Commissioner for Railways (NSW) v Hooper [1954] HCA 7

High Court of Australia Dixon C.J. Webb, Kitto and Taylor JJ. Commissioner for Railways (NSW) v Hooper [1954] HCA 7

ORDER Appeal allowed. Order of the Supreme Court discharged. In lieu thereof order that the appeal to the Full Court of the Supreme Court be discharged. Pursuant to the order of this Court dated 20th August 1953 granting leave to appeal respondent's costs of the appeal to this Court to be paid by the appellant.

Cur. adv. vult.

The following written judgments were delivered:—

March 5. 1954 Dixon C.J.

This is a defendant's appeal brought by leave from an order for a new trial. The defendant obtained a verdict by direction, which the Full Court of the Supreme Court has set aside. The action was brought by a widow on behalf of herself and her six children under the Compensation to Relatives Act 1897-1946 N.S.W. in respect of the death of her husband. It is an action of negligence. The deceased man, whose name was Lionel Athol Hooper, was a sheepdealer and he was killed on 27th February 1951 at Condobolin. He was crushed between the buffers of two trucks while attending to the untrucking of some sheep consigned to Condobolin on his account. The sheep and cattle yards at that railway station are upon a loop line or siding with a slight gradient down which trucks may gravitate to the dump or race for unloading or loading as the case may be. On the day in question a train arrived consisting of twenty-nine trucks or thereabouts loaded with sheep. Thirteen truck loads were consigned to Hooper, in his wife's name, and sixteen to another consignee, named Casky. The trucks were shunted into the siding. The thirteen trucks containing Hooper's sheep were at the end of the train further from the dump. The sixteen trucks containing Casky's sheep were at the lower end, the last four of them being opposite the dump. It appears that when sheep are to be untrucked at Condobolin the consignee, or the stock agent acting for him, enlists the services of three or four casual hands for the purposes of the operation. It was not actually proved to be a usage or regular practice but the evidence indicated at least that it was very often done. On former occasions Hooper had done it and had supervised the operations. But, so far as appeared, he had not himself previously joined the men in actually moving the trucks. On the day when he was killed he brought with him to the railway yards three other men for the purpose of untrucking his sheep. They were Newman, who described himself as a share farmer but said he was actually working for the deceased as well, Jacobsen, who was a stock salesman, and a man named Ison. When Hooper saw how the train was made up and found that the trucks for Casky must be detached and allowed to run down the siding or loop before his could be gravitated to the dump, he left the yards and went to the station, whence he returned with a railway porter. The latter, with the help of others of the party, uncoupled Casky's trucks in sections. It had to be done in sections because it was necessary to move the lower of the trucks to be uncoupled closer to the upper in order to unhook the coupling, a thing that was done by levering the wheels with a crowbar. The porter followed Casky's trucks down to the lower end of the siding or loop in order to bring them to a standstill by means of the brakes and see that they were secure. The gradient was small and the pace slow. While the porter was doing this, Hooper and his party proceeded to move the trucks containing his sheep. They "barred" and uncoupled from the train the two nearest trucks and allowed them to run slowly down to the now vacant position opposite to the dump where they brought them to a standstill by means of the brakes. They returned to the train and this time released a section of four more trucks which ran down to the two already standing opposite the dump. When they came to a standstill there was an interval of a foot or eighteen inches between the buffers of the upper of the two stationary trucks opposite the dump and the lowest of the next four trucks. It was while passing through this interval a little later that Hooper was killed. It does not appear whether the interval was the result of the four trucks being stopped by the use of the brakes before actually reaching the two trucks already standing or whether they struck the latter and, recoiling a foot or eighteen inches, stood still. Nor does it appear that the brakes were actually applied to the four trucks.