Danvers v Commissioner for Railways [1969] HCA 64

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Danvers v Commissioner for Railways [1969] HCA 64

ORDER Appeal allowed with costs. Order of the Court of Appeal Division of the Supreme Court of New South Wales set aside and in lieu thereof order that the Appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 Barwick C.J.

James Francis Danvers was employed by the respondent Commissioner for Railways over a period of about eighteen years before his death on 20th April 1967. Originally a fettler, he became a carpenter, or as it was said, a "rough carpenter". His duties as such in the employ of the respondent took him "up and down the line from Cootamundra" on the New South Wales railway system doing maintenance and repair work. His daily hours of duty were from 7.30 a.m. to 4.15 p.m. Apparently he would travel up or down the railway line by "trike" to the point where his particular place of work at the time was situated. These places were not necessarily, and mostly were not, adjacent to any centre of population and apparently were never so conveniently placed in relation to his home that he could return there at evening during the working week. Thus, since he began to work in this fashion, he had not returned daily to his home near Adelong. He left for work on Monday morning and came home on Friday evening.

The respondent provided what is described in the evidence as a van, which was an old meat waggon converted by the respondent to provide living accommodation for two people. It contained a stove, sink, table, a Tilley pressure lamp and a kerosene refrigerator, as well as beds and a chest of drawers for holding clothing. "Rubber mattresses and all the necessities for the workmen to live in the van, other than their own linen and food" were all provided by the respondent. Though the matter was not exhaustively pursued in the evidence, it appeared that there was "some industrial agreement between the Department", i.e. the respondent, "and the union as to the minimum requirements of civilization" in a van such as that in question and the respondent kept a schedule of what the union required to be in this van. The van, besides its use as a dormitory, was used to store paint and tools, the property of the respondent, and apparently of a kind likely to be needed by the deceased and those working with him in maintenance and repair work along the railway line.