Jury v Commissioner for Railways

Jury v Commissioner for Railways - [1935] HCA 29 - HCA 1935 case summary — Zoe

[39]

At the beginning of his summing-up in reference to the third count the learned Chief Justice said that the plaintiff's case was put that the defendant negligently omitted to provide for the safe passing of the employees including the deceased over the land adjoining the camp and to light it sufficiently, as a result of which the accident happened. Later he said there were two broad questions: - "First of all, was the defendant guilty of any negligence in connection with the wires, or the wheels or the chains or the lighting or otherwise in connection with the track? The second question is, was the defendant guilty of any negligence in connection with the running of the train?" He then directed the jury that the deceased was entitled to access to the camp by all reasonable routes and the question therefore arose whether the deceased was either using the only reasonable available means of access which it was reasonable for him to use in the circumstances. If so, it was the duty of the Commissioner to see that the track was as safe as the exercise of reasonable care on his part could make it. Again, at a later stage in his charge his Honor said: - "Well, gentlemen, it is for you to determine whether you think that the deceased, at the time of the accident, was or was not using a track which it was reasonable and proper for him to use in the circumstances. It was the Commissioner's duty to see that proper means of access, if this was a proper means of access, was safe for the plaintiff" (meaning the deceased) "so far as such safety could be secured by the exercise of reasonable care." He next referred to precautions suggested for making the railway track safer. He then gave a general direction that the jury should consider whether the Commissioner was in any way negligent in not providing a reasonably safe means of approach to and from the camp. He proceeded to deal with the question whether, if negligence was made out, it caused the accident. At the conclusion of the charge the plaintiff's counsel requested a further direction, and the following discussion took place in the presence of the jury: -

[46]

Roy Carlton Jury was a fettler in the employ of the Commissioner of Railways of New South Wales. In September 1934, he camped, with others of a gang of workmen for the performance of their duties, near the Leura railway station, and within the railway fences. They so camped with the sanction of the Commissioner. Their hours of duty were from 7.30 a.m. to 5 p.m. There was no water supply in the camp, and the workmen had to cross the railway lines or go to the railway station for it. Food was delivered to the camp by tradesmen, or else was obtained by the workmen going into the Leura township for it and bringing it back to the camp. The workmen also went to the township or the station or an adjoining camp upon their own business or pleasure. A ready means of access to and from the camp was by the railway line, and it was habitually used by all the workmen, foremen as well as ordinary workmen. They walked either along a track called a "cess," just outside the outer rail, or between the running rails of the railway line called the four-foot way, or else in the space between two pairs of lines of railway called the six-foot way. About 9 p.m. on 26th September 1934 Jury was noticed in the Leura township, and at about 9.30 p.m. was standing upon the platform of the Leura railway station. It was a foggy night with drizzling rain. About 10.30 p.m. on the same night, the mail train to Forbes went through the Leura station at about thirty miles per hour. At some time near midnight, Jury's dead body was found upon the railway line. He had been decapitated, and his head and body were within a short distance from the railway platform. There is no direct evidence explaining how Jury got upon the railway line or for what purpose he was upon it. The plaintiff, who is his widow, brought an action for damages against the Commissioner of Railways for the benefit of herself and his children. It is founded upon the Compensation to Relatives Act 1897 N.S.W.. By her declaration the plaintiff charged the Commissioner with negligence in not keeping the railway track in a safe condition for the use of his workmen at the camp, in the management and driving of his train, and in omitting to provide for the safe passing of his workmen to and from the camp already mentioned. The action was tried by Jordan C.J. with a jury. He directed them that it was for them to determine whether the deceased was at the time of the accident using a track which was reasonable and proper for him to use in the circumstances, and that it was the Commissioner's duty to see that the proper means of access (if the track used by the deceased was reasonable and proper for him to use) was safe for the deceased so far as such safety could be secured by the exercise of reasonable care by the Commissioner. The jury found a verdict for the Commissioner, and the Full Court on appeal refused to disturb it. An appeal has been brought to this Court.

[47]

It is contended that the learned Chief Justice should have directed the jury that a duty was cast upon the Commissioner to provide a safe route to and from the camp, and that if such a route was not provided the plaintiff should succeed. The contention was put to the Chief Justice before the jury and he thus dealt with it: - "That is merely putting it in a different way, that there was a duty to provide a reasonable means of access and that such means of access should be reasonably safe. That is undoubtedly so, and if the Commissioner negligently failed to provide a reasonably safe means of access that is negligence." In my opinion, the direction of the Chief Justice, whether the last observation be taken as part of the direction or not, was substantially correct. The employment of Jury by the Commissioner constituted a relationship of duty between them extending not only to his hours of duty but to his comings and goings from the camp as well on his own business as on that of his employer. The duty arises out of the relationship of the parties. The contract of employment involves the duty, but it is not founded upon any term express or implied in the contract. According to the common law, however, the workman takes upon himself the ordinary risks of his employment. Thus a person engaged to perform a dangerous operation takes upon himself the risks incident thereto. The work for which Jury was engaged was not intrinsically dangerous, though it had some risks peculiarly its own. But it is clear also at common law that the contract of employment involves a duty on the part of the employer to take reasonable care to provide proper appliances, to maintain them in a proper condition, and to see that the condition of the premises and ways where his workmen are engaged is reasonably suitable and safe for the purposes for which they are used, and so to carry on his operations as not to subject those employed by him to unnecessary risk (Smith v. Baker & Sons[12]; Williams v. Birmingham Battery and Metal Co.[13]). In the present case the Commissioner knows of and sanctions a camp of workmen alongside the railway. It is there that they live and have a temporary abode; they are on the railway premises with his leave and licence. They must go to and from the camp for the purposes of their work, and also for supplies of food and water and other purposes. In my opinion such a state of circumstances makes it incumbent upon the Commissioner and creates a duty in him towards the workmen to provide a reasonably safe approach or means of access to and from the camp. But it creates no higher or other duty in respect of that approach or means of access. It is in this sense that the learned Chief Justice directed the jury, and it was for the jury to say whether the railway track used by the men was, having regard to the nature and character of the camp, and of the employment, a reasonably safe approach or means of access thereto. The suggestion that the Chief Justice directed the jury only in relation to the arrangement and condition of the railway track and not to its safety as a means of approach to the camp, is quite untenable if the charge be read fairly and as a whole. It is not necessary to refer to the charge in relation to the condition of the track and the driving of the train, for it was not challenged in either aspect. Nor is it necessary to determine whether there was any evidence connecting the death of the deceased with negligence on the part of the Commissioner. As at present advised, I think the question was rightly left to the jury. The jury found a general verdict for the defendant, and that verdict should, in my opinion, be sustained and this appeal dismissed.

[54]

The tragic discovery that the deceased was run down by a train does not, of itself, afford sufficient proof of any negligence on the part of the respondent. The allegation of negligence, which it is material to consider on this appeal, was the alleged omission to make any provision for the deceased safely to go from and return to the camp which was set up by the respondent within the same enclosure as the railway line, for the use of the deceased and a number of his fellow employees who were working for the respondent as fettlers on the railway line in that vicinity. It is submitted on behalf of the appellant that the jury should have been directed that it was the respondent's duty to the deceased to give him safe access to and egress from this camp, and that the breach of this duty was the cause of the accident. There was no direct exit from the camp where deceased was stationed to any public road. The nearest road was some distance away, but it was not very readily accessible, and it was separated from the camp by the fence enclosing the railway premises on that side of the line. Hence, when the men left the camp to get water at the Leura station, or to go to the town of Leura after working hours, which were from 7.30 a.m. to 5 p.m., they were in the habit of walking along that part of the railway line where the deceased was run down. The accident happened at about 10.30 p.m. In making these journeys the men followed the path on the outside of the railway line adjacent to it, as far as it was convenient to walk on that path, and then stepped off it on to the sleepers set across the intervening space of four feet between the rails. They also used to walk along the space, which was six feet wide, between the two sets of rails. The deceased lived in one of two camps which were on opposite sides of the line. Both were established by the respondent for the accommodation of the itinerant gang of fettlers, to which the deceased belonged, who were working on the line between Wentworth Falls and Leura. The deceased was killed on that section of the line. The men encamped on the side of the line, opposite to where deceased's camp was, could go from their camp to a public road, which led to Leura, without crossing the railway lines. A charge was made by the respondent for the use of these camps, the amount being deducted from the daily allowance which the men were entitled to receive in addition to wages.

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Jury v Commissioner for Railways (NSW) [1935] HCA 29; (1935) 53 CLR 273 (13 May 1935)

Parties

Legislation Cited (2)

Cases Cited (1)