McKenzie v William Holyman and Sons Pty Ltd [1939] HCA 17

584 HIGH COURT

{HIGH COURT OF AUSTRALIA.]

McKENZIE AND ANOTHER . .... AppeLu APPLICANTS,

AND

WILLIAM HOLYMAN AND SONS PRO- Re PRIETARY LIMITED . : i . ' RESPONDENT, sa

H.C. or A, Seamen's Compensation—Accident arising out of and in course of ¢

1939. Seaman assisting in rescue of fellow-seaman—Death of seaman ass

Ww Assisted seaman not on employer's premises—Voluntary act—Emerg MeLBourne, Seamen's Compensation Act 1911 (No. 13 of 1911), sec. 5.

May 17.

= 'The deceased was a seaman employed on the respondent's ship. On ae os night in question the deceased and three other men went ashore and §} FE ead a some time at an hotel. At the same hotel, but not of their party, W seaman, P., employed on the same ship. 'They returned to the ship

ately. The deceased had been on the ship some time before P.

Before P. reached the gangway which connected the ship with the stumbled on the wharf and fell into the water. Fellow-seamen who the ship went to his rescue, and the deceased held a lantern to enable

see what they were doing. While so engaged the deceased fell into

and was drowned.

Held that the deceased, in doing what he did, was acting in the co his employment and, accordingly, his death was due to an accident of and in the course of the employment within the meaning of see. 5 ¢ 'Seamen's Compensation Act 1911.

AppraL under Seamen's Compensation Act 1911. Bessie Isabel McKenzie and Bettie Douglas McKenzie, th and daughter of Sydney Ross McKenzie deceased, as de

6 1OLR] OF AUSTRALIA.

Seamen's Compensation Act 1911 in respect of his death against his employer William Holyman & Sons Pty. Ltd.

McKenzie was employed on the ship Woniora, which was engaged in trading among the Australian States. On Ist August 1938 _ McKenzie and three other men went ashore from the ship which was lying at Devonport, Tasmania. They spent some hours in a public house and had a number of drinks. In the same public house, though not of their party, was a seaman named Parman employed on the same ship. The men returned to the ship separately between 9.30 and 10.40 p.m. They had all been drinking. McKenzie had been safely on board for some time when Parman came along the wharf. Before Parman reached the gangway, which, as it was low tide, was at a steep descending angle to the deck of the ship, he stumbled on the wharf and fell over the baulk of timber on the edge of the wharf into the water between the ship and the wharf. The alarm was immediately raised, and those who were present, including not only members of the party from the hotel but also the night watchman, endeavoured to rescue Parman. McKenzie held a lantern for the purpose of enabling those who were rescuing Parman to see what they were doing. Parman was rescued, but, while he was holding the lantern in the course of the rescue operations, McKenzie fell into the water and was drowned. His wife and daughter claimed _ compensation as his dependants under the Commonwealth Seamen's Compensation Act 1911. The arbitrator held that in rescuing - Parman the men, including McKenzie, were not acting in the course of their employment and, consequently, that compensation was not payable under the Act.