Shipping and Navigation - Seafarer slipped in a fishing trawler's freezer room - Liability of owner and master for negligence - Contribution between owner and master

First Respondent (First Defendant) : Ms A R Aria-Retnam

First Respondent (First Defendant) : Jackson McDonald

Coles v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995

McLean v Tedman [1984] HCA 60; (1989) 155 CLR 306

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

1 MALCOLM CJ: In my opinion, this appeal and cross-appeal should be dismissed for the reasons to be published by Pidgeon J and Murray J with which I agree. In my opinion, this was a case in which it was obvious that the appellant as owner and the first respondent as master of the fishing vessel Heirisson owed the second respondent crewman, Mr Hayes, a duty of care. The findings made by the learned trial Judge that Mr Hayes was injured when he slipped on ice which had been allowed to build up on the floor of the freezer room was uncontested. These measures were found by the learned trial Judge in the District Court to be "woefully inadequate".

2 There was ample evidence to justify the findings of the learned Judge that the master of the vessel was directly responsible for allowing the ice to build up and not ensuring that the means provided to keep the floor free of ice were employed, not warning Mr Hayes about the danger he was in, not instructing him how to avoid the danger and not ensuring that he was wearing suitable working boots.

3 Similarly, there was ample evidence to support the finding of negligence on the part of the appellant as owner of the vessel in that it failed to ensure that Mr Hayes was properly warned and instructed about the danger of slipping on the freezer room floor and failing to provide a safe system of work and a safe workplace by the installation of a suitable corrugated or ribbed floor or by equipping the freezer room with rubber matting or wooden slats of a kind which would provide a sufficient non-slip surface on which employees could work in safety.

4 It was contended on behalf of the appellant that the injuries to the respondent were solely caused by the negligence of the master in failing to ensure that the ice was regularly removed.

5 On the facts of this case, this contention must fail. As Mason CJ said in March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 518-519:

"As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it."

6 In my view, the findings that the injuries suffered by Mr Hayes were caused by the negligence of both the appellant as owner and the first respondent as master were fully justified. The issue to be determined was one of apportionment. In my opinion, the decision of the learned trial Judge was one which was not only open on the evidence but fully justified in terms of the respective degrees of control each of the appellant and the first respondent had over the vessel. As Pidgeon J has demonstrated, there is nothing to suggest that her Honour's assessment of the respective degrees of departure from the standard of care and of the relative importance of the acts or omissions of the parties causing damage was other than fully justified on the evidence.

7 I also agree with the Hon Justice Pidgeon that the cross-appeal should be dismissed for the reasons he has expressed.

8 PIDGEON J: The second respondent, Wayne Alan Hayes, was employed as one of the crew on a fishing vessel and, in the course of this employment, he received a serious back injury whilst he was stacking crates of scallops in a freezing room on board the vessel. He brought action in negligence against the first respondent, who was the master of the vessel and also against the appellant, who was its owner. Her Honour Judge Kennedy found each were liable in negligence in damages to the sum of $454,547.12. Her Honour, on contribution notices lodged by each defendant, ordered each of the defendant's to contribute to the other on the basis that the master's liability was 30% and the owner's 70%. The owner, as appellant, is appealing in respect of the apportionment claiming that the master should pay the whole of the judgment and claiming, in the alternative, that the apportionment should be varied so that the master bears a larger share. The master, as first respondent, has filed a cross appeal making a similar claim. It is common ground that Mr Hayes is entitled to the judgment against one or other of the defendants. He did not appear at the hearing of the appeal and the questions to be decided are as between the owner and the master.

9 Mr Hayes was born in 1970. He was, on or about 6 July 1992, engaged as a member of the crew of the fishing vessel Heirisson for a period expiring on 30 November 1992 this being the end of the fishing season. The circumstances of his engagement were that he arrived in Carnarvon seeking work. He was told that there was a vessel moored at the jetty looking for a crew. He had, earlier, been employed in a number of labouring jobs which included some experience as a deckhand. He boarded and spoke to the master, the first respondent. He was engaged as a crew member and later that day, after the vessel was at sea, he signed a crew agreement. The vessel was a trawler approximately 19 metres in length. It was a freezer vessel having earlier been converted from a brine vessel. The crew consisted of the master (commonly referred to as the skipper) and five other persons, whom the master described as no more than labourers. They were described as fishermen in their crew agreements.

10 The vessel, following Mr Hayes engagement, was at sea for six or seven days fishing for scallops when it returned to Carnarvon and he lived on shore for about four days. The crew did not remain on board whilst the ship was in port. When the vessel was in port both the master and crew lived on shore and the owner employed another crew to clean the vessel and prepare it for the next voyage. It was on the second trip that the accident occurred and it happened after the vessel had been at sea for some four days or so. Mr Hayes said it occurred on 20 July 1992 but he was not certain as to the time. The circumstances in which he was injured were described by her Honour as follows: (AB24)

"So far as the incident is concerned, he had never been into the freezer room before. Someone simply said to him that it was his turn to help in the freezer room. As he explains it, the freezer room has a section for snap freezing of the scallops and they are snap frozen in 15 kg bags. Once they are snap frozen they are shifted to another part of the freezer room to make room for the newly caught scallops in the deep freezing section. What he was doing was helping to shift scallops that had already been snap frozen to the other section of the freezer room. He recalled that when he went down the snap freezer switch had just been turned off and it was very misty when he went into the room. He was aware that water was taken in there on his boots and also on the scallop bags. When he was in the freezer room it was very cold and he could feel lumps under his feet and it was not the ridges on the floor, he knows that it was patches of ice and he could see parts of the floor. He saw ice but he could also sense without looking down that it was ice and not ridges on the floor. When he got into the freezer room Eric Long had taken the frozen scallops out of the trays and had them stacked on the floor so that a new lot could be put in to be snap frozen. He started to pass the scallops to Eric at Eric's request. He passed them across the front of his body and he would take about a step to do that. As he twisted his left foot slipped from under him, he felt a sharp pain in his low back and dropped the bag of scallops. He then said to Eric Long, 'I've hurt my back, I'm going upstairs'."

11 Mr Hayes said that the ship was still at the time of the occurrence. Further findings made by her Honour were that Mr Hayes, on his engagement, was not told to bring any particular gear with him. He was given a pair of boots that were already on board, but they were too small for him and the tread on the sole was worn down. He was given no instruction as to how to work in the freezer room or move about the floor. There was no warning sign at the entrance to the freezer room.

12 Her Honour, when considering the question of liability, found that Mr Hayes injured his back because he slipped on the freezer room floor which had ice on it and his boots were not adequate for the purpose of enabling him to work in those conditions without the risk of slipping. Her Honour found that the floor was "woefully inadequate as a pedestrian surface and Mr Hayes did not have adequate footwear."

Trial Judge's findings as to the master's duty to the crew

13 Her Honour commenced her determinination of liability by examining the question whether the master owed a duty to Mr Hayes. She resolved the question on the basis that Mr Hayes was the employee of the master. That was the way it was pleaded. Resort was not had to maritime law or to any statute governing the duties of masters to the crew. There was an abundance of evidence to establish the employer/employee relationship and the finding is not challenged. The vessel was a commercial fishing vessel and pursuant to the provisions of Western Australian Marine Act 1982 was required to be under the command of a person with appropriate certificates of competency. The master held these certificates.

14 The basis on which her Honour found that the master was liable in negligence was: (AB66)

"No warning was given to the plaintiff as to the presence of ice on the floor, nor was he given any instruction about it in the safety instructions given to him by the first defendant when he first went on board. It is quite clear that there was ice on the freezer room floor and no directions had been given by the first defendant as to what should be done to maintain the freezer room in a safe condition. The footwear provided to the plaintiff was inadequate in that it was too small and it was worn. Finally and most importantly the freezer room floor was, as I have already found, 'woefully inadequate as a pedestrian surface - it is not suitable for a freezer room'. On that basis the first defendant should have negotiated with the second defendant to have the freezer room floor made safe."

15 Ms Aria-Retnam, on behalf of the master, indicated that, despite the grounds in the cross-appeal, the liability of the master is not in reality being challenged.

Trial Judge's findings as to the owner's duty to the crew

16 Her Honour found on the facts of this case that Mr Hayes was not an employee of the owner. This too is not challenged. However as the contractual relationship between the parties has a bearing on the questions ultimately to be decided I shall set them out. The owner had a fleet of 17 vessels. The owner first engaged the master in 1981 as a deckhand. The master said in evidence that he did his three years as a deckhand and then obtained what he described as his "second skipper's certificate". This appeared to be a Master class IV or V under the WA Marine (Certificates of Competency and Safety Manning) Regulations 1983. The owner originally gave him command of a small vessel but he was from time to time promoted to larger vessels. A year or two before the accident he was given command of the Heirisson. It would appear that he signed an agreement with the owner at the commencement of each fishing season. The agreement current at the time of the accident was signed on 24 February 1992 and was a joint venture agreement which was to operate from that date until 30 November 1992, which I assume was the fishing season for that year. In that agreement the parties agreed to join together for their mutual profit for the purpose of operating the vessel to catch fish. The master warranted that he held current certificates of competency and would act lawfully and properly whilst operator of the vessel. The master was required to deliver the catch to the owner and the owner and master were to be remunerated for the catch in the proportion set out in the agreement. The master was to pay the wages of the crew and these came out of his share of the catch. He was also required to cover the crew for workers compensation. When a fisherman was engaged, a "crew contract" was required to be signed between the master and the fisherman.

17 The master was required, weather conditions permitting, to operate the vessel continuously during the voyage within the fishing grounds determined by the owner for the purpose of winning the catch. The master was to maintain the vessel in a proper tidy and seaworthy condition and be responsible for the efficient operation of the vessel's mechanical refrigeration. At the end of the voyage the master was required to deliver up the vessel in good condition at such port as determined by the owner. There were other covenants one would expect a master to carry out. There was a requirement for the master to observe regulations specified in the "Company Fishing Operations Manual", but there was no definition to give this more precise meaning. It is not clear whether it is the owner's operation manual or by some other body.

18 The master, as he was required to do under the joint venture agreement, arranged for Mr Hayes to sign a "crew contract". Under this agreement Mr Hayes was engaged as a fisherman and the agreement provided that he was to work as a share fisherman for the remainder of the season. He was entitled to a share of the catch, but was required to make a contribution to the working of a vessel. On the face of it, the agreement would appear to be aimed at bringing his employment within the exception referred to in s 17 of the Workers' Compensation and Rehabilitation Act 1981, which provides that the Act does not apply to the crew of a fishing vessel who contribute to the cost of working of a vessel and are remunerated by shares and the profits of a vessel. He was in fact covered for and paid workers' compenstion. He was under the command of the master whilst at sea so the relationship under the agreement could not be other than one of employer and employee.

19 Her Honour found, therefore, that Mr Hayes was employed by the master and was not employed by the owner. She said, however, that to prove that one is not an employer is not necessarily an end to one's tortuous responsibilities. Her Honour referred back to the proposition I have already set out where she said that the master should have negotiated with the owner to have the freezer room made safe. Her Honour then said: (AB67)

"It seems to me that the (owner) was the occupier of the vessel because it had control and management of the vessel in the sense that it was to supply all gear and equipment for the efficient fishing operation of the vessel and to effect any structural alteration and major repair to the vessel which cannot be effected in the course of operation by the (master). Furthermore, it was the crew of the (owner) who cleaned out the vessel at the end of each voyage. It seems to me that the (owner) had control and management of the vessel to such a degree that it should have realised that a failure on its part to exercise care may result in injury to a person working on the vessel: Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375."

20 Her Honour made a further finding that the safety policy was set by the owners and the masters followed that policy. Her Honour found, therefore,that the owner owed a duty to Mr Hayes. She found that he was in breach of that duty for reasons to which I shall later refer. She found this breach contributed to Mr Hayes' injury.

21 Mr Zilko, appearing on behalf of the owner as appellant, accepted that the owner did owe the crew a duty, but he submitted that there was no breach of duty on the owner's behalf which was a cause of or contributed to Mr Hayes' accident. This prime point can be extracted from prolix particulars purporting to support one ground of appeal, namely that her Honour's apportionment was against the weight of evidence. I propose to deal with it as a substantive ground of appeal and as the first to be considered. It was argued on this basis.

22 In order to understand Mr Zilko's submissions, it is necessary to refer in greater detail to the evidence as to the cause of the accident and her Honour's findings thereon. Mr Hayes, in support of his claim as plaintiff, called as a witness, Mr W J Apgar, an industrial engineer, whose evidence her Honour accepted. Mr Apgar in his report said that in order to create a safe pedestrian surface in a freezing room a special pedestrian surface such as wooden slats or rubber mats must be provided. He said that these items must be capable of being removed so that they can be thawed and cleaned. He said that alternatively, cleated boots could have been provided which give an adequate grip on ice as well as other pedestrian surfaces. He then expressed his conclusion that a proper pedestrian surface had not been provided. He repeated the proposition that the surface should consist of wooden slats or rubber mats which would allow spilled water to drain away and not create an icy surface. He said that in addition, "steel toed boots should be provided for persons handling blocks of frozen seafood." In cross-examination he said that the floor was "woefully inadequate" and this was the basis of her Honour's finding. Her Honour indicated in her reasons that she formed a similar judgment independently of Mr Apgar's views by her looking at the photographs.

23 Although the floor surface in the freezer room had some corrugations in it, there were no wooden slats or rubber mats available on the vessel. The owner had, however, provided the master with a pick and scraper to remove the ice. It was Mr Zilko's submission that had the master followed proper procedures and used the equipment made available to him by the owner, then the accident would not have occurred. It was submitted that it was to be expected that the master, by proper ship inspections and by the use of these implements, would keep the floor free of ice.

24 The next submission with which I shall deal is the submission that the evidence showed that it was the master's duty to see that the crew were wearing proper boots. The evidence of the master was that the wet weather gear, including boots, were normally supplied by the crew. The master said in evidence that if a person were engaged who did not have boots, then the master would arrange for that person to go to the local store to purchase them. He said that they would not sail without boots. The evidence showed, however, that at the time Mr Hayes was engaged, there were on board a number of pairs of boots that appeared to be of a uniform type, but of different sizes. The evidence does not show how they came to be on board, or whether they had been left by departing crew members. When Mr Hayes was engaged he was told to select a pair of these boots. Mr Hayes said he selected a pair. It was Mr Zilko's submission that this evidence made clear it was the master's responsibility to see that the crew were wearing proper boots.

25 The submissions as to the failure to provide the wooden slats and rubber mats were that if the master complied with his obligations of providing proper boots and of keeping the floor free from ice using the equipment supplied, the slats and mats would not be necessary. The submission goes further in as much as it is claimed that the satisfactory use of the mats as referred to in evidence is still dependent on the master carrying out proper procedures of having them regularly removed, so that they could be thawed and cleaned. Mr Zilko points to the evidence of the master whereby he said he did not think slats and mats were necessary or satisfactory.

26 The common law provided for a high degree of liability on owners for the loss of the cargo. This was by reason of their being common carriers. This liability was modified by Parliament through the various Merchant Shipping Acts. However at common law there was no implied warranty as between the owner and a seaman that the ship was seaworthy. This was made clear in the case of Couch v Steel 1854 3 Ellis & Blackburn 402[1854] EngR 7; , 118 ER 1193. In that case the seaman entered into the contract with the master to serve on a barque. The master was agent of the owner. The seaman brought action against the owner alleging that the barque at the time of her sailing was wholly unseaworthy and in a leaky and dangerous condition and unfit to be sent to sea. It was alleged further that by reason thereof the plaintiff was unable to sleep in his hammock and was continually wet and thereby, and by reason of the excessive unreasonable labour that he was compelled to perform in consequence of the unseaworthy, leaky and dangerous condition of the barque, became sick. It was held that the count was bad, there being no allegation of knowledge. It is apparent from the reasons of Lord Campbell CJ that if the owner had knowledge of the defect the owner would be liable. The court held however that the action could be maintained on a second count alleging an injury arising from a breach of a statutory duty under the statute of 7&8 Victoria c112 s 18 requiring a shipowner to have on board proper medicine. Statutes then existing and subsequently passed provided obligations of both ship owners and masters in respect of the crew. These were consolidated in the Merchant Shipping Act 1894 (Imp) which had application in Western Australia until portions were modified or repealed either by Commonwealth or State legislation. We were informed by counsel that they were not relying upon any statutory provision governing the relationship of the parties and we were referred to no such provision.

27 Her Honour's enquiry as to the extent to which the owner had control of the vessel corresponded to the common law requirement of proving knowledge. The extent of the control as found by her Honour would have given the owner knowledge of the condition of the floor of the freezing room. The owner supplied the vessel and the owner had complete control of the vessel when it arrived in port and a different crew supplied by the owner prepared it for sea again. I consider the position is given further strength by the nature of the contract between the owner and the master. The fact that they were in joint venture with the owner supplying the vessel would give rise to a duty of care on the part of both the owner and master to those employed on the vessel.

28 The owners accepted this duty. At the commencement of the season there was what was described as a skippers' meeting called by the owner at which directions as to safety are given. The owner employed a person known as a fleet master to give directions as to safety. It was the company policy that the masters give a safety lecture when the crew come on board. As I mentioned, Mr Zilko accepted that there was a duty of care on the part of the owner to the crew. The submission is that the owners did all they could and it was in the area of a failure of the master's responsibility that was the cause of the accident.

29 Her Honour found, amongst other things, that the owner failed to provide a suitable non-slip surface in the freezer room. In my view it was open to reach this conclusion. I would see it as an owner responsibility to provide the slats and mats referred, to if they were necessary. I consider there was an obligation to provide a safer floor as it would not be sufficient to rely on the fact that the master would regularly inspect the area and would use the pick and scraper provided. The evidence showed that the master was the only person on board capable of undertaking such things as navigation and the proper inspection and running of the vessel. His experience in this area appeared to be limited to being himself a deckhand for three years. I would see a foreseeable possibility, that in the absence of instructions and fleet standing orders, there would not be regular inspections and the use of the tools provided. There is every indication that more fleet standing orders and instructions were necessary having regard to the type of persons the masters were and the duties they were required to perform. Her Honour found also that the owners were responsible for failing to place warning signs. Again, I consider it was open to her to find that this was a requirement and was an owner's responsibility.

30 I would on the evidence see it as primarily the masters duty to supply suitable boots. However I consider it should have become apparent to the owner when the ship was at shore that inadequate boots were on board and likely to be used.

31 I would not disturb the findings as to the negligence of the owner.

32 The alternate ground of appeal brings into question the apportionment made by her Honour and as I mentioned, claims that the greater apportionment should have been against the Master.

33 The principles to be applied in determining an apportionment as between a defendant found negligent and a plaintiff guilty of contributory negligence were referred to by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494 where it was said:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42 - 49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

34 The court's reference to the degree of departure from the standard of care of a reasonable man was taken from Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16. The court in that case was considering the provisions of the Tasmanian statute, which required the damages recoverable by a plaintiff who is guilty of contributing negligence to be reduced to such extent as the court thinks "just and equitable", having regard to the complainant's share and the responsibility for the damage. The principles of determining contribution between two defendants found liable is governed in this State by s 7(2), which provides that the contribution recoverable shall be such "as may be found by the court to be just and equitable". In these circumstances I would see the principles as being the same.

35 Her Honour considered that the question of apportionment was governed by the amount of control each had over the vessel and for my part, I would see this as the correct approach. The degree of control in the circumstances of this case would have an important bearing on culpability, in so far, as if the owner of the vessel being the employer of the master has a significant degree of control, that would cause its culpability to be greater. Here the owner had control of the design of the floors themselves and of the general procedures which should operate within the fleet. The owner was in exclusive occupation of the vessel when it was at shore and the crew the owner employed prepared the vessel to go to sea again. This would require a proper inspection for safety. The fact that the master was of limited experience in administration and was the only person on board with navigational qualifications were factors to indicate that a higher degree of supervision of safety matters was required by the owners.

36 The case of Pennington v Norris was an early, if not the first case, where the High Court examined the effect of Acts similar to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947. It was said at p 15 that such an enactment intended to give a very wide discretion to the Judge or jury entrusted with the original task of making the apportionment. The court said that much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable and that it expected that cases will be rare in which the apportionment made can be successfully challenged. Since then there have been a number of cases where the apportionment has been successfully challenged, but the above principle remains paramount. In the present case her Honour carefully looked at all factors. I have referred particularly to factors that point to a higher degree of culpability to an owner. All these were matters considered by her Honour and I am in no way persuaded that her Honour was wrong in the judgment she reached.

37 For these reasons I would dismiss the appeal by the owner.

38 As mentioned Ms Aria-Retnam is not contesting the finding that there was a liability by the master to Mr Hayes. She said the purpose of the master's cross appeal was to enable a reassessment to be made in the event of the court reassessing the apportionment found against the owner. If there was no such reassessment she indicated that she had no argument with the present assessment. The principles to which I have already referred would make it clear that this Court could not, on the facts of this case, interfere with the assessment.

39 For these reasons both the appeal and the cross appeal are dismissed.40 MURRAY J: In this matter I have been assisted by having had access to the reasons for judgment of Pidgeon J in draft form. For the reasons given by his Honour, I too would dismiss both the appeal and the cross-appeal.

41 To my mind both appeal and cross-appeal were misconceived. The second respondent, Hayes, sued for damages in negligence for the serious back injury which he sustained and the disability which it occasioned. In the circumstances of this case, there could be no argument that both the present appellant, the owner of the vessel, and the first respondent, the master, owed Hayes a duty of care. Nor could there be any argument that both breached the duty imposed upon them. Hayes sustained his injury when he slipped on ice which had been allowed to build up on the floor of the freezer room. The measures taken to prevent the ice building up and to prevent the floor becoming slippery were found by Kennedy J at trial in the District Court to be woefully inadequate.

42 The evidence strongly supported her Honour's findings that the master of the vessel was directly responsible for allowing the ice to build up, for not ensuring that the means provided to keep the floor free of ice were employed, for not warning Hayes about the danger he was in, for not instructing him how the danger was to be avoided, and for not ensuring that he was properly shod.

43 Her Honour found the owner of the vessel was in breach of its duty of care in failing to ensure that Hayes was properly warned and instructed about the danger and in failing to provide a working environment which was reasonably safe, by the use of a suitable corrugated floor and by equipping the freezer room with rubber matting or wooden slats which could be dealt with so that an adequate non-slip surface on which to work was provided.

44 So far as the appellant was concerned, as the owner of the vessel, the question then was whether Hayes had established that its breach of duty was causally related to the receipt of the injury for which he sued, at least in the sense that the fault of the appellant materially contributed to the harm he suffered. The concept of causation of injury and loss in the law of negligence has been much discussed by the High Court of recent times. Reference may be made to such cases as March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408; Chappel v Hart (1998) 195 CLR 232 and Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, per Deane, Dawson, Toohey and Gaudron JJ at 6, where the utility of the "but for" test is discussed in connection with the concept of a break in the chain of causation resulting from some act or event which intervenes between the defendant's breach of duty and the harm suffered by the plaintiff.

45 That is, effectively, the appellant's argument in this case. It submits that although it may have contributed to a situation in which the ice built up on the floor with consequent danger to a member of the crew, it was the fault of the master in failing to ensure that the ice was removed which was the sole or true cause of the receipt of Hayes' injuries.

46 That is a submission which I cannot accept. The answer to it, in my respectful opinion, is that provided by Mason CJ in March at 518 - 519:

"As a matter of both logic and commonsense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in commonsense, logic or policy for refusing to so regard it."

47 In this case, Hayes' injuries were caused by the negligence of both the appellant and the first respondent. He would not have received them had not both those parties contributed their fault. It then became a matter for the apportionment of the degree to which each had contributed to the harm suffered by Hayes, and as to that issue, I have, with respect, nothing to add to the reasons of Pidgeon J.