CSL Australia Pty Ltd v Formosa - Jurisdiction and Duty of Care

• Author: Ian Maitland
• Position: Partner, Wallmans Lawyers, Adelaide. This is an edited version of my address to the 39th Maritime Law Association of Australia and New Zealand Annual Conference held in Brisbane in September 2012
• Pages: 18-27

(2013) 27 A&NZ Mar LJ

18

CSL AUSTRALIA PTY LTD v FORMOSA: JURISDICTION AND DUTY OF CARE

Ian Maitland*

The case of For mosa v CSL Australia Pty Ltd and Anor was commenced in the New South Wales District Court

and was heard by Delaney DCJ of that Court. CSL appealed and the matter was heard by the New South Wales

Court of Appeal comprising Allsop P, Bastin JA and Handley AJA.

The case raises, inter alia, the following issues:

1 What jurisdiction is exercised by the Court for personal injuries which occur on a vessel?

2 The duty of care to be exercised by employers/occupiers when the workplace is a vessel?

Facts

The facts of this case are succinctly set out in the Court of Appeal’s Judgment and I therefore quote those facts:

The Respondent (Formosa) was an experienced stevedore who was employed by Port Kembla Coal

Terminal Ltd ( ‘PKCTL’). Formosa was working as ‘Foreman Supervisor’ at the relevant time. Formosa

was working on the ship MV Ir on Chieftain (‘the ship’) which was owned by the First Appellant CSL

Australia Pty Ltd (‘CSL’) and operated by Incoships Pty Ltd (‘Inco’). Formosa was responsible for

directing and supervising the loading of the ship with coal at the Bluescope Steel Coat Berth at Port

Kembla. Formosa suffered a not insignificant injur y to his knee upon slipping on iron or e slurry which was

composed of fine iron ore dust and water, when walking on the dec k of the ship to check the loading of

coal in one of the ship’s hatches. The presence of the iron ore dust was a result o f the iron ore fines that

had been loaded from the ship at a berth at Port Kembla prior to its arrival at the coal berth.

Claim

Formosa brought a claim against CSL and Inco in their respective capacities as owner and operator of the ship

and also against PKCTL as his employer. The claim against CSL and Inco was brought in negligence, ie the

claim was against CSL and Inco as occupiers of the ship. The claim against PKCTL was based upon the concept

that an employer has a non-delegable duty to provide a safe system of work and a safe place of work for its

employees.

Judgments

The primary Judge apportioned liability 60% against CSL and Inco but reduced that by 15% for contribu tion by

Formosa. In addition he found 40% contribution from PKCTL. I am not familiar with the New South Wales

legislation and the reason wh y there was an award of 60% which was then reduced by 15%. However, I assume

that the net result is that the finding is 45% CSL/Incoships, 40% PKCTL and 15 % Formosa.

The Court of Appeal heard the matter and did not alter the apportionment set out above. However, the Court of

Appeal did deal with the two issues which I have referred to above, namely jurisdiction and duty of care.

Jurisdiction

As a starting point I quote from paragraph 22 of the judgment of the Court of Appea l:

* Partner, Wallmans Lawyers, Adelaide. This is an edited version of my address to the 39th Maritime Law Association of Australia and New

Zealand Annual Conference held in Brisbane in September 2012.