Spiratos v A/asian United Steam Navigation Co Ltd [1955] HCA 39

High Court of Australia Dixon C.J. Webb and Fullagar JJ. Spiratos v A/asian United Steam Navigation Co Ltd [1955] HCA 39

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

July 18 Dixon C.J., Webb and Fullagar JJ.

This is an appeal from a decision of the Local Court of Port Adelaide, constituted by a special magistrate, on a claim for compensation under the Seamen's Compensation Act 1911-1953 Cth.. The claim was made, on behalf of herself and two infant children, by Irene Spiratos, the widow of Theotokis Spiratos, a seaman employed by the respondent company, who disappeared from s.s. Caloundra at sea on the night of 28th August 1953 and must be presumed to have been drowned. The claim was rejected by the magistrate.

Under s. 5 of the Seamen's Compensation Act compensation is payable in respect of the death of Spiratos if that death was occasioned "by accident arising out of or in the course of his employment". The burden of proving that it was so occasioned rests upon the claimant. In the present case, if it could be taken as established that the death was occasioned by "accident", it seems to us that no difficulty would arise with regard to the connection of the accident with the employment. It could readily be inferred that it arose out of, if not in the course of, the employment. But death by suicide is not death by accident. And the magistrate was of opinion that there was in this case such a possibility or probability of suicide as to make him unable to find affirmatively that the death of Spiratos was occasioned by accident.

The burden of proving death by accident rests, as we have said, on the claimant. She is assisted at the outset by a presumption against suicide: see, e.g. R. v. Huntbach: Ex parte Lockley [1] . But this means no more than that, if nothing relevant were proved except that the deceased disappeared from a ship at sea, the only proper inference would be that he fell overboard accidentally. If other relevant facts are proved, these must be taken into account along with the presumption, and the question at the end of the case is not whether the presumption has been rebutted in the sense that the death has been proved not to have been accidental, but whether, having regard to the evidence and to the presumption, there is a real balance of probability that the death was accidental. The position in such cases is explained by Lord Lindley in delivering the judgment of the Privy Council in Ajum Goolam Hossen & Co. v. Union Marine Insurance Co. Ltd. [2] . After referring to the presumption of unseaworthiness, which arises from the entirely unexplained loss of a ship at sea, his Lordship said: "If nothing more were known, unseaworthiness at the time of sailing would be the natural inference to draw; there would be a presumption of unseaworthiness which a jury ought to be directed to act upon, and which a Court ought to act upon if unassisted by a jury. But if, as in this case, other facts material to the inquiry as to the seaworthiness of the ship are proved, those facts must also be considered; and they must be weighed against the unaccountable loss of the ship so soon after sailing, and unless the balance of the evidence warrants the conclusion that the ship was unseaworthy when she sailed, such unseaworthiness cannot be properly treated as established, and the defence founded upon it must fail" [3] .