Younger v Reid
[2010] WADC 84
•16 JUNE 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: YOUNGER -v- REID [2010] WADC 84
CORAM: STONE DCJ
HEARD: 12-13 APRIL 2010
DELIVERED : 16 JUNE 2010
FILE NO/S: CIV 2089 of 2010
BETWEEN: JANE BRIDGET YOUNGER
Plaintiff
AND
RICHARD REID
Defendant
Catchwords:
Injury to crew member whilst securing vessel to mooring - Claim for damages for personal injuries - Negligence of skipper - Alleged contributory negligence by crew member - Loss of earning capacity - Loss of superannuation - Special damages - Past gratuitous services - Future medical expenses
Legislation:
Occupational Safety and Health Act 1984
Workers' Compensation and Injury Management Act 1981
Result:
Damages awarded
Representation:
Counsel:
Plaintiff: Mr J R Criddle
Defendant: Mr N Marsh
Solicitors:
Plaintiff: Bradford & Co
Defendant: Julienne Penny & Associates
Case(s) referred to in judgment(s):
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman and Brambles Holdings Limited (1984) 155 CLR 306
Newman v Nugent (1992) 12 WAR 119
The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
STONE DCJ:
Introduction
On the afternoon of 9 April 2005 Mr Richard Reid was on the fly‑bridge of his motorised 47 foot charter vessel "Sea Reward" skippering her towards her berth at the end of a jetty at Pier 21 Marina in North Fremantle. As "Sea Reward" approached the berth Ms Jane Younger, the vessel's hostess and deckhand, was standing on the starboard side of the mid-deck to assist with the mooring.
When "Sea Reward" moved into the berth, Ms Younger reached up with her right hand to a fixed spring line rope from the top of a pylon on the jetty and placed the loop of the spring line over a wooden bollard on the vessel. The spring line suddenly became taut and jerked upwards catching the fingers on her left hand pinning them between the rope and the bollard. Before she could release her hand, the distal phalanx of the index finger, middle finger and ring finger of her left hand were amputated. She stood back and she was struck by the bollard as it was pulled from its mounting by the spring line. Mr Reid heard what happened and he went to her assistance after securing the vessel to the mooring.
Ms Younger claimed damages for the injuries she sustained in the accident caused by Mr Reid's negligence or by his breach of his contract of employment and/or by his breach of his statutory duty under the Occupational Safety and Health Act, 1984.
Mr Reid denied his negligence caused the accident and Ms Younger's injuries. He claimed that if he was negligent or in breach of contract or statutory duty then there was contributory negligence by her in causing the accident. He denied she was entitled to the relief she claimed.
Issues in dispute
1. Liability for the accident.
2. Contributory negligence.
3. Damages.
4. The nature and extent of Ms Younger's injuries.
5. The extent of Ms Younger's residual disability.
6.Whether Ms Younger had been able to return to work and if so, her work capacity?
7. Ms Younger's past loss of earnings.
8. Ms Younger's loss of future earning capacity.
9. Ms Younger's loss of superannuation.
10.Ms Younger's past medical, vocational rehabilitation and travel expenses.
11. Ms Younger's past gratuitous services.
12. Ms Younger's future medical treatment and travelling expenses.
13. Non-pecuniary loss.
Liability for the accident
1.1Were all reasonable precautions taken by Mr Reid to ensure Ms Younger was provided with a safe workplace on board "Sea Reward" and a safe system of work?
1.2What were Mr Reid's duties as skipper when mooring?
1.3What were Ms Younger's duties as deckhand when mooring?
Ms Jane Younger
Ms Younger was now 51 years of age. She commenced employment with Mr Reid as a hostess and deckhand on "Sea Reward" in May 2003 on an hourly cash wage. There was no formal employment contract.
Ms Younger's duties as a deckhand required her to untie the ropes when the vessel left a mooring and when the vessel went to another jetty to tie up the vessel. Mr Reid instructed her to put on a line or take off a line depending upon the particular jetty. There was always a different sequence of events depending on the tides, the winds and the particular jetty, as to the way the vessel would be tied. He was always giving directions on where to tie up. He yelled out "leave it" if it was necessary to leave a line because, for example, the vessel was too far from the jetty and she could not reach the line.
When she was first employed as a deckhand Mr Reid was always giving directions about berthing at Pier 21. The vessel would come in to the berth and the spring line would be picked up and put on first. The vessel would then travel backwards and the port stern line would be picked up and secured. There then followed the sequence of putting on other lines at the front, the starboard stern and the front bow to secure the vessel. Her job was to pick up and secure all lines except the very front bow lines which Mr Reid secured.
Ms Younger described her usual role in securing the vessel at her berth at Pier 21. When the vessel was 10 to 15 metres from the berth Mr Reid would be on the fly-bridge driving the vessel and she would be downstairs in the cabin. As the vessel approached the berth she heard the change in the noise of the engines slowing down. After looking out the window, she went outside to the mid-deck on the starboard side to be ready to take the spring line for docking. The vessel cruised "gently" into the berth beside the jetty. The vessel would be about a foot from the jetty, although sometimes the vessel was touching the jetty. Depending upon the tide, it could be quite a high reach with her right hand above her head or a very easy reach up to the spring line on the jetty pylon. The loop of the rope was flicked off the nail on the jetty pylon and straight over the bollard on the vessel.
If anything different was to happen when berthing at Pier 21 she expected Mr Reid would give directions. She understood the only circumstances in which she would not put on the spring line would be if she received a direction from Mr Reid to that effect. He had given that instruction in the past at other jetties because the vessel was going too fast or the jetty was too far away to reach the spring line. She acknowledged he had not given that instruction in the past at Pier 21.
She denied Mr Reid had instructed her to put on the spring line after the vessel came to a halt and he had outlined the dangers of attaching the spring line to the vessel whilst still moving. She maintained the vessel was always slowly moving when the spring line was being attached because the vessel had to go back and pick up the stern line.
Ms Jennifer Whitfield
Ms Whitfield was introduced to Mr Reid by Ms Younger. She worked as a casual hostess and deckhand on "Sea Reward" from early 2003 to late 2004. She had no prior experience working on charter boats but she had extensive experience sailing on yachts.
She had no formal training from Mr Reid who taught her how to perform her duties as a deckhand along the way. She explained her deckhand duties in securing or untying "Sea Reward" in her berth and at other jetties in similar terms to Ms Younger. When berthing at Pier 21 the procedure was to automatically pick up the spring line without question. Mr Reid would have "Sea Reward" at "a crawling speed" when coming into the pen, the spring line would be picked up and by the time it was on the vessel, "Sea Reward" was in reverse.
She described an incident that occurred during her first charter when "Sea Reward" missed her berth (at Pier 21) because of wind and tide conditions. It took three tries to pick up the (spring) line and secure the vessel. On the first two occasions Mr Reid told her to leave the line because of the conditions.
She denied Mr Reid had given instructions not to put on the spring line unless the vessel was stationary or virtually stationary. She maintained that boats were never stationary. She understood her instructions were to put on the spring line when berthing on every occasion. She would not put on the spring line if he gave instructions not to do so.
Mr Richard Reid
Mr Reid was now aged 63 years. He had extensive maritime experience. He had owned "Sea Reward" for 17 years. He had public liability insurance and vessel insurance but no workers' compensation insurance. He operated "Sea Reward" as a charter business with a minimum of two crew; a deckhand/hostess and himself as the skipper.
He had been berthing "Sea Reward" at Pier 21 for two years and he had never collided with the jetty or the vessel moored in front. The spring line involved in the accident had been used on the bollard without injury for seven years.
He described the deckhand's duties in securing or untying "Sea Reward" in her berth and at other jetties in similar terms to Ms Younger and Ms Whitfield. There were no written instructions only verbal instructions.
He denied deckhands were required to place the spring line on the bollard unless he instructed them not to do so. He maintained all crew members had received the instruction that the spring line was not to be placed on the bollard until the vessel was stopped.
He explained the purpose of the spring line:
"… The, the idea of picking up the spring line as we come in and always picking it up is when we go out to pick up the stern line, we will require the springer to be on the bollard to get the boat back into the wharf."
He accepted there was a need for cooperation between the skipper and the deckhand which hinged upon the skipper getting the boat in alongside the jetty and the deckhand picking up and placing the spring line over the bollard. There had been occasions because of strong winds or strong currents when he had shouted at deckhands to leave the spring line. He shouted out when it was obvious the vessel would have to come back into berth again. If he did not shout out, the deckhand would pick up the spring line when the vessel came alongside the jetty.
He provided training when deckhands came to work for him:
"---When they first come on board the vessel we walk around the vessel showing them the hazards. Around the vessel there's hazards in regards to the electric kettle or boiling water. The stairway to the flybridge area is steep and they must come down that backwards so as they don't slip and fall, and then we go out and we walk round the vessel and explain the way we secure the vessel on picking up the lines when we come in and when we depart. I stress the point to all people who work on the vessel that when they pick up the spring line it does not go onto the bollard until the vessel is stopped. If the spring line is put onto the bollard when the vessel's moving, there's a possibility of the line breaking or ripping the bollard out of the vessel."
He did not have a clear recollection of the first day Ms Younger commenced employment, although he was sure that both he and Ms Whitfield were there at the time. He initially stated he and Ms Whitfield went around the vessel to show Ms Younger the hazards and they explained the importance of not putting on the spring line until the vessel was stopped. He went on to say under cross‑examination, however, Ms Whitfield would have shown Ms Younger "the ropes" because "deckhands having a friend on board, they would no doubt be talking and discussing the duties on board the boat".
He claimed after berthing he was always having discussions with deckhands about berthing the vessel. "[I]t's like a post mortem of the operation and the berthing." This happened over a drink when they had finished the day's job. They would discuss "the day, the tide, the effect on the boat if there was a bit of a stuff-up with the berthing".
He also claimed he probably had discussions with Ms Younger between the first day of her employment and the day of the accident about berthing and the importance of not putting on the spring line when the vessel was moving.
He maintained Ms Younger was given instructions about when to place the spring line on the bollard on the first day of her employment and on the day of the accident when the instruction was directed to the work experience student, Ms Bishop who was on board on that day.
When he conducted the hazard induction for Ms Bishop, he claimed Ms Younger was present. They walked to where the spring line was positioned on the bollard and he stressed the importance of the spring line being put on the bollard when the vessel was stationary.
Ms Rebecca Bishop
In 2005 Ms Bishop was studying marine tourism at a maritime TAFE in Fremantle. On the day of the accident she was on board "Sea Reward" for work experience. She did an induction with Mr Reid which provided general information about the vessel, safety equipment, where things were located and the general running of the vessel. The main obvious dangerous things on board, such as the ropes were pointed out to her. Ms Younger was present for parts of the induction but she was not sure whether Ms Younger was present when Mr Reid told her about the danger of getting hands caught in the rope.
Ms Tracy Wasley
Ms Wasley had marine qualifications that entitled her to drive a certain class of vessel. She had worked for Mr Reid on "Sea Reward" as a hostess/deckhand for three to four years about 10 years ago.
She understood the instruction from Mr Reid when the vessel pulled in, was to always make sure the vessel was stopped before putting on the spring line. When tying up the lines she should make sure her hands were not in the way. Mr Reid "always" made it clear not to put on the spring line if the vessel was still moving, "especially when it was rough". Whenever the vessel pulled in that happened.
On the occasions when the vessel was not capable of being stopped to put on the spring line, Mr Reid would say "leave it". He also said "leave it" if the vessel was going too fast. If the vessel went past the spring line on the jetty she would not reach for it, Mr Reid would say "leave it", the vessel would come back and she would grab the spring line and pop it on.
Credibility
Where there had been a conflict in the evidence I preferred the evidence of Ms Younger to that of Mr Reid for the following reasons. Her evidence was precise and clear on most issues. Her evidence was supported on material issues by Ms Whitfield, with respect to the instructions when to attach the spring line and in what circumstances and by Ms Wasley, with respect to when the skipper would give verbal instructions about not attaching the spring line. On issues such as who gave Ms Younger instructions on the first day of her employment (which was not put in cross-examination to Ms Younger or Ms Whitfield for comment) and whether Ms Younger was present throughout Ms Bishop's induction Mr Reid's evidence was vague and uncertain or contradicted by the evidence of Ms Bishop. Mr Reid's credibility was further diminished by his admission that when completing the Marine Incident Report, Exhibit P10 concerning the accident he deliberately incorrectly described Ms Younger as a passenger rather than crew when providing details of the injured person and as a friend rather than crew when providing a description of the incident. The report required him to make a declaration as to the truthfulness of the contents. He sought to shift the blame for that to Ms Younger and claimed he falsely completed the details concerning her as the result of a conversation they had when she was in hospital (which was not put in cross‑examination to Ms Younger for comment). I have not attached any weight to the difference in Ms Younger's evidence and Mr Reid's evidence concerning his new prescription glasses as it was of marginal probative value.
Duty of care
By reason of their employment relationship Mr Reid owed Ms Younger a duty of care. The duty of care was non-delegable. As an employer, Mr Reid had an obligation to provide Ms Younger, his employee with a safe system of work: Kondis v State Transport Authority (1984) 154 CLR 672.
Finding as to whether all reasonable precautions were taken by Mr Reid to ensure Ms Younger was provided with a safe workplace on board "Sea Reward" and a safe system of work? Did he take all reasonable care to properly instruct her and obviate the risk of injury to her?
On the basis of the oral evidence adduced, the documentary evidence and my assessment of the witnesses, I made the following findings:
(a)The system of work when entering the berth at Pier 21 for the purposes of mooring "Sea Reward" was that it was Ms Younger's role as deckhand to attach the spring line to the bollard on the vessel.
(b)There was a danger in attaching the spring line to the bollard on the vessel. I accept Mr Reid's counsel's submission in his oral closing that all on board the vessel were generally made aware of the danger and risks associated with mooring the vessel.
(c)The system of work when entering the berth required the deckhand to remove the spring line from the jetty pylon and place it on the bollard unless specifically instructed by the skipper to do otherwise. The evidence on this issue was in conflict. Ms Younger and Ms Whitfield understood that was the position regardless of whether the vessel was moving. Mr Reid and Ms Wasley testified the spring line was to be attached only if the vessel was stationary. However, Mr Reid and Ms Wasley confirmed that there were occasions when verbal instructions were given by Mr Reid to the deckhand not to put on the spring line if the vessel was not capable of being stopped. Ms Wasley also confirmed that verbal instructions were given by Mr Reid to the deckhand not to put on the spring line if the vessel was going too fast. I preferred the evidence of Ms Younger and Ms Whitfield over the evidence of Mr Reid and Ms Wasley on the issue as to the circumstances when the spring line was to be attached. Mr Reid was not a credible witness for the reasons previously stated. He also claimed in re‑examination he would not necessarily tell the deckhand to leave the spring line but he would do so if the deckhand had been drinking or was busy cleaning the vessel and doing other duties prior to berthing. His evidence was difficult to follow and contradictory. Whilst Ms Wasley's evidence provided support for Mr Reid on the issue whether the spring line was to be attached only when the vessel was stationary, her evidence confirmed the evidence of Ms Younger and Ms Whitfield that verbal instructions were given by Mr Reid not to put on the spring line.
(d)If the system of work required the deckhand to remove the spring line from the jetty pylon and place it on the bollard regardless of whether the vessel was moving, then in the absence of verbal instructions from the skipper at the time of mooring that it was safe to do so, that system exposed the deckhand to a foreseeable risk of injury in circumstances where the vessel was moving too fast or not capable of being stopped by the skipper for the spring line to be attached to the bollard.
(e)If the system of work required the deckhand to remove the spring line from the jetty pylon and place it on the bollard only when the vessel was stationary or nearly stationary, then in the absence of verbal instructions from the skipper at the time of mooring that it was safe to do so, that system exposed the deckhand to a foreseeable risk of injury in circumstances where there was a sudden or unexpected movement of the vessel. Boats and vessels were not always stationary in water. The deckhand had no ability to control the movement of the vessel. However, before the deckhand determined it was safe to put on the spring line, he/she would have to assess the movement of the vessel and whether there would be no further movement of the vessel by the skipper because of rough sea, strong winds or currents or for any other reason.
(f)If the system of work required the deckhand to remove the spring line from the jetty pylon and place it on the bollard only when verbally directed that it was safe to do so by the skipper, who was in the best position to make that determination having regard to his overall control of the navigation of the vessel, his position on the fly‑bridge, his operation of the engines, his appreciation of when he was going to put the vessel in reverse, his knowledge of the maneuverability, capabilities and speed of the vessel, his knowledge of the prevailing wind and water conditions and the fact that he and the deckhand were out of each other's sight at that point in time, then the deckhand would have a clear system of work and a safe system of work. The obligation of responsibility for determining when it was safe for the deckhand to affix the spring line would be clear and fall upon the skipper, the person who was in the best position to make that judgment; there would be effective communication by clear verbal instruction to the deckhand on each occasion and the risk of injury to the deckhand would have been obviated by the skipper by the taking of simple measures. Such a system of work could be properly maintained and enforced. The system of work would not be dependent upon the deckhand's appreciation of the movement or speed of the vessel and assessment whether it was safe or dangerous to affix the spring line. I reject Mr Reid's counsel's contention that it would be impracticable for Mr Reid to give Ms Younger instruction as to when to safely affix the spring line "every time they moored". I accept his contention that as Ms Younger had experienced mooring the vessel on many occasions it was reasonable for Mr Reid to assume she understood the instructions involved in safely mooring the vessel. However, in my view, he had an obligation to obviate the risk of injury to her when mooring the vessel by clear and precise verbal instruction as to when it was safe for her to affix the spring line.
(g)At the time of the accident the system of work that operated on board "Sea Reward" when mooring the vessel was unsafe as it relied upon an assessment by the deckhand concerning the movement or speed of the vessel as to when the spring line could be safely affixed to the bollard. The risk that the deckhand would attempt to affix the spring line in circumstances where the vessel was moving too fast or not capable of being stopped by the skipper because of rough sea, strong winds or currents, was plainly foreseeable. In the circumstances, I consider Mr Reid failed in his obligation to devise and implement a safe system of work.
1.4Did Mr Reid require Ms Younger to attempt to moor "Sea Reward" when it was unsafe to do so?
1.5Did Mr Reid fail to slow "Sea Reward" sufficiently to allow Ms Younger time to safely attach the spring line to the bollard?
1.6Did Mr Reid fail to control "Sea Reward" adequately or at all upon her final approach to the mooring?
1.7Did Mr Reid fail to slow "Sea Reward" sufficiently to ensure the bollard could hold the weight of the vessel via the spring line?
1.8Did Mr Reid fail to keep a look out adequately or at all, as to the position of "Sea Reward" relative to the mooring and the vessel moored in the opposite berth?
1.9Did Mr Reid fail to warn Ms Younger that by reason of the speed of "Sea Reward" it was unsafe for her to attach the spring line?
1.10Did Mr Reid fail to direct Ms Younger not to attempt to attach the spring line in the circumstances?
1.11Did Mr Reid fail to warn Ms Younger that "Sea Reward" was travelling too fast for the spring line to be safely attached?
1.12Did Mr Reid fail to warn Ms Younger that "Sea Reward" was travelling too fast for the bollard to hold the weight of the vessel?
1.13Did Mr Reid fail to provide any or adequate training to Ms Younger regarding safe mooring of "Sea Reward" and the dangers associated with mooring?
1.14Did Mr Reid fail to supervise Ms Younger in her deckhand duties adequately or at all?
Ms Younger
At about 4 pm on 9 April 2005 "Sea Reward" was returning to her berth at Pier 21 after completing the second day of a charter for a Sea Search and Rescue training exercise in the ocean off Carnac Island. As "Sea Reward" came closer to the jetty she started to pick up speed. At that time, Ms Younger was outside on the mid‑deck, next to the bollard waiting to pick up the spring line. She could hear Mr Reid who was on the fly‑bridge driving the vessel, but she could not see him and he could not see her. She thought she could reach the spring line and put it on the bollard because the vessel was coming in very straight with the jetty, but a lot faster than normal.
She described the speed of "Sea Reward" as "almost frighteningly fast" because there was another vessel moored right in front. Usually "Sea Reward" came in "very, very, very gently", the lines were secured and the vessel moved back because of the other vessel moored a metre away in the opposite berth.
She understood her instruction was to put on the spring line first. At the time she did not receive any verbal direction from Mr Reid to "leave it". She thought he was expecting her to get the line on and probably because of the possible collision with the vessel moored in front.
She acted quickly and flicked the spring line off the nail on the jetty pylon and "popped it straight on the bollard" with her right hand. Instantaneously the line went taut, flicked up and the fingers on her left hand were caught between the rope and the bollard. The fingers on her left hand were pointing towards the deck. She did not panic because she thought her hand would be released when "Sea Reward" went back and picked up the stern line. However, three fingers were amputated by the rope and fell over board before her hand was released. When she stood back she heard a "massive cracking noise" as the bollard broke from its mountings and pivoted towards her. She bashed the bollard away with the back of her right hand which injured her. Her right ankle was also injured by a splinter from the bollard. At that point Mr Reid and Ms Bishop came to her assistance.
She could not explain how her left hand was trapped by the rope. Usually when she put on the line she was "leaning against the edge of the vessel and it's more of a steadying reaction".
Following the arrival of the Water Police and an ambulance she was conveyed to Fremantle Hospital for treatment of her injuries.
When Mr Reid visited her at the hospital after the accident she asked him what happened. He replied: "The current got us".
Mr Reid
On the day of the accident the winds were light, visibility was good and the water was calm.
Later that day when returning to the berth at Pier 21 there was an outgoing tide. "Sea Reward" was brought in against the tide. He had to "throw" the vessel into the wharf so she came alongside the wharf because the outgoing tide would carry the vessel off the jetty. This required coming in with "a little bit of extra speed". He had pulled the vessel up and as the vessel came alongside (the jetty) he heard Ms Younger call out from below. At the same time he heard a crack and another crashing sound. "Something had gone horribly wrong." He looked over and saw Ms Younger with her hand in the air. He rushed down to try to secure "Sea Reward" to prevent her being carried into the vessel in front. He then went to Ms Younger's assistance.
Ms Bishop
Ms Bishop was in the cabin when the accident occurred. She was unable to comment on the accident.
Finding as to whether Mr Reid required Ms Younger to attempt to moor "Sea Reward" when it was unsafe to do so?
There was no evidence that Mr Reid failed to do any of the following matters pleaded by Ms Younger as particulars of his negligence: slow "Sea Reward" sufficiently to allow Ms Younger time to safely attach the spring line to the bollard; control the vessel adequately or at all upon her final approach to the mooring; slow the vessel sufficiently to ensure the bollard could hold the weight of the vessel via the spring line; keep a look out adequately or at all, as to the position of "Sea Reward" relative to the mooring and the vessel moored in the opposite berth; or warn Ms Younger that the vessel was travelling too fast for the bollard to hold the weight of the vessel. There was no evidence about the weight of the vessel, the condition of the rope or the bollard.
I have already made observations upon the evidence concerning the adequacy of training provided by Mr Reid to Ms Younger regarding safe mooring and the dangers associated with mooring. I have also made observations upon the evidence concerning his failure to supervise Ms Younger in her deckhand duties when mooring.
There was no dispute on the evidence of Ms Younger and Mr Reid that at the time of the accident "Sea Reward" was travelling into her pen at speed; there was another vessel in the opposite berth; Mr Reid had managed to bring the vessel alongside the jetty at speed; Mr Reid had not called out that the vessel was travelling too fast for the spring line to be attached; the vessel was sufficiently close to the jetty for Ms Younger to reach the fixed spring line on the jetty pylon and place it on the bollard; and the vessel was travelling too fast for the spring line to be attached.
The system of work that operated on board "Sea Reward" when mooring the vessel failed. Ms Younger understood she was required to attach the spring line unless instructed by Mr Reid to do otherwise. Mr Reid should have warned Ms Younger that because of the speed of the vessel it was unsafe for her to attach the spring line. He failed to direct her not to attempt to attach the spring line in the circumstances. He failed to warn her that the vessel was travelling too fast for the spring line to be safely attached.
In all the circumstances, I am satisfied that Mr Reid was in breach of his duty of care to Ms Younger and he was liable to her in negligence.
Contributory negligence
2.1Did Ms Younger contribute to her injuries by her negligence?
2.2Did Ms Younger fail to exercise reasonable care in the performance of her work by failing to have regard for and ensure her own safety in circumstances where harm or injury was likely?
2.3Did Ms Younger fail to perform her duties with the appropriate skill and competency that were required?
2.4Did Ms Younger fail to adhere to the safe system of work and the occupational and safety measures that were in place?
2.5Did Ms Younger fail to adhere to Mr Reid's instructions for the mooring of "Sea Reward" safely by not waiting for the vessel to come to a complete halt before attempting to place the spring line on the bollard?
Ms Younger was unable explain the exact circumstances of how the fingers on her left hand were caught between the rope of the spring line and the bollard when using her right hand to flick the spring line off the jetty pylon and place the loop over the bollard.
Mr Reid's counsel contended in his oral closing submission that placing the loop over the bollard with her right hand did not cause the accident because the system of work did not involve the left hand, regardless of whether the rope was put on the bollard when the vessel was stationary or moving. Ms Younger had simply put her hand where she should not have put it. The accident had nothing to do with mooring the vessel.
Mr Reid's counsel also contended Ms Younger failed to have regard for and ensure her own safety. In affixing a rope to a bollard whilst the vessel was travelling "at a high speed" she failed to take such reasonable care to ensure her safety at work and she was guilty of contributory negligence.
Further, she should have been aware of the risks involved in trying to arrest the vessel's motion by affixing a rope to a bollard whilst the vessel was travelling "at high speed". As she had moored the vessel on previous occasions she would be well aware of the risk of a rope snapping or a bollard breaking …" There was, however, no evidence to support the contention that "neither the rope nor bollard were of the strength required to stop a fast moving vessel the size of (Mr Reid's vessel)". There was no evidence about the condition of the rope or the bollard.
Finding as to whether Ms Younger contributed to her injuries by her negligence?
Having regard to my earlier finding concerning the system of work the claim of contributory negligence must be approached on the footing that Mr Reid failed to discharge his obligation to provide a safe system of work. The obligation to provide a safe system of work included the failure to take appropriate precautions against conduct by Ms Younger by which she may place herself at risk: McLean v Tedman and Brambles Holdings Limited (1984) 155 CLR 306.
I am satisfied on the evidence that by reason of the speed of the vessel, the urgency of the task and the speed at which she had to perform the task, the likely explanation for how the accident occurred was that Ms Younger was so focused on the task she did not realize she had trapped her left hand between the rope and the bollard after the spring line was placed over the bollard. In other words, the injury arose out of Ms Younger's inadvertence in her preoccupation with the task. She had a job to do, she believed Mr Reid expected her to do the job, Mr Reid did not call out to do otherwise and she was concerned about a possible collision with the vessel in front.
I do not accept Mr Reid's counsel contention Ms Younger's actions were deliberate and intentional. For reasons previously outlined I also do not accept his contention Ms Younger disregarded Mr Reid's instruction by not waiting for the vessel to come to a complete halt before attempting to place the rope onto the bollard.
I consider in the circumstances that the allegation of contributory negligence has not been made out by Mr Reid.
Damages
The provisions of the Workers' Compensation and Injury Management Act, 1981 applied to Ms Younger's claim for damages against Mr Reid by reason of his negligence because he was her employer. As the accident occurred on 9 April 2005, Subdivision 2 of Division 2, Part IV of the Act applied to her claim: s 93CC(1). A court must not award damages to a person contrary to Division 2 of the Act: s 93C.
Section 93E(3) of the Act provided:
"Damages can only be awarded if —
…
(b)the worker has a significant injury and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
A "significant injury" was one where it was agreed that the degree of disability was not less than 16 per cent and that agreement or determination was recorded in accordance with the regulations.
The Memorandum of Consent Order, Exhibit P2 confirmed that Ms Younger and Mr Reid agreed that her degree of permanent disability was not less than 16 per cent. The Notice of Election, Exhibit P3 established that she had validly elected to retain the right to seek damages in accordance with s 93E(3)(b) of the Act.
The amount of damages that could be awarded was subject to s93F of the Act which provided:
"(1) unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E —
(a)the amount of damages to be awarded is to be a proportion , determined according to the severity of the injury, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
Amount A was currently $373,902. Accordingly, Ms Younger's damages award cannot exceed $373,902.
The nature and extent of Ms Younger's injuries
The extent of Ms Younger's residual disability.
Ms Younger had sustained a left hand injury resulting in amputation of the distal portions of her middle and ring fingers and the partial destruction of the end of her index finger. She felt excruciating pain after the fingers were amputated. The pain continued during the week of her hospitalisation. The surgery she underwent involved debridement and terminalisation of the amputation of her left middle and ring fingers. She required a skin graft for the left index and ring fingers. The injuries to her right hand and foot healed by themselves. After the surgery she continued to experience severe pain in her left hand which was diagnosed as neuropathic pain. She also suffered from phantom limb sensation. She was prescribed pain killers. She attended Sir Charles Gairdner Hospital Department of Pain Management every six weeks. She also attended Sir Charles Gairdner Hospital Department of Hand Occupational Therapy on a regular basis. In August 2006 she underwent further reconstructive surgery of the index finger and revision of the neuromas of the other two fingers. She subsequently attended Royal Perth Hospital Department of Plastic and Reconstructive Surgery for fitting of prosthetic fingers for the middle and ring fingers but she could not afford the expense.
Ms Younger did not feel comfortable going out socially and she had not sought an intimate relationship because of her sense of disfigurement. She believed the prosthetic fingers would make her feel normal. She could show her hands in public and not feel embarrassed. She would be able to wear rings again and nail polish. The loss of her fingers had made it difficult to do daily household and personal activities because she could not grip things.
Dr Michael Beinart, who now worked primarily in occupational health in impairment management and injury management, conducted an assessment of the degree of disability Ms Younger had in her left hand as a result of her injuries. He concluded she had a 35 per cent loss of full and efficient use of the left hand. He observed she experienced ongoing emotional difficulties dealing with her injuries.
Whether Ms Younger had been able to return to work and if so, her work capacity?
Ms Younger was born on 23 August 1958. She left high school at the age of 16 to do a hairdressing apprenticeship. She subsequently qualified as a hairdresser and worked in hairdressing for seven years. Most of her employment up until the birth of her first daughter in 1989 was related to hairdressing. Her second daughter was born in 1992. She separated from her husband in 1996. She was the children's carer until she was employed by Mr Reid in 2003.
Whilst she was employed by Mr Reid, Ms Younger was also employed by CJW Marine Maintenance as a boat detailer from 6 October 2004 until the accident earning $217 net per week. As a boat detailer she was required to clean, polish and scrub the boats, check the engines, check the lines on the boats, manoeuvre boats from different pens and refuel boats. She was unable to do that type of work following the accident because she did not have full strength and the ability to hang on to the boat with one hand whilst using the other hand.
Dr Beinart considered she would not be able to work in any activity where she was required to use her non-dominant left hand to grip things.
Dr Melissa Hannan, Ms Younger's treating medical practitioner, considered the injuries reduced her capacity to work as a deckhand/hostess and in labouring and hairdressing. She observed Ms Younger had undertaken further training programs in computing work, interior decorating and security work to assist in securing employment in her disabled state. She considered Ms Younger was fit to return to restricted work in some kind of clerical or possibly retail employment from 16 February 2006 but she noted Ms Younger required further surgery and she had undertaken training courses with the Commonwealth Rehabilitation Service.
The first job Ms Younger obtained following the accident was on or about 28 February 2007 when she was employed at the domestic airport doing security work. She earned more from that employment than she earned from her combined employment with Mr Reid and CJW Marine Maintenance. She then worked in a supervisory role in the garden department of a hardware store which was also more lucrative than her combined income from employment with Mr Reid and CJW Marine Maintenance. For the past 18 months she was employed in a supervisory role as the logistics manager for a construction company that did structural repairs to retaining walls which was also more lucrative than her combined income from employment with Mr Reid and CJW Marine Maintenance. She intended to continue in that employment.
I am satisfied by Ms Younger's evidence and the medical evidence that Ms Younger resumed employment in late February 2007 when it was appropriate for her to do so having regard to her physical and psychological injuries. In the period prior to rejoining the workforce Ms Younger had mitigated her loss by taking various training courses to assist in her employability.
Ms Younger's past loss of earnings
There was no dispute Ms Younger received weekly compensation payments totalling $8,128.25 from RiskCover pursuant to the Workers' Compensation and Injury Management Act which she must repay. The workers' compensation payments were only in relation to her employment with Mr Reid and reflected the period of her incapacity from the date of the accident to 28 February 2007 when she rejoined the workforce.
Between the date of the accident and 28 February 2007 Ms Younger also sustained a loss of earnings from her employment with CJW Marine Maintenance at $217 net per week. Mr Reid's counsel took no issue with the claim. Accordingly, the past loss of earnings was calculated at 98 weeks multiplied by $217 making a total of $21,266. The interest on the past loss of earnings was calculated at $3,189.90.
Accordingly, I award $24,455.90 for past loss of earnings including interest and $ 8,128.25 for past workers' compensation payments.
Ms Younger's loss of future earning capacity
Ms Younger was a qualified and experienced hairdresser. She had that occupation to fall back on if she was unable to continue in her chosen employment of working in the marine industry.
After the accident Ms Younger retrained. She had been employed since late February 2007 in occupations where she earned a greater income than that which she was earning immediately prior to the accident.
Mr Reid's counsel contended that because of Ms Younger's enhanced employment prospects any global award for future loss of earning capacity at this stage would be premature. Further, there should be no award because there had been no diminution of her future earning capacity. A calculation of the present value of her lost future net earnings, by deduction of her post-accident net earning capacity from her pre-accident net earning capacity, resulted in a negative financial loss.
"… [A] defendant may show that a plaintiff, prevented by his injuries from carrying on his previous vocation, has nevertheless found other, and perhaps more remunerative, employment. A man who loses an arm may earn afterwards more money than he did before; but he has always lost, among much else, the capacity to work in any occupation in which two hands are needed. The victim of a tort is never in the eye of the law a gainer. The balance of account is never in favour of the wrongdoer."
The National Insurance Co ofNew Zealand Ltd v Espagne (1961) 105 CLR 569 per Windeyer J at 598.
The evidence established that because of her injuries and permanent disabilities, Ms Younger was restricted in her ability to carry out activities involving the handling of objects, the use of tools and activities involving manual dexterity of the left hand.
In my view an allowance should be made for Ms Younger's reduced employment options and the likelihood she would find it difficult to find employment if she was forced to find work on the open labour market in times of less than full employment.
In calculating a global award of $25,000 for loss of future earning capacity I have made allowance for contingencies, such as early retirement, possible illness and periods of unemployment.
Ms Younger's loss of superannuation
In his oral closing submissions, Mr Reid's counsel took no issue with Ms Younger's claim that she was entitled to a global amount of $5,000 for past and future loss of superannuation benefits consequent on past loss of earnings and future loss of earning capacity. However, in his written closing submissions, he submitted there should be a 30 per cent reduction in future loss of superannuation benefits to cover income tax, the fact that Ms Younger was not entitled to the benefit until retirement and other contingencies such as the risk that the fund administration costs may exceed investment income and the risk of failure of the fund.
In my view the global amount claimed for loss of superannuation was modest and there was no need to make a deduction for contingencies with respect to future loss of superannuation benefits. Accordingly, I award a global amount of $5,000 for loss of superannuation.
Ms Younger's past medical, vocational rehabilitation and travel expenses
Ms Younger required counselling for pain control, disturbed sleep, stress, anxiety and flashbacks of the accident which became more frequent with the approach of the trial. She also saw a clinical psychologist for treatment for sexual dysfunction.
There was no dispute Ms Younger was entitled to an award totalling $28,008.93 for the past medical expenses, past rehabilitation expenses and past travelling expenses. Accordingly, I award $28,008.93 for special damages.
Ms Younger's past gratuitous services
Since the accident Ms Younger had to rely on assistance from her daughters and friends for various activities over three distinct periods. The first period was for approximately three months following the accident. The second period was between February and May 2006 when she had her hand in a cast whilst undergoing hand therapy. The third period was for about two months in August 2006 following the further surgery.
During the first period Ms Younger required and received 26 hours per week assistance with the following activities: driving to and from medical appointments approximately two or three times per week with a round trip taking about 1.5 hours, making a total of 3 hours per week; dressing and undressing for about 30 minutes per day, making a total of 3.5 hours per week; hair colouring every six weeks, for which she made no claim; wound dressing for about 15 minutes per day, making a total of two hours per week; house cleaning for four hours per week; laundry approximately two hours per week; car washing every fortnight for about 1 hour, making a total of 0.5 hours per week; cooking and cleaning up dinner dishes for about 1.5 hours per day, making a total of 10.5 hours per week; shampooing the dog for 0.5 hours per week; lawn-mowing and gardening for about one hour a fortnight, making a total of 0.5 hours per week.
During the second period she required and received 24 hours per week assistance with these activities except that dressing of the wounds was not required. She required and received 26 hours per week assistance with these activities during the third period.
Mr Reid's counsel did not take issue with the claimed value of assistance at the rate of $22 per hour but he contended there should be a reduction of up to two thirds for past gratuitous services provided for the benefit of the two children and not just Ms Younger. Further, there should be a reduction of two thirds or at least one third for past gratuitous services that would have been provided by the children in any event because of their relationship. Mr Reid's counsel did not suggest, quite properly in my view, the assistance could be characterised as minor services.
Ms Younger's daughters were aged 16 and 13 years respectively at the time of the accident and dependant upon her. There was no evidence that prior to the accident the children were regularly assisting with activities such as house cleaning, laundry, household maintenance, cooking and cleaning up dinner dishes. There was also no evidence that there was an expectation the children would regularly assist with these types of activities in the following year when they turned 17 and 14 years respectively.
In my view, having regard to the age of the children and their dependency upon their mother for their daily needs, the activities in which the children rendered some assistance after the accident and during the following year were primarily of benefit to Ms Younger for her incapacity to look after herself and provide for her children: Newman v Nugent (1992) 12 WAR 119. In the circumstances I make no reduction from past gratuitous services on account of the children.
The calculation for assistance for the period of three months following the accident and the period of two months following the surgery in 2006 at 26 hours per week would be:
26 hours x 21 weeks x $22 per hour = $12,012
The calculation for assistance for the period of 3 months when Ms Younger had her hand in a cast at 24 hours per week would be:
24 hours x 13 weeks x $22 per hour = $6,864
The total for past gratuitous services was $18,876.
The calculation of interest on past gratuitous services at 3% over 5 years would be:
$18,876 x 0.03 x 5 = $2,831
Accordingly, I award $21,707 for past gratuitous services including interest.
Ms Younger's future medical treatment and travelling expenses
Mr Paul Barnsley, the Senior Maxillofacial Prosthetist at Royal Perth Hospital, assessed Ms Younger as suitable for prosthetic fingers for her left middle and left ring fingers. The cost of the fingers was $1,000 each and they needed to be replaced due to wear and tear and colour changes at least every two years.
The weekly cost of the prosthetic fingers was $19.25 (assuming replacement every two years). Ms Younger's life expectancy was 32 years. Accordingly, the cost of the prosthetic fingers was calculated at $19.25 multiplied by 756.7 (being the multiplier for 32 years) making a total of $14,566.
Mr Reid's counsel conceded the calculation of $14,566 as the appropriate figure but he submitted that there should be a discount for the contingencies of life as there was a very real possibility that the prostheses would not be purchased, and if purchased, they would not be used all the time. I do not agree with the submission. I accept Mr Barnsley's evidence and Ms Younger's evidence that the prostheses would improve the appearance of her hands cosmetically and help in their function, particularly using computer key boards. I also accept the evidence of Dr Hannan and Ms Christine G'Froerer, a stress therapist, that Ms Younger would benefit from the prosthetic fingers and further psychological counselling for loss of self-esteem of approximately eight sessions at a cost of approximately $110 per session, making a total of $880.
Counsel for the parties agreed $250 was a reasonable amount for future travelling expenses.
Accordingly, I award $15,446 for future medical expenses and $250 for future travelling expenses.
Non-pecuniary loss
Mr Reid's counsel submitted that an appropriate quantum for general damages would be $40,000 having regard to the amounts awarded in other cases where the distinguishing factors included the number of fingers amputated, whether the injuries were to the dominant hand, the psychological or psychiatric affect, whether pain was ongoing and the age of the injured person.
The evidence established the amputation of the distal portions of Ms Younger's middle and ring fingers and the partial destruction of the end of her index finger on her left hand had considerable effect upon her health and wellbeing both physically and psychologically. She experienced excruciating pain after the fingers were amputated. The pain was ongoing. She underwent surgery on two occasions and there was prolonged therapy. She experienced ongoing emotional difficulties. She felt uncomfortable socially and embarrassed to show her hands in public because of the disfigurement. The disfigurement of her non-dominant left hand also meant she was unable to wear rings and nail polish, which was important to her. The loss of her fingers had made it difficult to do daily household and personal activities. I accept Dr Beinart's conclusion that she had a 35 per cent loss of full and efficient function of the left hand.
In my view Ms Younger would derive a benefit from the use of prosthetic fingers in the future. The prosthetic fingers would improve the cosmetic appearance of her hand and improve her psychological state. There would be some minor increase in function of the hand, although she would still require some assistance for daily household and personal activities.
Taking into account all of these factors, and the evidence generally, I am of the view Ms Younger was entitled to an award of $70,000 in respect of damages for pain and suffering and loss of amenities.
Damages assessment
Past loss of earnings including interest $ 24,455.90
Past workers' compensation payments $ 8,128.25
Future loss of earning capacity $ 25,000.00
Loss of superannuation $ 5,000.00
Special damages $ 28,008.93
Past gratuitous services $ 21,707.00
Future medical expenses $ 15,446.00
Future travel expenses $ 250.00
Non-pecuniary loss $ 70,000.00
Total$197,996.08
I would therefore award damages in the sum of $197,996.08.
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