Victorian WorkCover Authority v J Sarunic and Sons Pty Ltd

[2011] VSC 562

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 00349

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
J SARUNIC & SONS PTY LTD (ACN 065 400 517)	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Warrnambool and Melbourne
DATE OF HEARING:	12, 13, 14, 18, 19, 26 October and 15 and 16 December 2010 (final written submissions received 21 March 2011)
DATE OF JUDGMENT:	4 November 2011 (Revision No. 1: 8 November 2011)
CASE MAY BE CITED AS:	Victorian WorkCover Authority v J Sarunic & Sons Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 562	First Revision:  8 November 2011

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ADMIRALTY – Personal injury on fishing vessel – General maritime claim within the meaning of the Admiralty Act 1988 (Cth) – Court exercising federal jurisdiction

ACCIDENT COMPENSATION – Indemnity for compensation payments made – Action for recovery by Victorian Workcover Authority under s 138(1) Accident Compensation Act 1985 – Where worker slipped and was injured on deck of fishing boat – Where timber deck was worn - Whether owner of fishing boat was negligent or in breach of duty in failing to replace deck – Whether state of deck caused worker’s injury

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr J Moore QC with Ms P Cefai of counsel	Russell Kennedy
For the defendant	Mr P Jens with (on 15 December 2010) Mr M Harvey of counsel	Wallmans Lawyers

HIS HONOUR:

Overview

1. The plaintiff, the Victorian WorkCover Authority (‘VWA’), brings this proceeding under s 138(1) of the Accident Compensation Act 1985 (‘the Act’) for recovery of an indemnity in respect of compensation paid by it under the Act. The claim arises out of a back injury sustained by Mr Ian Stretton when he slipped and fell while working as a deckhand on a commercial fishing vessel called Christina S on 22 October 2000. The accident happened at sea in Australian waters. The VWA paid Mr Stretton weekly compensation payments and medical expenses under the Act as from shortly after the fall. Mr Stretton’s employer at the time was McHugh Investments Pty Ltd.

1. The defendant company, J Sarunic & Sons Pty Ltd (‘Sarunic’), was the owner of Christina S at the material time.  The vessel was the subject of a joint venture fishing arrangement between Sarunic and McHugh Investments Pty Ltd.

1. In 2009 Mr Stretton brought a common law action in this Court against McHugh Investments Pty Ltd and Sarunic in relation to his back injury.  The common law claim was settled shortly before the commencement of the hearing of the present proceeding. 

1. Originally there was a host of legal and factual issues in this case.  However as the hearing has progressed many of the issues have been resolved.

1. As to quantum, the parties have now agreed upon the dollar figures for factors ‘A’, ‘B’ and ‘C’ in the formula specified in s 138(3)(b) of the Act.

1. What remains in dispute, ultimately, is whether, in the language and for the purposes of s 138(1), the injury ‘was caused under circumstances creating a liability in [Sarunic] to pay damages or that would have created such a liability if the injury … had been caused in Victoria …’ and also, if need be, what figure should be determined for factor ‘X’ in the formula, namely ‘the extent, expressed as a percentage, whereby [Sarunic’s] act, default or negligence caused or contributed to the injury …’.

1. Essentially, the VWA alleges that Sarunic, as owner of the vessel and/or under the joint venture agreement, was responsible for the condition of the deck; that it had allowed the deck to become excessively worn and unduly slippery; that it had failed to refurbish or replace the deck in good time; and that this was a cause of Mr Stretton’s fall.  Sarunic accepts that the deck was its responsibility under the joint venture agreement, but denies that the deck had become unduly worn or unduly slippery and in any event denies that the condition of the deck had any causal connection with Mr Stretton’s slip and fall.

1. Relying on the allegations to which I have referred, the VWA claims that there was negligence on the part of Sarunic, or alternatively that there was a breach by Sarunic of its alleged duty to Mr Stretton under Part IIA (Occupiers’ Liability) of the Wrongs Act 1958; that this was a cause of the injury sustained by Mr Stretton, and that Sarunic was or would have been liable to pay damages to Mr Stretton accordingly.  Sarunic denies negligence; denies that it was an occupier of the vessel; denies any breach of occupier’s duty; and denies causation.  Primarily, Sarunic denies that anyone (whether itself or the employer) was liable in damages to Mr Stretton.  Alternatively, for the purposes of factor ‘X’, Sarunic says that the employer was responsible to a greater extent than Sarunic was.  Sarunic had pleaded that Mr Stretton himself had been guilty of relevant contributory negligence, but it has not pressed that claim.

1. In my view, the VWA has not established that there was relevant negligence or a relevant breach of occupiers’ duty on the part of Sarunic that was a cause of Mr Stretton’s injury.  The proceeding falls to be dismissed accordingly.

Jurisdiction and applicable laws

1. As mentioned above, the accident happened at sea.  It happened during a fishing voyage that began and ended at the port from which the Christina S operated, namely Portland, Victoria.  The vessel was rigged, and was operating, as a trawler.  It had been at sea for about 4 days.  It is not clear exactly where it was at the time of the accident.  During the VWA’s opening I was told that Mr Stretton estimated that the vessel was 15 kilometres offshore whereas Mr McHugh estimated it was 30 kilometres offshore.[1]  In any event it is common ground, and I accept, that the vessel was in Australian waters.

   [1]Transcript 8.

1. In CSL Australia Pty Ltd v Formosa,[2] a case relating to a claim in negligence brought by a stevedore injured when he slipped on the deck of a trading vessel in a port in New South Wales, the New South Wales Court of Appeal said that in every case the identification of the character of the jurisdiction being exercised by the court – state or federal – is a fundamental question necessary to be considered.  Their Honours pointed out that the importance of the enquiry is that the answer to it may affect the law applicable to the controversy.  In the present case, it turns out that the law applicable to the controversy appears to be effectively the same regardless of whether the jurisdiction be state or federal.  However it is desirable to explain how these matters have been dealt with by the parties and understood by the Court.

   [2](2009) 264 ALR 441, 446-7 [22] (‘CS-L’).

1. VWA’s written outline of opening submissions made reference to CSL and to relevant provisions of the Judiciary Act 1903 (Cth) and the Admiralty Act 1988 (Cth), but without making a definite submission about the nature of the jurisdiction to be exercised by this Court in this matter. I was told during the opening that there was no need for me to consider those matters because the parties had agreed ‘that Victorian law applies’[3] and, in particular, that s 138 of the Act applied. The case was being heard on circuit and I did not enquire further at that stage. Later, the hearing was transferred to Melbourne for final submissions. In the meantime I read CSL more closely, noting in particular the abovementioned reference to the necessity to identify the relevant jurisdiction as well as certain other features of the decision.  At the outset of final submissions I sought further assistance from counsel about these aspects.  From what I was then told, it seemed that Sarunic’s counsel, at least, was proceeding on the basis that the Court was exercising state jurisdiction, not federal jurisdiction.[4]  Neither side was in a position to make definite submissions about the matter.  I granted the parties’ request for an adjournment accordingly.  I also caused a set of related legal questions to be forwarded to the parties.  When the matter came back on for final submissions after the adjournment, Mr Harvey of counsel, who specialises in maritime law, announced an appearance with Mr Jens for Sarunic.  Mr Harvey proceeded to make submissions on the legal questions, confining himself mainly to the jurisdictional and maritime aspects.  The VWA’s counsel indicated that they agreed with Mr Harvey’s submissions insofar as they related to questions of jurisdiction and to questions concerning the applicable statutes. 

   [3]Transcript 20.

   [4]Transcript 384.

1. I accept the thrust of Mr Harvey’s submissions as to jurisdiction and as to the applicable statutory law. In summary, I am satisfied that the VWA’s claim is a ‘general maritime claim’ within one or other or both of paras (c) and (d) of s 4(3) of the Admiralty Act 1988 (Cth) and hence that it is a ‘maritime claim’ for the purposes of s 9(1) of that Act.[5] Sub-section 9(1) of the Admiralty Act 1988 (Cth) expressly confers federal jurisdiction on the courts of the States in respect of a proceeding commenced as an action in personam on a maritime claim. These provisions should be read widely, not restrictively.[6]

   [5]The fact that a claim under s 138 is not brought by the injured worker himself or herself might arguably take it outside s 4(3)(c) of the Admiralty Act 1988 (Cth) (which relevantly refers to ‘a claim for personal injury sustained in consequence of a defect in a ship…’) but, in my view, would not take it outside s 4(3)(d) (which relevantly refers to a claim ‘arising out of an act or omission of the owner of a ship…being an act or omission in the navigation of management of the ship…’). Compare Zurich Australian Insurance Ltd v Regal Pearl Pty Ltd [2006] NSWCA 328, [43] and following; American International Assurance Company v Skewes [2010] VSC 307, [50].

   [6]See The Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404, 416, 420; Yulianto v The Ship “Glory Cape” (1995) 134 ALR 92, 95-96, 99; CSL (2009) 264 ALR 441, 447-448 [25]-[26].

1. However, save as otherwise provided by the Constitution or the laws of the Commonwealth, s 138 of the Act would still apply in this case, albeit by virtue of ss 79 and 80 of the Judiciary Act 1903 (Cth).

1. For a time I was concerned that, for the purpose of assessing the putative duty and standard of care owed by Sarunic to Mr Stretton, it might be necessary to take into account certain provisions of the Navigation Act 1912 (Cth), the Marine Orders made under s 425(1AA) of the Navigation Act, and/or the Occupational Heath and Safety (Maritime Industry) Act 1993 (Cth), as had been done in relation to the injured stevedore’s claim in CSL.  However the critical distinction is that, unlike the trading vessel in CSL, the Christina S was merely a fishing vessel and was not involved in interstate or international trade or commerce or in an ‘overseas voyage’.[7]  As a result, as Mr Harvey submitted, none of the provisions in question apply in this case.

   [7]See Navigation Act 1912 (Cth) ss 2(1)(b), 6, 10; Marine Orders, Part 51; Occupational Heath and Safety (Maritime Industry) Act 1993 (Cth) ss 4, 6(1), 7.

1. Nevertheless, I assume in favour of the VWA, without deciding, that the duty and standard of care owed by Sarunic to Stretton was no less stringent than the duty and standard of care owed to by the shipowner to the stevedore in CSL.[8]  In the end there was no significant controversy between the parties as to the nature or scope of the relevant duty of care.  I will return to that matter in due course.

   [8]CSL (2009) 264 ALR 441, [61]–[69].

The joint venture arrangements

1. The principal of McHugh Investments Pty Ltd is Mr John McHugh.  From early 1995 to February 2003, Mr McHugh was the captain of the Christina S.[9]  He was initially appointed under an arrangement with a conglomerate of three shipowners trading under the name ‘Victrawl’.[10]  The principal of Sarunic, Mr Jordan Sarunic, was part of Victrawl.  In 1997 Victrawl broke up and Sarunic became outright owner of the Christina S.  Mr McHugh remained the skipper.[11]  On or about 19 April 2000, Sarunic entered into a written joint venture agreement with McHugh Investments Pty Ltd.[12]

   [9]Transcript 276.

   [10]Transcript 278.

   [11]Transcript 279.

   [12]Exhibit P4.

1. In summary, the salient terms of the written agreement were as follows.  The parties were to ‘join together’ for the purpose of operating the vessel.  The period was to be 18 months, from 1 July 2000 to 31 December 2001, or until otherwise terminated in accordance with the agreement.  The Contractor (McHugh Investments Pty Ltd) was to provide a competent, qualified skipper and crew and to

2.7ensure that the vessel is maintained in a proper, tidy and seaworthy condition;

2.8maintain running equipment of the vessel in proper, tidy and seaworthy condition at all times;

2.9operate the vessel for the purposes of the venture during such periods as weather conditions shall permit;

2.10voyage within the fishing grounds determined by the Contractor for the purposes of winning a catch;

…

2.13arrange for the provision of fuel, bunkers and oils to the vessel as required at the expense of the Owner [Sarunic];

2.14ensure that the vessel is at all times suitably provisioned with stores, foodstuffs, cleaning goods and utensils, bedding and accommodations to achieve the reasonable comfort and provisioning of the Master, the Engineer and the crew.

1. Clause 3 was the most significant clause for present purposes.  It read:

3The Owner shall at its/or his expense supply the vessel referred to in Item 4 of the Schedule hereto and shall be responsible for any necessary structural alterations and major repairs to the vessel which cannot be effected in the course of operations of the venture.

1. The Owner was to have property in the catch and was responsible for marketing it.[13]  The Contractor was entitled to 30% of the proceeds and the Owner was to retain 70%.[14]  No partnership was intended nor was the Contractor to have any property interest in the vessel or its equipment.[15]  The agreement could be terminated by either party on 14 days’ notice, or forthwith for breach.[16]  The governing law was (unhelpfully) specified as the law of ‘All State and Commonwealth Waters’.[17]  Clause 21 provided:

The Contractor shall be responsible for all onshore operations necessary to fulfil their obligations hereunder including inter alia the general administration of the fishing operations, vessel provisioning, delivery of the catch, coordination of the collection and delivery of spare parts, equipment, fuel and oil, provisions and all other necessary functions at sea or on shore at the various ports used during the term of the venture and the Contractor shall provide such facilities as are necessary to fulfil the above responsibility.

[13]Exhibit P4, cl 5.

[14]Ibid, cl 8 and Item 6.

[15]Ibid, cl 9.

[16]Ibid, cl10.

[17]Ibid, cl 13 and Item 8.

1. There was an entire agreement clause.[18]  Despite this, the evidence showed that the parties had a further management agreement under which McHugh Investments Pty Ltd charged Sarunic a monthly fee.[19]  Clause 31 provided:

It is a condition of this Agreement that the Contractor/Crewman Crew Share Fishing Agreement in the form as attached hereto and marked “A” will be used by the Contractor in relation to the engagement of any crew members.

[18]Ibid, cl 24.

[19]Exhibit D5.

1. No copy of any such attachment was included in the evidence.  However the evidence indicated that the Christina S was invariably crewed by the skipper, an engineer and two deckhands.  The skipper received 12% of the value of the catch, the engineer 8% and the deckhands 5% each.[20]

The Christina S and the fishing operation

[20]Transcript 283 (McHugh).

1. The Christina S began life as a tuna poling vessel.  Accordingly it had a low deck close to the waterline and low sides.[21]  The original deck was made of steel.  In 1986/87 the vessel underwent a major refit.  It was converted to a midwater trawler.  As part of the refit, a wooden deck was affixed above the central part of the former steel deck.  That wooden deck remained in place at the time of the accident.  There was steel decking on either side.[22]  The width of the timber deck was about 3m.[23]  At the front end of the decking there was a net drum, divided so as to hold two nets.[24]  The net being used on the day of Mr Stretton’s accident was about 30m across and about 200m in length.[25]  The net weighed about 2 tonnes.[26]

   [21]Transcript 240 (Cain).

   [22]Transcript 42 et seq (Stretton).

   [23]Transcript 125–6 (Stretton).

   [24]Transcript  42 et seq, 132 (Stretton).

   [25]Transcript 42 et seq (Stretton).

   [26]Transcript 42 et seq (Stretton).

1. The net would be ‘shot’ out rearwards from the net drum.  The net was later pulled in and hoisted by a crane and opened, causing the fish to fall out onto the deck. The fish were then sorted by size and variety. Some fish were gutted. The fish were washed and put into brine bags, depending on their variety and size, and then dropped down into the brine tank.[27]

   [27]Transcript 58 (Stretton).

1. When the boat returned to port, the fish were removed from the brine tank, sorted, and loaded into plastic fish bins.[28]  The fish bins had flat bottoms.[29]  The bins were stacked on top of each other to produce a stack five bins high.  The stacks were about four or five feet high.  Each stack was then dragged (pushed or pulled) by one of the deck hands along the deck and then loaded onto a wheeled conveyor which was based on land but which extended over the side of the boat.[30]  Each bin weighed 40–45 or possibly 50 kgs.[31]  The bin stack was dragged a distance of about 15–20 feet.[32]  The boat always pulled up port-side to the wharf.  The areas of the deck where the dragging and loading of the fish bins took place experienced extra wear accordingly.  The accident involving Mr Stretton occurred in that vicinity.

   [28]Transcript 58, 159 and161 (Stretton)

   [29]Transcript 162 (Stretton) and 237 (Cain).

   [30]Transcript 58–9, T159–60 (Stretton); 237-9, 242 (Cain).

   [31]Transcript 59, 158, 160 (Stretton), 237 (Cain).

   [32]Transcript 161 (Stretton).

The injured worker

1. Mr Ian Stretton was born on 7 March 1955.[33]  Prior to the accident he had done a wide range of jobs, including working as a labourer, truck driver, laboratory technician, assistant manager at a hotel and union steward at an aluminium plant.[34] 

   [33]Transcript, 37 (Stretton).

   [34]Transcript 37 – 39 and 57 (Stretton).

1. Mr Stretton began working on fishing vessels in about 1990 and worked on about 16 different fishing vessels.[35]  He obtained the qualifications necessary to become a skipper except that he could not pass the eyesight requirements.[36]  He applied for and obtained an engineer’s ticket.[37]  He commenced employment with McHugh Investments Pty Ltd on 22 September 2000.[38]  The position was a temporary one, pending the return from holidays of Mr McHugh’s stepson who was one of the two regular deckhands.

   [35]Transcript 39 – 40 (Stretton).

   [36]Transcript 39 – 40, and 101 (Stretton).

   [37]Transcript 40 (Stretton).

   [38]Exhibit D1.

The circumstances of the accident

1. It is not in dispute that at or about 11 am on 22 October 2000 Mr Stretton slipped and fell while working on the boat, sustaining an injury that turned out to be serious. 

1. The crew working on the day of the accident consisted of Mr Stretton, another deckhand named Aaron Workman, the skipper John McHugh, and the engineer David Cain.[39] At the time of the accident, the crew was using the port side net.[40] The net was in after a shot,[41] but had not been opened yet.[42]    This was the second or third shot for the day.[43] The fish were still in the net.[44]   Mr McHugh was at the back of the net drum, inside the cabin, winding in the net.[45]   The previous shot or shots for the day had not netted much fish.[46] Mr Stretton was working on the starboard side of the vessel near the net drum.[47] Mr Aaron Workman was working on the port side.[48]  Mr Stretton went to help Mr Workman.[49]  There was a need to disentangle some saw sharks (sometimes called sword sharks) from the net on the port side.[50]  Mr Stretton proceeded back towards the stern ramp, walking first on the net on the wooden decking on the starboard side.[51]   Mr Stretton signalled to Mr McHugh to make sure he did not move the net.[52]   He then walked across the net towards the port side.[53]   There was a gap of about 3 feet between the edge of the net and the sideboards separating the wooden deck from the metal deck on the port side.[54]  Mr Stretton crossed the net so that his feet were no longer on the net.[55]  He turned towards Mr Workman.[56]  He took one or two steps, slipped and fell whilst still on the wooden deck.[57]

   [39]Transcript 275 (McHugh).

   [40]Transcript 133 (Stretton).

   [41]Transcript 45 (Stretton).

   [42]Transcript 168 (Stretton).

   [43]Transcript 129 (Stretton).

   [44]Transcript 46 (Stretton).

   [45]Transcript 80–1 (Stretton).

   [46]Transcript 45 and 130 (Stretton).

   [47]Transcript 45 (Stretton).

   [48]Transcript 45 (Stretton).

   [49]Transcript 45 (Stretton).

   [50]Transcript 45, 121 and 168 (Stretton).

   [51]Transcript 46 (Stretton). See also Transcript 109, 124, 127 (Stretton). Cf Transcript 82–3 (Stretton), suggesting Stretton walked on the steel decking.

   [52]Transcript 47 and128 (Stretton).

   [53]Transcript 47, 109, 121, 125, 129 and 134 (Stretton).

   [54]Transcript 131 and 134 (Stretton).

   [55]Transcript 47 (Stretton).

   [56]Transcript 48 (Stretton).

   [57]Transcript 47 (Stretton).

1. Mr Stretton gave evidence that he landed ‘with the small of my back right on a protrudence’.[58]

   [58]Transcript 52 (Stretton).

1. Mr Stretton did not immediately realise that he had sustained an injury but knew that he had ‘hurt’ himself.[59]  Over the following 10 days (during which he continued to work) his symptoms developed to the point where he ‘couldn't go any further’.[60]  He has not been able to pursue any employment since then.[61]

   [59]Transcript 52 (Stretton).

   [60]Transcript 52 (Stretton).

   [61]Transcript 56 (Stretton).

1. His CT and MRI scans, examinations and symptoms are consistent with spinal injury resulting from a fall on the buttocks, described as a classic ‘banana skin’ fall.[62]

   [62]Transcript 199, 204 and 213 (Brownbill).

The nature and scope of Sarunic’s duty to Stretton

1. It is unnecessary to determine whether Sarunic was an ‘occupier’ of the vessel at the time of the accident.  Sarunic accepts, and I am prepared to assume, that Sarunic was under a general common law duty of care towards Mr Stretton.[63] Sarunic also accepts, and I am prepared to assume, that that duty was co-extensive with the duty of an occupier as specified in s 14B(3) of the Wrongs Act 1958, to wit:

(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

The VWA does not submit that the duty should be expressed more strictly or in any way differently.

[63]Amended defence, [8(d)].

1. Further, Sarunic accepts, and I am prepared to assume, that in determining whether Sarunic’s general duty to Mr Stretton was discharged, it is appropriate to have regard to each of the matters listed in s 14B(4) of the Wrongs Act 1958 (so far as they may be applicable), to wit:

(4)Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—

(a)       the gravity and likelihood of the probable injury;

(b)       the circumstances of the entry onto the premises;

(c)       the nature of the premises;

(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;

(e)       the age of the person entering the premises;

(f)the ability of the person entering the premises to appreciate the danger;

(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;

(fb)whether the person entering the premises is engaged in an illegal activity;

(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

1. Of course, what amounts to ‘reasonable’ care depends on all the relevant circumstances.  And, as mentioned above, the CSL case indicates that the special, hazardous features of the marine environment may mean that particular attention to safety is called for.[64]

   [64]CSL (2009) 264 ALR 441, especially [65] and [69].

1. Up until close to the end of the hearing the VWA’s position was that Sarunic’s duty was ‘non-delegable’.[65]  In the end, however, the VWA resiled from that contention.[66]  Earlier, Sarunic had acknowledged that the debate was a sterile one, because Sarunic accepted that, bearing in mind clause 3 of the joint venture agreement, it had at least some responsibility for the state of the deck, notwithstanding that it was entitled to rely to some extent on Mr McHugh as a competent person.[67]  In any event, it is clear that neither McHugh Investments Pty Ltd nor Sarunic was under a duty of strict liability to Mr Stretton, ie neither was under a duty to ensure or guarantee that the vessel was safe or defect-free.[68]

   [65]See, generally, Kondis v State Transport Authority (1984) 154 CLR 672, 687; cf Jones v Bartlett (2000) 205 CLR 166 esp 220–221 [190]–[194] (Gummow and Hayne JJ).

   [66]Transcript 601–602 (Moore).

   [67]Transcript 511–513, 524 (Jens).

   [68]Compare Jones v Bartlett (2000) 205 CLR 166, 221 [193].

The nature of Sarunic’s alleged breach of duty

1. In its amended statement of claim, the VWA expresses the alleged breach of duty in a number of ways, but essentially the allegation is that conduct or omissions  of the defendant resulted in the deck of the boat being in an unduly hazardous or unsafe condition while the relevant fishing operations were taking place. 

1. The VWA says that the deck was hazardous or unsafe because it was unduly worn.  The wear in the deck is said to have resulted in the following defects:

•The worn timber of the deck became increasingly smooth and slippery with time.

•The camber of the deck became inverted so that water, instead of running off the sides, gathered at the centre of the deck.  Excessive wear in particular spots also caused water to collect at these spots and form small pools.  Both the small pools and the larger pool of water at the centre of the deck were said to be slippery.

•The bolts that were used to affix the timber decking to the underlying structure became exposed and protruded above the surface of the deck like ‘spikes’.  This was said to present a tripping hazard.

•The knots in the wood, which are harder than the surrounding timber and more resistant to wear, came over time to protrude above the level of the worn deck.  These knots were said to be slippery and to also present a tripping hazard.

•The protruding knots and bolts gave the deck an uneven, undulating surface which was said to present a risk of imbalance and slipping, and risks associated with dragging heavy stacks of boxes across the surface.

1. The essence of the VWA’s case was that Sarunic should have refurbished, repaired or replaced the deck so as to avoid these alleged defects.[69]

   [69]Transcript 117 (Moore).

1. In the amended statement of claim the VWA also alleged that Sarunic should have warned Mr Stretton about the condition of the deck,[70] but it did not pursue this at the trial.

   [70]Amended Statement of Claim, Particulars of negligence and statutory duty.

1. The VWA made early suggestions, especially through its expert Mr Behan, that Sarunic should have treated the deck with some kind of anti-slip coating.  The VWA’s counsel later emphatically renounced any reliance on the absence of non-slip coating.[71]

   [71]Transcript 117 (Moore).

Did the deck present a risk of injury?

1. There is no doubt that the deck was worn to some extent.  Before considering whether the defendant’s conduct constituted negligence, I will first determine whether the wear in the deck did in fact present a risk of injury. 

1. The plaintiff submits that in considering this question I must consider all alleged risks arising out of the state of the deck.[72]  This includes not only the risk of slipping, which is what eventually occurred in this case, but also tripping and risks associated with dragging stacks of heavy fish bins across an uneven deck.[73]  I will assume, without deciding, that this approach is appropriate.

Did  worn timber become increasingly slippery with time?

[72]Transcript 532.

[73]Transcript 550.

1. There is no proper basis for finding that the worn flat areas of timber between the knots and bolts were, in themselves, more slippery than new timber.

1. There was no evidence that the worn timber of the deck, insofar as it was flat, was more slippery than new timber.  Mr Stretton was cross-examined about the issue but refused to clearly say whether or not he thought the flat decking became more slippery with wear.[74]  It was clear from his evidence that he was primarily concerned about the knots and ‘spikes’ (being the protruding bolts) rather than the flat areas of timber.  Indeed, Mr Stretton appears to blame what he allegedly landed on, not what he may have slipped on, for his injury.  The plaintiff’s expert, Mr Behan, could not say whether worn timber is any more slippery than new timber.[75]  He frankly conceded that he was not a ‘traction expert’.[76]  The defendant’s expert marine surveyor, Mr Wilson, opined in his report that normal wear ‘would not cause a deck surface to be more slippery with the passage of time’.[77]  Mr Kretschmer, a marine surveyor, stated in his report that it ‘is not necessarily the case’ that wear equates with slipping, and that it is ‘possibly the opposite’.[78]  Neither Mr Wilson nor Mr Kretshmer were required for cross-examination.  The boat’s captain, Mr McHugh, gave evidence that the deck becomes less slippery with age.[79]  I found Mr McHugh to be an impressive witness on all matters, and I accept his evidence in this particular regard.

   [74]Transcript 137-138 (Stretton).

   [75]Transcript 338-339, 359 (Behan).

   [76]Transcript 328.

   [77]Report of Barry Wilson, 29 April 2009, [4].

   [78]Report of Robert Kretschmer, 31 August 2010, [6.2.12].

   [79]Transcript 292 (McHugh).

1. The weight of the evidence therefore points clearly against a finding that the flat areas of timber became increasingly slippery with age.

Did pools of water present a risk of injury?

1. I am satisfied that wear in the deck caused pools of water to collect and that these pools of water presented some additional risk of slipping.

1. New decks are constructed with a slight camber so that the water runs off to the sides of the deck and then off the boat.[80]  Mr McHugh said that if Christina S did have a camber originally, it was very small.[81]  Mr Stretton confirmed that the camber is only slight and the deck looks flat.[82]  As the deck aged, heavy wear or gouging along the centre of the deck created a trough, in effect inversing the camber so that a pool of water collected in the trough.[83]  The gouging began about a foot away from each side of the deck and was deepest in the centre.[84]  Mr Stretton estimated the gouging at just over three quarters of an inch.[85]  Wear in particular spots caused pools of water about the circumference of a paper cup to form in those spots.[86]  The vessel’s engineer, Mr David Cain, twice said during his evidence that once water accumulated in the low spots the deck became slippery.[87]  No actual examples of slips or falls so caused were given.  And I bear in mind that the wooden deck of an ocean-going fishing trawler will frequently be quite wet even if it is in brand new condition, and that the crew would be well aware of the need to protect themselves accordingly as far as possible.

Did knots protruding from the deck present a risk of injury?

[80]Transcript 50 (Stretton).

[81]Transcript 291 (McHugh).

[82]Transcript 134 (Stretton).

[83]Transcript 50 (Stretton), 236 (Cain), 327 (Behan).

[84]Transcript 50 (Stretton), 236 (Cain), 239-240 (Cain), 256 (Cain).

[85]Transcript 135, 138-139 (Stretton).

[86]Transcript 291 (McHugh).

[87]Transcript 240, 260 (Cain).

1. I accept that the knots protruding from the deck presented minor risks associated with dragging fish bins, but I am not satisfied that those knots were significantly more slippery than knots in a new timber deck, even when wet.  The raised knots may have presented a tripping hazard, but there was little focus on this because Mr Stretton did not trip.

1. Knots in timber are harder or more resistant than the surrounding timber and hence wear down more slowly.[88]  As the surrounding timber wore down, the knots came to protrude above the surface level of the deck. [89]  The protrusions were in the shape of lumps about the size of a fist.[90]  This gave the deck an uneven, undulating surface.[91]

   [88]Transcript 290 (McHugh).

   [89]Transcript 50-51 (Stretton), 235, 242 (Cain), 289 (McHugh).

   [90]Transcript 51 (Stretton).

   [91]Transcript 235 (Cain), 291 (McHugh).

1. I accept that the protruding knots obstructed movement of the stacks of fish bins that were dragged across the deck to the conveyor.[92]  The stacks of fish bins had to be lifted over the protruding knots.[93]  Given that the stacks of fish bins could weigh up to 200 kg, there was presumably some risk of injury in dragging and lifting them over an uneven surface.[94]  However there was no evidence that an injury had actually ever been caused in that way on this or any other vessel.

   [92]Transcript 138, 162 (Stretton).

   [93]Transcript 162 (Stretton).

   [94]Transcript 328 (Behan).

1. As to whether the raised knots presented an increased slipping hazard, it is true that Mr Cain said:

If you step on the high bits, like the knots, they are quite slippery yes.  Compared to the low bits, well, the low bits if they held water would be slippery though too because they have slime build up in the bottom.[95]

[95]Transcript 260 (Cain).

However, this evidence only came out in re-examination, in response to a rather leading question.  Mr Cain had not given evidence to this precise effect in chief or under cross-examination, notwithstanding opportunities to do so.[96]  Moreover, Mr Cain acknowledged during cross-examination that at no stage had he complained to Mr McHugh about the state of the deck.[97]  Further, Mr Cain acknowledged that a wet deck of its nature can be slippery.[98]  Overall, I did not understand Mr Cain to be intending to convey that, in his view, the raised knots presented a major or highly significant additional risk of slipping.  Further, Mr McHugh gave evidence, which I accept, that in his view wear on the deck actually provided better traction.  Mr McHugh was referring, I think, not only to the low parts but also to the raised knots.[99]  Mr McHugh has had 30 years experience as a fisherman and skipper, including considerable time out on deck.

Did bolts protruding from the deck present a risk of injury?

[96]See, for example, transcript 240–242.

[97]Transcript 251 (Cain).

[98]Transcript 260 (Cain).

[99]Transcript 292, especially at lines 1–6.

1. I am satisfied that bolts protruding from the deck presented a risk of tripping and risks associated with dragging fish bins.  However I am not satisfied that the bolts protruded very far or were left protruding for very long periods.

1. The timber decking was affixed to the steel deck with metal bolts.  The bolts were originally countersunk into the timber and caulked up to produce a smooth surface.[100]  As the timber deck wore away, some of the caulks came out and the bolts became exposed.  Mr Stretton called these bolts ‘spikes’ and said that they were a problem because the fishing net got caught and torn on them, because boots could get caught on them and cause tripping and because they impeded the fish bins being dragged across the deck.[101]  He said that, as with the protruding knots, the workers pushing the bins had to stop and lift the bin stacks over the ‘spikes’.[102]  I regard the use of the word ‘spikes’ in this context as a little overdramatic.  When counsel for the VWA used the word ‘spikes’ in leading evidence from Mr Cain, Mr Cain did not take up that usage but rather referred to ‘bolts’.[103]  Mr Cain also said that he needed to grind the bolts down from time to time but when asked about the ‘point and purpose’ of grinding the bolts down, Mr Cain referred only to the problem of the fishing nets getting caught on them.[104]  He said that in his two years on the boat, he ground down the bolts two or three times.[105]  Mr McHugh initially said that the bolts did not protrude above the deck level.[106]  However he later agreed that the bolts had to be cut back or ground down,[107] suggesting that they did in fact protrude, at least a little.  Taking all of this evidence into account, I would accept that the exposed bolts were a little problematic in relation to tripping and dragging fish bins, but not to any great extent.

   [100]Transcript 290 (McHugh).

   [101]Transcript 138 (Stretton).

   [102]Transcript 162 (Stretton).

   [103]Transcript 236 (Cain).

   [104]Transcript 236 (Cain).

   [105]Transcript 236-7 (Cain).

   [106]Transcript 291 (McHugh).

   [107]Transcript 293 (McHugh).

1. During his oral evidence, Mr Behan suggested that metal bolts may be slippery.[108]  Mr Behan did not mention this in his report and there is no other evidence to support this suggestion.  I am not satisfied that the protruding metal bolts presented a slipping hazard.

   [108]Transcript 360 (Behan).

Did the defendant breach its duty of care by failing to replace the deck?

1. Whether or not the defendant breached its duty of care falls to be determined by common law principles of negligence.  Part X of the Wrongs Act 1958 does not apply to this case.[109]

   [109]Wrongs Act 1958, s 45(1)(b).  The parties proceeded on this basis (see transcript 530).

1. The common law approach to establishing breach of a duty of care was classically stated by Mason J in Wyong Shire Council v Shirt:[110]

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant’s position.

Foreseeability

[110](1980) 146 CLR 40, 47.

1. I am prepared to accept, with considerable hesitation, that a reasonable person in Sarunic’s position would have foreseen that his conduct in allowing the vessel to sail without replacing the deck involved some risk of injury to a person in Stretton’s position. 

Reasonableness of response

1. The next question is the reasonableness of Sarunic’s response, which was to take no action.  As Gleeson CJ has said:

The response of most people to many hazards in and around their premises is to do nothing.  The legislation has recognised, and has reminded Courts, that, often, that may be a reasonable response.[111]

[111]Neindorf v Junkovic [2005] HCA 75, 222 ALR 631, [14]. See also New South Wales v Fahy (2007) 232 CLR 486, 491–2 [7] (Gleeson CJ); Vairy v Wyong Shire Council (2005) 223 CLR 422, 461 [124] (Hayne J).

1. I am not satisfied that a reasonable person in Sarunic’s position would have replaced the deck before the accident on 22 October 2000.

Seriousness of possible harm

1. I accept that possible injuries could range from the relatively minor to the serious.  There was no dispute that Mr Stretton has in fact suffered a debilitating spinal injury.  Indeed, a slip on the deck could also present a risk of falling off the boat and drowning as the boat had low sides and no sides at all at the stern ramp.[112]  The difficulty in dragging and lifting the heavy fish bins over an uneven deck poses risks of musculo-skeletal injuries that might be serious in some cases.

The degree of probability of harm – the evidence of Mr Behan

[112]Transcript 240 (Cain), 554 and 568 (Moore).

1. The plaintiff relied primarily on the evidence of Mr Behan, a qualified shipwright and boatbuilder, and an accredited marine surveyor.[113]  Mr Behan has around 50 years experience working with timber decking.[114]

   [113]Transcript 322 (Behan).

   [114]Transcript 323 (Behan).

1. Mr Behan said that Mr Stretton’s description of the wear in the deck was in line with what he would expect on a vessel like Christina S.[115]  In his opinion, the deck ‘needed to be replaced in the year 2000’.[116]  He said that at the moment that a deck shows signs of being worn, and particularly when the deck shows signs of unevenness and when the caulks over the bolts come loose, maintenance of the deck is due or overdue.[117]  He said that bolts or studs protruding above the deck level, so as to require grinding down, indicate that the deck is ‘well worn’.[118]  He said that at the moment the deck becomes uneven, it becomes a risk and an obstacle, no matter how small the level of disrepair is.[119]

   [115]Transcript 324-5 (Behan).

   [116]Transcript 332 (Behan).

   [117]Transcript 327 (Behan).

   [118]Transcript 331 (Behan).

   [119]Transcript 328 (Behan).

1. In Mr Behan’s opinion, a timber deck requires some replacement of planking and seams every two years.[120]  However, if a deck is more than two-thirds worn, he said that it would be more economical to replace the whole deck than individual planks.[121]  He also opined that there has been a poor practice of deck maintenance in the fishing industry, suggesting that decks are generally kept longer than he recommends.[122]

   [120]Transcript 330 (Behan).

   [121]Transcript 328 (Behan).

   [122]Transcript 330 (Behan).

1. In my opinion, Mr Behan’s evidence does not show that at the time of Mr Stretton’s accident, late October 2000, the deck was in clear need of replacement.  Mr Behan merely stated that the deck ‘needed to be replaced in the year 2000’.[123]  He did not make clear whether he meant it needed to be replaced before the year 2000 or during the course of the year 2000.  The VWA’s counsel preferred the latter interpretation.[124]  Presumably Mr Behan was saying that the deck should have been replaced before the accident in late October 2000, but even so he was hardly saying that replacement was well overdue.

   [123]Transcript 332 (Behan).

   [124]Transcript 537 (Moore).

1. In any event, Mr Behan’s evidence was not convincing.  Key elements of his oral evidence were not mentioned in his expert report.  Mr Behan did not state in his report that the deck needed to be replaced.  He merely recommended that the decking ‘should have been regularly maintained to a ‘safe footing’ standard’.[125]  He could not point to any applicable industry standard that had been contravened.

   [125]Report of Russell Behan, 30 March 2010, [9.4].

1. The weight of Mr Behan’s evidence generally was greatly lowered by the fact that most of his recommendations, such of the use of mats and rails,  were expressly abandoned by the VWA whose counsel apparently had access to an alternative source of relevant expertise at the trial.[126]  Mr Behan placed particular emphasis on the use of a non-slip coating.[127]  This recommendation was openly and emphatically rejected by the VWA itself.  The VWA’s counsel went to the extent of saying that ‘my instructions obtained from our current witness are that he has never seen it in ten years of experience on fishing vessels… I don’t believe it would even in the in the pool as a proposition’.[128]  There was such a discrepancy between Mr Behan’s evidence and the VWA’s ultimate case theory that Mr Behan asked at one point during cross examination ‘Am I in the right case?’.[129]  I therefore place little weight on Mr Behan’s evidence.

The degree of probability of harm - the evidence of other surveyors

[126]Transcript 116 (Moore) and 543 (Moore).

[127]Transcript 334-335, 349-350 (Behan); Report of Russell Behan, 30 March 2010, [6.2.8], [6.2.10], [6.2.20], [9.1], [10.1.2].

[128]Transcript 117 (Moore).

[129]Transcript 351 (Behan).

1. Christina S was surveyed twice in 1999.  The first survey was conducted by Robert Kretschmer of K. Tech Marine on 22 April 1999.[130]  The second survey was conducted by the Department of Transport on 23 November 1999.[131]  Neither of those reports noted any defects in the deck.

   [130]Exhibit P16.

   [131]Exhibit P8.

1. The Department of Transport survey listed a number of other defects requiring repair before a statutory certificate of survey would be issued.  Crew safety is a requirement of the Department of Transport survey and the condition of the deck is a matter that would be inspected as part of the survey.[132]  In the opinion of Mr Wilson, an extremely experienced surveyor, if the deck of a vessel appeared unsafe to a Department of Transport surveyor, that would be noted in the report and the owner would have been required to effect repairs.[133]

   [132]Report of Robert Kretschmer, 31 August 2010, [9]; Report of Barry Wilson, 29 April 2009, [6].

   [133]Report of Barry Wilson, 29 April 2009, [6].

1. Mr Kretschmer states that close inspection of the deck was an integral requirement of his survey.  He states that if no comment was made, then there was no deficiency requiring corrective action.[134]

   [134]Report of Robert Kretschmer, 31 August 2010, [2].

1. The state of the deck at the time of those surveys could not have been very different to its state at the time of Mr Stretton’s accident.  Mr Behan conceded that a reasonable surveyor would have inspected the condition of the deck and would have noted any defects.[135]

   [135]Transcript 351 (Behan) and 558 (Moore).

1. It can therefore be concluded that in 1999, the year before the accident, two independent surveyors were not of the opinion that the deck of Christina S required replacement, or required any attention at all.

1. The deck had been installed in 1986/87.  The accident occurred 13 years later, in the year 2000.  According to Sarunic’s expert, Mr Wilson, who was not required for cross-examination, in normal circumstances timber decks will usually require attention ‘after a period of around twenty years’.[136]  He also said that normal wear would not cause a deck surface to become more slippery with the passage of time.[137]  Sarunic’s other expert, Mr Kretschmer, who was not required for cross-examination either, largely supported Wilson’s view, rather than Behan’s view, in this respect, saying that the wooden decks of fishing vessels like the one on the Christina S will last for many years without requiring work other than regular cleaning.[138]

The degree of probability of harm  - the evidence of the crew

[136]Exhibit D2, 2.

[137]Ibid.

[138]Exhibit D4, 7.

1. The captain of Christina S, Mr McHugh, was of the opinion that the deck did not need to be replaced at the time of the accident.[139]  Mr McHugh is a commercial fisherman with over 30 years experience.[140]  He was the captain of Christina S from early 1995 to February 2003.[141]  He went down to the deck once or twice per day.[142]  Mr McHugh said that the deck was not in an unsatisfactory condition in 2000 and that at no stage would he have called it unsafe.[143]  He said that the deck had a moderate amount of wear but that it was still serviceable.[144]  He said that he had no concern with the deck.[145]  Mr McHugh’s own stepson worked on the boat as a deckhand both before and after Mr Stretton.[146]  Mr McHugh is unlikely to have employed his stepson had he believed that there was any significant risk that his stepson would be injured as a result of the condition of the deck.

   [139]Transcript 299 (McHugh).

   [140]Transcript 275 and 298 (McHugh).

   [141]Transcript 276 (McHugh).

   [142]Transcript 164 – 166 (Stretton).

   [143]Transcript 297 and 299 (McHugh).

   [144]Transcript 289 – 290 (McHugh).

   [145]Transcript 289 (McHugh).

   [146]Transcript 245 (Cain) and 302 (McHugh).

1. As indicated above, I regard Mr McHugh as a credible and reliable witness.  Having ceased to be the boat’s captain in 2003, neither he nor his company has any stake in the outcome of these proceedings, except to the extent that comments may be made on his qualities and reputation as a skipper.  In final address, the VWA’s counsel submitted that because Mr McHugh is still involved in the fishing industry he might have a reason to favour the position of Sarunic.  However this suggestion was not put to Mr McHugh in the witness box and I give it no credence.

1. Mr Cain, the boat’s engineer, regarded Mr McHugh as an excellent skipper.[147]  Both Mr Cain and Mr Stretton described Mr McHugh as being concerned for his workers’ safety.[148]  Mr Stretton asserted that there was no incident book on board the boat, but this matter was not put to Mr McHugh by either counsel, notwithstanding that both had been given liberty in advance to cross-examine Mr McHugh generally, if they saw fit.[149]  I accept that replacing the deck might have been against Mr McHugh’s financial interests as it would have taken the boat out of action for some time, a matter I will return to later.  Nevertheless, I am satisfied that Mr McHugh would have requested replacement of the deck had there been any basis for significant concern about its condition.  He described the defendant as a very accommodating boat owner who was excellent to deal with. [150]  He was of the opinion that had he requested a replacement of the deck, he would have gotten a positive response from the defendant.[151]  There was no suggestion that Mr McHugh would have refrained from requesting repairs to protect his business relationship with the defendant. 

   [147]Transcript 252 (Cain).

   [148]Transcript 164 (Stretton) and 252 (Cain).

   [149]Transcript 164 and 167 (Stretton).

   [150]Transcript 300 (McHugh).

   [151]Transcript 301 (McHugh).

1. Mr Cain did not believe the deck needed to be replaced at the time of the accident.  Mr Cain is an experienced marine engineer who was in the marine industry for about 20 years working on various vessels.[152]  Mr Cain worked on Christina S as a deckhand before taking up the engineer’s role.[153]  He was therefore very familiar with the deck.  Mr Cain said that if anything on the boat needed to be fixed, he ensured it was fixed or the boat did not go out.[154]  He went on to say that there were certain things that had to wait for a total refit,[155] but I did not take this as any kind of qualification of his endorsement of Mr McHugh as an excellent skipper who was concerned for safety and fully responsive to all reasonable requests made by Mr Cain.

   [152]Transcript 230 (Cain).

   [153]Transcript 230 – 231 (Cain).

   [154]Transcript 251 – 252 (Cain).

   [155]Transcript 253 (Cain).

1. Mr Cain’s evidence was that the deck ‘was still workable’.[156]  He said that it ‘wasn’t brand new but it wasn’t worn out’.[157]  He said he had seen better decks and worse decks.[158]  If it were Mr Cain’s boat, he would have left the deck ‘for a while’ because of the cost of replacing it.[159]

   [156]Transcript 248 (Cain).

   [157]Transcript 249 (Cain).

   [158]Transcript 265 (Cain).

   [159]Transcript 248 – 249 (Cain).

1. Mr Cain thought that Christina S was a good boat[160] and that the crew were lucky to get a job there, although this was in part because it had a lucrative orange roughy quota.[161]  He continued to work on the boat for at least a year after Mr Stretton’s accident.[162]  He left for personal reasons unrelated to the condition of the deck.[163]  He later tried to return but there was no vacancy.[164]

   [160]Transcript 247 (Cain).

   [161]Transcript 252 – 253 (Cain).

   [162]Transcript 232 (Cain).

   [163]Transcript 243 (Cain).

   [164]Transcript 253 – 254 (Cain).

1. Mr Stretton was more critical of the deck than the other witnesses.  He claimed that he raised the condition of the deck with Mr McHugh and Mr Cain.[165]  He claimed that he raised it twice with Mr McHugh.  The first time, he said, was on the occasion of the first shot Mr Stretton ever did on the boat.[166]  He claimed that he had never seen so much water on a deck.

   [165]Transcript 53 (Stretton).

   [166]Transcript 54 (Stretton).

1. Mr Jens did not squarely put to Mr Stretton that he had not had conversations with Mr McHugh along the lines alleged.[167]  However, it is not clear whether Sarunic’s legal representatives had conferred with Mr McHugh prior to the hearing.  When Mr McHugh gave evidence he emphatically denied that he had had a conversation of the kind suggested.[168]  He insisted that Sarunic would have authorised any requested work.

   [167]Transcript 123.

   [168]Transcript 308 (McHugh).

1. I prefer Mr McHugh’s evidence in this regard to Mr Stretton’s, for five main reasons.  First, the suggestion that the deck was obviously in need of replacement, and that Mr Stretton told Mr McHugh this, is contrary to the independent evidence of the 1999 surveys and is contrary to the evidence of Cain and of Sarunic’s experts.  Second, the VWA itself submits that Mr Stretton’s memory and presentation is unreliable in other respects,[169] partly as a result of the large array of medications he takes.[170]  Third, inconsistently with his evidence that he had never seen so much water on a deck, Mr Stretton acknowledged that he had not raised the issue of the camber inversion with anybody on the boat.[171]  Mr Stretton had previously worked as a shop steward and was comfortable with raising safety issues with management.[172]  Fourth, Mr Stretton stated that at the time of his accident he did not believe that he was at any risk of slipping or falling on the deck.[173]  This suggests that, at that time, any concern he had with the state of the deck was not such that he regarded it as requiring immediate replacement.  Fifth, it is only natural for Mr Stretton to have brooded for many years over his accident, which has had devastating impact on his life, and for him to be very concerned about the perceived cause of his injury.

The cost of replacing the deck

[169]Transcript 590.

[170]See the evidence of the psychiatrist Dr Ridley, especially at transcript 271–273.

[171]Transcript 135 (Stretton).

[172]Transcript 99 – 100 and 140 (Stretton).

[173]Transcript 123 – 124 and 164 (Stretton).

1. To be balanced against the risk of injury is the cost of replacing the deck (at a time prior to the accident), both to Sarunic and to the crew.

1. Sarunic in fact replaced the timber deck of Christina S in October 2002.[174]  The cost of the works to Sarunic was over $22,000.[175] At that time, the boat was in Port Lincoln for engine repairs and replacement of its gearbox.[176]   Those repairs took the boat out of action from August 2002 to February 2003.[177] 

   [174]Transcript 277 (McHugh).

   [175]Exhibits P14 and P 15.

   [176]Transcript 276 – 277 and 294 (McHugh).

   [177]Transcript 295 (McHugh).

1. Replacement of the timber deck could only be done by certain skilled carpenters.[178]  Such carpenters were not available in Portland but were available in Port Lincoln.[179]  Taking the boat to Port Lincoln and carrying out the replacement would have taken the boat out of action for a week – a major loss of fishing time.[180] 

   [178]Transcript 294 (McHugh) and 329 (Behan).

   [179]Transcript 294 and 308 (McHugh).

   [180]Transcript 282 – 283 and 304 (McHugh).

1. Mr McHugh’s evidence was that even at the time it was replaced, the deck’s useful lifespan had not been exhausted.[181]  He said that it was reasonably well worn but it could have continued in operation.[182]  The deck was replaced because it was an opportune time whilst the boat was in any case grounded in Port Lincoln and whilst skilled carpenters were available to perform the work.[183]   

   [181]Transcript 304 (McHugh).

   [182]Transcript 304 (McHugh).

   [183]Transcript 294 (McHugh).

1. Had the deck been replaced at some other time, there would have been significant cost to the crew.  The crew were not paid a fixed salary but a percentage of the catch.[184]  Sarunic received 70% of the catch with the remaining 30% split among the crew according to seniority.[185]  Mr Stretton received around 5% of the catch.[186]  A deckhand such as Mr Stretton could have expected to earn between $50,000 and $80,000 a year in the year 2000.[187] 

Conclusion as to breach

[184]Transcript 233 (Cain).

[185]Transcript 233 (Cain) and 283 (McHugh).

[186]Transcript 80, 157 (Stretton) and 283 (McHugh).

[187]Transcript 233 (Cain) and 284 (McHugh).

1. While it may have been for Sarunic to adduce specific evidence about its own resources or ability to absorb the costs of replacing the deck prior to 22 October 2000,[188] the general burden of proving that Sarunic was negligent was on the VWA.[189]  In my view, it has failed to discharge that burden.

   [188]Swain v Waverley Municipal Council (2005) 220 CLR 517 at 525–526 [17] (Gleeson CJ), cf 534 [39] (McHugh J dissenting).

   [189]Ibid.

Was Sarunic’s conduct a cause of Stretton’s injury?

1. Even if Sarunic did breach its duty of care to Mr Stretton, the VWA must also show that Sarunic’s negligence was a cause of Mr Stretton’s injury.  It has failed to do so. 

1. The question of causation is to be determined using the approach laid down in March v E and MH Stramare Pty Ltd.[190]  In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense.[191]  Under this approach, the ‘but for’ test has an important role to play.[192]

   [190](1991) 171 CLR 506.

   [191]Ibid, 515 (Mason CJ), 522–523 (Deane J); Bennett v Minister of Community Welfare (1992) 176 CLR 408, 412–413 (Mason CJ, Deane and Toohey JJ), 4`8–419 (Gaudron J), 428 (McHugh J).

   [192]March v E and MH Stramare Pty Ltd (1991) 171 CLR 506, 515­–516 (Mason CJ), 522 (Deane J).

1. The VWA must show that, but for Sarunic’s negligence, Mr Stretton would not have suffered the injury he has in fact suffered.  In other words, the VWA must show that replacing the deck more probably than not would have prevented or minimised Mr Stretton’s injury.[193]  In the circumstances of the present case this could only be established by showing that a defect of the old deck that would not have been present in a new deck was a factor in the sustaining of Mr Stretton’s injury.

   [193]Kuhl v Zurich Financial Services Australia & anor [2011] HCA 11, 276 ALR 375, [45] and [104]; Harris v Woolworths Ltd [2010] NSWCA 312, [34].

1. The plaintiff has expressly abandoned any reliance on the Naxakis v Western General Hospital[194] and Freidin v St Laurent[195] line of cases insofar as those cases might be thought to support the proposition that merely increasing a risk may be sufficient in itself to establish a material contribution for the purposes of causation.  Counsel conceded that no such proposition was applicable in this case.[196]  In any event, I note that the Full Court of the Federal Court has recently held that the proposition has no present validity in Australia.  In Merck Sharp & Dohme (Australia) Pty Ltd v Peterson,[197] Keane CJ, Bennett and Gordon JJ said:

   [194](1999) 197 CLR 269.

   [195](2007) 17 VR 439.

   [196]Transcript, 611.

   [197][2011] FCAFC 128, [96]–[105].

Causation: The Test

96.     In Chappel v Hart (1998) 195 CLR 232 at [27] McHugh J said:

... If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. ...

This statement was approved in Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at [31] and [127].

97.      In Seltsam v McGuiness at [107]-[108] and [119]-[120], Spigelman CJ emphasised that proof that “the risk eventuated” in the specific injury suffered by the plaintiff is part of the plaintiff’s burden, and that this burden is not discharged merely by showing an increased risk of injury by reason of the defendant’s conduct: “Whether or not the increased risk ‘eventuated’, is the issue which must be determined”. It must be shown that “Y had happened because of X” (emphasis in original).

98.      That is the effect of the authorities on the test for causation under the common law in Australia. The position was summarised recently in Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 at [111]- [113]. Kiefel J, with whom Hayne, Crennan and Bell JJ agreed, said:

The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.

The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test. The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices.

Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain. The purpose of proof at law, unlike science or philosophy, is to apportion legal responsibility. That requires the courts, by a judgment, to “reduce to legal certainty questions to which no other conclusive answer can be given”. The result of this approach is that when loss or damage is proved to have been caused by a defendant’s act or omission, a plaintiff recovers the entire loss (the “all or nothing” rule).

[Footnotes omitted].

99.      The “but for” test serves, in this field of discourse, as a negative criterion. That is to say, unless the defendant’s actionable conduct is shown to be a necessary condition of the plaintiff’s injury, the plaintiff’s claim will not succeed. Thus, in Amaca v Ellis at [11]-[12], it was accepted that a plaintiff must show on the balance of probabilities that the actionable conduct of the defendant was a necessary condition of the occurrence of the harm in respect of which the plaintiff claims damages. It is true, as Counsel for Mr Peterson pointed out, that this rule was not the subject of argument in Amaca v Ellis; but it is also true that this rule represents the law in Australia binding on all courts below the High Court.

100.     In some countries which share Australia’s common law inheritance this rule has been relaxed in recent years. In Evans v Queanbeyan City Council [2011] NSWCA 230 at [23]- [26] Allsop P explained how, in the jurisprudence of Canada and the United Kingdom, the concept of “material contribution” to injury may mean something different in some contexts from its meaning in Australian law. In some cases, a material contribution to an event may be shown by evidence of an increase in the risk of the event even though it is not possible to say that the event would not have occurred but for the conduct which gave rise to the increase in risk. Allsop P said (at [23]-[24]):

It can be accepted that in Resurfice Corp v Hanke at 342-343 [24]-[25], the Supreme Court of Canada expressed the framework for “material contribution” in the absence of a positive conclusion from the “but-for” test as follows:

However, in special circumstances, the law has recognized exceptions, to the basic ‘but for’ test, and applied a ‘material contribution’ test. Broadly speaking, the cases in which the ‘material contribution’ test is properly applied involve two requirements.

First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the ‘but for’ test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the ‘but for’ test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a ‘but for’ approach.

Further, it can be accepted that the House of Lords and now the United Kingdom Supreme Court has modified the common law in the United Kingdom by accepting that, at least as a special rule in mesothelioma claims, fairness and justice demand that the factual link between the wrongful act and the harm to the plaintiff need only be a wrongful exposure of the plaintiff by the defendant to an amount of asbestos that would materially increase the risk of mesothelioma: Fairchild; Barker v Corus; and Sienkiewicz. In Sienkiewicz, the statements of principle may also be seen not to be limited to mesothelioma.

101.     Allsop P went on to note the policy considerations which led to the adoption overseas of a rule that increased risk may itself be sufficient to establish a material contribution for the purposes of causation. His Honour said at [27]-[31]:

...[W]hat was common to the several views of their Lordships in Fairchild was the necessity to depart from the common law’s usual rule of the need for proof on the balance of probabilities in circumstances where it could be unjust for there to be no recovery. See in particular Fairchild at 66 [32] per Lord Bingham of Cornhill, 69 [40] per Lord Nicholls of Birkenhead, 73 [56] per Lord Hoffmann and 112 [155] per Lord Rodger of Earlsferry. These views reflected the expression of the matter by Justice (now Chief Justice) McLachlin at the commencement of an article written by her Ladyship in 1998, “Negligence Law - Proving the Connection” in N J Mullany and A M Linden (Eds) Torts Tomorrow: A Tribute to John Fleming (LBC Information Services, Sydney 1998). The foundational legal and moral premise that can be seen in Fairchild and in the introductory comments in the above article is that tort law, as an aspect of the rule of law, is concerned with righting wrongful conduct. If self-evident wrongs (so characterised by legitimate human perceptions) are not recognised by the law’s rules, and thus go unremedied, people who legitimately feel themselves victims will be left with a sense of injustice. A legitimate sense of injustice should not be the product of the rule of law.

The avowed change to causal principle by the House of Lords that materially increasing the risk of injury was sufficient factual tortious involvement for causation (or attribution of responsibility) to be established was narrowly confined by all their Lordships in Fairchild: at 40 [2] and 55 [21] per Lord Bingham, 70 [43] per Lord Nicholls, 74 [61] per Lord Hoffmann, 91 [108] per Lord Hutton and 118 [170] per Lord Rodger. Crucial to that confinement were factors such as the causal element being singular (only exposure to asbestos) and the inability of medical science to explain cause in terms of a balance of probabilities.

Further illumination of the policy-based change to the common law in Fairchild can be seen from the lively debate in the judgments in Barker v Corus as to what was, in fact, decided in Fairchild. At issue in Barker v Corus was the extent of several liability of the wrongdoers who had exposed the plaintiff to the asbestos, causing a material increase in risk of contracting mesothelioma. Though all their Lordships (with a caveat by Lord Rodger: Barker v Corus at 610 [100]-[102]) came to the view that the exceptional approach in Fairchild should extend to circumstances where not all the exposure was tortiously caused by the defendants, a restriction was placed on the principle being that there must be one causative agent: Barker v Corus at 587 [24] per Lord Hoffmann (his Lordship recanting his view in Fairchild that this limitation was unprincipled), 599 [64] per Lord Scott of Foscote, 611 [104] per Lord Walker of Gestingthorpe and 615 [121] per Baroness Hale of Richmond. Save for Lord Rodger, all were agreed that the extent of responsibility of individual defendants should be measured by reference to the extent to which they had increased the risk, based on the respective length and intensity of exposure: Barker v Corus at 589-590 [35]-[36] per Lord Hoffmann, 599 [62] per Lord Scott, 612 [109] per Lord Walker and 616 [126] per Baroness Hale. The majority, recognising that it was justice and fairness that had given rise to the exceptional rule, thought that justice and fairness should limit the defendants’ respective liabilities by reference to the wrongful exposure. Lord Rodger dissented on this point - all defendants were liable in full, the change in rule in Fairchild being a relaxation of the rules of causation - thus each caused the damage.

At this point, the Parliament intervened with the Compensation Act 2006 (UK), which reflected Lord Rodger’s view in Barker v Corus as to the responsibility of defendants in mesothelioma cases, and not the majority’s view of fairness.

The above discussion of Fairchild and Barker v Corus reveals, at once, the policy questions involved in any conclusion that increasing risk is sufficient for a conclusion of causation or causal responsibility or legal responsibility. Such policy questions are a matter for the High Court, not this Court.

102.     Allsop P summarised the current position in Australia as follows, at [22]:

...Subject to the views of the High Court in respect of any development of the common law or to the operation of any legislation, it can be concluded that at common law, as a general proposition, the increasing of risk of harm by a tortious act is, alone, insufficient for a conclusion of causation by material contribution to that harm or for a conclusion of responsibility in law for that harm.

103.     We respectfully agree with Allsop P.

104. The rule that a plaintiff must establish as a necessary condition of recovery that he or she would not have suffered loss but for the defendant’s actionable misconduct is deeply rooted in the policy of the common law that one person should not be liable for the loss suffered by another unless the plaintiff can establish that the defendant’s actionable conduct caused the plaintiff’s loss. It is not open to this Court to decide that we should no longer adhere to this rule and that a different and “better” rule should henceforth be applied. This Court must proceed on the footing that for Mr Peterson to show that the consumption of Vioxx materially contributed to his MI, in the sense relevant in Australian law, he is obliged to show that his consumption of Vioxx was a necessary condition for the occurrence of the heart attack on 8 December 2003. To say that the consumption of Vioxx was, for example, “in the mix” of possible causes is not enough in this regard. As Beazley JA said in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 339, the onus of proof of causation “is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury”.

105.     We conclude that his Honour’s ultimate findings of fact are not sufficient, as a matter of Australian law, to sustain the determination of the issue of causation in Mr Peterson’s favour. We also consider that the conclusion of ultimate fact necessary to support such a finding is not open on his Honour’s findings of primary fact and we now turn to explain why we take that view.

1. The plaintiff initially indicated that it intended to lead medical evidence showing that landing with the small of his back on a protruding knot or bolt caused or exacerbated Mr Stretton’s injury.[198]  The plaintiff never produced this evidence and its counsel expressly abandoned this line of argument.

   [198]Transcript 313-5 (Moore).

1. The key issue, therefore, is whether any of the defects in the deck of which the VWA complains was a cause of Mr Stretton’s slip and fall.

1. I am not satisfied on the balance of probabilities that, but for the alleged defects in the deck, Mr Stretton would not have fallen or would have suffered a lesser injury.  I am therefore not satisfied that replacing the deck would have prevented or minimised Mr Stretton’s injury.

Slipping on a pool of water

1. The plaintiff submitted, albeit faintly, that Mr Stretton slipped on a pool of water that had built up on worn areas of the deck. I am not satisfied that this is so.

1. The evidence about how Mr Stretton fell came only from Mr Stretton himself.  Mr McHugh saw Mr Stretton picking himself up from the deck but did not see him fall.[199]  Mr McHugh has only a vague recollection of the incident.[200]  Mr Cain did not see Mr Stretton fall.[201]  Mr Workman did not give evidence as the parties were not able to locate him.

   [199]Transcript 284 (McHugh).

   [200]Transcript 284 (McHugh).

   [201]Transcript 232 (Cain).

1. During his evidence, Mr Stretton clearly stated more than once that there was no build-up of water at the place where he fell.[202]  At one point when asked whether there was water at the place where he fell, Mr Stretton said that ‘There was some water there’.[203]  However, in light of his subsequent evidence, this comment is properly understood as meaning merely that the deck was wet.  Mr Stretton later clearly agreed with the proposition that the deck was wet but that there was no build-up of water at the place where he fell.[204] 

   [202]Transcript 137 and 175-6 (Stretton).

   [203]Transcript 55 (Stretton).

   [204]Transcript 137 (Stretton).

1. Furthermore, Mr Stretton slipped near the side of the wooden deck.  He did not slip in the centre of the deck where the most significant gouging was said to be and where the water was said to gather most,[205]  although he did apparently slip in the vicinity of the place where the conveyor was usually placed for unloading fish.

Slipping on a knot or bolt

[205]Transcript 137 (Stretton).

1. The plaintiff submitted that either a knot or a bolt that protruded from the surface of the deck was a cause of Mr Stretton’s fall.

1. The plaintiff accepted that Mr Stretton did not trip on a protruding knot or bolt.[206]  It was clear from Mr Stretton’s evidence that he slipped rather than tripped.[207]

   [206]Transcript 541.

   [207]See for example transcript 139 and 167 (Stretton).

1. The plaintiff’s primary submission was that Mr Stretton slipped on a knot or bolt because the knots and bolts are slippery. 

1. There was no evidence to show that the bolts are slippery.  If anything, the evidence suggests that they are more of a tripping than a slipping hazard.  As discussed below, it is clear that Mr Stretton’s injury was caused by him slipping rather than tripping.

1. There was some evidence that knots in the deck create lumps or mounds that are more slippery than the surrounding areas.  However, as indicated above, I am not satisfied that the raised knots were significantly more slippery than the knots on a new wooden deck would be.

1. In any event, I am not satisfied that Mr Stretton’s fall was caused by him slipping on a knot.

1. Mr Stretton’s evidence was inconsistent with him slipping on a knot (or a bolt).  Mr Stretton said that he examined the place where he slipped and there was nothing there.[208]  He was questioned in detail about how he fell.  Had he slipped on a knot or bolt, he had multiple opportunities to say so.[209]  He did not at any point in his evidence say that he may have slipped on a knot or bolt.  At one point, Mr Stretton was asked whether he had tripped on a knot, to which he replied ‘no’.[210]  If he had not tripped but slipped on a knot, he would surely have mentioned it at this point.  As mentioned above, Mr Stretton was minded to blame what he allegedly fell on, not what caused him to slip over.  Neither did he make any mention of slipping on a knot or bolt in his worker’s compensation claim form of 10 November 2000,[211] or in his written statement of 27 November 2000 taken by Mr Darmody on behalf of the VWA.[212]

   [208]Transcript 52, 55, 129 and 175-6 (Stretton).

   [209]Eg, Transcript 52, 139 and 167 (Stretton).

   [210]Transcript 139 (Stretton).

   [211]Exhibit D2.

   [212]Exhibit D1.

1. In the worker’s compensation claim form, in answer to the question ‘Do you believe anyone was responsible for your injury/condition?’, he said: ‘No’.  However in giving evidence Mr Stretton explained, and I accept, that he perceived this question as asking him whether anyone had pushed him.[213]

   [213]Transcript 143 (Stretton).

1. On the other hand, in his statement to Mr Darmody, Mr Stretton said, relevantly: ‘I was crossing the deck from one side to the other when I lost my balance and fell…There is nothing that occurred which caused me to fall although the decking floor is a bit rough’.  In his evidence, Mr Stretton expressed the view that Mr Darmody should not have taken the statement from him because he was in hospital on a morphine drip at the time.[214]  However, Mr Jens took him through every line of the statement and he then acknowledged that it was ‘roughly true’ and that ‘the gist of it’ was true.[215]  In re-examination he was asked whether he could divine any meaning attributable to the words ‘There was nothing that occurred which caused me to fall’ and he answered ‘No’.[216]

   [214]Transcript 143–144 and 150 (Stretton).

   [215]Transcript 150 (Stretton).

   [216]Transcript 175 (Stretton).

1. Mr Stretton was not a reluctant witness.  He seemed keen to give detailed evidence.  He was combative under cross-examination and appeared keen to prove that the deck was dangerous and that the dangerous state of the deck caused his injury.[217]  I am satisfied that had Mr Stretton believed that he had slipped on a knot or bolt, he would have said so.

   [217]Transcript 137-9 (Stretton).

1. In fact, Mr Stretton said ‘I don’t know why I tripped over’.[218]  The context of this statement makes clear that he meant slipped rather than tripped.  The VWA submitted that it would be surprising if Mr Stretton knew exactly what he slipped on.[219]  It contended that Mr Stretton was ascribing his fall to the dangerous state of the deck and that he therefore must have been implying that he slipped on a knot or bolt.[220]  The VWA also called in aid certain medical evidence to the effect that Mr Stretton’s memory was adversely affected by benzodiazepines.[221] 

   [218]Transcript 139 (Stretton).

   [219]Transcript 539.

   [220]Transcript 542.

   [221]Transcript 271-3 (Ridley).

1. It should also be noted that Mr Stretton suffers from poor eyesight, describing it himself as ‘absolutely terrible’.[222]  I observed during the hearing that Mr Stretton had to hold documents very close to his face to read them.  It is therefore possible that Mr Stretton did not see any knots or bolts that may have been present where he fell.

   [222]Transcript 101-2.

1. On the other hand, some years ago Mr Stretton prepared a sketch of the deck of the vessel for the benefit of the solicitors then acting for him in his common law claim.[223]  He drew in numerous knots, but he drew few of them, if any, in the part representing the area where he says he fell.  This particular observation was not put to Mr Stretton at the hearing, and so I will give it very little weight.  On the other hand, I agree with the general submission of Mr Jens that the VWA’s current principal theory that Mr Stretton fell because he stepped on a slippery knot only emerged with any clarity well after the hearing began.  In the VWA’s opening, the nearest it came was to say that wear on the deck caused ‘knotted areas to lump above the adjacent wooden surfaces’ such that the deck became uneven.[224]  It was not specifically submitted that the knotted areas were more slippery than any other areas.

   [223]Exhibit P3.

   [224]VWA’s written opening submissions, 3.

1. In any event, the VWA submits that its theory does not necessarily require direct evidence from witnesses, but may be supported by inferences from the evidence as a whole.  I turn now to that matter.

Inferring that Mr Stretton must have slipped on a knot or bolt or pool

1. In Jackson v Lithgow City Council,[225] the New South Wales Court of Appeal summarised the principles of proof governing the drawing of inferences in a civil matter:[226] 

   [225][2008] NSWCA 312. The subsequent history of this litigation is stated in Lithgow City Council v Jackson [2011] HCA 36 (28 September 2011). Nothing in the High Court’s judgment affects the usefulness of the quoted summary of the relevant principles. In the end, the injured plaintiff, Mr Jackson, failed on the issue of causation: see [2011] HCA 36, [75] (French CJ, Heydon and Bell JJ) and [81] (Gummow J), cf [107] (Crennan J, dissenting).

   [226][2008] NSWCA 312, [9]-[10].

Before dealing with the facts it is helpful to remind oneself of the terms of the task at hand.  In Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480-481, Williams, Webb and Taylor JJ cited and applied passages from the joint judgment of Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Limited (unreported, High Court of Australia, 27 April 1951), which were as follows:

“ ... you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture ... .  All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence.  By more probable is meant no more than on the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood”.

In Jones v Dunkel [1959] HCA 8; 101 CLR 298, the High Court discussed Holloway v McFeeters in an appeal concerning a truck accident on a hill. The proof of the accident was circumstantial. The cause had been heard before a jury. The High Court divided on the question whether the evidence permitted the jury to conclude that the defendant driver had been negligent and caused the accident. (Dixon CJ and Taylor J thought not; Kitto, Menzies and Windeyer JJ thought it could.) Dixon CJ, at 101 CLR 305, having referred to Holloway v McFeeters and Bradshaw v McEwans said the following, referring to the passage from Bradshaw v McEwans:

“But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others.  The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”.

1. The VWA submitted that in light of the circumstances of Mr Stretton’s fall, there was no alternative but to infer that the condition of the deck was responsible for it.[227] 

   [227]Transcript 381.

1. During cross-examination, Mr Behan emphasised that Mr Stretton must have slipped for some reason, that ‘something had to make him slip’.[228]  The VWA submitted that it was unlikely that Mr Stretton would slip for no reason in light of the fact that Mr Stretton was a fisherman with 10 years’ experience,[229] that he had worked on this boat for some weeks, that he was wearing chemically treated rubber fishing boots in good condition,[230] that the weather and sea conditions on the day of the accident were calm for this boat,[231] and that although he had been at sea for 3 or 4 days,[232] Mr Stretton’s level of tiredness at the time of the accident was ‘good’.[233]

   [228]Transcript 360 (Behan).

   [229]Transcript 153 (Stretton).

   [230]Transcript 52 (Stretton).

   [231]Transcript 44, 158 and 175 (Stretton).

   [232]Transcript 79 (Stretton).

   [233]Transcript 79 (Stretton).

1. Even having regard to all these factors, I am not prepared to draw the inference urged by the VWA.  

1. For present purposes, the VWA must establish that it was more probable than not that Mr Stretton slipped on a knot or a bolt or on a pool of water in a depression caused by wear of the deck. 

1. The main hurdle facing the plaintiff is the very plausible hypothesis that Mr Stretton simply slipped on a wet deck.  Mr Stretton gave evidence that the deck was wet at the place where he slipped.[234]  There was evidence, and indeed it is obvious, that anyone can slip on a wet deck, even in the absence of any defects.  There was evidence from Mr Cain that a wet deck can be slippery and requires care in getting around it.[235]  The transcript records Mr Cain as saying: ‘Guys fall down <indistinct>‘.[236]  My own recollection is that Mr Cain said ‘Guys fall down all the time’ (referring, I think, to crews on fishing vessels generally, not to the crew of this vessel in particular).  I raised this matter with both counsel. Initially, neither could recall the words Mr Cain used.[237]  I raised it again later with Mr Moore.  He agreed that one of the witnesses (it was definitely Mr Cain) had indeed said such a thing.[238]  Mr Stretton himself acknowledged that it is possible to slip on any wet deck.  He gave the following evidence:[239]

   [234]Transcript 55 and 137 (Stretton).

   [235]Transcript 260 (Cain).

   [236]Transcript 247 (Cain).

   [237]Transcript 369.

   [238]Transcript 542 (Moore).

   [239]Transcript 139-140 (Stretton).

Q:Now, do we take it from that, then, that the slips that occur, that occurred, they can occur on any boat, that you can slip on a boat?

A:Yes, if it’s - if the boat’s not cleaned and there’s fish and there’s guts and all of the rest of it, yes, you can fall on any deck.

Q:       And even if the deck’s wet?

A:       Water.  Any deck.

Q:       And as far as you understand it, you did slip on the wet deck

A:       Yes.

Q:       And that can happen on any deck?

A: That’s right.  But any deck doesn’t have – isn’t worn to this amount.  That’s all I am trying to tell you, the deck was worn.

1. In addition to the deck being wet, there was some evidence to the effect that the deck may not have been properly cleaned, leaving traces of fish oil.  Mr Cain gave evidence that a caustic substance (probably ‘Marine Clean’) was used to clean fish oil out of the deck.[240]  He said, however, that sometimes ‘the boys got a bit slack’ in cleaning the deck and that it ought to have been cleaned more often.[241]  This meant that from time to time the deck was a bit more slippery than it otherwise would be.[242]  Although Mr Stretton gave evidence that there was no fish or slime where he slipped,[243] I find it unlikely that a film of fish oil would be easily visible on a wet deck, especially to a man of Mr Stretton’s poor eyesight.  Whereas the VWA submits that Mr Stretton may not have seen a knot or bolt or pool in the area where he slipped, I consider it even less likely that he would have seen any fish oil that may have been present.

   [240]Transcript 254 (Cain).

   [241]Transcript 255 (Cain).

   [242]Transcript 255 (Cain).

   [243]Transcript 52, 55 and 128 (Stretton).

1. There is no sufficient basis for me to find that it is more likely that Mr Stretton slipped on a knot or bolt or pool of water that he did not see, than that he simply slipped on a wet deck or a combination of a wet deck and fish oil.  In fact, Mr Stretton’s evidence points against the VWA’s hypothesis.  The events in question happened many years ago.  The VWA did very little to investigate them at the time.  There is little or no contemporaneous written evidence to support the VWA’s case.  To draw the inference urged by the plaintiff would be little more than speculation, or to use the language of Bradshaw v McEwans (adopted in Jackson v Lithgow City Council), choosing between guesses. 

Conclusion

1. The VWA has failed to establish that Sarunic was negligent.  Even if Sarunic was negligent, the VWA has failed to establish that the negligence was a cause of the worker’s injury.  The VWA’s claim for indemnity must therefore fail.  The proceeding will be dismissed.  I will hear counsel as to costs.