Gurnett v Macquarie Stevedoring Co Pty Ltd

High Court of Australia|1955-07-01|Before: Taylor JJ, Webb JJ

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Taylor JJ. Gurnett v Macquarie Stevedoring Co Pty Ltd [1955] HCA 63

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal to that court be allowed with costs, the verdict for the defendant be set aside and there be a new trial of the action and that the costs of the former trial abide the result.

Nov. 28 Dixon C.J., McTiernan, Williams and Webb JJ.

Q. Once the hook started, nobody stopped the winch? A. We sang out to him to stop, but it takes seconds before the winch can stop.

Q. You were dragged off the gantry by the hook catching in your glove? A. Yes.

Q. When you got to the edge of the gantry, you jumped; or did you fall on to the ship's side? A. I had to decide, by quick thinking, to either jump or fall straight down.

Q. At that stage, the hook had come clear of your glove? A. No.

Q. It was still in the glove? A. As I was going with it; then it came off.

Q. After you were off the gantry? A. As I was going with it, the glove came off.

Q. You were dragged off the gantry? A. It was not the matter of dragging; it was the quick thinking.

Q. Quick thinking did not get you off the gantry? A. Being caught in the glove, I did the quick thinking of making a dive for the side of the ship.

Q. Were you dragged off the gantry, still with your glove caught in the hook? A. It was dragging me off.

Q. Did it drag you off; or did you jump off? A. I did not jump. I was dragged, and I decided to jump to the side of the ship.

Q. Were you dragged off the gantry, or did you jump off the gantry? A. That is a point - I don't know whether you are trying to bamboozle me or not. It was just my quick thinking that I had to "go with it", and jump.

Q. Did you jump off the gantry, or were you dragged off, or don't you know? A. If I were to jump off the gantry, it would have been deliberate - which it was not. I went with the hook, and made for the side of the ship.

Q. You were dragged off the gantry and managed to get on to the side of the ship? A. I managed to make a dive for the side of the ship.

From this evidence, if accepted, it appears that the glove came off or gave way before the plaintiff actually fell on the ship's deck. He did not fall completely on the deck. The ship's rail was no doubt down and according to a witness the plaintiff's body fell outside the ship but so that part of his body was just hanging on to what the witness described as the lip of the side of the ship.

In the gap between such a gantry and the ship's side it is customary to stretch a net but no net was in fact stretched on that occasion. While the purpose of such a precaution may include the catching of falling goods, it is conceded that it is also to safeguard those working on the gantry. The distance between the ship's side and the gantry is stated to have been eight or ten feet and the level of the ship's deck was eight feet below the horizontal level of the gantry floor on which the plaintiff was working. The level of the concrete wharf was twenty feet below the floor of the gantry.

Myers J., before whom the action was tried, held at the end of the plaintiff's case that there was no evidence supporting the cause of action fit to be submitted to the jury and his Honour directed the jury to find a verdict for the defendant. This decision was affirmed by the Full Court, Street C.J. and Ferguson J., Roper C.J. in Eq. dissenting [1] .

It is not disputed that failure to place a net to bridge the gap between the ship's side and the gantry is evidence of negligence which would give rise to liability to a workman of the defendant who sustained injuries owing to its absence. The question of fact upon which the plaintiff's case depended was whether the absence of the net was a material cause of the injury he in fact sustained. It was of course incumbent upon the plaintiff to adduce evidence from which it might reasonably be concluded that a material cause of his injuries was the absence of a net. But it would be open to the jury to find that the defendant's negligence in failing to stretch a net was a material cause of the plaintiff's injuries, if the jury were reasonably satisfied upon sufficient evidence that when his glove was caught by the hook the absence of the net exposed him to the danger of falling on the concrete floor of the wharf and that in an instinctive attempt to avoid so falling he took a course which, though not unreasonable in the emergency, caused him to fall upon the deck in a manner occasioning his injuries. The plaintiff's own evidence, if accepted, would, we think, suffice to enable the jury to find that he in fact jumped and thereby gave additional impetus to his passage from the gantry to the deck of the ship and that he did so through fear of falling upon the concrete floor of the wharf twenty feet below. The manner in which he fell upon the deck afforded evidence that, had he not imparted impetus to his passage from the gantry to the deck, he would have fallen upon the concrete wharf. For the whole of his body did not reach the deck.

The further question whether the plaintiff would have jumped in the same manner had a net been stretched is one which must necessarily depend upon inference. But having regard to what the plaintiff said in evidence, the jury might reasonably infer that had the net been in position he would not have taken the same course.

For these reasons we think that the case ought not to have been withdrawn from the jury and agree with the judgment of Roper C.J. in Eq. Accordingly the appeal should be allowed, the order of the Full Court set aside and in lieu thereof an order made that there should be a new trial of the action.

The appeal was conducted on the basis that there was abundant evidence upon which the jury could conclude not only that no safety net was provided between the ship's side and the gantry upon which the appellant was working immediately before his injury, but also that the omission to make such a provision constituted a breach of the respondent's duty to exercise due care with respect to the appellant. The matter in dispute between the parties was whether there was evidence upon which a jury could find that this breach of duty was a material cause of the appellant's injuries.

There is no question that if, after his glove had become caught by one of the tray "legs", the appellant had fallen to the wharf and thereby sustained injury the respondent's omission to provide a net would have constituted a ground upon which it might have been held liable in damages. And there can be no doubt that if the appellant sustained his injuries in taking or endeavouring to take some step, which was not unreasonable, to avoid the consequence of the respondent's omission the latter would, equally, be liable. This, of course, is how the appellant's case is put. It is said that there is sufficient in the evidence to establish that the appellant was aware that the safety net was not in position, that when his glove was caught by the tray "leg" the possibility that he might be precipitated on to the wharf was present to his mind, that, with this in mind, he made an attempt to hasten his lateral movement towards the ship's deck and that this action on his part resulted in his injuries being caused in precisely the manner deposed to.

The evidence in the case is meagre but there is sufficient to establish that the appellant was aware that the net was not in position and that, at the material time, the appellant appreciated that its absence exposed him to the risk of a fall of some twenty feet on to the wharf. There is also evidence which, if believed, would enable the jury to conclude that when he realised that he would be dragged from the gantry he "went for the ship's side" or that he "managed to make a dive for the side of the ship". To what extent he was in a position to influence or did, in fact, influence the course of events may, as a question of fact, be open to serious dispute but in my opinion there is just barely sufficient to entitle the jury, if it accepts the appellant's evidence, to say that he was able to accelerate his movement towards the ship's side and that, having regard to the manner and position in which he struck the deck, that this acceleration resulted in the injuries which he sustained. The last-mentioned point is that upon which I have felt difficulty but although the evidence is extremely thin there is, in my view, sufficient to entitle the appellant to have the questions of fact submitted to a jury.

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