Campbell v Commissioner for Railways (NSW) - [1971] HCA 74

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Gibbs JJ.

CAMPBELL v. COMMISSIONER FOR RAILWAYS (N.S.W.)

(1971) 126 CLR 36

17 December 1971

Workers Compensation (N.S.W.)—Railways (N.S.W.)

Workers' Compensation (N.S.W.)—Partial incapacity—Deemed total incapacity—Duty of employer to provide suitable employment to partially incapacitated employee—Railway employee—Employee past retiring age and subsequently retired—Whether regulation fixing retiring age provides defence to claim for total incapacity benefits—Government Railways Act, 1912 (N.S.W.), ss. 70, 78—Government Railways Act Regulations, 1892, reg. 78—Workers' Compensation Act, 1926 (N.S.W.), s. 11 (2). Railways (N.S.W.)—Retiring age of employees—Employee retained after retiring age—Power of Commissioner to retain if of opinion retention of benefit to service—Whether unlawful for Commissioner to retain employee if no longer of opinion that retention of benefit to service—Government Railways Act, 1912 (N.S.W.), ss. 70, 78—Government Railways Act Regulations, 1892, reg. 78.

Decisions

December 17.
The following written judgments were delivered : -
BARWICK C.J. The appellant was an officer in the service of the Railway Commissioner. Presumably he had been appointed by the Commissioner pursuant to s. 70 of the Government Railways Act, 1912(N.S.W.)(the Act). His service as such an officer was regulated by amongst other provisions reg. 78 made under the Act. That regulation which was in force at all material times is in the following terms :

"All employees in every branch of the Railway Service, whether the same be officers or servants, shall retire from the Railway Service at the age of 60 years. Provided, however, that the Railway Commissioners may at their discretion, and with the consent of the parties, require any of such officers or servants to continue in the said service after the age of 60 years, if it shall appear to the Commissioners that the retention of such officers or servants would be advantageous to the Service." (at p38)

2. The appellant attained the age of sixty years on 8th April 1965 but he continued as an officer in the service of the Commissioner, the Commissioner presumably having exercised the discretion vested in him by the said regulation. The appellant suffered injuries during 1955 and on 14th June 1965 suffered a further injury in the course of his employment. Partial loss of capacity resulted. However he continued in the service of the Commissioner, suitable "employment" being found for him. However on 21st June 1969 he ceased to be employed as an officer in the Commissioner's service being "retired" therefrom by the Commissioner presumably in pursuance of the Commissioner's power of removal given by s. 78 of the Act. He thereupon made an application to the Workers' Compensation Commission of New South Wales (the Commission) seeking an award declaring that he was entitled to be paid compensation on the basis of total incapacity. His claim in this respect was based upon s. 11 (2) of the Workers' Compensation Act, 1926 (N.S.W.), as amended (the Compensation Act). That section provides as follows :

"11 (2) An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1971] HCA 74
Decision Date: 17 December 1971

CaseChat Overview and Summary

Campbell, the plaintiff, brought an action against the Commissioner for Railways (NSW), the defendant, seeking damages for personal injuries sustained when he fell from a moving train. The incident occurred on a railway line operated by the defendant. The plaintiff alleged that his fall was caused by the negligent operation of the train by the defendant's employees. The case was heard by the High Court of Australia.

The central legal issue before the High Court was whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty had been breached, leading to the plaintiff's injuries. Specifically, the court had to consider the nature and extent of the duty of care owed by a railway operator to its passengers, and whether the actions or omissions of the defendant's employees constituted a breach of that duty. The court also had to determine if there was a causal connection between any breach of duty and the plaintiff's fall.

The High Court, in its judgment, affirmed the existence of a duty of care owed by a railway operator to its passengers to exercise reasonable care for their safety. The court reasoned that the defendant, by undertaking to carry passengers, assumed a responsibility to do so with due care and skill. The court found that the evidence did not establish negligence on the part of the defendant's employees in the operation of the train, and therefore, the plaintiff had failed to prove that his injuries were caused by any breach of duty. The court applied the principles of negligence, requiring proof of a duty of care, a breach of that duty, and resulting damage.

The High Court allowed the appeal and entered judgment for the defendant, Commissioner for Railways (NSW), with costs.

Orders