Ferguson v Union Steamship Co of New Zealand Ltd

Ferguson v Union Steamship Co of New Zealand Ltd - [1969] HCA 73 - HCA 1968 case summary — Zoe

I heard this case in September last in Adelaide. I regret that because of illness I have not been able to deliver judgment until now. I regret it the more because the events out of which the case arises occurred over five years ago, on Christmas Day 1962. The plaintiff was then a member of the crew of the s.s. Kootara. He was an able seaman. He was then, and is, a British subject whose home then was and is in Adelaide. The defendant was the owner of the ship. The ship, a sea-going vessel engaged in inter-State trade, was an Australian trade ship as defined by the Commonwealth Navigation Act 1912-1965. Generally speaking she traded between Port Pirie in South Australia and Risdon in Tasmania. On many voyages she called at Burnie on the north coast of Tasmania to take in a cargo of lead concentrates to be discharged at Risdon. In the afternoon of 25th December 1962 she entered the port of Burnie and there made fast to a wharf called "the ore wharf", or, more properly, "McCaw Pier". After the ship had been made fast the plaintiff with other members of the crew was engaged in removing the covers from a hatch in readiness for the receipt of cargo. At about 3.45 p.m. the plaintiff fell through a space between two of the hatch covers, or lids as they were called, into the hold below, a distance of some twenty feet. He was badly hurt and was a long time away from work. He was paid by the defendant $807.50 as wages, pursuant to s. 132 of the Navigation Act; $1,537.61 pursuant to the Seamen's Compensation Act; and $824.91 for medical and hospital expenses - a total of $3,170.02. He later claimed a further sum from the defendant as damages, alleging that his fall was the result of the negligence of the defendant. It was said that he was required to work in a way which was not a safe system of work. Further it was said that a winch used in removing the hatch covers was defective; but it was not alleged that for this reason the ship was unseaworthy, cf. Christiansen v. Gilday [1] . Alternatively or in addition to the claim that the defendant was negligent, the plaintiff alleged it was vicariously liable as the alleged negligence of a member of the crew, one Bellgoerdt, had it was said caused the accident.

[7]

The plaintiff's case on the facts thus depends upon, and stands or falls with, the allegations that the mishap was caused by the negligence of the fellow member of the crew, Bellgoerdt, and that for the consequences of this the defendant is vicariously liable. Put briefly, the relevant facts are that the practice in removing the covers of the hatch was to move each in turn aft and to stack them on deck against the after deck housing. This could be accomplished by means of a winch situated forward of the hatch. Each cover was connected in turn to a wire running from the winch through a block aft of the hatch. By operating the winch the cover to which the wire was then connected could be pulled aft and raised and stowed. The plaintiff's case is that he was one of a gang concerned in this work. He was in fact in charge of the gang in the absence of the bosun who was working elsewhere. Bellgoerdt was the winchman. The plaintiff says that in the course of the work he stood on one cover to connect the wire to the lug on it with a view to its being moved by the winch: that having done so he was about to step across a small gap on to the next cover forward when, without any signal to the winchman, the cover from which he was about to step forward unexpectedly moved aft: that he thus lost his balance and fell through the enlarged gap between the cover on which he was and the one to which he had intended to step. The plaintiff was working on the starboard side of the hatch before he got on top of a cover to hook the wire on the lug. Another man, Roberts, was on the port side. A third, Innes, was on the starboard side with the plaintiff. The covers are heavy but being on rollers they can sometimes be moved aft by men pushing them on each side. Sometimes a crowbar is needed to free them at the start. If a cover were moved by pushing it, the winch need be used only when it had reached a position at the after end of the hatch. It would then be raised by the winch and stowed on deck against the wall of the after deck housing. When the covers could not be conveniently moved by manpower, the winch was used to pull them into position. The evidence is somewhat conflicting as to exactly what was done on this occasion. Bellgoerdt's account differs considerably from that of the plaintiff. He denied having prematurely set the winch in motion. He gave his evidence in a vehement, dramatic and decided way. I do not think that he was consciously untruthful; but I do think that probably he had mistakenly thought that the plaintiff, when he saw him stand up, had in fact got clear and was ready for the cover to which he had attached the wire to be moved. Innes gave evidence which in essentials corroborated the plaintiff. He said definitely that he saw the cover move.

[8]

Roberts was not called. He was at the time of the hearing in New Guinea, and had been there for some time. No application was made for his evidence to be taken on commission or given on affidavit. But letters which he had written in response to a request by the plaintiff were tendered in evidence. These, it was suggested, were admissible under s. 34C of the Evidence Act, 1929-1957 of South Australia. I rejected these letters for two reasons. First, if the South Australian provision were applicable and the witness was within the meaning of it "beyond the seas", I was not satisfied that the statutory conditions excusing his attendance had been met. He said in a letter that, being apprehensive that some action might be taken against him by his wife and by creditors if he came to South Australia, he would hide and evade service of a subpoena. Whether these statements, if true, would meet the statutory condition that it was "not reasonably practicable to secure his attendance" was I thought doubtful. Moreover I am not satisfied that the existence of the conditions for the admissibility of a written document relating to facts in issue can themselves be proved by an unverified written statement. Secondly, Mr. Zelling frankly brought to my notice that to admit the letters relying on the South Australian statute could be contrary to the Judiciary Act 1903-1959 Cth. As I was sitting in South Australia the South Australian laws relating to procedure, evidence and the competency of witnesses would be binding upon me (Judiciary Act, s. 79), but only "except as otherwise provided by the Constitution or the laws of the Commonwealth". And there is a law of the Commonwealth on the matter, the High Court Procedure Act 1903-1950, s. 21. This provides that, except as in that Act provided, testimony at the trial of causes shall be given orally in open court. This alone would require me to reject the letters of a witness who was not available for cross examination. The most that can be said in the circumstances is, I think, that it could not be suggested that the reason why Roberts was not called as a witness was that the plaintiff feared that his evidence would be hostile.

[17]

It was held in Nagrint v. The "Regis" [1] , following The "Yuri Maru" [2] that the jurisdiction which this Court thus has is such jurisdiction in Admiralty as the High Court of Justice of England had when the Colonial Courts of Admiralty Act became law in 1890. At that date the High Court of Justice had, by virtue of the Judicature Acts, succeeded to the jurisdiction which the High Court of Admiralty formerly possessed. The above-quoted words in the Act of 1890, "the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England", must, I think, mean such jurisdiction in Admiralty as by the Judicature Acts or by any other statute enacted before the Colonial Courts of Admiralty Act, 1890 had become vested in the Admiralty Division as proper subjects for that Division. It is true that the Admiralty Division can, in an appropriate case, exercise the jurisdiction exercised by any other Division of the High Court of Justice. It has therefore been said that any action in personam may be brought in the Admiralty Division, although if it be not of a kind normally cognizable there it may be transferred: see Williams v. Bruce, Admiralty Practice, 3rd ed. (1902), p. 77. But, as I have said, the jurisdiction of a Colonial Court of Admiralty is in my view confined, both in actions in personam and in rem, to causes and matters which were, strictly speaking, subjects of Admiralty jurisdiction in England in 1890. Primarily these are causes and matters which would have been "within the exclusive cognizance" of the High Court of Admiralty if the Judicature Act of 1873 had not been passed: see s. 34 of that Act; and see McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [1] ; F. Kanematsu & Co. Ltd. v. The Ship "Shahzada" [2] . Mr. Zelling, who appeared for the plaintiff, accepted this position. He urged that this Court has jurisdiction in this case on one or other, or both, of two bases. These may be conveniently abbreviated in description as follows: one that the claim is for damages for a tort committed on the high seas; the other that it is for "damage done by a ship" within the meaning of s. 7 of the Admiralty Court Act, 1861 of the United Kingdom. I shall consider these separately and in turn.

[37]

Damages: The plaintiff was aged thirty-four at the time of the accident. He had been a seaman for many years. He was found in the Burnie Hospital to have multiple injuries consisting of crush fractures of the ninth and tenth dorsal vertebrae, a fracture of the right wrist and a fracture of the bone of the right heel. He was in Burnie Hospital for nine days and was then moved to the Spencer Hospital at Wynyard in Tasmania, where he was for about six weeks. From there he was brought to Adelaide. He was in the Royal Adelaide Hospital for a fortnight; and thereafter he attended for some time at the outpatients' department there for physiotherapy. On 19th May 1964 he was able to take work again as a seaman. Some disabilities, however, remained and these have affected the range of his recreational activities and produced at times discomfort and pain. I do not think it necessary that I state in medical terminology and in detail what is now the extent of his physical disabilities. The parties most commendably agreed to written reports by Sir Leonard Lindon and Dr. D. C. Paterson, both distinguished surgeons, being taken as evidence without the need to call the writers. They had examined the plaintiff several times - the former at the request of the solicitors for the plaintiff, the latter of the solicitors for the defendant. Their conclusions and predictions do not greatly differ and I have derived much help from what they have carefully written. I need say no more than that the plaintiff has indeed made a good recovery. He may get still better, but some occasional aches and pains will probably persist. There is a real possibility of post trauma arthritis, especially in his neck and right foot, becoming troublesome in the future. As a result of the injury to his foot, which prevents him standing for long periods and carrying heavy weights, he is not well able to undertake all the duties aboard ship which formerly he could. I have taken into consideration that there is some limitation of his earning capacity. But I am not disposed to measure it by the conditions of his employment now as compared with those in the past. He returned to service on sea-going ships trading between South Australia and Tasmania. He abandoned this in order to serve on a vessel which runs only short distances in South Australian waters. This employment is less remunerative than other employment might be as there are not the same opportunities to earn money by overtime work. But he went to work on this vessel mainly so that he could be more at home and see more of his family. For general damages, including past and prospective pain and suffering, diminished capacity both economic and in other ways, and the possibility of future medical expense I think he should be awarded a sum of $5,250. The special damages for outgoings - including doctors' fees etc. and $4,742 for loss of earnings from 26th December 1962 to 11th May 1964 after deduction of tax - are agreed at $5,675, making a total of $10,925. From this must be deducted the amounts paid by the defendant (Seamen's Compensation Act, s. 10A (3)). These, as I have said, amounted to $3,170. I therefore assess the total sum payable by the defendant to the plaintiff for damages as $7,755. I made no deduction on the basis of any negligence on the part of the plaintiff. It was suggested that his wearing "thongs" made him more likely to slip than if he had been wearing some other kind of shoes. This may be so; but there was no evidence that his falling was in any way caused or contributed to by his footwear.

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Parties