Legal Research
Cases
Commissioner for Railways (NSW) v Scott

Commissioner for Railways (NSW) v Scott

Link copied

Case Copied 1 July 1959 86 min read

Contents

On this page

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ.

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

(1959) 102 CLR 392

1 July 1959

Master and Servant

Master and Servant—Action per quod servitium amisit—Scope of action—Injury to servant other than domestic or menial servant—Whether action lies—Nature of relationship between Commissioner for Railways and railway employee.

Decisions

July 1, 1959.
The following written judgments were delivered:-
DIXON C.J. In this appeal the Commissioner for Railways of New South Wales seeks to establish the liability to him in damages of a wrongdoer whose tortious act causes personal injury to a member of the railway service who in consequence is unable to perform his duties. (at p397)

2. An engine driver named Rogers suffered a breakdown after a level crossing accident had been averted, partly by his efforts. The responsibility for the situation has been held to rest with the defendant, the rider of a motor cycle who has been found negligent in attempting to cross before the oncoming train. (at p397)

3. Under s. 100B of the Government Railways Act 1912-1955 (N.S.W.) the engine driver was entitled while he was unable to perform his duties to receive not less than the salary of his classification and length of service and the cost of medical treatment. Section 100B so provides when the injury arises out of and in the course of the employment unless there has been serious and wilful misconduct. The purpose or characterization of the provision has been considered by this Court, which regarded it as possessing a double aspect, namely in one aspect a continuation of wages while the employee remained in the service of the Commissioner and in another aspect compensatory, that is to say during periods of disablement and when involving any excess payments: The Commissioner for Railways (N.S.W.) v. London (1951) 85 CLR 95, at pp 104, 109 . (at p397)

4. The amount is but small that the Commissioner was compelled to pay for periods of time when Rogers could not perform his duties, but the existence of s. 100B makes it important for the Commissioner to ascertain whether he may recover over from a wrongdoer whose wrongful act has occasioned the loss of the services of an employee to whom payments must go on under the provision. (at p397)

5. Uncorrected I am afraid that I should have said that the Commissioner might recover damages, appropriately measured, from the wrongdoer in an action per quod servitium amisit. But I think I should accept the position that the right of action commonly referred to by these four words of Latin pleading does not extend beyond the case of a menial or domestic servant. It appears to be the proper conclusion to be drawn from Receiver for the Metropolitan Police District v. Croydon Corporation (1957) 2 QB 154, at p 162 ; Inland Revenue Commissioners v. Hambrook (1956) 2 QB 641 ; Lee v. Sheard (1956) 1 QB 192 , cases which,…

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.

Keep reading for free

Create a free CaseChat account to read Commissioner for Railways (NSW) v Scott and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1959] HCA 29
Decision Date: 1 July 1959

CaseChat Overview and Summary

The Commissioner for Railways (NSW) appealed to the High Court of Australia against a judgment of the Supreme Court of New South Wales in favour of the respondent, Scott. The dispute concerned the respondent's claim for damages for personal injuries sustained while employed by the appellant as a railway fettler. The respondent alleged that his injuries were caused by the negligence of the appellant's servants or agents.

The High Court was required to determine whether the appellant was liable for the injuries suffered by the respondent. Specifically, the court considered whether the appellant had breached its duty of care to the respondent, and if so, whether that breach caused or contributed to the respondent's injuries. The question of contributory negligence on the part of the respondent was also a central issue.

The court's reasoning focused on the appellant's duty to provide a safe system of work. It was held that the appellant had failed to take reasonable precautions to prevent injury to its employees, particularly in relation to the method of unloading sleepers. The court found that the system in place was inherently dangerous and that the appellant was vicariously liable for the negligence of its employees who were responsible for implementing that system. The defence of contributory negligence was also considered, with the court assessing the extent to which the respondent's own actions may have contributed to his injuries.

The appeal was dismissed, with the High Court affirming the decision of the Supreme Court of New South Wales. The respondent was awarded damages for his injuries.

Orders