or warn the plaintiff against undertaking this risk while accessing the berth. Furthermore, even if a warning had been given, there is no evidence from the plaintiff that he would have heeded the same, and his knowledge and experience of the risk makes such a precaution on his part unlikely.
It is claimed that the first defendant was also negligent in failing to ensure that the concrete block was removed from the wharf. As I understand the plaintiff's case, the significance of the concrete block is that it caused him to deviate onto the wharf apron and to attempt to step over the mooring lines. In my view, the evidence does not establish that the concrete block was a hazard in this sense. It was no higher than a normal step or stair, and could be conveniently used as a stepping stone. Accordingly it constituted only a minor hindrance to the plaintiff in passing through to the shed.
Furthermore, the plaintiff could with minimal inconvenience have diverted to the left, crossed over the red pipeline and continued forward while avoiding any rubbish (in a similar manner to Mr Mackenzie). In all of the circumstances I am unable to find that the first defendant breached its duty of care to the plaintiff by failing to have the block removed. I am also unable to find that this failure was the cause of the plaintiff's injury given that it was his decision to undertake the relevant risk which resulted in the accident.
In light of the above findings it is unnecessary to deal with the remaining aspects of the plaintiff's claim against the first defendant, because clearly there can be no basis for the alleged breaches of statutory duty and of contract.
The claim against the second defendant rests upon the assertion that the configuration of the wharf and the presence of the concrete block constituted a hazard. I have already found that the concrete block did not constitute a hazard, and for the same reasons as expressed in respect of the claim against the first defendant, I am unable to find that the second defendant was in any way negligent. Nevertheless, the tendency of the mooring lines to move did constitute a hazard, and in this regard, s 22 of the Occupational Health, Safety and Welfare Act 1984 provides that:
"22.(1)A person who has the management or control of a workplace shall take such measures as are practicable to ensure that the workplace and means of access to and egress from the workplace are such that persons who -
(a)are at the workplace; or
(b)use the means of access to and egress from the workplace,
are not exposed to hazards."
It is self‑evident that the bunkering barge had to be tethered to the wharf in some way, and there is no evidence before me to suggest that there was any alternative configuration of the bollards and mooring lines which would have been practicable. Accordingly, the claim against the second defendant must also fail.

Provisional assessment of damages

Notwithstanding my finding that the plaintiff's claims should be dismissed, I consider it appropriate to make a provisional assessment of the damages that might have been awarded if the plaintiff had been successful.
Rather than make any detailed findings as to the facts relevant to quantum, I simply adopt the defendants' eight page chronology (dated 10 April 2001) which was handed up during closing submissions and which was not disputed by the plaintiff.
I am satisfied that as a result of the plaintiff's fall on 28 February 1995 he sustained rotator cuff injuries to both shoulders. In this regard I accept Mr Skirving's evidence that it is not unusual for two such injuries to occur at the one time during a fall, because although the direct impact might be to one shoulder, the plaintiff probably injured the other shoulder by putting his arm out and trying to save himself.
As a result of those injuries the plaintiff sustained disabilities which were assessed by Mr Peter Hales in 1997 as being 15 per cent of the left shoulder and 10 per cent of the right shoulder. I accept the evidence of Drs Anastas and Skirving that by the date of trial those permanent disabilities had progressed to the extent that they were 25 per cent in each shoulder. The preponderance of the medical evidence (eg Dr Anastas at T 89 ‑ 90 and Dr Hales in his report of 11 March 1997) establishes that although these disabilities have rendered the plaintiff unfit for his former occupation, he retains a capacity for limited light duties employment.
As can be seen from the chronology, the plaintiff has from time to time been affected by various supervening and unrelated medical conditions which are particularised in paragraph 5A of the amended defence. The onus is of course on the defendants to disentangle and quantify the extent to which the plaintiff's problems have been caused by each of these concurrent conditions (Western Australia v Watson [1990] WAR 248, 312).
I accept the evidence of Dr Stace that during the period from the date of the accident until the date of trial, the various unrelated conditions would have resulted in the plaintiff being unable to work for a maximum of 13 weeks. This roughly equates with the 84 days of unused sick leave that the plaintiff had accumulated by the time that the accident occurred.
There is a conflict in the expert medical opinion (principally between Dr Connaughton on the one hand and Mr Skirving on the other) as to the impact of the plaintiff's unrelated medical conditions on his retained earning capacity. While I in general prefer the evidence of the treating surgeon, Mr Skirving, the evidence in my view establishes a strong chance that (if the accident had not occurred) the unrelated medical conditions would have had some impact on the plaintiff's future earning capacity.
As at the date of the accident the plaintiff had been a senior bunkering attendant for 18 years, had rejected a number of redundancy offers, and was in secure in his employment. The evidence of Mr Watters also satisfies me that the plaintiff was a respected employee and would have retained his job even if the subsequent unrelated medical conditions had caused an absence from work in excess of the available sick leave. I accept that the plaintiff intended to continue with his work until the age of 60 (T 49).
Turning now to the assessment of the plaintiff's damages, I consider that the calculations and assumptions of fact in the "plaintiff's schedule of past economic loss" (dated 10 April 2001) are correct, but that there should be a deduction of $103,436.16 (and not $80,772.16) pursuant to s 92 of the Workers' Compensation & Rehabilitation Act 1981. There also should be an allowance for further interest on past loss between the date of trial and the date of judgment. On this basis I provisionally assess the plaintiff's damages for past economic loss in the total sum of $158,194.
As to the assessment for future economic loss, I again consider that the calculations and assumptions of fact contained in the "plaintiff's schedule of future economic loss" (dated 11 April 2001) to be correct. Accordingly, those damages can be assessed at $235,533.46 prior to any discount for contingencies. In the present instance I consider that the deduction for contingencies should be considerably greater than normal because of the substantial chance that but for the accident, the unrelated medical conditions would have resulted in a reduction in the plaintiff's earning capacity. In my view the appropriate deduction in all of the circumstances is 20 per cent. It follows that the provisional assessment of the plaintiff's damages for future economic loss is the sum of $188,442.
The plaintiff is additionally entitled to damages for future medical expense which I assess at $3,000. In respect of non‑pecuniary loss I provisionally assess the plaintiff's damages in the sum of $30,000.
Accordingly, if the plaintiff had been totally successful in his claims I consider that he would have been awarded damages in the vicinity of $379,636.