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As elegant as are the ships of their fleet, ferries that ply the waters of Sydney Harbour are responsible for their fair share of maritime mishaps.
Ramps, ropes, steps, decks, docks, gates and gantries all present hazards against which management must be constantly vigilant. But it was a different feature of the vessels that was at the depths of a $1 million judgement in favour of 34-yr-old seaman Mark Thelander over an accident in April 2007.
As was his habit, ferryman Mark caught the boat from Manly where he lived, to Circular Quay to start his 3:30pm shift aboard MV Queenscliff, one of the four “Freshwater” class ferries that operate the Manly service.
Mark was a permanent member of the Queenscliff crew, being required to serve on Freshwater or the Collaroy only a couple of weeks each year while Queenscliff was out of service. Very occasionally during his eight years, he had also worked aboard the fourth vessel, Narrabeen.
All sister ships were more or less identical but Narrabeen – built at the same time as Queenscliff at the NSW State Dockyard at Newcastle in 1983 – had some minor differences. One of those features was the riser height of door sills distributed throughout each particular vessel at more or less equal height.
For some reason, the door sills on Narrabeen rose 21cm compared to 15 cm on Queenscliff and the two other vessels.
As it turned out, the boat seaman Mark boarded to start work that day was Narrabeen, not Queenscliff and predictably, he fell in a doorway during the course of the first run of the day, when his foot struck one of the higher-than-expected door sills.
He returned to work at the Balmain shipyard just two weeks later but his worsening ankle – surgery to which only partly relieved the painful nerve and bony injury – left him immobile. He also developed upper limb nerve damage from the constant use of crutches or a walking stick that all agreed by 2010, left him virtually unemployable.
The ferry owner fended off suggestions it might have done more – like paint the sills a bright contrasting colour – to prevent the accident. As far as it was concerned, the door sill was no hazard at all and crew must “look where they are going”.
Fast forward to the NSW Supreme Court where Justice Michael Adams had to decide whether those arguments held water.
To bolster its position, the company called testimony from marine engineer, Peter Burge, who – with a 48 year career as a ship’s master including aboard Sydney’s ferries and having conducted numerous investigations into boating and shipping incidents – was well qualified for the job.
But his opinion that the sill height was “no significant risk” to safety misconceived the real issue of whether a simple measure like drawing attention to the door sills with bright paint would have lessened the risk to “an inattentive crew member”.
In the court’s view such a measure would have been a benefit and was a reasonable step to take. “After all, crew move throughout vessel with particular tasks in mind and it would not at all be surprising if sills are negotiated with the minimum attention”.
But had crew member Mark been himself negligent in his job by “not looking where he was going”? “No,” said the court. “Where crew members are likely to be rostered on vessels from time to time, it scarcely needs an expert to understand as a matter of common experience, that they will tend to become habituated to the dimensions of their work environment and negotiate hazards without much conscious consideration”.
All in all, the court agreed that the amounts claimed at just over $1 million, for lost income and loss of future earning capacity – which Sydney Ferries did not dispute – were reasonable.
Thelander v Sydney Ferries Corporation [2014] NSWSC 1530 Adams J, 04/11/2014 – view decision
Categories: Personal Injury , Litigation & Law Practice , Boating & Watercraft