Webb v Commissioner for Railways (NSW) [1938] HCA 24

Webb v Commissioner for Railways (NSW) [1938] HCA 24 - HCA 1938 case summary — Zoe

[20]

In April 1935 his duties included watering carriages and distributing 'call to duty ° notices to various railway officers, and making himself generally useful. His remuneration was 1s. 7-4/l1ths d. per hour. Since the happening of the injury he has been re-employed by the respondent who has made available suitable work, has increased his remuneration to 1s. 8-8/1lths d. per hour, and provided him with an excellent artificial foot. At the time of the happening of the injury the applicant was employed at South Grafton railway station where there are barracks for railway officers ; a locomotive depot ; equipment for watering and cleaning railway carriages and assembling trains. After lunch on 27th April 1935 the station master, Mr. Playford (since deceased), gave the applicant some "call" papers and told him to take them to the barracks and call the guards for duty at the times prescribed on their call papers. The barracks were just beyond the northern end of the platform and on the western side of the railway lines. Almost opposite the barracks were a No. 50 class locomotive and north of but next to it a sleeping car known as ' ACX.' The ' ACX' had to be shunted south opposite the platform and later put at the end of the No. 14 south-bound mail train leaving South Grafton at 2.7 p.m. In order to do this, it was necessary for the locomotive to change ends on the' ACX.' It proceeded south along the loop line for a short distance, and by means of the cross-over to the main line, then returned north along the main line near the barracks, and returned south on the loop line to the opposite end of the 'ACX.' The part between the main line and the parallel loop line was known locally as 'the 6 ft.' Operations connected with this shunting work were in progress when the applicant was returning from the barracks with the call papers. Two of the guards were not there and in the course of his journey back to the station master's office, which is towards the southern end of the platform, the applicant was called by acting leading porter. Lloyd. The applicant proceeded across the per- manent way to Lloyd, who was near the ' ACX,' and was told by him to ' drag the water hose and connect it to the tap in readiness to water the carriage,' i.e., to fill the tanks which provided water or the use of passengers. There were four taps along 'the 6 ft.'

[34]

the locomotive overtook and was passing him. If at that time he had been running along the 3' 84" space and fell, his foot could not have got under the locomotive. Furthermore, if he had been running along ahead of the locomotive he would have been seen by fireman Morgan. who was keeping a look-out on that side. The first Morgan knew of the accident was when he heard someone call out. He looked back and saw the applicant sitting on the ground. Sleeping-car conductor Wright, who was on the 'ACX,' gave evidence that, after having refreshed his memory from the written report he made to the respondent on the day of the happening of the injury. he was definite that on hearing a noise he looked south from the ' ACX ' towards the locomotive, which was half-way across the cross-over to the main line, saw the applicant hanging on one tail ; fall off the side of the engine ; sit down on the permanent way ; and grab his foot. After the engine passed he got up again and started to hop along. Witness saw that he was injured and rushed to his assistance. After witness had rendered first aid he asked the applicant what he was doing at the time of the happening of the injury and the applicant said ' his foot had slipped off the engine.' The evidence of shunter Cox is that after hearing a cry he looked towards the interlocking rods in question and saw the applicant sitting on the rods. Witness went over to the applicant and then sought a doctor. The applicant had been given first aid by Wright and was lying on a stretcher waiting for the doctor to arrive. When Cox questioned the applicant in regard to the happening of the injury, the applicant replied : 'I was trying to get on the tender of the engine.' The commission is satisfied that the applicant jumped 'on to one of the steps of the locomotive ; that his left foot slipped from there and the anterior portion was crushed by one or more wheels of the locomotive. The evidence is uncontradicted that the appli- cant's duties under his contract of service with the respondent did

[36]

without written or printed permission from a properly authorized officer.' The applicant had no such permission. Counsel for the applicant contends that, if the applicant was on the locomotive, he was there in the execution of his duty and his act was done to expedite his employer's business. The commission has carefully examined the applicant's case from this angle but is unable to come to that conclusion. The pace the locomotive was travelling on the loop was not appreciably faster than the applicant would run, and at the most the locomotive would have only taken him portion of the short journey towards the station master's office. There was an interval of not less than twenty minutes between the time of his conversation with Lloyd and the time of the arrival of the south- bound mail train, which was not due to leave South Grafton until 2.7 p.m., and the work which the applicant had to perform on the "ACX" sleeping car would, according to his evidence, have taken him 10 minutes. There was not a state of emergency, and even if there had been riding for so short a distance on the slowly moving locomotive travelling across points would not have resulted in expedition. In fact, riding on the locomotive would be more likely to hinder than to hasten his journey. The applicant was friendly with the fireman on the locomotive in question, and the applicant's act may have been for the purposes of friendly conversation. The applicant knew that he was prohibited from riding on the loco- motive. There is no evidence upon which the commission could reasonably find that it was in pursuance of any duty to his employer, or for the purposes of and in connection with his employer's business, that the applicant attempted to ride on the locomotive. On the weight of the evidence, the commission finds that the applicant's act in attempting to jump or ride on the locomotive was not in the execution of his duty and had no connection with, nor was it incidental to, his duties under his contract of service. In so doing he was voluntarily exposing himself to an entirely unneces- sary peril. It is unfortunately true that the injury has resulted

[37]

in his serious and permanent disablement, but as he was not doing any part of his duty at the time, his act cannot be deemed to arise out of and in the course of his employment within the meaning of sec. 7 (2) of the Workers' Compensation Act 1926-1929. Tt is not a question of the applicant doing his proper job in a wrong or prohibited way. as in Victoria Spinning Co. (Rochdale) Ttd. v. Matthews (1), but of his voluntarily leaving his proper job and doing something hazardous outside the scope of his employment, and it was out of this unnecessary peril that the injury arose. There- fore the negativing of the contravention of the prohibition contained in rule 21, supra, as contemplated by sec. 7 (2), could not make the injury one which could be deemed to arise out of and in the course of the employment. The material cause of the applicant's injury was not that he committed a breach of a prohibition in the execution of duty when attempting to jump or ride on the locomotive, or that he failed to obtain permission to ride on the engine, but that apart from any prohibition he - instead of continuing in the course of his employment on foot - of his own volition deviated from that course and for purposes unconnected with his employer's business was attempting to jump or ride on the moving locomotive. By so doing he took himself away from his duties and needlessly put himself in a place of obvious danger, and, unfortunately for him, the danger materialized. In Matthews' Case (1), which was decided by the House of Lords in July 1936, Lord Russell of Killowen, after referring to Wil- sons & Clyde Coal Co. Ltd. v. M'Ferrin and Kerr or M'Aulay v. James Dunlop & Co. Ltd. (2), said: * The different treatment of the cases of the two men M'Ferrin and M'Aulay establishes, I think, the pro- position. that if a workman at the time of the accident is doing something which is not his job at all and in doing that job contra- venes a regulation or order to which those whose job it is are subject (as distinguished from the case of a workman whose job is subject to a regulation or order which he contravenes while doing his job) he is not within the provisions of sub-sec. 2, and the employer is not liable to pay compensation. The matter was fully discussed

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Judgment (95 paragraphs)

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