Commissioner of Railways v Ruprecht

[1979] HCA 37

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Mason, Murphy and Wilson JJ.

COMMISSIONER OF RAILWAYS v. RUPRECHT

(1979) 142 CLR 563

20 August 1979

Negligence

Negligence—Contributory negligence—Action by employee against employer—Negligence of fellow employee—Inadvertence of employee—Lapse of concentration—Employment involving high risk and concentration.

Decisions

Aug. 20.
The following written reasons for judgment were published:-
GIBBS J. The present respondent brought an action in the Supreme Court of Queensland against the appellant, the Commissioner for Railways, for damages for personal injuries sustained by the negligence of one Caddies, an employee of the Commissioner. The learned trial judge, Lucas J., found that Caddies had been guilty of negligence and declined to make a finding of contributory negligence against the respondent and gave judgment for the respondent for a sum of damages which he assessed. An appeal was brought to the Full Court of the Supreme Court, which dismissed the appeal on the issues of negligence and contributory negligence but allowed it as to damages; however, we are not concerned with the question of damages. (at p564)

2. There is no challenge to the ultimate facts as found in the Supreme Court. On 18th July 1974 the respondent was injured when he was struck by a railway wagon which was being shunted in the Commissioner's railway yards at Townsville. The respondent was then employed by the Commissioner as an acting foreman shunter and Caddies was employed as an acting shunter in charge. The latter position is subordinate to the former; the foreman shunter instructs the shunter in charge to shunt particular wagons on to particular lines, and it is the duty of the shunter in charge to arrange for his crew to give effect to those instructions. The normal method of shunting was to use a locomotive to propel the wagons which were to be shunted and which, when uncoupled, would run under their own momentum to the destination to which the points had been set. It was the responsibility of the shunter in charge to decide when the actual movement of a wagon should commence. The south yard, in which the accident occurred, contained a number of railway lines, or roads as they were called, on to which wagons might be shunted. There were over a dozen such lines which converged in the shunting straight which led to the north yard. The respondent was walking across one of the lines, known as the Mid Road, when he was struck by a QFX wagon which had travelled from the shunting straight after the team under the control of Caddies had put it in motion. (at p565)

3. Caddies and his team had brought a number of wagons on to the shunting straight and, acting under the instructions previously given to them by the respondent, were sending the wagons to their respective destinations. First, an HJS wagon was sent to 3 Goods Road. Then - according to the findings of the learned trial judge - about a minute later, the QFX wagon was put in motion in the direction of the Mid Road. When the shunting of the QFX wagon was commenced the respondent was standing near a place known as No. 3 Goods Points, having a brief conversation with one Withers, the shunter in charge of a team from the north yard. A train was at that time standing on another line, the Bulk Road, and it was intended that this train should be returned by the north yard team to the north yard. To get to the north yard that train would have had to take a course which would have intersected that which would be taken by the wagon travelling from the shunting straight to the Mid Road and would then have had to travel along the shunting straight. The respondent, after speaking to Withers, walked towards the Mistake Roads, looked into them to see what room was left in them for wagons, and then started to walk towards the Bulk Road to check some wagons there. To get to the Bulk Road he had to cross the Mid Road. Before he crossed that line he did not look in the direction from which the QFX wagon was about to come, although he knew that it was due to come from the direction of the shunting straight within about a minute and although he was aware that a wagon of that kind would move quietly. He was instead looking at the engine which was due to be moved to the north yard. (at p566)

4. The learned trial judge did not regard all the evidence given by Caddies as accurate, but he accepted that Caddies had looked to see if the points had been changed for the Mid Road, and had then observed the respondent at No. 3 Goods Points. Caddies then went back and uncoupled and sent off the QFX wagon. After doing so he looked up and saw the respondent with the QFX wagon going towards him. Caddies said that the respondent then was, or appeared to be, in the Mid Road, but he also said that the respondent could then have been walking towards the rails rather than between them. At that time the wagon had travelled about 20 or 30 ft, and was still about 180 ft from the respondent, and was travelling at about six miles per hour. The learned trial judge found that Caddies did not look up before he sent off the wagon and did not realize that the respondent was in a situation of danger which he, Caddies, had created. (at p566)

5. The learned trial judge held that Caddies was negligent in failing to keep a sufficient lookout before he uncoupled the QFX wagon, and said that Caddies had appreciated that very shortly before he uncoupled the wagon the respondent was in a position close to where the wagon would have run along the Mid Road. Counsel for the Commissioner did not challenge the finding that Caddies did not look up before releasing the wagon. However, he submitted that it did not follow that Caddies was guilty of negligence which caused the accident, because had Caddies looked he would not have observed any situation of potential danger and would not have seen any reason why the wagon should not have been released. Counsel particularly relied on the facts that the wagon, when it was put in motion, was about 200 ft from the respondent and that it was travelling at about six miles per hour, so that more than twenty seconds must have elapsed after the wagon was started and before it struck the respondent. Moreover, it was said, Caddies could not have foreseen that the respondent would walk from the No. 3 Goods Points on to the Mid Road. It was submitted that it would be unrealistic to hold that if Caddies had looked before he set the wagon in motion he should have appreciated that the respondent would be endangered, and that indeed the respondent was in no danger until he commenced to cross the Mid Road. However, Caddies, in his evidence, repeatedly stated that when he looked up, after releasing the wagon, he saw that the respondent was in a situation of danger. Caddies said that what he saw when he first looked up caused him shock, and indeed panic. He started to run towards the respondent, yelling out to him, although the respondent did not hear him. With all respect to the careful argument of counsel for the Commissioner, I am unable to agree that the learned trial judge was bound to disregard this evidence, which leads inescapably to the conclusion that if Caddies had looked before he released the wagon, instead of immediately afterwards, he would have seen that the respondent would be in serious danger if the wagon was put in motion. The proper conclusion from the evidence is that Caddies was guilty of negligence which contributed to cause the collision. It is unnecessary to consider whether Caddies was guilty of further negligence in failing to take reasonable steps to avoid the danger to the respondent after the wagon had been released. (at p567)

6. A more difficult question is whether the respondent should have been found to be guilty of contributory negligence. The respondent admitted that he walked on to the Mid Road without looking to see if there was traffic on that line, although he was aware that the QFX wagon was due to be shunted on to the Mid Road within a very short time. He said that he was looking in the direction of the other train, which was destined for the north yard, and which he expected would move before he crossed the Mid Road. He also said that he did not look along the Mid Road because he thought that Caddies would have pushed the train in his care into another road, that is, would have moved it on to another line, so that it would be out of the path of the train which was to be moved to the north yard. Moreover, as the learned trial judge pointed out, the respondent was performing complex work which demanded his continuous concentration, and which, as one of the witnesses said, required him to "be thinking of the fourth or fifth move ahead". In the course of that work he would cross the railway lines a hundred times or so in an ordinary shift. And the work had been made rather more burdensome because of the inexperience of some of the shunters on the shift. In short, the explanation for the failure of the respondent to look before he crossed the line was that he was preoccupied with the performance of his duties and acted on the assumption that the north yard train constituted a possible source of danger and that the wagons under the control of Caddies did not. (at p567)

7. Counsel for the Commissioner submitted that the fact that the respondent had acted inadvertently or thoughtlessly did not necessarily mean that he had not been negligent, and that of course is correct: Sungravure Pty. Ltd. v. Meani (1) (1964) 110 CLR 24, at pp 33, 37-38 . However, in deciding whether the respondent was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand, with a view to deciding "whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man": Sungravure Pty. Ltd. v. Meani, per Windeyer J. (2) (1964) 110 CLR, at p 37. In my opinion, in the circumstances which I have mentioned, the respondent's inadvertence was not such as to amount to a failure to take reasonable care for his own safety. In reaching this conclusion I particularly rely on the circumstances that the employment demanded, and obtained, the respondent's concentration upon it, and involved a risk of danger to which the respondent had become habitutated, and that the respondent had reasonable grounds for thinking that Caddies would not despatch the wagon on to the Mid Road at the time when he did and that he should accordingly direct his attention to the train bound for the north yard. It was correct to conclude that the respondent was not guilty of contributory negligence. (at p568)

8. It was submitted that the Full Court acted upon principles disapproved in Warren v. Coombes (3) (1979) 142 CLR 531 , but it is unnecessary to consider whether that was so because in any case the Full Court made the correct decision. (at p568)

9. The Court has already dismissed this appeal. The foregoing are my reasons for taking that course. (at p568)

STEPHEN J. I agree with the reasons expressed by Gibbs J. for the dismissal of this appeal. (at p568)

MASON J. I am in agreement with the reasons given by Gibbs J. for dismissing this appeal so far as it relates to the issue of negligence. (at p568)

2. The issue of contributory negligence is more complicated. The primary judge disposed of it in this fashion: "On the question of contributory negligence I have been reminded of the less strict standard which should be applied to situations in which an employee is injured while doing his work, and particularly, work of a complex nature such as this was, in which the plaintiff had to concentrate continuously, and as one of the witnesses put it, 'Be thinking of the fourth or fifth move ahead.' There were distractions in the presence of the north yard engine, there was a good deal of background noise, there was the inexperience of the shunters who formed part of his shift, as a result of which it seemed to be the case that he himself had to perform certain duties which he otherwise would not have had to perform, and while, certainly, the failure by the plaintiff to keep a lookout for traffic on the Mid Line contributed to the accident I am not prepared to find in the circumstances of this case that it amounted to such a lack of care for his own safety to be classed as contributory negligence. I therefore decline to make a finding of contributory negligence against the plaintiff." (at p569)

3. The primary judge found that an interval of one minute probably elapsed between the release of the first wagon (HJS) and the release of the second wagon (QFX) which struck the respondent. Further, the judge found that Caddies, the shunter in charge, had earlier complained to the respondent that the two shunters assigned to work with them were inexperienced and had stated that he, Caddies, would not take responsibility for any derailments. In so doing, the judge did not accept the respondent's evidence that Caddies had also said that he would not take care in the performance of his work. These two findings of fact indicate that the judge did not accept the whole of the respondent's evidence as to the circumstances in which the accident occurred. (at p569)

4. However, it is apparent that the substance of the respondent's version of events leading up to the accident was accepted. It was established that immediately before the arrival of the HJS wagon in No. 3 Goods Road, the respondent was in conversation with Mr. Withers, the shunter from the north yard train who asked the respondent when that train should depart for the north yard. The respondent replied that it should leave as soon as possible. There was evidence that the north yard train was idling in the Burma Road ready to depart, having picked up in that road the line of wagons to be returned to the north yard. The departure of the north yard train would have facilitated the progress of the shunting of the south yard train, for the presence of the other train was an additional complication in the execution of the shunting work. The discussion with Withers and the presence of the north yard train in the Burma Road were the foundation of the respondent's expectation that immediate arrangements would be made for the departure of the north yard train and that this would cause a suspension of the shunting operations by Caddies as he vacated the shunting straight in order to leave the way to the north yard clear. (at p570)

5. It may also be accepted that the performance of the respondent's duties required him to check the contents of the two wagons covered with tarpaulins which were standing in the Bulk Road. The Bulk Road lay beyond the Burma Road, which in turn lay beyond the Mid Road. The respondent did not suggest that there was an immediate need to check the contents of the two wagons. No doubt he decided to check them then because he believed that there was going to be a temporary suspension of shunting operations. (at p570)

6. In the course of moving to the Bulk Road, as he came upon the Mid Road, the respondent looked up the Burma Road in the direction of the north yard train to make sure that it was still stationary. The Mid Road and the Burma Road merge at this point. The respondent looked first in the direction of the north yard train rather than in the opposite direction towards the shunting straight because, according to his expectation, the immediate source of danger to him lay in the Burma Road with the north yard train which he believed was about to depart. (at p570)

7. The issue, then, is whether in these circumstances, when he knew that the shunting instructions which he, as acting foreman shunter, had previously given to Caddies called for the release next of the QFX wagon into the Mid Road, the respondent's omission to look in the direction of the shunting straight before stepping on to the Mid Road constituted contributory negligence on his part. It is not in question that had the respondent looked in that direction he would have seen the QFX wagon bearing down towards him. (at p570)

8. Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v. British Columbia Electric Railway Co. Ltd. (1951) AC 601, at p 611 ) ; and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury - see, e.g., Sungravure Pty. Ltd. v. Meani (1964) 110 CLR, at p 37 . (at p570)

9. However, in applying the enunciated standard of care to contributory negligence on the part of employees the courts have taken into account a variety of factors which have a tendency to excuse the employee for inattention to his personal safety. (at p571)

10. Thus, Lord Wright said in Caswell v. Powell Duffryn Associated Collieries Ltd. (1940) AC 152, at pp 178-179 , in a passage which has been frequently applied:
"What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety." (at p571)

11. Initially in the United Kingdom it seems to have been thought by some that this approach was permissible only in cases in which contributory negligence was relied upon as a defence to an action for breach of statutory duty in a factory, the defendant employer having omitted to take the precautions required by statute to protect the employee from the danger to which his lack of care might otherwise expose him. The decision of this Court in the Sungravure Case (1964) 110 CLR 24 was a distinct departure from this restricted thinking. (at p571)

12. There the Court pointed out that thoughtlessness and inadvertence on the one hand and negligence on the other hand are not mutually exclusive categories and that an inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for, or consideration of, the consequences that may follow from the doing of it. As Windeyer J. said (5), it is for the tribunal of fact to consider whether "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions . . . caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". (at p571)

13. After noting that the principle was not restricted in its application to activities in factories, his Honour concluded by saying: "In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care." (at p571)

14. It is therefore settled law that this approach to contributory negligence is not limited to employees in factories or to cases in which there is a breach by the employer of a statutory duty the performance of which is designed to protect the employee from injury, whether in consequence of his own inadvertence or otherwise. Nor, in my opinion, is it limited to cases of negligence in which the employer has failed to provide a safe system of work as in the Sungravure Case, though it is peculiarly appropriate to cases of this kind because the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence. There is nothing in the Court's exposition to suggest that the principle has no application to cases in which a defendant employer is held liable in negligence for the casual act or omission of the plaintiff's fellow employee. (at p572)

15. The statement of principle in the Sungravure Case was not expressed to hinge upon any distinction between contributory negligence and negligence (cf. Staveley Iron &Chemical Co. Ltd. v. Jones (1956) AC 627, at p 648 to which I shall refer later). In terms it is as apposite to the question whether conduct on the part of an employee constitutes negligence on his part as it is to the question whether the same conduct constitutes contributory negligence. Indeed, the fact that the one standard of care, that of the reasonable and prudent man, is common to both negligence and contributory negligence, seems to demand the dual application of the principle to negligence and contributory negligence on the part of an employee. The only potential basis for drawing a distinction lies in the suggestion that in applying the standard of care it is to be expected in the nature of things that a person, even a reasonable person, will take less care for his own safety than he will take for the safety of others. So far this suggestion has not been accepted. (at p572)

16. In Staveley Iron &Chemical Co. Ltd. v. Jones (1956) AC 627 it was argued that, if the standard of care in contributory negligence differs from that in negligence, a workman injured partly through his own carelessness and partly through that of a fellow employee would be able to recover damages from his employer, though himself having a defence in respect of his own negligence. In response to this argument, Lord Reid and Lord Tucker (with whom Lord Morton, Lord Porter and Lord Cohen agreed) acknowledged that the same act or omission may possibly have different consequences when the injured man is the plaintiff suing his employers and where the employer is being sued by a third party (including another employee in relation to the same act or omission) (1956) AC, at pp 642, 648 . It seems that their Lordships proceeded on the view that the master is vicariously liable for his servant's torts. However, the majority of this Court in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long (1957) 97 CLR 36 considered that the master is liable for his servant's acts, not for his torts. (at p573)

17. On this occasion there is no need to decide these contentious questions. As the law presently stands we should proceed on the footing that the standard of care that applies in the case of contributory negligence on the part of an employee is no lower than the standard of care that applies in the case of negligence on his part, cf. Commissioner for Railways v. Halley (1978) 20 ALR 409, at p 420 . (at p573)

18. Consequently, in the words of Windeyer J., the question which we must decide is: Was the omission of the respondent to look in the direction of the shunting straight, before stepping on to the Mid Road incompatible with the conduct of a prudent and reasonable man? (at p573)

19. I would answer this question in the affirmative. I acknowledge that there is a high risk of danger in shunting operations. However, this circumstance merely underlines the stern necessity for the employee to take care for his own safety. It makes it the less excusable that the respondent should omit to take an obvious and necessary precaution. This is not a case involving an industrial process in which the risk of injury is fairly slight, a process of which it might be said that the employee becomes blinded to the risk by reason of familiarity and repetition. The evidence of the witnesses in this case emphasized the degree of risk and the near misses which should remind the shunter of the ever-present danger inherent in the operation. (at p573)

20. Likewise, this is not a case in which the employer by reason of his breach of statutory duty or his omission to adopt a safe system of work has thereby exposed the employee to additional risk of injury through his inadvertence or carelessness. Nor is it a case in which concentration upon the work in hand was the effective cause of the omission to take the obvious precaution. Instead, it is a case in which an employee made an error of judgment as to the likely course of events, in the absence of any indication from his shunting crew that the instructions previously given by him had been suspended, and did not bother to take the one simple precaution of looking in the direction of the shunting straight, a precaution which, if taken, would have alerted him to the hazard which threatened from that quarter. (at p573)

21. In my opinion a reasonable and prudent employee in the situation of the respondent would have taken this precaution before stepping on to the Mid Road into the path of the oncoming wagon. The factors relied upon by the primary judge do not persuade me that a reasonable and prudent man would have done otherwise. No doubt there is some element of complexity in deciding which wagons will make up particular trains and in determining the order in which wagons will be picked up and deposited by the shunting train. It calls for an ability to think ahead. But the respondent was not engaged on that task at the relevant time. He was moving to the Bulk Road to inspect the two trucks. It was a simple operation. Although the presence of background noise may have played a part in his failing to hear the oncoming wagon (which he knew to be fairly noiseless) it had nothing to do with his failure to keep a proper look-out. Again, the inexperience of the two assistant shunters was irrelevant. It played no part in what the respondent was doing when he was injured. The evidence does not spell out with precision the additional duties which he was forced to undertake in consequence of their inexperience. It seems that he did pin the brakes of all the wagons to be shunted and that this was a task which he would ordinarily have left to experienced assistant shunters. However, he was not engaged in this activity in the period of time leading up to the accident. (at p574)

22. Accordingly, with the exception of the presence of the north yard train, the factors mentioned by the primary judge do not explain or demonstrate why a reasonable and prudent man in the situation of the respondent would have omitted to take an obvious and necessary precaution for his own safety. Consequently, I consider that the primary judge came to an incorrect conclusion on the issue of contributory negligence. (at p574)

23. The Full Court, it should be noted, did not indorse the primary judge's finding. W.B. Campbell J., whose reasons for judgment were adopted by the other members of the Court, said:

"Although I am not saying that I would have reached the same conclusion as did His Honour on the issue of contributory negligence I am not convinced that he was wrong, and consequently I am not persuaded that, consistently with the established principles on which an appellate court should act before disturbing the findings of a trial judge, this court should interfere with his finding."

This passage does not reflect a correct appreciation of the function of a appellate court in reviewing inferences of fact, as it was explained by Gibbs, Jacobs and Murphy JJ. in Warren v. Coombes (1979) 142 CLR 531 . Although this judgment was delivered before the judgment under appeal was delivered, the attention of the Supreme Court was not drawn to it. Accordingly, in my view the primary judge's finding was incorrect and should have been displaced on appeal. (at p575)

24. As a majority of the Court do not share my view, there is no point in my discussing the issue of apportionment, except to state that I would have apportioned 30 per cent of the liability to the respondent. (at p575)

25. In the result I would have dismissed the appeal in part (as to the issue of negligence) and allowed it in part (as to the issue of contributory negligence). (at p575)

MURPHY J. Mr. Ruprecht suffered severe personal injuries resulting in amputation of both his legs when he was struck by a wagon in the Commissioner for Railways' shunting yards at Townsville on 18th July 1974. He was an acting foreman shunter; shunting is difficult and dangerous work. His team consisted of Mr. Caddies, an experienced shunter, and two extremely inexperienced shunters for whom Mr. Caddies refused to take responsibility. Mr. Ruprecht reported this twice to his superior, but no experienced shunters were made available to replace the inexperienced ones. As a result, Mr. Ruprecht and Mr. Caddies had to perform extra duties and were under pressure. Mr. Caddies said that he was not prepared, in that state of affairs, to take any responsibility for derailment. Mr. Caddies released a wagon which travelled along the lines at about six miles per hour. It travelled quietly because it was of a type equipped with roller bearings. He released it without ensuring that no one was in the vicinity of the lines on which it was to travel. At that time, Mr. Ruprecht was about 200 ft away in the vicinity of those lines; he had been speaking to the shunter in charge of another team about the scheduling of the movements of the two teams so as to co-ordinate their use of the yards. As soon as Mr. Caddies released the wagon, he realized that he had endangered Mr. Ruprecht and immediately ran, shouting, towards him, but his attempts to warn were futile as the shunting yards are noisy. Sophisticated warning systems are now, and were then, readily available; for years, two-way radios, beepers and remote-control devices have been children's toys, but Mr. Ruprecht and his fellow workers had no devices to warn of vehicle movements which might endanger them. Mr. Ruprecht went to cross the lines without realizing that the wagon was coming along the lines towards him. The disregard for safety disclosed by the evidence is a feature of Australian industry. The disregard is not confined to Australia. In Muscle and Blood; The Massive, Hidden Agony of Industrial Slaughter in America, New York (1974), Rachel Scott shows that it is cheaper for industrial enterprises to pay damages or insurance premiums than to pay for safety measures and facilities to prevent accidents. Those familiar with Australian industry know that safety precautions are habitually disregarded in factories and workplaces. Employers close their eyes because safety precautions slow down production and are expensive. Employees also often consciously disregard safety. (at p576)

2. Mr. Ruprecht sued the Commissioner in the Supreme Court of Queensland. The claim was founded only on the Commissioner's vicarious liability for its employee, Mr. Caddies, and not on what appears to be a strong case of breach of an employer's duty to provide a safe system of work. The restriction of claims to either the "personal" liability of the employer, or to vicarious liability in cases which do not seem to call for such restriction can lead to unnecessary technicality and has obvious dangers for a plaintiff (see Katsilis v. Broken Hill Pty. Co. Ltd. (1978) 52 ALJR 189 ; Geyer v. Downs (1977) 138 CLR 91 ). (at p576)

3. The Supreme Court (Lucas J.) held that the Commissioner was vicariously liable because of the negligence of Mr. Caddies, and that there was no contributory negligence by Mr. Ruprecht. The Commissioner's appeal to the Full Court of the Supreme Court was dismissed. The Commissioner now appeals on the same grounds, that there was no negligence and that Mr. Ruprecht was guilty of contributory negligence. The contention that there was no negligence in the Commissioner has no merit. Negligence in the shunter, Mr. Caddies, for whom the Commissioner is vicariously liable was clearly established. (at p576)

4. The contention that the award of damages should be reduced because of contributory negligence is also without merit. The doctrine of contributory negligence as applied to accidents to employees at work was once one of the "unholy trinity" of common law defences (see Fleming, Law of Torts, 5th ed. (1977), p. 486). Now that it is not a defence but only a ground for reducing damages, it is still regarded as an unjust rule (see Fleming, op. cit., pp. 486-491; Munkman, Employer's Liability at Common Law (1975), pp. 582-587). It has been narrowly confined, almost to vanishing point. This Court dealt with it most recently in Commissioner for Railways v. Halley (1978) 20 ALR 409 , in which a learner shunter was injured. Under existing industrial conditions, an employee is not free to take such action as he thinks fit but is required to work subject to his employer's control. Employees often become so absorbed in their work that they are inattentive to their own safety. Momentary carelessness is not likely to be prevented or diminished by rules like contributory negligence or even by safety codes (statutory or otherwise) (see G. Schwartz, "Contributory and Comparative Negligence: A Reappraisal", Yale Law Journal, vol. 87 (1978) 697, at p. 717). It would be unjust if the more an employee concentrates on his employer's task at the expense of his own safety, the more he suffers by reduction of his damages in the event of injury. The test in contributory negligence in an employee's claim is not the same as the test in negligence. If it were, Mr. Ruprecht's continuing to work in conditions which constituted breach of his employer's duty and expose him to unnecessary risk of injury might be regarded as failure to take reasonable care for his own safety. An employee should not be held guilty of contributory negligence unless when he acted (or failed to act) this was done with full appreciation of the danger. Even then, it should not be regarded as contributory negligence if it was done to advance the employer's interests. This means that there must be an element of wilful misconduct by the employee. This approach is reflected in the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing, is not to be regarded as contributory negligence (see Halley's Case; Carlyle v. Commissioner for Railways (1954) 54 SR (NSW) 238, at p 249 ; Flower v. Ebbw Vale Steel, Iron &Coal Co. Ltd. (1936) AC 206, at p 214 ; Caswell v. Powell Duffryn Associated Collieries Ltd. (1940) AC 152 ). (at p577)

5. In Piro v. W. Foster &Co. Ltd. (1943) 68 CLR 313 , an employee claimed damages for personal injury caused by a breach of the employer's statutory duty to fence dangerous machinery. At that time, contributory negligence was a defence to a claim for breach of statutory duty, and "an action in negligence and an action for breach of statutory duty" (were) "for the purposes of the defence of contributory negligence regarded as similar" (1943) 68 CLR, at p 325 (per Rich J.). Latham C.J. considered that to establish contributory negligence by a worker, it was necessary to show that what he did "was a deliberate act whereby in defiance of known danger he invited or consciously took the risk of injury" (1943) 68 CLR, at p 322 . It was not enough to show that "though the plaintiff had been warned not to put his hand into the machine, he inadvertently, without thinking on the particular occasion of the warning or of the danger involved, did put his hand into it" (1943) 68 CLR, at p 322-323 . Starke J. expressed the test as whether the plaintiff was guilty of any serious or wilful misconduct, and judged that he was not but that "his action in putting his hand into the machine stamps itself as a forgetful and inadvertent act in the performance of his work, indeed, almost mechanical in its nature" (1943) 68 CLR, at p 330 . McTiernan J. said that "to justify the finding of contributory negligence, it would be necessary to hold that . . . the appellant was mindful of the warning and fully realized that he was imperilling his hand" (1943) 68 CLR, at p 338 . (at p578)

6. In Halley's Case, Stephen J. said (1978) 20 ALR, at p 417 :

"That what the plaintiff in fact did was highly dangerous, as the primary judge found, may be accepted. To this the Full Court have added the view that nevertheless the plaintiff's share of responsibility was very small. However, to find contributory negligence there must be added to the dangerous nature of what the plaintiff did an ability on the part of a reasonable trainee shunter, circumstanced as was the plaintiff, to appreciate that danger."

Gibbs J. said (1978) 20 ALR, at p 410 : "although the respondent should have known that his actions were dangerous, the evidence nevertheless does not establish that the respondent was guilty of a failure to take reasonable care for his own safety". To establish contributory negligence, it must be shown that when the employee put himself in a dangerous position he did so with full appreciation of the danger. There is no reason to apply a lesser standard to an employee than was applied to invitees in Smith v. Austin Lifts Ltd. (1959) 1 WLR 100, at pp 105, 108, 115, 116 (1 All ER 81, at pp 85, 87, 92-93). (and see Commissioner for Railways (N.S.W.) v. Anderson (1961) 105 CLR 42 ). It is not enough to show mere knowledge of the risk; the onus is on the employer to prove that the employee knew and fully appreciated the danger at the time and yet went on to incur it. The factor of appreciation (not mere knowledge) of the danger by the employee has been recognized in many cases in the common law jurisdiction of the United States of America. See Kane v. Northern Central Railway Co. (1888) 128 US 91; (32 Law Ed 339) ; Fiero v. New York Central &Hudson River Railroad Co. (1893) 24 NY Supp 805 . (at p578)

7. It is clear that when Mr. Ruprecht crossed the lines, he did not fully appreciate the danger - he was oblivious to it. There was no conscious deliberate disregard of safety. He was, therefore, not guilty of contributory negligence. (at p579)

8. For these reasons, I joined in dismissing the appeal. (at p579)

WILSON J. At the conclusion of the hearing of this appeal the Court ordered that the appeal be dismissed with costs, and intimated that reasons would be delivered later. (at p579)

2. I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs in this appeal. I am glad to adopt his statement of the circumstances surrounding the accident suffered by the appellant. I also agree with his discussion of the evidence bearing on the question of whether or not the shunter Caddies was negligent and with his conclusion that Caddies was guilty of negligence for which the appellant is liable to the respondent. (at p579)

3. However, on the question of whether the respondent should have been found guilty of contributory negligence, I have come to a different conclusion from that reached by Gibbs J. and a majority of the Court. I find that the respondent was guilty of contributory negligence and, while my view can have no impact on the decision of the Court, I will indicate briefly the considerations that prompt my conclusion. (at p579)

4. The trial judge (Lucas J.) explained his refusal to make a finding of contributory negligence against the respondent in the following terms:
"On the question of contributory negligence I have been reminded of the less strict standard which should be applied to situations in which an employee is injured while doing his work, and particularly, work of a complex nature such as this was, in which the plaintiff had to concentrate continuously, and as one of the witnesses put it, 'Be thinking of the fourth or fifth move ahead.' There were distractions in the presence of the north yard engine, there was a good deal of background noise, there was the inexperience of the shunters who formed part of his shift, as a result of which it seemed to be the case that he himself had to perform certain duties which he otherwise would not have had to perform, and while, certainly, the failure by the plaintiff to keep a lookout for traffic on the Mid Line contributed to the accident I am not prepared to find in the circumstances of this case that it amounted to such a lack of care for his own safety to be classed as contributory negligence." (at p579)

5. I readily accept this description of the complexities of the respondent's task but I cannot condone his failure before stepping on to the Mid Road to look in the direction from which the wagon came. He was an experienced shunter. He had been employed in the yard for many years and had been a foreman shunter continuously for the twelve months prior to the accident. He freely acknowledged the importance of safety considerations in a shunting yard; the primary rule being always to look before crossing a line. (at p580)

6. On the occasion in question the respondent had given specific instructions to Caddies and his crew which required, among other things, that the QFX wagon be shunted along the Mid Road and he expected that those instructions would be carried out without delay. The wagon was of a type which ran very quietly and it was not normal practice for any warning to be given before each wagon was despatched. The respondent knew that the next wagon to be shunted would be propelled along the Mid Road and he knew that its approach could possibly be imminent and would be noiseless. Yet the sad fact is that, notwithstanding these circumstances, he stepped into the path of the oncoming wagon without first looking to satisfy himself that it was safe to do so. (at p580)

7. In his evidence the respondent did not rely on the range of distractions which led the trial judge to excuse his lack of care. He explained that he did not look back towards Caddies and his team because, at the time of the accident, he had expected that Caddies had pushed his train into a road out of the shunting straight so as to clear the way for the north yard train to leave the yard. He told the Court "I just took it the yard was completely under my control then because he should have pushed into a road. I was glancing at the north yard diesel to proceed out of the yard." (at p580)

8. The respondent's expectation that Caddies had pushed his train into a side road was said by him to arise from two factors: one, that an unduly long interval had elapsed since the HJS wagon was shunted into the No. 3 goods, with the result that the QFX shunt was some minutes overdue; and two, that the north yard train was about to leave the yard. There is very little evidence to support either factor. (at p580)

9. In relation to the first factor, the trial judge made the following finding in the course of his judgment: "I accept that the usual interval between the shunting of wagons is of the order of one minute, and it seems probable that this was the interval between the shunting of the two wagons on this occasion." (at p580)

10. In relation to the second factor; although there is evidence that the north yard train was ready to leave the yard, namely the conversation between the respondent and Withers, the fact is that it could not do so until the shunting straight was cleared and there is no evidence to suggest that Caddies had been asked to clear it. (at p581)

11. Furthermore, it would be surprising if the respondent had expected that Caddies had pushed his train into a side road that he would not have satisfied himself that this had been done before stepping onto the Mid Road. A simple glance up the yard in the direction of the shunting straight would have sufficed to show the respondent whether or not the shunting straight was clear. (at p581)

12. I conclude that the respondent failed to look before commencing to cross the Mid Road because his conversation with Withers and his consequent interest in the north yard train distracted his immediate attention from the work of shunting which was then in progress. I can find no basis for a conclusion that he had reasonable grounds for thinking that Caddies would not dispatch the wagon on to the Mid Road when he did, or that he could safely devote all his attention to the north yard train. (at p581)

13. In my opinion therefore, and with respect for those whose consideration of these matters leads them to a different conclusion, the failure of the respondent to keep a proper lookout was negligent and contributed to the accident. It was not merely "some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man": Sungravure Pty. Ltd. v. Meani per Windeyer J. (1964) 110 CLR, at p 37 . (at p581)

14. Having regard to the decision of this Court, it is unnecessary for me to discuss in any detail the percentage by which the damages awarded to the respondent ought to have been reduced by reason of his negligence. Suffice it to say that I would have assessed the respondent's contribution to be of the order of 30 per cent. (at p581)

15. It follows from my conclusion that I think the trial judge was wrong in his finding with respect to contributory negligence and that the Full Court erred in failing to allow the appeal in that regard. (at p581)

16. It was argued for the appellant that in dismissing the appeal the Full Court acted on principles which were disapproved in Warren v. Coombes (1979) 142 CLR 531 , a decision of this Court which was not delivered until after the hearing of the appeal by the Full Court had been concluded. With respect I think the point is well taken, but it is unnecessary to discuss the matter. (at p581)

17. I would have allowed the appeal on the question of contributory negligence but would otherwise have dismissed it. (at p582)

Orders

Appeal dismissed with costs.