Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd

[1994] FCA 918

JUDGMENT No. ........ ... q18 .... ./ .. ?V .. ....

ICT BEGISTRY i 1

ON APPEAL FROM A JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN :  PONDCIL PTY LIMITED

and STARLINE RENTALS

PTP LTD

17 RECEIVED M , q Appellants

AND:	TROPICAL REEF SHIPYARD
PTY LIMITED
Respondent

C O W :	WILCOX, SPENDER h HILL JJ
PLACE:	BRISBANE
DATE:	10 NOVEHBER 1994

WILCOX J: In my view the appeal must be dismissed. I do not

see any necessity or advantage in going through the matters of fact found by his Honour. They have not been challenged in any material respect today.

duty had been carried out in a proper way, the respondents

The primary argument put by the appellants is that his Honour erred in failing to deal with the case on the basis that the respondent was under a continuing duty of supervision after the ship had been unslipped and taken to the Trinity wharf. It is said by counsel for the appellants that, if that

would have realised that the stern tube had not been fully filled with grease and accordingly one of the two essential pre-conditions for the damage would not have occurred. Counsel concedes that there was no express agreement between the parties that Mr Allderice, or anybody else on behalf of the respondent, should have a continuing role in the work that was being done by Mr Laskey, the appellant's employee, at Trinity wharf. No doubt it would have been easy for an arrangement to that effect to have been made. Apparently Trinity wharf was only a few hundred metres from the slipway

and there would have been no great difficulty in Mr Allderice

going across there and inspecting what was done. But the fact is, apparently, that no such agreement was made. Accordingly the appellant has to fall back on an implication of such a duty.

I do not see that the law implies such a duty. There is no problem about an implied duty of supervision and care in respect of work that is done in the premises of a service provider such as a shipyard; nor if work is done by

case here. I see no facts which would enable a court to imply	the employee of the service provider. But that was not the
a continued duty of supervision in the present case. Problems must immediately arise as to the extent of any such duty, if the Court sought to fashion the bargain which, to use the language of the cases, "it goes without sayingu the parties intended. In short, it is my opinion that there is simply no
basis upon which it can be said that the respondent had any

further obligation in respect of the work done after the ship left the wharf, except of course in respect of any particular matters which it was asked to carry out.

Now, in fact that did happen in one respect. The evidence is clear that there was a problem of overheating of a bearing. This was drawn to Mr Allderice's attention, apparently some hours after the ship left the slipway. He gave evidence that, when he went to the Trinity wharf, he had a conversation with Mr Laskey and Mr Laskey told him that he had tightened the gland. Mr Allderice found that the gland was too tightly packed and he rectified the problem. He said in evidence that he assumed at that time that the stern tube

was fully greased. It would appear that assumption was wrong.

At one stage of the argument I thought there might

be some ability in the appellants to argue that what Mr

Allderice saw at that time should have put him on notice that the stern tube was not fully greased; but it is conceded by counsel for the appellants that no such case can be made out.

Accordingly, there is no basis for a finding there was some	active casual negligence by Mr Allderice on the occasion of
his visit to the Trinity wharf for which the respondent is vicariously liable.
The other matter that was raised concerns Allderice permitting the ship to be taken from the slipway to Trinity wharf, knowing that the stern tube had not been greased. It seems to have been common ground at the trial that everybody
knew this work had not been done. It is also clear that Mr
Allderice gave Mr Laskey five cartridges of grease and told him this would suffice to get the boat safely to Trinity
wharf. It was not put to M r Allderice at the trial that this
assessment was incorrect. Nor was there any evidence put to the effect that more than five cartridges were necessary, whether expert evidence or evidence of the people involved. I see no basis for thinking that a case of casual negligence in respect of that matter could have been made out. But, whether or not it could have been made out, it is sufficient to say that no such case was even attempted at the trial. There is certainly no basis on which this Court should intervene. In my view the appeal must fail. I would dismiss the appeal with costs.
SPENDER J: I agree.
HILL J:  I also agree.

WILCOX J: The order of the Court will be that the appeal be dismissed and that the appellants pay the respondent's costs.

I certify that this and the preceding three (3) pages
are a true copy of the Reasons for Judgment

of the Court.

Associate:

Dated:  10 November 1994

APPEARANCES

Counsel for the Appellants:	J D M Muir QC and W Gillies
Solicitors for the Appellants:	Phillips Fox
Counsel for the Respondent:	A Philippides
Solicitors for the Respondent:	Murrell Stephenson
Date of hearing:	10 November 1994