Jones v Rabaul Stevedores Ltd [1970] PGSC 37 (9 October 1970)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

CORAM: FROST, S.P.J.
Friday,
9th October, 1970

BETWEEN:

EDWARDS JONES
Plaintiff

AND:

RABAUL STEVEDORES LIMITED
Defendant

JUDGMENT

This is an action for damages brought by the plaintiff Edward Jones against the Rabaul Stevedores Limited, in respect of the personal injuries which he sustained on 26th November, 1968.

The plaintiff alleges that there was negligence on the part of a winch driver Lula who was operating a winch when the plaintiff was working on the Island Chief on that day, and he also alleges that there was generally negligence on the part of the defendant, the substance of the allegation being a failure to devise and maintain a safe system of work and a failure adequately to instruct the plaintiff in the execution of his duties.

The defendant denies negligence, and sets up the defence of contributory negligence. The particulars of contributory negligence (as indeed of negligence given by the plaintiff) are vague, but in substance, as I understand it, it is contended that the plaintiff was negligent in that he was careless of his own safety in acting contrary to rules or instructions or advice made or practice given, and that he failed to stand in a safe place.

Now it is necessary at the outset to refer to the considerations of law which I must apply in this case. This case like most of industrial accidents has offered conflicting versions of the facts and there are various ways in which both the plaintiff and the defendant have sought to place their cases before me. The case has been indeed thoroughly presented by both parties, and I have been assisted by the submissions of Counsel in arriving at my decision.

Now at the outset, I say that it is plain law that the duty of an employer is to take reasonable care for the safety of his workmen in all the circumstances. Cavanagh v. Ulster Weaving Co. Ltd^[1]. This is a well established rule. The duty has also been expressed as split up into different categories, as Lord Parker said, in Wilson v. Ivnside Window Cleaning Co^[2], such as safe tools, safe place of work or a safe system of work, but it always remains one general duty. So this is a duty which the Judge is to apply according to the circumstances of the case. The duty is owed to each employee as an individual. Thus a higher duty is owed to an employee who has not had sufficient experience for his task and needs help and supervision.

Byers v. Head Wrightson & Co. Ltd^[3]. The employer is not to assume that all men are quick witted and apt to pick up the system of work and to foresee the dangers, he is to have regard to the average standard of workmen, and if he has for example an inexperienced or a physically disabled employee, well then that duty has to be fulfilled having regard to the individual employee.

The employer is bound also to take reasonable care in instructing his employee how best to secure himself against injury, and he must draw the attention of the employees to the dangers inherent in the operation. General Cleaning Contractors Ltd. v. Christmas^[4]. Needless to say, if there are dangers in an operation, these must be made clear to the employee, and he must be instructed what steps he has to take to avoid them, and above all, let us say, the most common application of the employer's duty to take reasonable care, is to establish a safe system of work, one in which injuries which were reasonably foreseeable by the employer or the risks of which he can avoid by taking reasonable care are eliminated. And also it goes without saying this principle is now general throughout our low now that the doctrine of common employment has been abolished, as it has been in the Territory, that if an injured employee is injured through the negligence of his fellow servant, then the employer is liable for that negligence as was the law with regard to relationships other than employer and employee.

Now the onus of proof is on the employee, the plaintiff, to make out his case, to prove negligence, to prove his injuries and to prove the damage which he claims. But this is not an onus such as is undertaken by the Crown in the Criminal Court, it is an onus to satisfy this Court on the balance of probabilities, that is, is the case made by the plaintiff more probable an hypothesis in all the circumstances than not. In this case there is a defence of contributory negligence, and if contributory negligence is found it will be my duty then (because I shall not go on to contributory negligence unless I find negligence against the employer) to assess the degree of blame and to apportion liability having regard to the failure of the defendant to take care and also of the plaintiff to take care for his own safety. For the law is that an employee is bound to take reasonable care for his own safety, but this is an onus which is on the employer to establish again on the balance of probabilities, that the plaintiff failed to take reasonable care in all the circumstances for his own safety.

The facts in this case are that on 26th November, 1968 the plaintiff whilst unloading some deck cargo on the Island Chief was injured, and this is admitted or not contested, by a load of steel which in some fashion swung against his leg. His trade was that of a linesman, he had qualified in this trade in England, he had had some positions in England as a linesman. That is a trade which requires him to make electrical installations whilst mounted on poles, or shall we say above the ground to adjust electrical equipment upon raised platforms or poles.

He was minded to migrate to Australia, which he did in the 1960's, and he obtained a position with B.H.P. as a linesman. He left this position, I think, some time in 1966 and he came to the Territory in the employment of the Papua and New Guinea Electricity Commission. Unfortunately his contract was not renewed, he says, because of a policy of indigenization, so that at the end of 1967 he found himself at the end of his contract and with nothing in view. He was given money to go on leave, and he and his family chose to go back on leave to England, which they did do, and came back some time in 1968 about the middle of the year. He then obtained employment as a clerk in the Stores and Supply branch, didn't like that, approached Mr. McGrath who was his friend, and sought employment on the wharf - Mr. McGrath being the Manager of the Rabaul Stevedore Company. He was given an opportunity to try himself out, did he like the work, did the work suit him, and he was temporarily employed both during, I think, August and September on two vessels, the Island Chief and the Chekiang, and then having satisfied Mr. McGrath, he then was taken on as a permanent employee of the defendant company. His duty was that of a European supervisor of gangs, and how Mr. McGrath describes this was that, and I refer to page 56 of the transcript, "I told him that the work would involve mainly supervising the native staff, and make sure they didn't break any cargo on discharge, and had a continuity of discharge ....... A great knowledge of stevedoring would not be necessary, as it would be mainly supervising, he would be supervising native labourers in the hatch, and winchmen and hatchmen." In fact the plaintiff had never worked on the wharf, and apart from what he had picked up in those perjods of temporary employment in August and in September he had had no stevedoring experience whatever. Be that as it may, he was given the charge of experienced winchmen Marura and Lula and an experienced hatchman whose name was Iwago. He worked through October and he worked through November, and the accident happened on 26th November, 1968, upon the Island Chief which was a vessel which was given priority by the defendant company - it is a vessel which plies between here and Australia, and no doubt the European population or the population here are greatly dependant upon its fresh supplies and no doubt also its quick turn around is essential.

On that day, he went in the morning and he cleared No. 1 hatch, and he then says that work having been completed, he went down to No. 2 hatch where there was some deck cargo lying between the hatch and the port side of the ship. The ship was discharging over the port side. This deck cargo consisted of plate steel and rolled steel joists. The plate steel was being discharged by Mr. McKenzie who is the Managing Director of this Company, and I should pause here for one moment, and refer to Mr. McKenzie. Mr. McKenzie has had as a midshipman experience in the Royal Navy and then as a Master of a Merchant Vessel. In 1955 he started his own business in Rabaul, a business which apparently has prospered under his, I have no doubt, able direction, and which has extended to the ports of Madang, Lae and Kieta. On that day he was in overall charge of the operation of that ship to which he was giving his personal attention. He himself had been working, and he unloaded some of the flat steel and there was some work done on one bundle of steel, and then Mr. McKenzie says that he asked the plaintiff to take over, and whether he did ask him or did not, it is plain that the plaintiff then did take over.

Now I should give the plaintiff's account. He says that when he went down to No. 2 hatch, the hatches were open. He said that he had no conversation with Mr. McKenzie, that he did discharge one bundle before lunch, and then after lunch when he came back again the hatches were open and he then proceeded to discharge the second bundle of steel, which of course caused his injury.

He says that one sling only was attached, and this round the middle, and that at the time he was placed upon the port deck as was Iwago. There were two winchman, Marura on the mid ship winch whom we have not heard because he is not available to give evidence, and it is not suggested that he was, and then Lula who was on the yard winch or the port side winch. For the plaintiffs account I shall read quite briefly of what then he says occurred. He says (at page 7 of the transcript) that he connected the hook up to the wire and "I gave directions to the winchman to slacken off the wire and carry the hook back, and I then hooked it into the wire sling around the R.S.J.'s. I gave directions to the winchman not to lift but to tighten. I was still opposite at that stage, (indicating a position on the port side between the port mast housing of the port derrick and the port side of the ship). Then I got the port side winch to tighten a little bit more and then I moved my position back forward. The tightening of the wire lifted the load of R.S.J.'s approximately two inches, and the weight of the sling slid down the deck." It slid aft, it didn't slide freely, it Jammed, it jammed in the forward end. "I moved my position up the deck, (indicating half way between the No. 2 mast housings on the port side) and told the winchman to slack back, using the words 'come back', they were the actual words which they understood. I spoke to Lula, with that he flipped, he moved the handle on the winch forward flicked it. With that causing the wire to take up with a jolt, releasing the trapped end, causing it to shoot forward down the deck that is aft. It then swung back up the deck, up forward, and swinging outboard", and eventually trapped him on the staunching of the bulwark. He said that he hadn't been told not to stand anywhere on the ship. Asked if he had his choice of positions, where would he have liked to have stood, he said on top of the hatches of No. 2. The advantages were that he would have had full control of the winchmen, also full control of each side of the cargo. He didn't stand on the hatch because the hatch covers were off.

So that his account is this, that the accident occurred because standing in that position, which was the only position in which he could stand, the winchman instead of slacking back and bringing it back into a safe position on the deck, (I refer to the bundle of steel), lifted it, so swinging free it trapped him against the side of the bulwarks.

Now at this stage, I wish now to say what is my assessment of the evidence. Having regard to other evidence given, can I act on this evidence in so far as it is not corroborated. Now then, Mr. McKenzie gave evidence. He said that the hatch covers had been open, but they were closed because the work had been completed, the work which required them to be open for the removal of 'tween deck cargo from up the hatch, and at the same time a fork lift was positioned in the morning and at ten past eleven, delay time having been claimed between ten forty-five and ten past eleven, the hatch covers on No. 2 were replaced. There was no further work to be done from No. 2 hatch which would require them to be open, but he himself was personally there till twelve o'clock, and that the hatches were still on at that time. He came back in the afternoon at about half past one when he had heard about the accident. When he went up, the hatches were on. There was no reason for the hatches to be off. He says that it would have been unsafe for that operation. He says also there was no reason why these hatches couldn't have been easily adjusted, because they were McGregor hatches, and he pointed out the mechanism shown in the photograph about which he was not even cross-examined. He also says that there was 3 conversation in the morning in which when he went along and saw these men dealing with the first bundle, and after they had adjusted the hook by means of slings at each end, he had called them up onto the hatch, that is Iwago and the plaintiff, and that they stood there and that he was concerned with the movement of the bundle of steel through the side port door, damage to which would have rendered the ship unseaworthy, and as the end of the bundle of steel was to go through the side port door, he said, "Look look good, watch him," to Iwago, indicating the movement of the steel through the side port door, and the importance of ensuring that this did occur without damage.

The plaintiff says no such thing, not called on to the hatch, no such conversation. The plaintiff was asked what was the advantage in having the hatches open if there was no work, because the plaintiff admitted that there was no discharge going on through No. 2 hatch after lunch, and he gave the answer, there would be more light. Mr. McKenzie explained, of course, as one would expect, that there is plenty of electric light arranged throughout the ship, so that this is an explanation which I regret to say, I just cannot accept.

Well now then I must say this, that at the outset, that having heard Mr. McKenzie, I have no hesitation whatever in accepting his evidence. He seemed to me to be a restrained witness, one quite certain that he would not commit himself to anything which he did not feel he was justified upon his oath in committing himself to. On the probabilities, the hatch covers were on, Lula says they were on, Iwago says they were on.

I just cannot accept the plaintiff's explanation of the hatch being open to give light. Both Lula and Iwago say the conversation did take place in the morning. As to this conversation, on more than one occasion Mr. Wood gave Mr. McKenzie the opportunity to say that the reason why he called these two men from the port deck was for reasons of safety, but looking back on it, Mr. McKenzie didn't feel able to do this, and he said, well I presume I gave him some explanation, and I can't swear to it. I was concerned about the beam going through the side port hatch, and so I spoke to Iwago. He was the one I spoke to, and I don't know, I can't be sure that the plaintiff even overheard it. But even so, I feel I can't accept the plaintiff's evidence of the denial that this incident ever took place. So that therefore I am not satisfied that the hatch covers were open, and I must say also that perhaps this is a time of his life when the plaintiff is not quite at his best, but he did not make a good impression upon me, and I cannot therefore accept his evidence except in so far as it is uncorroborated.

Well now then, let us now come to his account, because the fact of the matter is that his evidence is not uncorroborated because he called the witness Tami. Now Tami was a witness who put himself on the No. 3 yard winch, that is aft, and he said that he looked around, he could look round down the deck, and Mr. Oberland, the Officer, said you could look down the deck, and he saw this happen, and the account that he gave was not quite the same as the plaintiff's account, because he gave no evidence of any jamming which perhaps he mightn't have been able to see in any event, but this he says (at page 62). The plaintiff "took over and started to signal by his hand ............. When he got the signal, then he started to winch the steel up, then he signalled to stop and he stopped. When he stopped, then he signalled him to put the steel straight. He put it straight then he signalled him to go down a bit. He said 'come back', and signalled with the hand moved downward, but the winchman was bringing it up.

Q. What happened when the winch driver did that.

A. When he said that, the driver did the opposite, and the steel swung over to the side and it swung and hit the European ................. Then when he gave the signal for the steel to go up the steel came up. The master said stop. The winch driver stopped. The European said come back. He did not come back and then the winch was taking it up the opposite way. When the European come back and the driver of the winch did the opposite way, and the steel was swinging and it hit the European ........... The steel swung - and hit him against the side of the ship."

Now Tami has given this evidence. The defendant called a subsequent witness whose name was Ako who said no such thing. Tami wasn't there, he was mid ship, but of course this witness wasn't available to Mr. Wood apparently at the time, and so Tami couldn't be recalled. He had been excused by consent of the parties, so his evidence wasn't put in cross-examination, and evidence was called from Mr. Oberland as to whether you could see or you couldn't see, and on this point Ako's evidence was that Tami was on the mid ship's winch and not on the port winch and that they were working, that he was signalling when he heard the plaintiff call out, and the inference from that is of course, that the winch driver was watching him and his signals, and therefore couldn't have been seeing what happened when the plaintiff called out. But when he heard the call, Ako rushed down as did Tami, but the fact of the matter is that Ako says that when he got down there that Tami was down there when he got there, which was said in cross-examination, and there is no doubt that Tami carried him down, so that you have this conflicting account of what took place.

Now it appears that Ako has just been asked to give evidence in the last month or two of events which had happened two years before. So far as Tami is concerned, there is no suggestion that the plaintiff went to see him and asked him to rehearse his evidence with him or went over and asked him to give evidence contrary to the truth. There was no evidence that he offered him money. He wasn't asked when he was called to give evidence, and for myself I feel it difficult to reject Tami's evidence upon reflection because from where he was he was in a position where he could see.

Now there is another piece of evidence which corroborates the plaintiff, and this evidence has caused me a great deal of trouble as it would indeed cause anybody who was sitting in this
Court and who might imagine himself in the position of a juryman, who might as in Australia being called upon, as a juror, to decide this case, because in cross-examination, Mr. Pratt put a question to Iwago. (At page 30).

"Q. Do you remember why the iron swung back to the stern the way it did.

A. I didn't know.

Q. That didn't happen in the morning when Mr. McKenzie was there. A. It did not.

Q. The reason was in the afternoon, Lula made a mistake with the winch and raised it instead of lowering it.

A. Yes it is true."

Now it is true that after this, in evidence in re-examination, Mr. Wood took Iwago through his evidence in which he said that the only signal given was to raise, that this was done, and that no other contrary signal to come back was given.

Now how do I assess this evidence. It is well-known that witnesses in the position of this particular witness, particularly when they are subjected to a hectoring style of cross-examination which I don't suppose you can blame Counsel for adopting, but which is in fact the practice in this Court, are inclined to give answers which the cross-examiner wants, and of course it is within the experience of everybody that there are some people who are born in this Territory who will usually give the answer which the person asking the question wishes them to give. But so far as Iwago is concerned, any witness who gave an answer against his interest, and it must be remembered that Iwago was the hatchman, he said he was on the hatch that was closed, any witness who gave such an admission against interest because he was involved, perhaps in any imputations of lack of safety, normally a tribunal would have no hesitation in accepting that evidence, and it cannot be merely because he gives evidence contrary to the side which calls him that is a reason to reject it He was called to support the defendant, but in this respect he did not support it, and as prima facie against his interests it is prima facie a piece of evidence upon which the plaintiff is entitle to rely.

Now it may well be that he did give this answer being hectored into doing so. I use the word hectoring to describe the tactics of the cross-examiner which was to ask a loading question designed to assist his client's case in such a manner as perhaps with this sort of witness might well cause him to say something which was untrue to satisfy the cross-examiner, and perhaps out of some apprehension. Well that may be so, but on the whole I feel this that if I did reject this evidence, I would be uneasy about it, because it is in substance an admission made by the hatchman against the defendant's own interests by a witness who had in other respects supported the case of the defendant.

Now what is the evidence against this. Well Mr. Wood says the accident couldn't have happened as the plaintiff said, but I am afraid that the positions on the deck can't really assist me very much. I am very conscious of the evidence of Mr. Spargo, who was certainly not challenged on this point, who says that steel when it breaks free can go anywhere, and I feel this, that I am satisfied on the probabilities of the case here in the movement of this steel, that the accident could have happened as the plaintiff described it. It has struck me that it is a very odd sort of thing that steel could be jammed when it was being moved by winch, but I know nothing whatever about stevedoring, and this was not a matter gone into in cross-examination, and I don't at this stage, and my judgment would be wrong if I did, base myself on a view of the facts upon which I am unable to pass judgment.

Now then what is the evidence against this. Well there is the evidence of Lula who I must say did not strike me as an impressive witness. He did not strike me as an impressive witness, and I see no reason to prefer his evidence on the way it was given, to Tami's evidence. Now Mr. Oberland's evidence has troubled me. It has been that Mr. Oberland was an impressive witness – well he was a fair witness it is true, but I have been troubled, and particularly having regard to two answers, first of all his recollection was not first class, and secondly he couldn't swear the hatches were open or closed, which troubled me a bit because one would have thought that this was something that he would have been pretty sure about.

Well he gave evidence of course that the signal was given to be lifted. Perhaps I might refer to Mr. Oberland's evidence. When the steel was fixed, he said you had hooks and eyes and two slings were used. "As soon as the slings and the steel started to rise, I turned to move away to a place of safety on No. 3 hatch. The steel as soon as it was lifted, moved across towards the bulwark and struck the plaintiff.
.............

Q. Did you actually see the steel contact the plaintiff.

A. No........... I saw the plaintiff standing and the steel start to swing, and I started to move away and I heard a shout and I saw the plaintiff lying with the steel across his leg." (At page 35 – 36.)

Then he gave what seems to me to be a quite surprising answer. That this took place as he was running up and down and back again, and the period of time was ten or fifteen seconds. Well, whether this was, I don't know whether it is possible that the steel asked to give evidence. Whether it is possible that the steel started to move, and he because of his knowledge, the steel coming upwards, instantly sensed danger, but that there was something which intervened in that ten or fifteen seconds, seems to me to be something that is not excluded, that is, that the plaintiff at that time gave the signal to comeback. And all in all, I am thus left with this most difficult question of fact, that is am I satisfied on the balance of probabilities that a wrong movement of the winch was given by the winchman Lula in response to a signal given by the plaintiff. I have the evidence of the plaintiff, Tami and Iwago on the one side, and, on the other side, Lula, and to support it to some extent in any event by Mr. Oberland, and all in all, I feel that this was a circumstantial account given by the plaintiff. It may have been invented, but it is a peculiar thing that it is supported by a man who seems to have had no interest with the plaintiff, but more perhaps with his own fellow employees, the other winchmen and hatchmen, and there is this plain and distinct substantial and essential corroboration of Iwago's in cross-examination, and in spite of Ako's evidence, after some anxious consideration upon this, I have come to the conclusion that on the balance of probabilities, supported as he is by these other witnesses, the plaintiff's account is correct, and that winch driver did not respond in accordance with his signal to come back.

I should also say that the medical evidence supports the plaintiff, that he was struck against the bulwark, and it is to be taken I cannot accept the evidence of Iwago or Lula as to their account of the way in which the plaintiff's leg was struck whilst he was lying on the floor of the deck. The only way in which this injury could have been suffered, it seems to me, of those two methods was the way described by the plaintiff, and he was amply supported by Dr. Cleasy in this respect. This is a matter which I have also taken into account in endeavoring to asses these witnesses. It seems therefore to me, that on that ground the plaintiff has shown negligence, but I should also indicate that it seems to me that the plaintiff has made out a case of negligence against the defendant also in other respects.

The plaintiff has contended that he was not adequately instructed, nor were the dangers of moving this long steel inherent in the operation, brought to his attention. He said he had been involved in the discharge of R.S.J.'s about twice before. On those previous occasions, he had never seen any accident which had resulted in personal injury to anybody, that the method of dragging the bundles aft was standard practice, and that on the previous occasion that he had been involved in discharging bundles of R.S.J.'s, the hatchman or that person for the time being acting as hatchman did stand on the deck, and he says there he wasn't made sufficiently aware of the dangers.

Now I should say as to Mr. McGrath's evidence, it seems to me that as he said no great stevedoring knowledge was required, nor was it expected of the plaintiff, his aim was really to see that the men kept on working, and that there was no breakage of cargo. I can understand at this time in the Territory's history, which I hope doesn't go on too long, that it is necessary to introduce European expatriate labour, we don't have either the Asiatic labour or indigenous Europeans here or the indigenous people, and I hope that they do progress, and I have no doubt that eventually they will, but it seems to me that the defendant was in this situation that it was difficult to get experienced stevedores, but no doubt in the past he has had men of nous and gumption who have picked it up quickly, and no troubles at all, they have done their job, and he felt it was unnecessary to give this man the long and thorough period of training, which I accept from the evidence of Mr. Spikes and Mr. Spargo was necessary before a man is placed in the charge of a dangerous operation of unloading steel.

Mr. McGrath has had no instance before his immediate notice of such an accident happening, and all he did was to warn the plaintiff as to look out when you are discharging long steel, which seems to me to be not sufficient, having regard to the evidence of Mr. Spargo and Mr. Spikes. Mr. McKenzie showed him how to sling cars, and worked with him in the hatches. There was a demonstration in the morning, but although both Iwago and Lula seemed to understand that they were being brought up for safety purposes, Mr. McKenzie gave his evidence very fairly, and I needn't go into it again. I am satisfied that this was not brought home to the plaintiff that he was being called up there for safety purposes, that it was unsafe to stay down on the deck, rather than the fact that this was the important thing to get that steel through the side hatch, and it is significant on this question of training, that Iwago had to be called up too, that he was down there and needed this direction greatly experienced as he was said to be. So that this warning was necessary for them, in spite of their experience. This man wasn't even a stevedore, had done no training, and he was brought on to supervise straight away, and he may very well have been given a false Impression of his efficiency and competence, having regard to the skimpy training or the minimum of training or the few directions that he was given so far as this type of cargo is concerned. So I am satisfied on the balance of probabilities that the defendant did not sufficiently instruct the plaintiff in the work of directing the discharge of this deck cargo, that it was reasonably foreseeable that the injury would result if he wasn't instructed, and reasonable training would have prevented the injury caused by the plaintiff placing himself in an unsafe position.

Now then, if this is so, that we have the plaintiff as an inexperienced supervisor, then it seems to me that even assuming that there was no failure by the winchmen to observe the signal, even if you don't accept the plaintiff's story, which I decide to accept, it seems to me that we have here the winchmen raising up this steel when the plaintiff was in an unsafe position, that the accident arose from two causes, one that the plaintiff was in an unsafe position, and secondly that the lift was ever undertaken at all. Now prima facie therefore the winchmen were not justified, there was negligence on their part in raising the lift when the plaintiff was in that position. I would then go on to draw my inferences from the situation as follows. That of course if the plaintiff was shown to be an experienced winchman, hatchman or supervisor, then of course it was quite proper for Lula to carry out his orders, although he thought the man was standing in an unsafe position because he would be entitled to assume that the plaintiff knew what he was doing, that if he was in an unsafe position it was desirable that he should be, that he was aware of the risks and had made some arrangements or course of action which would take him out of harm's way should in fact the possibility occur of the steel swinging out. But in this case, the situation, which I put in argument yesterday, seems to me on reflection is to be resolved in this fashion, that prima facie it was wrong for the winchmen to lift in that situation, and it was up to the defendant to show that this man was an experienced man such that they were entitled to obey his directions even given in that unsafe position.

But in any event, it seems to me also to be an unsafe system of work to place an inexperienced and insufficiently trained European supervisor in charge of an experienced native crew, having regard to the fact that natives will normally carry out orders from Europeans, even if the orders are wrongly or negligently given, or the European is in an unsafe position, and I agree with Mr. Pratt's submission the only safe system of work here would be to have the plaintiff fully trained and made a fully experienced supervisor.

This was put by Mr. Pratt in cross-examination, and again very fairly answered by Mr. McKenzie. (See page 8).

"Q. This is an hypothetical situation - where you have a winchman of twelve years or more experience, a hatchman of limited experience, and they are put in charge of a supervisor who clearly doesn't know his job, and who puts himself in a position of danger, the winchman can see the danger, does nothing to inform this inexperienced person, does not stop what he is doing, and lets him get hurt, is the winchman at fault.

A. Yes, he would be.

Q. The hatchman too, this inexperienced supervisor got himself in this predicament by presuming to take over the job of hatchman. You would expect the hatchman to step in and stop operations.

A. Yes, in some circumstances, but in the case of a native taking over a European, perhaps not so."

So it seems to me, that even if I did not accept the plaintiff's evidence, which I have decided on the balance of Probabilities I should, it seems to me that the plaintiff has made out a case of negligence both on the part of his fellow servant, Lula, in raising the winch for which in law the defendant is responsible, and that it was not a safe system of work because of his lack of training.

Now this brings me to the question, the plaintiff having succeeded against the defendant, was there contributory negligence. Mr. Wood says the plaintiff shouldn't have taken over, but there was no evidence that he was acting contrary to instructions. He was placed in the position of a supervisor, and over this gang of men, and it would be natural for him to think that if he felt that he should take over, he should take over, and no doubt there would be occasions if the hatchman wasn't there this man would do the job himself and take over from the hatchman. He would be presumably expected to take over on occasions, as it seems to me, and I consider that this in itself is not a case of contributory negligence which has been made out.

Now he did stand in an unsafe place, that is undoubted, but the law has gone to some lengths for in a case cited by Mr. Pratt, Mr. Justice Lowe appears to have held in Victoria that it must be a deliberate act done in conscious or fool-hardy defiance of a realized danger, which makes a plaintiff guilty of contributory negligence. Mannu v. Ford Motor Company of Australia Pty. Ltd^[5]. But the report is not available to me.

Now then having regard to the plaintiff's evidence in this case, I am not satisfied that he was aware of the danger of his situation. He had never seen steel go loose, although he had been warned that it can go loose, I am conscious of the fact of Iwago also down there on the deck, and the plaintiff's evidence that on other occasions Iwago or the hatchmen had been acting on the deck whilst giving orders, and in all the circumstances, I am not satisfied that the plaintiff appreciated the risk or realized the danger, and so in those circumstances I have come to the conclusion that the plaintiff was not guilty of contributory negligence, that the defendant has not shown that he was guilty of contributory negligence.

Now this brings me to the question of damages. There are no special damages in this case. Indeed the defendant appears to have acted very generously so far as the plaintiff is concerned. It has turned out perhaps that this was their legal responsibility, but without waiting for a legal responsibility to be established, and having regard no doubt to the position of this man with his wife and young children, they did behave very decently to him.

Now the plaintiff is entitled to be compensated so far as general damages are concerned, for pain and suffering, loss of enjoyment of life and future economic loss. He is to be given compensation, but moderate compensation, and I am to weigh the plaintiff and the defendant's case, I am not to be over generous on behalf of the plaintiff at the expense of the defendant, and I am not to be niggardly at the plaintiff's expense in favour of the defendant. All these are rules of thumb which are told juries every day, but juries have the still difficult task of assessing damage as I have in this case.

Well again, I regret to say, that the plaintiff did not make a good impression upon me. He seemed to me to exaggerate his condition just as he threw out, carelessly, of course, you can leave the hatch open to get light. Three months was good enough for him as an estimate for the period of traction, which in fact was about six weeks. On reflection, it seems to me that it was a careless answer. He exaggerated again to say that the operation which took place on the following morning tank place two days later. I accept the situation that he was in traction, that he was in pain, and he suffered pain when the pin was removed, and I also accept the statement which is put to juries that there is nobody's pain more easy to suffer than another man's pain. He suffered a fracture of the femur, he obtained an excellent result with a 5º loss of disability so far as work on the ground is concerned. The only disabilities that have been made out are that he can't play squash or dance, and when he goes on long walks after a while his leg goes numb. It is accepted that he can't work again on a ladder, and he therefore can't follow his occupation as a linesman.

Now then, it is for the plaintiff to prove his damages. As I said I must give him the compensation for his pain and suffering the fact that he can't play squash or dance or go for long walks. He also says that his enjoyment of life has suffered because of them interruption of his sex life all of which has diminished, but there is no physical injury for this, and there is no reason to suppose that in due course of time, if he springs out of it, he can't make life as happy as he once did for his wife and his young children and enjoy this side of life. There is no evidence that he has tried any other sport. It may be that he could play a few holes of golf, but he does not seem to have tried that. Perhaps he doesn't fancy golf. Indeed his loss of morale has apparently put him back in the chair. However, I assume that this will not continue, and that he will realize after this case when he receives an award of damages that life does go on, and that he owes a duty not only to his family but to himself to resume his former good attitude to life.

Now there is economic loss here, because the plaintiff cannot any longer work at his trade of a linesman. He can't get up on a ladder, but there is no evidence as to what the loss is. He seems to have been working at much the same rate of money here. The Territory standards are special. His wife says they can't stay here, they will go to Australia, and there is no evidence as to what the margin is in Australia or whether he couldn't get just as much money if he worked driving machinery or trucks. He has abandoned temporarily, he said, his trade because he couldn't get any such work here, and he liked the life here, he liked the friends and his I.A.A. Social Club, and they were very lucky that they did have good friends and have an enjoyable mode of life here, after what I Presume was the more restricted and dreary suburban life of England and Sydney. But undoubtedly, he has lost this earning capacity, so he has lost some potential. I have to take into account whether this loss of potential will in fact lead to a diminution of earnings, having regard to the history of his employment since, which seems to me to be one of perhaps inability to settle down after the accident as being part of the story, and whether or not he is likely to pursue his trade steadily for the rest of his life or intermittently if he wants a change of employment and can get attractive employment elsewhere.

Well this matter doesn't admit of a great deal of discussion. I have to arrive at a figure, I have set out the principles applicable. I have to take into account the impression the plaintiff has made upon me, and I do allow for the fact that there is some diminution of earning capacity, but I have no evidence of what it is, but all the circumstances of this case, I have reached the conclusion that a fair and moderate award of damages is the sum of $6,500.00 and I award the plaintiff that sum of damages. There will be judgment for the plaintiff for damages in the sum of $6,500.00 with costs to be taxed.

_____________________
Solicitor for the Plaintiff: Messrs. Craig Kirke & Pratt.
Solicitor for the Defendant: Messrs. Cyril P. McCubbery & Co

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^[1](1960) A.C. 145.
^[2] (1958) 2 Q.B. 110.
^[3] (1961) 2 All E.R. 538.
^[4] (1953) A.C. 180.
^[5] (1961) V.R. 465.