Key v Commissioner for Railways (NSW)

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.