Mills v Fremantle Ports
[2007] WADC 101
•22 JUNE 2007
MILLS -v- FREMANTLE PORTS & ANOR [2007] WADC 101
| Link to Appeal : |
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| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 101 | |
| Case No: | CIV:808/2005 | 21 - 23, 25 MAY 2007 | |
| Coram: | MARTINO DCJ | 22/06/07 | |
| PERTH | |||
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff against both defendants Liability apportioned between defendants | ||
| PDF Version |
| Parties: | KIM WAYNE MILLS FREMANTLE PORTS P&O PORTS LIMITED |
Catchwords: | Torts Negligence Personal injury Port Liability of port authority Liability of stevedore |
Legislation: | Occupier's Liability Act 1985 s 5 Port Authorities Act 1999 s 25, s 32 |
Case References: | Byran v Maloney (1995) 182 CLR 609 Donoghue v Stevenson [1932] AC 562 Husher v Husher (1999) 197 CLR 138 Maiward v Doyle [1983] WAR 210 Miller v Paua Nominees Pty Ltd [2004] WASCA 220 Tame v New South Wales (2002) 211 CLR 317 Voli v Inglewood Shire Council (1963) 110 CLR 74 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
FREMANTLE PORTS
First Defendant
P&O PORTS LIMITED
Second Defendant
Catchwords:
Torts - Negligence - Personal injury - Port - Liability of port authority - Liability of stevedore
Legislation:
Occupier's Liability Act 1985 s 5
Port Authorities Act 1999 s 25, s 32
Result:
(Page 2)
Judgment for plaintiff against both defendants
Liability apportioned between defendants
Representation:
Counsel:
Plaintiff : Mr K G Robson
First Defendant : Mr G P Bourhill
Second Defendant : Mr L A Tsaknis
Solicitors:
Plaintiff : Friedman Lurie Singh
First Defendant : Phillips Fox
Second Defendant : Cocks Macnish
Case(s) referred to in judgment(s):
Byran v Maloney (1995) 182 CLR 609
Donoghue v Stevenson [1932] AC 562
Husher v Husher (1999) 197 CLR 138
Maiward v Doyle [1983] WAR 210
Miller v Paua Nominees Pty Ltd [2004] WASCA 220
Tame v New South Wales (2002) 211 CLR 317
Voli v Inglewood Shire Council (1963) 110 CLR 74
(Page 3)
1 MARTINO DCJ: In 2002 the plaintiff, Mr Mills, worked as a self employed cleaning contractor operating his road sweeper truck. On 17 October 2002 he was carrying out that work at the request of the first defendant, Fremantle Ports, at the Kwinana Bulk Cargo jetty. The second defendant, P & O Ports, is a stevedoring company. In 2002 it provided stevedoring services at the Kwinana Bulk Cargo jetty for the Cockburn Shipping Services Division of Wesfarmers CSBP Ltd.
2 At the jetty there were two large gantry cranes. These cranes, which were the property Fremantle Ports, were used by P & O Ports to unload fertiliser from ships.
3 On 17 October 2002 Mr Mills was operating his truck at the jetty when it was struck three times by one of the cranes. In this action Mr Mills claims from Fremantle Ports and P & O Ports damages for personal injuries he alleges he suffered in that accident. Each of the defendants denies liability to Mr Mills and claims contribution or indemnity from the other. Each defendant also contends that the accident was caused or contributed to by Mr Mills' negligence.
Mr Mills
4 Mr Mills was born on 2 November 1961. He was 15 years old when he left school. He commenced an apprenticeship as a butcher in 1977 which he completed after four years in 1981. He then worked as a butcher for 14 years, the last nine years as executive butcher at a large hotel. When his position at the hotel became redundant he obtained employment as a forklift driver.
5 He remained in that employment for two years and then obtained employment managing the meat section at a supermarket. He remained in that employment for approximately two years and then returned to employment as a forklift driver where he worked for a further two years.
6 On 7 January 2001 Mr Mills acquired a cleaning business together with the road sweeping truck. From that date he carried on business as a cleaning contractor in partnership with his wife. His business was a sub-contractor to a company which carried on business under the name Clean Sweep.
7 He was working in his business at the time of the accident. His wife was earning income providing child day care services at home. Mr and Mrs Mills have four children who are aged 22, 21, 18 and 9.
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Kwinana Bulk Cargo jetty
8 The Kwinana Bulk Cargo jetty is part of the port area of Fremantle Ports. It is the property of Fremantle Ports – s 25 Port Authorities Act 1999, which has exclusive control over it, subject to any direction given by the Minister – s 32.
9 The two large cranes that were used to unload fertiliser each weighed approximately 400 tonnes. They were sometimes referred to in evidence as bulk unloaders or unloaders. They were identified by numbers: No 1 and No 2. They moved along rail tracks on the jetty. When they were not in use they were secured in place by pins. Those pins were placed into holes in the jetty that had been prepared for them at locations on the jetty. One set of holes were at the northern end of the jetty. Another set was at the southern end of the jetty. There were also two sets of holes in the middle of the jetty.
The events at the jetty before Mr Mills arrived
10 P & O Ports employed Mr Stephen Kelly. He is an electrician by trade. His duties for P & O Ports included the maintenance of the cranes at the jetty.
11 The jetty and cranes were to be washed down on 17 October. Mr Kelly went to the jetty at 7 am with Mr George Whale, who is a fitter, to participate in the wash down. The material to be cleaned from the jetty and the cranes was a type of fertiliser called SMAP which had recently been unloaded. It was a new product that had not previously been unloaded at the jetty.
12 The usual practice was for the cranes to be washed down at the northern end of the jetty. They would then be moved to the southern end of the jetty and the northern end of the jetty would be washed down.
13 The cranes could be moved by controls on the ground or by controls in the crane. The controls in the crane provide greater variation in the speed of the crane.
14 On the morning of 17 October Mr Kelly went to the No 1 crane. Mr Whale went to the No 2 crane. Both cranes had been secured in position with pins the night before. Mr Kelly removed the pins from their holes in No 1 crane. He climbed into the crane, turned on its power and attempted to move it north. The crane moved a short distance and then wouldn’t move any further.
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15 Mr Kelly alighted from the crane and checked with Mr Whale. Mr Whale was having the same problem with No 2 crane as Mr Kelly had with No 1 crane.
16 Mr Kelly tried to move No 1 crane using the controls on the ground. He found that the SMAP on the rails was causing the crane's wheels to slip and so it was not possible to move the cranes against the wind, which was coming from the north. Mr Kelly saw that Mr Whale tried the same manoeuvre with No 2 crane but had the same problem as Mr Kelly had with No 1 crane.
17 As both cranes had been moved a short distance they were not in positions at which they could be secured by pins. Mr Kelly and Mr Whale decided to move the cranes in the same direction as the wind to positions where they could be secured. They moved No 2 crane but they were not able to stop it when it was in a location to be pinned. The northerly wind moved the crane approximately ten feet past where they had planned to stop it.
18 There were further sets of pin holes further south, but Mr Kelly and Mr Whale decided not to try to move the cranes to those holes because if they overshot them the cranes could cause damage to conveyor belts and other equipment on the jetty which would result in expensive repair costs and downtime.
19 Mr Kelly and Mr Whale decided to leave the cranes where they were, not secured by pins, until they and the wharf had been cleaned sufficiently for the cranes to move freely along the rails.
20 In October 2002 Mr Terry Stainton was employed by Fremantle Ports as an acting team leader. His duties as team leader were to supervise a team of port officers who managed security, mooring, emergency response, wharf preparation and wharf cleaning.
21 On 17 October 2002 Fremantle Ports directed Mr Stainton to clean the wharf and the cranes at the jetty. He went to the jetty in the morning with a team of three or four.
22 Although the cranes were the property of Fremantle Ports and Mr Stainton's team was to clean them neither Mr Stainton nor any member of his team were authorised by Fremantle Ports to move the cranes and they did not know how to do so. The arrangement between Fremantle Ports and P & O Ports was that P & O Ports handled the movement of the cranes.
(Page 6)
23 Mr Stainton's evidence was that in the morning of 17 October he checked the weather forecast. When he gave his evidence Mr Stainton thought that the weather forecast had been for winds of 15 or 20 knots from the north-west. Mr Stainton is mistaken in his recollection of the weather forecast. The weather bureau had issued a strong wind warning. It forecast 18 to 23 knot north-westerly winds at first increasing to 20 to 30 knots in the morning ahead of a 20 to 30 knot south-westerly change.
24 When he arrived Mr Stainton spoke to Mr Kelly. When Mr Stainton arrived the cranes were not pinned down. Mr Stainton's evidence was that Mr Kelly told him that the cranes were not secured because he could not do so due to some product on the rails. Mr Kelly suggested that if the wheels and rails were cleaned the cranes could be moved to a position where they could be pinned. Mr Stainton suggested that his team clean the cranes where they were and asked Mr Kelly if that posed a problem for him. Mr Kelly said it did not.
25 Mr Kelly did not have a clear recollection of the conversation, but he did not dispute that he did have a conversation with Mr Stainton, that he told Mr Kelly that he could not move the cranes north and that Mr Stainton and his team would have to clean the cranes where they were. I accept Mr Stainton's evidence of his conversation with Mr Kelly.
26 Mr Stainton and his team commenced cleaning one crane.
The accident
27 Mr Mills' truck was an eight or nine tonne Ford Cargo street sweeper. It was licensed to be driven on roads. In addition to the engine which propelled the truck it had a diesel engine which powered the truck's brushes and brooms, the suction mechanism and the water system. The working environment in the truck was uncomfortable, with a lot of noise, dust and vibration.
28 On the day of the accident he commenced working at a Fremantle Port Authority site next door to the Kwinana Bulk Terminal. At approximately 11.00 am he received a call from Clean Sweep. He was told that when he had finished the job on which he was working he was to go to the Kwinana Bulk Terminal because he was needed urgently to clean up the wharf.
(Page 7)
29 Clean Sweep had been engaged by Fremantle Ports to arrange for a road sweeping truck to clean the wharf. Fremantle Ports had its own truck, but it was not available on 17 October.
30 Mr Mills arrived at the Kwinana Bulk Terminal at approximately 12 to 12.30 pm. He met Mr Stainton.
31 Mr Stainton’s evidence was that he "“did brief [Mr Mills] on the operation and what was to be done" [T 99]. He told Mr Mills that he was to drive up and down the wharf to sweep up the fertiliser and that when the bin on Mr Mills' truck was full he was to contact Mr Stainton who would be on the wharf at all times. He did not tell Mr Mills that the cranes were not pinned down. He did not think that it was necessary to do that because he had never seen a crane move other than when it was being used.
32 Mr Stainton and his team had commenced cleaning a crane before Mr Mills arrived. Mr Stainton's evidence was that the crane that he and his team commenced cleaning was crane No 1, the crane that was later struck Mr Mills’ truck. They had almost completed cleaning it when the wind started to increase at around lunchtime. Mr Stainton and his team decided to take their lunch break, leave the crane and go into the amenities room.
33 Mr Kelly's evidence was that Mr Stainton and his team cleaned crane No 2. While they were washing the crane Mr Kelly washed around the crane’s wheels. Members of Mr Stainton's crew said to Mr Kelly that they were going to take their lunch break and that they would wash crane No 1 after lunch.
34 While they were having lunch Mr Kelly decided to try to move crane No 2 to a pin down point. He was able to move the crane and to pin it down at a pin down point.
35 Mr Stainton was very confident in his recollection that he and his crew had commenced cleaning crane No 1, because he was confident that the crane that was blown down the jetty was the same crane as the team had been cleaning. My assessment of Mr Stainton's evidence was that his recollection of events was not as good as he believed it to be. His incorrect recollection of the forecast weather conditions for 17 October is an example. I prefer Mr Kelly's evidence as to which crane was cleaned to that of Mr Stainton. I accept Mr Kelly's evidence that while Mr Stainton and his crew were at lunch he was able to move crane No 2 to a pin down point.
(Page 8)
36 Mr Kelly did not try to move crane No 1. It was his view that there was no point in trying to do so as it still had fertiliser around the wheels. As crane No 2 had been pinned down crane No 1 could not be blown any further south as crane No 2 would prevent it moving any further in that direction.
37 When Mr Stainton and his team went to take their lunch break Mr Stainton spoke to Mr Mills. Mr Stainton's evidence was that he told Mr Mills that he and his team were going to lunch and that Mr Mills kept operating his truck. Mr Mills' evidence was that Mr Stainton told him that he and his team were going to lunch and that Mr Mills was to continue sweeping and to pick up the bulk of the fertiliser. Mr Mills' evidence was that Mr Stainton asked him to sweep up piles of fertiliser that had been left on the edge of the wharf while Mr Stainton and his team were at lunch. Mr Mills' recollection of the conversation was quite detailed, recalling the specific task he was told to do. I have already expressed my assessment of Mr Stainton's recollection of events. I prefer Mr Mills' evidence of that conversation to the evidence of Mr Stainton and I accept Mr Mills' evidence.
38 While Mr Stainton and his team were in the amenities room on their lunch break one of his officers told him that a crane had blown down the wharf. Mr Stainton saw that the crane had blown approximately 100 metres north of the location at which he had left it. While Mr Stainton and his team were in the amenities room the wind had suddenly changed direction to a south-west wind. Mr Stainton saw that Mr Mills' truck was had been involved in an accident and its bin was badly damaged. Mr Mills appeared to Mr Stainton to be obviously in shock.
39 After he had pinned down crane No 2 Mr Kelly went to the workshop to have lunch. While he was in the workshop he heard the wind change direction and increase in intensity. So he looked out at the jetty. He could see crane No 1 begin to move along the jetty. Mr Kelly was approximately 800 metres from the crane. He and Mr Whale stood and watched the crane pick up speed and go to the northern end of the jetty.
40 Mr Kelly's felt that there was nothing he could do to stop the crane moving as they were too far away. If they had been closer and thought quickly he might have tried to put a motor vehicle or forklift in its path, but he was too far away to try to do that.
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41 Mr Kelly's evidence was that he did not recall seeing Mr Mills' truck before the accident. The truck was on the jetty at the same time as Mr Kelly and while I accept that Mr Kelly does not recall seeing the truck it must have been possible for him to see it. I conclude that he paid no attention to it, because the co-ordination of the cleaning of the jetty was not his responsibility.
42 Mr Mills' evidence was that the weather when he arrived at the jetty was pretty gusty with occasional showers. Mr Mills kept sweeping after Mr Stainton and his crew had gone to lunch. The wind changed direction and came from the south-west. It continued to be gusty. Mr Mills was driving along the edge of the wharf, very close to the edge and concentrating it. There was only approximately a metre from the rail track to the edge of the wharf.
43 While he was concentrating on that task Mr Mills felt an enormous blow to the back of his truck. Mr Mills' initial reaction was that he thought members of Mr Stainton's crew had returned from lunch and were operating the crane. He felt a second bang and then his truck was being pushed along by the crane.
44 Mr Mills applied his brakes and turned the steering wheel on his truck as hard as he could. The truck spun around. The crane came to a stop with its front wheels off the end of the jetty. Mr Mills' truck was underneath the crane approximately two metres from the edge of the jetty.
45 I accept Mr Mills' evidence as to the accident.
Fremantle Ports’ claim in contract against P & O Ports
46 Each defendant claims that the other was negligent. In addition Fremantle Ports claims that it is entitled to an indemnity from P & O Ports pursuant to "a contract, partly written, partly by conduct …for the hire of unloaders by [P & O Ports] from [Fremantle Ports] for use by [P & O Ports] in the provision of stevedoring services to Wesfarmers CSBP."” In its notice of contribution against P & O Ports Fremantle Ports provides the following particulars of the contract that it alleges.
"1 Insofar as the contract is written, [Fremantle Ports] sent by facsimile dated 10 May 2002 a document entitled 'Terms and Conditions of Hire of Bulk Unloaders ("terms and conditions") that enunciated in clear and express terms the terms and conditions under which
- [Fremantle Ports] and [P & O Ports] had previously agreed to operate and continued to operate under.
- 2 To the extent that it was by conduct, [P & O Ports] did not respond to the facsimile dated 10 May 2002 but continued to use the unloader by which conduct [P & O Ports] agreed to the terms and conditions."
47 In 2002 Captain Christopher Bourne was employed by Fremantle Ports as the marine services co-ordinator. In that role he was responsible for ensuring that port and marine services were provided to Fremantle Ports' customers, including the provision of pilots, making sure that berths were ready for ships, the maintenance and cleaning of berths and cranes, emergency response services and security.
48 In May 2002 Captain Bourne was negotiating with P & O Ports for the use by P & O Ports of a new gantry crane that Fremantle Ports was building. Captain Bourne was dealing with Mr Andrew Gibson, who he understood to be the commercial manager of P & O Ports. Mr Gibson was based in Sydney.
49 On 10 May 2002 Captain Bourne sent a facsimile to Mr Gibson. The first page was a cover sheet on which Captain Bourne wrote:
"Andrew
Please find following the “Terms and Conditions of Hire of Bulk Unloaders” that is in place, on a period basis, between us.
Have a good weekend.
Regards
Chris Bourne"
50 Following that cover sheet was a standard form Fremantle Ports document headed Terms and Conditions of Hire of Bulk Unloaders. It was unsigned.
51 Captain Bourne’s evidence was that it was his recollection that the terms and conditions were in place at least in March 1999, when he commenced working for Fremantle Ports. Captain Bourne's evidence was that he could not recall whether he had any direct response to his facsimile of 10 May 2002. Eventually an agreement was made for the use of the
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- new crane, but Captain Bourne’s evidence was that the new agreement had no impact on the situation with the existing cranes.
52 Fremantle Ports did not produce in evidence any contract between it and P & O Ports for the hire or use of cranes. There was a contract dated 24 February 1997 between Fremantle Ports and Wesfarmers CSBP which provided for access to and use of cranes by Wesfarmers CSBP. On 22 October 1999 Wesfarmers CSBP and P & O Ports entered into a contract for the provision of stevedoring services by P & O Ports. However the evidence does not satisfy me that there was any contract between Fremantle Ports and P & O Ports for the hire or use of the cranes at the Kwinana Bulk Cargo jetty.
53 Nor do I regard P & O’s conduct in continuing to use the cranes after 10 May 2002 as being conduct which adopted or agreed to the terms. The facsimile was sent as part of negotiations between Fremantle Ports and P & O Ports for the use of a new crane. It was not sent to record the agreement for the use of the existing crane. Further P & O Ports' contractual relationship was with Wesfarmers CSBP. It was under that contract that it was using the cranes. Fremantle Ports had another contract with Wesfarmers CSBP. The conduct of P & O Ports of using the cranes after 10 May 2002 was not adopting or agreeing to the terms contained in the facsimile, but continuing to perform services under its contract with Wesfarmers CSBP.
54 Fremantle Ports had not made out its claim in contract against P & O Ports.
Existence and content of duty of care
55 As it had the exclusive control of the Kwinana Bulk Cargo jetty Fremantle Ports was the occupier of the jetty. By s 5 of the Occupier's Liability Act 1985 it owed to Mr Mills a duty to exercise reasonable care for his safety in respect of dangers due to the state of the premises or anything done or omitted to be done on the premises.
56 There was no contractual relationship between any of the parties to this action. Mr Mills had a contract with Clean Sweep. Fremantle Ports had contracts with Wesfarmers CSBP and Clean Sweep. P & O Ports had a contract with Wesfarmers CSBP.
57 The existence of a contract does not preclude the existence of a duty of care in tort but a contract can be relevant to the existence and content of that duty: Donoghue v Stevenson [1932] AC 562, Voli v Inglewood Shire
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- Council (1963) 110 CLR 74; Byran v Maloney (1995) 182 CLR 609 and Miller v Paua Nominees Pty Ltd [2004] WASCA 220.
58 Reasonable foreseeability of the kind of injury that has been suffered is a necessary but not sufficient condition of the existence of a duty of care to the person who has been injured. Foreseeability may be relevant to questions of the existence and scope of a duty of care and breach of that duty. Reasonable foreseeability is to be applied with due regard to the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated: Tame v New South Wales (2002) 211 CLR 317; Miller v Paua Nominees Pty Ltd (supra).
59 Both Mr Stainton and Mr Kelly gave evidence that they had never before seen a crane move other than when it was in use. They had both previously worked in windy conditions. I accept their evidence. However in my view the fact that they had not previously seen a crane move as occurred on 17 October is not at all surprising because the usual practice was that the cranes were pinned down when they were not in use. On 17 October each of Mr Stainton and Mr Kelly knew that the cranes were not pinned down because the fertiliser on the wheels and tracks did not allow the cranes to be moved to a position where they could be pinned down and that it was a windy day. In those circumstances it was reasonably foreseeable to both men that the wind might move a crane that was not pinned down along the rail tracks.
60 The cranes were very large and heavy objects. They had the capacity to cause serious injury or even death if they moved when not being controlled by an operator. The risk of injury could have been removed simply and with little risk to other workers. One would have been to clean the wheels of the cranes and the tracks between the cranes and the closest position to which they could be pinned down before doing any other cleaning. The cranes could then have been moved to a position where they could be pinned down and, once they were pinned down, the balance of the cleaning could have been completed in safety.
61 Another method of removing the risk would have been to secure the cranes by tying them down, or to fixed objects, with ropes and wires. The cleaning could then have been completed without the risk of the cranes moving.
Conclusions as to liability
62 The cleaning of the jetty and the cranes was being handled by Fremantle Ports. It was Fremantle Ports which arranged for Mr Mills to
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- attend at the jetty and it was Mr Stainton, an employee of Fremantle Ports, who told Mr Mills what he was to do. Mr Stainton told Mr Mills to sweep along the edge of the wharf while Mr Stainton and his crew were at lunch. This task required Mr Mills to concentrate on the control of his vehicle while he was near to the tracks along which the cranes moved.
63 In my view it was negligent of Mr Stainton to permit Mr Mills to undertake that task when it was foreseeable that the crane could move in the wind.
64 I have concluded that it was foreseeable to Mr Kelly that the crane could move when it was not pinned down. Mr Kelly did not notice Mr Mills’ truck until after the accident. I have concluded that was because he was not the person who was co-ordinating the cleaning of the wharf. Nevertheless Mr Kelly knew that people would be on the jetty cleaning it when the crane was not pinned down. In those circumstances it was foreseeable that a worker could be injured if the crane moved. In my view Mr Kelly owed a duty of care to the class of people of whom Mr Mills was a member, namely people cleaning the jetty.
65 While the cleaning of the jetty and the cranes was Fremantle Ports'’ responsibility Mr Kelly and Mr Whale were the people who were able to move the cranes. I conclude that Mr Kelly was also negligent in allowing Mr Stainton to carry out the cleaning of the cranes, other than just the wheels, before they were secured in position. If Mr Kelly had told Mr Stainton that he could not clean the cranes in the unsecured position, but that only the wheels and a portion of the track were to be cleaned until they were secured or that the cranes were first to be secured by ropes and wires, it is likely that Mr Stainton would have agreed. If that had occurred then the risk of injury to workers on the jetty, including Mr Mills, would have been reduced and Mr Mills would not have been injured.
66 It is my view that Fremantle Port's responsibility for the accident, both in terms of relative importance of its acts for it occurring and culpability, is far greater than that of P & O Ports. I reach that conclusion bearing in mind that it was Mr Kelly and Mr Whale, not Mr Stainton or his crew, who could move the cranes. I have reached the conclusion because the cleaning operation was the responsibility of Fremantle Ports, because Mr Stainton did not accept Mr Kelly's suggestion to clear the wheels and tracks and then move the cranes to positions where they could be secured and because Mr Stainton told Mr Mills to continue working on the jetty while Mr Stainton and his crew took their lunch break when
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- Mr Stainton knew that the cranes were not secured. I apportion responsibility for the accident 80 per cent against Fremantle Ports and 20 per cent against P &O Ports.
67 Each defendant claimed that the accident was caused or contributed to by Mr Mills' negligence. Mr Mills was concentrating on the task he was on the jetty to perform. There was no reason for him to be doing anything other than he was doing. P & O Ports contended that Mr Mills was negligent in failing to wear a seat belt, but in my view as he was operating the truck on the jetty and not driving on a road it was not reasonably necessary for him to wear a seat belt. Further there is no evidence that a seat belt would have reduced the injuries that he suffered. I conclude that Mr Mills was not negligent.
Damages
68 After the accident Mr Mills went home. He was very stiff and very sore. The next day he saw Dr Raj Patel, a general medical practitioner. Mr Mills appeared to Dr Patel to be in obvious discomfort. He had tenderness of the neck muscles and the trapezius. He was also tender in the lower thoracic and upper lumbar spine, worse on the left than on the right. Dr Patel diagnosed Mr Mills as having suffered soft tissue injuries, for which Dr Patel prescribed medication. Dr Patel certified that Mr Mills was unfit for work. Mr Mills saw Dr Patel again on 21 October 2002. There had been some improvement in Mr Mills' condition, but in Dr Patel’s opinion he was still unfit for work.
69 On the same day Mr Mills consulted Mr Michael Belbin, who was his family general medical practitioner. Dr Belbin found that Mr Mills had reduced movements of his neck and back, reduced straight leg raising and he appeared to be obviously in pain. Dr Belbin diagnosed Mr Mills as having suffered a whiplash type of musculoskeletal injury. Between October 2002 and 7 October 2005 Mr Mills continued to see Dr Belbin, who prescribed medication and physiotherapy and referred Mr Mills to specialist medical practitioners.
70 Dr Belbin recommended that Mr Mills return to part time work in November 2002. Mr Mills did so. His truck had been damaged beyond repair in the accident and he hired a truck from Clean Sweep. Mr Mills commenced working three hours a day and gradually increased the number of days he worked to approximately six hours a day. Prior to the accident he had worked approximately 12 hours a day.
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71 Mr Mills used cushions to try to make himself more comfortable when he was operating the truck. In addition to operating the truck Mr Mills had to do a lot of maintenance on the truck, its bin and its brushes. Mr Mills's evidence was that he found that these tasks caused him pain and discomfort and he could not perform them. His evidence was that although he tried to continue working as an operator of the road sweeper truck he was unable to do so.
72 The business had been a good source of income for Mr Mills and his family and so his wife tried to operate the truck. Mrs Mills' evidence was that she found that the conditions in the truck were too uncomfortable for her to do the work.
73 Mr Mills acquired a replacement truck and in September 2003 he sold the business with the truck. Mr Mills did not work for approximately three months. In February 2004 he commenced part time butchering work. He did that work until towards the end of 2004, but his evidence was that he was expected to lift weights that he was not capable of lifting. Mr Mills ceased working as a butcher and commenced doing child care work at home. Mrs Mills retrained and now works as a youth drug and alcohol counsellor.
74 Prior to the accident Mr Mills had an active social life. His evidence was that now finds that he does not enjoy social activities and he does not go out unless he has to. He used to participate in the domestic chores and enjoy gardening. His evidence was that he is very restricted in these activities since the accident. His evidence was that before the accident he was a calm and sociable person and since the accident he has become short tempered and unsociable.
Evidence of health practitioners
75 Dr Belbin saw Mr Mills on 5 May 2007. He had not treated Mr Mills since 7 October 2005. Dr Belbin assessed Mr Mills as suffering persistent pain. He is capable of physical activity, but it can cause him discomfort. Dr Belbin considers Mr Mills to be suffering from depression as well as pain. He thinks that Mr Mills is not much better than when Dr Belbin first saw him, if anything he is in a little more pain. In Dr Belbin’s opinion Mr Mills will have to live with pain in the future.
76 Dr Philip Finch, a specialist in pain medicine, saw Mr Mills in April 2003 and on several occasions after the initial consultation. Dr Finch last saw Mr Mills on 8 May 2007. It is Dr Finch's opinion that Mr Mills has ongoing mechanical pain from the mid thoracic region
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- which incapacitates him from driving a sweeper truck or any road vehicle as any bumps or rough surfaces would exacerbate his symptoms. Dr Finch does not envisage Mr Mills returning to heavier duties of truck driving or road sweeping. Dr Finch’s opinion is that the changes to Mr Mills following the accident are permant.
77 In April 2003 Mr Mills saw Dr Bryan Suter, a clinical psychologist. Dr Finch had referred Mr Mills to Dr Suter. Dr Suter saw Mr Mills between April 2003 and June 2003. He assessed Mr Mills as experiencing difficulty adjusting to his injuries and reduced physical capacity. Mr Mills' symptoms were consistent with an adjustment disorder with associated depressive features.
78 Dr Suter reviewed Mr Mills in March 2007. Mr Mills had been prescribed antidepressant medication by his medical practitioner. Dr Suter felt that Mr Mills' mood had stabilised and that he was coping well and that Mr Mills' mental state should improve gradually.
79 On 18 November 2004 Mr Thomas Berrigan, a consultant in pain medicine and anaesthesia, saw Mr Mills. He assessed Mr Mills as having had a non-specific spinal injury caused by the accident in October 2002. Mr Berrigan performed facet joint injections, which provided only temporary pain relief. In Mr Berrigan’s opinion Mr Mills has suffered a reduced capacity to return to full unrestricted pre-injury employment.
80 On 10 February 2005 Dr Andrew Marsden, an occupational physician, saw Mr Mills. Dr Marsden also saw Mr Mills on 2 April 2007. On that occasion Dr Marsden understood Mr Mills not to be working. In fact Mr Mills was doing child day care work. I conclude that there was an honest misunderstanding between Dr Marsden and Mr Mills. Dr Marsden's opinion is that Mr Mills has a modest disability for work as a result of the accident. Dr Marsden is familiar with road sweeper trucks and, in his opinion, Mr Mills is capable of working full time as an operator of a road sweeper truck.
81 On 12 April 2005 Mr Mills saw Dr Bob Warner, an occupational physician. It is Dr Warner’s opinion that Mr Mills has suffered injuries to his cervical, thoracic and lumbar spine which are very disabling.
82 In May 2006 Mr Soni Narula, neurosurgeon, saw Mr Mills on referral from Dr Patel. Mr Narula saw Mr Mills in June and September 2006. Mr Narula explained to Mr Mills that surgery would not assist his symptoms and the best course for him to follow was to walk regularly and to undertake regular exercise.
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Conclusions as to Mr Mills’ condition
83 It is my assessment of Mr Mills that he was an honest witness and a person who has done his best to work and earn income since the accident. Mr Mills acquired another truck after the accident to replace the truck that was damaged in the accident. I accept his evidence that he did so to enable him to sell the business.
84 I have had regard to Dr Marsden's evidence and his familiarity with road sweeping trucks. I have nevertheless concluded that having regard to the evidence of Mr Mills and my assessment of him, together with the evidence of Dr Belbin, Dr Finch, Mr Berrigan and Mr Warner, that Mr Mills is incapable of performing heavy work and that he is unable to work as the operator of a road sweeper truck. I have concluded that Dr Marsden has under-estimated the consequences of the accident for Mr Mills, including the physical symptoms he suffers.
85 I accept Mr Mills evidence as to the consequences of the accident. I conclude that he is incapable of doing heavy physical work and is incapable of operating a road sweeper truck. He is fit for light work and his condition now is permanent.
Assessment of damages
86 Mr Mills carried on the cleaning business in partnership with his wife. However all of the activities of the business were performed by him and the income earned by the business until the accident was the exercise of his income earning capacity. I assess Mr Mills’ loss of earning capacity on that basis, bearing in mind that in the assessment of his earning capacity he is not to be given the income tax benefit of splitting income which being in partnership provided to him: Husher v Husher (1999) 197 CLR 138. For the financial year ended 30 June 2002 the business earned a profit net of expenses of $56,809. Mr Mills' after tax income in that year was $23,708, which equates to $456 a week. Mr Mills commenced carrying on their business on 7 January 2001. In the year ended 30 June 2001, in which year Mr Mills split his income with his for half a year, Mr Mills' after tax income was $33,943, $652 a week. Mr Mills claims that his pre-accident income earning capacity was $800 a week. In my view that is a reasonable claim and I assess his damages on that basis.
87 In the year ended 30 June 2003, part of which was before the accident, Mr Mills' after tax weekly income was approximately $430. In the three subsequent years it was approximately $238, $355 and $229. I
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- assess Mr Mills' retained earning capacity at $300 a week. His weekly loss is therefore $500 and his past loss is $122,285. Interest on that past loss at 3 per cent a year is $17,205.
88 Mr Mills is aged 45 and there are 19½ years until he reaches the retirement age of 65. The multiplier for 19½ years is 607.9. The future loss, before a reduction for contingencies, is $303,950. I make a deduction of 6 per cent for contingencies and assess the future loss at $285,713.
89 I make no allowance for loss of superannuation benefits, because Mr Mills was in partnership and there was no employer obliged to provide superannuation benefits in addition to the payment for the cleaning services provided.
90 While there has been restriction in Mr Mills' capacity to undertake activities at home I am not satisfied that he has established that his injuries have created a need for services which have been voluntarily provided by Mrs Mills. The loss of enjoyment of domestic activities such as gardening is to be included in his general damages: Maiward v Doyle [1983] WAR 210.
91 Past medical expenses were agreed at $5,500. While there will be the need for some future medical review and treatment I am not satisfied that there will be significant future treatment required and I allow $1,000 for future treatment costs and travelling.
92 Mr Mills has suffered a significant reduction in his enjoyment of life as a result of the pain and restrictions that were caused by the accident. His work, home and leisure activities, and his enjoyment of them, have all been impaired and will be impaired for the future. I assess his general damages at $30,000.
Summary
93 I find that both Fremantle Ports and P & O Ports have negligently caused the injuries suffered by Mr Mills. Fremantle Ports is not entitled to contractual indemnity from P & O Ports. I apportion responsibility 80 per cent against Fremantle Ports and 20 per cent against P & O Ports.
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94 I assess damages as follows:
Past loss of earning capacity: $122,285
Interest: $17,205
Future loss of earning capacity: $285,713
Past medical expenses: $5,500
Future treatment costs: $1,000
General damages: $30,000
Total: $461,703
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