Vehicles Pty Ltd and Morton Engineering Co Pty Ltd v Wheeler

[1998] QCA 122

IN THE COURT OF APPEAL	[1998] QCA 122
SUPREME COURT OF QUEENSLAND

Appeal No. 8917 of 1997

Brisbane

[Vehicles P/L and Anor v. Wheeler]

BETWEEN:

VEHICLES PTY LTD

ACN 009 876 608

(First Defendant) First Appellant

AND:

MORTON ENGINEERING COMPANY PTY LTD

ACN 010 591 929

(Second Defendant) Second Appellant

AND:

RODNEY OWEN WHEELER

(Plaintiff)	Respondent
McPherson J.A. Thomas J. Lee J.

Judgment delivered 12 June 1998

Judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	NEGLIGENCE - personal injuries - whether joint venturer or employee - employment relationship - prawn trawler - common law duty of care - invitor’s duty of care - statutory duty of care - Workplace Health and Safety Act 1989 (Qld) ss.9, 10, 11, 12.
Counsel:	Mr R D Peterson for the appellants Mr M Grant-Taylor for the respondent
Solicitors:	Hyland Hinckfuss, town agents for Johnsons Solicitors for the appellants Jensen and Company for the respondent
Hearing Date:	22 May 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8917 of 1997

Brisbane

Before McPherson J.A.
Thomas J.
Lee J.

[Vehicles P/L and Anor v. Wheeler]

BETWEEN:

VEHICLES PTY LTD

ACN 009 876 608

(First Defendant) First Appellant

AND:

MORTON ENGINEERING COMPANY PTY LTD

ACN 010 591 929

(Second Defendant) Second Appellant

AND:

RODNEY OWEN WHEELER

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 June 1998

This is an appeal from the decision of the District Court at Brisbane delivered on 5 September

1997. The first appellant, Vehicles Pty Ltd (“Vehicles”) and the second appellant, Morton Engineering

Co Pty Ltd (“Morton”), were the first defendant and the second defendant respectively below. The

respondent in this appeal, Wheeler, obtained judgment against Vehicles in the sum of $60,346.30 with

costs and judgment against Morton in the sum of $60,569.07 with costs.

The difference of $222.77 is due to the cost of equipment and nautical charts purchased by the

respondent on behalf of Morton, together with a small interest component thereon. Wheeler was not

reimbursed for this sum by Morton, hence the additional award in the judgment against Morton.

His Honour found that the negligence of the first and second appellant caused injuries to

Wheeler in a fall on a fishing vessel called the Moreng on 4 April 1995. Whilst the evidence of the

relationship between Vehicles and Morton was not entirely clear, Mr G C Harold, company secretary

for both appellants said (139) that a predecessor to Morton built the trawler in 1979 and was

subsequently bought by Vehicles. He also said that Morton “has never had anything to do with the

trawler, no”. He also said (136) that Vehicles had a business name “Reef Enterprises” and “all the

operations of the vessel are conducted in the name of “Reef Enterprises trading as - sorry, Vehicles Pty

Ltd trading as Reef Enterprises.”

Whilst Vehicles was the owner of the vessel, Morton conducted the negotiations whereby

Wheeler was appointed master of the Moreng. Morton was to receive the total proceeds from the

catch out of which Wheeler was to be paid a percentage, the precise details of which were in dispute.

At the date of the injury, Wheeler was acting as Moreng’s master. The crew consisted of

himself and a deck hand by the name of Jamie Collins. At the time of the accident the Moreng was many

hours journey out of Bowen. On the second day of fishing the Moreng’s motor stopped as they headed around the point at Cape Upstart. At the time the Moreng was running on fuel from the port-side tank.

Wheeler investigated and found that the fuel line from the port-side tank was completely clogged.

Wheeler detached the ship’s ablutions water pump, in the engine room, cleared it of water, adapted a

piece of hose from the dinghy room and pumped fuel from the port-side tank to the starboard side tank

to avoid the blockage in the line to the port-side tank.

Wheeler stood on the auxiliary motor in order to be able to reach up to the place where the

water pump was fastened. After transferring the fuel from the port-side tank to the star-board side

tank, Wheeler needed to restore the water pump in order to have a shower. Before doing so, Wheeler

instructed Collins to turn off the knife switches thereby cutting off the power. The learned judge found

that knife switches were fitted to the Moreng’s electrical system at the relevant time.

To restore the water pump to its original position he again stood on the auxiliary motor and

reached up to re-attach the water pump. He went to join two wires together and saw an arc, and felt

a sensation through his hand and fingers as a result of which he fell. He regained consciousness jammed

between the auxiliary motor and a gearbox on the back of the main motor. One leg was jammed into

the bilge and he was bent half over on his back so that he could not get out on his own.

As a result of the fall he suffered burns to his right shoulder, a compression fracture of the L4

vertebrae, a left hip and foot injury, bruising and shock. It took 15 hours to bring the Moreng back

to Bowen.

The learned trial judge made a number of findings based on the evidence before him. These

included:-

• Wheeler and Collins were impressive witnesses whose evidence was accepted in
preference to the principal witness for the defence (Harold) and also a Mr Adams;

• The terms of engagement stated by Wheeler were accepted viz. that he was to receive 20 per cent of the proceeds of the catch and was to pay tax under the prescribed payment system. The deckhand was to receive 10 per cent on a similar basis. His Honour rejected the appellant’s contention that Wheeler was a mere joint venturer to receive 40 per cent of the catch and be responsible for 40 per cent of the expenses and the costs of a deckhand.

• Wheeler was provided with a vessel which was defective for the intended purpose -
the fuel lines were not completely clear and the electrical system was defective;

• Wheeler and Morton entered into a common law relationship of employer and
employee;

• There was no evidence of a contractual relationship between Wheeler and Vehicles;

• Wheeler was in no way responsible for the defects in the vessels fittings which led to
his fall and injuries;

• The risk of injury of the kind sustained from the defects in the fuel pumps and the
electrical system was foreseeable;

• There were reasonably practicable means of obviating the risks which these defects
presented;

• The blockage and the electrical fault existed when the vessel left Bowen, and qualified
people would have isolated those problems given proper maintenance and repair;

• Morton was an “employer” within the meaning of that term in the Work Place Health
and Safety Act 1989 (the “Act”) as it stood at that time;

• The employer’s conduct was seriously short of that which would be regarded as
reasonable;

• Morton, by its failure to provide and maintain a safe electrical system on the Moreng
was in breach of ss.2(a) to 2(d) inclusive of section 9 of the Act;

• Neither Vehicles nor Morton pleaded the defence that the usual maintenance and
remedial measures were impracticable in the circumstances;

• Vehicles and Morton were both employers per se (irrespective of the employment of
Wheeler) in April 1995 and each was in breach of s.10(1) of the Act;

• Both appellants were in breach of s.11(1) of the Act in that they provided a place of work with a faulty electrical system and both appellants had, to some extent, control of the Moreng;

• Both appellants were guilty of an offence under paras.(a), (b) and (c) of s.12(1) of the
Act as they supplied faulty plant for use at a work place;

• No act or omission for which Wheeler was responsible caused or contributed to his
own injury.

On the question of quantum, the learned trial judge awarded the respondent $25,000.00 for

pain, suffering and loss of amenities and $26,000.00 for future economic loss. Wheeler was born on

9 April 1946 and was aged 49 at the date of the incident, and 51 at trial. The basis of the award for

future economic loss was an impairment of earning capacity of $60.00 per week up until aged 65. This

figure was discounted by 5 per cent on the tables and then again discounted by 15 per cent for other

potential contingencies. The award for pain and suffering and for future economic loss are challenged

on the appeal.

Grounds of Appeal

In short form, the grounds of appeal are that the learned trial judge erred as follows:-

•	In finding that the respondent Wheeler was an employee of Morton;
•	In finding that the precautions taken by Vehicles and Morton were inadequate to
discharge the obligations they owed to Wheeler;
•	In finding that there was no contributory negligence on the part of Wheeler; and
•	In his assessment of damages for pain and suffering and damages generally.

The argument before the Court of Appeal

In argument before this Court, Mr Peterson, Counsel for Morton and Vehicles, conceded that Morton was the employer, both at common law and under the Act, of Wheeler, i.e. that Morton fell within the definition of “employer” within the meaning of s.6 of the Act and on whom the duties were

imposed in accordance with s.9 to ensure the health and safety of its employees. The trial judge found

that Morton was in breach of that provision. However, Mr Peterson maintained that there was no

evidence of any relationship between Vehicles and Wheeler; therefore there should not have been any

finding of an employment relationship between them or any duty of care owed by Vehicles to Wheeler,

either at common law or under the Act.

Three issues were argued. The first was whether Vehicles was an employer at common law,

and also under the Act, of Wheeler. The second issue was whether or not the precautions taken by

Morton and Vehicles were adequate to discharge the common law duty of care and the statutory duty

imposed. The third issue was the correctness of the learned trial judge’s award of damages for general

damages and loss of future earning capacity. The issue of contributory negligence was abandoned on

appeal.

The first point for consideration is the relationship between the Vehicles and Wheeler. The

learned trial judge made a finding that there was no contractual relationship between the two, so that

Vehicles was not an employer at common law. His Honour made no finding that Vehicles was in breach

of s.9, which imposed the statutory duties on an employer. However, his Honour did find that Vehicles

(along with Morton) was in breach of the statutory duty it owed to Wheeler pursuant to s.10, 11 and

12 of the Act. Section 10 imposes a duty on employers and self-employed persons to ensure the health

and safety of themselves and persons other than employees in the conduct of their “undertakings”.

Section 11 imposes a duty on persons in control of workplaces used by non-employees to ensure their

health and safety. Section 12 imposes a duty on a person who designs, manufacturers, imports or supplies any plant for use at a workplace to ensure that the plant is so designed and constructed as to

be safe and without risks to health when used properly.

None of the findings in relation to the breaches of those three sections are challenged in the

notice of appeal. However, Mr Peterson sought to argue that there was no evidence that Vehicles had

possession or control over the vessel at the time of the accident and that as a result his Honour was

incorrect to find that Vehicles had control of the Moreng so as to base a finding that it was in breach

of s.11 of the Act. He also submitted that Vehicles was not an employer within the meaning of the

definition in s.6 with the consequence, if correct, that Vehicles could not have been liable pursuant to

s.9. Mr Peterson did not address any submissions regarding his Honour’s findings that Vehicles was

in breach of ss.10 and 12 of the Act.

It should be observed that the evidence of Mr Harold that Vehicles had a business named “Reef

Enterprises” and that all the operations of the vessel were conducted by Vehicles trading as Reef

Enterprises, and his admission in cross-examination (185) that Vehicles had some control over the

vessel, would appear to have justified the learned judge’s findings with regard to the breach of s.11.

However, the absence of grounds raised in the notice of appeal leads to the result that his Honour’s

findings that a statutory duty of care was imposed on Vehicles pursuant to ss.10, 11 and 12 of the Act

went unchallenged. There is accordingly no need for this Court to consider whether the trial judges

findings in relation to the statute were correct or to consider the submissions by Mr Grant Taylor for

Wheeler that Vehicles was “an employer” within the meaning of the Act merely because Vehicles

engaged employees generally and not in particular in relation to this particular enterprise. Apparently

the Act was repealed by s.206 of the Workplace Health and Safety Act (Act No. 25 of 1995).

In any event, it is difficult to see why, quite apart from the Act, Vehicles did not owe a general

duty of care to Wheeler in whatever category he served on the vessel, even if he did exercise some

control over it. Indeed, Mr Peterson appears to have conceded that a general duty of care existed but

submitted that the standard of care was less than the standard of care imposed upon an employer at

common law, in circumstances where the person using the vessel was not an employee and had some

control over the vessel and its maintenance. It was also said that the appellants had done all they could

to ensure that the vehicle was reasonably safe.

It is clear that some maintenance was undertaken at Bowen before the vessel was put to sea.

As indicated above, Mr Peterson conceded that Vehicles would certainly have had control of the

Moreng at the times when maintenance should have been carried out. Vehicles clearly owed a duty to

take reasonable care to avoid acts or omissions reasonably foreseeable as likely to injure a neighbour

such as Wheeler. This included reasonable care and the maintenance of both the fuel line and the

electrics on their vessel, with a view to keeping them free from any defects that would render them

dangerous to a person as closely concerned with their operations as Wheeler.

A similar conclusion is reached if Wheeler is regarded as an invitee of Vehicles. Vehicles was

under a duty to exercise reasonable care to avoid a foreseeable risk of injury to a person such as

Wheeler (Australian Safeway Stores Pty Ltd v. Zaluzua (1986-1987) 162 C.L.R. 479).

As to the precautions taken by the appellants, evidence was led that an auto electrician was

commissioned to examine the wiring on the vessel. It is not entirely clear whether this was at the

instance of Vehicles or Morton. Wheeler gave evidence that an auto electrician came down to the boat

and fixed up some wiring. He said that all the auto electrician did was to check a problem with the radio

which had fused. Mr Peterson conceded that this evidence was not sufficient to ground a conclusion that there was a general check on the wiring of the vessel. It is therefore impossible to conclude that

a complete check of the electrical system occurred before Wheeler set out to sea. Neither was

Wheeler an electrician. He was entitled to rely on the appellant’s obligation to ensure a safe and

satisfactory electrical system. The fact that an auto electrician repaired the radio does not acquit the

appellants of their responsibility to take reasonable steps to ensure the provision of a safe electrical

system on board the vessel. Had such steps been taken Wheeler would not have been injured.

The other point raised by Mr Peterson was the existence of a Marine Surveyor’s Final

Certificate in respect of the vessel. Mr Harold gave evidence on behalf of the appellant that when

negotiations with Wheeler occurred, the vessel had been recently surveyed and issued with a new

sticker by the Department of Transport. He gave evidence that defects detected by the surveyor were

listed as requiring rectification before the issue of the certificate. Unfortunately there was nothing

before this court to indicate the nature of the defects detected on the Moreng. Nor was there any

evidence of the areas that the marine surveyor looked at. It is of little assistance to the appellant to

assert that a general review of the vessel occurred. This ground of appeal (Ground 2) must fail.

In the result, both appellants owed Wheeler a duty of care: in respect of Morton, both at

common law and pursuant to the Act; in respect of Vehicles, at least pursuant to the common law

referred to above. His Honour’s findings that the appellants were in breach of their respective duties

of care to Wheeler who suffered injury as a result have not been shown to be incorrect. Nor has it been

shown that steps taken by Morton and Vehicles were sufficient to discharge this duty. With regard to

the duties imposed on Vehicles by the Act, these were not challenged in the notice of appeal nor in

argument before the Court and do not require consideration.

Only the issue of quantum remains for consideration. It was submitted on appeal that the

learned trial judge failed to consider the evidence of the respondent’s general practitioner,

Dr Sutherland, and failed to consider the respondent’s pre-existing back injury. There is little doubt that

the respondent had a persistent history of back problems starting as early as 1988. Dr Sutherland gave

evidence that the respondent’s back was “stuffed” before he went to sea on the occasion in question.

The problem for the appellants, however, is that there was no evidence that the respondent’s

previous condition precluded the performance of his duties aboard the Moreng leading up to the time

of the accident. This is in stark contrast with the position after the accident. The report of Dr Myers

states that the respondent has not been able to return to work on fishing vessels since the accident. The

reason is a fear of accidents on boats and a fear of returning to sea in small vessels. The trial judge

accepted the evidence of Dr Myers. He was entitled to do so. This conclusion is supported by the fact

that Dr Sutherland specifically deferred to the expertise of Dr Myers who is a specialist.

The respondent attempted to get back into work on fishing vessels after the accident and failed.

His one attempt to return to work in the middle of June 1995 was unsuccessful due to back pain

experienced as a the result of the pitching decks on the vessel. Despite his injury, the respondent

received over $4,000.00 gross in the space of three weeks of work in June 1995. Work on prawn

trawlers, whilst seasonal by nature, is clearly lucrative. It was open to the trial judge to find that the

injury caused by the negligence of the appellants excluded this type of work for the respondent, even

though the extent to which he would have been able to engage in such work was limited and may well

have been sporadic. But now he cannot do much work at all. He is presently making a living selling

prawn trays in hotels.

The learned trial judge awarded the respondent $26,000.00 for loss of future income earning

potential. This calculation was based on a current weekly rate of loss of $60.00 per week net over 14

years up to the age of 65. This amount was discounted on the tables at 5 per cent and further

discounted by 15 per cent for contingencies. It does not appear to be an overly large sum of money

in light of the income earning potential demonstrated by the respondent. It is certainly a figure well

within the discretion of the learned trial judge.

The respondent received $25,000.00 for pain, suffering and loss of amenities. The appellants

argued that this is excessive in light of the respondent’s pre-existing back condition. As a result of the

fall, the respondent suffered a compression of the L4 vertebrae. He also experienced burns and an

injury to his hip. No doubt his discomfort during the voyage back to Bowen was extreme. Five months

after the accident Dr Myers reported that the respondent continued to suffer diffuse pain in the lower

part of his back occupying most of the lumbar region. The respondent has also been tense and a little

depressed as a consequence of his pain, and lack of employment. In the result the learned trial judge’s

award for both pain and suffering and future economic loss should stand.

It follows that the appeal should be dismissed with costs.