Australian Coastal Shipping Commission v Averell [1969] HCA 38

High Court of Australia McTiernan, Kitto and Menzies JJ. Australian Coastal Shipping Commission v Averell [1969] HCA 38

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 4 McTiernan, Kitto and Menzies JJ.

The Seamen's Compensation Act 1911-1964 Cth provides for compensation for personal injury by accident caused to a seaman "while he is travelling to or from his employment", s. 5AA (1).

The respondent was a seaman in the employ of the appellant and a member of the crew of the motor vessel Lake Illawarra. His home port was Newcastle. On 2nd May 1966, the ship was moored at the coal loader at Newcastle where she had been taking on coal. The seaman was on duty up to 5.00 p.m. on that day when he left the ship to go to his home at Tighes Hill. He was required to be on duty again at 8.00 p.m. At about 7.50 p.m., whilst he was driving back from his home to the ship, he suffered injury by accident. His claim for workers' compensation succeeded in the District Court and it is from an award made in the seaman's favour that the Commission has appealed to this Court. It is, we think, convenient to set out the agreed statement of facts:

1. The applicant joined the ship Lake Illawarra at Newcastle as an able seaman on 13th April 1966, under articles expiring on 16th May 1966.

2. The ship sailed for Whyalla in South Australia on 16th April 1966, and had arrived back at Newcastle via Port Kembla on 27th April 1966.

3. The ship was due to sail from Newcastle on 3rd May 1966, for Melbourne.

4. The applicant's home port is Newcastle.

5. On Monday, 2nd May 1966, the applicant had been at work on the ship until 5 p.m.

6. He was required to be on duty again at 8 p.m. for the purpose of shifting ship from the coal loader where she had been taking on coal.