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

THE COMMISSIONER FOR RAILWAYS (NEW

RESPONDENT.

SOUTH WALES) Master and Servant-Duty to take reasonable care for servant's safely-Accommodation

provided for servant-Safety of means of access thereto-Railway employee- Access along permanent way-Employee killed by train-Whether evidence of negligence-Volenti non fit injuria-Compensation to Relatives Act 1897-1928 (N.S.W.) (No. 31 of 1897-No. 8 of 1928).

An employee of the Commissioner for Railways was provided with accom- modation in a railway van standing on a siding close to the running lines. Although there were means of access to the van other than by proceeding along or across the running lines, these other means of access were inconvenient, and the situation of the van was such that a person proceeding from or to it might be expected to pass along or across the running lines.

Held, by Rich A.C.J., McTiernan and Williams JJ. (Starke J. dissenting), that the leaving of the van in the situation referred to and the failure to provide other convenient means of proceeding to or from it afforded no evidence that the commissioner had been guilty of a breach of his duty to take reasonable care to avoid injury to the employee by reason of the state or condition of the premises where the employee was required to work or live under the contract of employment.

Jury v. Commissioner for Railways (N.S.W.), (1935) 53 C.L.R. 273, followed. The application of the maxim volenti non fit injuria considered. Decision of the Supreme Court of New South Wales (Full Court): Key V. Commissioner for Railways, (1941) 41 S.R. (N.S.W.) 60; 58 W.N. (N.S.W.) 72, affirmed.

64 CLR 620

620

HIGH COURT

APPEAL from the Supreme Court of New South Wales.

An action under the Compensation to Relatives Act 1897-1928 (N.S.W.) was brought in the Supreme Court of New South Wales by Winifred Mary Key, the widow of Edwin Alva Key, on behalf of herself and the two children of the marriage, against the Commis- sioner for Railways (N.S.W.), to recover damages for the death of Key. (N.S.W.).

The declaration contained two counts, alleging (a) that the deceased was an employee of the defendant and was required by the conditions of his employment to live in a van on the defendant's premises, and that the defendant negligently omitted to provide for the safe passage of the deceased over the said premises, and to make the same as safe as the exercise of reasonable skill and care would permit, whereby the deceased while lawfully using the said premises was struck by an engine and received injuries whereof he died, and (b) that the van was on a line of railway and that the defendant was negligent in the management of the said line, and of the railway trains thereon, and in the situation of the van, and in failing to provide safe and proper means of entry and egress to and from the van, whereby the deceased while lawfully using the said line of railway was struck down by a train and…

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: [1941] HCA 26
Decision Date: 8 September 1941

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, the widow of Edwin Alva Key, brought an action under the Compensation to Relatives Act 1897-1928 (NSW) against the Commissioner for Railways (NSW) for damages arising from her husband's death. Mr. Key, an employee of the Commissioner, was killed by a train while near his accommodation, a railway van provided by the Commissioner. The action alleged negligence on the part of the Commissioner in failing to provide safe passage to and from the van and in the management of the railway and trains.

The legal issues before the High Court were whether the Commissioner had breached his duty of care to provide reasonably safe premises and access for his employee, and whether there was sufficient evidence of negligence to support a jury's verdict in favour of the widow. The court was required to consider whether the circumstances of the van's placement, the available means of access, and the inherent risks of the railway environment constituted a failure by the Commissioner to take reasonable care for the safety of his employee. The applicability of the maxim *volenti non fit injuria* (to a willing person, injury is not done) was also a point of consideration.

A majority of the High Court, comprising Rich A.C.J., McTiernan and Williams JJ., held that the Commissioner was not guilty of a breach of his duty to take reasonable care. Their Honours reasoned that the placement of the van and the lack of more convenient means of access did not, in themselves, constitute evidence of negligence. They applied the principles established in *Jury v. Commissioner for Railways (NSW)*, emphasizing that an employer's duty of care does not extend to protecting employees from risks that are inherent in the nature of their employment or that are obvious. The court found that the deceased, as a railway employee, was familiar with the risks associated with railway premises and the use of the permanent way. The majority concluded that there was no evidence that the Commissioner had failed to take all reasonable precautions or that the deceased had not appreciated and voluntarily accepted the risks associated with accessing the van. Starke J. dissented, finding that the evidence did support a jury's conclusion of negligence and that the question of whether the deceased had voluntarily assumed the risk was a matter of fact for the jury.

The appeal was dismissed, affirming the decision of the Supreme Court of New South Wales, which had set aside the jury's verdict and entered judgment for the Commissioner.

Orders