Swinton v China Mutual Steam Navigation Co Ltd

This is an appeal by leave from an order of the Supreme Court of New South Wales setting aside the verdict of a jury and directing a new trial. The verdict set aside was obtained by the plaintiff, who is the appellant in this Court, in an action against the owners of the ship Idomeneus to recover damages for personal injuries sustained by the plaintiff while he was at work as a wharf labourer aboard the ship. The personal injuries were produced by mustard gas which had escaped from one of three drums of that gas stowed in the hold where the plaintiff was at work during the discharge of the cargo in Sydney. The jury awarded the plaintiff £1,050 damages. The date when the plaintiff was affected by mustard gas is 15th January 1943 and the action was commenced on 13th September 1948. By his declaration the plaintiff put his cause of action in two ways. In one set of counts he alleged that the defendant shipowners were occupiers of the ship, that he was on the ship at their invitation for the purpose of discharging the cargo, that in the ship was the gas which was harmful and dangerous and that the defendants were negligent in the control and management of the ship and of the gas. In a second set of counts the plaintiff alleged that the defendant shipowners had the care, control and management of the ship (not that they were occupiers), that he, the plaintiff, was lawfully in the ship for the purpose of discharging cargo (not that he was an invitee), that in the ship was the gas which was harmful and dangerous and that the defendants were negligent in the control and management of the ship and of the gas.

It appeared that Idomeneus loaded at Liverpool in November 1942 a cargo for Melbourne and Sydney. Part of the cargo was received from the Royal Air Force consigned to the Royal Australian Air Force. Some of it was described as ammunition, certain phosgene bombs were stowed in No. 4 lower hold and some containers simply called "drums" were stowed in No. 1 lower hold. In fact the drums contained mustard gas. The master was not informed of the nature of the contents of the drums, which was a matter of military secrecy. But before he sailed the explosives officer of the R.A.F. embarkation unit at Liverpool gave him written instructions to the effect that on the ship's reaching port the space where the chemical weapons, as they were called, were stowed would be inspected by a decontamination party who would be responsible for the removal of the explosives and that in case of leakage all interior fittings and linings must be thoroughly decontaminated or removed and replaced. He was told also, apparently in the shipowner's office, that he was carrying Y/3. drums and G.I. bales and he must refer to the book on dangerous cargo. The chief officer told the master that he thought the drums contained mustard gas and other officers of the ship seem to have treated it as an accepted fact, but until the ship reached Melbourne the master had no definite information about the contents of the drums. In No. 1 hatch there were upper and lower 'tween decks and a lower hold. The drums were stowed in the lower hold, the hatches of which were covered with three tarpaulins and battened down, a precaution, it may be inferred, against the escape of mustard gas from the hold. The drums were so stowed, as it was discovered afterwards, that one of them lay against a beam. The result was that the side of the drum chafed until a hole was worn in it through which the gas escaped.

Idomeneus arrived at Melbourne on 8th January 1943 and there she discharged some cargo. On behalf of the R.A.A.F. a highly skilled chemist named Wing Commander Le Fevre attended. He is now Professor of Chemistry in the University of Sydney and he was attached to the Air Force as a chemical warfare adviser with an honorary commission as Wing Commander. It was found necessary to open up No. 1 lower hold and to work it. The wharf labourers who worked in No. 1 lower hold were markedly affected by what in fact was mustard gas. Their eyes watered and became inflamed, their skin became hot and itchy and they vomited. Some of them were sent to hospital. The hatchman asked the mate whether it was not mustard gas and spoke of the similarity of the smell.

All this occurred on 10th January 1943. Next day the ship sailed for Sydney. At an earlier stage Wing Commander Le Fevre had made some chemical tests of the atmosphere of the hold, which proved negative, but he saw the symptoms of the men and discussed them with the medical officers at the hospital. He appears to have had no opportunity in Melbourne of making further chemical tests. According to the evidence of the master Wing Commander Le Fevre told him that it was not mustard gas that had affected the men but soda ash, which formed part of the cargo. The ship's agents in Melbourne, however, sent a secret communication to the ship's agents in Sydney containing an account of the manner in which the wharf labourers in Melbourne had been affected. To what they attributed it does not appear. But, as was conceded in evidence, by this time the agents, the master and the ship's officers knew that the cargo in No. 1 lower hold included drums of mustard gas.

Idomeneus arrived in Sydney on 13th January 1943. In advance of her arrival an order had been made under reg. 66 of the National Security (General) Regulations. That regulation among other things enabled the Minister by order to make provision for the shipping, unshipping, handling, storage or conveyance of ammunition, explosives or inflammable substances at any place specified in the order.

The order directed the ship to proceed to a specified wharf, there to unship the ammunition, explosive and inflammable substances. It ordered that a senior officer of the R.A.A.F. Movements and Shipping Section should there be present and perform duty and should "have control of the whole of the unshipping, handling, storage and conveyance of the ammunition, explosives and inflammable substances". The order then provided for a guard, forbade smoking and the use of matches in the vicinity of the specified cargo and commanded expedition.

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.

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.

The first point made for the defendants is that as a result of the order made under reg. 66 and of the course taken by the officers of the R.A.A.F. pursuant to the order the responsibility passed from the master and the shipowners so that they were under no obligation of care for the safety of the wharf labourers from dangers arising from the nature of the cargo in the hold they were working. This contention cannot be supported. Neither the regulation nor the order made under it purports to take the possession of the ship or any part of it out of the shipowners or to deprive the master of authority in respect of the working of the ship. The regulation is concerned with the handling of the ammunition, its unshipment and conveyance. The danger to the wharf labourers arose in the present case from the presence in the hold where they were working cargo, civilian and military without distinction, of poison gas. The injury from which the plaintiff suffered was not inflicted upon him by the cargo in course of handling it under the direction of an officer appointed under the order. He was injured by reason of a condition of things in the hold already brought about by the cargo under the defendants' control and management, a condition affecting the safety of the place where he worked. For that the defendants remained responsible.

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] .

1. (1932) 46 C.L.R. 550, at pp. 558-560. 2. (1899) 1 Q.B. 986. 3. (1899) 16 T.L.R. 55; 5 Com. Cas. 53. 4. (1951) A.C. 757. 5. (1936) A.C. 108, at p. 126. 6. (1943) A.C. 448, at p. 456. 7. (1909) A.C. 640, at p. 646. 8. (1918) V.L.R. 513; 701.

The cargo carried in the lower hold of No. 1 hatch was known from the outset to be unusually dangerous. At all events in Melbourne its true character was known to the master and officers of Idomeneus. The possibility of an escape of the gas not only existed; it was adverted to and understood. The casualties among the wharf labourers in Melbourne could be explained by an escape of gas and, in spite of the opinion expressed by Wing Commander Le Fevre, could not but arouse apprehension that a drum might be leaking. It was, of course, for the jury to attach what weight they chose to the evidence about the opinions expressed by the two chemists and, if they accepted it, to form their own views as to the credence or interpretation and effect which the master gave to them in fact or in the circumstances ought to have given to them. But in any case the situation was one placing upon the shipowners a duty of exercising through their servants a very high degree of care for the safety of the wharf labourers entering the hold. At the trial the judge's charge to the jury by no means stated the duty of the shipowners with exactness or accuracy and it tended to disregard the distinction between the shipowners and others, for example, the stevedores, who might possibly have been joined as defendants. But apparently it was not considered important to draw a distinction between the stevedore and the shipowners, perhaps for reasons that do not sufficiently appear. As to the exact description of the defendants' duty, if the defects in its statement had been completely remedied, it may well be that the defendants would have obtained no advantage and they might have suffered a disadvantage.

At all events the defendants' counsel at the trial advisedly took one objection only to the direction and to that he has consistently adhered. The objection was expressed in a request that the judge should leave this question to the jury, viz., did the defendants know or ought they to have known that there was a dangerous leak of gas in the lower hold?

It will be seen that the learned counsel based his request upon the well-known formulation of the rule in Indermaur v. Dames [1] , but treated the actual existence of a dangerous leak of gas as the "unusual danger" for the purpose of the application of the rule, so that the plaintiff could not succeed unless the jury found that the actual leak of mustard gas was known or ought to have been known to the defendants' servants.

The appeal in the end depends upon the correctness of this view of what was the "unusual danger" of which the defendants knew or ought to have known. Is it essential that the danger, the subject of such knowledge, should be the actual existence of an escape of gas or is it enough that it should be the contingency or likelihood of an escape of gas occurring or having occurred through a defect in or injury to a drum or drums or through some other mischance? From the time the drums of mustard gas were stowed the possibility of something occurring to liberate a gas of so injurious a character created dangers against the consequences of which it was incumbent upon those responsible for the control and management of the ship to exercise a high degree of care, provided they knew or ought to have known of the dangerous character of the contents of the drums stowed. They may have had no more than a suspicion of the precise nature of the contents, mustard gas, until the ship reached Melbourne. But from the beginning they knew that whatever the drums contained was dangerous and formed some description of "chemical weapon". The occurrence in Melbourne led to them receiving definite information that it was mustard gas, besides providing grounds for apprehending that mustard gas might be escaping, notwithstanding the explanation suggested by Wing Commander Le Fevre.

This situation involved a risk of a serious character for persons put to work in No. 1 lower hold. It amounted to a danger, an unusual danger. The direction which the learned counsel sought would, if given, have confined the defendants' duty of care unduly and made it depend on a condition too narrowly limited. It follows the request was rightly refused and that the verdict of the jury should be sustained. For these reasons the appeal should be allowed with costs, the order of the Full Court of the Supreme Court allowing the appeal to that Court and setting aside the verdict for the plaintiff and directing a new trial should be discharged and in lieu thereof it should be ordered that the appeal to the Full Court of the Supreme Court be dismissed with costs, not including the costs of the third party.