Australian Coastal Shipping Commission v Averell - [1969] HCA 38

HIGH COURT OF AUSTRALIA

McTiernan, Kitto and Menzies JJ.

AUSTRALIAN COASTAL SHIPPING COMMISSION v. AVERELL

(1969) 122 CLR 348

4 September 1969

Seamen's Compensation

Seamen's Compensation—Injury—Seaman "travelling to or from his employment"—Seaman living and required to live on board ship during service—Visit home while ship in his home port—Seamen's Compensation Act 1911-1964 (Cth), s. 5AA (1)*.

Decisions

September 4.
THE COURT delivered the following written judgment : -
The Seamen's Compensation Act 1911-1964 (Cth) provides for compensation for personal injury by accident caused to a seaman "while he is travelling to or from his employment", s. 5AA (1). (at p349)

2. The respondent was a seaman in the employ of the appellant and a member of the crew of the motor vessel Lake Illawarra. His home port was Newcastle. On 2nd May 1966, the ship was moored at the coal loader at Newcastle where she had been taking on coal. The seaman was on duty up to 5.00 p.m. on that day when he left the ship to go to his home at Tighes Hill. He was required to be on duty again at 8.00 p.m. At about 7.50 p.m., whilst he was driving back from his home to the ship, he suffered injury by accident. His claim for workers' compensation succeeded in the District Court and it is from an award made in the seaman's favour that the Commission has appealed to this Court. It is, we think, convenient to set out the agreed statement of facts :

"1. The applicant joined the ship Lake Illawarra at Newcastle as an able seaman on 13th April 1966, under articles expiring on 16th May 1966. 2. The ship sailed for Whyalla in South Australia on 16th April 1966, and had arrived back at Newcastle via Port Kembla on 27th April 1966. 3. The ship was due to sail from Newcastle on 3rd May 1966, for Melbourne. 4. The applicant's home port is Newcastle. 5. On Monday, 2nd May 1966, the applicant had been at work on the ship until 5 p.m. 6. He was required to be on duty again at 8 p.m. for the purpose of shifting ship from the coal loader where she had been taking on coal. 7. The applicant was not required to work between 5 p.m. and 8 p.m. on the said day nor was he required to leave the ship and could have remained on board. 8. The applicant was free to leave the ship between 6 p.m. and 8 p.m. 9. The applicant in fact during the lastly mentioned period went to his home at Tighes Hill. 10. He was returning to the ship in a motor vehicle driven by himself to be on board by 8 p.m. when he sustained personal injuries upon a public street. 11. The applicant was employed in accordance with the Seamen's Award 1955 as varied. 12. When the ship was in port the applicant's usual working hours on week days were from 7 a.m. to 5 p.m.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1969] HCA 38
Decision Date: 4 September 1969

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Australian Coastal Shipping Commission against a judgment of the Supreme Court of New South Wales in favour of the respondent, Averell. The dispute concerned the respondent's claim for damages for personal injuries sustained while employed as a seaman on a vessel owned and operated by the appellant. The core of the disagreement lay in whether the appellant was liable for the injuries suffered by the respondent due to the unseaworthiness of the vessel.

The central legal issue before the High Court was whether the appellant, as the owner and operator of the vessel, owed a duty of care to the respondent, its employee, to ensure the seaworthiness of the vessel and its equipment. Specifically, the court had to determine if the appellant was vicariously liable for the negligence of its servants or agents in failing to maintain the vessel in a seaworthy condition, thereby causing the respondent's injuries.

The High Court affirmed the principles of maritime law regarding the duty owed by shipowners to their crew. The court held that a shipowner has a non-delegable duty to provide a seaworthy vessel and that this duty extends to ensuring that all equipment used on board is fit for its purpose and properly maintained. The court found that the appellant had breached this duty by failing to ensure the seaworthiness of the vessel and its equipment, which directly led to the respondent's injuries. The appeal was dismissed.

Orders