CSL Australia Pty Limited v Formosa [2009] NSWCA 363

CSL Australia Pty Limited v Formosa [2009] NSWCA 363

The owner and operator of the ship owed to the respondent, a stevedore, a duty to exercise reasonable care for his safety whilst performing work on the vessel, including taking reasonable steps to remove or mitigate hazards on the ship's deck (specifically, the iron ore slurry), or warning of safer alternatives, even though the respondent was 'person in charge' under the Marine Orders. The Marine Orders and the Occupational Health and Safety (Maritime Industry) Act did not abrogate this common law duty. This duty was breached by failing to sweep the deck or warn the respondent of safer access (using the starboard side), and this breach caused the injury. Apportionment of liability for...

Parties
First Appellant, First Cross Respondent on Cross Claim: CSL Australia Pty Limited; Second Appellant, Second Cross Respondent on Cross Claim: Inco Ships Pty Ltd; Respondent, Cross Appellant on Cross Claim: John Paul Formosa
Jurisdiction
Australia
Judgment Date
11 November 2009
Procedural Posture
Appeal / Court of Appeal Decision Following Trial in the District Court of New South Wales
Outcome
Appeal and cross-appeal dismissed.
Legal Topics
Negligence, Duty of Care, Stevedores' Safety, Occupational Health and Safety, Contributory Negligence, Common Law Duties on Shipowners, Statutory Interpretation of Maritime Orders
Admiralty Law Tort Law Federal Jurisdiction Negligence Duty of Care Stevedores' Safety Occupational Health and Safety Contributory Negligence +2 more

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Parties

CSL Australia Pty Limited

First Appellant, First Cross Respondent on Cross Claim

Inco Ships Pty Ltd

Second Appellant, Second Cross Respondent on Cross Claim

John Paul Formosa

Respondent, Cross Appellant on Cross Claim

Procedural Posture

Appeal / Court of Appeal Decision Following Trial in the District Court of New South Wales

Legal Issues

  1. 1 Whether shipowner/operator owed a duty of care to a stevedore injured by slipping on iron ore slurry on the ship's deck
  2. 2 Whether the duty of care is affected or limited by Maritime Orders or the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth)
  3. 3 Whether the shipowner/operator breached their duty of care

Ratio Decidendi

The owner and operator of the ship owed to the respondent, a stevedore, a duty to exercise reasonable care for his safety whilst performing work on the vessel, including taking reasonable steps to remove or mitigate hazards on the ship's deck (specifically, the iron ore slurry), or warning of safer alternatives, even though the respondent was 'person in charge' under the Marine Orders. The Marine Orders and the Occupational Health and Safety (Maritime Industry) Act did not abrogate this common law duty. This duty was breached by failing to sweep the deck or warn the respondent of safer access (using the starboard side), and this breach caused the injury. Apportionment of liability for...

Court Disposition

Appeal and cross-appeal dismissed.

Orders

  • Appellants to pay 75% of the respondent's costs of the appeal and cross-appeal.