T AND J BROCKLEBANK LTD Vs. NOOR AHMODE

JUDGEMENT

(1.) This is an appeal from the amended decree of the High Court of Judicature at Fort William in Bengal (exercising its appellate civil jurisdiction), dated 25 January 1938, allowing an appeal and cross-appeal from a judgment and decree of the Subordinate Judge of the Fourth Court, 24 Parganas at Alipore in Money Suit No. 96 of 1934 dated 31 July 1935. The question for determination is whether or no the respondent is entitled to recover damages from the appellants in respect of an illness from which he suffered while, and since, serving as a lascar on board the appellants' steamship "Markhor" on a voyage from Calcutta to ports on the east cost of North America and the United Kingdom in and about the months of September and October 1933. The claim was for damages for the negligence of the Master or the Chief Steward of the "Markhor" or both of them for not taking proper steps to deal with the illness of the respondent. The action was originally brought not only against the appellants, but against the ship's agents at Calcutta, and also the Master and the Chief Steward. The action was brought in the Fourth Court of the Subordinate Judge at 24 Parganas at Alipore. In that Court the ship's agents were dismissed from the action, and so also were the Master and Chief Steward. But judgment was given against the appellants for Rs.1500 for pain and suffering and special damage. The total claim had been for not only Rs.1500 for pain and suffering and special damage, but a further Rs.19,000 for general damages. The Subordinate Judge dismissed that latter claim as adventitious and absurd. Before the High Court there were appeals and cross-appeals. The appeals against the Master and Chief Steward were not proceeded with and these parties went out of the proceedings. The High Court upheld the judgment of the Subordinate Judge in so far as the Court held the appellants liable in damages, bat did so on quite different grounds from those on which the Subordinate Judge gave his judgment. On the respondent's cross-appeal on damages the High Court held that the sum awarded by the Subordinate Judge was inadequate and increased the award to Rs.5000. The grounds of claim were originally twofold. But one of these grounds was negatived by both Courts below. It depended on an issue of fact and in their Lordships' opinion the concurrent finding of fact should stand. That ground of claim was based on the terms of the statutory articles of agreement under which the appellant agreed to serve on the "Markhor." One of the provisions of the articles was that the lascar crew (which included the respondent) should not serve between 1 October in any one year and 31 March in the next year on voyages to any port on the east coast of North America north of 38?N. latitude. The respondent claimed that that provision had been broken. The appellants' witnesses denied that any lascars (including the respondent) had worked in contravention of that provision. The Judges in both Courts accepted the evidence called on behalf of the appellants, which was supported by entries in the official log book. This ground of claim accordingly failed, and need not be further considered.

(2.) The other ground of complaint was that there had been a failure on the part of the Master and Chief Steward to exercise proper care in regard to the illness from which the respondent suffered during the voyage. The voyage on which the respondent was engaged was from Calcutta to Atlantic ports in North America. The respondent fell ill near Gibraltar, on or about 18 September 1933, with a bad cold. He did not do any further work on the vessel till he was discharged on 3 November 1933, at Avonmouth, where the doctor diagnosed the illness from which he was suffering to phthisis, and advised his removal to hospital. This was done. He was eventually after treatment sent back to India as a distressed seaman, where he was finally discharged. The medical officer at Avonmouth gave a certificate that the respondent was suffering from advanced phthisis. It is not disputed that the respondent's health has since been very bad. After the respondent fell ill, the ship reached ports in America and England as follows : There was a serious variance between the respondent's account of what happened on the voyage and that given by the appellants' witnesses. But in substance the Judges in both Courts accepted the evidence of the witnesses called by the appellants, which may be thus summarised. When the respondent fell ill, he was with the approval of the Master, given cough mixture by the Chief Steward, whose duty it was to administer medical attention to sick members of the crew. About the same time warm clothing was issued to all the deck lascars, including the respondent. When the ship reached Boston on 28 September 1933, there was a special muster of the crew for the United States quarantine authorities, and the respondent was examined by the Port Medical Officer, on whose advice he was put on a diet of eggs and milk, and was given medicine and cod- liver oil. At every subsequent port of call the respondent was examined by doctors habitually employed by the appellants. At Philadelphia and Norfolk the Master (according to his evidence) requested the doctors to have the respondent removed to hospital, but they each said that it was not a hospital case. Without the authority of a doctor the respondent could not be removed to a hospital on shore. On the second call at Boston the doctor gave the respondent enough codliver oil for the voyage to London, and at London the doctor who examined the respondent gave him turpentine liniment for massaging his throat and chest.

(3.) There is a conflict of evidence as to whether there was a medical examination of the respondent at London. The Chief Steward deposed that there was, but the Master denied this. This last question cannot be regarded as very material, as it was only a very few days between the time when the ship was at London and her arrival at Avonmouth, where, as already stated, on the advice of the doctor who in accordance with the practice of the appellants examined the respondent, and who diagnosed phthisis he was removed to hospital. The Subordinate Judge held the appellants responsible to the respondent in damages on the ground that the cause of the respondent's damage was the negligence of the doctors engaged by the appellants at the various ports of call in not diagnosing the respondent's condition as tubercular or in. deed as anything worse than a common cold. But negligence on the part of these doctors was not pleaded as a cause of action, and no evidence was given on the point. Neither they nor the appellants had any opportunity of answering such a case. No evidence was given as to the relationship between the doctors at the various ports and the appellants. There is nothing in the evidence to justify the conclusion that the doctors were negligent or that even if they were negligent the appellants were responsible for that negligence. The High Court rightly reversed the finding of the Subordinate Judge on that point. But the High Court held that the appellants were responsible for the negligence of the Master and Chief Steward which the Court found. The Court held that the Master and Chief Steward had failed to take proper care of the respondent when they knew he had a bad cold. The High Court expressed their opinion in these words: We have no hesitation in expressing our concurrence with the view indicated in the judgment of the Court below, that defendant 3 should have in view of the prolonged illness of the plaintiff, suspected something serious with the plaintiff, and to that has to be added that the negligence in this behalf was fully shared by the Chief Steward, whose duty was to look after the ailing crew on board the ship. In our judgment, the Chief Steward, charged with the duty of attending to complaints in cases of sickness, and the Master' of the vessel, who by the very nature of things, exercised the functions of the owners of the ship when on high seas, for the purpose of looking after the health and safety of the crew employed on the ship, were careless and negligent in the matter of taking reasonable and proper care of the plaintiff in his illness, which within the period of time, from 18 September to 3 November 1933, had developed into an advanced case of phthisis. The plaintiff, on account of the omission on the part of the servants of defendant 1 had been placed in a position of risk of life. If the life of the plaintiff, has been saved, he has, according to medical evidence, been incapacitated from doing work for the rest of his life.