Key v Commissioner for Railways (NSW) [1941] HCA 26

Key v Commissioner for Railways (NSW) [1941] HCA 26 - HCA 1941 case summary — Zoe

[17]

from Sydney to Wollongong, and the western pair constituting the H- C- oF 4. "up" line to Sydney. The van was situated about a quarter of a ugar mile from Wollongong railway station in the direction of Sydney, . Ker on a siding on the eastern side of the down line. From the siding & a bank sloped down to a cess, or path, about three feet wide, which es fringed the easternmost side of the down line. Evidence showed Ratways that at the relevant time the tank containing the water supply for the si van was situated on the westernmost side of the two sets of rails, so that it was necessary for the inmates of the van to cross the rails to obtain water. No latrines were provided at the van. The nearest latrine was at a foundry not owned by the commissioner and situated off the railway premises almost opposite to the van, beyond the western- most side of the two sets of rails. There was a latrine on railway premises situated about two hundred yards away from the van in a north-westerly direction on the western side of the two sets of tails, and also at Wollongong railway station. 'The means of access to the van ordinarily used was the permanent way. It was also possible to get to and from the van, (a) by descending the sloping bank from the van to the adjacent cess, proceeding along the cess for a short distance in a northerly direction, descending a slope beside the buttress of a bridge, and, near the foot of the slope, scrambling over the lower end of the buttress, and (b) by walking along the cess towards Wollongong. These ways were awkward, and involved skirting blackberry bushes. The permanent way was not lighted away from the railway station, and there was considerable traffic along it. On the evening of the accident, which occurred on 17th August 1939, the deceased was seen to leave the van at about 5.30 o'clock and to go along the adjacent cess and down over the buttress into Victoria Street. He was seen again in Wollongong between 7 and 7.15 p.m. A train from Sydney arrived at Wollongong at 8.54 p.m. A man's hat having been found on the front of the engine, and a spot of blood on the framework below the tender, a search was made along the line, and the dead body of the deceased was found in the middle of the four-foot way of the down line to Wollongong about twenty yards from the van. The left arm and left leg were broken. Blood marks were found on the permanent way, beginning about twelve feet from the end of the van. No-one saw the accident. A train proceeding northward from Wollongong passed the down train at a point two hundred yards north of the scene of the accident. The jury returned a verdict for the plaintiff in the sum of £2,100, which was reduced to £2,000 in order to comply with sec. 145 of the Government Railways Act 1912-1934 (N.S.W.)

[54]

provided pursuant to the terms of an industrial award of April 1937 which, so far as material, was in the following terms : - "Employees engaged on work which does not permit them to return to their home stations daily shall be paid expenses at the following rates - (a) Ifa van . . . be provided 2s. 6d. per night (6) Ifno van . . . be provided and it is necessary for the employee to arrange for his own accommodation 8s. per day 2 It was from the van so provided that the deceased went to and from his work and also for his food and water, and other purposes, for the van had none of the amenities of a dwelling house. Access to the van might be obtained by walking along the main lines of a fairly busy railway. It was an ordinary method of going to or coming from the van. Other means of access to the van also existed, such as using a cess or waterway alongside the railway line, or through bushes, or along a bank, or by climbing over the buttress of a bridge. But there was no defined way or track of any sort to or from the van, though it was, I should think, having regard to the surroundings, quite practicable to make a safe approach to the van. It appears from the evidence that Key left the van at about 5.30 o'clock in the afternoon of 17th August 1939 and proceeded to Wollongong, where he probably had his evening meal, and was seen there between 7 and 7.15 p.m. A train from Sydney to Wollongong arrived there at a few minutes before nine o'clock. A man's hat was found on the front of the engine and some blood on the cross bar under the bogey frame. A search was then made along the line, and the dead body of the deceased was found in the middle of the down line to Wollongong about twenty yards from the van. Blood marks were found on the permanent way beginning at about twelve feet from the end of the van. The left arm and left leg of the deceased were broken. No-one saw the accident, but the facts are amply sufficient to warrant a jury inferring that the deceased was proceeding to or from the van in an ordinary and usual manner and for a legitimate purpose, probably to sleep in the van, but perhaps to use a latrine or obtain water across the line, and that the commissioner sanctioned, if he did not actually require, his employee, the deceased, to use the railway line for this purpose. In these circumstances it was incumbent upon the commissioner, and created a duty in him towards the deceased, to provide a reason- ably safe approach or means of access to and from the van (Jury v. Commissioner for Railways (N.S.W.) (1); Smith v. Baker & Sons (2); Williams v. Birmingham Battery and Metal Co. (3) ).

[56]

The first count in the declaration is founded upon this duty. And it is to this count that I shall first address myself. 'The question whether the approach or means of access was reasonably safe in the ices was one of fact for the jury. The evidence amply warrants a finding that it was not, and on the evidence the jury might conclude that the death of Key was caused by the commissioner's negligence or breach of duty. _ But it was suggested that the deceased voluntarily took upon himself the risk of access to and from the van along the railway line. 'The risk, it was said, was palpable and visible and the only inference on the evidence was that the deceased knew and appreciated that risk and voluntarily encountered it. There is no negligence in any person omitting to do that which he is relieved from doing : See Smith v. Baker & Sons (1); Pollock on Torts, 14th ed. (1939), 131, 132; Beven on Negligence, 4th ed. (1928), vol. 1, p. 796; . v. Hamilton (2). Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he 'no doubt voluntarily subjects himself to the risks inevitably accom- td it, and cannot, if he suffer, be permitted to complain that a wrong has been done him, even though the cause from which he "suffers might give to others a right of action (Smith v. Baker & Sons a) ). Apart, however, from cases such as this, the question whether '4 person was volens or nolens is a question of fact and not of law 'Yarmouth v. France (4); Smith v. Baker & Sons (5); Williams v. Birmingham Battery and Metal Co. (6)). "In order to defeat a plaintiff's right by the application of the maxim relied on," said Halsbury L.C. in Smith v. Baker & Sons, " who would otherwise be entitled to recover, the jury ought to be able to affirm that he con- sented to the particular thing being done which would involve the 'tisk, and consented to take the risk upon himself" (7). "A man is not bound at his peril to fly from a risk from which it is another's duty to protect him, merely because the risk is known" (Pollock on Torts, 14th ed. (1939), p. 132; Dann v. Hamilton (2); Thrussell _y. Handyside & Co. (8)). A workman may know that he is running -artisk, but he may still for economic reasons be unable to give up his place or to refuse employment, and may well rely upon his er's duty to use reasonable care, and upon his right, or that of his dependants, to bring an action if he is injured or killed. This was the view of Mellish L.J. in Woodley v. Metropolitan District (1) (1891) A.C, at p. 344. (5) (1891) A.C. 325. (2) (1989) 1 KB. B0. (6) (1899) 2 Q.B. 338.

[89]

other men living there might or would inevitably cross the line. is no evidence that the prudence and caution which the as a railway man could exercise in crossing the metals were not sufficient to guard him against the danger of being struck by the train. This was the view adopted by this court in Jury v. Commissioner for Railways (N.S.W.) (1) and by the judges of the Supreme Court. "The mere relation of the master and servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself" (Priestley v. Fowler (2), per Abinger C.B.). There was no expressed condition in the deceased's contract of employment with respect to the respondent's duty of care. It is clear from Jury's

Case (3) that it was not an implied condition of the contract that _ the respondent was to insure his safety. There is no evidence that _ the deceased was exposed to any risk which was unusual or which he could not be expected to anticipate. There was no evidence 'that there was anything unusual about the running of the train _ which struck him that might have prevented him from being aware of its approach and avoiding it. The jury could not reasonably _ draw this conclusion from the evidence that it arrived at Wollongong bout one and one-half minutes later than the time at which it was due according to the time table, and that its powerful headlight was dimmed out of consideration for the people on the station. There was another allegation that the respondent was negligent in the management of the trains. I cannot doubt that the trial _ judge's direction that there was no evidence to support this allegation ys In my opinion the appeal should be dismissed. Wiutiams J. The appellant is the plaintiff in an action which _ she brought as the widow of Edwin Alva Key under the Compensa- on to Relatives Act 1897-1928 (N.S.W.), on behalf of herself and eir children, against the respondent, the Commissioner for Rail- ways, as defendant, alleging that her husband, who was run over by a train on the permanent way near Wollongong at about 9 p.m. on 17th August 1939, lost his life as the result of the negligence of e respondent. The declaration contained two counts, alleging (1) that the was an employee of the defendant and required by the itions of his employment to live in a van on the defendant's (1) (1935) 53 C.L.R. 273,

[104]

The risk is similar in character to that of being run over on a highway incurred by an employee of the Main Roads Board who works on and camps by its side, or by a seaman of being swept off the decks and drowned, or by a member of a hospital staff of catching a con- tagious disease. Docks and factories and other industrial enter- prises often have upon their premises wharves, roads and paths along which any vehicular traffic passes, so that employees who are obliged to use these means of access are subjected to a similar risk to that in question. The learned author of Pollock on Torts, 14th ed. (1939), p. 83, where the modern authorities are collected, states : - The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work, and to use reasonable care to keep the premises and appliances safe." A railway employee would therefore be entitled to expect that the permanent way and rolling stock would be kept in good order and repair, so that he would not be injured on the former by falling into some unexpected hole or by a vehicle leaving the rails and colliding with him because of some failure to keep them or it in good repair; and that the system of working the railways would be such that whilst he was employed in some place of danger, such as a tunnel, he would receive adequate warning of an approaching train, and that his van would not be run into when stationary in a siding as a result of defective points or a faulty system of shunting ; but such an employee would not be entitled to any special protection against the risk of danger from oncoming trains travelling in an ordinary manner, while walking along the permanent way with nothing to distract his attention, whether he was proceeding along or across it to or from his work or lodging or on some other lawful errand. Otherwise there would be a duty imposed on a railway commissioner to provide a means of access from the adjoining land to wherever any of his employees were working on the permanent way and to build some overhead bridge or provide some other means by which they could avoid crossing the tracks. But this would obviously be impracticable. When one of a large number of employees is so unfortunate as to lose his life there is always a tendency to consider his case in isolation ; but, in determining whether the employer has been guilty of a breach of duty, the question whether the means which he has taken to ensure his employees' safety against the risks they have to undergo are reasonable or not must be determined having regard to the necessities of the undertaking as a whole. As Isaacs J. said in

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Judgment (144 paragraphs)