R633 1998) v Day

R633 1998) v Day - [1940] HCA 40 - HCA 1940 case summary — Zoe

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carries on business both within the Commonwealth of Australia and overseas. 2. The company is and was at all material times the owner of the motor vessel Coptic which on 3rd September 1940 was southerly bound off the coast of New South Wales on a voyage from Brisbane in the State of Queensland to Sydney in the State of New South Wales. 3. Whilst on that voyage at about ten minutes past one on the morning of 3rd September 1940, the Coptic came into collision with His Majesty's Australian Ship Adelaide which at all material times was under the command of Captain H. A. Showers an officer of the Naval Forces of the Commonwealth and duly appointed to that position in pursuance of the Naval Defence Act 1910-1934. At the time of the collision the officer in immediate control of the Adelaide was the officer of the watch Lieutenant R. E. Morley who is and was at all material times an officer of the Naval Forces of the Commonwealth appointed in pursuance of the Act. 4. Immediately before proceeding upon the voyage the Commonwealth Naval Control Officer at Brisbane, who was also an officer of the Naval Forces of the Commonwealth duly appointed under the Act, lawfully directed the master of the Coptic to pursue a certain course upon the voyage and at all material times the Coptic pursued that course and at the time of the collision was proceeding upon that course. 5. At and before the time of the collision the Coptic was, in accord- ance with lawful instructions, proceeding upon the course as a darkened ship and without' illuminated navigation lights or any other lights. 6. At and before the time of the collision the night was dark with a clear atmosphere and the wind was westerly and of moderate force. 7. About ten minutes past one o'clock on the morning of 3rd September 1940 and whilst the Coptic was proceeding upon the voyage in accordance with the instructions and directions the look-out on the fo'e'sle head of the Coptic sighted the Adelaide dead ahead. The Adelaide was then proceeding on a general northerly course and was proceeding also as a darkened ship without illuminated navigation lights or any other lights. By reason of the circumstances prevailing it was impossible for those on the Coptic to determine the course or speed of the Adelaide or at all to observe her in the vicinity of the Coptic until it was too late to avoid collision. The Adelaide was proceeding at a high speed and within a very short period after she was first sighted by the look-out of the Coptic the starboard bow of the Adelaide came into collision with the starboard bow and the starboard side of the Coptic. 8. The company says that the collision was brought about by the negligence of the defen- dant its officers and servants as aforesaid and in particular says that the defendant its officers and servants were negligent in respect of

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after she was first sighted by the look-out or any other person the starboard bow of the Adelaide came into collision with the starboard bow and the starboard side of the Coptic. 5. In answer to par. 8 of the statement of claim the defendant denies the various allega- tions made therein. 6. In answer to par. 9 of the statement of claim the defendant does not know and cannot admit the various matters alleged in that paragraph. 7. The defendant says that the collision referred to in the statement of claim was caused solely by the negligent and improper navigation of the Coptic as herein- after appears. 8. On 3rd September 1940, the Adelaide one of His Majesty's Australian Ships of War was proceeding from Sydney on a northerly course. In pursuance of Admiralty instructions in time of war the ship was completely darkened and no navigation or other lights were exhibited. A good look-out was being kept on board of her. The weather was clear with a light northerly wind andnomoon. 9. About one o'clock on the morning of 3rd September 1940 the Adelaide was steaming at about twenty knots on a course 012° true and those on board the Adelaide observed the Coptic at a distance estimated at about two miles right ahead of the Adelaide. 10. The Coptic when first observed was proceeding in a southerly direction on a course 192° true. 11. The Coptic was proceeding on that course at a speed of about fourteen knots and was com- pletely darkened and was exhibiting no navigation or other lights. 12. The Coptic continued on her course without any alteration of her course or speed and the starboard bow of the Coptic and the starboard bow of the Adelade came into collision and considerable damage was caused to the Adelaide. 13. Prior to the collision the wheel of the Adelaide was put to starboard and the ship was turning to starboard when the collision occurred. 14. At the time when the Coptic was meeting the Adelaide end on or nearly end on there was a risk of collision but the Coptic failed to alter her course to star- board thereby failing to comply with art. 18 of the Navigation (Collision) Regulations. 15. The Coptic failed to slacken her speed or to stop or to reverse when the risk of collision must have been apparent to those on board her. 16. A proper look-out was not kept on board the Coptic. 17. The Coptic at all material times was navigated in neglect of the precautions required by the ordinary practice of seamen. 18. The collision was caused solely by the improper and negligent navigation of the Coptic. 19. At the time of the collision and at all material times there existed a state of war in which the Commonwealth of Australia was engaged. 20. At the time of the collision the Adelaide was part of the Naval Forces of the Commonwealth of Australia and was under the control of the

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The plea alleges that the officer or officers in charge of the Adelaide at the time of the collision with the Coptic were appointed pursuant to the Naval Defence Act 1910-1934. Persons so appointed are officers of the Crown serving in the Naval Forces of the Commonwealth, and the executive power of the Commonwealth is vested in the Crown (Constitution, ch. IT.). But the Commonwealth comes under no legal liability for the acts or omissions of its officers unless such acts or omissions be tortious, or in other words unless such acts or omissions would as between subject and subject be tortious ; that is, in breach of some legal duty, in the particular case, to take care. There is no doubt that those who navigate the seas must take reasonable care and use reasonable skill to prevent their ships from doing injury to others. And officers navigating the King's ships must observe like care and skill and have been held responsible in damages for injuries by reason of their neglect to exercise such care and skill (A.M.S. Sans Pareil (6); Robertson's Civil Proceedings by and against the Crown, (1908), p. 525). Indeed, that duty has been maintained although the navigating officers of the King's ships were engaged in what may be described as " warlike operations." H.M.S. Hydra (7) is one illustration; H.M.S. Drake (8) is another. In the latter case, the cruiser Deelie while in charge of its captain, the defendant, had been torpedoed and was in a disabled and damaged condition, with a heavy list to starboard. She was trying to reach port and save herself. She collided with a merchant ship and so damaged her that the merchant ship had to be beached. A suit was brought in which it was alleged that the defendant had not kept his course and speed and had exhibited improper lights. The suit was dismissed, but on the ground that the Drake was unable to avoid the collision, not through negligence, but " because there was no step that she could have properly taken in the short time that elapsed after each vessel realized what the other was doing " (per Scrutton L.J. (9) ). The case of the Warilda is possibly another instance. She was under requisition by the Admiralty on the terms of the form of charterparty called 'T.99. The charterparty did not, I gather, operate as a demise of the ship so as to make

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the necessity arose. But such necessity would be in general an actual and immediate necessity arising in face of the enemy and in circumstances when the rule Salus populi suprema lew was clearly applicable. The necessity would in almost all cases be local, and no-one could deny the right of the Crown to raise fortifications on or otherwise occupy the land of the subject in the face of the enemy, if it were necessary so to do" (1). And in The Broadmayne (2) the following passage from Chitty's Prerogatives of the Crown, (1820), p. 50, was cited with approval by Swinfen Eady L.J.: - " The King may lay on a general embargo, and may do various acts growing out of sudden emergencies ; but in all these cases the emergency is the avowed cause, and the act done is as temporary as the occasion. The King cannot change by his prerogative of war, either the law of nations or the law of the land, by general and unlimited regula- tions " (3). Indeed, the law has been clear, I think, since the judg- ment of Lord Camden in Entick v. Carrington (4), that a public officer cannot defend himself by alleging generally that he has acted from necessity in the public interest and for the defence of the realm, whether he has or has not the express or implied command of the Crown (Mackenzie-Kennedy v. Air Council (5); Raleigh v. Goschen (6) ). An "argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions" (Hntick v. Carrington (7)). " Tf any person commits . . . a wrongful act or one not justifiable, he cannot escape liability for the offence, he cannot prevent himself being sued, merely because he acted in obedience to the order of the Executive Government or of any officer of State" (Raleigh v. Goschen (6) ). He must find his justification, if any, in the common law or in some statutory provision, and it is for the courts of law to determine whether the justification exists.

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Outside a theatre of war, a want of care for the safety of merchant ships exposes a naval officer navigating a King's ship to the same civil liability as if he were in the merchant service. But, although for acts or omissions amounting to civil wrongs an officer of the Crown can derive no protection from the fact that he was acting in the King's service or even under express command, it is recognized that, where what is alleged against him is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care: Cp. Halsbury's Laws of England, 2nd ed., vol. 23, p. 666. It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common-law duty of care to avoid harm to such non- combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circum- stance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No-one can imagine a court under- taking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must

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Judgment (125 paragraphs)

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