Healey v Farrell[2007] QSC 252

SUPREME COURT OF QUEENSLAND

1. The plaintiff was injured on 16 July 1997 whilst working on the dive vessel “Falla” at Cairns in the State of Queensland.  By this action he seeks damages for personal injuries from the first defendant, Peter Damien Farrell, the second defendant Quintessential Diving Pty Ltd of which Peter Farrell was a Director, and the third defendant Silversail Cruises Pty Ltd which was the registered owner of the vessel.

2. The second defendant carried on the business of providing instructional courses for persons interested in gaining underwater diving qualifications and of providing diving excursions for persons generally. To this end the second defendant entered into an arrangement with the third defendant, Silversail, as owner of the “Falla” to use the vessel to convey its customers to dive locations and to be used as the support facility for the diving operations, e.g. the storage of equipment and the provision of lunches, etc.

3. The precise terms of this relationship between the second and third defendants is not known. If it was ever evidenced in writing, the writing is now said by Mr Farrell to have been lost.^[1]  It seems however that the third defendant provided only the boat and the skipper who was in charge of the boat’s operation.  The usual skipper, who was identified only by the name “Peter”, was an employee of the third defendant.  On some occasions the first defendant skippered the boat.  On those occasions he was paid by the third defendant.  The second defendant provided all other staff necessary, both for the dive operations and for the running of the boat.  These included employed dive instructors and trainees who were neither employed nor paid.  The commercial relationship between the two corporate entities is not satisfactorily explained by the evidence.  Whilst in broad terms the second defendant was responsible for the diving and the third defendant responsible for the boat operation, there is some uncertainty about which entity was responsible for the training and directing of persons in the plaintiff’s position.

4. The third defendant did not appear when the matter came on for trial. At the date of the callover the third defendant was legally represented and, I am satisfied, was duly advised of the hearing date. The third defendant’s failure to appear, results in the plaintiff having to prove its case against the third defendant in accordance with the exigencies of the relevant pleadings. The third defendant delivered, but did not file, a Notice claiming from the first and second defendants’ contributions in respect of liability pursuant to the Law Reform Act 1995.  The claim for contribution relies upon the plaintiff’s allegations against each of the first and second defendants.  Notwithstanding the third defendant’s failure to attend at trial to pursue its claim for contribution, it seems appropriate in the interests of finality of litigation to undertake an apportionment of liability in the event the plaintiff establishes negligence against another defendant.

The plaintiff’s relationship to the defendants

5. It is common ground that the plaintiff worked on the vessel for two months before he was injured. He was not formally employed by any of the defendants. His involvement came about because he wished to obtain further dive qualifications but he did not have the financial capacity to pay for the necessary instruction and experience. He already had an open water dive certificate – the basic qualification - but was seeking a dive master level qualification. He was attracted by a notice displayed at his hostel inviting persons who wished to obtain dive qualifications to apply to gain experience while providing services to the second and third defendants, or either of them. Those services were to be provided, and were in fact provided, without monetary reward but for the benefit of receiving without charge the relevant diving experience. This involved doing approximately 60 dives. The cost of gaining that experience otherwise would be approximately $120-$150 per trip.^[2]

6. Effectively, the plaintiff was to carry out duties beneficial to the two separate operations on board the vessel. He was to assist the dive operation by welcoming customers, making those customers comfortable, assisting with dive instructors throughout the day and setting out the lunch. The dive experience was gained by watching the instructors initially and then more actively assisting them.^[3]  He was also to do the duties of a deckhand on behalf of the boat operator – preparing it for the voyage, securing and casting off moorings, hoisting the sails and cleaning the vessel at the end of each voyage.

7. In agreeing to these arrangements the plaintiff dealt with the first defendant. The first defendant, who, as admitted in their Defence, was acting as servant or agent of the second defendant, undertook the task of giving him instructions. This appears to have included instructions about the operation of the vessel. The third defendant obviously gave directions about the vessel’s operation but there is no evidence that anyone on behalf of the third defendant engaged in the training of the plaintiff. The first defendant was a qualified master and acted as the vessel’s skipper from time to time. He accepted that it was part of the policy of the (second defendant) to ensure that what the trainees had to do with moorings and sails was explained to them.^[4]

The incident

8. At the time of the incident, the vessel was on the point of departing the pontoon to which it had been moored overnight. The system of mooring was to have the vessel secured fore and aft by a bow and stern line attached to the pontoon. There was a springer line secured to the middle section of the vessel and thence to the cleat to which the stern line was also attached. Photograph ex 3.3 illustrates the springer line passing through an opening on the side of the vessel. Photograph ex 3.1 shows the lines attached to the cleat. The springer line is the thicker of the two ropes. It has a loop at its extremity which is passed around the base of the cleat and looped over one of the arms.

9. When the vessel was departing, the bow and stern lines were released first. The tension on the springer line is reduced by the vessel reversing which allows the person casting off to remove the loop from the cleat. The springer line could then be just thrown onto the vessel or even into the water. Its length was such that it would not foul the propeller. Another alternative was for the person to hold onto the loop and then step back and into the opening at the side of the vessel drawing the rope behind. The plaintiff was following this method which he claimed he had observed other deckhands using. He claimed also that this was the first occasion on which he had ever cast off the moorings though he had observed it done by others on previous occasions.

10. On the day in question the plaintiff’s task was to release the stern line and the springer line. He had already released the stern line and the boat was now reversing to reduce the tension on the springer. The plaintiff removed the loop from the cleat and holding the loop in his hand stepped back onto the boat. He noticed that the line however was still around the base of the cleat. He became concerned that with the boat reversing the line might become caught so he dropped the line and jumped back onto the pontoon and tried to lift it over the cleat to free it.^[5]  In the process his thumb was caught between the rope and the cleat. 

11. Before jumping back onto the pontoon, the plaintiff did not call out to the skipper to advise of the problem or that he was leaving the boat. The skipper was told that the springer line had been released or would have known that this would have been done.^[6]

12. Had the springer line been pulled or thrown clear of the cleat when it was first removed then there would have been no danger. The plaintiff’s action was one of reaction to the perceived danger which was really of his own making.

The duty of care

13. His allegation of negligence against all defendants are essentially based upon their breaches of their common law and statutory duties under the Workplace Health & Safety Act 1995.  None of the defendants was an employer in the strict sense but the relationship between the plaintiff and each of them was akin to that of employer and employee.  In Stevens v Brodbribb Sawmilling Co Pty Ltd^[7] the issue was whether the injured worker, an employee of an independent contractor, was owed a duty of care by the company that engaged the independent subcontractor.  Mason J (as he then was) explained the contractor’s obligation in these terms (at p 31):-

“Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined.  If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work.  The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.  Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”

Deane J (at p 53) agreed with Mason J holding that there was “the requisite element of proximity to give rise to a relevant duty of care”.

14. The plaintiff was clearly under the control of the first defendant as to the manner in which he had to perform the work associated with the diving activity. The second defendant was vicariously liable for any breach of duty committed by the first defendant within the scope of his authority. In Burns Philp Trustee Co Ltd v Clarke^[8] this point was discussed in the context of the employer’s liability where, by the negligence of an employee, a co-employee was injured.  Abadee AJA (with whom Priestly JA agreed) said (at p 8):-

“His Honour found the issue of proximity in the [co-employee’s favour].  Such a finding was not challenged.  The issue became rather whether there had been a breach of the duty of care by [the employee].  His Honour found such a breach.  As there was a casual act of negligence on her part, as fellow employee of the respondent then in the circumstances the appellant was, as His Honour found, vicariously responsible for such.  The standard of care to be applied to the conduct of an employee when an action is brought by a fellow employee “does not differ from the ordinary standard which would be applied at the instance of an injured stranger”.^[9]

…However, a finding of negligence based upon the vicarious liability of the employer for the negligence of an employee does not of itself inhibit the conclusion that there was a breach of the non-delegable personal duty of the employer to provide a safe system of work…Nor does a finding that the employer was not in breach of its personal non-delegable duty preclude a finding of the employer being vicariously liable for the casual act of negligence of its employee.”

In the circumstances I am satisfied that the first and second defendants each owed a duty of care to the plaintiff and further that the second defendant was vicariously liable for any breach of that duty made by the first defendant.

15. As to the third defendant, it is clear that it was responsible for the activities relating to the movement of the vessel. It had a duty of care to those involved in the tasks related to the vessel which of course included the casting off of mooring lines. The third defendant, its servants or agents had a duty to ensure that those engaged in that task were properly instructed in its performance. If this task was delegated to others then the third defendant had a duty to ensure the delegation was properly performed by means of inquiry or supervision. The third defendant did not appear at the trial to contend that it had fulfilled its duty.

16. I am satisfied that each of the defendants was under a duty to take reasonable care to avoid the plaintiff being injured whilst carrying out his duties on the vessel. The essential element of that duty which the plaintiff alleges was breached was the failure to give him adequate instruction or proper supervision with respect to the task of casting off mooring lines.

Was there a breach of duty?

17. Prior to undertaking these activities, the plaintiff had no experience in boat handling, even though he had been on boats to obtain his earlier dive qualifications. Before taking up his duties he claimed that he was given no specific instruction about the release of mooring lines. It was put to him that he was given instruction by the skipper known as Peter. The plaintiff said that he only learned from other trainee dive masters who had more experience than himself, and they were the ones that showed him how to do stuff.^[10]  It was put to him that he received instructions from the first defendant as follows:-

“And I also suggest that in fact after the induction course you actually did – were presented with some paperwork that signed off acknowledging that you had undergone work induction? – No.  No. As far as an induction went I had the first initial meeting with Mr Farrell, and then I had my first day on the boat, and then after that it was all very experiential learning.  There wasn’t any inductions.  It was just – if you want to do something then you did it and you learned how to do it in that way.

Now, you say that you were told by the dive masters about ropes? – The trainee dive masters, yeah.

Trainee dive masters.  What do they tell you? – Well, I watched them and how they function on the boat, because they have more experience, and then they showed you how to tie off ropes, or showed me rather.^[11]

18. The first defendant claimed that he provided a lengthy induction process to persons in the plaintiff’s position. He said the instruction related to looking after customers and maintaining dress standards. He was asked further about the induction in the following question and answers:-

And in terms of that induction process was the skipper of the vessel ever involved in terms of that? – Yes, he was. He was – ultimately everything that was boating was under the – the – the charge, the direct charge of the captain so he would – he would oversee the training that went on with the boat as far as putting sails up and – and other – picking up moorings and that sort of thing.

All right.  Now, I mean we – was it part of the policy of the company to ensure as part of the induction process that the – what they had to do with moorings and sails and such like was explained to them? – Yes.

And at the conclusion of those processes was any documentation prepared? – There – there was documentation done at various times in – in the training, we didn’t document every training session that we did –

Mmm? – so not every time there was a – a – I couldn’t say honestly that every training was – was documented, no.^[12]

No documentation was ever produced detailing the content of any such induction nor acknowledgment that any trainee had undertaken it.

19. As to giving the plaintiff instructions about the use of mooring lines, the first defendant agreed that the safe use of mooring lines was not part of the first onboard discussion with the plaintiff.^[13]  He could not say that he may have given the plaintiff instruction about mooring lines or general safety. He spoke generally of this being the skipper’s responsibility and then the following exchange occurred:-

You – you – you though never supervised Mr Healey letting go a springer line, did you? – Yes, I did.

And would you -- ? – We – we would have – we would have had training sessions – when the boat actually came in we would take the crew down.  That whole training session about how to take those ropes off would take about three minutes.

And I suggest to you that you didn’t.  I – I put it to you that you didn’t supervise Mr Healey releasing the springer line because the only time he ever did it was the day he got injured? – Well, that’s not the case.  He was on the boat for quite a few weeks before that happened and he would not have been on the boat and not have been shown how to do that, and certainly would have done it, so he’d done it many times before.^[14]

20. Whilst it is correct that the plaintiff was on the vessel for a few weeks, he claimed that others did this task. It is clear that the plaintiff was not supervised on this occasion and the first defendant could not volunteer when and by whom the plaintiff was trained in this procedure. Releasing the springer line is a simple task provided the dangers of fouling the line were pointed out and there were proper procedures in place to prevent such fouling from occurring. The first defendant was himself the skipper of the vessel from time to time and in that capacity was an employee of the third defendant. He described a proper procedure for casting off the mooring lines but said that he was not aware of any practice amongst crew members of holding onto the loop after releasing it from the cleat.^[15]

21. The question of whether the plaintiff was given any, or any adequate, instruction as to the proper method of casting off a mooring line falls to be determined by my view of the credibility of the two witnesses who spoke on this issue. I am satisfied that the induction given to the plaintiff on his first visit to the vessel was focussed on his duties to the customer and on customer safety. This was undoubtedly the pre-occupation of the first defendant when he spoke of being involved in a “people industry”^[16]  and diving being a “heavily regulated industry”.^[17]  The first defendant gave no evidence of a structured programme of instruction to dive trainees, rather he resorted to generalised expression such as it was “part of the policy…to ensure that what they had to do with the moorings and sails was explained”^[18] and would have been told “not to doing anything on the boat unless he’d been taught how to do it”.^[19]

22. Then there was the confusion as to whether the giving of such instruction was the responsibility of the first defendant or the skipper for the time being of the vessel who may have been the first defendant anyway.^[20]  The first defendant spoke of a training session of three minutes duration.^[21]  The first defendant’s recollection appears to have been reliant upon the fact that the plaintiff had been on the vessel for two months.  In such circumstances he would have expected the plaintiff to have developed familiarity with the mooring process.  In fact, the plaintiff had done so to some degree in the tying up process and this fact had no doubt been observed by the first defendant.  But I accept the plaintiff’s explanation that the casting off of a springer line was done by others and the occasion of this incident was the first time he had performed that task.

23. I accept the evidence of the plaintiff that he was not given specific instruction and training about releasing the springer line. This was clearly the most dangerous part of the casting off process. Reliance upon other trainees to provide training in this task does not in my view satisfy the obligation imposed upon the defendants in the circumstances.

24. The plaintiff had adopted a method he had observed other members of the crew use without their being corrected. It was not the safest method but had the convenience of not having to haul in a line which may have been tossed into the water. This method, however, had an inherent risk which could easily be prevented by pointing the risk out to a trainee. I am satisfied this was not done. As a consequence when the plaintiff thought the springer line would become fouled he was left to react to a situation he perceived to be dangerous and which he had not encountered before. In his reaction he may have chosen the wrong option but he was acting in what he perceived to be an emergency. Proper training and supervision would have avoided the danger and his perception of danger.

25. In the circumstances I am satisfied that all defendants were in breach of their respective duties of care to the plaintiff. I find it unnecessary to consider whether there were also breaches of any statutory duty.

Contributory negligence

26. As to the seven allegations of contributory negligence raised in the first and second defendants’ Defence, five of them relate to the plaintiff acting contrary to the instructions he had been given. For the reasons stated above I am not satisfied that any such instructions were given. As to his failure to have regard for his own safety (para 11.2.2) this comes down to the plaintiff’s perception of danger which, because of his inexperience and lack of instruction, was no doubt flawed. The failure for this lies with the defendants. As to the plaintiff’s failure to advise the skipper that he was disembarking (para 11.6) this has to be seen in the context of his reacting to a danger as he perceived it with the consequence that he may have acted inappropriately but he bears no responsibility for that.

27. The third defendant has not appeared to pursue its claim for contribution but the findings above, in any event, defeats its allegations.

28. I find there is no contributory negligence on the part of the plaintiff.

Contribution between defendants

29. As to the contribution between the defendants, the starting point is that it was the first and second defendants who made the invitation to the plaintiff to enter into the arrangement with itself and the third defendant. It was incumbent upon the first and second defendants to ensure that the arrangement was implemented with due care and that included insuring that the third defendant provided appropriate instruction to the plaintiff about his duties in connection with the operation of the vessel. The third defendant clearly had a duty of care to those who were working on the vessel in circumstances where those persons received a reward in kind for so doing. The business arrangement between the second and third defendants was not clearly defined and the relationship each bore to the dive trainees was even less clear. In those circumstances I assess the contribution to the plaintiff’s damages equally between all defendants.

Damages

30. Turning now to the assessment of damages. The injuries suffered by the plaintiff was confined to his left (non-dominant) hand where his thumb was severed. He was taken to Cairns where pain relief medication was administered before he was flown to the Princess Alexandra Hospital in Brisbane.  There, the thumb was re-attached but it became unstable and infected.  Despite a second round of surgery, the thumb was finally amputated some five days after the incident.  Throughout this whole period the plaintiff suffered severe pain for which morphine was administered both intravenously and later by injection.  The plaintiff experienced also significant blood loss which made his period in hospital uncomfortable.  Following his discharge from the hospital the plaintiff returned to Cairns where he had the support of friends to assist with the dressing of his wound and his everyday care.

31. The plaintiff continued on pain relief but it was approximately four weeks after the incident that the pain eased sufficiently for him to undertake even minor tasks. He attended occupational therapy which caused him further pain, particularly if the stump was touched. He became concerned about his future and suffered depression as a result.

32. The plaintiff returned to England in September 1997 and returned to work in October of that year.  He had considerable difficulty in pursuing his employment for a period of time and never regained the efficiency that he formerly had.  After approximately two months he returned to some recreational activities such as surfing, bike riding and playing guitar.

33. In February 2000 he underwent further surgery to deepen the web between his left forefinger and the stump of his thumb. This surgery was undertaken in London under the hand of Dr Evans.  The prospect of further reconstruction surgery in the nature of a transplant of a toe to take the place of his thumb was discussed but the plaintiff is not keen in pursuing that option.  He has used a variety of prostheses but has found sufficient function in his hand to carry on without that additional support.

34. The plaintiff is left with a scar running across his hand up to the stump which feels tight and restrictive. He has basically learned to cope with his level of disability but he finds functional difficulties in lifting heavy weights, gripping particular tools and eating utensils, turning pages and holding cards. He will always have a difficulty with a myriad of functions in which one routinely uses the non-dominant hand.

35. In the end result the plaintiff is assessed as having lost 37.5% of the functional use of his hand. This has had an impact on his work and his recreational activities and it has caused him to become more self conscious and uncomfortable in his contact with other people, particularly with females.

36. In assessing the allowance for general damages I have been referred to two decisions – Berman v MG Management Pty Ltd^[22] and Townsend v BBC Hardware Ltd^[23].  In the first of these the plaintiff was a 36 year old man who had an injury to his dominant hand which required more extensive treatment than what was required in respect of the plaintiff’s injury here.  The general damages component allowed was $55,000.  In Townsend the plaintiff was 45 years of age who suffered an amputation not only through his thumb but through three other fingers on his left (non-dominant) hand.  Thus the injury was far more severe and far more disabling than experienced by the plaintiff in this case.  Townsend was awarded $80,000 general damages.  Making due allowance for the plaintiff’s younger age and the change in the value of money since the assessment in Berman’s case, the appropriate allowance I would make for the plaintiff here is $50,000, $25,000 of which is attributable to the past suffering.

Economic loss

37. Before coming to Australia the plaintiff worked as a subcontracting roofing/tiler to builders in Cornwall.  After his 12 month holiday in Australia he intended to return to that industry and may well have stayed in it for the rest of his working life.  In Australia he worked in the building industry for two weeks and then in a restaurant for four weeks before journeying to Cairns where the incident occurred.

38. On his return to England the plaintiff returned to the building industry as a labourer and then in his former occupation as a roofer/tiler.  His disability in his left hand resulted in him experiencing difficulties whilst undertaking his tasks, reduced efficiency and limitation in the range of tasks which he could undertake.  This has impacted on his earnings because of the reduced speed with which he could carry out the subcontract work.  His claim for past economic loss relates to a reduction in his earnings for the period September 1997 to September 2005 when he commenced fulltime studies in Marine Environmental Management.  This change in direction is not related to his suffering the injury, it was something that he always wanted to do.  However, there is no certainty that he will achieve fulltime employment after he gains his qualifications.  The effect the injuries have had upon his economic capacity is that, should he not gain work in the environmental field, his capacity to return to the building industry is somewhat reduced.  He seeks a global assessment to compensate for this loss of future earning capacity. 

39. The plaintiff claims for the past period that he could have earned, had he been fully able, the sum of ₤133,120 as compared with his actual earnings of ₤77,623. He calculates that loss as the differential between those two figures, namely ₤55,497 ($135,988). It is not clear whether market forces or incapacity for work for other reasons may have played a part in the differential to that extent. It seems to me in the circumstances that the claim should be subject to some discounting to take account of those prospects. In the end result I will discount this claim by one-third and assess the loss of past earning capacity at $90,700 and allow interest on that sum at 5% per annum for 9.5 years. This computes to an interest allowance of $43,080.

40. For the future I must take account of the fact that the plaintiff is currently 31 years of age. On successful completion of his studies he will have a broader range of employment. With current emphasis on matters ecological the prospects of employment in that field are likely to increase rather than decrease. Notwithstanding that, it is undoubted that the plaintiff has lost some attractiveness in competing for employment in the building industry and he is entitled to some compensation for that. I will allow as a global assessment the sum of $20,000 to take account of his loss of future earning capacity by reason of this injury.

41. The other items for which allowances are sought have been agreed as follows:-

Past gratuitous care$     500.00

Special Damages$  7,240.74

42. In summary then I assess the plaintiff’s damages as follows:-

General Damages$  50,000.00

Interest on $25,000 thereon at 2% x 8 years$    4,900.00

Past economic loss$  90,700.00

Interest thereon5% 9.5 years$  43,080.00

Loss of future earning capacity$  20,000.00

Past care $       500.00

Special Damages$    7,240.74

$216,420.74

Orders

43. 1.Judgment for the plaintiff against each of the defendants in the sum of $216,420.74.

2. As between the defendants, each defendant is equally responsible for the plaintiff’s damages.

3. I adjourn the consideration of the question of costs, allowing the parties seven days within which to make written submissions.