O.11886. HL. Grea, Govt, Print,, Melb. DE GIOTA DARLING ISLAND. STEVEDORTNG AN LIGHTERAGE COMPANY LIMITED. REASONS FOR JUDGMENT ~DELIVERED. AT. SYDNEY. TUBSDAY..THE.... FOURTEENTH DAY OF APRIL, 1942. aN MURO DE GIOLA v. DARLING ISLAND STEVEDORING & Coy. Ltd.» Judgment. leks This is an appeal from an order of the Supreme Court of nel South Weles made in an action brought by the plaintiff for neglig- ence against the defendant Company, which set aside the verdict for the plaintiff, and directed a verdict to be entered for the defend- ant. The plaintiff is a wharf labourer, who sustained the injuries complained of in the action when he was ane of a gang employdd by the defendant engaged in unloading cargo from the hold of the S.S. Northumberland on 27th September 1940. The injuries were caused by @ watchman who was in the hold disloding a bale of cargo which fell on the plaintiff. The crutial question in the case is whether the watchman was then in the employment of the defendant. Some slight evidence was given in the plaintiff's ease to the effect that, at some undefined time not specifiwally connected with the date of the accident or the watchman in question, the defendant employed a i head watchman to supervise the watchmen, but no details were given of the supervision or of the watchmen referred to. There was also evidence and the defendant subsequghtly admitted, that it picked up } the watchman. As it picked him up, and he was in the hold with theiy employees, keeping an eye on everything that took plate there and i) making notes of the damaged cargo, this might provide that scint— | illa of evidence sufficient to make a prima facie case where the ; ' real facts prelating to the employment of the watchman, were so Petey + re uliarly within the knawledge of the watekman defendant. But the defendant went into evidence and explained the circumstances under which it picked up the watchan, showing this was not done as one of their employees, and that ke was in the hold, not on their behalf ; put in the interests of his real employers the owners of the chip, | whose local agents were Birt & Co Ltd. When the whole record is ! examined the evidence is, I think, conclusive that the plaintiff i was not employed by the defendant. The uncontraverted facts show ; that the wharf superintendent, an employee of Birt & Co, engaged ar discharged the watchm@n. The defendant paid tnettion behalf of the: owners of the ship. The defendan tq rendered its account to Birt & Co on behalf of the owners of the ship,who reimbursed it and paid | commission for this servide. It would be strange if the defendant — recteved commission | engaging and paying its own employeese Re The watchmen sent their reports to the wharf superintendent,and the de- fendant only saw them if the owners made a claim on it for damages to the cargo during the umloading. The defendant was not entitled to and did not in fact control the watchman in question. In these circumstances the Full Court were justified in concluding that upon the evidence the jury could not reasonably hold that he was an employee of the defendant,so that as a matter of law it was entitled to the verdict in the action, sec.7 Supreme Court Procedure Act 1900,Sheppard v. Felt_and Textiles of Aus- tralia Ltd.45 C.L.R. 359,at pp 370,371,373,379. The appeal should be dismissed. Starke J. I agree McTiernan J. Delivered a dissenting judgment. Williems J. I agree with the judgment of my brother Rich. -V- DARLING ISLAND@STEVEDORING & LIGHTERAGE COMPANY LIMITED COPY ORAL JUDGMENT. McTIERNAN J. I have reached a conclusion different from that of the other members of the Court. I think that there was evidence fit to be left to the jury on the issues whether the defendant exercised control over the watchman whose negligence caused the accident and whether the watchman was working for the defendant. I cannot agree that the evidence called by the defendant was so conclusive as to justify the Court entering a verdict for the defendant. Ores AL