MARINE MINISTERIAL HOLDING CORPORATION v NAGLE & ANOR [2000] NSWCA 202

New South Wales Court of Appeal

CITATION : MARINE MINISTERIAL HOLDING CORPORATION v NAGLE & ANOR [2000] NSWCA 202 FILE NUMBER(S) : CA 40848/98 HEARING DATE(S) : 12 May 2000 JUDGMENT DATE : 15 August 2000

PARTIES : MARINE MINISTERIAL HOLDING CORPORATION v NAGLE & ANOR JUDGMENT OF : Mason P at 1; Powell JA at 55; Hodgson CJinEq at 56

LOWER COURT JURISDICTION : District Court LOWER COURT DC 73/95 FILE NUMBER(S) : LOWER COURT McLoughlin ADCJ JUDICIAL OFFICER :

Appellant: B Donovan SC/ A Henshaw COUNSEL : 1st Respondent: No appearance 2nd Respondent: M Cranitch SC/ M Inglis Appellant: Allen Allen & Hamsley SOLICITORS : 1st Respondent: Robson & Oliver 2nd Respondent: Conroy & Stewart CATCHWORDS : Negligence - plaintiff's accident on wharf boarding vessel - defects in wharf which should have been repaired in owner's exercise of due care - contributory negligence - plaintiff's extensive experience in and around wharves - plaintiff's proper regard for his own safety - damages - economic loss - loss of earning capacity - plaintiff's opportunity since accident to find gainful employment consistent with medical condition - whether contractual indemnity novated by a subsequent letter - plaintiff's failure to sue the Commonwealth under the Safety, Rehabilitation and Compensation Act 1988 not relevant - ND DECISION : See par 54

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40848/98 DC 73/95

MASON P POWELL JA HODGSON CJ in Eq Tuesday 15 August 2000 MARINE MINISTERIAL HOLDING CORPORATION v Robert Melville NAGLE & Ors JUDGMENT 1 MASON P: The first respondent (the plaintiff) was injured at the Goodwood Island Wharf on 14 September 1992. He was a customs officer with the Australian Customs Service (ACS). At the time of the accident he was on the wharf and attempting to board the vessel "MV Hunte". There was no gangway down so he tried to get on board by other means. He stepped towards the stern onto what he believed to be a stringer. The distance was less than a metre. In fact he stepped onto a loose chock which rotated. He fell and was pinned up to his waist, suffering injury to his back. 2 The plaintiff sued two defendants. The first defendant Chynhale Pty Ltd, t/a Yamba Shipping (Yamba) operated the vessel and occupied the wharf under a licence agreement with the Maritime Services Board (MSB), the registered proprietor of the wharf. The first defendant is the second respondent in the appeal, but it did not appear at the hearing. The second defendant is the appellant in this Court and is the statutory successor to the MSB's liabilities. 3 The trial judge accepted the plaintiff as to his version of the accident. The plaintiff could have insisted that the gangplank be lowered, but he decided to board the ship the way he did in circumstances where Yamba's employee had told him that a quick turnaround of the vessel was expected. He was unaware of the precarious danger of the wharf, in particular the capacity of the chock to rotate (due to being secured with only one bolt). 4 As owner and occupier of the wharf, the MSB was held liable with respect to defects which were or should have been known and which should have been repaired in the exercise of due care. Yamba was also held liable to the plaintiff in consequence of its conceded "partial occupation" (RB 44) of the wharf and area where the accident occurred and its failure to have pressed the MSB to repair the wharf. It was held that there was always a real likelihood that somebody would stand upon the buffers or chocks. It would have been simple to have secured the chocks with two bolts and/or provide an appropriate warning. 5 The plaintiff therefore obtained a verdict against each defendant. However, his damages were reduced by 20% for contributory negligence. Damages were assessed at $293,667. Each defendant was held liable to meet the judgment in equal proportions and a claim by the appellant for full indemnity pursuant to a contract between the MSB and Yamba was rejected.