: oS IN THE HIGH COURT OF AUSTRALIA LIGHTERAGE CO. PTY. LUUTTED "REASONS FOR JUDGMENT J. 5 Gourley, Gort. Print, Mat cn109/51 on. Tuesday, 13th April, 1994... Judgment delivered at_. Sydney Ve DARLING ISLAND STEVEDORING & LIGHTBRAGE COM Pry. LTD. ORDER Appeal dismissed with costs Ve DARLING ISLAND STEVEDORING & LIGHTERAGE CQ. PIY. LIMITED JUDGMENT. DIXON CoS. . KITTO Je TAYLOR J. EVANS Ve DARLING ISLAND STEVEDORING & LIGHTHRAGE CO. PTY. LIMITED By the order under appeal the Supreme Court set aside a verdict for the plaintiff in an action under the Compensation to Relatives Act 1897 N.S.W. and entered a verdict forthe defendant. The plaintiff is the widow of a wharf labourer who was killed on lst June 1950 by falling through the partially uncovered hatchway on the 'tween decks of a ship called the "Gausdal". The defendant is a stevedoring company by which the plaintiff was employed. He formed a member of a gang of fifteen men picked up to work the ship which was discharging gereral cargo. On the previous day the gang had been at work at No. & hatch, but about 3 o'clock in the afternoon the winch broke dow and the foreman directed the men to proceed to No. 1 hatch. That hold seems to have been fully discharged but not to have been cleaned upe There was a 'tween decks hold and a lower hold. There was some dunnage in the lower hold and there was some debris which the men began to send up but the winch of Noe 1 proved to be in bad order. When the men tried to cover the 'tween deck hatch they found that they could not use the winch to place the sister beam in position. The foremen told them to leave the hatch and come up and cover up the hatch above on the main deck. This they did but five of the men,including the plaintiff's husband, changed from their working clothes to their ordinary clothes and left the former in the 'tween deck hold. The hatches were placed in position on the main deck and covered with the canvas hatch cover. It was said that the hatch was completely closed up. Then the men knocked off for the day. Next morning the foreman ordered them to resume work at No. 4, where the winch had been repaired. Before beginning work the five men whose working clothes had been left in the 'tween decks of No. 1 set about obtaining theme They took the canvas cover off No. 1 or perhaps turned it back and removed four hatch covers at the forward end over the ladder. Four of them descended, the plaintiff's husband being one. He picked up his own clothes which were in the port wing and then walked back. He tripped or appeared to trip and fell through the uncovered portion of the hatch and was killed. At or in the vicinity of the place where he appeared to trip a hatch cover was lying. The foregoing is a brief statement of the facts deposed to by tw of the deceased's companions. No other evidence was called. By her declaration the plaintiff alleged in substance that the defendant, as the deceased's employer, had been negligent in carrying on the steveroding operations, negligent in fdling to provide a safe and suitable work place and means of access thereto and to guard and fence the hatchway and in exposing the deceased to unnecessary injury. The plaintiff furnished the defendant with particulars and these alleged (a) that the hatch in the 'tween decks hold had been negligently left uncovered without any railing or guard or warning to the deceased; (b) that the 'tween decks were inadequately and improperly lighted; and (c) that timber had been left negligently alongside the coaming of the open hatch. It appears that at the trial the allegation that the 'tween decks were inadequate and improperly lighted was not pressed. On the whole case Street C.J. and Owen J. were of opinion that there was no evidence of negligence fit to be submitted to the jury. Herron J. took the contrary view. In support of the plaintiff's appeal it was urged that the men had gone to obtain their clothes as an incident of their employment; their 3. clothes were properly in the 'tween decks, a place where they might be expected to be; it was the defendant's duty as the employer to exercise reasonable care for the safety of the men with reference to the place where they would or might thus go and it was negligent to leave the hold open and unguarded and at the same time to leave the hatchoover and other obstacles lying nearby, especially when the light, though adequate if there had been no obstacles, was not enough to illuminate the obstacle over which the deceased must have trippede There was no direct evidence that the foreman knew on the previous afternoon that the men had left their clothes in the 'tween decks of No. 1 or that he knew next morning that they had gone down there to obtain them. But it was said that the circumstances showed that he must have known and that in any ease his actual knowledge was immaterial. The learned judge who presided at the trial seems to have left two items of negligence to the jury, viz. the failure in some way to guard the aperture left in the 'tween decks hatch, and the failure to keep the deck space in the vicinity of the hatch clear of obstacles. Herron J. took the view in effect that it was open to the jury to find that proper care was not exercised because, although the plaintiff was young | and had only some five or six weeks' experience as a wharf labourer, he appeared to have received no warning and was H allowed to go down when more experienced men only should have been permitted to go, and because nothing was done to increase the light,for example by the removal of more hatch covers. The simple answer to all these various suggestions is that they involve a measure of precaution on the part of the employer which goes quite beyond what is reasonablee The defendant as employer was, of course, under a duty to exercise due care to safeguard the deceased in common with other members of the gang picked up from any unusual risk of injury arising in the course of or as an incident of the he gtevedoring operations they were called upon to perform and this they were exposed by would no doubt include any unusual danger to which/the par ular condition of any part of thé ship where any incident of their work properly might take them. But ships are the subject of stevedoring operations in the performance of which it is the work of a wharf labourer to take part. The fixed characteristics of ships expose those who work or move about in them to certain risks of accident which differ from those that naturally belong to premises ashorethe construction of which may perhaps have no other purpose than to provide for the efficient convenient and safe carrying on of the employer's operations: cf. Taylor v Sims, 1942 167 L.T. 414. Risks of accident that are characteris- tic of the employment must not be enhanced where reasonable care for the employees' safety would prevent it and defects and dangers which precautions. would remove reduce or guard against cannot be regarded as necessarily inherent in the work. But in this case there was nothing except the unusual circumstance that owing to the failure of the winch, a matter outside the defendant's control, the 'tween decks hatch had not been completely covered. The only access was through the hatch on the main deck and that was covered. The deceased and the rest of the gang knew fully the condition of the 'tween decks. No danger existed of others gaining access and an open hatch is a commonplace of stevedoring operations. The placing of hatch coverings beside or near coamings is of course another commonplace. To warn a waterside worker, even of five or six weeks' standing, that he may fall into an open hatch if he does not take care where he is going or how he steps when he is near it can hardly be considered a course which a foreman is expected to take. To place a guard round it, even were that in order possible,/to protect members of the gang who might go down for their clothes or to place a net over it for that purpose is De something which would hardly occur to any reasonable man as a precaution demanded by the circumstances. If there was not enough light to see clearly the obstacle over which the deceased appeared to trip that could not be attributed to the negligence of the defendant or any servant of the defendant. The deceased was one of the five men who removed the hatchcooverings and they removed as many as they thought necessary. At all eventsa the trial the plaintiff gave up her complaint that the light was inadequate and its inadequacy spelled negligence. The suggestion that the deck round the coamings should have been cleared seems rather to ignore what happened on the previous afternoon when it was found necessary to leave the sister beam and some of the hatchooverings without replacing them. In short, assuming that the foreman knew that it was possible or certain that the men would need to return to the 'tween decks for their clothes next morning, that circumstance did not impose on him or the defendant any additional duty to take precautionary measures. Such risks as there might appear to be were the ordinary risks of men moving about in the hold of a ship they had been working before the hatches had been replaced. The appeal should be dismissed.