HAWKES V. WEST AUSTRALIAN STEAM NAVIGATION CO. LTD. 6/1927

NAVIGATION CO. ITD.

IAN STE.

UST!

WEST

ISAACS J...

JUDGMENT .

Delweved 16. 9.1927

HAWKES

x

= 7 WEST AUSTRALIAN STEAM NAVIGATION CO. LTD. TUDGMENT., MR, JUSTICE ISAACS,

The owners of the schooner "Merlin™ sued the owners of the steam

tug "Minderoo" in admiralty for negligence whereby the vessels came into collision in the open ocean, to the damage of the schooner, Burnside J,, who tried the case, and by consent without experts, found that though the captain of the tug committed an error of judgment, he

was not negligent, and therefore judgment was given for the respondent.

From that. judgment this appeal is brought;

Notwithstanding Mr. O'Connor's forcible presentation of the appel-

lantts case, it is clear the decision of the learned trial judge cannot

be shaken. Negligence is a negative expression and implies a want of

that care which the law requires in the given circumstances, The

standard of care is always a question of lew, the failure to maintain

it is a question of fact. Consequently, in every case of alleged

negligence the first requisite is to ascertain or assume the legal

standard of care which was demanded of the defendant in the circumstances,

This is very distinctly stated by Lord Kinnear in Butler v Fife Colliery

I (1912 A.C., at p. 159) in these wordsi- "Negligence is not a ground

"of liability, unless the person whose conduct is impeached is under a

"duty of taking care; and whether there is such a duty in particudar

"circumstances, and how far it goes, are questions of law, Ifa

ee

"definite duty has been ascertained, 9 finding that it has been duly

"performed or neglected is @ mere finding in fact.............But a "finding as to negligence which implies the existence of a duty without "explicitly defining it, is a proposition of mixed fact and law."