Hall v J & A Brown & Abermain Seaham Collieries Ltd [1953] HCA 20; (1953) 88 CLR 509 (28 April 1953)

HIGH COURT OF AUSTRALIA

HALL v. J. & A. BROWN AND ABERMAIN SEAHAM COLLIERIES LTD. [1953] HCA 20; (1953) 88 CLR 509

Workers' Compensation (N.S.W.)

High Court of Australia
Dixon C.J.(1), Williams(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Daily or other periodic journey - Default or wilful act - Death of worker - Inference from circumstantial evidence - Workers' Compensation Act 1926-1948 (N.S.W.) (No. 15 of 1936 - No. 40 of 1948), s. 7 (1) (b).

HEARING

Sydney, 1953, April 9, 28. 28:4:1953
APPEAL from the Supreme Court of New South Wales.

DECISION

April 28.
THE COURT delivered the following written judgment:-
This is an appeal from an order of the Full Court of the Supreme Court of the Workers' Compensation Commission of New South Wales pursuant to s. 37 (4) of the Workers' Compensation Act 1926-1948. The matter came before the Workers' Compensation Commission as an application for compensation by the widow of a deceased worker, who had been run down by a train and killed at a railway crossing while on his way home from work. (at p511)

2. The level crossing is slightly to the south of the Neath railway station on the railway line from Cessnock to Maitland. The deceased worker was employed by the respondent company as an electrical mechanic. The widow claimed compensation on the ground that the deceased died as a result of injury received on a daily or periodical journey between his place of abode and place of employment. The accident occurred on 28th January 1949. At that time s. 7 (1) (b) of the Workers' Compensation Act, which has since been amended, provided that where a worker has received injury without his own default or wilful act on any of the daily or other periodical journeys referred to in par. (c) of the sub-section, then subject to qualifications not material to this case, the worker (and in the case of the death of the worker his dependants) should receive compensation from the employer in accordance with that Act. The daily or other periodical journeys referred to in par. (c) include journeys between the worker's place of abode and place of employment. The deceased was in fact journeying from his place of employment to his place of abode when he was struck by the train. By an amendment made by Act No. 20 of 1951, s. 2 (b) (i), which does not apply to this case, the words "received injury without his own default or wilful act" were amended so that only in cases of serious and wilful misconduct would the worker be disentitled to receive compensation for an injury of the kind described by the provision. (at p512)

3. Before the Workers' Compensation Commission the widow's claim failed because of the exception made by the words "without his own default". The learned judge constituting the commission decided that the accident could not have occurred to the deceased had it not been for some default on his part. At the instance of the widow the learned judge stated a case pursuant to s.37 (4) of the Act for the opinion of the Supreme Court. He reserved for the Supreme Court the question "Was there any evidence upon which the commissioner could find that the deceased worker did not sustain his injury without his own default?" This question the Supreme Court decided in the affirmative, and from that decision the widow now appeals to this Court. (at p512)

4. The facts are not for us to decide. To find the facts was within the province of the Workers' Compensation Commission. Our duty is confined to saying whether there was evidence upon which the conclusion of the Workers' Compensation Commission was reasonably open. The meaning of the word "default" has been the subject of judicial discussion, if not of decision. In Bagot v. Commissioner for Railways (1943) 44 SR (NSW) 173, at p 175; 61 WN 109, at p 111 , Jordan C.J. said that in the context the word "default" meant the failure by the worker to comply with a legal duty to be careful, the failure being of a kind inherently likely to cause disabling physical injury to himself and in fact causing or contributing to the injury in question. His Honour added: "I do not think that carelessness amounting to no more than failure to take all the care that an ideally cautious and prudent man would take for his own safety would of itself amount to default as here used: cf. Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd. (1942) AC 154, at pp 166, 167, 179, 202 ; nor do I think that even legal negligence, in the sense of failing to take proper care for the safety of others to whom one owes a legal duty to be careful, and thereby in fact causing them damage, would necessarily in every case amount to default as the word is used in this context: ibid (1942) AC, at pp 195, 196, 205, 206 . But such negligence could, I think, be regarded as default if it were also inherently likely to cause injury to the worker himself" (1943) 44 SR (NSW), at pp 175, 176; 61 WN, at p 111 . In using the expression "legal duty to be careful" Jordan C.J. was clearly including the self-regarding duty to take care of one's own safety. His statement was of course made before the decision of the Privy Council in Nance v. The British Columbia Electric Railway Co. Ltd. (1951) AC 601 , where their Lordships pointed out that contributory negligence as a defence does not depend on any duty in the proper sense owed by the injured party to the party sued. The defence depends simply upon the accident being caused or partly caused by the failure of the injured party to take reasonable care for his own safety. But this is a matter of terminology, and clearly enough Jordan C.J. would have regarded it as a default within his definition if the deceased man was inattentive when he crossed the railway lines and did so without looking for trains. In Jacobsen v. Darling Island Stevedoring & Lighterage Co. Ltd. (1945) 45 SR (NSW) 264; 62 WN 154 , the Supreme Court of New South Wales decided that the onus of proof was upon the employer to establish the default or wilful act, and in this Court that decision was affirmed [1945] HCA 22; (1945) 70 CLR 635 . (at p513)

5. The accident in the present case took place on Foundation Day, and the time when the train passed over the cross-over is fixed as 5.57 p.m. The deceased, a man of forty-six years of age, was riding a motor cycle home from his work. The motor cycle is described as made out of parts of other bikes and as being pretty noisy. The deceased had ridden along a road to the east of the railway line running roughly from south to north, that is from Kearsley towards the Abermain Colliery. The road runs parallel to a set of railway lines and about sixty feet from the nearest of them. At a distance of about one hundred and twenty to one hundred and fifty feet from a position opposite the Neath railway station a turn-off from the road upon which the deceased travelled crosses the railway lines in order to join the main road from Cessnock to Maitland on the other side. The road crossing the railway lines does not proceed quite at right angles from the Kearsley road but forms a curve until it meets the railway line. It then goes in a westerly direction straight across them. It crosses three lines, a private line of the respondent company running from Abermain No. 2 Colliery northwards to Abermain No. 1 Colliery; parallel with this line and some fifty feet to the south of it are two parallel railway tracks which form the main running lines between Cessnock and Maitland. The train by which the deceased was run down was travelling from Cessnock to Maitland upon the more westerly of these two lines. As he crossed over the lines the train came from his left. The only eye-witness of the accident was a railway officer who was on duty on that evening on Neath railway station. He said the train was a passenger special which passed through Neath at 5.57 p.m., going from Cessnock towards Maitland. He was in the signal box. He heard the whistle about the distant signal and went out on the platform and watched the train, which continued blowing the whistle until it almost reached the signal, he described as "No. 1 up home", covering a distance of three or four hundred yards. Where the witness stood his view of the crossing was partially obscured by some structure. He said in evidence: "I did not see the motor cyclist until he passed the uprights of the exit steps so I only saw about twelve feet of the motor cyclist. When he reached the up line just in front of the special passenger train he was struck down in between the buffers. The driver applied the brakes". (at p514)

6. In a great degree the decision of the learned judge constituting the commission turned on the conditions at the locality governing the visibility and audibility to the deceased of the approaching train. It appears that near the line of the respondent company and between that and the road some work upon drains had been done which resulted in the throwing up of a low bank parallel with the line. Its height is variously described as eighteen inches and three feet six inches, but it seems to have been overgrown with long grass and in places with a certain amount of scrub. The road is described as having a deep camber. The railway line running south to north, that is from Cessnock to Neath, has a down grade. The rail bed is not materially raised above the surface of the line. Some six hundred feet from the cross-over there are some trees and scrub between the single track belonging to the respondent company and the double set of metals. As the deceased rode his motor cycle along the Kearsley road to the cross-over he would not have a good view of the railway line. It may be that the train made less noise because it would run down hill with steam shut off, braking only occasionally. Of course the train would not be abreast of him, but some distance behind him. The deceased was very familiar with the locality and was accustomed on nearly every working day to travel over the cross-over. Warning signals would not therefore be very material to him. But it is a fact that upon the Kearsley road there is a warning sign some three hundred and fifty feet from the cross-over and that at the point where he approached the respondent's railway line there is another warning signal and a third warning signal immediately before he crossed the double set of metals. As the train was a special he might not have expected it. Probably he would not have been able to see it as he crossed the respondent's line, but once he got close to the double set of metals he could look up the line, and if he had done so he could hardly have missed seeing the train. Having regard to the evidence which the learned judge accepted that the train whistled, a failure on his part to hear it could only be attributed to the noise of his motor cycle. There is no evidence of the direction of the wind, if there were any. However a train was approaching Neath station from the opposite direction, that is on the down line. It was about three hundred yards away from the station. There is evidence that as you go over the cross-over the evening sun is in your eyes a little to the left of your direct line of advance. If he turned his head to some degree to his left he would have had the sun in his eyes, but if he looked straight up the line, a direction a little west of south, that would not be so. It is probably right to adopt the hypothesis that the deceased looked to his right, that is northwards. If he did so as he crossed the respondent's railway line and before he reached the main line, upon which he was run down, he would have had a clear view for a time. But before he reached the double set of metals his view to the north, that is on his right, would be obscured by some refreshment rooms. That means that in looking to the north for a train coming from Maitland he would have to wait until he passed the level of the platform. It is of course conceivable on the hypotheses that he looked to his right for a train coming from Maitland that he did not turn his head to the left in time. His failure to respond to the train's whistle might be explained by supposing that he thought that the whistle came from his right and not his left. (at p516)

7. The learned judge constituting the Workers' Compensation Commission did not specify exactly the default which he found against the defendant. His Honour emphasized in his reasons the visibility of the train. He considered that it could have been seen from the Kearsley road for a considerable distance, two hundred yards back, that there was no substantial interruption of the vision, even allowing some difficulty on the Kearsley road by reason of the bank. His Honour also said that he had no doubt that the approach of the train could be heard, apart from its whistling. Further, it was broad daylight. His Honour said that the deceased put himself in front of the oncoming train and his Honour could only infer that he got there through neglect in taking care of his own life, that one knew that motor cyclists and pedestrians and other users of the road are careless of their own safety, and that he thought that that was the position in the present case. From this it must be inferred that his Honour concluded that the deceased was inattentive and had failed to look to his left as the train approached. (at p516)

8. Whether we would ourselves have drawn the same inference is not the question. All that we are called upon to decide is whether the inference was fairly open on the circumstances stated and whether it does amount to default. The case is entirely one of circumstantial evidence. No doubt it is true that it would be possible to explain the accident on a basis which placed no blame upon the deceased. At the same time all the circumstances are consistent with the view that the deceased did fail to look as he crossed the railway line and was inattentive, and that would explain the accident. If there is no higher degree in one explanation than the other the onus of proof is not discharged and it would not be open to the learned judge to find default on the part of the deceased. It is, however, difficult to deny that the circumstances proved here are more favourable to the inference that the accident was due to the deceased's inattention and failure to look to the south as he crossed. He was very familiar with the locality. He was fully aware of its dangers. Had he looked he must have seen the train. It whistled loudly, and if the motor cycle prevented him from hearing a whistle it is a fact he must have known from experience, and it made it more incumbent upon him to be vigilant. The balance of probability seems sufficiently to favour the view adopted by the learned judge to support his inference. In other words, the accident is better explained by the view that the deceased failed to advert to and guard against the dangers which necessarily attend a level crossing than by the contrary hypothesis. That a failure to give due attention to the dangers which belong to a level crossing means a "default" within the definition given by Jordan C.J., can hardly be disputed. It amounts to failure to comply with the necessity imposed by law of exercising care for his own safety, the failure being of a kind inherently likely to cause disabling physical injury to himself. (at p517)

9. The appeal must be dismissed. (at p517)

ORDER

Appeal dismissed with costs.