Lawrence v Huddart Parker Ltd [1930] HCA 9; (1930) 43 CLR 440 (14 April 1930)

HIGH COURT OF AUSTRALIA

Lawrence Plaintiff, Appellant; and Huddart Parker Limited Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

14 April 1930

Isaacs C.J., Rich, Starke and Dixon JJ.

Evatt K.C. (with him H. G. Edwards), for the appellant.

Brissenden K.C. (with him McGhie), for the respondent.

H. G. Edwards, in reply.

The Court delivered the following written judgment:—

April 14

Isaacs C.J.,

Rich, Starke and Dixon JJ.

The appellant was employed by the respondent as a seaman. His home port was Sydney. While his ship was moored at Hobart he sustained serious injuries, for which he was treated at the Hobart General Hospital as an in-patient from 17th August 1926, with intervals, until 23rd January 1927, and as an out-patient from that date until 14th November 1927. Until 14th November 1927 the respondent paid him wages pursuant to a clause in his agreement framed upon analogy to sec. 132 of the Navigation Act 1912-1926, and maintenance pursuant to sec. 127 of that statute. Upon that date the Surgeon Superintendent of the Hobart General Hospital, under whose care the appellant had been, gave a certificate which the respondent at first considered a certificate of recovery. The appellant was then offered a free passage back to Sydney, which he declined upon the ground that he had not recovered, and as from 14th November 1927 he was paid no further wages or maintenance. Misgivings appear, however, to have been felt as to the sufficiency of the medical certificate, which in fact did not amount to a certificate of recovery, and on 23rd November 1927 the appellant was again submitted to examination by the surgeon, who this time gave a document to the respondent which probably does amount to such a certificate.

This document was not shown to the appellant, nor was the fact that the surgeon had given any further certificate of recovery communicated to him. He did not avail himself of his right to a free passage to his home port until 19th April 1928, when he left Hobart for Sydney. There he sued in the District Court for wages from 15th November 1927 until 21st April 1928 (presumably taken as the date of his arrival in Sydney), and for maintenance from 15th November 1927 until 19th April 1928.

The respondent paid into Court sums representing wages and maintenance from 15th November to 23rd November 1927, but the District Court gave judgment for the plaintiff for the whole amount he claimed. Upon appeal to the Supreme Court[1] this judgment was wholly set aside by James and Halse Rogers JJ. (Ferguson A.C.J. dissenting), and judgment was entered for the defendant. The case was treated as if it depended upon the question whether the Surgeon Superintendent of the Hobart General Hospital, who certified his recovery, was "his medical attendant" within the meaning of that expression, which occurs in sec. 132 and is transscribed in clause 22 of the agreement. We have come to the conclusion that the answer to this question does not determine the case.

The right to maintenance is given to the injured seaman by sec. 127 "until he is cured, or dies, or is brought ... back ... to the port where ... he is entitled to be discharged" or to some other agreed port. We think one of these events must actually occur before the shipowner's liability to pay maintenance terminates. The certificate of the medical attendant or inspector to which sec. 132 refers is not made evidence of the occurrence of any one of these facts for the purpose of sec. 127, either conclusive or presumptive. At the trial no finding was made nor was any evidence given that in point of fact the appellant had recovered before 19th April 1928. The appellant was therefore, in our opinion, entitled to maintenance up to that date.

The agreement upon which he recovered wages before the District Court, although founded upon sec. 132, was evidently designed to extend the injured seaman's rights, and it does not follow exactly the terms of the section. Its material parts are as follows:—"If a seaman belonging to a ship for which articles are signed in Australia is landed and left at any port by reason of illness or accident in the service of the ship, incapacitating him from following his duty, he shall be entitled ... (b) If landed and left at a port other than his home port, to receive wages until his recovery, certified as provided in the preceding sub-clause (a)" (scil., 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. Provided that if after recovery the seaman rejoins his ship or takes other employment or is offered and refuses employment on some other vessel proceeding to his home port at a similar rate of pay to that received by him immediately prior to his being left on shore, and with the right of discharge from that vessel on arrival at his home port his right to continue to receive wages under this sub-clause shall then cease."

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. If there is a certificate of recovery and if the seaman has been given a free passage to his home port, the shipowner is relieved from further liability for wages. It is not necessary in that case that the seaman should be aware of the existence of the certificate. The seaman did not in fact arrive at his home port before 21st April 1928, and none of the conditions specified in the proviso occurred. It follows that the shipowner is liable for wages up to 21st April 1928 unless the seaman by his conduct at some earlier date dispensed the shipowner from further payment of wages. By one of its pleas the defendant, the shipowner, alleged that the plaintiff, the seaman, refused a free passage back to his home port, and it relied upon this as such a dispensation. But there is not any satisfactory evidence that after such a certificate of recovery had been given, and before 19th April 1928, the plaintiff was offered a free passage to his home port or that he refused one. Moreover, a seaman's refusal to set out for his home port could not dispense the shipowner from further payment of his wages unless the seaman knew, or at least ought to have known, that a certificate had been given. In this case he was not informed of the only certificate of recovery given, and he neither knew nor ought to have known of it. Therefore, whether the surgeon who gave it was, or was not, "his medical attendant," the shipowner's liability for wages continued until the seaman arrived in Sydney. These views dispose of the case.

For the guidance of the parties, however, it may be as well to add that we think the words "his medical attendant" mean the medical practitioner who attends the seaman, and are not confined to the medical attendant who is employed by the seaman.

The appeal should be allowed.

Appeal allowed. Judgment of Supreme Court discharged. Judgment of District Court restored. Respondent to pay costs in the Supreme Court and in this Court.

Solicitors for the appellant, Sullivan Brothers.

Solicitors for the respondent, Norton, Smith & Co.