Jackson v Pacific International Lines (Private) Limited (No 1)

Catchwords: EVIDENCE — opinion evidence — exceptions — expert opinion — expert reports on liability — general and specific objections
EVIDENCE — hearsay — hearsay rule

Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (Cth), ss 59, 79
Work Health and Safety (Managing Risks in Stevedoring) Code of Practice 2017 (Cth)

Cases Cited: CSL Australia Pty Limited v Formosa [2009] NSWCA 363
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
HG v The Queen (1999) 197 CLR 414
Honeysett v The Queen (2014) 253 CLR 122
Makita (Aust) Pty Ltd v Sprowles (2011) 52 NSWLR 705
Mattock v State of New South Wales (New South Wales Department of Education) (No. 1) [2021] NSWSC 477
Lang v The Queen (2023) 278 CLR 323
Lithgow City Council v Jackson (2011) 244 CLR 352
R v Tang (2006) 65 NSWLR 681

Texts Cited: Nil

Category: Procedural rulings

Parties: Amie Jackson (Plaintiff)
Pacific International Lines (Private) Limited (First Defendant)
Patrick Stevedores Holdings Pty Ltd (Second Defendant)

Representation: Counsel:
L King SC (Plaintiff)
C J Callaway (Plaintiff)
G Parker SC (First Defendant)
A Schonell (First Defendant)
S L Flett (Second Defendant)
Solicitors:
McNally Jones Staff (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Hall & Wilcox (Second Defendant)

File Number(s): 2021/238533

Publication restriction: Nil

JUDGMENT

JUDGMENT

Introduction

Background

Liability of the first defendant

Liability of the second defendant

The experts on liability

The law on expert witnesses

The plaintiff’s expert – Mr David Dubos

The first defendant’s expert – Captain Roger King

The second defendant’s expert – Mr Joel Maybury

Findings

Specific objections by the first day

Dubos Report 1

Resolution

Dubos Report 2

Resolution

Dubos Report 3

Resolution

King Report

Resolution

Maybury Report 1

Resolution

Maybury Report 2

Resolution

Joint report

Plaintiff’s objections

First defendant’s objections

Resolution

The Court orders that:

Introduction

1. This is an interlocutory judgment concerning the admissibility of expert reports on liability. The hearing is currently ongoing.

2. The plaintiff is Amie Jackson. She is represented by L King SC together with C J Callaway of counsel. Pacific International Lines (Private) Limited is the first defendant, it is represented by G Parker SC together with A Schonell of counsel. Patrick Stevedores Holdings Pty Ltd is the second defendant. It is represented by S L Flett of counsel.

Background

3. On 22 August 2018, the plaintiff was injured during the course of her employment with the second defendant on the 22 August 2018 while on board ‘MV Kota Lambang’, a container ship owned and operated by the first defendant which was then berthed at Port Botany.

4. The plaintiff worked as part of a ‘gang’ of approximately 10 – 12 stevedores. The gang was tasked with unloading the shipping containers of the vessel following its recent arrival at the Port Botany terminal. At the time of her accident the plaintiff was working on a transverse walkway at Bay 19/21. The width of that walkway was 60cm. The containers were secured by lashing bars (heavy-duty metal rods). The lashing bars securing the containers at that location were the largest, and known as “three-high” bars, meaning that they could be used to lash together three containers. The weight of each three-high bar was in excess of 23kg. The lashing bars varied in length.

5. As part of the unloading process, the stevedores were required to remove the lashing bars used to secure the containers and place them into designated stowage hooks (also known as ‘stowage racks’ or ‘lashing racks’). The stowage hooks were the property of vessel and were suspended from the top rail of the walkway railing. It was the practice for Australian stevedores not to lay any lashing bars on the decks of the ship’s walkways. In addition, permanent storage racks were located aligned fore and aft on each side of the main deck, some distance away from the area where the plaintiff was working.

6. On the night of the plaintiff’s accident, there were three types of stowage hooks present on board the vessel. Two were of a different appearance to the type associated with the plaintiff's accident.

7. The plaintiff commenced her shift at 9:00pm on 22 August 2018. When the plaintiff walked along the walkway in Bay 19/21 at approximately 9:30 – 9:45pm, two of the newer loaded stowage hooks suddenly gave way, causing multiple lashing bars to fall onto her right foot, pinning her.

8. The stowage hooks which failed had been supplied to the first defendant on about 10 August 2018 in Singapore, approximately 12 days before the plaintiff's accident.

Liability of the first defendant

9. As to the first defendant’s liability, the plaintiff alleged:

10. The first defendant as owner or operator of the ship was liable for the supply of and quality of the stowage hooks and lashing bars, the maintenance of the hooks and the provision and maintenance of the system for the stowage of lashing bars on board the ship. It was responsible for the safe stowage of the lashing bars when they were not fixed to containers on board the ship. It was also vicariously liable for the master and crew of the vessel.

11. The circumstances described above make it clear the plaintiff was exposed to a significant risk of harm which was foreseeable, not insignificant and, one that a reasonable person in the position of the first defendant would and should have taken precautions against. To the extent that the Civil Liability Act 2002 (NSW) (CLA) is picked up, these considerations satisfy the requirements of the CLA on liability. It must have been obvious that if the stowage hooks were not strong enough to hold a load of lashing hooks that could be fitted into them, their failure would likely have serious consequences for people working in their vicinity.

12. Put bluntly, the first defendant failed to ensure that the stowage hooks were safe and fit for purpose and that failure resulted in the lashing bars collapsing onto the plaintiff, which was the sole cause of the plaintiff's injury. The stowage hooks gave way because they were not sufficiently robust to carry the number of lashing bars that could be stacked in them…

Liability of the second defendant

10. As to the second defendant’s liability, the plaintiff alleged:

11. As the plaintiff's employer, the second defendant had a non-delegable duty to take all reasonable care to prevent injury to the plaintiff while she was at work.

12. Reasonable care in the circumstances included an obligation to ensure the plaintiff was not exposed to a real risk of injury due to the condition of, inter alia, the vessels’ equipment, including the stowage hooks and to ensure that there was in place a safe system of work so as to avoid the risk of injury to those working on board the vessel, including the plaintiff.

The experts on liability

11. Each party called their own expert witnesses on the practice, procedure and regulations regarding safety protocol and duties relating to stevedoring. Each of the experts provided written reports and together provided a joint report. They gave concurrent evidence.

12. The plaintiff called Mr David Dubos (Mr Dubos) of David Dubos Consulting Pty Ltd. The first defendant called Captain Roger King (Captain King) of TMC Marine Pty Ltd. The second defendant called Mr Joel Maybury (Mr Maybury) of Gibson Minto & Aiton Pty Ltd.

13. Unusually, the experts gave concurrent evidence before rulings were made in relation to the admissibility of their evidence. On 16 July 2025, the expert witnesses gave evidence in conclave. Mr Dubos and Mr Maybury were present in court while Captain King was located in Kochi, India and so he gave evidence via AVL. Due to time pressures with the availability of the experts, a decision was made to deal with the admissibility of and objections to the experts’ reports after they had given concurrent evidence. During the conclave, the experts were largely in agreement with each other.

14. The evidence of each of the expert witnesses was objected to by each of the other parties. In this judgment, firstly I will address whether the experts’ reports comply with s 79 of the Evidence Act 1995 (Cth) (Evidence Act).

15. In their joint expert report and in evidence given during the conclave, the experts agreed on most issues. They were all impressive experts.

The law on expert witnesses

16. The general rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: Evidence Act s 76.

17. An exception is provided for expert evidence by s 79 of the Evidence Act. It relevantly reads:

79 Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

…

18. In CSL Australia Pty Limited v Formosa [2009] NSWCA 363, the Court of Appeal discussed the liability of a shipowner to stevedores. Having reviewed several authorities, including judgments from the High Court and from the House of Lords, the Court of Appeal per Allsop P, Basten JA and Handley AJA agreeing stated at [69]:

“[69] … [there] is a recognition of the requirement of a shipowner to exercise reasonable care to avoid exposing a stevedore coming on to his ship to risk of injury which reasonable care would see eliminated or ameliorated, whether by attending to it physically or by warning or otherwise. This is especially so if the danger or risk on board is created by a particular operation of the ship. The duty is to exercise reasonable care for the safety of those coming on board to work the ship, here by loading her. The scope and content of that duty included a duty to exercise reasonable care to see that the workplaces of such stevedores on board were reasonably safe.”

19. In Makita (Australia) Pty Ltd v Sprowles (2011) 52 NSWLR 705, the Court of Appeal (Heydon JA, Priestly and Powell JJA agreeing) stated at [85]:

“[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [(1999) 197 CLR 414] (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.”

20. This statement was approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37] per French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ (‘Dasreef’).

21. In Mattock v State of New South Wales (New South Wales Department of Education) (No. 1) [2021] NSWSC 477 I provided an overview of expert evidence at [7]-[8] (citations omitted):

“[7] Expert evidence is a species of opinion evidence. A common definition of the term “opinion” is “an inference drawn or to be drawn from observed and communicable data”. Generally speaking, evidence of someone's opinion, as opposed to facts directly observed, is inadmissible. The law therefore draws a distinction between facts and inferences based on facts, although this distinction is not always easy to draw. It is the business of witnesses to state facts, whereas it is the function of the judge or jury to draw inferences based on the facts put in evidence.

[8] Expert evidence is a reasoned inference or set of inferences (the opinion) drawn by someone with specialised knowledge from facts that the expert has either observed or assumed. The opinion must be based, at least substantially, on that person's specialised knowledge. Expert evidence is admissible as an exception to the general rule that evidence of an opinion is inadmissible.”

22. Although it is always the case, it has been emphasised that expert opinion evidence must meet the primary threshold, being relevance — what fact in issue does the tendering party assert the evidence proves?: Dasreef at [31].

23. ‘Specialised knowledge’ stands in distinction from ‘common knowledge’; it is knowledge which is beyond the knowledge of persons who have not, by training, study, or experience, acquired an understanding of the relevant subject matter: Honeysett v The Queen (2014) 253 CLR 122 at [23] (‘Honeysett’).

24. Knowledge “connotes more than subjective belief or unsupported speculation … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”: Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579 at 590 per Blackmun J quoted with approval in R v Tang (2006) 65 NSWLR 681 at [138] per Spigelman CJ and in Honeysett at [23].

25. So that the court is able to ascertain that an opinion is based wholly or substantially on specialised knowledge, it is necessary that the expert tendering their evidence differentiate between (1) the assumed facts upon which the opinion is based; and (2) the opinion: HG v The Queen (1999) 197 CLR 414 at [39] per Gleeson CJ (‘HG’); Honeysett at [24].

26. In accordance with the terms of s 79 of the Evidence Act, where expert evidence is not based wholly or substantially on their specialised knowledge, the exception will cease to operate and the opinion will not be admissible. Where experts

“venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge [they] may invest those opinions with a spurious appearance of authority, and [the] legitimate processes of fact-finding may be subverted”: HG at [44] per Gleeson CJ.

27. Finally, it is important to restate that not all evidence produced from experts is opinion evidence. “Evidence given by an expert sometimes involves nothing more than imparting knowledge and sometimes involves nothing more than giving a technical description of events and processes in which the expert was involved”: Lang v The Queen (2023) 278 CLR 323 at [5] per Kiefel CJ and Gageler J.

28. I will set out each of the expert’s training, study or experience to ascertain whether they have the relevant specialised knowledge, followed by my findings.

The plaintiff’s expert – Mr David Dubos

29. Mr Dubos provided three expert reports dated 16 May 2022 (‘Dubos Report 1’), 7 March 2025 (‘Dubos Report 2’) and 23 May 2025 (‘Dubos Report 3’). Mr Dubos is a safety engineer consulting in industrial management with qualifications in safety science, ergonomics and management. He also has extensive experience in providing expert reports for solicitors in litigation for personal injury and workers’ compensation.

30. As to his qualifications and experience, he holds a Graduate Diploma in Safety Science from the University of NSW and a Graduate Management Qualification from the Australian Graduate School of Management at the University of NSW. The Graduate Diploma in Safety Science included major studies in Safety Engineering and Ergonomics.

31. Mr Dubos has been working in the field of occupational health and safety since 1984 and has regularly conducted safety audits and safety inspections involving the identification of safety hazards in a broad range of premises. This was in relation to the rectification of injury hazards to members of the public, employees, visitors and other persons on a large range of premises managed by various organisations. Since the early 1990s, Mr Dubos has conducted safety audits involving inspections of premises, equipment and systems of work where safety hazards involve being struck by falling objects; being struck by a moving plant or vehicles such as forklift trucks; manual and materials handling systems; slip, trip and fall hazards; machinery operations and a series of other hazards.

32. Mr Dubos is also a Chartered Professional Member of the Safety Institute of Australia and a Registered Safety Practitioner of the Safety Institute. In addition to this, he has been a member of the Human Factors and Ergonomics Society of Australia since 1988. His principal areas of practice involve providing professional advice and applying safety engineering and ergonomic management techniques for private enterprise and government, since 1984. He was formerly the Business Manager Risk Management on a national basis for MMI Insurance and Risk Management Consultant for MIRA Consultants and GIO Australia Safety. He has been Managing Director of David Dubos Consulting Pty Ltd for over 25 years.

33. For the purpose of his reports, Mr Dubos relies on a conference he had with the plaintiff on 13 April 2022 and various documentary evidence.

34. Counsel for the first defendant submitted that Mr Dubos did not have the requisite specialised knowledge based on his training, study or experience. It was submitted that although Mr Dubos was an industrial safety consultant involved in risk minimisation and although he may have experience of the sort of accident that occurred, he did not have the requisite expertise in relation to a vessel. Counsel submitted that Mr Dubos inappropriately treats the ship as “some sort of floating work platform” (T265 [22]-[30]). All three of Mr Dubos’ reports were objected to in whole.

35. Counsel for the plaintiff submitted that Mr Dubos does have the requisite specialised knowledge to write an expert report on liability in regard to the vessel that was in port at Botany Bay when the accident occurred. It was said that he had the requisite expertise to analyse the cause of the failing of the portable lashing rack/hooks. It is noted that Mr Dubos has only been on two conveyor ships and written two reports on other vessels that have been berthed at Port Botany (T264 [11]).

The first defendant’s expert – Captain Roger King

36. Captain King provided a report dated 5 February 2025. He holds a current Certificate of Competency as a Master Mariner, issued by the Australian Maritime Safety Authority. This certificate is unlimited for size of vessel and area of operation. To obtain professional qualifications as a seafarer, he studied a Diploma of Nautical Science at the Australian Maritime College.

37. He is also a Member of Lloyds Panel of Special Casualty Representatives. He also holds Certificates in Maritime Salvage Law, Marine Warranty Surveying and Oil Spill Response. He has served in various ranks including as Master on a range of blue water vessels including bulk carriers, container vessels, RO-ROs, general cargo vessels, anchor handling tugs and supply vessels, harbour tugs and offshore tugs/survey vessels.

38. At paragraph 1.10 of his report dated 5 February 2025, Captain King states:

“[1.10] Of relevance to my opinions expressed in this report, I've sailed as chief officer on vessels carrying containerised cargo to and from Australian ports or ports in Australia as well as internationally. My responsibilities on these vessels included planning the stowage and securing of the cargo, overseeing the lashing and securing of the cargo, and maintenance and inspection of the cargo equipment. I have recently attended multiple incidents involving containerships including their attempted salvage, wreck removal and serious fire."

39. He maintains the following professional memberships: Company of Master Mariners Australia; Associate Fellow of The Nautical Institute; International Institute of Marine Surveyors; Permanent International Association of Navigational Congresses (PIANC); and Master Mariners Association of Tasmania.

40. From 1984 to 1998 Captain King worked for BHP on container ships (T193 [42]-[45]). For 18 months he was the second officer and then chief officer on a ‘RORO’ ship (a ‘roll-on/roll-off’ ship designed to carry wheeled cargo). He then joined a six-crane, four-hold ship first, as a second officer and then as the chief officer. This ship would transit between various Australian and New Zealand ports (T193 [49]-194 [6]). In 1987 as a deck cadet, he completed a round-the-world voyage on a ship called the Australian Venture (T194 [8]-[12]). Captain King has personally observed lashing bars fall to the deck from an overly full rack (T198 [48]-199 [14]).

41. Captain King has never sailed on the MV Kota Lambang or any of her sister ships (T197 [9]-[10]). Captain King prepared his report based on documentary evidence.

42. The plaintiff objects to the whole of Captain King’s report on the basis that paragraph 1.10 (the substance of which is produced above) demonstrates that he does not have the relevant expertise. If Captain King’s reports are admitted into evidence, counsel for the plaintiff objects to paragraphs of Captain King’s reports, citing non-compliance with s 79 of the Evidence Act on the bases that they contain statements of law, that they are irrelevant and that they are beyond his expertise.

The second defendant’s expert – Mr Joel Maybury

43. Mr Maybury provided four reports dated 30 August 2018 (‘Maybury Report 1’), 26 March 2025 (‘Maybury Report 2’), 8 May 2025 (‘Maybury Report 3’) and 19 May 2025 (‘Maybury Report 4’). In Mr Maybury’s curriculum vitae which is annexed to an affidavit of his dated 10 July 2025, he lists his qualifications as including: Diploma of Marine Operations/Surveying; Advanced Diploma in Cargo Surveying — Expert Stowage Lashing & Securing Surveys; Advanced Diploma in Cargo Surveying — Expert Heavy Lift & Project Cargo Inspection; Diploma of Stevedoring Operations; Certificate III & IV in Business; High Risk Licenses in Crane — CB, CO, CP, in Dogging — DG and in Forklift — LF.

44. Mr Maybury is also part of the Australian Institute of Marine Surveyors. He has extensive frontline and hands-on stevedoring experience. He began his frontline and hands-on involvement with stevedoring in 1995 and concluded it in 2016 when he took a position with Gibson Minto & Aiton Pty Ltd (a marine and cargo surveyor) in a consultancy capacity.

45. On 23 August 2018 (the day after the incident), Mr Maybury attended the ship in order to conduct an investigation but did not inspect the racks that failed as they were not made available to him (T215 [30]-[49]).

Findings

46. After reading and assessing the experts’ curricula vitae, reports, and joint report and carefully observing them when they gave expert evidence and were cross-examined, I formed the view that all experts had the requisite training, study and experience and that their opinions were substantially based on that knowledge. Further, the experts set out their paths of reasoning when coming to each of the conclusions they reached.

47. While Mr Dubos’ experience is based on workplace health and safety, the plaintiff’s injuries occurred when the lashing hooks failed, causing the lashing bars to fall on the plaintiff’s lower leg and foot, seriously injuring her. Mr Dubos is well-qualified to provide an opinion of the accident. In these circumstances, Mr Dubos’ reports are admissible.

48. In the contingency that the reports were generally admitted, each of the parties raised specific objections to various paragraphs and sentences of each of the expert reports. Those objections are dealt with below.

Specific objections by the first day

49. The specific objections are numerous and often lack merit.

Dubos Report 1

50. The first defendant objects to sentences four, six, seven and nine of par 13 on the grounds that it is hearsay and prejudicial. Paragraph 13 is as follows, the sentences objected to are underlined:

“[13] The Plaintiff was working as a Stevedore at Port Botany, when she was required to traverse a walkway or passageway along the deck of a container ship, the MV Kota Lambang, on 22 August 2018. She was working in a lashing gang in a process leading up to the unloading of shipping containers from the ship. She was standing in a walkway, when a storage rack for lashing bars failed or collapsed and some 30 steel lashing bars struck her legs. The steel lashing bars that struck the Plaintiff suddenly, were about 6.1 metres in length on my instructions. The weight of each lashing bar varied with the type of bar. The Plaintiff estimated that the weight of the bars that struck her were around 35 kg each. If this is correct, then 30 x 35 kg = over 1 tonne of lashing bars struck her. Patrick Stevedores Lasher Task Card indicates that the weight of lashing bars varies between 12 kg and 23 kg. From this source, the bars weighed at least 12 kg and so the weight that struck her was at minimum 12 kg x 30 = 360 kg. The weight of the steel lashing bars that fell onto the Plaintiff was clearly substantial. She thereby suffered injuries.”

51. Evidence is not admissible under the hearsay rule if that evidence is of a previous representation made by a person and evidence of that representation is adduced to prove the existence of fact intended to be asserted by the representation: s 59(1) of the Evidence Act. The metrics referred to by Mr Dubos in par 13 are not adduced to prove that those metrics correctly describe the incident. They are adduced to make clear the foundations on which his opinion is formed. Mr Dubos explicitly disavows any attempt at calculating the exact force with which the plaintiff was hit: “we do not have a precise weight for each lashing bar that struck the Plaintiff” (at par 19). Therefore, they are not caught by the hearsay exclusion. Nor is the evidence prejudicial, as it does not seek to prove the details of the accident but simply sets out the assumptions relied on to form the expert opinion. I do not give those statements weight in proving the details of the accident.

52. The first defendant objects to pars or parts of pars 64-65, 69, 77, 82, 86, 91, 93-94, 105, 108, 113, 117, 122, 124, 127-128 in their entirety on the bases that they do not fall within the s 79 exception, that Mr Dubos has a lack of expertise, and that there is an “insufficient/no path of reasoning” demonstrated. Further, I note that the first defendant repeatedly objects on the basis that the opinion is “not opinion evidence within s 79”; however, it does not specify why or how that is a ground of objection independent of the two mentioned in the preceding sentence. Those objected-to paragraphs are as follows. Where only part of the paragraphs is objected to, I underline those parts:

“[64] The area where the Plaintiff was struck by some 30 steel lashing bars when a lashing bar storage rack collapsed, presented a significant safety hazard, on my information.

[65] My instructions indicate that the storage rack that collapsed and led to the Plaintiff being struck by a load of lashing bars was faulty and not fit for purpose being insufficiently reinforced.

[69] In my opinion, Pacific International Lines through its own devices including the arrangement of effective provision of safe equipment should have identified that the storage rack in question was not fit for purpose and not of sufficiently strong construction. Pacific International Lines should then have taken steps to the procurement and installation of sufficiently robust lashing bar storage racks.

[77] It is apparent, on my instructions, that Pacific International Lines through its managers and supervisors had not planned for the procurement of lashing bar storage racks which were safe and fit for purpose. Management and supervisors for Pacific International Lines had not identified work and safety hazards and taken effective corrective action, before the time of the Plaintiff’s accident.

[82] My instructions indicate that it is clear that the risk of impact by the falling objects in question, was not eliminated so far as is reasonably practicable nor was it minimised so far as is reasonably practicable by Pacific International Lines. The Plaintiff was attempting to safely use a walkway near to the lashing bar storage rack, which collapsed.

[86] My instructions indicate that there was no safe load limit indicated for the storage system of the lashing bar storage rack in question. The lashing bars were stacked in a manner that caused the not fit for purpose storage rack to collapse. This was clearly a safety hazard.

[91] The layout of the workplace on the vessel where the Plaintiff was struck by the lashing bars, did not allow persons to enter and exit and move about safely under normal working conditions. The Plaintiff was required to access the walkway to carry out her duties as a Stevedore. The accessway presented hazards in respect of impacts from lashing bars, due to an insufficiently strong and not fit for purpose storage rack.

[93] It is apparent to me that risks were not minimised associated with falling objects by Pacific International Lines. There were reasonably practicable measures which could have been undertaken by Pacific International Lines to prevent the Plaintiff’s accident. Pacific International Lines did not provide a sound and fit for purpose storage rack for steel lashing bars, on my instructions.

[94] An exclusion zone was not implemented by Pacific International Lines to ensure that individuals did not walk in the vicinity of an insufficiently strong and not fit for purpose lashing bar storage rack.

[105] The practices of Pacific International Lines at the time of the Plaintiff’s accident did not permit the Plaintiff to move within the workplace safely and have space for work to be carried out safely. Walkways were not kept clear of obstructions and work materials were not adequately stored.

[108] On my instructions, Pacific International Lines had inherent or unacceptable hazards associated with a lashing bar stowage rack at the time of the Plaintiff’s accident. Ergonomic considerations in the storage of materials did not minimise exposure to hazards.

[113] The Plaintiff was attempting to traverse a walkway on the Pacific International Lines vessel when a storage rack collapsed and she was struck by some 30 steel objects. The stability of materials was not ensured by Pacific International Lines.

[117] On my information, Pacific International Lines permitted the unsafe storage of steel lashing bars at the time of the Plaintiff’s accident. No safety system, inspection or assessment carried out or not carried out by Pacific International Lines identified and rectified the inadequate and unsafe storage rack used at this point. As a result, Pacific International Lines did not provide a safe system of work for the Plaintiff, a worker working on its vessel.

[122] Pacific International Lines did not provide and maintain a work environment without risk to health and safety, on my information. It did not provide safe systems of work and the safe storage of steel lashing bars. Pacific International Lines did not provide effective information, instruction and supervision to protect the Plaintiff from risks to her health and safety, on my information.

[124] On my information, there was a likelihood that the Plaintiff would suffer injuries when a not fit for purpose stowage rack for lashing bars collapsed, and some 30 steel objects struck her. The degree of harm that might result from the hazards or risks was significant. Pacific International Lines ought to have known or ought reasonably to have known that the use of a structurally inadequate storage rack, could cause hazards and risks of injury. Pacific International Lines were in a position to assess and analyse the safety hazards and injury risks in its vessel and put in place safer systems of storage for steel objects on its vessel. The costs associated with eliminating or minimising the risks were reasonable and could have been put in place with risk assessment, foresight and planning for Work Health & Safety. Such costs were not grossly disproportionate to the risk, and regularly used in industry.

[127] In my opinion, Pacific International Lines had duties to directly identify hazards in its vessel to workers such as the Plaintiff, on 22 August 2018. Pacific International Lines should have ensured that engineering, administrative and other safety controls were implemented for safe storage of steel lashing bars on its vessel, to reasonably and prudently control safety and injury risks.

[128] Requirements are set out for the Person Controlling the Business Unit (as defined in the Work Health and Safety legislation), Pacific International Lines, to identify the hazards involved in the tasks that the Plaintiff was performing at the time of her injuries and to eliminate or control the risk to health and safety coming out of those hazards.”

53. As to the recurrent objection that Mr Dubos does not have the requisite expertise (the necessary ‘specialised knowledge’ based on ‘training, study or experience’), I have already determined that all experts have the necessary specialised knowledge based on training, study or experience. Those objections which rearticulate that objection are otiose. I will only deal with grounds of objection not relating to lack of expertise (specialised knowledge based on training, study or experience).

54. Paragraphs 64-65 of the first report of Mr Dubos are objected to on the basis that there is “insufficient/no path of reasoning”. However, in pars 62-63 Mr Dubos sets out the findings of Maybury Report 1 (created 8 days after the incident) as to the reason for the failure of the lashing racks. It is based primarily on these findings that Mr Dubos forms the opinion expressed in pars 64-65. The objection is dismissed.

55. Paragraph 77 is objected to on the same basis. However, in pars 66-76 Mr Dubos sets out the process of risk assessment and hazard control and the good practice thereof. It is against this standard that he comes to the opinion expressed in par 77. He says that given the nature of the offending lashing racks themselves, a proper risk assessment and hazard control process would have identified them as hazardous and not fit for purpose. The objection is dismissed.

56. The first sentence of par 82 is objected to on the same basis. However, Mr Dubos sets out in pars 78-81 good practice relating to the management of risks posed by falling objects. It is against this standard that he comes to the opinion expressed in the first sentence of par 82. I note that Mr Dubos opinions are caveated to put the reader on notice that the opinions are formed only on the information provided to him. It is open to the defendants to debase the opinions, for example, by proving that the good practice set out by Mr Dubos was adhered to, or that it is an erroneous account of good practice. The objection is dismissed.

57. Paragraph 86 is objected to on the same basis. However, in par 85 Mr Dubos sets out the good practice relating to the securing of loads and it is against this standard that he forms the opinion expressed in par 86. The objection is dismissed.

58. The third sentence of par 91 is objected to on the same basis. Again, in par 90, Mr Dubos sets out the good practice relating to the provision of safe work environment. It is against this standard that he forms the opinion expressed in the third sentence of par 91. The objection is dismissed.

59. Paragraphs 93-94 are objected to on the same basis again. However, yet again, in par 92 Mr Dubos sets out the good practice relating to the management of risks relating to falling objects. It is against this standard that he forms the opinion expressed in pars 93-94. The objection is dismissed.

60. Paragraphs 105, 108, the second sentence of pars 113 and 117 are objected to on the same basis. The good practice relating to access and egress is set out in pars 101-104, 106-107, 109-112 and 114-116. It is against this standard that Mr Dubos formed the opinions expressed in objected-to paragraphs. The objections are dismissed.

61. Paragraphs 122, 124 and 127-128 are objected to on the same basis. However, pars 120-121, 123 and 125-126 set out the statutory duties owed by the first defendant. The opinions expressed in pars 122, 124 and 127-128 are mostly rehearsals of formerly expressed opinions but merely juxtaposed to the statutory duties of the first defendant. It is against this standard that Mr Dubos comes to his final conclusions. The objections are dismissed.

Resolution

62. All of the specific objections to Dubos Report 1 are dismissed.

Dubos Report 2

63. This second report of Mr Dubos was created for the specific purpose of responding to the report of the first defendant’s expert, Mr King.

64. The first defendant objects to pars or parts of pars 19, 20, 21, 25, 26, 27, 29, 30, 33, 34, 35, 36, 37, 43, 45, 46, and 47-48 on various bases including that they are irrelevant, argumentative, and not within the s 79 exception. Those paragraphs are as follows. Where only part of the paragraphs is objected to, I underline those parts:

“[19] Captain King in his Executive Summary asserts that the Maritime Union Safety Committee and Patrick Terminals exceeded their authority and jurisdiction in requiring a vessel (the Kota Lambang owned and operated by Pacific International) to fit a device that was potentially unsuitable for its intended purpose, irrespective of its design. He asserts that the device in question is one not recommended under the Work Health & Safety (Managing Risks in Stevedoring) Code of Practice 2016. He then states that the Australian Maritime Safety Authority (AMSA) conducted a Port State Inspection of Kota Lambang and ordered the removal of the racks. These statements by Captain King are bald assertions, and do not by any means explain the circumstances of the presence of the faulty rack which collapsed injuring the Plaintiff, in my opinion.

[20] Quite clearly, in my view a defective piece of equipment that was fitted by Pacific International to its ship failed and as a result, the Plaintiff in carrying out her normal stevedoring duties on the Pacific International ship suffered significant injury. Pacific International obtained and fitted the lashing rack that failed, and fitted it to its own ship. These circumstances are integral to the causes of the Plaintiff’s accident.

[21] The report by Gibson Minto & Aiton Marine Surveyors dated 30 August 2018 outlines in some detail the causes of the failure of the lashing rack in question, which failure causing a significant weight of steel bars to strike the Plaintiff’s leg whilst she was performing her working duties on the ship. I have referred to the salient contents of this report in my previous report in this matter, and Captain King also refers to this report. The surveyors found that insufficient steel reinforcement caused the failure of the lashing rack, and this insufficient steel reinforcement lowered the capacity of the rack to withstand the required load. The surveyors suggested that all portable lashing racks be removed from operation on the vessel and a safe alternate solution be sourced from stevedores and vessel staff.

[25] Captain King places great emphasis on the requirement by Patrick Stevedores for Pacific International to provide lashing storage racks so that lashing bars would not be left in gangways creating a tripping hazard. Patrick Stevedores were of course not to know and not to anticipate that Pacific International Lines would proceed to install defective lashing racks on its ship. The safety inspection by the Patricks Safety Officer, could surely not be expected to note that particular lashing racks amongst the 75 lashing racks on the ship, contained less reinforcing steel that some other lashing racks.

[26] On the other hand, Pacific International Lines were in a position to ensure that any lashing racks installed on its ship were sound and fit for purpose. It should not have permitted some lashing racks with insufficient and unsafe reinforcement to be installed on its ship.

[27] During the latter part of his extensive report, Captain King places distinct emphasis on a lack of “supervision” of the Plaintiff and other stevedores by Patricks Terminals. No amount of “supervision” by Patricks of the Plaintiff could have prevented the accident and injuries in question which occurred. The Plaintiff was carrying out her working duties and a fitting to the Pacific International Lines ship failed and as a result, a heavy weight of lashing bars struck her. This has nothing to do with supervision by her employer, Patricks.

[29] Captain King then speaks to the Code of Practice for Managing Risks in Stevedoring. I agree that this Code is applicable to the circumstances of the Plaintiff’s injury accident. Captain King however selectively focuses in on one section of the Code, dealing with Information, Training, Instruction and Supervision and emphasises supervision in relation to Patricks supervision of its employee, the Plaintiff.

[30] Captain King then focuses in on another section of the Code regarding vessel inspections. Clearly the vessel in question was owned and operated by Pacific Lines and so inspections by Pacific Lines of its own vessel for safety are clearly in the first instance of paramount importance over any inspection by another third party such as Patricks.

[33] At his paragraph 6.1.3, Captain King opines that it is his opinion that Patrick Terminals had a higher level of responsibility to its workers as a PCBU than Pacific Lines or the master of a Pacific Lines vessel. He speaks to appropriate training and adequate supervision. I must state again that the lashing rack that collapsed was fitted to its vessel by Pacific Lines. No amount of “appropriate training” and “adequate supervision” of the Plaintiff or other Patrick workers could have prevented the accident which clearly in the first instance was the responsibility of Pacific Lines in my view.

[34] As instructed by his instructing solicitors, Captain King places significant emphasis on an inspection and report by Mr Little, a Safety Officer employed by Patricks Terminals. Mr Little could not be expected to closely examine the structural integrity of some 75 lashing bar storage devices on the Kota Lambang, on the evening of the Plaintiff’s accident. Yet Captain King appears to be suggesting this.

[35] Captain King places emphasis on placing lashing bars on the deck pushed to one side to allow a clear walkway. Patricks and its Safety Officer were concerned regarding trip hazards and suggested to Pacific Lines that further lashing rack storage devices be installed on its ship. There were already a range of lashing bar racks on the ship before that time. Concerns of Patrick regarding trip hazards are a very real concern from my experience of over 40 years in high level Work Health and Safety consulting. The photographs provided to Captain King by his instructing solicitors on its page 2 clearly indicate the narrowness of gangways and walkways on the ship, including at the point of the Plaintiff’s injury accident. Clearly from the point of view of avoiding and managing trip hazards, the suggestion by Patricks to install more lashing bar racks, given that there were already a series of lashing bar racks on the ship, was a perfectly reasonable suggestion in my view and a safe one. If Pacific Lines had ensured that sound fit for purpose lashing bar racks were installed, then the Plaintiff’s accident would not have occurred.

[36] At his paragraph 6.2.5 Captain King alleges that Patrick Terminals should have engaged a risk assessment regarding the fitting of lashing bar racks before suggesting this to Pacific Lines. On the contrary, Pacific Lines were responsible for obtaining and installing lashing bar racks on its ship. There were already a series of lashing bar racks on the ship and the supply and installation of fittings to the ship were the responsibility of Pacific Lines. In my view, Pacific Lines should have carried out a risk assessment of the installation of its lashing bar racks on its ship.

[37] Captain King places some emphasis on the fact that the AMSA ordered the removal of all lashing bar racks after the Plaintiff’s accident. He claims that this indicates that the hanging racks should never have been fitted in the first instance. I would suggest from my experience in respect to safety management over many years, that this was an immediate reaction to the occurrence of the Plaintiff’s accident by the AMSA, rather than any admission that the racks should not have been installed in the first place.

[43] In my view this is why the Patricks Safety Officer moved to have the considerable number of lashing bars on the Pacific Lines ship in question stored off the narrow gangway floor surface to avoid trip hazards.

[45] In my opinion, the Code of Practice for Stevedoring upon which Captain King places significant emphasis, places clear access and egress along gangways and walkways as a paramount safety factor. Having lashing bars sitting in gangways where they can move with vessel and personnel movement clearly creates trip hazards.

[46] Extraordinarily at his paragraph 6.3.9, Captain King states that it is not known who designed the hanging lashing bar racks in question, but evidently some thought went into their design. I could not but agree with Captain King that “some thought went into their design”. However, the design of the lashing bar rack that collapsed was obviously poor and not fit for purpose.

[47] Captain King continues on with the Stevedoring Code and mentions a diagram that indicates safe storage of lashing bars. Certainly this diagram shows lashing bars stored to the side of the gangway, and also lashing bars placed in the middle of the gangway as unacceptable. However, the sheer number of lashing bars, and vessel as well as personnel movement in narrow gangways, can cause serious trip hazards. This is why the lashing bar racks were installed, on my information. Captain King then makes assertions regarding “the blocking of walkways by the hanging lashing bars …”. In relation to the important safety management David Dubos Consulting Pty Ltd. Supplementary Report: Amie Jackson v Pacific International Lines (Private) Limited. Date: 7 March 2025. Privileged. Prepared for Use in Litigation. Page 9 consideration of trip hazards, hanging lashing bar racks if sound and fit for purpose, would be a far superior measure to having lashing bars potentially in the middle of gangways due to vessel movement, personnel movement, or for other reasons.

[48] For the reasons outlined above, I would not wish to alter my opinion as expressed in my initial report in this matter, due to any consideration of the extensive report from Captain King. On the contrary, in my opinion, Captain King places far too much emphasis on the role of Patrick Terminals in relation to the causes of the Plaintiff’s accident. As I have stated, the Plaintiff suffered injury due to the installation of unsafe equipment by Pacific Lines on its ship.”

65. The last sentence of par 19 is objected to on the basis that it is irrelevant and that it is an opinion. That sentence contests some statements by Captain King in his report. As will be seen below, those paragraphs of Captain King’s which are contested have been admitted into evidence, so it is natural that an analogous expert’s issue with those statements also be admissible. The objection is dismissed.

66. Paragraph 20 is objected to on the basis that it is “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that it contains “insufficient/no path of reasoning”. Paragraph 20 sets out purely factual matters. It is not an opinion. Those factual matters are necessary to make the report comprehensible. The objection is dismissed.

67. The third sentence of par 21 is objected to on the basis that it is hearsay and prejudicial. That sentence is hearsay, the objection is upheld.

68. The second and third sentences of par 25 are objected to on the bases that it is “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that it contains “insufficient/no path of reasoning”. Those sentences are lay opinion and are merely combative. They are not an opinion based on specialised knowledge. The objection is upheld.

69. Paragraphs 26-27 are objected to on the same bases. Paragraph 26 contains an opinion about the capacity of the first defendant to oversee the infrastructure of its ship. It is an opinion based on Mr Dubos’ specialised knowledge as to worksite safety. The objection is dismissed. Paragraph 27 contains an opinion on the capacity of the second defendant to take care for its employee. It is an opinion based on Mr Dubos’ specialised knowledge as to worksite safety. The objection is dismissed.

70. The third sentence of par 29 and the second sentence of par 30 are objected to on the basis that they are irrelevant. As will be seen below, I have held that the parts of Captain King’s reports to which those paragraphs refer are inadmissible. For this reason, the paragraphs in response are irrelevant and hence, inadmissible. The objections are upheld.

71. The third and fourth sentences of par 33 are objected to on the bases that they are irrelevant, ‘opinion’, argumentative, and that Mr Dubos has a lack of expertise. Those sentences comment on the capacity of the first and second defendants to secure the plaintiff’s safety. Such an opinion is clearly relevant, and Mr Dubos has the requisite specialised knowledge. The objection is dismissed.

72. The second and third sentence of par 34 are objected to on the bases that they are irrelevant, ‘opinion’, argumentative, and that Mr Dubos has a lack of expertise. Again, those sentences proffer an opinion on the capacity of the second defendant to ensure the safety of its employee. That is clearly relevant and Mr Dubos, a safety expert, has the requisite knowledge. The objection is dismissed.

73. The last two sentences of par 35 and the whole of pars 36-37, 43, 45-48 are objected to on the bases that they are “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, that it contains “insufficient/no path of reasoning”, and they are “argumentative”. Those paragraphs deal with Captain King’s interpretation of the Work Health and Safety (Managing Risks in Stevedoring) Code of Practice 2017 (Cth) (the Code) and the application of that interpretation to the facts of the case. As will be seen below, although some of Captain King’s explicit legal analysis has been excluded, much has been left in where it is inextricable from his factual opinion evidence (for example in par 6.3.9 of his report). Mr Dubos sets out only so much law as is necessary to deal with Captain King’s report and for that reason, the objections are dismissed.

Resolution

74. The objections to the third sentence of par 21, to the second and third sentences of par 25, to the third sentence of par 29 and to the second sentence of par 30 of Dubos Report 2 are upheld. The rest are dismissed.

Dubos Report 3

75. The first defendant objects to pars 27 and 44 on the basis that they are hearsay and prejudicial. It objects to pars or parts of pars 23, 26-27, 31, 33-35, 38-39, 41, 44, 52-53 and 55-56 on the bases that Mr Dubos does not have the requisite expertise or that the opinions expressed reveal an insufficient or no path of reasoning. Those paragraphs are as follows. Where only part of the paragraph is objected to, I underline those parts:

“[23] My previous reports in this matter have indicated that there was no Safe Working Load associated with the portable lashing bar storage rack in question. Had there been a safety procedure instituted by Pacific International in relation to capacities and Safe Working Loads of portable lashing bar racks, then this could have contributed directly to the prevention of the injury accident that occurred to Ms Jackson. Indeed, the Managing Risks in Stevedoring Code of Practice sets out at its paragraph 2.1 under a heading “Hazards of Stevedoring Operations”, failure to follow safety procedures as a hazard. An example is set out, as the task of “not verifying Safe Working Load”. A potential harm following this hazard example is crush injuries, such as those that did occur in this instance to the Plaintiff.

[26] In my opinion, the specification of the steel reinforcement section of the lashing bar hooks by the Kota Lambang (Pacific International) appears to have led to the supply of at least one lashing bar rack with insufficient steel reinforcement. In other words, Pacific International Lines have failed to clearly specify what was needed for a fit for purpose lashing bar rack, and this contributed directly to the Plaintiff’s accident, on the analysis provided by Gibson Minto & Aiton.

[27] I refer back again to this original report by Gibson Minto & Aiton dated 30 August 2018. This report which followed very closely after the time of the Plaintiff’s accident and was commissioned by Patrick Stevedores, looks generally at portable lashing racks on the ship in question. The report notes that there are various designs of portable lashing racks on the ship. On page 3 the report states, “The first of the portable lashing racks are constructed from approximately 50 mm flat bar and reinforced on the internal mouth with 30 mm steel plate and 25 mm steel channelling on the outer edge”. These old portable lashing bar racks have a 30 mm steel bar reinforcement, which is obviously greater than either 10 mm or 20 mm. The report goes on to state, “The second of the portable lashing racks are constructed from approximately 40 mm flat bar and reinforced on the internal mouth with approximately 20 mm steel round bar”. This 20 mm reinforcement is still greater than the 10 mm reinforcement on the lashing bar rack specified and supplied, which collapsed at the time of the Plaintiff’s accident. As we have David Dubos Consulting Pty Ltd. Further Supplementary Report: Amie Jackson v Pacific International Lines (Private) Limited. Date: 23 May 2025. Privileged. Prepared for Use in Litigation. Page 8 discussed, the report then identifies the 10 mm steel round bar which reinforces the rack which collapsed.

[31] It is apparent that an important reinforcing section for the lashing bar hooks was not adequately specified by the ship owner and as a result, the instructions/specifications were inadequate for the provision of a safe and fit for purpose lashing bar rack, which later failed.

[33] Further, the Gibson Minto & Aiton report of 30 August 2018 indicates that previous lashing bar racks used on the ship had a mouth opening of 120mm whilst the rack that collapsed causing the accident, had a mouth opening of 180 mm. A wider mouth opening such as this would permit a greater number of lashing bars to be stored in the rack, and this in turn could lead to a greater weight of bars being stored in the rack which was not fit for purpose.

[34] It is apparent that the rack that collapsed was specified and supplied as deficient in reinforcing strength and had a greater mouth width than previous racks, potentially causing a greater number and weight of lashing bars to be stored in it, contributing to its collapse and the injury accident.

[35] Mr Todorovski in his statement dated 11 March 2022 indicated that the lashing bar racks were full of lashing bars, and it is apparent that the lashing bar rack that collapsed held about 30 lashing bars, which as has been pointed out in my previous reports, is a significant weight.

[38] In my view, it would not have been entirely reasonable for the ship owner to have tested the racks. As I have set out above, the ship owner should have clearly specified consistent reinforcement construction for the racks, so that such adequate reinforcement was provided following its specification.

[39] In my view, it would have been reasonable for the ship owner to have inspected the lashing bar racks provided in August 2018 for their general efficacy and compare them to other lashing bar racks, used on the ship.

[41] As I have set out above, clear specification for the racks to ensure that they were fit for purpose should have been carried out by the ship owner before the racks were supplied. This could have simply involved an inspection by the ship owner of previous racks used including an inspection and measurement of the reinforcement to the racks, so that adequate measurements of the reinforcing section of the racks could and would be provided in the specifications for new racks to be supplied.

[44] The newer report of Gibson Minto & Aiton has stated at paragraph 2.4, that “It appears over time the ongoing fabrication of the portable lashing racks has led to less steel reinforcement of the units with notably less steel and smaller diameter sections utilised …”

[52] I agree with Gibson Minto & Aiton that Pacific International had both the initial and immediate involvement of the procurement of all lashing storage racks inclusive of design factors and constraints.

[53] I agree with Gibson Minto & Aiton that Pacific International when ordering such articles as lashing bar storage racks had responsibility for providing detailed structure information to ensure that the vessel is procuring fit for purpose equipment. I agree with Gibson Minto & Aiton that there was sufficient time for Pacific International to identify and compare the existing and newly fabricated lashing storage racks and ensure their suitability for the task in hand, in addition.

[55] The latest Gibson Minto & Aiton report continues on to suggest that a joint risk assessment by Patrick and Pacific International would have been of benefit for safety. I cannot but agree. However, it remains my opinion that Pacific International was responsible for the provision of fit for purpose portable lashing bar racks on its ship, in the first instance.

[56] I agree with Gibson Minto & Aiton that the failure of the lashing storing racks was attributed to both inadequate structural design and inadequate fabrication of the racks – in particular the smaller gauged units. The failure of one weld (which has been raised by Captain King in his report) is insignificant given that the overall structural capacity and suitability of the lashing storage racks was not fit for purpose, given their failure at the time of the injury accident to Ms Jackson.”

76. Paragraph 23 is objected to on the basis that it is speculative and “not opinion evidence within s 79”. That paragraph sets out a counterfactual scenario of what could have occurred had the lashing racks been assigned a ‘safe working load’. As a safety expert, Mr Dubos is competent to give an opinion on this matter. The objection is dismissed.

77. Paragraph 26 is objected to on the basis that Mr Dubos has a lack of expertise and that the conclusion shows no path of reasoning. That paragraph deals with the relationship between the first defendant, its policy and actions with regard to the lashing rack and the plaintiff’s injury. As a safety expert, Mr Dubos is competent to give an opinion on this matter. The objection is dismissed.

78. Paragraph 27 is objected to on the basis that is it hearsay and prejudicial. The paragraph is not hearsay as it is not adduced to prove the existence of the fact sought to be proved by the section of Mr Maybury’s report referred to. It is provided to provide context and background for the following paragraphs. The objection is dismissed.

79. Paragraph 31 is objected to on the basis that Mr Dubos has a lack of expertise and that the opinion displays an “insufficient/no path of reasoning”. Mr Dubos has qualifications in safety engineering and also in worksite safety. He clearly has the requisite specialised knowledge to make a comment on the nature of the lashing rack provided by the first defendant and whether, in all the circumstances, it was providing a safe workplace. The objection is dismissed.

80. The phrase “was not fit for purpose” in par 33 is objected to on the basis that Mr Dubos has lack of expertise and that no path of reasoning is demonstrated. For the same reason as given above, this objection is dismissed.

81. The phrase “was specified and supplied as deficient in reinforcing strength and” in par 34 is objected to on the bases that Mr Dubos has a lack of expertise and that no path of reasoning is demonstrated. For the same reasons as given above, the objection is dismissed.

82. The phrase “held about 30 lashing bars, which as has been pointed out in my previous reports, is a significant weight” in par 35 is objected to on the bases that it is hearsay, that Mr Dubos has a lack of expertise and that there is “insufficient/no path of reasoning”. I agree that the first half of this sentence in par 35 is hearsay, but the second half is not. Therefore, only the objection to the words “held about 30 lashing bars” is upheld. The rest is dismissed.

83. Paragraphs 38-39 and 41 are objected to because they are “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that they reveal “insufficient/no path of reasoning”. Those paragraphs set out how the first defendant should have behaved with respect to the lashing racks. For the reasons already expressed, these objections are dismissed.

84. Paragraph 44 is objected to on the basis that it is hearsay. The objection is dismissed. The quotation is not adduced to prove its contents, but rather to comment on, and is not therefore hearsay. The objection is dismissed.

85. Paragraphs 52–53 are objected to on the basis that it is “not opinion evidence within s 79”. This is a serious failure to particularise an objection. The objection is dismissed.

86. Paragraphs 55-56 are objected to on the bases that they are “not opinion evidence within s 79”, that Mr Dubos has a lack of expertise, and that they reveal “insufficient/no path of reasoning”. Again, for the reasons given above, the objections are dismissed.

Resolution

87. The objection to the words “held about 30 lashing bars” in par 35 is upheld, all of the other objections to Dubos Report 3 are dismissed.

King Report

88. The plaintiff objects to pars or parts of pars 1-5, 2.3.3-2.3.6, 2.4.1-2.4.2, 3.3.12-3.3.15, 4.1.1-4.2.12, 4.3.12-4.3.13, 4.3.15-4.3.16-4.3.18, 4.4.1-4.4.8, 5.1.1-5.4.10, 6.1.2-6.1.7, 6.2.1-6.2.3, 6.2.5-6.2.10, 6.3.1-6.3.9, and 6.4.1-6.4.3 on the various bases that they contain statements of law, that they are inaccurate, that they are irrelevant or that they are beyond the expert’s expertise. Those paragraphs are as follows. Where only part of the paragraph is objected to, I underline those parts:

“EXECUTIVE SUMMARY

[1] On 22 August 2018, the Pacific International Lines (Pte) Ltd (PIL) owned and operated containership KOTA LAMBANG visited Port Botany to discharge and load containers as part of the AA1 Liner service. PIL had contracted Patrick Terminals to provide berth space, intermodal shoreside facilities, container cranes and stevedoring labour. One of the duties of the stevedoring labour was the unlashing of the containers to be discharged at Port Botany. Stevedoring operations in Australia operate under a Work Health and Safety (WHS Act) (Managing Risks in Stevedoring) Code of Practice 2016 (Cth) (The Code).

[2] The Code states the stevedores and ship owners are regarded as person conducting a business or undertaking (PCBU). The PCBU has the primary duty under the WHS Act to ensure, so far as is reasonably practicable, that workers and other people are not exposed to health and safety risks arising from the business or undertaking. Overseas flagged vessels visiting Australia are also subject to the Navigation Act 2012 as well as Marine Orders issue by the Australian Maritime Safety Authority (AMSA).

[3] KOTA LAMBANG had previously visited Australia, but not in the previous twelve months. On the previous visits, Patrick Terminals at the request of the Union Safety Committee, had required the installation of lashing bars racks hung from the transverse walkways between the ship’s container stacks. These racks were to temporarily hold lashing bars until required to lash the backloaded containers. The racks were intended to hold the lashing bars instead of placing them on the walkway decks as indicated in the Code and as is the ordinary practice at overseas ports. The unlashing operation was supervised by Patrick Terminals’ staff.

[4] On the evening of 22 August 2018, the Plaintiff was engaged in unlashing containers on board KOTA LAMBANG when one set of the hanging lashing bar racks collapsed under load, injuring the Plaintiff’s lower leg. Prior to operations commencing, Patrick Terminals had conducted a safety inspection checklist as required by the Code, however the lashing bar racks were not verified as empty and ready to receive additional lashing bars.

[5] The Maritime Union Safety Committee and Patrick Terminals exceeded their authority and jurisdiction in requiring a vessel to fit a device that was potentially unsuitable for its intended purpose, irrespective of its design and one not recommended under the Code. AMSA conducted a Port State Inspection of KOTA LAMBANG and ordered the removal of the racks.

[2.3.3] Patrick Terminals publishes its Patrick Terminals Standard Terms and Conditions - Stevedoring Services on its website (https://patrick.com.au/wp-content/uploads/2019/10/Patrick-Terminals-Standard-Terms-and-Conditions-Stevedoring-Services.pdf).

[2.3.4] Patrick Terminals’ January 2018 Standard Terms and Conditions - Section 3.1 Patrick Terminals obligations state the following (amongst other provisions relating to cargoes):

(a) “Patrick will, and will ensure that its Associates:

(i) comply with all applicable laws in performing the Terminal Services;

(ii) provide properly maintained equipment and properly trained labour sufficient to perform the Terminal Services in accordance with this Agreement;

(iii) ensure that the Terminal Services are carried out in a safe and workmanlike manner, with due and proper diligence, skill and expedition;”

[2.3.5] Patrick Terminals’ January 2018 Standard Terms and Conditions Section 3.2 Customer obligations states the following (amongst other provisions relating to cargoes):

(c) comply with all applicable laws, and provide Patrick with all necessary assistance, information and documentation to enable Patrick to comply with such laws;

(d) comply with any policies or procedures of Patrick relating to safety and security in the provision of Terminal Services (as notified from time to time);

(o) ensure that vessels to which Patrick provides Terminal Services under this Agreement are compliant with all relevant regulations, including but not limited to valid Australian marine orders, and are fitted with functional cell guides in good working order and condition and either auto or semi-automatic twist-locks which are homogenous to each vessel. In the event where the vessel is non-compliant with Australian marine orders or relevant regulations, or presents in a manner which is considered by Patrick to be unsafe to work, the Customer will upon Patrick’s request vacate the berth without undue delay.

[2.3.6] Patrick Terminal’s January 2018 Standard Terms and Conditions Section 4.4 Customer indemnities deals with liabilities and indemnities relating the Customer and Patrick Terminals involving to damage to any real and personal property and any injury to or death of any person.

[2.4.1] Ship-operating container carriers such as Pacific International Lines enter into commercial agreements worldwide with container terminal operators such as Patrick Terminals to provide berthing space and stevedoring services to facilitate container cargo operations.

[2.4.2] The introductory paragraph in Patrick Terminals’ January 2018 Standard Terms and Conditions states:

“These standard terms and conditions together with the Quote or Rate Card are the terms and conditions on which Patrick Stevedores Operations Pty Limited (ACN 065 375 840) (Patrick) will provide stevedoring services, including discharge and delivery, receive and load, restow, tranship and lash/unlash of goods in ISO containers as further described in the Quote or Rate Card (Terminal Services) to the customer described in the Quote or Rate Card (Customer) and constitute the agreement between Patrick and the Customer (Agreement). These standard terms and conditions will prevail over the Quote or Rate Card in the event of any inconsistency.”

[3.3.12] At 0400 hours on 23 August 2018, Patrick Terminals’ Mr B Wood came to the vessel and handed the Chief Officer12 an Injury Notice (Patrick National Vessel Notice of Deficiencies). The notice included a description of the injuries to the Plaintiff and a comment that:

Please note that racks will not be used to stow lashing rods in the future.

Rods will be neatly stacked in walkways until required for lashing, or stowed in a suitable location if no load is planned for the subject deck.

[3.3.13] At 0640 hours on 23 August 2018, Patrick Terminals requested the KOTA LAMBANG’s crew remove all of the new lashing racks and stow the lashing bars neatly at the side of the walkways.

[3.3.14] On 23 August 2018, and following the incident, an Australian Maritime Safety Authority (AMSA) Inspector was on board conducting a Port State Inspection14. In the Inspection Report in a section titled OUTSTANDING DEFICIENCIES TO BE RECTIFIED was listed one finding:

6. Container lashing transverse walkways are blocked by lashing bars hanging from handrails. Action taken 17.

In the Deficiency Action Codes was:

# 17 rectify before departure.

[3.3.15] At 1415 hours on 23 August 2018, Patrick Terminals also requested that all the old lashing racks be removed.

[paragraphs 4.1.1–4.2.12 contain an explanation of cargo ships, shipping containers and lashing bars generally and specifically to the Kota Lambang]

[4.3.12] The Master and Owners of KOTA LAMBANG clearly thought it was necessary to supply lashing bar racks in Australian ports and ordered thirty racks additional to the forty-five that were on board, from when the ship was trading to Africa.

[4.3.13] The failed hanging racks are shown in Figure 15. The jaws of both racks have straightened, allowing the lashing bars stowed in the racks to fall. The weld on one rack has catastrophically failed. This weld failure possibly precipitated the lashing bars falling at one end and thus shock loading the other rack to its failure point and dropping all of the stowed lashing bars.

Figure 15 Hanging lashing bar racks reported to have been involved in the incident.

[4.3.15] The report of Gibson Minto & Aiton shows the failed lashing racks in place with at least sixteen lashing bars laying on the walkway deck. These are the bars reported to have injured the plaintiff. I am instructed that the KOTA LAMBANG’s long lashing bars weighed 23.9 kilograms. Sixteen bars would therefore weigh 382.4 kilograms. The number of bars on the deck indicates that the racks were nearly full at the commencement of unlashing operations.

[4.3.16] In her 16 November 2018 affidavit, the Plaintiff states21 that she was trapped under about 30 bars. In the photo of Figure 16, approximately 10 lashing bars are stored in one of the newly supplied racks. If there 30 bars stacked in the rack then it would have been filled to the top of the jaw.

[4.3.17] In respect of the lashing bar racks Mr Todorvski stated that:

“The other point that I wish to make is that on the night of Amie’s accident, the storage racks which I saw were full, or close to full, with lashing bars before we commenced. In most cases, the ship’s crew will clear the storage racks and place the surplus bars in dedicated purpose-built storage spaces on the sides of the vessel on the main deck. This allows the lashing gang a place to put the bars which they are removing from the containers. On this night, we had only been working for 10 minutes or so and already the storage racks that we encountered were already pretty full with lashing bars. It was not practical for us to put the bars we were unlashing on the walkway deck because the walkways are narrow and this constitutes a tripping hazard. It was also not practical for us to take the bars which we were removing and placing them in the dedicated storage spaces because this was on the main deck and below the level which we were working on.”

It would be unusual for a vessel that was loaded with lashed containers to have the racks full or close to full before the unlashing operation even commenced. The lashing bars should have been either attached to the containers or stowed in the racks on the main deck, leaving the racks empty and the walkways clear. Excess lashing bars are usually stowed away in the permanent racks at completion of discharge from the previous port by the stevedores. After unlashing for only ten minutes, the stevedores would not have filled up a rack with sixteen lashing bars.

Figure 16 Lashing bars stored in the Singapore supplied racks (photo supplied)

[4.3.18] Mr Todorvski’s statement contrasts with the Patrick Terminals Safety Officer Mr Little’s notes in the Port Botany Terminal Vessel Arrival Pre-Operations Checklist that the:

“Lashing racks were in the transverse walkways”

If Mr Little confirmed that the racks were in place, he should have confirmed that the racks were empty and ready to receive the lashing bars. If they were full, he should have advised the ship’s Chief Officer who could have arranged crew members to move the lashing bars or alternatively asked the Patrick Terminals stevedores to empty the racks before commencing unlashing.

[Paragraphs 4.4.1-4.4.7 contain a general summary of container unloading and loading procedure and responsibilities.]

[4.4.8] The container ship operator contracts the terminal operator to undertake all the elements of stevedoring including crane operations, and unlashing, discharging, loading and lashing of containers. It is up to the terminal’s line managers to direct their employees and ensure they work in a safe and productive manner. The responsibility for supervision of the unlashing gangs of stevedores lies with the stevedoring foreman who is engaged by the terminal operator. Stevedores may be dispersed to different locations to unlashing containers onboard the ship, as directed by the foreman during the pre-operational tool box meeting. It is the usual practice in port that if stevedores identify ship related problems associated with cargo operations, safety, or safe access then they can flag these with the ship’s Deck Officer who will address them with the duty crew member.

[Paragraphs 5.1.1-5.4.10 contain an overview and analysis of the regulatory framework surrounding shipping and stevedoring generally and specifically to the Kota Lambang.]

[6.1.2] It is my opinion that both Patrick Terminals and Pacific International Lines (Pte) Ltd (PIL) were a person conducting a business or undertaking (PCBU). This is spelled out in the 2016 Code of Practice on Managing Risks in Stevedoring (the Code) which is an approved code of practice under Section 274 of the Work Health and Safety Act (the WHS Act). A PCBU has the primary duty under the WHS Act to ensure that workers are not exposed to health and safety risks.

[6.1.3] However, it is my opinion that Patrick Terminals had a higher level of responsibility to its workers as a PCBU than PIL or the Master of a PIL vessel. Patrick Terminals is a long established business operating container terminals and stevedoring operations. It has direct management and control of its workers onshore and even when on board the wide range of ship which call at its terminals. It is Patrick Terminals’ duty to ensure that workers receive appropriate training and adequate supervision. The statements of Mr Todorovski and Mr Dunn indicate that Patrick Terminals was aware that KOTA LAMBANG was a hard vessel to work due to a complicated lashing plan involving many lashing bars. Patrick Terminals did not identify that the Plaintiff was, according to Mr Todorovski, a fairly new employee working on KOTA LAMBANG, and therefore requiring additional supervision.

[6.1.4] Patrick Terminals’ Mr Little completed a pre-operational checklist that was based on the Code’s guidelines. The results of inspection indicated the ship was suitable and acceptable to Patrick Terminals for container cargo operations. As the point of contact between the terminal and the ship, the ship’s Chief Officer was not requested to undertake any corrective actions following Mr Little’s inspection. At all times it was the role of Patrick Terminals to make the final safety inspection for KOTA LAMBANG and her fitness for safe stevedoring operations.

[6.1.5] Reasonable Masters and shipowners are required to ensure that their vessel is compliant, with International Conventions, Flag State legislation, Regulations and Orders as well as the particular maritime related legislation of a Port State such as the Navigation Act 2012, AMSA’s Marine Orders, Harbour Master’s Instructions and relevant best practice codes. By following these requirements, the Ship Owner, Master and Deck Officers fulfill their WHS Act obligations to the port they are visiting, the terminal operator and their stevedores.

[6.1.6] The Master and Deck Officers in charge of Port Watchkeeping have a variety of tasks and responsibilities to undertake to ensure the overall safety of their vessel. These tasks do not include the unlashing of containers. In fact, in Australia this work is preserved for the stevedores under maritime union rules as is cargo operations under Section 94 of the Navigation Act 2012. The supervision of individual stevedores undertaking unlashing operations is not the role of the Ship Owner, Master or Deck Officers but one for the terminal management and operations team. In my opinion that the Master and Deck officers of KOTA LAMBANG were undertaking their normal port watchkeeping routines in Port Botany to maintain the safety of their vessel.

[6.1.7] Patrick Terminals were contracted by PIL to provide line managers to manage and ensure their stevedores worked in a safe and productive manner. The stevedoring operation was under Patrick Terminal’s direct supervision consisting of the preoperational toolbox meeting, container gantry crane operations, unlashing, discharge, loading and lashing of containers. The responsibility for supervision of the unlashing gangs of stevedores lay with the stevedoring foremen engaged by the terminal operator. It is my opinion that Patrick Terminals were directly responsible for supervising and controlling their lashing gangs including that of Mr Todorvski and the Plaintiff.

[6.2.1] All container unlashing and lashing on KOTA LAMBANG and her sisterships must be conducted from transverse walkways at Cargo Hatch Lid level between the container stacks. This class of vessel were not built with lashing bridges which are multi-level walkways between the container stacks. Because of that and the requirements of the Cargo Securing Manual, all the lashing bars required from the multiple tiers of containers must be removed from and placed onto the single walkway.

[6.2.2] The normal practice is for stevedores to temporarily place the lashing bars on the deck, pushed to once side to allow a clear walkway. The containers for discharge at that port are unloaded and then the ship is back loaded with containers. The lashing bars placed temporarily on the walkway are then reused to lash the loaded containers. If no cargo is to be backloaded then the lashing bars are moved to the racks on the main deck. If left on the walkways they could slide as the ship rolls and be lost overboard. The Code’s Section 6.2 demonstrates this as accepted practice.

[6.2.3] In respect of KOTA LAMBANG, and presumably her sister ships, Patrick Terminals required the Owners and Masters to fit lashing bar racks that hung off the walkway handrails. The potential catalyst for Patrick Terminals’ request is contained in the statement of Mr Dunn, insofar as the Union Safety Committee considered the lashing bars left on the walkway as a tripping hazard and required the vessel to provide more storage racks.

[6.2.4] KOTA LAMBANG had been on international voyages for the previous twelve months before being scheduled to visit Australian ports as part of the AA1 Liner Service. Prior to departing Singapore, the Chief Officer specifically ordered thirty additional hanging lashing bar racks for Australian Ports. These were to complement the reported fortyfive racks remaining on board.

[6.2.5] Based on my review of the documents supplied, and the previous international trading patterns of KOTA LAMBANG, it is my opinion that Patrick Terminals required PIL to supply and fit hanging lashing bar racks to KOTA LAMBANG. However, before doing so, they should have engaged in a risk assessment as required by the Code’s Section 5.7 into whether suspending the lashing bars presented as a risk in respect of falling objects. If they had done so they would have identified that hanging lashing bars from racks suspended from the handrails was not best practice and nor something recommended by the Code’s Section 6.2. A classic case of “revenge effect” occurred whereby attempts to reduce one risk end up realising another risk with a potentially greater consequence.

[6.2.6] In respect of hanging lashing bar racks from hand rails, it is my opinion that this was not best practice nor a suitable solution to lashing bar storage. Hand rails are generally designed and constructed as a physical safety barrier and not as a structure designed to support lashing bar racks holding multiple lashing bars weighing hundreds of kilograms of lashing bars. The use of hanging lashing bars racks was the required practice aboard KOTA LAMBANG (and probably her sisterships) at Patrick Terminals’ Australian Ports. Patrick Terminals’ Port Botany check list indicated that their safety team explicitly checked to ensure the racks were in place.

[6.2.7] The Patrick Terminal’s checklist should have also ensured that the racks, if used, were empty at the commencement of operations to avoid stevedores placing excessive numbers of lashing bars in a set of racks, no matter what the racks’ design. This would have avoided stevedores placing too many lashing bars in the racks risking them spilling and falling to the deck. I have personally observed lashing bars fall to the deck from an overly full rack. It is my opinion that Patrick Terminals did not undertake the Code’s Appendix C required safety checks adequately.

[6.2.8] The design of the lashing bar racks supplied in Singapore for KOTA LAMBANG was similar to one other lashing bar rack already being utilised on KOTA LAMBANG. The main difference being a slightly increased jaw size on the rack and the use of a smaller gauge of round bar, albeit with heavier flat bar to compensate. Of the two racks that failed, as shown in Figure 16, one has a weld that has failed indicating a latent defect at the point of manufacture.

[6.2.9] Based upon the documents supplied, it is my opinion that the failed racks had many lashing bars in them at the commencement of unlashing operations. In my opinion this constitutes a failure by Patrick Terminals to identify the work area had suitable storage areas for tools and equipment including lashing bars as required by the Code’s Section 4.1.

[6.2.10] AMSA ordered the removal of all the hanging lashing bar racks as one of their Port State Control inspection findings. It indicates that the hanging racks should never have been fitted in the first instance. The Maritime Union Safety Committee and Patrick Terminals exceeded their authority and jurisdiction in requiring a vessel to fit a device that was potentially unsuitable for its intended purpose, irrespective of its design and one not recommended under the Code.

[Paragraphs 6.3.1-6.3.9 identify alleged issues with the report of Mr Dubos dated 16 May 2022.]

[6.4.1] In respect of the temporary storage of lashing bars during the period between unlashing and lashing operations, the use of fixed lashing racks is acceptable. Alternatively, lashing bars can be laid on the deck and stacked to one side as shown in Figure 18 of the stevedoring code and the instructional video links of Paragraph 4.2.9. The use of hanging racks attached to the transverse walkway handrails was required by the Maritime Union Safety Committee and Patrick Terminals in Australia. This amounted to a poorly thought-out workaround to avoid the tripping hazards associated with laying the lashing bars on the deck.

[6.4.2] If there are excessive numbers of lashing bars on the walkways then stevedores should move them to the fixed main deck racks. The workaround using hanging racks did not seem to consider the weight of many lashing bars being transferred to the handrails via the racks. Nor was the blocking of walkways by the hanging lashing bars considered. After the incident, AMSA identified the risks associated with the use of hanging lashing bar racks and issued a deficiency notice prohibiting their use.

[6.4.3] It is my opinion that any change to a standard operation, such as stowing lashing bars in hanging racks instead of laying lashing bars on deck, should be undertaken following a risk assessment. This is supported by Section 1.3 of the stevedoring code. The risk assessment should identify any additional risks associated with the change. In the case of KOTA LAMBANG, the risks associated with the use of hanging racks for the temporary stowage of lashing bars should have been assessed by PIL and Patrick Terminals and then sent to the Maritime Union Safety Committee to show that their requirement for hanging lashing bar racks was inadvisable.”

89. The final sentence of par 1 and the whole of par 2 are objected to that they are statements of law. I agree that they are statements of law. However, it is my view that those statements are not made to prove their accuracy, but to contextualise Captain King’s reports and to make known the standards against which he forms his opinions. The objections are dismissed.

90. The second sentence of par 3 is objected to on the basis that it is inaccurate. So, I make an order under s 136 of the Evidence Act to limit the use of that assertion to being the factual basis on which Captain King forms his opinions. The objection is dismissed.

91. The final sentence of par 4 is objected to on the basis that it is irrelevant. I do not see how it is irrelevant as it bears on the question of whether the second defendant breached their duty of care to the plaintiff. The objection is dismissed.

92. The final sentence of par 5 is objected to on the basis that it is a “non-expert conclusion”. That sentence is not opinion evidence, it is merely a statement of fact. Therefore, the exclusionary rule does not apply. The objection is dismissed.

93. Paragraphs 2.3.3-2.3.6 are objected to on the basis that they are irrelevant. I agree with this view. It is not clear on what basis the second defendant’s ‘Terms and Conditions’ are relevant — do they form part of its employment contract with the plaintiff? Do they enlarge or define the second defendant’s duty of care? The objection is upheld.

94. Paragraphs 2.4.1-2.4.2 are objected to on the basis that they are irrelevant. For the same reasons as above, I agree. The objection is upheld.

95. Paragraphs 3.3.12-3.3.15 are objected to on the basis that they are irrelevant. These paragraphs record events which occurred after the injury, and therefore, in this factual matrix, are irrelevant. The objection is upheld.

96. Paragraphs 4.1.1-4.2.12 are objected to on the basis that they are irrelevant. Those paragraphs contain a general overview of container stowage. I agree that those paragraphs are irrelevant and unnecessary to understand Captain King’s report. The objection is upheld.

97. Paragraph 4.3.12 is objected to on the basis that it contains a non-expert conclusion. I agree, it is lay opinion; that is, not formed from specialised knowledge based on training, study or experience. The objection is upheld.

98. Paragraph 4.3.13 is objected to on the basis that it is “beyond expertise”. In cross-examination, Captain King conceded that he had no welding or fabricating qualifications, and that he lacked expertise to comment on welds (T205-206). The objection is upheld.

99. The last sentence of par 4.3.15 is objected to on the basis that it is “beyond expertise”. Although this is true in a sense, it could more accurately be described as lay opinion. The objection is upheld.

100. Paragraph 4.3.16 is objected to on the basis that it is “beyond expertise”. The objection is upheld on the basis that it is lay opinion.

101. The final sentence of and the phrase “by the stevedores” in par 4.3.17 is objected to on the basis that they are “beyond expertise”. I do not see how this is the case given that Captain King is an expert mariner and such an opinion is clearly based on his specialised knowledge as such. The objection is dismissed.

102. Paragraph 4.3.18 is objected to because it is “not expert opinion and irrational”. At present, I do not see why the opinion expressed in par 4.3.18 is irrational. Further, an opinion that a shipworker should have acted in a certain way clearly emerges from the specialised knowledge of an expert mariner. The objection is dismissed.

103. Paragraphs 4.4.1-4.4.7 are objected to on the basis that they are irrelevant. Those paragraphs contain an overview of container discharge and loading operations and outline the responsibilities of certain crew members in this process. The objection is dismissed but for the quotation in par 4.4.6 from the second defendant’s ‘Sydney Autostrad Terminal Welcome Information for Vessels’, which is irrelevant; for that part, the objection is upheld.

104. Paragraph 4.4.8 is objected to on the basis that it is a legal opinion. I do not think that par 4.4.8 contains a legal opinion, although it could be read that way. Rather, it explains general practice on container ships in relation to duties and responsibilities. Captain King is competent to provide an opinion on that point, and that opinion is relevant. The objection is dismissed.

105. Paragraphs 5.1.1-5.4.10 are objected to on the basis that they contain a legal opinion. I agree that those paragraphs contain an extensive and impermissible legal exegesis beyond what could be considered necessary to contextualise Captain King’s evidence. Captain King’s view of the law in this regard is irrelevant and therefore inadmissible. The objection is upheld.

106. Paragraph 6.1.2 is objected to on the basis that it contains a legal opinion. I agree, Captain King is carrying out a process of statutory construction. His view of the meaning of the law is irrelevant and so inadmissible. The objection is upheld.

107. Paragraph 6.1.3 is objected to on the bases that it contains a legal opinion and is beyond expertise. The paragraph attempts to mark out the metes and bounds of the second defendant’s common law duty of care. Captain King’s legal opinion on this matter is irrelevant and hence inadmissible. The objection is upheld.

108. Paragraph 6.1.4 is objected to on the basis that it is irrelevant. That paragraph deals with Captain King’s interpretation of the allocation of responsibility between the first and second defendants in his capacity as a master mariner. The objection is dismissed.

109. Paragraph 6.1.5 is objected to on the basis that it is irrelevant. I agree that the opinion expressed in par 6.1.5 is irrelevant and teeters on legal exegesis. The objection is upheld.

110. Paragraph 6.1.7 is objected to on the basis that it is a legal opinion and that it is irrelevant. I disagree that par 6.1.7 contains a legal opinion, rather, it contains Captain King’s opinion, as a master mariner, on the structure and division of responsibility of peoples involved in container shipping. The objection is dismissed.

111. The last sentence of par 6.2.1 is objected to on the basis that it is a matter of legal construction and beyond expertise. Although the opinion expressed in that sentence involves legal analysis, it also involves questions of fact the determination of which almost necessarily require marine expertise. The objection is dismissed.

112. Paragraph 6.2.2 is objected to on the basis that it is irrelevant. I disagree with this contention. Captain King is setting out the regular practice surrounding the stowage of lashing bars. This is relevant to the case and requires the assistance of expert evidence. The objection is dismissed.

113. Paragraph 6.2.3 is objected to on the basis that it is “beyond expertise”. That paragraph describes the relationship between the first and second defendants with respect to the lashing racks. I do not see how that is beyond Captain King’s expertise. The objection is dismissed.

114. Paragraph 6.2.5 is objected to on the basis that it is beyond expertise. It considers a counterfactual scenario of what would have happened had the second defendant conducted themselves properly. This is clearly within Captain King’s expertise as an expert mariner. The objection is dismissed.

115. Paragraph 6.2.6 is objected to on the basis that it is irrelevant. That paragraph discusses handrails and the hanging of lashing racks from them. Captain King disapproves of this practice. It is not clear at this stage whether this is relevant to the issues at hand, but it probably is. As a result, the objection is dismissed.

116. Paragraph 6.2.7 is objected to on the bases that it is beyond expertise and irrelevant. The paragraph contains a counterfactual scenario of what would have happened had appropriate directions been given with respect to the lashing racks. This is relevant to causation and is clearly within Captain King’s expertise. The objection is dismissed.

117. Paragraph 6.2.8 is objected to on the basis that it is beyond expertise. The paragraph contains a comparison of the different lashing racks on board their ship, and particularly their structure and composition. It speculates on the reason for failure of the weld. Captain King, as noted above, does not have specialised knowledge in welding. The objection is upheld.

118. Paragraphs 6.2.9-6.2.10 are objected to on the basis that they are speculation. That an opinion is speculative is not a ground for inadmissibility. At most, the fact that an opinion is speculative could go to relevance (evidence is relevant if it could rationally affect the assessment of the probability of a fact in issue: s 55 Evidence Act). The opinions are not so speculative that they are irrelevant. The objections are dismissed.

119. Paragraphs 6.3.1-6.3.9 are objected to on the basis that they are not expert opinion. Those paragraphs contain an engagement with the first report of Mr Dubos and also contain legal analysis. It is not explained why these paragraphs are not expert opinion. They contain legal analysis, but it seems to me, only so much to engage with the report of Mr Dubos. The objection to those paragraphs is dismissed.

120. Paragraphs 6.4.1-6.4.3 are objected to on the basis that they contain conclusions beyond expertise. Those paragraphs contain Captain King’s analysis on good practice with respect to lashing operations. He is well-qualified to provide analysis on this, and this is clearly relevant to the case. The objection is dismissed.

Resolution

121. The objections to pars 2.3.3-2.3.6, 2.4.1-2.4.2, 3.3.12-3.3.15, 4.1.1-4.2.12, 4.3.12-4.3.13, 4.3.15-4.3.16, 4.4.1-4.4.7, 5.1.1-5.4.10, 6.1.2-6.1.3, 6.1.5 and 6.2.8 of the King Report are upheld. The rest are dismissed.

Maybury Report 1

122. The first defendant objects to parts of the section entitled ‘Cause of Incident’ and to parts of the section entitled ‘Remarks’ on the bases that Mr Maybury ventures opinions outside his expertise and that no path of reasoning is revealed. Those sections are reproduced below. The sentences objected to are underlined. I have added paragraph numbers for convenience but note they do not correspond with the numbering in the actual report:

“CAUSE OF INCIDENT:

[1] During our attendance we carried out an assessment of the portable lashing racks and in particular the units which were involved in the reported incident. It appears over time the ongoing fabrication of the portable lashing racks has led to less steel reinforcement of the units with notably less steel and smaller diameter sections utilised. The racks that were involved in the incident were reinforced on the internal mouth with approx 10mm steel round bar unlike previous racks of that type which were reinforced with approx 20mm steel round bar.

[2] The failure of the lashing rack can be attributed to the unfortunate oversight of applying insufficient steel reinforcement and subsequently lowering the capacity of the racks to withstand the required load.

[3] In addition, it could not be substantiated that all the portable lashing racks on the vessel were rated to hold the required capacity of the stacked lashing bars. Furthermore, we suspect that the walkway railings are also not rated to withstand the force of the fitted portable lashing racks when stacked with lashing bars.

REMARKS:

[4] In regards to the walkway and the required clearances, at the time of build the vessel essentially complied with Marine Orders 32. In relation to current compliance with Marine Orders 32 (December 2016) no detailed measurement exists, with the order referring to the International Maritime Organisation (IMO) section 7.8.3 of the International Labour Organization (ILO) Code which stipulates ‘Container Top Working’ and does not provide clear detail of the walkway clearances.

[5] Marine Orders 42 which also enforces the Cargo Stowage and Securing (CSS) Code advises a minimum clearance of access way / transit area is 600mm wide.

[6] We suggest all portable lashing racks are removed from operation and a safe alternate solution be sourced from stevedores and vessel staff.

[7] It is understood that the vessel’s securing manual requires each container cell to be fitted with 4 long lashing bars and 2 short lashing bars. On account of the above requirement and by necessity loose lashing equipment would need to be stored on the fore / aft walkway storage racks.”

123. The first defendant seeks an order under s 136 of the Evidence Act to limit the use of the impugned sentence in par 1 to demonstrating the author’s observation. However, the objected-to sentence begins with “it appears”, so it is already internally limited to the author’s own observation. No order will be made.

124. Paragraphs 2 and 3 are objected to on the basis that Mr Maybury has a lack of expertise or that there is “insufficient/no path of reasoning”. Mr Maybury has extensive qualifications which have given him specialised knowledge to be able to form opinions on the quality of lashing racks (with which pars 2-3 concern themselves). I draw attention to two particular qualifications of his: Diploma in Cargo Surveying — Expert Stowage Lashing & Securing Surveys; and Advanced Diploma in Cargo Surveying — Expert Heavy Lift & Project Cargo Inspection. As to the contention that there is an insufficient or no path of reasoning, Mr Maybury clearly states in the preceding paragraph that his opinion is based on physical inspection of the ship and the lashing racks. The objections are dismissed.

125. Paragraph 6 is objected to on the bases that it is not an opinion within s 79, that Mr Maybury has a lack of expertise, that there is “insufficient/no path of reasoning” and that it is prejudicial. Mr Maybury attended the ship; and there is ample material setting out the bases on which he comes to the conclusion that the racks should be removed. I do not see why the conclusion is prejudicial. The objection is dismissed.

Resolution

126. All objections to Maybury Report 1 are dismissed.

Maybury Report 2

127. The first defendant objects to pars or parts of pars 2.1-2.7, 3.19-3.21, 3.22-3.25.1, 4.3.1, 4.8.1, 4.10.1, 4.15.1, 4.16.1 and 5.2 on the various bases that they are speculative, that Mr Maybury does not have the relevant expertise, or that the paths of reasoning through which the opinions were achieved are not adequately set out. Paragraph 3.20 is objected to on the basis that it is hearsay. Those paragraphs are as follows. Where only part of the paragraph is objected to, I underline those parts:

“[1.10] As a consequence of the incident / injury, the AMSA report indicates that all the newly supplied lashing storage racks be removed from all locations around the vessel.

2. CAUSE OF THE PLAINTIFF’S INJURY

[2.1] On review of the information provided to me, the injury to the Plaintiff is attributed to the failure of the provided portable lashing bar storage racks in the specified area at Bay 19/21 during unlashing operations on the 22nd August 2018 at 2145hrs on board m.v. "Kota Lambang".

[2.2] Of note is the reduction in gauge of the reinforced steel applied during the fabrication of the subject lashing bar storage racks which was provided / delivered to the vessel on the 11th August 2018 in Singapore.

[2.3] Comments from our previous report ref: 16-877 under ‘Cause of Incident’ dated 30th August 2018 extract notes are stated in italics below:

[2.4] It appears over time the ongoing fabrication of the portable lashing racks has led to less steel reinforcement of the units with notably less steel and smaller diameter sections utilised. The racks that were involved in the incident were reinforced on the internal mouth with approx 10mm steel round bar unlike previous racks of that type which were reinforced with approx 20mm steel round bar.

[2.5] The failure of the lashing rack can be attributed to the unfortunate oversight of applying insufficient steel reinforcement and subsequently lowering the capacity of the racks to withstand the required load.

[2.6] In addition, it could not be substantiated that all the portable lashing racks on the vessel were rated to hold the required capacity of the stacked lashing bars. Furthermore, we suspect that the walkway railings are also not rated to withstand the force of the fitted portable lashing racks when stacked with lashing bars.

[2.7] From our initial survey and the information presented at that time we are of the opinion the portable lashing bar storage racks provided to the vessel were not ‘fit for purpose’.

David Dubos Report

[3.19] Pacific International Lines as the PCBU had both the initial and immediate involvement of the procurement of all lashing storage racks inclusive of the design factors and constraints.

[3.20] Sections 18 and 65 of the report states: My instructions indicate that the storage rack that collapsed and led to the Plaintiff being struck by a load of lashing bars was faulty and not fit for purpose being insufficiently reinforced.

[3.20.1] It was apparent that the provided lashing storage rack was not fit for purpose given the outcome from our initial survey report ref: 16-877.

[3.21] Section 69 of the report: - In my opinion, Pacific International Lines through its own devices including the arrangement of effective provision of safe equipment should have identified that the storage rack in question was not fit for purpose and not of sufficiently strong construction. Pacific International Lines should then have taken steps to the procurement and installation of sufficiently robust lashing bar storage racks.

[3.22] Section 73 of the report: Pacific International Lines, in my view, was in a position to ensure that it had safe storage systems in place at all times. This includes safe storage of all steel lashing bars, the non-overloading of storage racks and the inspection of storage racks to ensure that they were fit for purpose, and taken out of service if they were not fit for purpose.

[3.22.1] Prior to the arrival of the vessel Pacific International Line had direct knowledge and observation of the lashing storage racks in question and the quantity stored within. There was sufficient time to identify and compare the existing and newly fabricated lashing storage racks and ensure their suitability for the task in hand.

[3.23] Section 93 of the report: It is apparent to me that risks were not minimised associated with falling objects by Pacific International Lines. There were reasonably practicable measures which could have been undertaken by Pacific International Lines to prevent the Plaintiff’s accident. Pacific International Lines did not provide a sound and fit for purpose storage rack for steel lashing bars, on my instructions.

[3.23.1] Pacific International Lines provided the instruction regarding the fabrication detail and subsequently acquired / accepted the delivery of the storage racks onto its vessel.

[3.24] Section 122 of the report: Pacific International Lines did not provide and maintain a work environment without risk to health and safety, on my information. It did not provide safe systems of work and the safe storage of steel lashing bars. Pacific International Lines did not provide effective information, instruction and supervision to protect the Plaintiff from risks to her health and safety, on my information.

[3.25] Section 127 of the report: In my opinion, Pacific International Lines had duties to directly identify hazards in its vessel to workers such as the Plaintiff, on 22 August 2018. Pacific International Lines should have ensured that engineering, administrative and other safety controls were implemented for safe storage of steel lashing bars on its vessel, to reasonably and prudently control safety and injury risks.

[3.25.1] As previously mentioned, Pacific International Lines had direct initial and ongoing contact with the manufacturer engaged to supply the lashing racks. During procurement of any storage rack, a thorough engineering evaluation should include both joint party risk assessments and onward distribution of effective information and would have been of the utmost importance in identifying potential hazards and allow implementation of any applicable control measures.

**TMC Marine Report [**Captain King’s Report]

[4.3.1] With the action of procuring the portable lashing storage racks and later accepting the same on delivery to the vessel at Singapore, the vessel has acknowledged the lashing storage racks as being part of the vessel’s equipment and their suitability for the task in hand.

[4.8.1] On hanging the lashing storage racks (by vessel staff) on the handrails, it is my opinion that the vessel and/or PIL would have carried out their due diligence in ensuring the fencing hand rails and assiocated areas were of suitable strength / capacity to withstand such significant force of the loaded portable lashing storage racks. With the portable lashing storage racks already positioned on the handrails by vessel staff on the KOTA LAMBANG it would indicate the vessel and/or PIL tacitly approved / accepted this being the method of application and use.

[4.10.1] It is my opinion, the failure of the lashing storage racks is attributed to both inadequate structural design and inadequate fabrication of the racks - in particular the smaller gauged units. The failure of one weld is insignificant given that the overall structural capacity and suitability of the lashing storage racks was not fit for purpose, this given their failure at the time of the incident.

[4.15.1] It is in my opinion the vessel and / or PIL representative would have had previous communication regarding the procurement of these lashing storage racks. During the initial design consultation regarding the structural design and limitations of their use, the instruction should have been conveyed between the vessel / PIL and the manufacturer. With the ship issuing a requisition for the racks and later accepting the delivery of the same suggests they accepted their design, suitability and being fit for their purpose.

[4.16.1] It is my opinion that if PIL carried out their due diligence and it was found that the racks were not suitable, they well within the right to decline the introduction of the portable lashing storage racks given that the equipment was for use on their vessels. During the procurement of the racks, PIL has a direct duty of care to vessel staff, stevedores and other visitors to the vessel, to ensure equipment is and was fit for purpose.

Remarks

[5.2] It is my opinion, with PIL actioning the initial communication regarding the fabrication of the lashing storage racks and later accepting the delivery of the items to the vessel, they have directly taken accountability of the equipment and acknowledges their purpose. It is considered that prior to the fabrication PIL would have done their due diligence (including but not limited to a risk assessment) to ensure the equipment (which was for use on their vessel) was structurally sound and fit for purpose.”

128. Paragraphs 2.1-2.7 are objected to on the bases that they contain opinion “not within s 79”, that Mr Maybury has a lack of expertise, and that there is “insufficient/no path of reasoning”. As expressed, Mr Maybury has ample specialised knowledge. Paragraphs 2.1-2.7 are mostly replicated from the first report of Mr Maybury. I dismissed the objections made in that context, and the objections are also dismissed here.

129. Paragraphs 3.19-3.25.1 deal with the first report of Mr Dubos. Many of the paragraphs therein are objected to on the basis that they are hearsay. However, they are adduced to be commented on, not to prove the truth of their contents. They are not hearsay. The objections to pars 3.20, 3.21, 3.22, 3.23, 3.24 and 3.25 are dismissed.

130. The first defendant objects to pars 3.19, 3.20.1, 3.22.1, 3.23.1, 3.25.1 on the bases that they are not expert opinion evidence within s 79, that Mr Maybury has a lack of expertise, and that there is an “insufficient/no path of reasoning”. Those paragraphs comment on passages from Mr Dubos’ first report. These objections are all dismissed.

131. Paragraph 4.3.1 is objected to on the same bases. I have held that the passage of Captain King’s report on which it comments (namely, par 6.1.5) is inadmissible. It follows that par 4.3.1 is also inadmissible. The objection is upheld.

132. The last sentence of par 4.8.1 is objected to on the basis that it is not expert opinion evidence within s 79. The plaintiff fails to identify why this is the case. The objection is dismissed.

133. Paragraph 4.10.1 is objected to on the bases that it is not expert opinion evidence within s 79, that Mr Maybury has a lack of expertise, and that there is an “insufficient/no path of reasoning”. That paragraph comments on the structural design of the lashing rack. Mr Maybury has extensive seafaring and cargo-related experience. He is clearly competent to give an opinion in these terms. The objection is dismissed.

134. Paragraph 4.15.1 is objected to on the basis that it is ‘speculative, conclusion, opinion not within expertise’. The paragraph reconstructs what might have happened when the first defendant was procuring the lashing racks. I agree that this paragraph is so speculative that it is irrelevant. The objection is upheld.

135. Paragraph 4.16.1 is objected to on the same basis. Again, I agree that the paragraph is so speculative that it is irrelevant. The objection is upheld.

136. Paragraph 5.2 is again objected to on the same basis. I agree that the paragraph is so speculative that it is irrelevant. The objection is upheld.

Resolution

137. The objections to pars 4.3.1, 4.15.1, 4.16.1 and 5.2 of Maybury Report 2 are upheld. The rest are dismissed.

Joint report

138. The plaintiff objects to parts of questions and answers 1, 6-8, 10-13, 18 and 20. The first defendant objects to the whole of questions and answers 1 (except Captain King’s opinion), 2, 5, 6-10 (except Captain King’s opinion) and to Mr Dubos’ answers to questions 14, 17, and 19. Those questions and answers are as follows. The plaintiff’s objections are in bold while the first defendant’s objections are underlined:

“1. Why did the hooks not restrain or hold the lashing bars in position?

MR DUBOS: The rack failed due to poor not fit for purpose specification, manufacture and supply as set out in my three reports to this matter.

MR MAYBURY: The racks failed as they were inadequately constructed and not fit for purpose.

CAPT. KING: There is a latent defect in the manufacture as well and the fact that the racks supplied were not what were ordered, which allowed more bars to be put in them. I am using an incident investigation framework looking at the immediate and underlying causes for failure. The immediate cause was a weld on a rack that was not as ordered and as a result not capable of holding the number of lashing bars that were placed in it.

MR DUBOS: I don't think I have enough information to say there was a failure of a weld.

CAPT. KING: The immediate causation was the failure of a weld of the lashing bar hooks that overwhelmed the hooks for the load applied to them. This constituted a latent defect in the manufacture process. The underlying cause was the hooks were not supplied as requested by the ship and where more lashing bars could be placed in them than what their capability of their capacity was to hold. The underlying cause includes a failure to risk assessment before fitting lashing bar racks to hand rails.

MR MAYBURY: I found that the hooks did not restrain or hold the lashing bars in position, in my opinion, because they were inadequately constructed and not fit for purpose.

2. Did the Store Requisition when read in conjunction with its accompanying Photograph entitled ‘Hook Used For Keeping Lashing Bars In Australian Ports’ omit any material information that should have been specified to the fabricator? If so, what was omitted and in what respects was it material?

The experts stated they do not have any providence as to the origins of the photograph of the lashing bar rack reportedly supplied in the requisition order.

CAPT. KING: I am unable to answer the question because the information supplied is inadequate to provide a meaningful answer to it.

MR DUBOS: As set out in my reports to this matter, it omitted thickness of steel at a reinforcing bar. Information provided to me indicates that the flimsy size of this rack potentially may have led to the failure and collapse of the rack that struck and injured Ms Jackson. I have no information regarding the original source of the photograph used with the requisition.

CAPT. KING: No one involved in the requisitioning or the use of the rack is an engineer. At a fundamental operational level, the rack only had to be sufficiently robust to carry the number of long lashing bars that could be stacked in it.

MR MAYBURY: I don’t know where the photo, “type of hook used for keeping lashing bars in Australian ports”, where it originated from, the source of that, and its relationship with the requisition, how that’s originated for comparison.

5. What material differences, if any, can be observed when comparing the hooks depicted in photograph no. 4 of the Gibson Minto report dated 30 August 2018 and pages 7, 8 and 9 of the Castellino Marine report (undated) with the ‘old hooks’ depicted in photographs no.2 and no.3, in the Gibson Minto report dated 30 August 2018 and pages 5 to 8 of the Castellino Marine report (undated).

MR MAYBURY: The hooks in photo 4 of the initial GM report and pages 7 to 9 of the Castellino marine report, visually appear of lighter construction unreinforced and constructed from a thinner gauge steel compared to the old hooks shown in photographs 2 and 3 of the GMA report and pages 5 to 8 of the Castellino Marino report. The older hooks visually appear with thicker reinforcement, stronger construction and a larger gauge steel utilised. There are material differences you can only go with based on appearances.

MR DUBOS: Regarding Photo 4 in the Gibson Minto original report, see the answer to Question 4 above. Pages 7, 8 and 9 of the Castellino Marine report were photos taken on board the ship. Page 7: the mouth opening appears to be wider than 150 millimetres or 180 millimetres but not measured. Page 7: the mouth opening appears much wider than the existing storage rack and also steel plate thinner on the new rack. Page 9: no basis of measurement. Page 10: damaged racks post accident = mouths are totally open and deformed. Photos 2 and 3 of the Gibson Minto report, photo 2 is of an old rack, the width mouth opening is 120 millimetres only and the length is 720 millimetres (longer). Photo 3 in the Gibson Minto report is of an old rack- the width of the mouth opening is 120 millimetres only and the length is 700 millimetres (longer). Pages 5 to 8 of the Castellino Marine report: same as the above comments in this section.

CAPT. KING: The newly supplied racks from Singapore per the requisition order appear to be wider in the jaw than the existing racks. The bracing of the newer racks uses rod rather than flat bar. Visually they are different dimensions and different construction methods.

6. What steps were reasonably available to the first defendant prior to ordering the hooks to ensure that the fabricator was placed in a position to produce hooks that would be fit for purpose?

MR MAYBURY: The first defendant could ensure the fabricator had the skill and the expertise to design a suitable lashing storage rack then provide detailed specifications, engage an engineer, if required, supply technical drawings and, if needed, conduct a risk assessment.

MR DUBOS: Pacific International should have examined existing racks and clearly specified at least reinforcing bar width and potentially greater thickness of steel plate; also a smaller mouth opening (potentially 120 millimetres) and greater length could have been specified. Pacific International to estimate a typical load weight of lashing bars to be placed at capacity in the racks and also specify a safe working load for the racks.

CAPT. KING: When the request came through to the owners from the stevedores to fit lashing bar racks and the transfer walkways, a risk assessment should have been undertaken or a workshop held between the owners and the stevedores. The risk assessment could have determined if this in fact was the best solution and to see what the consequences of fitting racks like this to the handrails were. There are lashing bar racks, permanent racks on this vessel on the port and starboard main deck just not between the container stacks. If a problem is identified, the best way to work through it is to look at what the hazards are. Other options being: leaving the bars on the walkways or moving them to the main deck permanent lashing bar tacks and determining what the best solution is to take a risk-based approach. If that had occurred, we would not be talking about whether there was a latent defect in the racks supplied of whether the purchase order was adequate because we would have engineered out all those risks in the initial management phase and therefore the racks supplied would have been fit for purpose and that may include not even attaching them to the top of the handrails which were not designed for such purpose.

7. Should the first defendant have taken such steps?

MR DUBOS: Yes.

MR MAYBURY: Yes.

CAPT. KING: Yes, they should have taken the steps I outlined in question 6.

8. Did such steps include engaging an engineer to provide detailed specifications for the hooks? If yes, what form would such specifications have taken and what would they have included?

CAPT. KING: If we followed the pathway I suggested in question 6, that would have occurred because it would have been identified in the risk assessment, that the handrails were not designed for hanging lashing bar racks from, as requested by the stevedores. An alternative solution should have been sought and that might have included the engagement of an engineer. That is not just for the hooks, it’s for the whole process. That should have been done in cooperation with the stevedores and the owners.

MR MAYBURY: On the first part of the question not to my understanding, the part about engineers is outside my area of expertise.

CAPT. KING: We don’t know who drew up that original picture of the hook that was photographed and then asked to replicate. That could have been designed by an engineer, or not. We don’t have enough knowledge on that.

MR DUBOS: My answer is, yes, but use Pacific International internal staff or engage an appropriate person or firm to provide detailed specifications. Specifications to include thickness of steel plate, thickness of reinforcing bar, mouth opening widths and a safe working load limit. Such specification to be calculated using engineering formulae and based on examination and specifications for older racks in addition.

CAPT. KING: I don’t know, because we don’t have the information as to whether an engineer was engaged to design the original racks pictured in the requisition order. In my opinion, the specification of the racks is a secondary consideration to the greater picture of the assessment of the suitability of hanging lash and bar racks from handrails on the transverse walkways of a container ship that wasn’t designed that way.

9. If an engineer had been engaged, what information would the engineer have likely required from the first defendant so as to design a hook that would be fit for purpose and through what means could that information have been provided to the engineer?

CAPT. KING: Assuming that the risk assessment undertaken between the stevedores and the ship owner found that the use of a lashing bar rack suspended from the transverse handrails were suitable, then the information provided to the engineer could have been to require the engineer to design a rack that was capable of supporting x number of the longest and heaviest lashing bars being used on the vessel.

MR DUBOS: Information such as detailed specifications of older racks used on the ship and other ships, and access to examine older racks and estimates of the weight of lashing bars and the maximum number of bars to be stored in each rack. This is best provided by meeting staff and/or engineers on the ship in situ to examine existing racks and bars.

MR MAYBURY: The engineer engaged would provide the requirements for the fabrication of the racks. I only assume the engineer would likely have required information on the weight and the number of lashing bars to be stored, the location of the storage equipment and the method of attachment and if there are space constraints and any operation handling practices. The information could be provided through means of photographs, vessel layout plans and consultation with personnel directly involved.

10. If an engineer had been engaged to document appropriate specifications for the fabrication of the hooks what reasonable measures would have been available to the first defendant to ensure the specifications were brought to the fabricator’s attention and that the hooks complied with the specifications? Would the specifications have likely included a requirement for strength testing and/or certification before their delivery to the first defendant?

CAPT. KING: Given the nature of the racks and if we had followed all the processes that I alluded to in question 6 in terms of a risk identifications and risk assessment between the stevedores and the ship owners, and it were to be determined the hooks were to be used from the handrails were they sufficiently strong and fit for carrying lashing bars, then the specification for the hooks should have capable of carrying x number of lashing bars of the longest and heaviest dimensions and weight. As to whether those specifications would have required a strength test, an engineer should have been able to calculate the capacity of a designed and constructed lashing bar rack, and the only test I would have suggested rather than a load test is a weld verification using non-destructive testing methods. I do not think a load strength per se would be required because the other steps should be adequate to supply something that was required. There is a difference between static loading and dynamic loading when the rack is holding a lashing bar as opposed to one being dropped into it, which is quite often the case and you drop the other end in. It needs to be over engineered to allow for the dynamic load as well, which you couldn’t do in a strength test, you’ve just got to over engineer it.

MR DUBOS: Consulting the engineer or other qualified person, Pacific International should set specifications out fully in requisition for the supply of the racks. The requisition specifications could have set out a requirement for strength testing, following inspection of existing racks, the weights of lashing bars and the maximum number of bars to be stored in each rack.

MR MAYBURY: The engineer would provide the requirements needed again, as I referred to in question 9. The first defendant could have ensured that the specifications were provided directly to the fabricator in writing and included this in the purchase order. The engineer would likely have included some form of testing, ie strength testing, that would be suitable prior to delivery.

11. Did the provision of safe access along the transverse walkways require that the first defendant safely contain the lashing bars?

MR DUBOS: Yes.

MR MAYBURY: Yes.

CAPT. KING: In the Code of Practice for Stevedoring and as is the normal practice in many other ports, the lashing bars are placed – and there is ample evidence for this – the lashing bars are placed on the deck to the side of the walkway. If it is a known hazard does that make it unsafe? No, I don**’t think it does. The ship was fitted with lashing bar racks along its port and starboard main deck walkways. The lashing bars could have been taken from the containers and passed down to be placed in those lashing bar racks on the main deck. Yes, that would have slowed operations up but it would have ensured that the lashing bars were not hanging from a temporary rack suspended from the handrails on the transfer walkways, as requested by the second defendant. There was no absolute necessity for these temporary lashing bar rack to be fitted to the handrails as they were. It was a request by the stevedores for them to be fitted and a requirement specific to Australian ports. There are other methods of storing temporarily the lashing bars between the discharge of the containers, which requires the unlashing, and the reloading of containers assuming that occurred to store the lashing bars in the interim, and that includes putting them on the walkway, to the side or taking them down to the main deck, main lashing bar racks**. But safe access along the transverse walkways is required; it does not matter how you deliver that. As I said in my report, the fitting of these racks was a classic case of revenge effect was the result of trying to prevent a tripping hazard and resulted in another negative outcome. That is all because it was not thought out well by risk assessment as required by the code because both the first and second defendant were carrying out a place of conducting business. If we go to fundamentals, that should have been the first steps, the identification of the hazards, the identification of mitigation to those hazards, including engineering or safe work methods.

MR DUBOS: I don’t know about the description of “revenge effect”, but it certainly would not be the first time that fixing one hazard caused another.

12. Would a proper system have required the first defendant or the second defendant to ensure that the stowage hooks were empty by the time of the vessel’s arrival at Port Botany on the night of the accident?

CAPT. KING: If the container stacks, both for and after of the transfers walkway, were fully loaded then the racks should have been empty at the commencement of operations for unlashing. The ship’s crew could have ensured that and that should have been verified by the stevedores, by the second defendant, during their safety inspection. If the racks were not empty, that should have been brought to the attention of the chief officer. There was a check list the stevedores completed, which is almost identical to that contained in the Code of Safe Practice for stevedores, which they went through, and I think one of the tick boxes is 4.6: walkways are clear of excess lashings, loose gear and other trip hazards. That was signed off on the night by Mr Little. If stevedores are not happy with condition of the vessel they bring that to the attention of the ship’s chief officer prior to the commencement of operations and he sends the crew to deal with the issue.

MR MAYBURY: Not necessarily. If container stows are fully loaded on arrival to Port Botany, usually all those lashing bars would be utilised and there generally would not be any lashing bars available in that area. As far as if there were loose lashing equipment on those walkways, it would be brought to the attention of the ship’s crew to clear the loose lashing equipment placed on the walkways. Generally if they are in lashing racks on the walkways they would be seen to be in an area that wouldn’t post a trip hazard. There are other storage locations provided on the vessel- on the fore and aft walkways, port and starboard sides.

MR DUBOS: My answer is no, not necessarily. The ship’s officers generally oversee this equipment and ensure it is properly stored.

CAPT. KING: Joel and I agree on this, if the stack is fully lashed, there shouldn’t be any bars and you don’t want loose bars laying transversely on the walkways anyway because the ship rails tend to slide and you don’t want them falling off over the side, for safety reasons including anyone walking past. This is when you are at sea and you don’t want to be losing lashing gear over the side for no reason. That is how it works in reality.

MR MAYBURY: I would say if container stows were full, generally there would be no lashing bars but it’s not to say there wouldn’t be any in the lashing racks, it’s not unusual for some to be in there.

13. Would a safe system have permitted the bars to be simply left on the walkway?

CAPT. KING: My answer is to refer to the Code of Safe Working for stevedores, which actually shows that happening.

MR MAYBURY: Assuming this question means just placed on the walkway surface.

MR DUBOS: The question doesn’t refer to the Code.

CAPT. KING: Just so we are on the same page, the longitudinal racks on the walkways there are designed for the very purpose of stacking lashing bars so stevedores could have passed the bars down and put them on those racks, as they do in other places, but it’s always difficult with Aussie stevedores. From my perspective, that’s what the Code says, it’s better to push them to the side of the walkway, it doesn’t mention the use of temporary hanging racks, it just says put to the side of the walkway, which is what the practice is around the rest of the world, unless there is permanent racks installed. There is an example contained in the Code. In my report I used an example of the last container ship I was on where racks are permanently fixed. My answer to question 13 is yes, it is a safe system for the bar to be simply left on the walkway if they were pushed to one side to allow safe walking access and transfers across the walkway and that is as allowed for under the Code of Safe Practice for Stevedoring.

MR MAYBURY: No, just simply left on the walkway as it says in the question. Simply being left on the walkway can pose a trip hazard so I would say there would have to be some order, yes, stacking them neatly to one side.

CAPT. KING: Same answer. Scattered all over the walkway is not good.

MR MAYBURY: It has to do with the quantity.

CAPT. KING: If we go back another step, because this ship didn’t have any lashing bridges, it was a single lashing level from the hatch lid level, that’s one of the problems with this class of vessels. You have got to use a lot of bars to use to secure the cargo.

MR DUBOS: My answer is no, because they can form an unsafe trip hazard.

CAPT. KING: It is open-ended and that cuts to supervision, it cuts to known hazards, what is the mitigation, stack them to the side, tell everyone not to trip on them, be careful. The next is an engineered solution, which is where we have got ourselves to here because it wasn’t risk managed or engineered.

14. What is the normal practice for stevedores and/or ship operators when temporarily storing lashing bars during unlashing operations? Is that best practice? Why / why not?

MR MAYBURY: This goes back to question 13. In some instances lashing bars can be temporary stowed in a safe manner to one side on the walkway during lashing operations as long as it does not pose a trip hazard. This is typically performed if lashing equipment is to be utilised in the same area for lashing operations after loading of containers.

CAPT. KING: I am happy with this.

MR DUBOS: Normal practice is to either stack lashing bars neatly to one side of walkways or to store bars storage racks. Either is becoming acceptable, unless trip hazard safety inspection has recommended stowage off the walkway being provided.

CAPT. KING: The method of unlashing also affects this, that if you unlash from port to starboard, for example, say the ship’s berth portside along the wharf and you start unlashing the starboard side and laying the bars down on the walkways to the side and you don’t have to walk back over them by the time you get to the port side, you are done and then when you are lashing you start from the port side and lash back the other way and then you’re not walking criss-crossing across the lashing bars.

17. To the extent that the lashing racks were not manufactured in accordance with the specifications, how could this have contributed to the failure of the racks and subsequent collapse?

CAPT. KING: The supplied lashing bar racks had the capability to hold more lashing bars than those requisitioned and therefore a greater load and that may have affected their capability to withstand the amount that was actually placed in them. In other words, if they were 150 millimetres, and I was trying to think if they are 150 you will probably get two bars wide in them because the ends have got the lashing points. If it was 180 you might three wide in there and it’s a 20 percent increase. I don’t know because I wasn’t there to test run the difference between them so basically the capacity of the racks supplied could potentially hold 20 percent more lashing bars than the ones ordered.

MR DUBOS: Contributing to the failure was the lack of specification potentially of lack reinforcing bar thickness and of adequate fit for purpose specification of thickness of steel plate used, mouth opening width and safe working load.

CAPT. KING: The ship’s personnel are not trained to determine what those specifications are in terms of steel strength or construction method. Your average and reasonable ship’s officer is not trained in those skills. They are marine engineers, not mechanical engineers.

MR MAYBURY: This question is for an engineer, it is more their field. I only can assume that sufficient reinforcement and adequate strength steel were not provided to ensure it was fit for purpose.

18. Would any differences in design or specifications have been obvious or easily identifiable when comparing the lashing hooks onboard Kota Lambang to the document titled ‘hook used for keeping lashing bars in Australia’?

MR MAYBURY: That is a question for an engineer; this is outside my area of expertise.

CAPT. KING: The chief officer runs the deck and the deck crew and the master are in overall command of the vessel. When stores come aboard, the cadet will check the stores to make sure as the crew unpack them the quantity received is the quantity ordered so there is no discrepancies. The chief officer, when he instructed the bosun to deploy the racks, assuming the right number was supplied, would in all likelihood have not gone down and checked to make sure they were exactly the same as what he ordered. It would have been a reasonable assumption that what was ordered and what was delivered and instructed the bosun to hang them around the ship as requested to provide lashing racks. Even if you looked at the lashing bar rack on lashing bar rack, unless you got a tape measure out, there would have been an assumption by the ship’s officers that what was supplied was fit for purpose. Your average and reasonable deck officer is not a trained engineer able to determine what was supplied isn’t fit for purpose for storing lashing bar racks. And the company, at a higher level, would have also assumed what was ordered what was supplied, within reasonable specification limits because they wouldn’t have sighted them either.

MR DUBOS: Yes, differences in design and specification would have been easily identifiable.

19. What is the usual delineation of safety tasks between the vessel personnel and stevedores during container ship cargo operations?

CAPT. KING: I think I referred to that in my report that the ship’s personnel is usually a deck officer ana a seaman on duty during cargo operations. Once the operation commences, these days the ship’s crew are usually told not to go on the main deck because of the hazards associated with container operations. Usually the ship’s officers don’t supervise the unlashing of cargo as opposed to lashing, which they do supervise to ensure the ship is seaworthy and fit for its voyage. To me, the supervision of stevedoring personnel falls under the jurisdiction of the stevedores. The ship’s officer and the duty seaman have got a whole raft of other tasks they are undertaking to ensure the general safety of the vessel and I have listed them in my report. They don’t have the resources to specifically supervise multiple lashing gangs operating on the vessel. It doesn’t occur and it never has.

MR MAYBURY: The usual delineation for safety tasks between the vessel personnel and the stevedores is the vessel is responsible for ensuring the ship and its equipment are safe and fit for operations, while the stevedoring company is responsible for the safety of its workers during cargo operations.

CAPT. KING: I concur with that.

MR DUBOS: Pacific International is responsible for safe gangway access on its ship, joint cooperation, coordination and consulting on activities to establish who is doing what and if and where hazards are presented associated with the roles of the multiple parties such as Pacific International and Patricks. Pacific International should have consulted with Patricks about any load limits or numbers of bars for the racks that Pacific International provided for its ship.

20. Would a visual inspection by the Second Defendant of the lashing bars, before the Plaintiff commenced working, have disclosed any defect or that they were not fit for purpose?

MR MAYBURY: No, a visual would not have revealed the structural inadequacies of the lashing racks. The structural inadequacies were not visibly apparent and would have required an engineering assessment to detect.

CAPT. KING: I somewhat concur with that but add that just like the ship’s crew the second defendant would not have been aware of any latent defects or inability to support the load that could be placed upon them with long lashing bars. Your average stevedore, or even a supervisor or even the manager, like the crew and the master, is not trained to determine of those racks could have sustained the load that could be placed in them.

MR DUBOS: A close inspection, if potentially specified in inspection documents by Patrick’s personnel, could have disclosed differences between older and new racks. However, this could not reasonably be specified or expected amongst a large series of other safety inspection subjects. In the first instance, it was the responsibility of Pacific International to provide safe equipment on its ship. Patricks had taken action to recommend clear walkways, without trip hazards.

CAPT. KING: And to ensure that any lashing racks to be used were empty before commencement of operations.

Plaintiff’s objections

139. The plaintiff did not provide reasons for its objections to the joint report (in bold).. As to the defendant’s objections, the formulaic ‘opinion not within s 79, lack of expertise, insufficient/no path of reasoning’.

140. The plaintiff’s objection to Captain King’s statements in response to question 1 (namely, “[t]here is a latent defect in the manufacture”; and “[t]his constituted a latent defect in the manufacture process”) is upheld. As noted above, Captain King does not have specialised knowledge in welding, nor do I think the knowledge normally held by a master mariner is such as to allow Captain King to comment so specifically on the cause of the failure of the lashing hook.

141. The plaintiff’s objection to Captain King’s response to question 6 is dismissed. Captain King comments on the good practice which can be expected of a ship owner when sourcing and fitting new equipment. This is clearly within his expertise and of relevance to the case. For the same reason, the objection to Captain King’s response to question 7 is also dismissed.

142. The plaintiff objects to the first sentence of Mr Maybury’s response to question 8. The plaintiff has not explained the basis of this objection. It is dismissed.

143. The plaintiff also objects to Captain King’s third answer to question 8. Again, the plaintiff has not explained the basis of this objection and I do not see why it should not be admitted. It is an opinion within the expertise of a master mariner. The objection is dismissed.

144. The plaintiff objects to parts of Captain King’s response to question 10. The plaintiff has not explained the basis of the objection. Those parts of Captain King’s report relate to the good practice relating to the introduction of new equipment onto a vessel. The objection is dismissed.

145. The plaintiff objects to most of Captain King’s response to question 11. That response treats the possible ways persons such as the first and second defendants could have or should have responded to the legal requirements of the Code. Although this contains some legal analysis, it is mostly a question of fact requiring expert opinion. The objection is dismissed.

146. The plaintiff objects to parts of Captain King’s response to question 13. That response refers to the stevedoring Code in response to a question of whether a certain course of action was safe. Although Captain King’s answer involves perhaps a little too much legal analysis, it provides important factual matters and expert opinion. In such a narrowly confined situation, the question of whether the Code covers a certain situation is a mixed question of fact and of law. The objection is dismissed.

147. The plaintiff objects to most of Captain King’s response to question 18. Captain King gives his opinion on what are the roles and responsibilities of certain crew members in respect to the fitting of such an item of equipment as a lashing hook. This is within his expertise as a master mariner. The objection is dismissed.

148. The plaintiff objects to two part of Captain King’s response to question 20. I cannot see on what basis those objections are made. It is my view that the opinion expressed in them are within his expertise. The objection is dismissed.

First defendant’s objections

149. The first defendant objects to the entirety of Mr Dubos’ and Mr Maybury’s answers to question 1. Both those experts have the requisite specialised knowledge to comment on the failure of the lashing hooks. The objection is dismissed.

150. The first defendant objects to the entirety of the answers to question 2. They are objected to on the basis of, among other things, relevance. The named ‘Store Requisition’ has not been put before the Court. Nor has the Court’s attention been drawn to the named photograph. This question and answers are irrelevant. The objection is upheld.

151. The first defendant objects to the entirety of the answers to question 5. The answers to question 5 are somewhat unimpressive. They form opinions which a lay witness could have formed, but for particular details. However, certain aspects are enlightening. The objection is dismissed.

152. The first defendant objects to the entirety of Mr Dubos’ and Mr Maybury’s answers to questions 6-10. Those questions and answers deal with the good practice regarding the ordering and fitting of equipment such as the lashing rack. Mr Dubos and Mr Maybury both have the necessary specialised knowledge to form opinions on these matters and to comment on what would have been good practice and the result of such good practice. The objections are dismissed.

153. The first defendant objects to Mr Dubos’ answer to question 14. That question and answer related to the normal practice of stevedores. I agree that Mr Dubos’ expertise does not extend to the actual practice of stevedores regarding lashing racks and their storage. The objection is upheld.

154. The first defendant objects to Mr Dubos’ answer to question 17. That question and answer relate to the failure of the lashing hooks. Mr Dubos has qualifications in safety engineering. He clearly has the specialised knowledge to form such an opinion. The objection is dismissed.

155. The first defendant objects to Mr Dubos’ answer to question 19. That question refers to the apportionment and allocation of responsibility between the ship’s crew and the stevedores. As mentioned, Mr Dubos is not a maritime expert. He does not have the requisite specialised knowledge to comment precisely, in this way, on the relationship between stevedores and the ship’s personnel.

Resolution

156. The plaintiff’s objection to the two clauses of Captain King’s statement in response to question 1 is upheld. The rest are dismissed.

157. The first defendant’s objections to the entirety of the answers to question 2, to the answer of Mr Dubos to question 14 and to the answer of Mr Dubos to question 19 are upheld. The rest are dismissed.

The Court orders that:

1. subject to the following, all of the expert reports on liability be admitted into evidence;
2. as to the report of Mr Dubos dated 16 May 2022, all the objections are dismissed;
3. as to the report of Mr Dubos dated 7 March 2025, the objections to the third sentence of par 21, to the second and third sentences of par 23, to the third sentence of par 29 and to the second sentence of par 30 are upheld, but the rest are dismissed;
4. as to the report of Mr Dubos dated 23 May 2025, all the objections are dismissed;
5. as to the report of Captain King, dated 5 February 2025, the objections to pars 2.3.3-2.3.6, 2.4.1-2.4.2, 3.3.12-3.3.15, 4.1.1-4.2.12, 4.3.12-4.3.13, 4.3.15-4.3.16, 4.4.1-4.4.7, 5.1.1-5.4.10, 6.1.2-6.1.3, 6.1.5 and 6.2.8 are upheld, but the rest are dismissed;
6. as to the report of Mr Maybury dated 30 August 2018, all of the objections are dismissed;
7. as to the report of Mr Maybury dated 26 March 2025, the objections to pars 4.3.1, 4.15.1, 4.16.1 and 5.2 are upheld, but the rest are dismissed; and
8. as to the joint conclave report dated 18 June 2025, the plaintiff's objection to the two parts of Captain King's statement in response to question 1 is upheld, but the rest are dismissed; and the first defendant's objections to the entirety of the answers to question 2, to the answers of Mr Dubos to question 14 and to question 19 are upheld, but the rest are dismissed.

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I certify that this and the _62__ preceding pages are a true copy of the reasons for judgment herein of the Honourable Assoc. Justice Harrison and of the Court.

DATED: 14 August 2025. Associate: