A “Tail” of Two Skippers and an Owner – who is liable to the employee?
Essayid v Saint  WADC 61
The plaintiff brought an action against three parties.
The Plaintiff injured his hand on 24 September 2017 whilst working on a fishing vessel when a hopper lid closed on the Plaintiff’s hand and caught it. The Plaintiff suffered wounds to three fingers, a fracture of one finger and tendon damage. The injury occurred when the plaintiff turned to his right and looked straight down to pick up a hose in his left hand. He then put his right hand out and onto the metal lip of the hopper tank to steady himself. The foam rubber seal which was around the lip of most of the hopper was missing from the section where the Plaintiff put his hand. The hopper lid closed on the Plaintiff’s hand and immediately caught it. He could not pull his hand away. He screamed out to get attention. Another crew member then immediately raised the hopper lid and came to the Plaintiff’s aid.
The primary matter in dispute is the legal relationship between the four parties.
- The Plaintiff was engaged as a fishman on the fishing vessel (Vessel);
- The Second Defendant (Owner) was the owner of the Vessel;
- The First Defendant (Skipper One) entered into a Joint Venture Owner Skipper Agreement (JV Agreement) with the Owner pursuant to which Skipper One would have full responsibility for all activities, safety, taxes, training, legal compliance, and staff on the Vessel. The Owner only provided the Vessel for which it shared in the profits; and
- The Third Defendant (Skipper Two) entered into a Change of Nominated Skipper Agreement with Skipper One because he had injured himself and for the period of 22 September 2017 and 2 October 2017 and therefore required a replacement.
The Legal Relationship between the Owner and the Plaintiff
It was argued that the Owner owed a duty to those on the Vessel to ensure such persons were not exposed to reasonably foreseeable hazards and to provide a safe working environment on board the Vessel.
The Owner was held not to be able to discharge the common law duty to take reasonable care for persons on the Vessel and therefore owed no duty.
The above obligations were to be discharged by Skipper One on a day-to-day basis and this was held to be recognised in the JV Agreement where it was acknowledged and accepted that those obligations would be undertaken by the Skipper One. This obligation was later assumed by Skipper Two whilst he was the temporary skipper.
The Legal Relationship between the Skipper One and the Plaintiff
The Plaintiff and Skipper One entered into a Share Fishing Agreement (SFA) that provided that the Plaintiff would work as a Fisherman as required and as mutually agreed between Skipper One and the Plaintiff in the operation and maintenance of the Vessel. The Plaintiff would be paid by way of a share of the profits of the voyages catch and would contribute to the expenses. The SFA expressly excluded any intention to create a relationship of either partnership or employment between Skipper One and the Plaintiff. It that there was no entitlement to annual leave, sick leave, long service leave or other benefits which usually accrue to a relationship of employment and stated that the provision of services by the Plaintiff was on a ‘fee for service‘ basis.
The court looked at the relationship between the parties holistically including the remuneration structure, and concluded that, notwithstanding the express words used in the SFA, the Plaintiff was an employee of Skipper One.
The Legal Relationship between the Skipper Two and the Plaintiff
Skipper Two did not sign any agreement with the Plaintiff. Skipper Two signed an agreement with Skipper One and the Owner which provided for his temporary appointment as skipper for the relevant period.
There was no express term of that agreement that Skipper Two would step into the shoes of Skipper One but in practical terms during the voyage, Skipper Two did stand in Skipper One’s shoes vis-à-vis the Plaintiff. This was an effective delegation of the contractual obligations owed to the Plaintiff for a temporary period.
Common Law Duty Owed by Skipper One and Skipper Two
The common law duty of care owed by an employer to their employee is a personal, non-delegable duty to ensure that reasonable care is taken to avoid exposing his employees to unnecessary risk of injury. The duty includes an obligation to take reasonable steps to provide a safe system of work.
The duty owed by Skipper One, as an employer, is non-delegable. He had a duty to provide, maintain and enforce a safe system of work. He is bound by any failure by other persons on the Vessel to meet that duty.
The obligation to provide a safe system of work arises out of an employment relationship but it can also be owed by someone other than the employer. The extent of any duty owed is defined by the role discharged by the person who might be said to owe the duty.
The Skipper Two had held a Skippers ticket for 10 years and had been fishing for 28 years and could reasonably have foreseen the same risks that Skipper One could foresee.
Skipper Two had stepped into the shoes of Skipper One for the duration of the voyage and even though he did not become the Plaintiff’s employer by reason of his assumption of that role, he stood in the shoes of Skipper One specifically in respect to the Plaintiff as it was left to him to undertake any necessary training and give appropriate warnings both to the Plaintiff and also to the rest of the crew. He was obliged to ensure that with a new and inexperienced crew member on board that all necessary safety measures were taken.
He owed a duty to the Plaintiff consistent with the duty owed by Skipper One, and it was non-delegable.
It was held that these duties had been breached by both skippers.
Occupational Safety and Health Act 1984
s19. of the Occupational Safety and Health Act 1984 (OSHA) provides that an employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards.
s19. Of OSHA provides that a person that has, to any extent, control of (a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or (b) the means of access to and egress from a workplace, shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
The court held that Skipper One had breached his duties pursuant to s19 and the Skipper Two had breached his duties pursuant to s22.
Occupiers Liability Act 1985 (WA)
S5(1) Occupiers’ Liability Act 1985 provides that the care which “an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, …..be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.”
An occupier is defined as a person occupying or having control of premises which include any vessel. The court held that during the period of the temporary appointment of the Skipper Two, Skipper One ceased to be the occupier of the Vessel and the Skipper Two became the occupier. The court went on to hold that the Skipper Two should have bought to the attention of the Plaintiff the risks associated with the operation of the hopper lids, should have instructed him on how to hold onto the Vessel whilst at sea and should have warned and directed all crew to give a warning before operating the hopper lids and to keep a look out. This duty was breached in totality.
The court therefore concluded that both Skipper One and Skipper Two were to pay Plaintiff damages in the sum of $23,595 and dismissed the action against the Owner.
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