Swinton v China Mutual Steam Navigation Co Ltd - [1951] HCA 54

THE CHINA MUTUAL STEAM NAVIGA-

TION COMPANY LIMITED AND

RESPONDENTS. OTHERS.

DEFENDANTS AND THIRD PARTY,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Negligence-Ship-Cargo-Dangerous substance delivered for carriage- Mustard

gas-Military secret-Control of unshipping, storage and conveyance-Special order by Minister-Unloading hold of ship-Wharf labourer-Invitee-Injury -Leakage of gas-Shipowners and master-Knowledge of invitee-Duty of care - -Unusual danger-Damages-Liability-National Security (General) Regula- tions (S.R. 1939 No. 87-S.R. 1942 No. 557), reg. 66.

The duty which an occupier of premises owes to an invitee is to exercise that degree of care, which in the circumstances is reasonable to prevent injury from unusual danger of the existence of which the occupier knew or ought to have known. This duty is not limited to actual or imputed knowledge of the facts which constitute the unusual danger, but extends to actual or imputed knowledge of facts creating a likelihood of the existence of such a danger.

Decision of the Supreme Court of New South Wales (Full Court): Swinton v. The China Mutual Steam Navigation Co. Ltd. and Others, reversed.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court of New South Wales by William Robert Swinton against (a) the China Mutual Steam Navigation Co. Ltd. and (b), by virtue of the Law Reform (Miscellaneous Provisions) Act 1946 (N.S.W.), the China Mutual

83 CLR 554

Steam Navigation Co. Ltd. and the Ocean Steamship Co. Ltd.,

to recover the sum of £2,000 as damages for injuries said to have been sustained by him whilst discharging cargo from a ship.

By his declaration the plaintiff alleged, ( (a) and (b) ), that the defendants were the occupiers of the ship and that he was on the ship at their invitation for the purpose of discharging cargo, and that there was in the ship a harmful and dangerous gas, and the defendants SO negligently conducted themselves in and about the care, control and management of the ship and of the gas that he suffered the injuries complained of. Alternatively, he alleged that he was lawfully on the ship for the purpose of discharging cargo, and he also alleged similar acts of negligence against the defendants.

The defendants denied the allegations. By his particulars the plaintiff specified the act of negligence relied upon as the failure to give proper warning to the plaintiff that there was on the ship a dangerous and harmful gas, and the failure also of the defendants to take proper precautions to ensure that that dangerous and harmful gas did not come into contact with the plaintiff while working in the ship.

The defendants claimed from the Commonwealth of Australia, which, before the hearing, was added as a third party under the provisions of the Law Reform (Miscellaneous Provisions) Act 1946, contribution or complete indemnity in respect of any sum which the plaintiff might recover against either or both of the defendants, on the grounds (1) that the injury sued for arose whilst the plaintiff at…

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: [1951] HCA 54
Decision Date: 8 October 1951

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning a wharf labourer, William Robert Swinton, who suffered injuries from mustard gas while discharging cargo from the ship *Idomeneus*. Swinton sued the shipowners, China Mutual Steam Navigation Co. Ltd. and Ocean Steamship Co. Ltd., alleging negligence in the care, control, and management of the ship and its dangerous cargo. The shipowners, in turn, sought indemnity or contribution from the Commonwealth of Australia, which had issued a special order under National Security Regulations concerning the handling of certain military substances.

The central legal issue before the High Court was whether the shipowners had breached their duty of care to Swinton, an invitee, by failing to prevent injury from an unusual danger. Specifically, the court had to determine the scope of the shipowners' knowledge and imputed knowledge regarding the potential for leakage of mustard gas from the drums stowed in the hold, and whether this knowledge imposed a duty to warn or take further precautions, notwithstanding the involvement of Commonwealth officers under a special order. The court also considered whether the trial judge had erred in refusing to leave a specific question to the jury regarding the defendants' knowledge of a dangerous leak.

The High Court found that the shipowners remained responsible for the safety of the wharf labourers, as neither the National Security Regulations nor the order issued under them divested the shipowners of possession or control of the ship. The court reasoned that the danger arose from the condition of the hold, which was under the shipowners' management, and not from the handling of the cargo under the specific direction of Commonwealth officers. The court held that the shipowners owed a duty to exercise a high degree of care due to the known dangerous character of the cargo and the circumstances, including the incident in Melbourne, which should have alerted them to the risk of leakage, even if the precise nature of the danger (mustard gas) was initially concealed. The court concluded that the shipowners' duty extended to the likelihood of an escape of gas, not just the actual existence of a leak, and that the question sought by the defendants' counsel unduly limited this duty.

Consequently, the High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales and restoring the jury's verdict and judgment in favour of Swinton for £1,050. The shipowners were ordered to pay Swinton's costs of the appeal to the High Court and the costs of the appeal to the Supreme Court, with the jury's apportionment of liability concerning the third party (the Commonwealth) being upheld.

Orders