Heesom v ASP Ship Management Pty Ltd

Modified Common Law Damages

1. Section 151E(1) of the Act provides that the Division applies to an award of damages in respect of an injury to a worker caused by the negligence or other tort of the worker's employer. Section 151F of the Act provides that a court may not award damages to a person contrary to the Division.
2. Section 151G of the Act provides that damages may only be awarded for past and future loss of earnings. Section 151H of the Act provides that no damages may be awarded unless the injury results in a degree of permanent impairment of the worker that is at least 15%. There was no dispute in the present case that the plaintiff satisfied the 15% threshold in s 151H.
3. Sections 151I, 151IA and 151G contain provisions concerning the calculation of modified common law damages. The parties agreed on the figure for damages available to the plaintiff if he succeeded, subject to a submission by the defendant concerning an appropriate deduction for reasons discussed below.
4. Section 151L deals with mitigation of damages. While this was pleaded in the Defence filed on 27 April 2020, that part of the pleading was abandoned in final submissions.

Issues for Determination

1. The issues for determination are: 1. Negligence. 2. Contributory negligence. 3. Quantum of damages.

Evidence of the Plaintiff

1. The plaintiff is a tall man who walked with apparent difficulty to the witness box. He leant on a walking stick. He had an orthosis on the right lower leg. He appeared to have difficulty getting into and out of the chair in the witness box. From time to time in the witness box and in court, he stood or sat as he said he was in pain. The plaintiff said that he took strong analgesic medication, including Oxycontin, which affected his cognition and memory. He looked pallid and unwell.
2. The plaintiff was born in 1976 and attended high school until the end of Year 12. He then did an apprenticeship as a fitter and machinist in the automotive industry. After working as an auto mechanic and a service technician he obtained employment as a marine engine driver in 2004. His job was to maintain the engines on board a ship and deal also with the auxiliaries, pumps and machinery, to make sure that the ship always worked and didn't break down. Essentially he did the job of a marine engineer.
3. From 2005 the plaintiff was employed on the "Amorena", which was a fuel bunkering ship in Sydney Harbour. He started work on that ship as a deck hand and he progressed to being an engineer. The Amorena collected fuel from the Shell terminal at Gore Cove in Greenwich. Fuel was transferred from the Shell terminal to the Amorena by a metal arm which connected from the shore to the ship. It took the fuel to cruise liners in Darling Harbour, elsewhere in Sydney Harbour or out at sea. The fuel was then transferred from the Amorena to the cruise liner. The Amorena tied up alongside the larger vessel and flexible hoses carried fuel from the Amorena to the recipient cruise liner. Those fuel hoses were transported on the Amorena. Initially they were stored on the deck but after a time they were moved to brackets so that they were up and out of the way.
4. Mr Heesom worked on the Amorena until 2011. He then became the second engineer on the Whitnavigator. He was employed on that ship by the defendant ASP Ship Management Pty Ltd. The Whitnavigator did the same work as the Amorena. It carried fuel from the Shell terminal at Gore Cove to larger ships, principally cruise liners. The transfer of the fuel onto and from the Whitnavigator was done in the same fashion as the operation on the Amorena. This included the use of flexible hoses which were stored on board.
5. Mr Heesom's time was largely spent in the engine room located below the wheelhouse, which was a three storey structure at the stern of the vessel. The top level of the wheelhouse was the bridge. The second level of the wheelhouse was known as the control room. The engine room was underneath the wheelhouse, below the deck.
6. From the control room level, an elevated walkway or gangway ran from the front of the wheelhouse along the centre line of the ship to the fore deck. The fore deck was a raised deck in the bow of the ship, one level above the main deck.
7. Two stairways ran from the control room level down to the main deck. One stairway was on the port side of the vessel and the other stairway was on the starboard side of the vessel. The layout of the ship, which was almost 70 metres long, can be seen in the plans of the ship (known as the "General Arrangement") which became Exhibit DX 1.
8. Slightly more than half way along the vessel, two stairways ran down from the elevated walkway to the main deck. I will refer to these stairways as the midships stairways. One stairway ran at 45 degrees from the elevated walkway down to the port side of the main deck and the other ran at 45 degrees from the elevated walkway down to the starboard side of the main deck.
9. The plaintiff said that the flexible hoses used to transfer fuel from the Whitnavigator to the cruise liners were stored along the elevated walkway. Photographs of the Whitnavigator (Exhibit DX 2, pp 705 and 708) show the hoses lying lengthways along the elevated walkway.
10. The plaintiff said that the hoses came in multiple sizes with internal diameters of 2, 3, 4, 6 and 8 inches. The hoses were virtually double in size when measured by the external diameter, which included material wrapped around the hoses. The plaintiff said that a hose with a six inch internal diameter was 10-12 inches in external diameter.
11. The plaintiff said that his duties were largely in the engine room, but when the Whitnavigator was alongside the Shell terminal in Gore Cove, one of his jobs was to leave the engine room and proceed to the bunker station. The bunker station was midships where a horizontal white pipe was elevated above the main deck of the vessel. The plaintiff's job, when the Whitnavigator was about to take on fuel from the Shell terminal, was to connect the mechanical arm which ran from the land to the ship to the white pipe and then open a valve which allowed fuel to flow from the terminal into the tanks of the Whitnavigator.
12. The plaintiff said that to do that task he was called by radio when the fuel was ready to load, he left the engine room and he went to the bridge. He then walked along the elevated walkway towards the middle of the ship. His usual path was to walk along the elevated walkway towards the bow, and when he got to the midships stairways, he walked down the port midships stairway. This brought him adjacent to the bunker station and the task at hand.
13. The plaintiff said that when got the call to go to the bunker station, there was no urgency but it was a priority matter. The Shell terminal had to be shut down so that the vessel could be loaded. It took eight hours to load. The tugs came at 4.00pm, which meant that the loading had to commence at the appointed time of around 7.00am and be completed before 4.00pm.
14. The plaintiff said that the flexible hoses were stored along the elevated walkway and partially blocked the entrance to the midships port stairway. They were also stored on the starboard side of the elevated walkway, and thus they partially blocked the starboard stairway.
15. The plaintiff said that there was a toolbox meeting at least once a month and several times the issue of moving the hoses was brought up at that toolbox meeting. The plaintiff thought that the location of the hoses was dangerous because they obstructed both midships stairways.
16. Mr Heesom gave evidence that he arrived at work on 18 September 2013 at about 5.50am. He changed into his uniform and started his work downstairs in the engine room. He received a call on the radio from Shell to say that the vessel was about to load. He received that call at about 7.00am or 7.10am. He went up to the bridge, walked through the door and walked along the gangway with the intention of going down the port midships stairs. The hoses were stored on the walkway that morning as usual. The plaintiff said that the pile of hoses blocking the entrance to the port stairway was about two feet high.
17. Mr Heesom said that he put his left hand on the left-hand rail on the port stairs, his right hand on the right-hand rail and then put his foot over or on top of the hoses. He did not know whether he got to the first tread of the steps. He fell down and onto the deck. The first tread of the stairway was below the level of the walkway. He thought that it was about 50cm below the walkway. The plaintiff reiterated that he did not know whether he stood on top of the hoses or just stepped over them.
18. The plaintiff said that an ambulance came and took him to Royal North Shore Hospital. He was given morphine, but he was allergic to it so his eyes became swollen. He was strapped to a board. He was given MRIs at the hospital and kept overnight. He was discharged the next day in great pain.
19. The plaintiff lived on the Central Coast, but could not return there so he went to stay at his mother's home in Sydney. He went to a general practitioner, Dr Ramrakha, who he had not seen before. Dr Ramrakha called the ambulance and the plaintiff was taken to Royal Prince Alfred Hospital. He remained there for a day.
20. The balance of the plaintiff's evidence-in-chief concerned his medical progress. I will not summarise that evidence, as it was largely uncontroversial, in the light of agreement reached on certain matters. I will deal below with those matters in the medical evidence which did become important.
21. The plaintiff was cross-examined on his liability evidence. He acknowledged that he had been on board the Whitnavigator for two years and that the cargo hoses had been stored on the elevated walkway for that time. He later became unsure about this. The plaintiff did not give any evidence that they were stored anywhere else. The plaintiff acknowledged that from the time he started on the Whitnavigator, it was necessary for him to use the port midships stairway, where he fell.
22. The plaintiff said that he was not the person who raised the issues of the hoses being dangerous. He thought that the issue had been raised by deckhands, who were working on the deck all day. The plaintiff said that he was aware that the hoses were on the walkway across the entrance to the stairway.
23. The plaintiff was taken to material in a medico-legal report of Dr Buckley, a rehabilitation specialist. It was suggested that the plaintiff had told Dr Buckley that he could not recall the incident and that his last memory prior to the incident was of driving to work. The plaintiff denied this. The report of Dr Buckley was tendered by the plaintiff (Exhibit PX 1, pp 41-42).
24. I pause in dealing with the plaintiff's evidence to record what Dr Buckley wrote under the heading "History of Accident". It is apparent from the report of Dr Buckley that the doctor was not just recording assumptions concerning the history of the accident, or taking that history from someone else's notes. It is plain that Dr Buckley asked the plaintiff, at the consultation on 11 March 2019, what happened in the accident. Dr Buckley wrote: "HISTORY OF ACCIDENT Mr Heesom told me that he was working on his ship, preparing to load up oil, when he descended a staircase, finding a hose crossing the top of the staircase, such that as he stepped over the hose he missed the top step and fell approximately four metres down into the ship. He does not recall the incident. His last memory prior to the incident was driving to work. He told me that he was noticed by witnesses to fall down the staircase. He doesn't remember the morning on the ship, although it would have been quite routine. He believes that he had been on the ship for about half an hour before the incident occurred. His next memory was lying on the ground at the base of the ladder, with foam in his mouth, and people around him, who he identified as employees of Shell."
25. The report of Dr Buckley was tendered by counsel for the plaintiff. Dr Buckley was not called as a witness, and thus this evidence stands unchallenged. The plaintiff was clearly knocked out in the accident, which was a sudden and significant fall from height onto the steel deck. I do not accept any of the evidence given by the plaintiff concerning the accident itself.
26. I record that I do not think that the plaintiff was deliberately lying in giving his evidence. The impression I formed of the plaintiff was that he was a guileless man who was doing the best he could to assist the court, although his cognition and his memory were affected by the strong analgesia he had been taking. I find that the evidence given by the plaintiff concerning the accident itself was a reconstruction based upon what he has discerned from other material. I find that the plaintiff himself has no memory of the accident, and indeed suffered from retrograde amnesia as a result of being knocked out in the accident. I find that the last memory the plaintiff has on the morning of the accident is of driving to work and the next memory is of coming to at the foot of the staircase after his fall.
27. There was other evidence as to how the accident occurred, including evidence from an eyewitness.
28. I return to the cross-examination of the plaintiff. The suggestion was made to Mr Heesom that the easiest and safest way to get down to the bunker station was to go down the rear port staircase from the control room level to the main deck. The plaintiff accepted that there were two ways that he could go to get to the bunker station. The plaintiff said that at the bottom of the port stairs from the control room there were "Shell guys and two chemists". He said that he could therefore not go down the port stairs from the control room. The plaintiff said that those men all had suits on and that he was wearing his oily work clothes. He said that he would not go down those stairs and ask those Shell employees to move as "I didn't feel like I was that important". The plaintiff said that there were other ways of getting to the bunker station, so he took the usual route along the gangway to go down the port midships stairs.
29. I reject the evidence given by the plaintiff about the Shell employees effectively blocking his path if he had taken the port stairs from the control room. I reject that evidence because of my previous finding that the plaintiff had no memory of the events on that morning between driving to work and coming to after the fall.
30. The suggestion was made to the plaintiff in cross-examination that he could have continued to walk along the walkway to the fore deck of the ship and then go down the stairs from the fore deck onto the main deck. This would have involved walking the full length of the ship and then half way back along the deck of the ship to the bunker station. The plaintiff said that he would not do that. He said that he had a job to do and he wanted to get to the bunker station the fastest way he could.
31. The plaintiff was cross-examined about his memory of the hoses being on the walkway on that day, and just which hoses were in which position. I have already made a finding that the plaintiff had no memory of events between driving to work and coming to after the fall, and thus I do not accept any of his evidence about the position of the hoses on the day of the accident.
32. While I have made a finding concerning the rejection of the plaintiff's evidence about the accident itself, I have no reason to doubt the reliability of the evidence given by the plaintiff about his career up to the point of the accident, the way in which fuel was transferred from the shore at the Shell terminal onto the Whitnavigator, the general layout of the ship, and the long term storage of the hoses along the walkway.

Other Evidence for the Plaintiff

1. Mr Heesom was the only witness called to give oral evidence in the plaintiff's case. The balance of the evidence was documentary.
2. Medical reports from treating doctors and medico-legal doctors were tendered (PX 1, pp 29-128). None of those doctors were required for cross-examination.
3. The plaintiff also tendered the clinical notes of three treating doctors being Dr Steel, Dr Kinzel and Dr Napper. These notes were part of PX 1, being pp 129-354. I indicated to counsel for the plaintiff when the notes were tendered, that I would not read any of them unless I was taken to them in oral submissions. Because the medical issues in the case were largely uncontroversial, I was not referred by counsel to any page in those notes. I have not read them.
4. The plaintiff also tendered taxation returns for the years between 2011 and 2019 inclusive (PX 2, pp 355-405). The plaintiff's resume with attachments was also tendered (PX 2, pp 406-429).

Plaintiff's Expert Evidence

1. The plaintiff tendered an expert report of Captain Glenn Mathias dated 23 July 2019 (PX 2, pp 468-509). Objection was taken to just about every paragraph in this report, for good reason. After consideration, counsel for the plaintiff very sensibly tendered only selected paragraphs from the report. These paragraphs were the subject of further objections and my rulings.
2. I obtained no assistance whatsoever from the expert report of Captain Mathias. Question 1 asked of the expert was: "What would industry practice have been, in regard to the requirements for safe walkways, safe access to ladders and the proper stowage of fuel oil hoses on a vessel such as the Whitnavigator." If that question had been answered, it would have greatly assisted the court. Instead of answering the question from experience as a ship's captain, the expert embarked upon an exposition of the legal duty of care, based upon a flawed recitation of statutes and maritime cases, which would have been failed if it were an undergraduate essay.
3. The expert was also asked to answer the question: "Whether ASP Ship Management Pty Ltd, as the managers and/or operators of the Whitnavigator, and the master of the vessel, complied with industry practice." Again, the court would have been assisted if that question was answered. The expert did not answer the question.
4. The highest the opinion rose was to say (PX 2, p 481) that the fuel hoses should have been stowed "in a designated location". One would have thought that an expert who had the benefit of the photographs and the plans of the ship, and some familiarity with vessels of this type, could have nominated a place aboard the Whitnavigator where the hoses could have been stored out of the way of the staircases. No such location was suggested.

Defendant's Event Investigation Report

1. The plaintiff tendered the defendant's Event Investigation Report (PX 2, pp 517-56). The investigation was carried out on the day of the accident and was signed by Captain Raj Lochan, the master of the Whitnavigator. It recorded that Mr Heesom could not provide information as he had been transported by ambulance to hospital.
2. In a box headed "What knowledge did the individual have of the activity being undertaken?", the following was recorded: "All crew members are aware of the storage of the product hoses as these have been stored in this position since taking over management of the vessel. There have been no other accidents recorded in this area."
3. The Report contained a joint witness statement by Mr Paul Nagy, the Chief Officer, and Mr George Uren, a crew member. They said: "This is to place on record that at 0715 hrs today, I heard a noise on deck and observed Terry Heesom slipping from the 2nd top step of port mid-ship staircase at centre catwalk to main deck. While his hands were on the railing, Terry slipped until midway of staircase and stopped briefly before slipping again to the main deck. He was administered the required first aid before ambulance was called in."
4. In a box headed "Immediate Action Undertaken to Eliminate the possibility of the event from occurring again", the following is recorded: "The mid-ship staircase has been barricaded and is not to be used. All crew are to use other stairways. Review of where the hoses can go instead of the catwalk, however it has been deemed that the catwalk is the safest place for these hoses."
5. The Report included a photograph of the incident scene. While the quality of the photograph in the exhibit is very poor, it appears to be taken looking from the elevated walkway down the port midships stairway. Hoses can be seen in the foreground, and the legend has been placed over those hoses "Stepped over product hoses". There is a legend at the top of the photograph "Barricade in place".

Other Documents

1. The plaintiff also tendered a claim form dated 23 September 2013 (PX 2, pp 527-530) and a file from NSW WorkCover (PX 2, pp 531-550). I obtained no assistance from these documents, as any descriptions of the accident are necessarily hearsay or reconstructions.

Plaintiff's Schedule of Damages

1. The plaintiff's Schedule of Damages was marked as MFI 2 (Volume 1 of Court Book, pp 27-28). The Schedule set out three heads of damage, two of which were not in issue.
2. For past economic loss, the calculation was $765,338. For Fox v Wood damages, the calculation was $247,126.
3. The schedule set out the following calculation for future economic loss: $2,242.40 per week x 723.348 x 85% = $1,378,749.28. This is the plaintiff's theoretical full future loss of earning capacity, with a discount of 15% for vicissitudes.
4. This third figure was not in contest as a matter of mathematics, although counsel for the defendant made submissions that any award for future economic loss should be discounted for reasons which are discussed below.

Evidence of Mr Paul Nagy

1. The defendant called Mr Paul Nagy, who was the Chief Officer of the Whitnavigator on the day of the accident. Mr Nagy had worked with Mr Heesom on board the Amorena, and both men later transferred to work on the Whitnavigator.
2. Mr Nagy said that the Whitnavigator was just under 70 metres long. The hoses were stored on the elevated walkway and ranged in size from 100mm to 300mm internal diameter. The larger hoses were 30 metres in length. The shorter ones were about 18 metres long. These shorter hoses were stored on the elevated walkway, mostly on the port side. None of the fuel hoses on board the Whitnavigator were stored in any type of cradle or rack. Mr Nagy was on the deck of the Whitnavigator on the day the accident happened.
3. Mr Nagy was not asked anything in chief about his observations of the accident. His witness statement as to that matter was already in evidence.
4. In cross-examination Mr Nagy said that the deckhands and other crew usually moved along the elevated walkway and went down the port midships stairway. No direction had ever been given telling the crew to be careful when stepping over the hoses. No direction had ever been given to the crew not to step over the hoses or not to use that stairway. Mr Nagy himself recognised that having the hoses across the stairway was a hazard and that the crew had to be careful about them.
5. In re-examination Mr Nagy said that he was not aware of anyone being injured because they tripped on the hoses. He said that once he had stepped over the hoses and he tripped. He did not injure himself and did not fall.

Evidence of Mr Timothy Asome

1. The defendant called Mr Timothy Asome who is the General Manager for the defendant in Australia. He has held that position since 2012 and has been with the defendant since 2011.
2. Mr Asome was aware of the investigation conducted by the defendant into the incident. He said that no changes were made to the way in which the cargo hoses were stored on the Whitnavigator as a result of that investigation. There was no cross-examination of Mr Asome.

Documentary Case for the Defendant

1. The defendant tendered the letter of termination sent by the defendant to the plaintiff on 13 October 2017 (DX 2, p 690).
2. The defendant also tendered several photographs of the Whitnavigator (DX 2, pp 703-712).

Findings of Fact

1. I have already indicated that I cannot accept the evidence of the plaintiff regarding the occurrence of the incident, as he suffered from retrograde amnesia as a result of injuries sustained in the accident. However, I do have the evidence of Mr Nagy and Mr Uren contained in the joint statement.
2. I make the following findings of fact: 1. On 18 September 2013 the plaintiff was serving as the second engineer aboard the Whitnavigator in Sydney Harbour. 2. The vessel was adjacent to the wharf at the Shell terminal in Gore Cove and was about to receive a load of fuel. 3. Mr Heesom was working in the engine room when he received a call to go to the bunker station. 4. Part of his duties included attending the bunker station after he received such a call, to connect the mobile arm from the shore to the fixed pipe on the Whitnavigator to receive the fuel and then open a valve. 5. Running down the centre of the Whitnavigator from the wheelhouse to the fore deck was an elevated walkway. 6. Two staircases led from the elevated walkway to the main deck midships - a port stairway and a starboard stairway. 7. Two stairways led from the control room level of the wheelhouse to the main deck - a port stairway and a starboard stairway. 8. After receiving a radio call to go to the bunker station, Mr Heesom left the engine room and walked along the elevated walkway with the intention of descending the midships port stairway. 9. Flexible fuel hoses were stored on the elevated walkway. 10. Those fuel hoses had been stored there for the two years that Mr Heesom served on the Whitnavigator. 11. The hoses were stored on the port side of the walkway and lay across the point where the walkway joined the midships port stairway. 12. To travel from the elevated walkway onto the port midships stairway Mr Heesom necessarily had to step over the stored fuel hoses. 13. Mr Heesom placed his left hand on the left rail of the stairway and his right hand on the right rail of the stairway. 14. Thus Mr Heesom had three points of contact. 15. Mr Heesom moved from the elevated walkway onto the port stairway but lost his footing. 16. Mr Heesom then slipped or fell all the way down the stairway onto the main deck, knocking himself out and suffering significant physical injuries. 17. The most probable inference as to the cause of his fall was that he tripped or slipped or caught his feet on the hoses as he traversed them in an attempt to step down onto the port midships stairway. 18. Mr Nagy himself had made that same journey and had tripped once on the hoses. 19. Mr Heesom was observed by Mr Nagy and Mr Uren to have hold of both rails of the stairway and thus to have three points of contact just before he fell. 20. Mr Heesom would not have fallen but for the fact that he had to step over the hoses and in doing so tripped or slipped on the hoses. 21. An investigation was undertaken by the defendant on the day of the accident. 22. As a result of the investigation, a barricade was placed across the port midships stairway. 23. As a result of the investigation, the crew were instructed not to use the port midships stairway. 24. These steps were taken immediately. 25. In the case of the barricade, there is no evidence that this was a significant expense. 26. In the case of the instruction not to use the port midships stairway, there was no cost to the defendant in taking that action.
3. I am not satisfied that there was some other place in which the hoses could have been stored more safely. There was no evidence called in the plaintiff's case to suggest that there was a better alternative location. The investigation conducted by the defendant immediately after the accident looked at whether the hoses should be moved and concluded that the safest place for the hoses to be stored was on the elevated walkway. The immediate action taken by the defendant to barricade the stairway and direct that it not be used meant that the risk of anyone slipping or tripping on the hoses and falling down the stairway was eliminated.
4. I make the following findings of fact which are relevant to the defendant's partial defence of contributory negligence: 1. There were alternative means of getting from the control room down to the bunker station. 2. The plaintiff could have walked down the port stairway from the control room to the main deck and then walked straight to the bunker station. 3. The plaintiff could have walked along the elevated walkway to the fore deck of the ship, down the stairways from the fore deck and back to the bunker station. 4. The plaintiff could have walked down the starboard stairway from the control room to the main deck and then moved to the bunker station. 5. All of the crew was in the habit of getting to the bunker station by walking along the elevated walkway and then walking down the port midships stairway. 6. No direction had ever been given by the defendant to the crew not to use the port midships stairway to get to the bunker station from the elevated walkway. 7. The presence of the hoses partially blocking the entrance to the port midships stairway was obvious. 8. The presence of the hoses in that location was perceived by both Mr Heesom and Mr Nagy as a hazard.

Consideration - Negligence

1. The plaintiff was an employee and the defendant was his employer. Paragraph 6 of the Statement of Claim pleaded that the defendant owed the plaintiff a duty of care. Paragraph 2 of the Defence pleaded that the defendant admitted it owed the plaintiff the type of duty ordinarily owed by an employer to an employee.
2. Counsel for the defendant referred the court to the decision of the Court of Appeal in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250. The leading judgment was that of Justice Hoeben, with whom Justices Campbell and Barrett agreed. The decision specifically dealt with the issue of a breach of duty of care owed by an employer to an employee. In the case the employee was a "mountain awareness officer" (also known as a ski patroller). In the course of his work he was involved in a skiing accident when struck by a snowboarder.
3. One issue on the appeal was - what should have been the response by the employer to a foreseeable risk of injury? In dealing with the appellant's submissions, Justice Hoeben said at [178]:: "178 There is another more fundamental conceptual difficulty with the appellant's submission. It moves immediately from the premise of the occurrence of an accident to the concept of how the accident could have been avoided. There is no analysis of the nature of the foreseeable risk of injury and whether a response was required and if so, what kind, of response was required to that foreseeable risk. 179 The error in such an approach has been pointed out in a number of decisions. As early as Vozza, Windeyer J said at 318: 'It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that by some means the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils.' 180 In Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at [25] McHugh J (with whom Gleeson CJ, Gummow and Callinan JJ agreed) said: '25 His Honour and counsel seem to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it.' 181 McHugh J made a similar observation in Tame v NSW [2002] HCA 35; 211 CLR 317 where his Honour said: '97 But the test of reasonable foreseeability was not always so undemanding. Nor was the content of reasonable care anywhere near as high as it has become in recent years. Until comparatively recently, courts tended to ask whether the defendant had created an unreasonable risk of harm to others that he or she knew or ought to have recognised. A risk was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action. ... 98 Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable. Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law. 99 Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was 'some valid reason' for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt in a passage that is too often overlooked: 'The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.' ' 182 The failure by the appellant to carry out those fundamental steps as originally stated by Windeyer J and as elaborated by McHugh J led to submissions being made as to the adequacy or otherwise of an alternative system without the essential anterior analysis of whether a response was necessary. 183 The obligation of an employer to an employee has been stated on many occasions. Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301 made it clear that a court should not approach the issue of negligence on the part of an employer on the basis of some principle that there was a heavy obligation on the part of the employer to protect the worker. It reiterated that the employer's duty was to take reasonable care for the safety of its employee and that what is reasonable is a question of fact to be judged according to the standards of the time. 184 There is nothing in the statement of principle in Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839 at [12] upon which the appellant placed such reliance, which is contrary to the statements of principle in Vozza and Braistina. There the court said: '12 An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.' 185 That was a statement of principle applicable to an industrial accident involving repetitive work to be performed in a diminishing space. While the statement of principle is unexceptionable, it was expressed in the way in which it was, to illustrate the obligation of the employer on the particular facts of that case."
4. At [168] Justice Hoeben said that the employer had dual obligations. It had an obligation to its employees to exercise reasonable care for their safety. It also had an obligation to the users of the ski fields to exercise reasonable care for their safety. The mountain awareness officer had been employed specifically to reduce the likelihood of collisions. Such employees were highly skilled and experienced skiers. They were given a broad discretion as to how and where they were to perform their task - at [187].
5. Having referred to the applicable law, in the passage from the judgment extracted above, Justice Hoeben said at [188] that the first question was whether it was reasonably foreseeable that if the employee was positioned at the Front Valley, there might be a collision between him and another user of the slope. His Honour said that the answer was "clearly yes".
6. Justice Hoeben said at [189] that the next question was that posed in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48. It was the consideration of the magnitude of the risk and the degree of probability of its occurrence. His Honour recited the employee's experience, the nature of his job, the fact that there had been no previous accidents and the high visibility of the employee on a comparatively gentle slope. His Honour came to the conclusion that "the degree of probability of a collision was extremely low". He also came to the conclusion that "the magnitude of the risk, given the nature of the slope, was also low".
7. Justice Hoeben said that the matter had to be approached prospectively and not in hindsight - at [191]. He asked: "What response to that foreseeable risk of injury was required of a reasonable employer?" His Honour came to the view, as had the trial judge, that "no response was required". His Honour said that "By using the appellant with his special skills in the way in which it did, the employer was not unreasonably exposing him to a risk of harm". Thus breach of duty of care was not established.
8. I accept the submission of counsel for the defendant that I should take the same approach and apply the same methodology in the present case.
9. The first question is therefore whether it was reasonably foreseeable that if the plaintiff stepped across the stored fuel hoses, from the elevated walkway down onto the first tread of the port midships stairway, he might fall. I find that it was clearly foreseeable that this might happen. I take into account that there had been no injuries sustained from any crew member stepping over the hoses and onto the particular stairway in the previous two years. I also take into account that Mr Nagy, who was an experienced seaman, and who was the immediate superior of the plaintiff, had on one occasion stepped across those hoses and had tripped, although he did not fall. I accept the evidence of the plaintiff that while it was not urgent for him to get to the bunker station once he received the call from Shell, it was a matter of priority that he get there to start the loading so that it would be finished in time for the tugs to assist the Whitnavigator in departing from the Shell terminal. I take into account that not only was the plaintiff stepping across the hoses which were blocking the entrance to the stairway, but that he had to step down from the level of the elevated walkway onto the first tread of the stairway. This posed an additional risk of a fall.
10. Again adopting the methodology of Justice Hoeben, the next question is consideration of the magnitude of the risk and the degree of the probability of its occurrence. The magnitude of the risk was significant. Unlike the skier in Wilkinson, where the accident occurred on a gentle slope, this involved a crew member stepping onto a 45 degree metal staircase, where a fall would not only involve the crew member hitting metal parts of the stairway on the way down, but landing on the steel deck. Such a fall would inevitably result in an injury, and could have resulted in death or serious injury. The magnitude of the risk was high.
11. The degree of probability of the occurrence was not high. The only evidence in the case that there had been a previous trip was that given by Mr Nagy. The hoses had been blocking the entrance to the stairway for two years and the crew was constantly traversing the stairway from the elevated walkway. The duties of Mr Heesom were largely in the engine room, so he did not step over the hoses as much as other crew members must have when they were moving around the ship. I take into account that the plaintiff was an experienced seaman, that there had been no previous accidents, and that the hazard posed by the hoses was obvious. The degree of probability of a crew member tripping on the hoses was low, but did exist.
12. In summary, the degree of probability of a trip on the hoses leading to a fall down the stairs was low, but the magnitude of the risk was quite high.
13. Justice Hoeben made a finding on liability without the need to consider an additional factor. As the High Court said in Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it.
14. The evidence in the present case shows that the risk was eliminated straight away after the incident occurred by barricading the port midships stairway and instructing the crew not to use that stairway. There was little, if any, expense and inconvenience of eliminating the risk.
15. In a passage extracted above, Justice McHugh drew attention to the words of Justice Mason in Shirt which said that the perception of a reasonable response calls for a consideration of the magnitude of the risk and the degree of 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. Justice Mason referred to the need for these factors to be "balanced out so that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position".
16. The defendant did have conflicting responsibilities. It had a business to run and a contract with Shell to fulfil. There was no evidence that the immediate action taken as a result of the investigation done on the day of the incident interfered with the defendant carrying out its commercial obligations.
17. In summary: 1. The risk of a crew member tripping on the hoses which blocked the port midships stairway was foreseeable. 2. The magnitude of the risk created was high. 3. The degree of the probability of its occurrence was low. 4. There was no or no significant expense, difficulty or inconvenience in taking alleviating action. 5. There were no conflicting responsibilities which would have interfered with taking necessary alleviating action.
18. Balancing those matters out, as required by the authorities, I make the following findings: 1. A reasonable man placed in the defendant's position would have barricaded the port midships stairway whenever the hoses were blocking that stairway. 2. A reasonable man placed in the defendant's position would have directed the crew not to use the port midships stairway when hoses were blocking the entrance to it. 3. The reasonable man's response would not have required the defendant to find another and safer place on the Whitnavigator for the storage of the hoses.
19. In relation to this last finding, there was no evidence that there was any safer place for the storage of the hoses and no evidence that standard seafaring practice would require the hoses to be stored anywhere else. The plaintiff has failed to make out this particular of negligence.
20. In final submissions counsel for the defendant complained that the notion of barricading the stairway and the notion of issuing an instruction not to use the stairway, being two of the three ways in which counsel for the plaintiff put the case in final submissions, were not available on the pleadings. I reject that submission. The particulars of negligence are pleaded in such a broad fashion, and were not confined by the defendant seeking further particulars, that both measures are available as a submission to be made for the plaintiff. Preventing the use of the staircase, by a barricade, or an instruction, or both, falls within particulars (d), (h), (i) and (j) pleaded in par 13 of the Statement of Claim.
21. I find that the defendant was in breach of the duty of care which it owed to the plaintiff.
22. There must be a causal link between the defendant's breach of duty of care and the negligence or harm suffered by the plaintiff. The submission made by counsel for the defendant was that causation was not established because the court should not accept the plaintiff's version of how the accident happened. He submitted that the plaintiff simply lost his footing and fell. I have already made findings of fact as to how the accident occurred. It involved a slip or trip upon the hoses which blocked the entrance to the port midships staircase. I have found that the defendant was in breach of duty of care in not barricading that stairway or forbidding the crew to use that stairway when the hoses were blocking it.
23. I apply the principles of common sense based on general considerations such as drawing inferences from established facts and the assessment of causative factors in the light of material contribution, necessitating a value judgment involving ordinary notions of language and common sense - March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506.
24. I reject the submission made by counsel for the defendant that in effect the plaintiff simply went to walk down the stairway and fell. That is not a probable inference which can be drawn from the established facts. The plaintiff was seen by Mr Nagy and Mr Uren to have hold of both hand rails on the stairway. The hoses blocked the entry to the stairway and were said by the Chief Officer of the Whitnavigator to constitute a hazard. It is highly unlikely that Mr Heesom was just walking down the stairs and slipped for no reason. The facts I have found lead to the conclusion that the probable cause of the fall and the injuries was a slip or trip on the hoses blocking the entrance to the port midships stairway, which in turn was caused by the breach of duty of care on the part of the defendant in failing to barricade that stairway or forbid its use. I find that causation is established.

Consideration - Contributory Negligence

1. The particulars of contributory negligence pleaded in par 10 of the Defence are that the plaintiff: 1. Failed to take care or any proper care for his safety. 2. Was an experienced worker who failed to take care for his own safety. 3. Placed himself in a position of danger.
2. In oral submissions counsel for the defendant put the case on contributory negligence in two ways. The first was that the plaintiff could have safely stepped over the hoses and he was therefore guilty of contributory negligence for not taking care when he stepped over the hoses. I have already found that the plaintiff held both handrails as he attempted to get onto the stairway, relying on the evidence of Mr Nagy and Mr Uren. However, the evidence does show that these hoses had been blocking the stairway for two years, they were a clear and obvious hazard, and they were recognised as such by the crew. Any prudent employee would have taken extra care in stepping over the hoses. I have already found that they should not have been required to step over the hoses and should have been prohibited from stepping over them by a barricade or an instruction. Be that as it may, the hoses had been blocking the stairway for two years prior to the accident and no-one else had been injured. Mr Nagy had suffered one trip on the hoses but fortunately had not fallen and been injured.
3. As counsel for the defendant put it, there are hazards everywhere on a ship and people do have to take extra care in moving around. This was a particularly tricky manoeuvre, as the plaintiff had to step over the hoses, but then step down below the level of the walkway onto the first tread of the stairway.
4. It is understandable that a trip occurred, as it had on at least one previous occasion. However, there must have been hundreds of traverses of the hoses by other crew members, without incident. I find that the plaintiff was guilty of some contributory negligence in failing to take additional care in stepping over the hazard presented by the hoses.
5. The second way in which counsel for the defendant put the case on contributory negligence was that the plaintiff could have gone down the port stairs from the control room to the main deck. I have rejected the evidence of the plaintiff that there were Shell personnel blocking the foot of these stairs. That is something that he could not have remembered because he suffered from retrograde amnesia as a result of his fall. As demonstrated in the plan of the routes which the plaintiff could have taken in theory (PX 2, p 712), there were a number of different ways that the plaintiff could have moved from the control room to the bunker station. None of them were as short or convenient as the path he took. Since I cannot find that there was any impediment to using the port stairs at the stern of the vessel, I find that the plaintiff was also guilty of contributory negligence in this regard.
6. As submitted by counsel for the defendant, the legal test for an apportionment for contributory negligence is that set out by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492. The High Court said: "The making of an apportionment as between a plaintiff and the defendant of their respective shares in the responsibility for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
7. The degree of departure of the defendant from the standard of care of the reasonable man was quite high. The defendant created the hazard of storing the hoses blocking the port midships stairway. The defendant allowed its crew to carry out the dangerous manoeuvre of stepping over the hoses and down onto the staircase, apparently many times a day. The defendant failed to take simple and inexpensive remedial measures which would have eliminated the risk. On the other hand I have found that the plaintiff departed from the standard of care of the reasonable man, but only momentarily, in making this particular step over this longstanding hazard and in failing to take some other route.
8. In assessing the relative importance of the acts of the parties, I take into account that it was the defendant's ship, that the ship was under the control of the defendant's master, and that the hierarchical structure of the crew on the ship meant that crew at the level of Mr Heesom kept their heads down and went about their business as quickly as possible. The act of the defendant in creating the hazard and causing the damage was of considerable importance. The act of the plaintiff leading to the damage consisted of a casual act of contributory negligence, as opposed to the defendant's longstanding breaches of duty of care in relation to the hoses and the stairway.
9. I assess the degree of contributory negligence of the plaintiff at 10%. The plaintiff's damages will be reduced by that percentage.

Damages

1. As previously recited, the defendant accepts the plaintiff's figures for past economic loss and Fox v Wood. The defendant accepts that the plaintiff has been completely unemployable up to the date of trial.
2. The submission as to the future made by counsel for the defendant was that the plaintiff may be able to do some limited work in the future. It was suggested that this could be reflected by increasing the discount for vicissitudes, or by reducing the weekly figure awarded to the plaintiff to reflect the possibility that he may get back to some work.
3. Counsel for the plaintiff pointed to the medical evidence to suggest that it was unlikely that the plaintiff would ever improve so that he could do some form of lighter work in the future. Dr Giblin, under the heading "Future Work" said (PX 1, p 32): "Presently he remains unfit for work that involves repetitive bending, heavy lifting, prolonged sitting or standing or work above the level of the shoulder."
4. Dr Buckley said (PX 1, p 52): "Presently Mr Heesom's physical conditions, as modified by his psychological condition, and noting his heavy dependence upon narcotic analgesics, would make him unemployable on the open employment market. Whether this employability is permanent depends upon his psychological status."
5. Dr Napper, treating psychiatrist, said (PX 1, p 71): "Your current prognosis with respect to our client's work injury Mr Heesom is likely to continue to suffer from chronic Major Depressive Disorder and chronic Posttraumatic Stress Disorder. His PTSD will remain chronic because he continues to suffer from the reminders of the injury which include his chronic severe pain and right foot drop. He is not likely to improve any further with respect to his psychiatric injuries. Your opinion as to our client's current work restrictions with respect to his work injury Mr Heesom remains medically unfit for work. He has chronic Major Depressive Disorder and PTSD which impairs his cognitive functioning. He will not be able to return to his previous work or to re-train for other employment."
6. Dr Bertuchen, another psychiatrist said (PX 1, pp 77-78): "Your opinion as to the current restrictions that should be placed upon our client's capacity to work Mr Heesom continues to suffer major depressive disorder/chronic adjustment disorder and chronic posttraumatic stress disorder. In my opinion, he has no current capacity for employment, even sedentary or home-based work, owing to his psychological symptomatology including distractibility, poor memory and demotivation. Your opinion as to how those restrictions will progress during the rest of our client's working life Given the combination of physical and psychological restrictions, it is difficult to envisage any kind of sustainable regular paid employment that Mr Heesom could engage with over the remainder of his working life. Your overall prognosis for our client Psychiatric prognosis is likely to be poor, given the extent of his physical injuries, the degree of dependency on other people (currently his mother) for even basic self-care and the dismal prospects of any return to gainful employment."
7. None of those doctors were required for cross-examination. The defendant tendered no medical evidence. I accept the submission of counsel for the plaintiff that the evidence is all one way. I find that Mr Heesom will remain unemployable and will not get back to any form of paid employment.
8. In those circumstances, the figures set out in MFI 2 will be the basis for the award. The figure calculated for future economic loss in that document already has a 15% deduction applied for vicissitudes. I did raise with counsel the prospect of a greater discount for vicissitudes being made, given that any job on a ship is a physical one. However, it was pointed out by counsel for the plaintiff that Mr Heesom had worked in the engine room, which does not require a lot of movement or physical effort, and that in this case there was evidence that Mr Nagy had worked until aged 70 on ships. In those circumstances I think that 15%, while a conventional figure, is the appropriate discount for vicissitudes.
9. The heads of damage, prior to the deduction for contributory negligence, are as follows: Past economic loss $765,338 Fox v Wood $247,126 Future economic loss $1,378,749 TOTAL $2,391,213

1. From that there must a deduction of 10% for contributory negligence, giving a final verdict of: $2,391,213 x 90% = $2,152,091.
2. Significant payments of workers compensation have been made by the defendant to the plaintiff. Both counsel agreed that I would not deduct those payments from the damages I award to the plaintiff. A credit for those payments, or some form of reimbursement, will be worked out between the plaintiff and the defendant's insurer.

Orders

1. My orders are: 1. Judgment for the plaintiff against the defendant for $2,152,091. 2. Order the defendant to pay the plaintiff's costs. 3. Grant leave to the parties to approach my Associate within 7 days to re-list the matter if any different costs order is sought.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020