Taylor v State of Queensland

[1996] QCA 320

IN THE COURT OF APPEAL	[1996] QCA 320
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No. 240 of 1994
[Taylor v State of Queensland]
BETWEEN:

GORDON JOSEPH TAYLOR

(Plaintiff) Appellant

AND:

STATE OF QUEENSLAND

(Defendant) Respondent

Davies J.A.
Moynihan S.J.A.

Fryberg J.

Judgment delivered 30/08/1996

Judgment of the Court

APPEAL ALLOWED. ORDER THAT THE WHOLE OF THE JUDGMENT OF THE DISTRICT COURT GIVEN ON 23 NOVEMBER 1994 BE SET ASIDE. PARTIES ALLOWED TWO DAYS WITHIN WHICH TO LODGE ANY SUBMISSIONS IN WRITING IN RESPECT OF THE STATED CALCULATIONS. IN THE ABSENCE OF ANY SUCH SUBMISSIONS, JUDGMENT BE ENTERED FOR THE PLAINTIFF IN THE SUM OF $350,920.00.

CATCHWORDS:	TORTS - Negligence - Employer and employee - Safe system of work - Whether an alternative system existed to reduce risk.
Counsel:	G Britton for the appellant D Campbell for the respondent
Solicitors:	Ebsworth and Ebsworth for the appellant Crown Solicitor for the respondent
Hearing date:	11 August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No. 240 of 1994
Before Davies J.A.

Moynihan S.J.A.

Fryberg J.

[Taylor v State of Queensland]

BETWEEN:

GORDON JOSEPH TAYLOR

(Plaintiff) Appellant

AND:

STATE OF QUEENSLAND

(Defendant) Respondent

REASONS FOR JUDGMENT - JUDGMENT OF THE COURT

Judgment delivered 30/08/1996

The nature of this case and the circumstances giving rise to it are amply described in the judgment of the learned District Court Judge:

"This action, which began in the Supreme Court and was remitted to the Gladstone District Court, arises out of an incident that took place on the deck of a pilot boat 'Thorpe Chambers' off the Queensland coast near the entrance to the channels leading to the Port of Gladstone. On December 12, 1987, the plaintiff, who was employed by the Queensland Department of Harbours and Marine as a boatman, was injured. He alleges negligence or breach of contract by the Department and claims $200,000 damages for personal injury and consequential loss. The defendant denies the negligence and breach of contract alleged and says that if there was fault on the part of the employer the plaintiff was guilty of contributory negligence.

The 'Thorpe Chambers' was a fibreglass boat about 14.6 metres long. Early on the morning of December 12, 1987, it left Gladstone with a crew of two, the coxswain Oldrick Durco and the plaintiff, to take a pilot out to a large vessel, the Osco Stripe, which was approaching the port.

Helicopters are the main means now used to take pilots to and from ships using the
Port of Gladstone, but in 1987 pilot boats were used.

To enable a pilot to board a ship, the pilot boat would come alongside the ship and, while both vessels were moving at six to eight knots in the same direction, the pilot boat would be brought into contact with the hull of the ship. The usual thing would be for the coxswain to keep the pilot boat at an angle of about ten degrees to the line of travel of the ship. While the two vessels were touching, the pilot would climb up a rope ladder with wooden rungs lowered over the ship's side. The boatman would then attach the pilot's bag containing his charts, binoculars, and radio to a line dropped from the ship. The bag would be hauled up and the pilot boat would break contact with the ship and move away from it.

To prevent damage to the pilot boat, the boat builder had constructed it with two moulded rubber fender strips, called D fenders, one at deck level and the other about half-way down the hull. They can be seen in figure 5 in exhibit 26, a report prepared by Mr. Roger John Kahler, an engineer who specializes in safety and ergonomics. The D fenders were flat where they were fixed to the hull and curved on their outer faces.

To add to the protection of the D fenders, it was the practice in 1987 to equip pilot boats with fenders made of second-hand tyres from aircraft, forklifts, or small motor cars. The 'Thorpe Chambers' had six tyre fenders, three on each side. Their positions are shown in figure 2 in exhibit 26. The tyre fenders were spliced by ropes to cleats on the deck. The ropes were never lengthened nor shortened.

When not in use, the tyre fenders lay on the deck. When they were required, they were kicked over the side by the boatman holding on to an inboard safety rail. After use, the boatman's job was to recover them by pulling them onto the deck with one hand while holding on to the safety rail with the other hand. The tyre fenders were approximately 450 millimetres in diameter and 200 millimetres in width. The width of the deck at the place which is relevant to this action, on the starboard side of the wheelhouse, was 500 millimetres. When stored, the tyre fenders were not always pulled fully inboard of the gunwales, so the width of the unencumbered deck inboard of the tyre fender varied depending on how far in the tyre fender had been pulled.

The tyre fenders had no tubes in them so that when they were hanging in use over the side of the pilot boat, seawater filled the lower part of the inner space. The entry of the water increased their weight and so their efficiency by holding them in position. In rough weather, they filled more quickly than in calm weather.

There was, as I have mentioned, an inboard safety rail. It can be seen in figure 5 of exhibit 26. Below it was another, black, grooved rail. A harness could be clipped onto a traveller which moved in the groove on bearings. The grooved rail could also be held as a safety rail.

The Osco Stripe was to take the pilot on board at 5 a.m. on the day I have mentioned at the Fairway Buoy, which is in open water 16 kilometres on the other side of Facing Island from Gladstone. It was a sunny morning and the sea was calm, I find.

At about 5 a.m., the 'Thorpe Chambers' approached the port side of the Osco Stripe, so that when the transfer took place the starboard side of the pilot boat would be touching the ship's hull. Both vessels were moving at between six and eight knots. The plaintiff kicked the starboard tyre fenders off the deck. The pilot boarded the ship without mishap. His bag was hauled up. The plaintiff pulled the tyre fenders back onto the deck.

The plaintiff was standing on the deck just aft of the starboard tyre fender near the wheelhouse when he noticed that the pilot's safety line at the bow, which the pilot uses when he is reaching for the ship's ladder, had not been secured. He began to walk forward to secure the line.

The plaintiff was wearing light boots with rubber soles, which he had bought himself.
They were adequate for his work.

As the plaintiff moved forward he held on to the safety rail with his left hand. He lost his balance and twisted his back as he was trying to go past the tyre fender on the deck near the wheelhouse. His right foot came into contact with the fender, but on the view that I take of the evidence, I find myself unable to determine precisely how the plaintiff lost his balance. It is possible that he stepped onto the fender, which was probably wet, and slipped. It is also possible that the fender came up to meet his foot as the boat moved through the wake of the Osco Stripe, throwing him off balance. At all events, I find that the tyre fender's coming in some way into contact with his right foot caused the plaintiff to lose his balance and to twist his back. I am unable to determine how far inboard the fender was, and I am not satisfied that it was necessary for the plaintiff to try to step over it."

The plaintiff alleged negligence in a number of respects. His Honour made findings in favour of the defendant on each of them and dismissed the action. The plaintiff as appellant challenged his Honour's findings in relation to only one of the issues: whether there was an alternative safe and practicable system which would have eliminated or substantially reduced the risk of injury resulting from the obstructions on the deck caused by the tyre fenders. Both parties accept that for the plaintiff to succeed

"...it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff fromthe dangers of his task without unduly impeding its accomplishment."1

On this issue the plaintiff called Mr R.J. Kahler. Mr Kahler held the degree of Bachelor of Mechanical Engineering with honours and had worked since 1983 for a firm of safety and ergonomic consultants. For five years prior to giving evidence he had been (inter alia) the principal safety consultant for a New Zealand company which was an umbrella organisation of sixty stevedores. This position required him to audit the loading and unloading of ships; to carry out a hazard and operability study with regards to heavy fuel oil transfer; and to train members of the organisation in a system for preventing major accidents. Although he had inspected neither the "Thorpe Chambers" nor the fenders which it used, he based his evidence upon photographs of them.

Mr Kahler expressed the view that it was desirable that the walkway being used by the plaintiff be kept clear of obstacles. The defendant's witness, Mr K. Fuge, an experienced marine pilot who had been involved in designing pilot boats, said the whole point of a pilot boat was to have a flush deck. The system in use by the defendant did not achieve that objective when the rubber fenders were on the deck. Mr Kahler further expressed the view that there were a number of alternative methods of operating the vessel whereby the deck's surface might have been kept free from obstructions. His first alternative was that reliance could have been placed on the D fenders alone, without using rubber tyres in addition to them. His Honour accepted Mr Kahler's evidence that this alternative would require alteration to the maintenance program of the vessel so that the worn fender (which Mr Kahler described as "a consumable strip") was periodically repaired.

However, his Honour rejected this as a practical alternative:

"I see no reason to doubt that it was necessary and desirable that a pilot boat used continuously for pilot transfer work have fenders to supplement the D fenders. Tyre fenders are used on pilot boats based in Brisbane, Bundaberg, and Port Alma and have been found to be effective. The D fenders are not robust enough to withstand without damage the forces generated when a pilot boat and a ship come into contact. Damage to the D fenders or hull could render a pilot boat required for continuous service unavailable while repairs are undertaken. I therefore conclude that the use of D fenders alone was not practicable on the 'Thorpe Chambers' in 1987 since it was then used all the time for pilot transfers."

This finding appears to have been based primarily on the evidence of Mr Fuge. He testified that on the basis of his experience the D fenders alone were not robust enough for the loads involved when two ships impact together. In cross-examination he explained that without tyres in position, the D fenders would not last more than a month before they needed replacement.

The focus of the appellant's submissions was his Honour's finding, "Damage to the D fenders or hull could render a pilot boat required for continuous service unavailable while repairs are undertaken." The appellant contended that this finding was completely unsupported by any evidence. Of course, taken literally, the finding is a truism. However it seems plain that the sentence quoted was intended to embody the following findings:

(a)         the "Thorpe Chambers" was required for continuous service;

(b)        damage to the D fenders or the hull could render it unavailable for such service while repairs were undertaken.

In our judgment, neither proposition was supported by evidence. As to the former, counsel for the respondent directed our attention to evidence that Gladstone was a busy port - the second busiest in Queensland. However there was no evidence of the number of vessel movements per day in 1987, nor that the "Thorpe Chambers" was then the only pilot boat at Gladstone. Four years later there was only one pilot boat, but by then (as his Honour found) it was required to do only about fifteen percent of the amount of pilot transfer work carried out in 1987.

Pilot vessels are not patrol boats. They are used to transport pilots to an incoming vessel and from an outgoing vessel. Departure times for vessels of such a size as to require a pilot are known well in advance; and thanks to the invention of wireless telephony by Mr Marconi nearly a century ago, arrival times are also known well in advance. Continuous usage is not inherent in the function of pilot boats. It is true that there was evidence that in 1987 the "Thorpe Chambers" was used only for pilot transfers - as his Honour expressed it, it was "then used all the time for pilot transfers". Whether that is the foundation for the finding that the vessel was required for continuous service is unclear. If it was, it was not a sound basis. With respect to his Honour, there was no evidence to support the finding.

The second finding set out above is therefore irrelevant. It is of no consequence that damage to the D fenders could render the vessel unavailable for continuous service. Damage to the hull (at least in the sense of structural damage) was not suggested - Mr Fuge's point was that without the tyres, the D fenders would not last more than a month before they needed replacement. It is true that monthly replacement of the D strip (or sections of it) would have taken some time. However it was clearly implicit in Mr Kahler's uncontradicted evidence that this process could be accommodated in an altered maintenance program, and his Honour accepted that evidence.

It was not suggested to Mr Kahler in cross-examination that his proposal was impracticable because the vessel was required for continuous service or because of the time which would be taken to replace the damaged fenders; nor was there any suggestion it was unduly expensive. Moreover, one would expect that a properly designed pilot vessel (there was no suggestion that the "Thorpe Chambers" was not properly designed) would come with fenders fit for the purposes of such a vessel. Mr Kahler proposed a system which was on its face practical. There was no evidence to the contrary. In the absence of such evidence, this is a case where "no more than common knowledge, or perhaps common sense, is necessary to ... permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid [the risk]"2. In our respectful opinion, the conclusion that there was no practicable alternative to the use of tyre fenders on the "Thorpe Chambers" on the day the plaintiff was injured cannot be sustained.

That being so, it is unnecessary to deal with the arguments which were advanced before us regarding the weight which ought to be attributed to findings made at first instance in respect of expert evidence.

His Honour assessed damages as at 16th November 1994. In view of the time which has elapsed since then, it is desirable that some aspects of his Honour's assessment be adjusted. His Honour awarded $25,000.00 for pain and suffering and loss of amenities of life, apportioning that amount $15,000.00 as to the past and $10,000.00 as to the future. We do not think it necessary to change that apportionment. In the circumstances of the case, there was no claim for future impairment of earning capacity. His Honour assessed damages for impairment of earning capacity up to the date of his assessment at $175,000.00 and there is no reason to change that figure.

His Honour allowed $34,500.00 for domestic assistance up to the date of assessment. That figure was calculated using an average of 12 hours per week at $8.00 per hour for the period from the date of injury to the date of assessment. On the same basis, the amount allowed by his Honour should be increased by $8,930.00 for the period of 93 weeks between the date of his Honour's assessment and 28th August 1996. That gives a total of $43,430.00 for the plaintiff's past needs for domestic assistance.

His Honour assessed the plaintiff's future needs for domestic assistance at $8.00 per hour for the next 13 years (an assessment of life expectancy admitted by the defendant). He then discounted the amount so calculated quite heavily for reasons which it is unnecessary to elaborate.

Assuming there has been no significant alteration to the plaintiff's life expectancy, the period of that calculation becomes approximately 11 years. The application of the 5% tables to the appellant's needs of 12 hours per week at $8.00 per hour for that period produces a figure of $42,624.00. Discounting that figure by approximately the same proportion as his Honour discounted the figure which he calculated produces an amount of $18,000.00 as the appropriate sum for future needs under this heading in place of the $20,000.00 allowed by his Honour.

His Honour was also persuaded to allow the appellant $25.00 per fortnight to have his lawn mown. For the 156 fortnights for which this amount was allowable up to the date of assessment his Honour allowed $3,500.00. That amount should be increased by $1,150.00 to take into account the additional 46 fortnights from the date of assessment until 28th August 1996. That is a total of $4,650.00 for this item. His Honour allowed an amount for future mowing by applying the 5% tables to the weekly figure of $12.50 for 13 years and discounting for the reasons referred to above. Applying the same approach for the period of 11 years and discounting by the same proportion as his Honour adopted produces a figure of $2,650.00 for future mowing in place of the $3,000.00 allowed by his Honour.

His Honour allowed special damages in the sum of $3,061.00, a sum under the principle in Fox v Wood of $2,326.80 and a sum of $2,500.00 for pharmaceutical expenses. There appears to be no reason to interfere with these figures.

As to interest, his Honour allowed three amounts. First, he allowed interest at 2% on the award for past pain and suffering and loss of amenities, calculated on $15,000.00 less $5,346.00 already paid to the plaintiff by the Workers' Compensation Board for his permanent partial disability. He allowed that amount over a period of 4½ years. The period of that calculation should be increased to 6.3 years, but otherwise there is no reason to change it. The amount of interest so calculated is $1,220.00.

Second, his Honour allowed interest at 2% on the amount which he had allowed for past domestic assistance and mowing. Presumably that amount was allowable over the whole of the period from the date of the injury to the date of assessment. On the same basis, interest should now be allowed on the amount of $48,080.00 for 8¾ years at the same rate, which comes to $8,410.00.

Finally, his Honour allowed interest at 6% per annum on the award for past impairment of earning capacity of $175,000.00 less $37,474.68 received as Commonwealth benefits and pensions and $14,352.62 received as Workers' Compensation. He found that that interest would have been payable from the date of the incident to the date of judgment. Calculated over the period of 8¾ years to 28th August 1996 that comes to $64,670.00.

A rounded total of those amounts is $350,920.00.

The appeal should be allowed and the whole of the judgment of the District Court given on 23 November 1994 should be set aside. The parties should be allowed two days within which to lodge any submissions in writing in respect of the foregoing calculations. In the absence of any such submissions, judgment should be entered for the plaintiff for $350,920.00.

1

2 Vozza v. Tooth & Co Ltd (1964) 112 C.L.R. 316 at p.319.
Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 C.L.R. 362 at p.368.