Merrin v Cairns Port Authority
[2001] QCA 178
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- Unreported Judgment
- Appeal Determined (QCA)
- Merrin v Cairns Port Authority[2001] QCA 178
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Merrin v Cairns Port Authority[2001] QCA 178
Merrin v Cairns Port Authority[2001] QCA 178
SUPREME COURT OF QUEENSLAND
CITATION: | Merrin & Anor v Cairns Port Authority [2001] QCA 178 |
PARTIES: | ANNETTE ELIZABETH MERRIN |
FILE NO/S: | Appeal No 11540 of 1999 DC No 153 of 1997 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Cairns |
DELIVERED ON: | 15 May 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 and 24 April 2001 |
JUDGES: | McPherson and Williams JJA, Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | TORTS – NEGLIGENCE – STANDARD OF CARE – OTHER CASES – where respondent constructed and maintained a marina which broke up during a cyclone – where appellants’ boat allegedly hit and sunk by floating debris – where evidence that the respondent negligently constructed and maintained the marina by using materials of inferior quality – where evidence that the respondent negligently failed to recover debris from the marina following a cyclone – where defendant a “corporatised” government entity - limitations on the defendant’s financial resources do not exclude liability for breach of a common law duty JURY – THE JURY IN CIVIL PROCEEDINGS – OTHER MATTERS – where trial judge determined that there was insufficient evidence to put the question of breach of duty to the jury – jury directed to find for the defendant – the law of Queensland confers a right to trial by jury – the test as espoused in Wyong Shire Council v Shirt is whether it would be open to the jury to find for the plaintiff – where there are technical questions of fact involving skill and expertise a jury is still the appropriate arbiter – the trial judge erred in removing the matter from the jury EVIDENCE – GENERAL – RESPECTIVE FUNCTIONS OF JUDGE AND JURY – SUFFICIENCY OF EVIDENCE EVIDENCE – WITNESSES - IN GENERAL - CONTROL OF COURT OVER WITNESSES – where trial judge ruled that no more witnesses could be called by the plaintiff; other than those already opened – where relevant evidence thus excluded – where too much time was taken up with objections whish prevented uninterrupted submissions PROCEDURE - COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT ETC. – IN PROCEEDINGS – CONDUCT OF CASE – an order that the costs of the first trial should follow the retrial is not universal - where defendant wrongly applied to have case taken from jury – defendant to pay costs of first trial Evidence Act 1977 (Qld), s 92 Government Owned Corporations Act 1993 (Qld), s 16(a) Government Owned Corporations (Ports) Regulations 1994 (Qld) Harbours Act 1955 (Qld) Transport Infrastructure Act 1994 (Qld), s 161(1)(c), s 161(1)(d) Cambridge Water Co v Eastern Counties Leather PLC [1994] 2 AC 264, cited De Gioia v Darling Island Stevedoring & Lighterage Co. (1941) 42 SR (NSW) 1, considered Hargrave v Goldman (1963) 110 CLR 40, cited Hennessey's Self Service Stores Pty Ltd, Re: [1965] Qd R 576, considered Hicks v Trustees Executors & Agency Co (1901) 27 VLR 389, cited Matthews v General Accident Fire & Life Insurance Corporation Ltd [1970] QWN 37, cited Naxakis v Western General Hospital (1999) 197 CLR 269, considered Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 AC 617, considered Pegoraro v South Burdekin Water Board [1972] Qd R 306, cited Romeo v Conservation Commission of Northern Territory (1988) 192 CLR 431, considered Stuart v Watson (1886) 2 WN (NSW) 94, cited Sutherland Shire Council v Heyman (1985) 157 CLR 424, cited White v Phillips (1853) 15 CB (NS) 245; 143 ER 778 Wyong Shire Council v Shirt (1980) 146 CLR 40, applied |
COUNSEL: | The second appellant appeared on his own behalf and on behalf of the first appellant M P Amerena for the respondent |
SOLICITORS: | The second appellant appeared on his own behalf and on behalf of the first appellant MacDonnells for the respondent |
- McPHERSON JA: This is an appeal by the plaintiffs Mr and Mrs Merrin from a judgment entered in favour of the defendant Cairns Port Authority in an action in the District Court at Cairns, following a verdict directed by the judge after ruling that there was no case to go to the jury. The action, which was for damages for injury to the plaintiffs' persons and their property, arose out of the sinking of their vessel on 28 March 1997 in the waters of Trinity Inlet forming part of the Port of Cairns. The vessel which sank was a 9m catamaran on which the plaintiffs lived with their two teenage sons Ben and Zach.
- The grounds of the appeal as summarised in the plaintiffs' written outlines filed on 28 March 2000 are:
- The ruling and direction by the judge were wrong in fact and law as there was ample evidence upon which the jury could consider whether or not the Respondent had breached it's duty of care, and the trial judge's ruling took away the right of the applicants to have the decision made by a jury.
- In the alternative, and if evidence rejected by the trial judge had been admitted or evidence accepted had been rejected, it would have added to the weight of evidence for the appellants to support the argument that there was ample evidence to prove the Respondent had breached its duty of care.
- The trial judge displayed a perceived bias by making the ruling to take away the decision of fact from the jury, and this perceived bias was also evidenced by the other decisions to accept or reject evidence referred to in paragraph ii) and other decisions of the trial judge.
- The sinking took place a few days after Cyclone Justin had struck Cairns on 22 March 1997. Some ten years before, the defendant had constructed near the entrance to Trinity Inlet facing the open sea the Marlin Marina, as a mooring place for small craft. It consisted of a series of floating pontoons projecting in the form of "fingers" from the shore into the water linked together with steel and timber. For buoyancy, the pontoons consisted of rectangular pieces of polystyrene plastic strengthened with a coating of concrete on all sides except underneath. Under the pressure of the wind and the waves generated by the cyclone on the afternoon of 22 March, some of the "fingers" of the marina disintegrated and pieces of pontoon scattered into the waters of the port. This debris, which was floating either submerged or partly submerged in the water, presented a danger to shipping; and, once the cyclone had passed, the defendant on 23 March sent out boats to locate and retrieve it. The defendant had, in the exercise of its statutory powers as Port Authority, closed the port to shipping during the cyclone. It was declared open again at 8.00 am on 24 March 1997.
- On the approach of the cyclone the defendant had issued warnings requiring smaller vessels to shelter at any of a number of designated safety places further up the Inlet, and, a day or two before the cyclone arrived, the plaintiffs had anchored upstream off some mangroves in No Name Creek. Having weathered the storm in that way, the plaintiffs set off again at about 10.00 am on 28 March (which was Good Friday) intending to sail to Fitzroy Island or some other such destination in the open sea beyond Cairns. According to their evidence at the trial, they were making about 4 knots in choppy water, with wind, waves and an incoming tide, when the starboard hull of the catamaran was found to be taking water. Not long afterwards the vessel, which was then being taken inshore, began to capsize, and they abandoned ship. It sank upside down shortly after midday on 28 March 1997 in the vicinity of False Cape about 10 miles from Cairns.
- On the following morning Mr Merrin returned with a Mr Steve Eaton, who is a shipwright and carpenter, to the scene of the wreck which had been identified by a buoy attached to a small anchor. Using an aqualung, he dived to the sunken vessel and began recovering items still on board. On inspecting the vessel under the water, he claimed to have found a piece of concrete coated polystyrene (ex 3) wedged in a hole in the hull of the starboard bow of the vessel. He raised it to the surface and handed it to Mr Eaton, who was sitting in a rubber dingy receiving items brought up from below. At the trial, Mr Eaton said he recalled the object being handed up to him. It was roughly rectangular in shape, about two metres long and a metre thick, and resembled the material from which the defendant's marina pontoons were constructed. Exhibit 4 contains photographs of it and the hull. The vessel was raised, and Mr Eaton towed it back to Cairns, where it was beached on Admiralty Island.
- The plaintiffs' case at the trial, which was fiercely contested by the defendant, was that it was this object (ex 3), floating in the water, that had struck and holed the catamaran causing it to sink. Although formally denied in the defence as pleaded, it does not appear to have been disputed at the trial that ex 3 was a piece of broken pontoon from the Marlin Marina. The defendant admitted in its defence that it owed a duty of care to the plaintiffs. It was not much of a concession because it has long been settled that navigable waters bear the character of a public highway along which mariners are entitled to pass, and that creating a danger to use by shipping constitutes a public nuisance in respect of which persons damaged by its presence there are entitled to sue. See Halsbury's Laws of England, vol 49(2), (4th ed) §725, and, for example, White v Phillips (1853) 15 CB (NS) 245; 143 ER 778. The plaintiffs' amended statement of claim was framed in negligence, but would also have sustained a claim in nuisance. In any event, as Halsbury says, the owner of a wreck or other obstruction to safe navigation is liable for damage to a vessel if it could have been prevented by the exercise of reasonable skill and care: see Halsbury, vol 49(2), §725, at p 688.
- The plaintiffs' case, as it appears from the amended statement of claim, was founded on the defendant's alleged failure to use reasonable care, and not on any legal responsibility due from it as the occupier in control of the Port of Cairns. On any view of it, therefore, the plaintiffs were bound to prove at the trial that the defendant was at fault in failing to foresee and take reasonable precautions to prevent the damage that was alleged to have resulted from its constructing and maintaining the marina in the way that it did, and from failing to clear the debris from the waters of the port after the marina had disintegrated in the cyclone. See Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 AC 617, 640. As that decision suggests, the main questions at the trial of the plaintiffs' claim were whether the damage to the plaintiffs' vessel was reasonably foreseeable and what, if any, reasonable precautions could and should have been taken to avoid that damage. See also Hargrave v Goldman (1963) 110 CLR 40, 50-52, and Cambridge Water Co v Eastern Counties Leather PLC [1994] 2 AC 264, 300-301.
- Subject to proof that ex 3 was part of the debris from the marina and that it had holed the catamaran, of which there was ample (if contested) evidence to go to the jury, the plaintiffs' case at trial essentially was that the defendant was at fault in that it had negligently: (1) constructed the marina of materials of inferior quality and maintained it in that condition; (2) failed after the cyclone had passed to take steps to retrieve the debris including the piece that struck the vessel near False Cape; and (3) failed to warn vessels of the possible presence in the waters of the port of floating debris of that kind. The pleaded allegations principally relevant to the third of these matters were contained in paras 7(b) and 8(l) of the amended statement of claim. They were eventually withdrawn when, on the eighth day of the trial, Mr Swindells of counsel appeared for some days to lead Mr Wrenn of counsel for the plaintiffs. On appeal the plaintiffs claimed that the abandonment of those allegations had taken place without any instructions from them; but, in any event, their withdrawal did not extend to the allegation in para 8(m) that the floating debris incorporated concrete, as to which the plaintiffs continued to maintain its allegation that the defendant had not broadcast any specific radio warnings to shipping using the port.
- As to the first of the matters mentioned, as well as generally on the question of reasonable foreseeability, the plaintiffs' case at trial enjoyed a distinct advantage in that similar damage to the marina under the impact of cyclonic forces had already taken place on an earlier occasion. The marina had been built in 1986 and completed in 1987. In December 1991, it was struck by Cyclone Joy which caused it, or some of the pontoon "fingers" comprising it, to disintegrate in the same way as they did on 22 March 1997. After this event it was reconstructed using similar materials and according to the same design. It was plainly open to the plaintiffs to contend that the damage in 1997 was a reasonably foreseeable consequence of future cyclonic action of the kind experienced in 1991. Indeed, the action taken by the defendant in the aftermath of the 1991 cyclone demonstrated that it actually foresaw such damage in the future. Shortly after Cyclone Joy, it commissioned a study by engineers Blurton Russell & Associates Pty Ltd. Their report, which is a lengthy document dated January 1992, was, with two volumes of subsidiary material, attached to a 17 page statement by Mr Manning, Chief Executive Officer of the defendant, which the defendant was permitted under s 92 of the Evidence Act 1977 to tender at the trial as an exhibit representing Mr Manning's evidence in chief. The report and supporting documents thereby became evidence of the expert opinions on which the defendant claimed to have made its decision about reconstructing and redeveloping the marina; but, except in the character of admissions by the defendant, the report and other material did not become evidence of the facts contained in them. This does not appear to have been explained to the jury at the trial.
- The report by Blurton Russell is introduced by a paragraph which begins "As a consequence of persistent criticism of the Marlin Marina, the Cairns Port Authority resolved to investigate ways of overcoming the problems associated with the marina". The report proceeds to list various existing problems with the marina identified by the engineers' advisory team, of which the first was "lack of protection of marina components from cyclone induced wave action". The list is described later in the report as including a variety of issues "ranging from deficiencies in the original design …". It is not necessary to traverse in detail the advice and recommendations of the engineering experts. Suffice to say that four of the five proposals or options presented in the report dealt with measures for protecting the marina from cyclone damage, and the fifth was that the marina should be moved to another location. The defendant rejected the fifth option on the ground that no other suitable location was available. The other four options each recommended the construction of some form of a breakwater to protect the marina from the action of wind and waves. In the result, the defendant decided on a proposal for a staged development which, as varied in a supplementary report, was to take place in six stages which were timed to meet the funds expected to be available to the defendant over the ensuing years. Stage 1A would, that report said, provide "some improved protection to the marina from wave action from the southern and south eastern sector", which was in an upstream or inland direction from the marina. In the meantime the marina would continue to be exposed on the ocean or northern side to the action of wind and waves coming from that direction. It was said in the report and in evidence to be "the least prevalent" wind quarter. Construction of the breakwater on the exposed northern side of the marina had not begun when, five or more years, later Cyclone Justin coming from the northern direction caused the damage on the afternoon of 22 March 1997. The building of the protective breakwater on that side was evidently still taking place at the time of the trial in November 1999; but the trial judge ruled that evidence to that effect was not admissible at the trial of the action. Her Honour also refused the plaintiffs' application at trial for an inspection or view of the marina.
- From these matters alone, it is clear that there was evidence fit to go to the jury that the defendant had actually foreseen the possibility that the marina would or might be affected by cyclonic action in the future, and that precautions were necessary to prevent a repetition of the damage sustained in December 1991. There was also evidence that the sequence of construction chosen by the defendant was dictated by the availability (or unavailability) of the funds needed to complete the work of protecting the anchorage. The defendant, as Mr Manning explained, had other pressing commitments for expenditure on Cairns port facilities, to which, for commercial reasons, it decided to give priority. In the result, it would have been open to the jury to adopt the view that the defendant had actually foreseen the possibility of future damage to the marina from cyclonic action, but opted instead to run the risk of its happening by deferring the construction of a northern breakwater until the final stage of the proposed reconstruction of the marina. Commercially, it was the least profitable, although not the most expensive, of the defendant's planned commitments for redeveloping the marina after other port facilities had been redeveloped.
- By the 18th day of the trial, both plaintiffs and defendant had closed their respective cases. Having entertained an application that on the issue of liability there was no case to go to the jury, her Honour ruled in favour of the application and directed the jury to return a verdict for the defendant. In her reasons for doing so, the learned judge referred to the history of the construction of the marina and to other demands upon its financial resources; and went on:
"Further in accordance with the principles laid down by his Honour the Chief Justice Brennan in Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431,
'The defendant being a public authority created by statute could only act in accordance with its statutory powers, which it is obliged to exercise reasonably. The manner in which those powers were exercised is a matter in this case for the defendant to determine provided that determination was not unreasonable'."
- Before this Court on appeal, Mr Merrin, who appeared in person for himself and Mrs Merrin, complained that no passage in the form of that quoted appears in the report of Romeo v Conservation Commission either in the reasons for judgment of Brennan CJ or those of any of the other learned Justices who took part in that decision. His complaint to that effect is borne out by an examination of the reported judgments in that case. How this happened remains something of a mystery. The possibility was canvassed on appeal that the trial judge may herself have extracted the principle from the decision in that case and formulated it in her ruling, which was then erroneously reproduced in the transcript as a quotation. That, however, seems unlikely to be the explanation. There is nothing in the decision to suggest such a principle. Romeo v Conservation Commission was a case in which the plaintiff failed in an action for damages for injuries sustained when she fell over an unfenced cliff in a place that was under the control of the defendant to which the public had access. In considering the defendant's liability as a public authority with statutory powers, only Kirby J (192 CLR 431, 485) discussed whether in some circumstances:
"… budgetary, political and other constraints with which such authorities must operate are factors to be taken into account in determining the scope of the duty of care and whether, in a particular case, it has been breached."
- The High Court in Romeo v Conservation Commission was, it is true, concerned with the liability of a public authority, which was invested by statute with power to do "all things necessary" to carry out its statutory functions and exercise its powers of managing land under its control. The difference between that case and this is, however, that the defendant there had omitted to do anything, in the way of fencing or otherwise, to improve the safety of members of the public at the particular place in question; it had in that respect simply not exercised its statutory powers at all. It was not, like this, a case in which the defendant had, in the exercise of its statutory powers or otherwise, acted to create a potential source of danger from which damage was alleged to have ensued, and, as it was alleged, had done so without reasonable care. The point of distinction between the two classes of case was discussed by Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424, 459-60, where his Honour said:
"Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so … But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for the exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning…".
The present case is one step even further removed from the kind of limitation on or immunity from the liability of statutory authorities of which Mason J had been speaking earlier in his judgment in that instance. It is not one in which the defendant was bound to use its statutory powers in order to redress a danger which it had created, but one in which it was alleged to have created the danger in the first place by failing to fulfil its common duty of care of taking reasonable precautions to avoid creating or continuing that danger to others. It required no exercise of its statutory powers to avoid a breach of its duty of care. See also Pegoraro v South Burdekin Water Board [1972] Qd R 306, 309.
- The defendant here admitted there was a duty of care, and the only remaining question was whether the defendant had discharged the duty admittedly resting upon it. In addressing that question in her ruling, the learned judge said that the evidence that the "prevailing weather conditions affecting the marina [were] from the south-east, and the fact that Cyclone Joy struck from the south-east was uncontested"; and, further, that there was "no evidence which could act as a foundation for the jury to draw an inference that the defendant was acting unreasonably in constructing and improving the marina so as to protect it from the south-east first rather than constructing a structure to protect it from the north".
- With respect, this assessment misses the point of the plaintiffs' case at trial, and does so in two respects. The first is what was meant in this context by "prevailing" weather conditions. Cyclonic activity like that produced by Cyclone Justin is a frequent summer phenomenon in the northern latitudes of Australia, but it can scarcely be described as a prevailing weather condition in Cairns. What was covered by that description was elucidated in the cross-examination of Mr Manning, who said that there was continuous pressure on the marina by wind and waves coming from a south-easterly (or inland) direction, which imposed "wear and tear" on the structure. If it was the fact that Cyclone Justin originally came from the south east on 22 March, the destruction of the marina was, according to defendant's witnesses, caused in the afternoon when it swung round to the northern and unprotected ocean side of the marina. As Mr Manning acknowledged in cross-examination, a cyclone, once it crosses the coast, moves "in all directions".
- The second point about her Honour's ruling is the emphasis that falls on the word "first". The advice of the engineering experts was not that the defendant would discharge its common law duty of care to ensure the safety of port users by first constructing those portions of marina that were affected by prevailing south east winds and waves. It was not their function to advise the defendant on their duty of care. Rather, what their report did (or so a jury might have concluded) was to present to the defendant the option in engineering or construction terms of leaving until last the measures necessary to guard against exposure to cyclonic damage from the north. The report to the defendant said nothing to suggest that, if the defendant chose the option of building the south east breakwater first in order to accommodate its port development plans and resources, it would in that way eliminate or reduce the risk of damage by cyclonic activity from a northerly direction.
- To this it may be added that neither before this Court, nor as far as can be ascertained before the trial judge, was any attention given to the source of the defendant's statutory functions and powers in building the marina, rebuilding it after 1992, or maintaining it in the structural condition it was in until the cyclone struck in 1997. When asked about the matter on appeal, Mr Amerena of counsel for the defendant said that he was not in a position to address on it. The defendant, it appears, was originally a harbour board constituted under the Harbours Act 1955. My own admittedly incomplete researches show that, by a complicated series of statutory provisions, it was "corporatised" and constituted a Government owned corporation or GOC under the Government Owned Corporations Act 1993 (to which its assets and liabilities were transferred by ss 20 and 21 of the Government Owned Corporations (Ports) Regulation 1994), as well as a port authority under s 50A of the Transport Infrastructure (Ports) Regulations 1994. Section 161(1)(d) of Transport Infrastructure Act 1994 makes it a function of a port authority "to keep appropriate levels of safety and security in the provision of the facilities and services" which under s 161(1)(c) it provides for the effective and efficient operation of its ports. Corporatisation is described in s 16 of the GOC Act as " a structural reform process" that:
"(a)changes the conditions .. under which the entities operate so that they operate, as far as practicable, on a commercial basis and in a competitive environment."
- There is nothing in this to suggest that the defendant was intended to have the benefit of a special exemption or limitation, based on the extent of its financial resources, from liability for breach of the common law duty of care applicable to those who build and maintain commercial facilities like a marina for use by members of the public. When referred on appeal to s 16(a) of the GOC Act, Mr Amerena seized on the words "as far as practicable" as attracting some form of reduced immunity or limitation; but it is not at all "impracticable" to hold the defendant to the ordinary duty of care imposed on others at common law in doing what is described in s 161(1)(d) of the Transport Infrastructure Act 1994 as keeping "appropriate" levels of safety in the provision of facilities. The plaintiffs were, however, not alleging breach of statutory duty, and, as I have said more than once, the defendant in para 9 of its defence, expressly admitted that it owed a duty of care to the plaintiffs. If the defendant was in fact financially unable to discharge that duty by making the marina safe and doing so within a reasonable time, then its only option was to remove it altogether, or to pay compensation to those who suffered damage by reason of its unprotected state. It was not entitled at their expense to ignore the risk that a cyclone would damage it from the north before that phase of construction had been carried out. The jury at the trial might legitimately have been persuaded to see the matter in this light.
- This brings me to the final observation in the trial's judge's ruling on the defendant's submission that there was no case of negligence to go to the jury. What her Honour said was:
"Quite clearly, the design and construction of floating open water marinas is an area involving significant expertise and technical skill and, in the absence of any evidence contrary to that of Mr Manning, it is not appropriate to ask a jury of lay people to draw inferences that the advice received and acted upon by the defendant and the discretion exercised by and actions taken by the defendant were unreasonable".
As was demonstrated by the defendant's repeated objections to questions in cross-examination, Mr Manning was not an expert or possessed of technical skill in the design or construction of marinas. Indeed, no evidence of that kind was adduced by either side at the trial. The question for the jury in the present case was not whether the advice received by the defendant in the engineering reports, or the defendant's own actions or discretions exercised on the basis of those reports, were a reasonable or an unreasonable exercise of its statutory powers. It was whether, in constructing and maintaining the marina in a place and condition where it was vulnerable to damage by cyclone, the defendant had exercised reasonable foresight and acted with due care for the safety of port users and their property. In a common law action like this, the law of Queensland confers on the parties the right to a trial by jury. See Matthews v General Accident Fire & Life Insurance Corporation Ltd [1970] QWN 37. Once that choice is made, and until the law is altered, the jury is the constitutionally designated tribunal for the decision of issues of fact, however technical or difficult those questions may appear to a judge to be.
- In Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48, Mason J said:
"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 the conduct involved a risk of injury to the plaintiff or 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 those 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."
The tribunal of fact in the present case, as in Wyong Shire Council v Shirt, was a jury. The question at issue in Shirt's case was the liability of the defendant Council for an injury sustained by the plaintiff water-skier in an area of shallow water of a lake, on which the defendant had erected signs bearing the words "Deep Water". The High Court held that the plaintiff's case had properly been left to the jury. It was, Mason J observed (146 CLR 40, 48-49), sufficient to say that the jury's conclusion that there was a foreseeable risk of injury was not unreasonable and that it was a conclusion which was open on the evidence. In saying this, his Honour went on:
"I am mindful that the foreseeability of the risk in the instant case is a question on which minds may well differ, as indeed they have done. It is not a question which a judge is necessarily better equipped to answer than a layman."
- These principles are applicable here. Whether and in what circumstances a case may properly be taken from a jury at the close of both the plaintiff's and defendant's evidence was the subject of extensive consideration in the classic judgment of Sir Frederick Jordan in De Gioia v Darling Island Stevedoring & Lighterage Co. (1941) 42 SR (NSW) 1, at 3-5, which was recently applied in Naxakis v Western General Hospital (1999) 197 CLR 269. The criterion to be applied is, as Kirby J said in that case (197 CLR 269, 296-297), not whether there is an overwhelming body of evidence pointing to a particular conclusion, but whether, accepting all the evidence favourable to the plaintiff, and disregarding all of the evidence favourable to the defendant, it would have been open to the jury in this case to find a verdict for the plaintiff on the issue of the defendant's failure to take reasonable care for the safety of the plaintiff or of his property. In my opinion, for the reasons given, there was such evidence in this case. Her Honour's ruling was wrong, as also was the directed verdict that followed it.
- In addition, as the plaintiffs submitted on appeal, there was a series of rulings by the judge that wrongly excluded relevant evidence which the plaintiffs sought to lead at the trial. I will not refer to all of the matters relied on appeal. They included, for example, the evidence of Sharon Hooper, manager of the local yacht club, concerning records kept by the club of warnings to shipping broadcast by the defendant during and after the cyclone. The plaintiffs' purpose was to show that no warnings had been issued, either at all or after a certain date, concerning the presence of concrete coated debris in the water. It is doubtful in the end whether the records would have gone very far to establishing that fact; but that feature went to their weight rather than their admissibility. The log was an amalgam of reports by employees or members of the club who were probably not readily identifiable; but, as Williams JA pointed out on appeal, the evidence was, in accordance with the decision in Re Hennessey's Self Service Stores Pty Ltd [1965] Qd R 576, admissible under s 92 of the Evidence Act 1997 at least if the judge was prepared to act under paras (d) or (f) of s 92(4). It is not clear from the transcript that she considered doing so. A similar record or log tendered through Mr Swinton, an electronics engineer, who was president of the Cairns Marine Radio Club, suffered the same fate, as did another log of Mr Mark McCombie of the volunteer Coastguard Association. Evidence was also tendered or proposed to be called that, as late as 5 April 1997, a large piece of floating marina debris was brought in from the water. It was excluded on the basis that 5 April was well after the plaintiffs' vessel was sunk, and that the evidence was therefore irrelevant. But if such debris was still at large on that date, it considerably diminished the force of the defendant's claim that it had taken reasonable steps to retrieve all floating debris before the plaintiffs' vessel was sunk on 28 March, and correspondingly increased the chances that the plaintiffs' vessel was struck by a floating piece of pontoon on the earlier date.
- Other evidence that the plaintiffs wished to call was also excluded. There is another marina at or close to Cairns. It was an ocean marina constructed in the open sea off the beach at Yorkeys Knob and is, it was said, completely surrounded by an ocean breakwater. The plaintiffs proposed to call a Mr Peter Smith to say that the marina at that location had survived Cyclone Justin without sustaining damage like that suffered by the Marlin Marina. Mr Peter Smith is the president of the Yorkeys Knob Yacht Club, and as such he is acquainted with the marina. His evidence was excluded on the ground that (although he is a structural engineer), he claimed no expertise in the specialty of constructing marinas. The two marinas may well differ in detail; but that is a matter that would no doubt have been the subject of cross‑examination. The evidence as it stood was, on the face of it, plainly admissible in chief for whatever it was worth as a fact for the jury to consider and weigh along with other evidence. It might in fact have been worth a great deal.
- Then there was the evidence of Benjamin Merrin, who is the plaintiffs' older son then aged 15 years. His evidence was to have been that he was with his father on the day after the catamaran sank, and saw ex 3 after it was recovered from the water. The plaintiffs' decision to call him as a witness was taken after the cross‑examination of Mr Eaton in the plaintiffs' case had made it clear that there was a serious issue that he and Mr Merrin were perjuring themselves by saying or suggesting that the damage to the vessel had been caused by a piece of the defendant's pontoon debris. Benjamin was plainly also a relevant witness in relation to the suggestion put to Mr Merrin in cross-examination that Benjamin had left a porthole open through which water had entered and sunk the vessel.
- It is worth turning to the particular question of the cause of the sinking to illustrate another feature of the trial about which the plaintiffs complained in item (iii) of their original written outlines on appeal. It will be recalled that Mr Eaton testified that on Saturday 29 March he had gone out to the scene of the wreck at False Cape to assist Mr Merrin in salvaging the vessel. While he was there, he said, Mr Merrin brought up from the depths the piece of concrete and foam which "looked [like] a piece of the marina" identified and admitted as ex 3. After the vessel had been raised and towed upside down to Admiralty Island, Eaton had patched a gash in the side of its hull. Asked to say what he saw, he described it as "broken ply" caused by something which "had hit and made a hole - gash, hole". When asked to describe the gash or hole, he said it was "a rip in the ply", probably about a metre long. He could get his hand in it, or anyway his fingers, because the ply had opened up and then closed a little.
- Mr Wrenn of counsel for the plaintiffs was about to show Mr Eaton photograph 9 forming part of ex 4 which depicts the patched hull, when Mr Amerena for the defendant objected that there had been "a very bad piece of leading here": the witness had originally said "gash", and Mr Wrenn had put it back to him as a "hole". Mr Wrenn was forbidden by her Honour to show the witness a photograph "of something he hasn't given evidence of" and which was "contrary to his evidence". At one stage in his testimony, Mr Eaton had intervened to say that a gash or a hole were to him the same thing. When Mr Wrenn submitted that the photograph fitted precisely what the witness was saying, her Honour said she had already ruled on that question. In the result, Mr Wrenn was not permitted to show the photograph to Mr Eaton. Not content with that success, Mr Amerena invited her Honour to say what she would be telling the jury about this evidence when she came to direct them, otherwise he would not be able to cross-examine Mr Eaton effectively. Her Honour complied with his request. Armed with the transcript, Mr Amerena then took the matter up again on the following day. He described Mr Wrenn's action in, as he claimed, leading the witness as "misconduct", for which Mr Amerena was "not prepared to allow his client to suffer". It is noteworthy that Mr Stroud, who was the next witness to follow (and who was the loss adjuster for the defendant's insurer), described what he saw as a hole or gash in the hull. If, which may be seriously doubted, Mr Wrenn had led the witness Eaton into saying it was a hole, it was a pretty innocuous form of leading. By comparison, as everyone knows, some experienced counsel make an art form of leading for as long as they can get away with it. Most of us can recall opponents at the Bar engaging in such practices.
- There were many other objections by the defendant to the admission at the trial of evidence from the plaintiffs' side, and also to questions put in cross-examination to witnesses for the defendant. Most of these objections were upheld. Some were justified; others were not. On one occasion in cross‑examination, Mr Manning was asked if the cyclone damage in 1997 was not foreseeable. The question was objected to on the ground that the defendant had not been given proper notice of it. Happily on this occasion, the objection was overruled. Mr Wrenn was, however, not permitted to ask what stage the construction of a breakwater on the northern side of the marina had reached at the time of the trial, nor what it was costing the defendant to build it. These, said her Honour, were matters that post-dated the damage in 1997, and so were irrelevant. In the absence of the jury, Mr Amerena submitted that, because Mr Wrenn was deliberately using his status as an inexperienced counsel, to make a "calculated attempt" (and in a "smirking" tone) "to play the underdog trick" of trying to gain the sympathy of the jury by having her Honour come in and stop his questions. For this, Mr Amerena insisted, Mr Wrenn should be cited for contempt.
- This outburst was followed by a dressing down from her Honour that evoked from Mr Wrenn a cri de coeur in which he sincerely apologised to the Court for his inexperience and the shortcomings in his conduct. He had received the brief only seven days before the trial; he was under tremendous pressure in confronting its enormity; and having very little sleep because of it. He assured the Court that there had been no intention to offend. Her Honour insisted on his giving an assurance that he would abide by her rulings, and that "you will not behave or undertake behaviour that may prejudice the defendant in the eyes of the jury in seeking to elicit sympathy from the jury for your position and your client's position as, Mr Amerena puts it, ‘the underdog’". Mr Wrenn said that he was mindful of all her Honour's rulings, and, if he offended in any way, it was certainly not intentional. He would keep what she had said foremost in his mind for the rest of the proceedings. Mr Wrenn's treatment on that occasion may be compared with an instance when he complained of the defendant's solicitors conversing with Mr Manning during a break in the cross‑examination. The conversation turned out to be innocuous; but he was again warned in no uncertain terms not to accuse his opponent of unethical conduct. On appeal, this incident was identified by Mr Merrin as one of those that demonstrated the differential treatment that was accorded by her Honour to one counsel over the other.
- Mr Wrenn was, it seems, new to the Bar at the time of the trial and, like most of us at that stage in our careers, he did not always frame his questions with appropriate precision and was unduly repetitive in the questions he put. The cross‑examination of Mr Manning was much more protracted than it would or might have been in the hands of a more experienced practitioner. Nevertheless, responsibility for its length did not rest with him alone. Part of the reason was the form in which Mr Manning's evidence in chief was presented in two substantial volumes as a written statement with an accompanying host of printed reports and other documents. Another was that Mr Manning proved to be one of those witnesses who, even when asked a question in cross-examination that admitted of a simple answer, used the opportunity to present a lengthy justification of his side’s position. On occasions when Mr Wrenn attempted to prevent this, he was, on Mr Amerena's objection, told to stop interrupting the witness and allow him to finish his answer; by no means all of those interventions from the Bench or Bar were legitimate. Judging by the transcript of his evidence, Mr Manning was an unresponsive witness under cross-examination.
- In all of these and other matters of complaint, Mr Merrin detected an element of one-sidedness on the part of the trial judge in the conduct of the trial. The defendant's written outline responded to this in part by saying that, on the common evidence from both sides, Mr Merrin suffered from a "paranoid personality disorder". If that was so, it was likely only to be exacerbated by some of what happened at the trial. Although obviously passionate about the wrongs he supposed had been done to him, it is not inappropriate to record that Mr Merrin conducted his appeal before us in a rational and, for the most part, moderate fashion. One of the underlying problems, as I see it, was that the trial had been set down for hearing for 14 days, and was to be followed by a series of other trials or judicial commitments at which her Honour was listed to preside. On the second day of the trial, she ruled that no more witnesses could be called by the plaintiffs other than those Mr Wrenn had opened at that stage. Trials, she said, cost thousands of taxpayers money to run; and, elsewhere, that she was not prepared to let this one go on and on. It was similar to what judges often say on such occasions to hurry things along; but it was because of her ruling on the second day that her Honour refused to allow Benjamin Merrin to be called to confirm the testimony of his father and of Mr Eaton about the discovery or recovery of ex 3. His evidence was plainly relevant to what by then had become a critical issue at the trial, and he should have been allowed to give his evidence irrespective of the cost to the State. I am bound to say that too much time was taken up at this trial with the discussion of objections and with sending the jury out of court while those matters were debated at greater length than they merited. The rule that only one uninterrupted submission should be allowed from either side was not observed. The cost of this appeal and of the new trial that is to follow will dwarf any loss that would have resulted from permitting Benjamin Merrin to take the stand as a witness even if he had not been opened as a prospective witness on the second day of the trial.
- For all of these reasons, the appeal should, in my opinion, be allowed with costs, and there should be a new trial of the action. Mr Amerena submitted that the common order in those circumstances is that the costs of the first trial should abide the event of the second. That was the order made by the High Court in Naxakis v Western General Hospital (1999) 197 CLR 269; but it is not the universal order in cases where a directed verdict or a nonsuit is set aside on appeal. See, for one among many examples, Hicks v Trustees Executors & Agency Co (1901) 27 VLR 389, 393; and cf Stuart v Watson (1886) 2 WN (NSW) 94. Costs are a matter for discretion; and in this instance, I am satisfied that the responsibility for throwing away the costs of the first trial rests squarely with the defendant because of the way in which it conducted its case at trial and its unjustified action in applying to have the case taken from the jury. I would therefore order that the defendant pay the plaintiffs' costs of the first trial.
- WILLIAMS JA: McPherson JA in his reasons for judgment has set out all necessary background facts to this appeal, and has defined the issues raised for consideration by this Court. His Honour has dealt with the contention of the appellants that they had a case to go to the jury that the respondent negligently constructed the marina using materials of inferior quality and maintained it in that condition. I agree with all that he has said on that issue.
- I propose to deal with the contentions of the appellants that the respondent negligently failed, after the cyclone had passed, to take steps to retrieve the debris from the marina, including the piece that struck their vessel near False Cape, and also was negligent in failing to warn vessels of the possible presence in waters under its jurisdiction of floating debris of that kind. McPherson JA has also considered the authorities establishing the appropriate test to be applied in determining when a case could properly be taken from a jury at the close of evidence. I agree with his analysis of those authorities and the conclusion he reached. That is the test which I will apply in determining whether there was a case to go to the jury with respect to either of the particulars of negligence referred to above.
- It will be remembered that the cyclone struck Cairns on Saturday, 22 March 1997. The incident resulting in the sinking of the catamaran owned by the appellants occurred on the following Friday, 28 March 1997. The destruction of the marina occurred substantially on the afternoon of 22 March. On the morning of Sunday, 23 March 1997, employees of the respondent (McAuliffe and Moore) commenced a land-based clean up of debris from the pontoons. By the Sunday afternoon the winds had subsided sufficiently to enable what was described as a "water based clean up" to commence. A boat carrying McAuliffe recovered a large piece of pontoon from near Beacon 20, a point seaward of where the marina had been located. Both McAuliffe and Moore gave evidence of recovering debris on the Monday from inside Trinity Inlet. On the Tuesday and Wednesday each of them went further seaward in an attempt to recover debris. On those days some pieces of pontoon were recovered from near Bessie Point. McAuliffe said that nothing was recovered further out from Bessie Point; in particular, on one occasion he travelled beyond False Cape towards Mission Bay but saw no pieces of pontoon. Generally his evidence was that boats were used to collect debris for about two weeks but that nothing was located further north than Lyons Point between Bessie Point and False Cape. Both witnesses referred to debris from the pontoons being caught up in mangroves, and Moore gave evidence that king tides about 1½ to 2 weeks after the cyclone washed some of that debris out into Trinity Inlet and adjacent waters.
- There was a deal of generality about all the evidence given in this regard. At one point McAuliffe said:
"We basically had about seven of the boats involved in the clean up, two of the boats doing the majority of the pontoons, starting out at Bessie Point and back from Bessie Point, towing them back to the Marlin Marina boat ramp".
To similar effect Moore said in answer to a question:
"There was the 'Stannery', our workhorse, a vessel that we call 'Harbour Patrol' which was a speedboat. Two vessels we hired from Tropical Reef Enterprises that were workboats, two dinghies, and the oil spill craft, small oil spill craft that we use".
Those statements are extremely vague; they do not indicate where or at what times those craft were employed. Reading the evidence of McAuliffe and Moore as a whole it may well be that a tribunal of fact would reasonably conclude that on only one occasion (or at most two occasions) was there a search for debris made out in the region of Bessie Point - False Cape, and then only by one boat. Ultimately, what was to be made of all that evidence was, in this case, for the jury.
- Other witnesses (Matthews, Nucifora, Ptolomy and H Gerekink in Exhibit 53) spoke of debris from the pontoons being located at various points. Also, as is dealt with in the reasons of McPherson JA, evidence that a large piece of pontoon was recovered on 5 April 1997 was wrongfully excluded by the learned trial judge. I agree with McPherson JA that such evidence was probative on the issue whether the respondent had taken reasonable steps to retrieve all floating debris before 28 March.
- Reference should also be made to the evidence of the expert witness Heron who gave evidence that given wind drift factors it was unlikely that debris would have got beyond Lyons Point, and very unlikely it would have got beyond False Cape.
- It is clear that debris from the destroyed marina constituted a danger to shipping within the jurisdiction of the respondent and that it took measures to retrieve that debris. If the jury concluded that a piece of the pontoon (in particular Exhibit 3) caused the catamaran to sink (and as pointed out by McPherson JA there was ample evidence to support such a conclusion if the evidence in question was accepted by the jury) then the jury would have had to consider whether or not the respondent had taken reasonable steps to recover that debris before the incident occurred.
- There was evidence from witnesses called by the respondent of the steps taken to recover debris and to ensure that the waters were safe for navigation on 28 March 1997. It was for the jury, and in the circumstances for the jury alone, to determine whether or not the steps so taken discharged the duty on the respondent.
- The learned trial judge in ruling that there was no case to go to the jury concentrated on the issue of negligence in the construction and maintenance of the marina; very little was said on the other issues. The only relevant passages in her reasoning are the following:
"And when the harbour was re-opened, the opening was accompanied by a warning to all users of the harbour to proceed with caution. Commencing on the morning of 23 March 1997, with a land borne operation, followed by that afternoon and during the ensuing days with a sea borne operation, the defendant took steps to retrieve and secure parts of the marina which were floating in the harbour.
. . .
The question for determination is therefore whether there is any evidence on which a fair-minded jury could reasonably find that the Cairns Port Authority had acted unreasonably in the construction, repair and upgrade of the Marlin Marina. The retrieval of the pieces from the damaged marina from the harbour and the issuing of warnings regarding the danger presented by the floating debris, that is whether there is any evidence which discharges the evidential onus upon the plaintiffs to show that the defendant breached its duty to the plaintiffs in the circumstances of this case.
. . .
There is no evidentiary material which would enable the jury to find that the defendant acted unreasonably or exercised its statutory powers unreasonably and the plaintiffs have not discharged the evidentiary onus upon them with respect to the propositions put forward by their counsel in argument or raised in their statement of claim".
(The extempore reasons were not corrected, and there is some obvious error in the second paragraph in that quote, but nevertheless the point the learned trial judge was making can clearly be inferred from what is recorded.)
- It may well be that many would consider that the steps taken by the respondent to recover the debris were sufficient to discharge the duty imposed on it, but that was a matter for the jury to determine. As is made clear by the passages from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, quoted in the reasons of McPherson JA, whether what was done was sufficient to discharge the duty was a question on which minds may differ and it is not a question which a judge is necessarily better equipped to answer than a lay-man. It is sufficient to conclude that it would have been open to the jury in this case to find for the plaintiffs on the issue that the defendant failed to take reasonable steps to recover debris floating in waters under its jurisdiction of which it was aware or ought to have been aware.
- Before leaving that issue there are two further observations I would make.
- Counsel for the appellants endeavoured to ask Manning, the Chief Executive Officer of the respondent, whether Exhibit 3, or a similar article, posed a danger to a small vessel if they came into collision. The learned trial judge upheld an objection by counsel for the respondent and ruled that the witness was "not qualified to answer that". She rejected the argument advanced by counsel for the appellants that it was essentially a "general knowledge question". In the circumstances it does not appear to me that any particular expertise was necessary to answer the question posed. Particularly given all the expert material which was incorporated into Manning's statement which became an exhibit, it is difficult to see that he could not reasonably answer the question. Some expertise may have been required if the cross-examiner went on to ask questions as to the specific damage which might be caused by such a collision. It is sufficient to say that the particular question was unobjectionable, and that is but another instance of the attempts by counsel for the appellants to present their case being thwarted by unnecessary and repeated objection from counsel for the respondent.
- Further, I have grave doubts as to whether the test or demonstration conducted during the evidence of Moore was admissible. The witness prepared what was described as a model of Exhibit 3 and gave evidence of what happened when that model was placed in the sea. Also a tub containing water was brought into court and, before the jury, Moore was asked to place the model in the tub. In the circumstances it is not necessary to reach any final conclusion on the admissibility of all of that. At any retrial the admissibility of such evidence would have to be determined in the light of the evidence and submissions then before the court.
- At a late stage in the trial, after counsel had closed the case for the appellants, their counsel abandoned the particulars in para 7(b) and 8(l) of the Amended Statement of Claim. Relevantly those provisions provided:
"7.The damage and loss was caused solely by the Defendant as a result of the breach of duty and/or negligence of the Defendant in that:
. . .
- Failure to warn all vessels of the dangerous floating and/or submerged/semi-submerged broken and damaged sections of the Pier Marina;
. . .
- The loss and damage was caused solely by the Defendant as a result of the breach of duty and/or negligence of the Defendant in that the Defendant:
. . .
(l)Failed to warn the Plaintiff or others that parts of the Marlin Marina were freely floating in waters frequented by shipping".
That still left for consideration para 8(m) which alleged negligence in failing "to warn the Plaintiff or others that the pieces of the Marina which were floating freely in waters frequented by shipping were constructed of concrete and buoyed by flotation substances so that they would be floating submerged or semi-submerged in the water".
- The clear inference I draw from counsel's conduct in abandoning reliance on those particulars is that it was appreciated at that stage of the trial that there was insufficient evidence to go to the jury to support those allegations. That situation was brought about, at least to some extent, because the learned trial judge had refused to admit the radio log books into evidence. As McPherson JA has pointed out, there was a valid basis on which those logs could have been, and should have been, admitted into evidence.
- At any retrial the appellants should be permitted, if they so desire, to rely on the allegation of negligence in failing to warn as alleged in 7(b) and 8(l). It will be for the trial judge at the retrial to determine whether or not the plaintiffs have led sufficient evidence to warrant leaving that particular of negligence to the jury.
- For the reasons given by McPherson JA, and for the reasons stated above, I agree with the orders proposed by McPherson JA.
- CHESTERMAN J: I have read the draft reasons for judgment prepared by McPherson JA and by Williams JA. I agree with what their Honours have written and with the orders proposed by McPherson JA.
Orders:
1. Appeal allowed with costs.
2. Set aside the verdict and judgment in favour of the defendant.
3. Order that there be a new trial of the action.