Reck v Queensland Rail

[2005] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

Reck v Queensland Rail [2005] QCA 228

PARTIES:

NIGEL RONALD RECK
(plaintiff/respondent)
v

QUEENSLAND RAIL
(defendant/appellant)

FILE NOS:

Appeal No 8928 of 2004
SC No 60 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2005

JUDGES:

McPherson JA, Fryberg and Holmes JJ
Joint reasons for judgment of McPherson JA and Holmes J; separate reasons of Fryberg J, dissenting in part

ORDER:

1.  Appeal dismissed with costs
2.  Cross-appeal dismissed with costs

CATCHWORDS:

NEGLIGENCE – Duty of care – Employer and employee – Safe system of work – Whether employer had a duty to instruct and warn where risk of injury was obvious and known to employee

National Coal Board v England [1954] AC 403, cited
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, referred to

COUNSEL:

S C Williams QC, with M T O’Sullivan for the appellant
J R Baulch SC for the respondent

SOLICITORS:

McInnes Wilson for the appellant
Taylors Solicitors for the respondent

1. McPHERSON JA & HOLMES J:  The plaintiff Nigel Ronald Reck, who is the respondent to the appeal in this Court, was successful in obtaining judgment in the Supreme Court for damages against the defendant appellant his employer Queensland Rail in the sum of $644,756.08. The judgment for that amount was arrived at after reducing the amount of the assessed loss sustained by the plaintiff from $893,083 on account of what the learned judge considered to have been contributory negligence on the plaintiff’s part, which his Honour assessed at 25%. On the appeal, the plaintiff has lodged a cross-appeal against that finding and the consequent reduction of the damages awarded to him.

1. On the determination of that appeal by the defendant, we are content to adopt the reasons of Fryberg J dismissing the appeal. However we have formed a view differing from that of his Honour with respect to the question of contributory negligence. In beginning his descent from this series 3100 locomotive from a height of some two metres above ground level, the plaintiff was obliged to: (1) open the cabin door on his left; (2) grasp the handrail on his left with his right hand, after rotating partly, the other rail with his left hand; and (3) descend the ladder backwards, ie facing towards the cabin of the locomotive. The process of descending that was required in some ways resembled that commonly undertaken by mariners in descending companion ways on ships. What made the second stage more difficult was: (a) the presence of the slight lip or sill at the edge of the cabin, which served to help seal the door when closed on the air conditioned cabin; and (b) the fact that the lintel of the doorway was not high enough to permit him to pass through it without ducking his head. The process could, however, be safely carried out in a…