Australian Steamships Pty Ltd v Murphy [1934] HCA 23; (1934) 50 CLR 568 (3 August 1934)

Australian Steamships Proprietary Limited Defendant, Appellant; and Murphy Plaintiff, Respondent.

The respondent was engaged by the appellant company as a seaman upon a ship in the coasting trade. His home port was Melbourne. While his ship was at Devonport, in Tasmania, he met with an accident by which both bones of his left leg were badly fractured just above the ankle joint. He met with the accident in the service of the ship and, of course, was incapacitated from following his duty. Because of the injury he was left at Devonport, where he remained in hospital for almost eight months. The appellant company then gave him a free passage to Melbourne. There he was examined from time to time by a medical attendant, who, three or four months after the date of the respondent's return, certified that his leg had then made all the improvement it was likely to make and that he had a useful limb, but that, in the medical attendant's opinion, he was permanently incapacitated for his work as a seaman.

The ship's articles incorporated, as part of the terms of the engagement, a provision contained in a general agreement between the shipowners and the Seamen's Union. The provision, which originated in an industrial award, is founded upon sec. 132 of the Navigation Act 1912-1926. The provision deals with the case of a seaman who is left at any port by reason of illness or accident in the service of the ship incapacitating him from following his duty; it gives him rights which go beyond those conferred by the section. If he is landed at his home port he is entitled to wages until a week after "his recovery, as certified by his medical attendant or by a medical inspector of seamen"; but the maximum period for which wages are payable is three months from the date he was left on shore. If he is landed and left at a port other than his home port, he is entitled to wages "until his recovery," so "certified ... and until arrival at his home port, ... and after his recovery (certified as aforesaid) to a free passage to his home port." This right is qualified by a proviso which does not apply to the circumstances of the present case. The question which these circumstances raise is whether the time during which wages continued to be payable to the respondent ended at or before the giving of the medical certificate relied upon. In the Supreme Court, Lowe J. held that wages ran on after that medical certificate. In his opinion the document did not amount to a certificate of recovery, and, upon the construction of the clause, unless a certificate of recovery was given, there was no termination of wages.

On behalf of the appellant company it was denied that without a certificate of recovery its liability for wages must continue, but it was asserted that upon a proper understanding of the meaning of the word "recovery" in the clause, the facts stated in the medical certificate amounted to "recovery" on the part of the respondent. In support of the first position reliance was placed upon the incongruity produced by conceding to a seaman who returns to his home port, after being left at another port, a right to wages for the full period until his certified recovery, although, if he had been left at his home port, wages would end, at latest, at the expiration of three months. It was suggested that upon his return to his home port before his recovery, a seaman who, on account of accident or illness, had been left at another port was remitted to the position of a seaman landed at his home port; that he ceased to answer the description "landed and left at a port other than his home port" and took on the character of one "landed at the home port," so that his right to wages was subject to the limit of a three months' maximum. The language of the provision does not seem capable of such a construction. The words which govern all the paragraphs of the clause are "if a seaman ... is landed and left at any port." They form part of the statement of a condition, which, if complied with, entitles the seaman to the benefits which the ensuing paragraphs describe. The first of those paragraphs deals with landing at the home port; the second, with landing at some other port. Each states the rights which result from those respective events, and they are framed as if intended to be mutually exclusive. The return of a seaman to a home port is something quite different from his being landed and left, by reason of illness or accident, a process dealt with by sec. 129 of the Navigation Act 1912-1926.

Another suggestion was that, in spite of the conjunction "and," the paragraph should not be read as requiring for the termination of wages the occurrence of both events, both certified recovery and arrival at the home port, but as intending to end the shipowner's liability for wages upon the seaman's arrival at the home port, whether a certificate of recovery had or had not been given. The language of the provision is against any such construction. It is true that it confers upon the seaman a right to a free passage only "after his recovery (certified as aforesaid)." But this affords no ground for implying that if he returns before recovery, whether at his own expense, or at the expense of the shipowner, his right to wages goes. The provision most distinctly says that he is entitled to wages until certified recovery and until arrival at his home port. Upon this language, it is clear that both events must occur before wages cease to be payable. In Lawrence v. Huddart Parker Ltd.[1], this Court said of the same provision: "Subject to the proviso, this clause confers, in terms, upon the seaman a right to wages until both of two events have taken place, namely, until his certified recovery and until arrival at his home port." The case was one in which the seaman was said to have recovered before returning to his home port, but the statement applies also when recovery is not certified until after his return. It contains an accurate description of the effect of the double condition. It follows that, unless the medical certificate relied upon amounts to a certificate of recovery, the appellant's liability for wages had not ceased. What does the word "recovery" mean? Many injuries and some illnesses necessarily leave permanent consequences. The accidental loss of a limb, of eyesight or hearing, is within the provision. If "recovery" means rehabilitation of bodily condition, or of the former capacity to work, or to earn a livelihood, the liability to pay wages will in many cases continue until the seaman's death. The provision is not directed to compensation for accident. It is not intended to supersede, in cases of permanent incapacity, the Seamen's Compensation Act 1911. The word "recovery" appears rather to describe the attainment of a condition of health. If the illness or accidental injury is one which will leave a permanent bodily disability, defect, impairment or infirmity, the seaman has "recovered" within the meaning of the provision when he has obtained his health and reached what will continue to be his normal condition. The word "recovery" is neither scientific nor exact and it is not possible without substituting a new agreement for that which the parties in fact made to define with precision what bodily states or conditions would satisfy its meaning. Perhaps all that can be said is that the more immediate and remediable effects of his accident or illness must have gone, leaving him in such a state that, in common speech, he would be described as now well, or no longer ill. The question whether such a standard has been reached is left to the determination of the medical attendant and of a medical inspector of seamen. A certificate of recovery apparently is conclusive. It need not use the expression "recovery"; although to avoid doubts and disputes it is, perhaps, desirable that certificates should do so. It is enough if a condition is certified to, which actually does amount to "recovery" within the meaning of the clause.

Not the least difficult question in the present case is whether the certificate relied upon does describe that condition. It states that the respondent's leg has made all the improvement it is likely to make and that it is now a useful limb. The concluding statement, that the seaman is permanently incapacitated, is quite consistent with a condition amounting to "recovery." But, as Lowe J. remarked, the purpose of the certificate is to avoid an examination of evidence upon which opinions might differ; the certificate should be clear and unambiguous and leave open the one conclusion only. The certificate must be of the man's recovery. To confine it to the injured limb, as this document is confined, leaves open the man's general condition. Further, the statement that the leg has improved as much as it is likely to do is little more than a prophecy that not much improvement can now be expected. It is negative rather than positive. It leaves one in doubt whether the medical attendant really directed his attention to the question set by the clause.

On the whole, it does not appear to be sufficiently clear and specific to conclude the respondent's rights.

The facts are set forth in the case stated by the parties. Under clause 22 (b) of the agreement sued on in this case, a seaman, belonging to a ship for which articles are signed in Australia, landed and left at any port by reason of illness or accident in the service of the ship, incapacitating him from following his duty, is entitled, if landed and left at a port other than his home port, to receive wages until his recovery, certified by his medical attendant or by a medical inspector of seamen, and until arrival at his home port, at the rate payable to him when he was landed, and after his recovery (certified as aforesaid) to a free passage to his home port; subject to a proviso which it is unnecessary here to set forth.

In Lawrence v. Huddart Parker Ltd.[2], this Court said: "Subject to the proviso, this clause confers, in terms, upon the seaman a right to wages until both of two events have taken place, namely, until his certified recovery and until arrival at his home port." But the learned counsel for the appellant insisted that the liability of the shipowner ended in any case upon the arrival of the seaman at his home port. Several reasons were advanced in support of this contention. One, a necessary implication, it was said, from the provision that after his recovery the seaman is entitled to a free passage to his home port. Another, that on being landed at his home port, the provisions of sub-clause (a) of clause 22 relating to a seaman landed at his home port applied to him. And, finally, that the right to receive wages depended, upon the proper construction of sub-clause (b), on alternative events. It is very likely, I think, that sub-clause (b) does not express what the parties intended, and should be re-drawn, so that liability under the sub-clause terminates upon arrival of the seaman at his home port, or within some definite period thereafter; it was never intended, I should think, that a seaman should be entitled—should his recovery not be earlier certified—to receive wages for the rest of his life, though he had come or was brought to his home port. But I see no escape from the construction of the sub-clause (b) given to it by this Court in Lawrence's Case[3]; it is the grammatical and ordinary sense of the words, and must be adhered to unless some repugnancy or inconsistency is established, which is by no means the case here. The seaman is therefore to receive wages until his recovery is certified.

What is the recovery that must be certified? In its ordinary signification, the word indicates a restoration to health after a wound or sickness. In my opinion, it has nothing to do with the restoration of a seaman or other person to his former or any industrial capacity or efficiency. Otherwise, a seaman who lost a limb owing to an accident, or whose former condition of rude health was never completely regained owing to sickness, would seldom recover. Yet we know that people, in the ordinary use of language, "recover" from their wounds or from sickness, sometimes with the loss of a limb, and at other times with greatly diminished strength. The question for the medical attendant or inspector is really one of fact, namely, whether he can or cannot certify that the seaman has "recovered" in this ordinary and usual sense of the word; he has not to consider whether his industrial capacity or efficiency has or has not been restored; all that concerns him is whether the seaman has reached that condition of health that medical men and others would ordinarily describe as recovery from his injury or sickness. The more plainly that fact is stated in the certificate the better, but I agree with the argument put to us that a certificate is sufficient if it states a condition of health that amounts to recovery, though the word recovery is not used. It was stated during the argument that medical inspectors were advised that certificates of recovery should not be given unless the seaman has been restored to his former industrial capacity; such advice, if it were given, is, I think, erroneous, and should not be followed. Lowe J. was of opinion that no one of the certificates relied upon in this case, nor any combination of them, constituted the certificate of recovery required by the agreement. It would be idle for me to repeat the reasons of the learned Judge for that conclusion, in which I entirely agree.

[1] (1930) 43 C.L.R., at p. 448.

[2] (1930) 43 C.L.R., at p. 448.

[3] [1930] HCA 9; (1930) 43 C.L.R. 440.

High Court of Australia

Australian Steamships Pty Ltd v Murphy [1934] HCA 23; (1934) 50 CLR 568 (3 August 1934)

HIGH COURT OF AUSTRALIA