New South Wales Supreme Court CITATION : DUCKWORTH v STANNARD BROTHERS LAUNCH SERVICES [2003] NSWSC 1165 HEARING DATE(S) : 17-18 November 2003 JUDGMENT DATE : 8 December 2003 JUDGMENT OF : Levine J DECISION : 1. Verdict and judgment for the plaintiff in the amount of $1,429,009.26.; 2. The defendant is to pay the plaintiff's costs including costs thrown away by the vacation of the hearing on June 2003.; 3. Note that the amount repayable by the plaintiff to the worker's compensation insurer pursuant to s51B of the Worker's Compensation Act is $241,691.43.; 4. The exhibits are to be returned. CATCHWORDS : Work injury - foreseeability - preventability - total incapacity CASES CITED : Turner v The State of South Australia [1982] 56 ALJR 839 DALE AARON DUCKWORTH (Plaintiff) PARTIES : v STANNARD BROTHERS LAUNCH SERVICES PTY LTD (Defendant) FILE NUMBER(S) : SC 20157 OF 2003 W Kearns SC / D O'Dowd (Plaintiff) COUNSEL : G Nell (Defendant) W G McNally & Co (Plaintiff) SOLICITORS : PricewaterhouseCoopers Legal (Defendant) 1 [2003] NSWSC 1165 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE DAVID LEVINE MONDAY 8 DECEMBER 2003 20157 OF 2003 DALE AARON DUCKWORTH (Plaintiff) v STANNARD BROTHERS LAUNCH SERVICES PTY LTD (Defendant) JUDGMENT (Work injury – foreseeability – preventability – total incapacity) 1 The plaintiff sues the defendant for damages for injuries sustained in a work accident on 24 November 1998. 2 Liability in the defendant for negligence was in issue; contributory negligence was not the subject of evidence, cross-examination or submissions and thus plays no part in the resolution of this action. 3 The circumstances of the incident were themselves not in dispute. 4 The plaintiff (born 11 November 1965), after leaving school at the age of 15, has, in reality, spent the whole of his working life up until the time of the accident in the maritime industry. On the day in question he was a deckhand on the defendant's launch, the Blayney (see photograph exhibit C). That launch is what is known as a "line running launch". The plaintiff was a member of a crew of four, being one of three deckhands, the fourth being the driver, of the launch. The task was to secure an oil tanker, the World Kinship, to a submerged berth in Botany Bay. Around that berth there are five large drums (see photograph exhibit D). The process ultimately involved the delivery to those drums, for securing to them, mooring lines lowered from the tanker. 5 In the normal course of events the mooring lines from the tanker are lowered to a point where they can be brought by the deckhands over the bulwarks at or about the stern of the launch and secured to an H-bollard. What I will describe as the "normal course" is evidenced in a videotape admitted by consent as exhibit H. That videotape does not show the events of the day in question but shows the typical system of performing the task of mooring a tanker in the circumstances I have outlined. 6 The mooring line of the tanker is winched from the tanker, as I understand it, that being an exercise under the supervision of employees of Caltex and not the defendant. What is known as a "pennant line", which is a light line attached to the ship's mooring line, is lowered, that pennant line can be snared to bring onto the deck of the launch the eye of the mooring line at the end of which is a shackle and wire. The pennant is usually 20 feet in length; the mooring line is approximately 20 to 30 metres, the eye of which was described as about 12 foot in diameter. These dimensions become tolerably clear upon the examination of what is shown in exhibit H, as well as the photographs, exhibits A and B. 7 Exhibit G is a sketch plan of the ultimate positioning in its berthing of the tanker, the position of the launch and the position of a tug which is tied bow to stern to the tanker and has its engines in reverse to maintain the tanker in position. There was thus, as I understand it, wash from the propellers of the tug and the propellers of the launch. 8 What happened, simply stated because it is not in dispute, is that those operating the winch on the tanker lowered two mooring lines into the water together with the pennant lines and up to the point where the shackle was also in the water. Mr Lester, the driver of the launch with the walkie-talkie available to him in his wheelhouse asked the people on the tanker to haul up the lines and lower them again. He received a message to the effect that the winch on the tanker was not working. He thereupon directed the plaintiff and the two other deckhands manually to retrieve the mooring lines from the water. The plaintiff, as the fittest, braced himself against the bulwark, was able to take up the pennant line as tightly as he could get it until he got the mooring line over the side of the stern of the launch, whereupon he tried to retrieve that mooring line, inch by inch, over the bulwark. An attempt had been made by a fellow deckhand similarly to obtain the other mooring line which had been lowered into the water, that was abandoned. The plaintiff, with the assistance of his fellow worker, had got the mooring line to the stern of the vessel by pulling the pennant; the eye of the mooring line was just over the bulwark, the plaintiff was making "a massive effort", putting into it "everything I have", the lines seemed to "wash away from us", there was "a hell of a lot of weight come on it" and it was just being pulled out of his hand; he let it go. 9 It was to be understood from the plaintiff's evidence that if any urgency attended the operation of retrieving the lines from the water it was founded upon a perceived concern that the launch's propellers would become fouled by those lines. In the normal course of events, according to the evidence of the plaintiff, the people on board the tanker would be just directed to "re-run" the lines. In any event, the plaintiff says he would have used a winch had there been one on board the Blayney to retrieve the line. There was a winch on another of the defendant's vessels, the Coramba (see photograph exhibit E), a larger vessel than the launch but a smaller tug than the one involved in keeping the tanker in position. 10 The Coramba had in fact been used, according to the uncontradicted evidence of the plaintiff, as a line running launch. I interpolate here, if only to dispose of the matter, that the defendant's suggestion that the circumstances of the use of the Coramba and indeed one other similar vessel was "unexplained" and thus could not be relied upon by the plaintiff, was simply not open to be made. The plaintiff gave an explanation as to the use of the Coramba, the vessel with the winch, gave evidence that in the circumstances which befell him a winch could have been used, yet the defendant tendered no evidence that could derogate from the case the plaintiff in fact made on that issue. After the attempt to pull the line on board the plaintiff felt indescribable pain and went into the wheelhouse of the launch where he remained whilst, significantly, the launch backed off, did a circuit and returned, by which time the lines had been re-run on the tanker and the mooring operation was duly completed. 11 The plaintiff gave evidence that this type of situation had occurred before in the sense that lines had been lowered into the water rather than to the appropriate level whereby they could be taken on board the rear of the launch. 12 The plaintiff called evidence from Mr Lester, the skipper of the Blayney, who, subject to his wheelhouse position affecting his observation, generally corroborated the evidence of the plaintiff. He said that he had to yell out to the boys on the deck to retrieve the lines manually having stated "when the lines are in the water and there is that much line being dumped in the water, I've got to either get them on board or get out of there". 13 In cross-examination he confirmed that as he was "stemming the wash" he had to yell out to the boys to get the rope on deck manually. It could well have happened that the boys had manually or by signal sought to indicate to the people on board the tanker that the rope should be re-run. He agreed that "everything has got to happen fairly quickly in a situation like that" and that it would be fair to say that he gave the instruction to manually retrieve the lines within 30 seconds of realising that the lines had gone into the water. He agreed that there was some urgency by reason of concerns of the lines fouling his own vessel and indeed fouling the tanker. He described the efforts as "frantic" as his deckhands tried to get the lines on board as far as he could see. The plaintiff came in and told him what had happened and Mr Lester did a big circle in which time the lines had been taken back by the tanker and the mooring operation could be completed. He agreed that on prior occasions it had been necessary to manhandle lines onto the launch out of the water but the first step was usually to ask for the lines to be re-run. When the lines were not re-run it was sometimes successful to manually bring them on board the launch and sometimes it was not. 14 Mr Lester was cross-examined on a statement he had made prior to the time of his giving evidence and it was apparent that at the time of giving evidence he did not agree with something in that statement to the effect that the job could not have been done with a capstan or a winch when working at speed. That statement was admitted as exhibit 1 and constituted the totality of the evidence tendered on behalf of the defendant in this case. Mr Lester was an essentially honest and straightforward witness; if there was any inconsistency between his earlier statement and what he said before me it did not have the desired effect as anticipated by the defendant in demolishing the plaintiff's case as to the alternative of a winch. It was, if I might say so with the utmost respect, part and parcel of the minimalist approach by the defendant to defending this action. 15 Expert reports were provided by Captain David Michael Pyett and by Mr Max Hely. These reports related to the alternatives posited for the plaintiff in his case, particularly the availability of a capstan or a winch, and a slightly higher bulwark on the launch. 16 The third alternative as it turned out that the defendant could have taken to obviate injury to the plaintiff was that which was, in effect, adopted namely the abandoning of the attempt to bring the lines on board. 17 The defendant did not put in issue the existence of the requisite duty, but chose to put in issue foreseeability and breach. 18 As to the former, namely foreseeability, I find there is no rational basis for arguing in the light of the description of the work given by the plaintiff and Mr Lester, let alone the videotape, that the risk of injury was not foreseeable according to the usual tests. 19 Given the evidence given by the plaintiff and Mr Lester and the expert reports in relation to matters of the weight and dynamics of the exercise to be performed by the plaintiff (and this is the only expert evidence I had, and I find it to be expert evidence) I find it to have been clearly foreseeable in the circumstances that there was a substantial risk of injury and indeed of the kind in fact sustained by the plaintiff in the exercise upon which he was called upon to embark by his employer. 20 I am unpersuaded by the analysis carefully presented to me by Mr Nell for the defendant of the plaintiff's case by reference to the particulars generally (although some clearly were of no relevance). The weight of the evidence in relation to the availability of the winch or capstan on vessels which had in fact been used for the very same exercise as that for which the launch was used and the expert's views generally satisfy me on the probabilities that there was a reasonable alternative (the winch) at reasonable cost available to the defendant which, had it been adopted, would have prevented the injury sustained by the plaintiff. Contrary to the position taken by the defendant, which in the end, was merely by reference to the reports tendered by the plaintiff and the particularisation of the plaintiff's case, I am persuaded that the plaintiff has proved negligence. The overwhelming case for the plaintiff was that the defendant was negligent. I add that I find that there was available to the defendant a further alternative system that would have prevented the injury, namely that which was in fact adopted by abandoning the process which, in the end, on the facts of this case, did not interfere with the accomplishment of the task, namely the berthing of the tanker: see generally Turner v The State of South Australia [1982] 56 ALJR 839 per Gibbs CJ. Whilst I have accepted that the reports tendered by the plaintiff were expert reports, at the end of the day, as it were, the case sought to be made for the plaintiff as to that alternative constituted by a higher bulwark on the launch was not, for me, sufficiently clear to permit a finding that that was a discrete preventative alternative system. 21 Accordingly, I find the plaintiff has proved his case against the defendant and, as I have said, there is no issue as to contributory negligence. Damages 22 As mentioned above, the defendant called no evidence on this issue. 23 For the purposes of the computation of such award to which the plaintiff is entitled under the Workers Compensation Act 1987 it is to be borne in mind that date of accident was 24 November 1998; the plaintiff's date of birth is 11 November 1965; the plaintiff was aged 33 at the time of the accident, is now aged 38; there is 27 years to the age of 65 and the parties have agreed on the relevant multipliers, namely, as to age 65 - 783.0 and life expectancy - 924.8. 24 Some of the heads of damages are agreed. 25 I have had the benefit of being provided by each side with a schedule covering the various heads of damages which reflects the submissions made by each and they will be kept with the court papers. 26 Overall, the plaintiff has persuaded me that the evidence supports almost completely that which is asserted on his behalf to constitute his case on damages. Exhibit F is the folder of the plaintiff's medical evidence which includes two reports from Dr Govind who was qualified by the defendant. The second of those reports dated 24 April 2003, presents an opinion of the specialist that the plaintiff remains totally unfit for his pre-injury duties and will remain unfit for at least the next 5 years. That statement by the doctor and the reservations he expresses in relation to other injuries to the right ankle and left elbow not being causally connected to the original spinal catastrophe are not sufficient to persuade me, on the balance of probabilities, that the plaintiff has failed to prove his case in relation to those aspects. The weight of the medical evidence for the plaintiff and his own testimony satisfies me of the causal connection between the spinal injury, which was catastrophic, and the ankle and elbow injuries, all of which will play a part in the assessment of relevant heads of damages. 27 The specialist neurosurgeon qualified for the plaintiff, Dr Timothy Steel, provided a report dated 30 October 2002 which I accept as representing on the probabilities an accurate picture of this plaintiff in terms of the injuries sustained and prognosis. What Dr Steel says is: " Diagnosis My diagnosis is of L5/S1 intervertebral disc degeneration with right S1 nerve root irritation. He is no longer able to work in any meaningful capacity. Almost all activities irritate his pain. He will not be able to return to work with marine vessels. He will have a permanent lifting restriction of 5-10kg and must avoid any heavy and repetitive lifting tasks. As he may require narcotic analgesics he will not be unable to drive professionally for a living. As he left school that the age of 14 prior to the School Certificate in Third Form and became a deck boy at the age of 15 it is unlikely that he will be able to return to any meaningful work. Prognosis My prognosis is guarded as he has been in significant pain since 1998 I feel that it is unlikely that his symptoms will significantly improve. If he deteriorated any further and developed further motor deficit an L5/S1 instrumented decompression and fusion could be carried out but that the chance of that giving significant benefit would only be in the order of 50%. As he is able to maintain his current level of functioning with exercises, medication and regular physiotherapy I think it would be appropriate to continue with this indefinitely". 28 The plaintiff in the giving of his testimony was a straightforward, honest witness. His credibility was not and could not be challenged. I find that he has been totally incapacitated for work and nothing presented to me predisposes me to a finding that anything in the future will alter that situation. 29 I assess the non-economic loss at 66% of the maximum: $153,384.00. 30 As to economic loss: (a) Past – 24 November 1998 to date (agreed): $202,060.00 . (b) Fox v Wood – (agreed): $19,777.20 . (c) Future (based upon an agreed comparable - $822.25 net) x 783 x .85: $547,248.00 . 31 I award by way of loss of superannuation past the sum of $22,425.00 accepting the schedule provided by the plaintiff and for the future at 9% x $1135.00 p/w being an average of two comparable employees equals $102.15 x 783 x .85: $67,985.00. 32 Out-of-pocket expenses: past – paid by the defendant: $105,062.56; unpaid: $2,007.50. Both these figures are agreed. 33 For the future, after reflection, I am persuaded as per the CDC report in exhibit F, that the figure of $130 per week is not unreasonable, which figure x 924.8 equals $120,224.00. 34 Turning to domestic services, as to the past, the plaintiff has not unreasonably adopted a focus on what was elicited from the plaintiff during cross-examination with this result: (a) From the date of accident to the date of removal of surgical "hardware" (22 October 1999), 48 weeks at 12.5 hours per week at $17.50 per hour (agreed): $10,500.00 . (b) 22 October 1999 to 1 November 2000 (the second ankle injury), 53 weeks at 10 hours per week at $17.50 (agreed): $9,275.00 . (c) For the 3 weeks post-arthroscopy (1 November 2000 to 9 February 2001) I will allow 14 weeks at 12.5 hours per week at $17.50 per hour: $3,062.00 . (d) For the period 9 February 2001 to January 2002 when the plaintiff underwent further back surgery I will allow 48 weeks at 12.5 hours per week at $17.50 per hour: $10,500.00 . (e) For the period January 2002 to date I will allow 12.5 hours per week which falls reasonably between the uncertain evidence of the plaintiff in terms of 20 hours and what the defendant asserts at 10 hours: 45 x 12.5 at $17.50 per hour equals $9,843.00 . 35 Thus, the total for past care is $43,180.00. 36 As to the future it is not unreasonable in the light of all the evidence and as contained in the CDC report that I allow 9 hours per week at $17.50 per hour x 924.8: $145,656.00. 37 As I understand the position the defendant's entitlement to have deducted pursuant to s151B is the sum of $241,691.43. 38 I direct the parties to bring in short minutes of order for the entry of judgment and costs in accordance with these reasons. 39 Orders: 1. Verdict and judgment for the plaintiff in the amount of $1,429,009.26. 2. The defendant is to pay the plaintiff's costs including costs thrown away by the vacation of the hearing on June 2003. 3. Note that the amount repayable by the plaintiff to the worker's compensation insurer pursuant to s51B of the Worker's Compensation Act is $241,691.43. 4. The exhibits are to be returned. ********** Last Modified: 12/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.