Ferguson v Union Steamship Co of New Zealand Ltd [1969] HCA 73

High Court of Australia Windeyer J. Barwick C.J. Kitto, Menzies and Owen JJ. Ferguson v Union Steamship Co of New Zealand Ltd [1969] HCA 73

ORDER Judgment for the plaintiff in the sum of $7,755. Further hearing adjourned to a date to be fixed for the determination of the incidence of costs. Appeal dismissed with costs.

Cur. adv. vult.

1968, May 10 Windeyer J . delivered the following written judgment:

I heard this case in September last in Adelaide. I regret that because of illness I have not been able to deliver judgment until now. I regret it the more because the events out of which the case arises occurred over five years ago, on Christmas Day 1962. The plaintiff was then a member of the crew of the s.s. Kootara. He was an able seaman. He was then, and is, a British subject whose home then was and is in Adelaide. The defendant was the owner of the ship. The ship, a sea-going vessel engaged in inter-State trade, was an Australian trade ship as defined by the Commonwealth Navigation Act 1912-1965. Generally speaking she traded between Port Pirie in South Australia and Risdon in Tasmania. On many voyages she called at Burnie on the north coast of Tasmania to take in a cargo of lead concentrates to be discharged at Risdon. In the afternoon of 25th December 1962 she entered the port of Burnie and there made fast to a wharf called "the ore wharf", or, more properly, "McCaw Pier". After the ship had been made fast the plaintiff with other members of the crew was engaged in removing the covers from a hatch in readiness for the receipt of cargo. At about 3.45 p.m. the plaintiff fell through a space between two of the hatch covers, or lids as they were called, into the hold below, a distance of some twenty feet. He was badly hurt and was a long time away from work. He was paid by the defendant $807.50 as wages, pursuant to s. 132 of the Navigation Act; $1,537.61 pursuant to the Seamen's Compensation Act; and $824.91 for medical and hospital expenses—a total of $3,170.02. He later claimed a further sum from the defendant as damages, alleging that his fall was the result of the negligence of the defendant. It was said that he was required to work in a way which was not a safe system of work. Further it was said that a winch used in removing the hatch covers was defective; but it was not alleged that for this reason the ship was unseaworthy, cf. Christiansen v. Gilday [1] . Alternatively or in addition to the claim that the defendant was negligent, the plaintiff alleged it was vicariously liable as the alleged negligence of a member of the crew, one Bellgoerdt, had it was said caused the accident.