Swinton v China Mutual Steam Navigation Co Ltd

Swinton v China Mutual Steam Navigation Co Ltd - [1951] HCA 54 - HCA 1951 case summary — Zoe

[11]

It is not clear upon the evidence who was the duty officer for the purpose of carrying out the order. However, on the arrival of the ship a conference was held with the master at which a Wing Commander Alder as well as Wing Commander Le Fevre was present. Representatives of the ship's agent and of the stevedoring company and a civilian chemist were also present. The last was employed by the ship's agents to give technical advice and information. According to the evidence given in support of the defendants' case, the master asked what should be done to prevent a recurrence of what happened in Melbourne and suggested that gas masks should be worn by the men working No. 1 hatch. An examination of the atmosphere in No. 1 hatch above the lower hold had already been or was about to be made by Wing Commander Le Fevre and by the civilian chemist. The examination was by smell and by drawing a certain volume of air through a chemically impregnated reagent paper and afterwards treating the paper. The results of the examination were negative and the two chemists expressed the opinion that there was no sufficient concentration of gas to be injurious to the men. The effect produced in Melbourne upon the men was explained as due to soda ash and the spilling around the opening of the hatch of other chemicals which the boots of the men brought in contact with the soda ash. The master asked to what the vomiting was attributable and threw doubt on the explanation. Someone said that to insist on the men wearing gas masks would be to reveal that phosgene or mustard gas was included in the cargo. Wing Commander Alder thought it impracticable to insist on the wearing of gas masks. Wing Commander Le Fevre appears to have supported the proposal that the men should wear gas masks. In his evidence he said that at some time he told the master that it was possible that the cause of the mischief in Melbourne was mustard gas. But otherwise he maintained the position he had taken up that it was due to soda ash and chemicals. In evidence he said in effect that he did so partly because the test he applied for mustard gas gave a negative result and in any event he could recommend the right course of wearing gas masks even if it were for a wrong reason and partly because it was imperative to guard as closely as possible the secret that mustard gas formed part of the cargo. The master demanded certificates in the case of each of the holds of No. 1 hatch before the men began to work it.

[12]

Wing Commander Le Fevre certified that on the evening of 13th January he inspected the atmosphere of all sections of No. 1 hold and could not detect the presence of mustard gas by smell but stated that it was arranged that they make a more complete examination when the hatch covers were lifted. At 5.45 p.m. on 14th January he gave a certificate that he had inspected the lowest section of No. 1 hold and, as in Melbourne, had been unable to detect the presence of mustard gas vapour by smell and that a chemical test had shown a similar negative result. He went on to state that he was therefore certain that No. 1 hold did not contain a concentration of mustard gas vapour sufficient to endanger men working there. "However", he proceeded, "in view of the events occurring in Melbourne under the same circumstances I recommend that the men should wear respirators." The civilian chemist gave short written statements of his opinion of the conditions as on the evening of 13th January, 6 p.m., and again on 14th January and as at 4 a.m. and 7.30 a.m. on 15th January. The effect of these statements was that he was unable to detect any vapours, b%21ut he strongly recommended the use of respirators. Whether the men were in fact asked to wear respirators and whether respirators were actually provided was a disputed issue at the trial. The lower hold in No. 1 hatch was opened up about 3 a.m. on 15th January and the gang proceeded to work it about 3.30 a.m. The plaintiff was a member of the gang. As they worked through the shift they suffered increasing discomfort. Throat, nose and eyes were irritable. Their eyes watered and became inflamed. There was an unpleasant smell, like rotting vegetables, a smell which had come from the hatch of the lower hold before it was opened up. In shifting cargo they had disturbed the tarpaulins and the smell then manifested itself in the 'tween decks. They ceased a few minutes before 7 a.m., and as the morning wore on a number of them, including the plaintiff, became badly affected by the injurious consequences of exposure to mustard gas. The fourth officer of the ship, who was on duty at No. 1 hatch, was also gassed. According to his evidence seven gas masks belonging to the ship were made available to the men, who picked them up. According to the plaintiff's evidence this did not occur; there were no gas masks available and the men did not try gas masks. In this he was borne out by another member of the gang whom the plaintiff called as a witness and by the watchman. There was evidence in support of the fourth officer's story, but the jury must be taken to have accepted the plaintiff's case upon this question. It was pointed out as a fact lending probability to the plaintiff's version that, wearing gas masks, the gang could not possibly have worked through a full shift and that nevertheless no second gang was provided. But, however this may be, it is enough that upon a definite and clear issue there being evidence both ways the jury found for the plaintiff.

[14]

The part that the officers of the R.A.A.F. played may have contributed to the danger or weakened the efforts of the master to prevent injury to the wharf labourers. But they did not and could not relieve him of his duty of care. The defendants took the view that because of the part such officers played the Commonwealth was liable to indemnify the defendants or to contribute to the damages awarded against them and accordingly joined the Commonwealth as a third party. The conduct of the trial was not simplified by the presence of the Commonwealth, which the plaintiffs had not chosen to join as a co-defendant. But nothing turns upon the position of the Commonwealth, which the jury found should contribute twenty-five per cent of the damages awarded to the plaintiff. As between the plaintiff and the defendants the defendants remained responsible for the exercise of that measure of care which the law imposes upon a shipowner with reference to the safeguarding of stevedores' labourers from unusual dangers when they come aboard the ship to work her. Apart from the issue whether gas masks were provided, which must be taken to have been found in the plaintiff's favour, the facts gave the plaintiff a strong case. A wharf labourer employed by a stevedore who has undertaken the discharge of the ship on behalf of the shipowner enters the ship's hold upon business in which the shipowner has a material interest (see Lipman v. Clendinnen [1] ). He is an invitee: Marney v. Scott [2] ; cf. Scott v. Foley; Aikman & Co. [3] . This is the assumption on which the decision of the House of Lords proceeds in London Graving Dock Co. Ltd. v. Horton [4] . The defendants were therefore under a duty to exercise reasonable care to prevent injury to the plaintiff from unusual danger in the place to which he came as an invitee, that is, from unusual danger of which the defendants by their servants knew or ought to have known. The degree of care required is that which is reasonable in the circumstances - "The degree of care which (the) duty (of care and skill) involves must be proportioned to the degree of risk involved if the duty should not be fulfilled" - Lord Wright for the Privy Council in Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. [5] . In other words, the measure of care increases in proportion with the danger involved in the custody or control of an agency potentially harmful, that is to say, the danger should the safeguards employed, if any, prove insufficient or unsuccessful. "The degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life." - per Lord Macmillan, Glasgow Corporation v. Muir [1] . See further per Lord Dunedin in Dominion Natural Gas Co. Ltd. v. Collins [2] and Faulkner v. Wischer & Co. Pty. Ltd. [3] .

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Before

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Judgment (20 paragraphs)

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Cited By (1)