Trade & Transport Bulletin: Apportioning liability in port jetty accident

In the case of Fremantle Ports v P&O Ports Limited (unreported judgment, 17 June 2008) the Court of Appeal of the Supreme Court of Western Australia recently reviewed the liability of a port authority for personal injuries sustained by a contractor within the port. The case demonstrates the difficult decision for courts in balancing competing causative factors to apportion liability among the parties involved in an incident.

Facts

Fremantle Ports owned and had exclusive control of a jetty at Kwinana, Western Australia. On the jetty were two cranes, each weighing around 400 tonnes, which were also owned by Fremantle Ports. The cranes were used to unload fertilizer from ships and were stationed on rail tracks to enable their movement along the jetty. When not in use the cranes were secured by pins that were placed into holes in the jetty.

Through a subcontracting arrangement, P&O Ports Ltd provided stevedoring services to a third party at the jetty and under that arrangement, used the cranes to unload fertilizer from ships.

Although the responsibility for cleaning the jetty and the cranes fell to Fremantle Ports, movement of the cranes was a task undertaken by P&O Ports and one which employees of Fremantle Ports were neither authorized nor appropriately skilled to perform.

One morning, cleaning of the cranes and of the jetty was due to occur. Two employees of P&O Ports attempted to move the cranes to enable cleaning to take place. Doing so required the securing pins to be removed from the rail tracks. The employees experienced difficulty in attempting to move the cranes due to the presence of fertilizer on the rails and strong wind resistance. Unbeknownst to the P&O Ports employees, a strong wind warning had been issued for that day. Given the difficulties experienced, the two employees decided to leave the cranes, unsecured, until the rail tracks had been cleaned.

The team leader of Fremantle Ports’ cleaning team for that day arrived at the jetty and was told by the P&O Ports employees that the cranes could not be secured due to the fertilizer on the rails. One of the P&O Ports employees suggested that if the wheels and rail tracks were cleaned, the cranes could be moved and pinned. The Fremantle Ports’ team leader suggested that instead the cranes be cleaned where they were.

Fertilizer was also present on the wharf and when a contract cleaner arrived at the jetty around midday, the Fremantle Ports' team leader instructed him to drive a sweeper up and down the wharf to sweep up the fertilizer.

By this time Fremantle Ports’ cleaning team had commenced cleaning one of the cranes where it stood and one of the P&O Ports employees cleaned around the wheels of that crane. The P&O Ports employee subsequently managed to move and secure the cleaned crane to the rails. The employees of Fremantle Ports then went to lunch and the second crane was neither moved nor secured by the P&O Ports employee. The P&O Ports employee then also went to lunch.

In the meantime, the cleaning contractor was going about his business cleaning the jetty. The strong winds that had been experienced earlier in the day changed direction, causing the unsecured crane to move along the rail tracks. The crane picked up speed along the rails, ultimately crashing into the sweeper and injuring the contractor Kim Mills, who sued both P&O Ports and Fremantle Ports for damages for personal injury (Mills v Fremantle Ports [2007] WADC 101).

Findings

Under section 7(2) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1974 (WA) 'the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable'.

In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, it was noted that apportionment involves a comparison both of culpability (ie the degree of departure from the standard of care of the reasonable man) and of the relative importance of the acts of the parties in causing the damage.

In applying these principles, at first instance Judge Martino in the District Court of Western Australia found that Fremantle Ports was 80% responsible for the accident with P&O Ports liable for just 20%. This apportionment of liability was calculated on the basis that the cleaning operation was the responsibility of Fremantle Ports; the Fremantle Ports' team leader did not accept the suggestion of the P&O Ports employee that the wheels of the cranes and the tracks should be cleaned so that the cranes could be moved and secured; and because the Fremantle Ports employees took lunch and allowed the cleaning contractor to work on the jetty knowing that one crane was unsecured.

Fremantle Ports appealed the apportionment, alleging that in the circumstances P&O Ports should bear a greater proportion of liability.

By a majority of 2:1 the Court of Appeal agreed with Fremantle Ports’ contention that P&O Ports should carry a greater proportion of responsibility for the accident than allocated to it by the District Court. The majority (Steytler P and Newnes AJA) considered that because the principal responsibility for the operation of the cranes fell to P&O Ports and because it was foreseeable to the employees of P&O Ports that the wind could move the unsecured crane, the P&O Ports employees should have insisted that each crane be moved and secured before cleaning operations took place. The majority considered that their failure to do so created a responsibility in P&O Ports of much greater than 20% and the majority doubled P&O Ports’ liability.

In dissent, Justice McLure refused to disturb the District Court’s finding largely on the basis that the employees of P&O Ports had no power to direct the actions of Fremantle Ports’ employees and had in fact suggested that the cranes be moved and secured before cleaning, but that this suggestion was rejected by Fremantle Ports’ team leader. In the circumstances the minority considered that the culpability of P&O Ports was slim compared to that of Fremantle Ports.

Conclusion

Although this is a case on the discrete issue of apportionment of liability which turns on its own facts, it does raise interesting issues. The key issue is to what extent port operators and contractors providing services within ports will each be found liable for injuries occurring within the port area in circumstances where both have had a part in causation. It is possible to see the merit in the reasoning of both the majority and minority judgments. On one hand, it seems fair that P&O Ports should bear a not insignificant proportion of the liability in circumstances where it knew of the risks the unsecured crane potentially posed to those on the jetty. This is particularly so given the fact the P&O Ports employee merely suggested, rather than insisted, that the cranes be secured before cleaning. On the other hand, where P&O Ports had no power to direct the actions of Fremantle Ports, what more could it have done than make the suggestion?

It is this delicate (yet inherently imprecise) consideration of competing causative factors that leads to disputes such as this and will continue to keep the courts busy.

For more information, please contact:

Gemma Stabler, Solicitor
Tel +61 8 6467 6022
gemma.stabler@dlaphillipsfox.com

John Farquharson, Partner
Tel +61 8 6467 6011
john.farquharson@dlaphillipsfox.com