Treeve v Blue Star Line (Australia) Pty Ltd [1957] HCA 20; (1957) 97 CLR 410 (5 April 1957)

HIGH COURT OF AUSTRALIA

TREEVE v. BLUE STAR LINE (AUSTRALIA) PTY. LTD. [1957] HCA 20; (1957) 97 CLR 410

Negligence

High Court of Australia
Dixon C.J.(1), McTiernan(1), Webb(1), Fullagar(1) and Kitto(1) JJ.

CATCHWORDS

Negligence - Dangerous premises - Ship - Repairs - Workman - Invitee - Unusual danger - Personal injuries - Occupier - Knowledge of danger - Evidence - Parties.

HEARING

Sydney, 1957, March 28, 29; April 5. 5:4:1957
APPEAL from the Supreme Court of New South Wales.

DECISION

April 5.
THE COURT delivered the following written judgment: -
This appeal comes from an order of the Supreme Court of New South Wales for damages for personal injuries and entering a verdict for the defendant. (at p414)

2. The plaintiff, who is the appellant, was a carpenter employed by a firm of ships-carpentering contractors carrying on business under the name of G. H. Miller. On 11th September 1950 the ship "Empire Star" berthed at No. 11 Berth, Woolloomooloo Dock. The firm had undertaken to repair certain damage in the ship's hold said to have been done in the course of discharging cargo in Melbourne. In particular, in No. 1 lower hold there were repairs to be done to insulation connected with the refrigeration system. The plaintiff was among those whom Miller's sent aboard to this work. In going down to the hold by a booby hatch near to No. 1 hatch the plaintiff fell and suffered the injuries in respect of which he sued in the action. His case was that there was a stanchion beside the booby hatch which, after testing, he grasped as an assistance in stepping from the deck to the steel ladder for the purpose of descending, and that, owing to its being unpinned, it unexpectedly gave way, thus causing him to slip and fall. At the trial the existence of such a stanchion was disputed. The possibility was put to the jury by the learned judge who presided that a bar may have been standing up from ingots of zinc which were piled near the hatch and that it was such a thing the plaintiff took for a stanchion. The defendant objected to the direction on this matter on the ground that it was not the case which the plaintiff had made or the defendant had met. Which view the jury took in finding for the plaintiff cannot of course be known. The plaintiff's declaration alleged that the defendant had the care control and management of the vessel and that the plaintiff was upon the vessel at the invitation of the defendant for the purpose of performing certain repairs thereon and that there was a metal bar apparently fixed and as the defendant well knew or ought to have known so fitted into a slot that upon being pulled it would move and that it constituted an unusual danger to the plaintiff. Then followed allegations of negligence in failing to take care to protect the plaintiff from the unusual danger, next of the plaintiff's ignorance of the danger and finally of his injury and damage. (at p415)

3. It will be seen that the plaintiff's case rested on the duty of an occupier to an invitee. Unfortunately the defendant did not sue the shipowner. There is in London a company called the Blue Star Line Ltd. which, no doubt by the master, had possession and control of the ship as she came into the Port of Sydney. But that company the plaintiff did not sue. Instead he made an Australian company the sole defendant, by name Blue Star Line (Australia) Pty. Ltd. In answer to a request from this defendant for particulars of the respects in, and the basis upon, which it was alleged that the defendant had the care control and management of the vessel "Empire Star", the plaintiff replied that, whilst it was not material, it was understood that the defendant company were the Sydney agents of Blue Star Line Ltd. In fact the defendant company act as ships' agents and stevedores. As ships' agents they are remunerated by agency fees consisting of a percentage commission on the freights or earnings attributed to the port. (at p416)

4. It appears that the vessel, after discharging in Sydney, had gone down to Hobart whence she returned to Sydney to load, and perhaps to discharge some steel. From Hobart the master had written to the marine superintendent in Sydney telling him of the repairs to be undertaken in Sydney. The marine superintendent was in fact an officer of the defendant company. He instructed the firm of G. H. Miller to do the work and on the arrival of the ship from Hobart that firm sent the plaintiff, among others, down to the ship to begin the work. On the same day the accident occurred. The manager of G. H. Miller was in charge of the work and under him the firm's foreman, but, according to his evidence, the marine superintendent "had a look at the job two or three times because there were insulation repairs involved, but the majority of the work was done under the supervision of the chief officer". The account for the work though made out to "the captain and owners" of the ship, was sent to the defendant company, which paid the charge by its own cheque, debiting the amount subsequently to the London company in the receipts and disbursements account for the ship on that voyage. It is difficult to see in this evidence any possible room for holding that the defendant company was an occupier of, or in control of, the ship or of any part of it as premises so as to fall under a duty of care for the safety of the plaintiff as an invitee. (at p416)

5. The theory upon which it was left to the jury to find that the defendant company had a sufficient possession occupation or control was that the marine superintendant of the defendant company had invited the firm of G. H. Miller to go to the ship to do the work, and that, of course, included its workmen, that the defendant company contracted as principals with that firm and in so doing acted at the request of the shipowners, and that this all meant that the defendant company must have a limited occupation of those parts of the ship where the work was to be done. There was added, in argument, the consideration that because of the remuneration of the defendant company by a percentage of the ship's earnings there was an interest, presumably pecuniary. Reliance was placed upon the decision of the Court of Appeal in Hartwell v. Grayson Rollo & Clover Docks Ltd. (1947) KB 901 as supporting a contention that on these facts a conclusion might be drawn that the defendant company occupied or controlled the relevant part of the ship. But that case lends no support to such a contention. The facts were entirely different. The events took place in August 1942. The ship was out of commission and in a dry dock for conversion to a troop ship. The Ministry of War Transport had contracted with the defendant held liable to the plaintiff to do work which appeared to extend to nearly every part of the ship, and the plaintiff was employed by one of that defendant's sub-contractors in the very work. The decision is put briefly but very clearly by Bucknill L.J.: "The vital question, in my opinion, is: who were the occupiers of the No. 2 lower 'tween deck at the material time? I have not been able to find a definition of the word 'occupier' as used by Willes J. in the case of Indermaur v. Dames (1866) LR 1 CP 274; (1867) LR 2 CP 311 , but it seems to me that in order to be an occupier one must have possession of the premises and control over them. In my view, the first defendants had both, they had possession and control. They had been put there over the heads of the shipowners by the Ministry of War Transport, who had ordered them to effect very extensive alterations throughout the vessel and, in particular, in the lower No. 2 hold and in the No. 2 lower 'tween deck" (1947) KB, at p 915 . His Lordship remarks: "It seems to me to be clear that someone must have been the occupier of the lower 'tween deck. The learned judge has found that it was not the shipowners, and I think that on the evidence he was right. . . . I think that all the evidence indicates that it was the first defendants" (1947) KB, at p 916 . (at p417)

6. The state of facts in the present appeal is simple in the extreme. The defendant company must be treated as an entirely distinct person from the shipowner. It is nothing but a ships' agent and a stevedore. At the time of the accident it had not even begun work in the latter capacity. All it had done was to employ a contractor to do work aboard the ship and agree to pay him. It had acted at the request of the master who remained in complete command of his ship as it lay at the wharf fully manned. Except that the defendant company's marine superintendent afterwards came aboard to inspect the work, the transaction involved no contact with the ship as premises. It would be artificial enough to impute occupation or control of any part of the ship to G. H. Miller, who undertook the work; for clearly full possession occupation and control remained in the shipowners by their master and his officers and crew. But not the faintest ground exists for imputing possession or control to the ship's agents. Unfortunate as it may be that the plaintiff has persisted in his suit against the wrong defendants, it was in that light that he went on. It is, however, clear that, had they been the right defendants, he could not have retained his present verdict. For it was quite possible that it was founded on the view that he grasped a bar that had been left standing upright in the pile of zinc ingots. Such a thing ought not, we think, to have been left to the jury. Moreover it is not easy in any view to discover in the facts satisfactory evidence of negligence. (at p418)

7. The appeal should be dismissed. (at p418)

ORDER

Appeal dismissed with costs.