Commissioner for Railways (Q) v Ruprecht

Commissioner for Railways (Q) v Ruprecht - [1979] HCA 37 - HCA 1979 case summary — Zoe

[7]

The learned trial judge held that Caddies was negligent in failing to keep a sufficient lookout before he uncoupled the QFX wagon, and said that Caddies had appreciated that very shortly before he uncoupled the wagon the respondent was in a position close to where the wagon would have run along the Mid Road. Counsel for the Commissioner did not challenge the finding that Caddies did not look up before releasing the wagon. However, he submitted that it did not follow that Caddies was guilty of negligence which caused the accident, because had Caddies looked he would not have observed any situation of potential danger and would not have seen any reason why the wagon should not have been released. Counsel particularly relied on the facts that the wagon, when it was put in motion, was about 200 ft from the respondent and that it was travelling at about six miles per hour, so that more than twenty seconds must have elapsed after the wagon was started and before it struck the respondent. Moreover, it was said, Caddies could not have foreseen that the respondent would walk from the No. 3 Goods Points on to the Mid Road. It was submitted that it would be unrealistic to hold that if Caddies had looked before he set the wagon in motion he should have appreciated that the respondent would be endangered, and that indeed the respondent was in no danger until he commenced to cross the Mid Road. However, Caddies, in his evidence, repeatedly stated that when he looked up, after releasing the wagon, he saw that the respondent was in a situation of danger. Caddies said that what he saw when he first looked up caused him shock, and indeed panic. He started to run towards the respondent, yelling out to him, although the respondent did not hear him. With all respect to the careful argument of counsel for the Commissioner, I am unable to agree that the learned trial judge was bound to disregard this evidence, which leads inescapably to the conclusion that if Caddies had looked before he released the wagon, instead of immediately afterwards, he would have seen that the respondent would be in serious danger if the wagon was put in motion. The proper conclusion from the evidence is that Caddies was guilty of negligence which contributed to cause the collision. It is unnecessary to consider whether Caddies was guilty of further negligence in failing to take reasonable steps to avoid the danger to the respondent after the wagon had been released.

[44]

Mr. Ruprecht suffered severe personal injuries resulting in amputation of both his legs when he was struck by a wagon in the Commissioner for Railways' shunting yards at Townsville on 18th July 1974. He was an acting foreman shunter; shunting is difficult and dangerous work. His team consisted of Mr. Caddies, an experienced shunter, and two extremely inexperienced shunters for whom Mr. Caddies refused to take responsibility. Mr. Ruprecht reported this twice to his superior, but no experienced shunters were made available to replace the inexperienced ones. As a result, Mr. Ruprecht and Mr. Caddies had to perform extra duties and were under pressure. Mr. Caddies said that he was not prepared, in that state of affairs, to take any responsibility for derailment. Mr. Caddies released a wagon which travelled along the lines at about six miles per hour. It travelled quietly because it was of a type equipped with roller bearings. He released it without ensuring that no one was in the vicinity of the lines on which it was to travel. At that time, Mr. Ruprecht was about 200 ft away in the vicinity of those lines; he had been speaking to the shunter in charge of another team about the scheduling of the movements of the two teams so as to co-ordinate their use of the yards. As soon as Mr. Caddies released the wagon, he realized that he had endangered Mr. Ruprecht and immediately ran, shouting, towards him, but his attempts to warn were futile as the shunting yards are noisy. Sophisticated warning systems are now, and were then, readily available; for years, two-way radios, beepers and remote-control devices have been children's toys, but Mr. Ruprecht and his fellow workers had no devices to warn of vehicle movements which might endanger them. Mr. Ruprecht went to cross the lines without realizing that the wagon was coming along the lines towards him. The disregard for safety disclosed by the evidence is a feature of Australian industry. The disregard is not confined to Australia. In Muscle and Blood; The Massive, Hidden Agony of Industrial Slaughter in America, New York (1974), Rachel Scott shows that it is cheaper for industrial enterprises to pay damages or insurance premiums than to pay for safety measures and facilities to prevent accidents. Those familiar with Australian industry know that safety precautions are habitually disregarded in factories and workplaces. Employers close their eyes because safety precautions slow down production and are expensive. Employees also often consciously disregard safety.

[48]

The contention that the award of damages should be reduced because of contributory negligence is also without merit. The doctrine of contributory negligence as applied to accidents to employees at work was once one of the "unholy trinity" of common law defences (see Fleming, Law of Torts, 5th ed. (1977), p. 486). Now that it is not a defence but only a ground for reducing damages, it is still regarded as an unjust rule (see Fleming, op. cit., pp. 486-491; Munkman, Employer's Liability at Common Law (1975), pp. 582-587). It has been narrowly confined, almost to vanishing point. This Court dealt with it most recently in Commissioner for Railways v. Halley [16] , in which a learner shunter was injured. Under existing industrial conditions, an employee is not free to take such action as he thinks fit but is required to work subject to his employer's control. Employees often become so absorbed in their work that they are inattentive to their own safety. Momentary carelessness is not likely to be prevented or diminished by rules like contributory negligence or even by safety codes (statutory or otherwise) (see G. Schwartz, Contributory and Comparative Negligence: A Reappraisal, Yale Law Journal, vol. 87 (1978) 697, at p. 717 ). It would be unjust if the more an employee concentrates on his employer's task at the expense of his own safety, the more he suffers by reduction of his damages in the event of injury. The test in contributory negligence in an employee's claim is not the same as the test in negligence. If it were, Mr. Ruprecht's continuing to work in conditions which constituted breach of his employer's duty and expose him to unnecessary risk of injury might be regarded as failure to take reasonable care for his own safety. An employee should not be held guilty of contributory negligence unless when he acted (or failed to act) this was done with full appreciation of the danger. Even then, it should not be regarded as contributory negligence if it was done to advance the employer's interests. This means that there must be an element of wilful misconduct by the employee. This approach is reflected in the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing, is not to be regarded as contributory negligence (see Halley's Case; Carlyle v. Commissioner for Railways [17] ; Flower v. Ebbw Vale Steel, Iron & Coal Co. Ltd. [18] ; Caswell v. Powell Duffryn Associated Collieries Ltd. [19] ).

At a glance

Court

Decision date

Before

Source

Judgment (72 paragraphs)

Parties