| Focus: | Collins v Sydney Ports Corporation [2012] NSWSC 115 |
| Services: | Insurance |
| Industry Focus: | Insurance |
The Supreme Court of NSW considered the apportionment of liability between an employer and an independent contractor where the failure of a product caused a plaintiff serious injuries.
Facts
The plaintiff was employed by Sydney Ports Corporation (Sydney Ports) as an engineer. From time to time he was required to board vessels moored at the port in order to perform his duties. The plaintiff boarded vessels via the emergency response gangway which was stored vertically and lowered to a horizontal position when being used for boarding.
The gangway was held in place by a D-shackle which was linked to a 750kg counterweight. On 23 July 2001, the plaintiff was walking across the gangway when the shackle fractured and the counterweight was released. This caused the gangway to rotate suddenly to its vertical position, violently propelling the plaintiff onto the wharf below and causing him serious injuries.
Decision
The cause of the event was uncontroversial as the shackle was found to be made of a material which was inappropriate for sub-marine use. Australian Winch & Haulage Company Pty Ltd (Australian Winch and Haulage) was the company that selected, supplied and installed the shackle and it was joined as the second defendant in the proceedings.
A point of contention in the case was the apportionment of liability in respect of the failed shackle. Put simply, the Supreme Court was required to consider which parties were responsible for the failed shackle and to what degree.
Ultimately, the Court found that both defendants had breached their duty of care, and made the following observations with respect to the parties' respective liability:
- Sydney Ports, as the plaintiff's employer, was in effective control of the gangway and responsible for its upkeep and maintenance. It was found to have breached its duty of care, because a failure of the shackle was not only predictable or inevitable, it was preventable. The gangway had failed before and, despite this, Sydney Ports did not regularly inspect or maintain the gangway and instead adopted a 'reactive approach', only intervening in response to problems.
- as to the contribution of Australian Winch and Haulage, the Court noted that it was regularly involved in dealing with problems with the gangway and the frequent replacement of failed components carried with it an obligation to specify an appropriate grade of stainless steel shackle.
The Court had regard to section 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in finding a just and equitable apportionment of the defendants' liability to pay damages to the plaintiff. Ultimately, the Court considered the appropriate apportionment to be 65% with respect to Sydney Ports and 35% for Australian Winch and Haulage.
Implications
This decision reinforced the High Court's view articulated in the case of Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34, where it was stated that:
"A finding on a question of apportionment is a finding upon 'a question, not of principle or of positive findings of fact or law, but of proportion of balance and relative emphasis, and as weighing different considerations...
"The making of an apportionment ... involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage" (references omitted).
The findings made by the Court in Collins v Sydney Ports confirm that, when considering issues of apportionment, courts will examine and focus on the conduct of the parties. Further, that primary liability will be sheeted home to employers if they are on notice of similar incidents having occurred in the past and do not take proactive steps to minimise the risk of future harm to their employees in such circumstances.
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