Taylor v Hanseatic Marine Engineering Pty Ltd - [2012] WADC 136

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TAYLOR -v- HANSEATIC MARINE ENGINEERING PTY LTD [2012] WADC 136

CORAM: DAVIS DCJ

HEARD: 12-16 MARCH 2012

DELIVERED : 12 SEPTEMBER 2012

FILE NO/S: CIV 394 of 2010

BETWEEN: TROY MARTIN TAYLOR
Plaintiff
AND
HANSEATIC MARINE ENGINEERING PTY LTD
Defendant

Catchwords:

Tort - Negligence - Employer's liability - Employee working overseas on yacht and injured when travelling on a tender from harbour to the yacht - Whether foreseeable risk of injury - Whether breach of duty - Casual act of negligence - Causation - Assessment of damages - Turns on own facts

Legislation:

Occupational Safety and Health Act 1984
Workers' Compensation and Injury Management Act 1981

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr J R Criddle
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: Bradford & Co
Defendant: Clayton Utz

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

Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (2007) 34 WAR 109
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Australian Mutual Provident Society (1934) 50 CLR 581
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 225 FLR 1
Bennett v Minister of Community Welfare (1992) 176 CLR 408
City of Stirling v Tremeer (2006) 32 WAR 155
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Grainger v Williams [2009] WASCA 60
Howells v Murray River North Pty Ltd [2004] WASCA 276
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
J-Corp Pty Ltd v Coastal Hire Pty Ltd [2009] WASCA 36
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309
Kerr v Minister for Health [2009] WASCA 32
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 116
Montemaggiori v Wilson [2011] WASCA 177
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110
New South Wales v Fahy (2007) 232 CLR 486
Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19
Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Re; Ex parte Brien v Doyle (1993) 41 FCR 40; (1993) 112 ALR 653
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Town of Mosman Park v Tait [2005] WASCA 124

DAVIS DCJ: In January 2008 the plaintiff, Mr Taylor, commenced work as an electronics designer for the defendant, Hanseatic Marine Engineering Pty Ltd. Hanseatic carried on the business of building boats in Henderson, Western Australia.
About 10 weeks after the commencement of his employment, Mr Taylor was directed by his employer to fly to France to work on the electronic system of a yacht, the MY Silver. This was a luxury yacht, including tender vessels, which had been built by Hanseatic the previous year. In fact, Mr Taylor had worked on the electronic cabling on this yacht in a part-time capacity before he started full-time work as an employee of Hanseatic in January 2008.
Initially, Mr Taylor worked on the electronic systems of the yacht while it was in harbour and then on dry dock at the port of La Ciotat in the south of France. Mr Taylor was then asked by his employer to remain with the yacht until a problem with a satellite receiver was resolved. The yacht travelled to Cannes and then to Monaco with Mr Taylor on board.
On 5 May 2008 the yacht anchored outside the harbour entrance at Monaco. The next morning, 6 May 2008, Mr Taylor went into Monaco and was conveyed there by a tender from the yacht. The journey from where the yacht had moored to Monaco harbour was uneventful. During the return journey, however, Mr Taylor suffered an injury to his back.
Mr Taylor has claimed damages against Hanseatic for his injuries and consequential loss, claiming that Hanseatic breached the non‑delegable duty it owed to him to provide and maintain a safe system of work, a safe place of work, safe plant and equipment and a safe means of access to and egress from his workplace.
Hanseatic, while admitting that it owed Mr Taylor a non‑delegable duty to take reasonable care to avoid exposing him to unnecessary risk of injury, denies that it breached that duty. It is said that Mr Taylor's injury occurred in the unique circumstances of that tender journey for which Hanseatic did not fail to breach its duty as employer.
Both liability and quantum are in issue.

Liability

General principles relating to an employer's duty of care

The general principles relating to an employer's duty of care were reviewed by the Court of Appeal in Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 (Placer) and Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19 (Parlin). From the judgment of Pullin JA in Placer (with whom Newnes JA and Mazza J agreed) and Murphy JA in Parlin (with whom Mazza JA agreed) and other authorities where I have noted these, the relevant principles can be summarised as follows.
The law imposes on an employer a common law duty to its employees to take reasonable care to avoid exposing its employees to 'unnecessary risk of injury'. The duty is that of a reasonably prudent employer and it is not a duty to 'safeguard a worker completely from all perils': Placer [19]; MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110 [42], [43] (Pullin JA) and [156], [157] (Murphy JA), applying Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12] and Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [19].
That duty encompasses an obligation to take reasonable steps to provide a safe system of work. Discharge of the duty requires the employer to warn employees about work hazards of which it knew, or ought to have known. It also extends to guarding against foreseeably inadvertent and negligent conduct on the part of others: Placer [17].
A system of working normally implies that the work consists of a series of similar or somewhat similar operations: Placer [24], [25], [26] (referring to Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424).
The duty also encompasses an obligation to take reasonable steps to provide safe plant and equipment to enable employees to carry out their work safely: Parlin [64], [65].
The duty of care is non-delegable. As a result the duty has sometimes been described as 'strict liability'. However, it is strict only in the sense that an employer is liable regardless of whether the employer has itself acted carefully. This means that an employer cannot escape responsibility for the discharge of the duty of care by delegating it to a third person. Labelling an employer's duty as 'non-delegable' does not affect the content of the duty. It does not convert the duty into an absolute liability to compensate an employee's injury under any circumstances and even if reasonable care was taken to avoid foreseeable risk of injury. In other words, is not a duty to preserve workers from all harm, but remains a duty to exercise reasonable care: Placer [19].
The non-delegable nature of the duty of the employer extends to the situation where an employee is working at the premises of another (for example, labour hire situations): Parlin [40] (Newnes JA) and [66] (Murphy JA). Accordingly, the fact that injury occurred, for example, on premises which the employer did not occupy does not mean that the employer has no duty of care. Nevertheless, the fact that the premises are in the control of a third party will be a relevant matter when considering whether the employer has taken reasonable care for the safety of the employee: Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 [18].
Negligence will be determined by what the employer knew or ought to have known. The negligence may be where the employer knows of the risk of injury, or where the employer knew or ought to have known of such risk. If the injury is caused by, or arises out of an unsafe system of work, it must be an unsafe system of which the employer was aware or ought to have been aware. The question of foreseeability is to be judged by asking what a reasonable person would have done to avoid what is now known to have occurred: Placer [21].
Where an employee is injured by the negligence of an employee of a third person, then there are two possible bases of establishing liability in the injured person's employer. One is where the employer is held vicariously liable for the negligence of the employee of the third person, on the basis that the third person's employee became an employee 'pro hac vice' of the injured person's employer. The other and most common way of a plaintiff establishing that the injured person's employer is liable, is to prove that there was a breach of the employer's personal duty of care: Placer [22].
Negligence of an employer by failing to provide a safe system of work involves establishing that there was a failure to provide, as the expression suggests, a system to avoid foreseeable risk of injury. An employer will be vicariously liable for a casual (that is, an isolated) act of negligence of an employee which results in an injury to a fellow employee: Placer [24].
However, the general rule is that an employer is not vicariously liable for casual acts of negligence of a worker who is not his servant: Placer [24], [67].
The distinction between an isolated casual act of negligence and the failure to provide a safe system of work equates to the distinction between the general and the particular, between the practice and method adopted in carrying on the employer's business of which the employer is presumed to be aware, and the insufficiency of which it can guard against, and isolated or day-to-day acts of which the employer is not presumed to be aware and which it cannot guard against: Placer [25].
I must not use the benefit of hindsight when considering what an employer in the position of Hanseatic ought to have done when it left Mr Taylor on the MY Silver. In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [65], [66] and New South Wales v Fahy(2007) 232 CLR 486 [57], the High Court emphasised the need to judge the issue of whether reasonable care was exercised without the benefit of hindsight and prospectively, and not retrospectively by asking whether certain actions, if taken by the defendant, could have prevented the plaintiff's injury.

The issues

Based on the pleadings and argument at trial, the claim by Mr Taylor that Hanseatic breached its duty of care centres around the fact that the tenders for the MY Silver were built without any hand rails for passengers in the bow of the boat where Mr Taylor had been seated.
The evidence in the form of photographs was that the tender did have a hand rail around the helm console and also, in the seats behind the console, there was a secure fitment which a passenger could hold onto. The allegation about which I am concerned is the absence of any hand rail or hand hold around the bow, for what was described as forward position passengers.
It is pleaded that in directing Mr Taylor to work on the yacht at sea, it was reasonably foreseeable that he would be required to access the yacht in the tender. It is further pleaded that Hanseatic knew or should have known that there was a risk of injury to Mr Taylor while he was being transferred on the tender between the yacht and port, and should have warned Mr Taylor of the risk of injury consequent upon the lack of hand holds on the tender. There was a specific pleading that the defendant's knowledge of the tender and an inspection of the tender would have revealed the danger to passengers due to the absence of adequate hand holds to persons seated in the position of Mr Taylor.
It was generally argued that there had been a failure by Hanseatic to provide a safe system of work and safe place of work, as well as plant and equipment because Mr Taylor was required to be on the tender and Hanseatic's obligations to Mr Taylor's safety included an obligation to ensure his safety while he was on the tender.
The accident is said to have occurred as a result of Hanseatic's negligence or breach of the contract of employment it had with Mr Taylor because it failed to:
(a)ensure that the tender had safety handles in the vicinity of Mr Taylor's seat;
(b)warn or advise Mr Taylor of the dangers of becoming airborne in the tender;
(c)secure the seat cushions to the seat;
(d)provide sufficient or adequate hand holds for Mr Taylor;
(e)provide a sufficient or adequate bulwark for use as a hand hold by Mr Taylor;
(f)otherwise secure Mr Taylor to the seat on the tender vessel;
(g)provide Mr Taylor with competent or adequate supervision;
(h)have in place a system of identification of risk in the allocation of work duties; and
(i)have in place a system to reduce or minimise risks of injury.
The particulars of negligence also included allegations that Hanseatic failed to ensure that Mr Taylor was attached to the tender by way of harness or straps, failed to secure or enclose Mr Taylor on the tender, failed to require him to wear a seatbelt, and failed to keep a proper lookout for his safety, however, these claims were specifically abandoned during the trial.
There were no details or particulars pleaded in relation to the matters I have set out in pars (g), (h) and (i).
The submissions by counsel for Mr Taylor were that Hanseatic knew that there was no appropriate hand rail or hand hold on the tender at the time that instructions were given to Mr Taylor to remain with the yacht. The case in negligence was put on the basis that a reasonable employer in the position of Hanseatic, with its knowledge about the absence of hand rails on the tender:
•Should have warned Mr Taylor of the absence of appropriate hand rails. Instructions should have been given to him that as a passenger on a boat that was to go into the open sea, he needed to properly secure himself and he should have been told to stand by the console (ts 27).
•Should have ensured that safety briefings were given to Mr Taylor. It was submitted that it would have been a simple thing for a director of Hanseatic to indicate to the captain of the MY Silver that in the event Mr Taylor was to go on the tender, he should be given a safety briefing. It was insufficient to effectively delegate the responsibility for Mr Taylor's safety to the captain (ts 28).
In the alternative to the claim in negligence it was pleaded that Hanseatic breached its obligations under section 22(1) of the Occupational Safety and Health Act 1984 (OSHA), and also that Hanseatic breached what is described as a duty pursuant to Australian Standard AS1799-1992, which deals with the general requirements for powerboats up to 15 m and the provision of substantial hand holds.
Hanseatic in its defence pleaded that in the exercise of reasonable care it was not required to give Mr Taylor induction or training in 'sea‑based' employment. It disputed that there was anything dangerous about the tender, pleading that there were adequate hand holds, and the seat cushions were securely fastened by press studs. It was pleaded that in the exercise of reasonable care Hanseatic was not required to guard against the particular circumstances that caused Mr Taylor's injury. Hanseatic did not know and had no reason to know about the singular very short journey in the tender and the circumstances of that voyage, the manner of use of the tender by Mr Taylor during the voyage, including his choice of seat and the manner of securing himself. Further it was pleaded that Hanseatic did not know and had no reason to know that Mr Taylor was exposed to any general risk of sufficient magnitude and potential severity from the possible use of the tender that required it, in the exercise of reasonable care to:
(a)ensure that the tender had special hand holds for Mr Taylor;
(b)give Mr Taylor any particular warning;
(c)secure the seat cushions to the seat;
(d)provide additional hand holds for Mr Taylor's particular voyage in the particular circumstances that occurred;
(e)provide a different bulwark;
(f)otherwise secure Mr Taylor to a seat;
(g)provide particular supervision for the single very short voyage;
(h)establish a special system to identify risk in using the tender on a single occasion;
(i)establish a special system to reduce or minimise risk from using the tender on a single occasion for a very short voyage.
In relation to the claim for the alleged breach of the OSHA it was pleaded on Hanseatic's behalf that the Act has no territorial application to events in Monaco, but if there is any such obligation, Hanseatic denied that it breached the section and pleaded that it did not have control of the tender.
There is a presumption of law that legislation is not to have foreign application (an extension of the general presumption against legislation operating extraterritorially): Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363; Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581, 601; Re; Ex parteBrien v Doyle (1993) 41 FCR 40; (1993) 112 ALR 653. This is, of course, a presumption and I need to determine whether there is anything in the OSHA which would indicate a contrary intention and operation.
The section of the OSHA relied upon s 22, relates to the duties of persons who have control of workplaces. It provides:
(1)A person that has, to any extent, control of —
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b)the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
What is 'practicable' and what is a 'workplace' is defined in s 3 as:
workplace'' means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self‑employed persons work or are likely to be in the course of their work.
'practicable' means reasonably practicable having regard, where the context permits, to
(a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
(b)the state of knowledge about —
(i)the injury or harm to health referred to in paragraph (a);
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health;
and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii).
Arguably, given the definition of 'workplace' which includes a ship, the obligations of an employer under s 22(1) would extend to the MY Silver where Mr Taylor was working, as a Western Australian employee for a Western Australian employer, so that the OSHA has extraterritorial application. However, from a practical point of view a determination of whether s 22(1) of the OSHA has been breached, involves similar considerations to those which are taken into account in determining whether there has been a breach of the employer's common law duty ie, what response is required from an employer to a risk of injury of which it knew or ought to have known: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 [30] ‑ [36]; MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) [50]. In other words, the plea of a breach of the OSHA really adds nothing to the claim in negligence: Howells v Murray River North Pty Ltd [2004] WASCA 276 [29], [67].

In relation to the claim for the alleged breach of the Australian Standard, an Australian Standard has no legal application unless adopted and applied by statute or by contract. An Australian Standard may, however, be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the construction of a building or, as in this case, a vessel, constitutes a danger which must be guarded against by the exercise of reasonable care. Failure to follow a standard does not, without more, establish negligence: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) [69], [70]. As stated by McHugh J in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110] in respect of the application of Australian Standards, they are a guide to, but they cannot dictate, the standard of reasonable care required in the circumstances of individual cases.
In any event this is not a case of manufacturer's liability. Such a claim was not pleaded. This is a claim confined to common law principles relating to an employer's duty of care to its employee. There is also no claim based on any vicarious liability of the employer.
Based on the pleadings and the arguments raised by each of the parties during the course of the trial, the following are the issues which I consider must be addressed in determining liability:
(a)What instructions were given by Hanseatic to Mr Taylor concerning his work?
(b) Why was the journey on the tender taken by Mr Taylor and on whose instruction?
(c) How did Mr Taylor's back injury on the tender happen?
(d) Was there a danger in the tender because of the absence of hand holds?
(e) Was it foreseeable that injury to Mr Taylor might occur on the tender?
(f) What, if any, steps as were reasonable in all the circumstances should Hanseatic have taken to provide reasonable protection to Mr Taylor?

Instructions from the defendant to the plaintiff concerning his work

On this issue the only evidence was from Mr Taylor. I regarded him generally as a credible and reliable witness and the following are my findings which, except where otherwise stated, are based upon his evidence which I accept.
Mr Taylor first worked on the MY Silver while it was tied to the wharf at La Ciotat and still in the water. Within a day or so of his arrival it was taken onto dry dock. From Saturday 19 April until Saturday, 3 May 2008 he worked on warranty repairs for the audiovisual and satellite equipment on the yacht, replacing components that had failed.
On 3 May 2008 he had a discussion with one of the directors of Hanseatic, Mr David Woods. There was another company, Alfatron, carrying out repairs to the satellite communication system which had not completed its work. It was taking longer than anticipated to carry out the repair works and extra parts were needed. Mr Taylor was asked by Mr Woods to remain on the MY Silver until the satellite communication system was repaired to the satisfaction of the owner.
Mr Taylor was told by Mr Woods that the yacht was going to Monaco. Mr Taylor was concerned that if the yacht was docked (in harbour) that would affect how the satellite communication system repairs were completed. This, he explained, was because the construction of the mast was done in several levels or platforms made of aluminium and some of these platforms sat above the satellite communication system antennas. At a particular point when the yacht was on a particular heading, if the satellite communication dishes were trying to track a satellite the layers of mast above the antennas would cause what is known as a 'shadow' and prevent the equipment from communicating with satellites. If the yacht was stationary in port in a particular direction, the shadow would permanently stop communications. If the yacht was at sea, it could be manoeuvred so that the shadow would not impact on the communication and the satellite dishes could then track satellites. As part of the service work, the yacht was required to manoeuvre in circles to confirm that the satellite dishes actually were tracking. In other words, the yacht needed to be out of harbour to manoeuvre in order to test that satellite signals were being picked up.
Mr Taylor was told that the yacht was not going to be docked inside the harbour and was going to be anchored outside of the harbour at Monaco.
The instructions which Mr Taylor said he was given by Mr Woods was to take all direction from the captain, that effectively the captain was Mr Taylor's direct supervisor. Mr Taylor also added that he was to follow any instructions by the owner directly to make sure that the owner was happy. The owner we heard was Mr Guido Krass. In cross‑examination Mr Taylor agreed that he had been told he would be under the command of the captain and he accepted that if he was on a vessel the captain is in command. While Mr Taylor denied that he was not told to take directions from the owner, he later stated in cross‑examination that he was just told simply to follow the captain's directions whilst on the vessel (ts 98).
I find that the instructions which Mr Taylor was given by Mr Woods was to take direction from the captain. While I accept that Mr Taylor was told that it was important to keep the owner happy, I am not satisfied on the balance of probabilities that he was specifically instructed to take directions from the owner.
The captain was Nicolas Popinet. I will refer to him as the captain.

Why was the journey on the tender taken and at whose instruction?

The only evidence about this was, again, from Mr Taylor.
On arrival at Monaco the MY Silver anchored some 300 m from the shore and about 500 m from the entrance to the harbour.
In his examination‑in‑chief Mr Taylor's evidence was he was approached by the captain and told that the owner was upset that there was no internet communication on board the vessel and he wanted a secondary system activated or put into service. That system required local SIM cards from Monaco Telecom in order to work. The captain asked Mr Taylor to accompany him ashore to oversee and make sure that the correct SIM cards were purchased for the transceivers on board the vessel.
In cross-examination, however, Mr Taylor agreed that in fact it was the owner who requested he travel ashore and not the captain. I find that the journey was undertaken at the request of the owner.
Mr Taylor also agreed that Mr Woods from Hanseatic did not instruct him to buy SIM cards, did not instruct him to go to Monaco or buy anything and did not instruct him to do anything onshore in Monaco. All he did was to ask Mr Taylor to oversee the work that had to be completed on the MY Silver.

How did Mr Taylor's back injury on the tender happen?

Although it was the owner, and not the captain, who asked him to make this journey into Monaco, Mr Taylor's evidence was, however, that the captain was on board the tender on this journey. The captain did not operate or drive the tender. That was done by a crewman by the name of Oskar Oskarsson. Also making the journey on the tender was the head steward Hristiyan Dimitrov and as he was referred to in the evidence as Christian, I will also refer to him as Christian.
This was not the first time Mr Taylor had travelled on this tender. The day before, when the MY Silver had been at Cannes, he had travelled into shore in order to purchase a travel bag for his work tools.
On this journey into Monaco, Mr Taylor sat on the same seat he had sat in the previous day on the tender for the journey into Cannes. This was at the right hand (starboard) side at the front (bow) of the tender, near the front of the helm console.
Christian sat directly opposite Mr Taylor. Oskar Oskarsson was at the helm of the vessel (that is at the console) and the captain stood next to him at the console. It took approximately five or six minutes to get to the harbour. There was some swell and rain and slight or light winds from behind.
Nothing unusual occurred in that journey. Mr Taylor described the trip from the MY Silver to Monaco as an uneventful and safe trip. Although the captain was standing next to Mr Oskarsson at the helm, Mr Taylor said he could not see that the captain was holding on to a rail around the top of the helm console and he did not see there was a rail there. This is one aspect of Mr Taylor's evidence with which I have some difficulty. The rail around the helm console is obvious and this was not the first time he had travelled on the tender. However, for reasons which will become apparent, this will not affect my findings.
After the business of obtaining a SIM card in Monaco was completed, Mr Taylor, the captain and Christian walked back to the pier where the tender was waiting with Mr Oskarsson at the helm. Mr Taylor boarded the tender and sat on the same seat that he had sat in on the inward journey. Christian sat again opposite him. The captain remained on the pier and did not board. He was going to return later in the day.
Mr Taylor described how the tender left the pier fairly slowly. Once reaching the front of the harbour the tender increased in speed. Then once past a sea wall on the right-hand side, the sea was quite choppy and Mr Taylor could see white on the top of the waves. Mr Taylor estimated the wave height was close to half a metre. He described how the tender again increased in speed from that point, making a direct line for where the MY Silver was at anchor. The wind and the waves were approaching the tender from the right-hand side. There was also some spitting rain.
There were, therefore, two increases in speed – the first after coming out of the mouth of the harbour and the second increase in speed after passing the end of the sea wall.
Only 30 or 40 seconds later there was what Mr Taylor described as a 'bump'. Mr Taylor grabbed the seat he was sitting in. He looked around in front of him and there was nothing within reach for him to hold on to. His evidence was that as soon as he became aware there was nothing for him to hold onto there was a second larger bump. He was lifted out of his seat. He was at this time holding on to the back of the seat and as he was lifted out of his seat, the seat cushion came away and then 'there was a larger bump that had thrust me out of my chair into the air and I struck the deck of the tender with my bottom, immediately in front of where I was sitting where my feet were previously'.
The evidence from the experts called by each of Mr Taylor and Hanseatic was that a common method of securing seat covers was by Velcro or stud fastening. Mr Gavin Waugh, a consultant in occupational safety and health who also had maritime experience, was called on behalf of Mr Taylor and Mr Christopher Hutchings, a qualified naval architect, was called on behalf of Hanseatic. Mr Waugh gave evidence that cushions secured by Velcro strips was very commonly done in the marine industry (ts 189). Press studs was another way of securing cushions, but this was less common and less favoured these days because they are more difficult to fit and there are corrosion risks (ts 230). Mr Hutchings stated that it is not unusual for cushions on a vessel to be secured in this manner (ts 319).
Mr Taylor described how he had been sitting on his seat before the seat cushion had come away. He said: (ts 66)
I turned in my seat, so instead of facing the opposite side of the vessel, I turned about 45 degrees in my seat and I had my right arm along the top of the seat, which is the cushion, and my left hand was between the seat cushion, the seat back cushion of the seat I was on and the seat in front of me, and my right leg was slightly off the deck. My left leg was grounded immediately in front of me and I was facing slightly forward.
---When we were into the wind and the water was coming a - the - the - the wash from the ocean and the rain and the wind was hitting me on the back, and so I turned into that and gripped the seat or put my hand near the seat, and after the first bump, I turned more to actually grab the seat because there was nothing within my view that I believed would - I could hold onto and stop myself from - from moving about.

Mr Taylor was cross-examined concerning a narrative account he had given in an Incident Report Form he had completed and signed (exhibit 48). In the Incident Report he stated he recalled an increase in speed and that the tender was pounding the oncoming waves quite violently. In his evidence, when that passage was put to him he agreed that this happened before he was thrown in the air (ts 107). Mr Taylor elaborated on this by saying 'we pounded the first wave and then the second wave and then I was out of my chair by that stage. It was a matter of seconds'. His belief was that the tender struck an oncoming wave very hard and the boat slammed upwards, although he did not see the wave.
Mr Taylor described how, as soon as he had struck the deck, he became aware of very intense pain radiating up through his back. He had come to rest with his back almost against the front of the seat. Christian had also fallen from his seat and landed on his knees and hands immediately in front of Mr Taylor. Mr Oskarsson stopped the tender. Mr Taylor was asked whether he was okay. He was not, of course, as he had hurt his back and was in a lot of pain. Mr Taylor lay on the deck while the tender proceeded to the MY Silver. When it was obvious that Mr Taylor was in so much pain he could not be removed from the tender onto the yacht, he was taken back, on the tender, to Monaco harbour. On arrival at the pier, he was met by paramedics and then transported to hospital. The captain was also waiting at the pier and he travelled with Mr Taylor to the Princess Grace Hospital in Monaco.
Mr Taylor agreed in cross-examination (ts 107) that the boat was travelling at a speed that was unsafe for conditions of the day, in other words the tender was travelling too fast. Hanseatic relies on this evidence, however, I also heard evidence that Mr Taylor had very little experience, if any, at sea. I am not sure what, if any, weight I can place on Mr Taylor's conclusions.
I am, however, able to gain some assistance from other evidence in this case, including expert evidence.
Apart from his experience in occupational health and safety, Mr Waugh gave evidence of experience of travelling on seagoing vessels since 1965. He frequently operated small craft in and out of Fremantle and spent many years sailing in and out of Perth waters. His experience enabled him to give evidence in relation to what happens with a boat in the open sea.
Mr Waugh explained that the action of a vessel travelling over a wave is similar to a see-saw. On waves, the pivot point of the boat will move. As a boat moves towards and along the wave, the bow will lift, partly because of the rotational force from the wave itself, and partly because of the incline at the front of the boat because it is moving forward. As Mr Waugh explained, in his report, orally and with the use of diagrams, what follows next is that as the boat moves over the top of the wave it will start to drop down by the bow. A person not secured at the front may then be 'flicked' or thrown into the air. The rotational effect of the boat will contribute to this. As the person goes up, the wave pushes the front of the boat down and the back of the boat up. As the person comes back down the boat itself is still going forward so the position of the person is further aft from where the person originally was. The combination of the person coming down and the boat going up and forward will lead to an impact collision and explains why Mr Taylor hit the deck rather than landing again on his seat.
In cross-examination (ts 266) Mr Waugh agreed that whether and to what extent the bow of a boat is pushed upwards is a function of the speed of the vessel and the shape of the boat.
Mr Waugh also agreed (ts 268 and 269) that there would have to be a sudden change in the upward force or violent movement in order for there to be a separation between a person and a boat. There was lengthy cross‑examination of him concerning forces and whether or not he could calculate those, however, as I understood his evidence he was only intending to indentify the mechanism by which the incident involving Mr Taylor occurred. As Mr Waugh himself acknowledged, there are far too many other factors to be able to do a reconstruction of the incident.
Based on information obtained from Mr Taylor concerning the sea conditions at the time and how the incident occurred, (which was largely consistent with the evidence given by Mr Taylor at trial), Mr Waugh agreed that the tender reached a speed that in those conditions caused it to bounce over the waves (ts 229). Mr Waugh also agreed in cross‑examination (ts 265) that a person can get thrown about on a vessel if it is not operated appropriately for the relevant conditions at the time.
Mr Waugh concluded in his written report that:
(a)the mechanism for Mr Taylor's injury was of rapid vertical accelerations both upward and downward while underway (exhibit 30, par 6(4)b); and
(b)a failure to operate the vessel appropriately in respect to the prevailing sea and 'passenger' conditions was the immediate cause of the injury (exhibit 30, par 7).
Tendered in evidence (and also included as part of Mr Waugh's report, exhibit 30) was a 'Stability Booklet – 7.85 Metre Tender Craft – 'Silver Tender' ', prepared by Mr Mark Ellis, who had a role in the design of these tenders. That Stability Booklet was intended 'to assist the master and all others concerned to load and operate the vessel in such a way as to maintain adequate reserves of stability at all times' (page 1). It set out the maximum number of passengers and noted that the stability of the vessel depended on a number of factors including:
•Loading it correctly
•Ensuring that the maximum stability of the vessel is maintained during all operations
•Avoiding sea conditions that may result in a loss of stability (italics my emphasis)
The Stability Booklet went on to discuss maintenance of stability in heavy weather. As set out in the Stability Booklet, and as I heard, that Stability Booklet was to be kept on board the tender at all times.
I should record here that the Stability Booklet was admitted into evidence over the objection of Hanseatic. In the exchange I had with counsel for Mr Taylor (ts 126) I inquired how the document would help me on the issues as they were pleaded in this case. Counsel for Mr Taylor confirmed that the case as opened and pleaded related to the seating arrangements on the tender and the absence of hand rails and that nothing about the stability of the tender vessel had been pleaded. However, it was explained to me that 'the potential for the plaintiff to become dislodged from his seated position is relevant' and 'the manner in which the tender vessel was operated on the day of the accident' is a relevant matter. Counsel for Mr Taylor later confirmed (ts 130) that 'the allegation isn't that the tender as designed is faulty from a stability point of view.'
Mr Ellis explained that the Stability Booklet dealt more with static stability than underway stability. However, what was set out in the Stability Booklet about maintenance of stability in heavy weather did relate to the vessel when in operation and this provided 'notes for the people that are operating the vessel, what conditions they've got to be careful of', but that this was standard on all vessels. While he had set out in the Stability Booklet how stability may be reduced in seaways and the effects of wind, Mr Ellis stated 'the same applies to all vessels.'
As I understand Mr Ellis' evidence, no matter what the size of the vessel, anyone operating a vessel must be cognisant of wave and wind conditions and operate the vessel in accordance with those conditions. In these circumstances, and given the express statements from counsel for Mr Taylor that there is no issue concerning the stability of the tender, I consider this evidence to relevant and admissible.

Also tendered into evidence was the Lloyd's Register Statement of Compliance for the hull of the tender which assessed the hull as stable. The assessment was performed on the assumption:
(c)That the vessel remains in contact with the water surface at all times and does not become airborne either partially or wholly. In this respect it is the responsibility of the operator that the craft will at all times be properly handled, with particular reference to the placing on board of persons and equipment and the reduction of speed in heavy weather. (italics my emphasis)
Mr Hutchings also gave evidence that it is always expected that a vessel will be operated to suit the conditions at the time and it is the responsibility of the skipper to make sure that the vessel is being used to suit the conditions. In heavy seas, the speed of the vessel should be very much reduced so that its accelerations would not be experienced. When I asked what he defined as heavy seas, Mr Hutchings explained that this would be dependent on the vessel. Small waves would have a larger impact on a smaller vessel than they would on a larger vessel. Mr Hutchings was aware that in what he described as the 'approval documents' for the tender, which he later clarified was the Lloyd's Statement of Compliance, a significant wave height for this tender was 0.6 m. Mr Hutchings also added (ts 322):
I mean, it is very hard to - to gage what is [a] significant wave. It really is dependent on the conditions and how the skipper interprets those conditions.
In re-examination, Mr Hutchings confirmed that basically, at all times, the skipper should be operating the vessel to suit the conditions at the time.
From all of the evidence I make the following findings of fact:
(a)the journey from the MY Silver into Monaco harbour took place without incident;
(b)on the return journey to the MY Silver, the first part of the journey also took place without incident;
(c)in the middle of this return journey Mr Oskarsson twice increased the speed of the tender, the second increase in speed occurring just beyond the sea wall;
(d)the conditions outside the harbour beyond the sea wall were choppy with waves of a height of about half a metre;
(e)within 30 to 40 seconds of the tender increasing speed for the second time, Mr Taylor was lifted out of his seat;
(f)to create sufficient force for Mr Taylor to have been lifted out of his seat there must have been a sudden change in the upward force or a violent movement of the boat;
(g)that force was created by the tender reaching a speed that in the conditions caused it to bounce over the waves. As Mr Taylor described it there was an increase in speed and the tender was pounding the oncoming waves 'quite violently';
(h) that force was sufficient to force the cushion on the rear of Mr Taylor's seat, which he was then holding onto, to come away from its fastenings; and
(i) within seconds of that occurring, Mr Taylor became airborne again and fell onto the deck.
With these findings and the evidence of Mr Waugh, Mr Ellis and Mr Hutchings, I find that mid way through the return journey the tender was not operated by Mr Oskarsson with care and at a speed that was appropriate for the conditions. On the balance of probabilities I am satisfied that the speed of the tender and the way it was operated by Mr Oskarsson in the conditions was what led to Mr Taylor's injury or, as Mr Waugh expressed it, was the 'immediate' cause of Mr Taylor's injury.
That the speed and manner of operation of the tender at the time was not appropriate for the conditions is demonstrated by the fact that immediately afterwards Mr Taylor was transported in the tender, in the same choppy conditions, without incident - firstly towards the MY Silver and then back to Monaco harbour to the pier, when he was transported to hospital.
Of course, the case of Mr Taylor is that there was no hand rail in the vicinity of Mr Taylor's seat and that Hanseatic is liable because of the danger of the tender by reason of the absence of a suitable hand hold.

Was there a danger in the tender because of the absence of hand holds in the tender?

From the evidence about which there was no dispute, the MY Silver was a 74 metre yacht, a vessel registered in the Cayman Islands. It was also a commercial yacht which operated in the Mediterranean, and not in Australian waters. It took on paying passengers, and the purpose of the tenders was to transport those paying passengers from ship to shore. As put by counsel for Mr Taylor when cross-examining Mr Hutchings, with which Mr Hutchings agreed, the intended use of the tenders was for the safe transfer of passengers and crew to and from the vessel (ts 320).
As Mr Hutchings also pointed out in his expert report, and this was not disputed, as the tender in this case is a tender vessel to the large vessel MY Silver, the tender is not intended to be registered in its own right but rather as part of the registration of the mother vessel, the MY Silver.
As I have already outlined, Lloyd's Register issued a Statement of Compliance relevant to the hull construction of the tenders to the MY Silver. A Letter of Compliance for Large Commercial Sailing and Motor Vessels, a Passenger Ship Safety Certificate and a Record of Equipment for Compliance with the International Convention for the Safety of Life At Sea Protocol for the MY Silver were also tendered in evidence, all three certificates from the Cayman Islands Shipping Registry.
The evidence relevant to this issue of hand holds on the tender came from three witnesses. The first, Mr Mark Ellis, was the designer retained by Hanseatic and he was called by Mr Taylor to give evidence about his design for the tenders. There were then the two experts, Mr Waugh, and Mr Hutchings.
Mr Ellis, a qualified marine engineer, was engaged by Hanseatic to design the tenders for the MY Silver. He was contacted by the owner of the vessel, and one other person identified as Mike Antalec from Hanseatic, who told Mr Ellis they would like to use one of his patrol boats as a concept for the tender, and develop it from there. Mr Ellis prepared a concept of the tender using his patrol boat hull, with, as he put it 'basically, seats put in'. That was submitted to Hanseatic.
That patrol boat vessel had hand rails around it. Mr Ellis explained it was a military operating vessel and the hand rails were for the crew to hang onto when moving around the vessel. When he was asked what the purpose of the hand rails were he said that all he could say was that the initial proposal had hand rails and that this was the standard patrol boat offered up to the client to modify and customise to suit their requirements.
Mr Ellis was asked by counsel for Mr Taylor whether the tender was designed to any particular standard. Mr Ellis explained that he contacted the flag state authority for the mother ship, the Cayman Islands, and was advised that the tender was not a life-saving appliance but still carried passengers, so it had to comply with some code. He (although he referred to 'we' during his evidence) had to propose a suitable code and so he proposed the Australian Standard for pleasure boats (the Australian Standard referred to in this case). That was accepted by the Cayman Islands Registry as long as it was overseen and approved by a reputable authority. Lloyd's Register of Shipping was then nominated as the authority which would approve this vessel to that standard.
In an email dated 10 July 2006 (exhibit 13) it was agreed between Mr Ellis and Mr Andrew Flavell of Hanseatic that while Mr Ellis would do the main design, Hanseatic would do 'the final detailing such as hand rails, boarding platforms and ladders, seating, upholstery, deck fittings etc on site.'
From Mr Ellis' evidence and the documents which were tendered through him it is apparent that the design of the tenders changed or were revised a number of times. One of the changes was to remove the hand rails and raise the bulwark or side of the vessel. As Mr Ellis explained, the original design had hand rails all round the vessel, but the original design was a patrol boat which has a lower shear. It did not have the raised bulwark, which was added later. That change, as elicited from Mr Ellis in cross-examination, was made by a European designer engaged by the owner, Mr Espin Oeno, who drew on Mr Ellis' plans a bulwark that substituted in height, the height of the handrails in the initial concept drawing. The reason for that change was canvassed with Mr Ellis as follows (ts 148):
So the height was the same, it's just that the bulwark took the place of the handrails - - ----Yes.
- - - for height---Yes - yep.
Because now, this was going to be a vessel for people to sit in, rather than for people to stand up and walk around in---And the overall look. He wanted a better look, visually.
Yes---He wanted obviously more boat and - - -
All right. And the - the original plan of course, is not a plan for a beautiful looking - - ----No, exactly right.
- - - luxury vessel, is it---Exactly right. It was just a patrol boat with seats.
There were also changes in design to enable the tenders to fit into the available storage space, referred to as the 'garage' for the tenders, built into the hull of the MY Silver. The tenders would not fit because the beam, or width, was too wide. That did not affect anything to do with the bulwark or railings.
It is convenient to next set out the evidence given by the expert called on behalf of Hanseatic, Mr Hutchings.
Mr Hutchings is a qualified naval architect, with a Bachelor of Engineering in Naval Architecture from the University of New South Wales, and a marine surveyor. He has experience in the inspection of commercial vessels, both new and existing vessels, to make sure that they comply with the national rules and regulations. He is now the managing director of a marine design, surveying and consulting company and has been involved in work both in Australia and overseas. His other qualifications and memberships were impressive.
In his written report dated 10 June 2011, exhibit 50, Mr Hutchings reviewed all possible national and international standards and whether they applied to this tender. As the MY Silver was registered in the Cayman Islands he considered the International Conventions applicable and that the most applicable International Convention relating to tenders (or dinghies) was the Large Commercial Yacht Code. Section 24.1.1 of that Code provided that when a vessel carries a rigid or inflatable tender, it should be fit for its intended purpose, regularly inspected by the owner/managing agent and maintained in a safe condition. Apart from this there were no clear requirements that defined minimum standards for tenders. Therefore the emphasis fell back onto the tender being 'fit for its intended use'.
In relation to the Australian Standard, Mr Hutchings' evidence was that this standard did not necessarily apply to the tenders for the MY Silver. He explained that the Australian Standard specifically relates to recreational or private vessels up to 15 m in length and the MY Silver would be classed as a commercial vessel. The Australian Standard would, however, be a guide when considering whether the tender is fit for its purpose.
Mr Hutchings also explained that the prime concern of the Australian Standard is to prevent people falling overboard.
The relevant clause of the Australian Standard as tendered in evidence (exhibit 29) deals with 'Safety hand rails and hand holds' and provides:
3.10.4Safety hand rails and hand holds Boats shall be fitted with –
(a)substantial hand holds in working and passenger spaces in cockpits, decks and cabins and at the control position;
(b)satisfactory means for all persons (within the maximum person's capacity) to hold on to and be supported by the boat when swamped; and
(c)hand grips or a means of access for boarding from the water in boats with freeboard greater than 0.5m.
NOTE: The intent of Item (c) is to allow reboarding should the sole occupant of the boat fall overboard.
When Mr Hutchings came to consider whether the tender did have substantial hand holds, he noticed that there was no definition of 'hand hold' in the Australian Standard. He therefore adopted the definition from the ISO (International Standards Organisation) standard for small craft (ISO 15085: Small Craft – Man Overboard and Recovery), which is that a hand hold is any part of the boat that may be gripped by hand to reduce the risk of falling overboard.
In that context, he considered that the bulwark, which measured at least 600 mm in height and approximately 100 mm wide and ran down the side of the boat at the back of the fixed seating, satisfied the definition of a hand hold. In Mr Hutching's opinion the tender complied with the requirements of the Australian Standard. The actual width of the bulwark did not change his view because, regardless of the width, a person was still able to wrap his or her hand over that and form a grip, something which he demonstrated in court. Returning to the Large Commercial Yacht Code cl 24.1, Mr Hutchings concluded that that tender was fit for its purpose.
Mr Hutchings explained in his evidence that if a tender is fit for purpose, that does not guarantee a person will not get thrown about or injured. That was because a vessel is a live vessel, the ocean is unpredictable and no matter what safety measures are in the vessel, it is always possible for there to be accidents on board. The idea of a safety measure is to minimise accidents. The responsibility of the safe operation of a vessel goes back to whoever is in charge, basically the skipper, and it is the skipper's responsibility to make sure that the vessel is being used to suit the conditions at that time.
In his report, exhibit 50, page 14 Mr Hutchings referred back to both the ISO and the Australian Standard and concluded that both standards do not specifically require hand rails to be fitted in the vicinity of seats. Both standards do, however, require hand holds to be provided. At page 15 Mr Hutchings concluded that based on the tender's bulwark being a minimum 600 mm in height and in consideration of the layout of the fixed passenger seating, it was his opinion that the tender complied with the requirements of both the ISO and the Australian Standard.
In cross-examination Mr Hutchings agreed that a rail would provide a greater grip than the bulwark. However, as he explained, it all depends on how the vessel is to be used. If the vessel was intended to be a high‑speed thrill boat, jumping waves, anything like that, then you would need a greater form of restraint. Mr Hutchings considered that as this tender was being used to transport passengers, the bulwark would be sufficient.
In cross-examination Mr Hutchings was also asked about the configuration of the vessel and the difference between the rear and forward part of the vessel. He explained that the configuration of the vessel is such that if there is any standing, it would be limited to the rear of the vessel around the helm area, mainly because typically on a vessel, that is the area where there are the least accelerations and movements. So the forward area would be purely dedicated to the seated.
Mr Hutchings also agreed that the hand rail around the console of the helm would be mainly for people standing at the helm, rather than on the seats and he accepted that it would not be expected that a person sitting in one of the seats at the bow of the boat would use that as a hand hold.
He also agreed that, in rough weather, from the point of view of the potential for movement of persons within the boat, the rear of the boat would be a much safer position than the front of the boat. If there was no worry about waves or speed then sitting in the front would be as safe as sitting in the back, but he accepted that if there were waves and a reasonable amount of speed, it would be much safer to be at the back of the tender.
The following exchange took place between counsel for Mr Taylor and Mr Hutchings (ts 319 and 320):
Do you agree that it wouldn't have been difficult for a tender of this type to be fitted with hand rails that run around the back of the chairs that – back of the cushions---?---It's a difficult question to answer, because I know that to comply with the rule you can build a vessel one particular way, and - well, to - to comply with the rule, there's a number of ways you can build the vessel. And from a designer's perspective or a client's perspective, sometimes the client has specific requirements of what they want that vessel to look like.
My question was it would not be difficult to have hand rails around the outside of the seat cushions---Based on that design it would be easy to fit hand rails, yes.
And I think you're saying that sometimes people don't want, because of the visual aspect - - ----It goes back to the actual design of the vessel itself. A lot of the time there are minimum requirements for the height that the - the perimeter of the vessel has to be, whether it be a bulwark or a rail. So a lot of the time - sometimes if the solid bulwark itself isn't of sufficient height, sometimes the builder will then fit an additional hand rail on top to achieve that minimum height. In this particular case here, the bulwark of this tender is all - already complies with the minimum height requirements from ISO.
Mr Hutchings explained that as this was a small vessel, passenger movement on board would be minimal, because the intent of the tender is just to transit people short distances. The need for people to move within that vessel is not applicable. So far as the need to connect to the vessel while it was underway was concerned, Mr Hutchings conceded that this was an important factor, but explained that the bulwark was sufficient for this type of vessel. It was again necessary to look at the purpose and operation of the vessel.
Mr Hutchings agreed in cross-examination that if the bulwark was wet, depending on the surface properties of the bulwark itself, it is possible that this could reduce the grip that a person could sustain on the bulwark. However, he explained that if the weather conditions were bad and the bulwarks were wet it would be logical for the skipper to reduce the speed of the vessel to make sure the accelerations were minimal and therefore had minimal impact on the people within the vessel. He was then asked:
I think you agree that that would be a very questionable hand hold if the vessel was operated in reasonably heavy seas---If it was in reasonably heavy seas, the speed of the vessel should be very much reduced so its accelerations wouldn't be experienced.
I was impressed with Mr Hutchings and his qualifications. I found his evidence to be well explained and he made concessions where appropriate. I am prepared to give some weight to his evidence.
I turn now to the evidence which Mr Waugh gave relevant to the issue of hand holds on the tender.
Mr Waugh in his report, and evidence at trial, referred to photographs of the tender (exhibit 2) showing that 'there were no devices installed to prevent forward passengers from being dislodged' and expressed the opinion that it is 'well known that persons in such vessels are easily thrown or dislodged from seats when a vessel bounces'. He also expressed the opinion that 'in vessels of the type of this tender, the dislodgement of persons is a common event'. In support of these two opinions Mr Waugh relied on his experience of other incidents he had investigated as a surveyor with the Department of Marine and Harbours where people had been thrown around, both in high speed and low speed vessels. He also stated that he relied on firsthand accounts that he had received from others who had operated these vessels. In his evidence at trial Mr Waugh stated that the most easily identifiable source for the statement that it is 'well known that persons in such vessels are easily thrown or dislodged from seats when a vessel bounces' was 'offshore high speed boat racing which is in the public domain'. He stated that 'there are a large number of reports around that in the public domain that identify people being dislodged' (ts 192).

I found Dr Flahive's evidence well explained. Dr Flahive's evidence concerning exercise was consistent with Mr Woodland's evidence of the importance of exercise to reduce Mr Taylor's pain. I accept Dr Flahive's evidence that with exercise Mr Taylor's condition will improve, his pain will reduce and his capacity to work will increase.
Given Dr Flahive's specialty as an occupational physician and his experience with rehabilitation of workers, I prefer his evidence on Mr Taylor's work capacity to that given by Mr Woodland and I accept the evidence of Dr Flahive as I have summarised in [216] above.
Tendered into evidence by consent was a report from Amanda England, a psychologist from Workfocus Australia who had carried out a vocational assessment of Mr Taylor. The purpose of the assessment was to identify alternative positions for Mr Taylor to pursue. Ms England had a copy of Dr Flahive's report of 31 August 2011. She concluded that three options were vocationally appropriate for Mr Taylor:
•Information Communication Technology Customer Support Officer
•Purchasing Officer
•Radio Operator
Dr Flahive was asked to comment on Ms England's report, which he did in a further report dated 15 February 2012. Dr Flahive's opinion, confirmed at trial, was that each of these roles or occupations was within Mr Taylor's physical capacity.
Hanseatic led further evidence concerning the availability and remuneration for each of these occupations from Professor Charles Mulvey, the managing director of LabourNET, a private company which researches labour market issues and prepares reports almost exclusively in relation to personal injury and workers' compensation matters. Professor Mulvey gave evidence (both in his report, exhibit 52, and his evidence at trial) concerning the current rates of pay for each occupation and market availability. In this case that included the availability for a part-time position on the basis of 20 hours per week. From Professor Mulvey's evidence, work as a radio operator is not a realistic option available to Mr Taylor because of the very limited availability of this type of work.

Past loss of earning capacity

There is no dispute that Mr Taylor has been unable to work since he suffered his injury and is entitled to damages on a full‑time basis for past loss of earning capacity. What is in dispute by Hanseatic is the calculation of that loss.
The claim for past loss of earnings, provided in the Plaintiff's Revised Schedule of Damages, has been calculated on a yearly gross loss of $110,000, which equates to $2,115.38 gross or $1,513.58 per week. The sum of $110,000 is based on an average of what it is said Mr Taylor could have earned but for his injury. That was, in turn, based upon the fact that he earned $100,000 in the year of the accident (in fact, according to his tax return for the year ended 30 June 2008, his gross earnings were $101,758 and that included seven weeks of workers' compensation payments). It was submitted that it was reasonable to assume that in the four years since the accident, his income would have increased by 5% each year to $120,000. $110,000 is the average for the four years since the accident.
The claim for a 5% increase per year is made in light of evidence from Professor Mulvey. When he calculated the gross average weekly earnings of each of the occupations referred to, he took the gross average weekly earnings of full‑time males for the occupation from the Census of Population and Housing 2006, the only data available from any official source. However, quarterly data on average weekly earnings for the labour force as a whole are published by the Australian Bureau of Statistics. The latest release of that data showed that average weekly earnings had increased between the date of the Census in August 2006 and August 2011 by 42.4%. Accordingly when looking at the current earnings of IT support technicians, purchasing officers and radio operators, Professor Mulvey applied that 42.4% increase to the Census gross average weekly earnings. In cross‑examination Professor Mulvey agreed that he made the assumption that these occupations had increased at the same level as the increase in the average weekly wage. He also agreed as follows (ts 346):
And that if someone in - in August 2006 was on a wage that was higher than the - than the figure that you've been provided, it's reasonable to assume that because of the increase in average wages, that that higher figure would also have increased---Yes, that's right.
Would it be fair to make that assumption on the same basis as the 42.4 per cent increase that you've indicated---Yes, it would.
In the submission made on behalf of Mr Taylor, it was contended it was not appropriate to suggest that his capacity should be anything less than it was at the time of his injury and that based on Professor Mulvey's evidence the likelihood was that he would get increased remuneration from that capacity. It was suggested that 20% was not unreasonable, since the 42.4% referred to by Professor Mulvey was from August 2006 and this accident happened in 2008.
Hanseatic submitted, on the other hand, that the more appropriate figure upon which to calculate both past and future economic loss was by reference to Mr Taylor's past annual income and the contract he had with Hanseatic. At the time of his injury, Mr Taylor was on an hourly contract rate of $34.50 with a standard working week of 38 hours per week, although he was entitled to additional hourly rates for overtime. The submission made by counsel for Hanseatic was that multiplying 38 hours by $34.50 produced a gross annual income of a little over $68,000. Mr Taylor must have received a higher hourly rate for his work overseas, although he led no evidence or explanation of this. Other figures taken from Mr Taylor's tax returns, including his previous employment, pointed to a more modest annual income of closer to $70,000. There was, it was submitted, nothing to explain the big increase to $101,758 and historically, that was not the level of income that he earned according to his tax returns.
It does need to be remembered that I am assessing loss of earning capacity, and not loss of earnings: Medlin v State Government Insurance Commission (1995) 182 CLR 116). An assessment of loss of earning capacity does not strictly turn on a precise mathematical calculation. Earning capacity is an intangible asset and the assessment of damages for its loss is not an exact science. It is governed by considerations of practical common sense in the context of the facts of the particular case: Insurance Commission of Western Australia v Weatherall[2007] WASCA 264 [236] ‑ [241]; Montemaggiori v Wilson [2011] WASCA 177 [28] (Buss and Newness JJA).
In the circumstances of this case I consider the basis for assessment of loss of earning capacity suggested by counsel for Mr Taylor to be fair and reasonable. Mr Taylor had, in fact, been approached by Hanseatic (or 'head-hunted') while he was employed full‑time at Austal Ships. His contract of employment with Hanseatic did provide for a probation period of three months, and he was still on probation at the time of his injury, however, there was no evidence to suggest that, but for his injury, he would not have continued to work for Hanseatic. At the time of the accident Mr Taylor had demonstrated an ability to earn in excess of $100,000 per year and I find it is probable that, had he not been injured, he would have received increases in income of at least 5% per annum, possibly more given Professor Mulvey's evidence. Accordingly, I assess past loss using the figures provided in the Plaintiff's Revised Schedule of Damages, but also taking into account the time between trial and judgment, as follows:
$1,513.58 x 227 weeks = $343,583.00

Past loss of superannuation

It has been recognised that a calculation of superannuation should include a deduction for contingencies, including any tax liability on exit from the superannuation fund and negative contingencies, such as the risk that the fund would sustain losses and fund management. In the past, that deduction has been 30%, following Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192. The law on taxation of superannuation has changed since Jongenwas decided. Since 1 July 2007 superannuation payments made following retirement after the age of 60 are no longer taxed, and other changes have been made in relation to taxation on contributions. The parties have agreed that in calculations for superannuation the discount to be applied should be 15%, rather than 30%.
I consider the calculations made on behalf of Mr Taylor for past loss of superannuation is fair and I would allow superannuation, to take into account the time between trial and judgment, as follows:
$2,115.38 x 9% x 85% x 227 weeks = $36,735.00

Interest on past loss of earnings and superannuation

Interest is claimed from the period since workers' compensation payments ceased on 21 December 2010. I would allow interest on both past loss of earnings and superannuation (a total of $380,318) as follows:
$380,318 x 3% x 1.63 years = $18,598.00

Fox v Wood damages

The parties have agreed this head of damage in the sum of $43,660 and I would allow that sum.

Future loss of earnings

In the Revised Schedule of Damages prepared on behalf of Mr Taylor it appears to be recognised that Mr Taylor does have a retained earning capacity, however, it is suggested that the appropriate deduction for both Mr Taylor's retained earning capacity as well as the usual contingencies is 30%.
In my view in light of the evidence it is appropriate to calculate loss of future earning capacity on the basis that for the first year Mr Taylor will not be working at all, in order to re-train and find work. Thereafter the assessment should be calculated to retirement age (now age 67; Mr Taylor is now 43 years old) on the basis of the difference between his capacity, had he not been injured, and the part-time capacity of the alternative occupation of IT support officer. Based on Dr Flahive's and Professor Mulvey's evidence, I do not consider that, once he has retrained, Mr Taylor is likely to encounter any significant difficulty in either obtaining or maintaining work in the alternative occupation of an IT support officer.
There should be a further deduction for contingencies to take into account the chance, described by Dr Flahive as a good chance, that after working for a period of 12 months, Mr Taylor should be able to return to full‑time work. The usual range for contingencies is between 5% and 10%. However, in this case in light of the evidence of Dr Flahive, I consider the amount for contingencies should be considerably more to properly reflect the probability that in the foreseeable future Mr Taylor's earnings will increase from part-time to full‑time, or to put it another way, to reflect the fact that Mr Taylor has not lost all chance of working again on a full‑time basis, albeit in an alternative and less remunerative occupation: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 642 – 643. I consider that in light of Dr Flahive's evidence, the appropriate percentage deduction to reflect both the usual contingencies and the chance of Mr Taylor returning to full-time work as an IT support officer should be 50%.
For the same reasons I have set out in relation to past loss, I accept that with increases at 5% per year, Mr Taylor's current weekly earnings, if not injured, would be $120,000 per annum which, accepting the figures in the Revised Schedule of Damages, is $2,308 gross per week and $1,641.69 net. The current part-time remuneration for an IT support officer on the evidence of Professor Mulvey is $747 gross per week. Applying the current Australian Tax Office Weekly Tax Table, tax on that amount including the Medicare levy, with tax-free threshold, is $91, producing a net weekly amount of $656.
The amount I would allow for future loss of earning capacity is as follows:
•For the first year
$1,641.69 x 51 (multiplier for one year) $83,726.00
•Thereafter
$1,641.69 - $656.00 = $985.69
$985.69 x 623.3 (multiplier for 24 years to age 67 (674.3) less multiplier for one year) x 50%
$307,190.00
TOTAL$390,916.00

Future loss of superannuation

I calculate future loss of superannuation as follows:
•For the first year
$2,308 x 9% x 85% x 51 $9,005.00
•Thereafter
$2,308 - $747 = $1,561
$1,561 x 9% x 85% x 623.3 x 50% $37,216.00
TOTAL$46,221.00

Medical, hospital and other expenses (special damages)

Past medical, hospital, rehabilitation (mostly paid by Hanseatic's workers' compensation insurer) and travel expenses have been agreed by the parties in a total sum of $49,117.52 and I would allow that sum.

Future medical expenses

Future medical expenses have been agreed by the parties at $58,878.92 and I would allow that sum.

Gratuitous services (past)

The parties have agreed a sum of $8,800.00 for past gratuitous services and I would allow that amount.

Future gratuitous services

I would allow future gratuitous services as agreed by the parties in the sum of $39,912.50.

General damages for non pecuniary loss

Mr Taylor suffered a severe and significant spinal injury which has had a profound impact on him. In the immediate post-accident period and following each of his surgeries he suffered considerable pain. Fortunately as a result of expert medical treatment, he has made a satisfactory recovery.
The injury and his current residual symptoms have led to restrictions on his daily activities. He is no longer able to engage in any heavy physical activities, and there are limitations on the time he can sit, stand and drive. He has a limited capacity to engage in the social, sporting and domestic activities he enjoyed before his injury.
Mr Taylor's symptoms can be controlled with exercise, with a correspondingly reduced need for medications, and with exercise and the strengthening of his back his quality of life and ability to undertake activities, including his ability to work, will improve. However, Mr Taylor still has a long term permanent spinal disability. He also has the risk of developing arthritic or degenerative change.
I consider that the appropriate figure for general damages (non‑pecuniary loss) is $85,000.

Summary of provisional assessment of quantum

Past loss of earnings  $343,583.00
Past loss of superannuation  $36,735.00
Interest on past loss of earnings and superannuation        $18,598.00
Fox v Wood damages  $ 43,660.00
Future loss of earnings  $390,916.00
Future loss of superannuation  $46,221.00
Past medical, hospital and other expenses  $49,117.52
Future medical expenses  $58,878.92
Past gratuitous services  $8,800.00
Future gratuitous services  $39,912.50
General damages (non‑pecuniary loss)  $85,000.00
TOTAL$1,121,421.94

Conclusion

In view of my findings on liability Mr Taylor's claim should be dismissed. I will hear from the parties in relation to the orders which should be made, including for costs.