Australian Iron & Steel Pty Ltd v Krstevski [1973] HCA 42

High Court of Australia Barwick C.J. Menzies, Walsh, Gibbs and Mason JJ. Australian Iron & Steel Pty Ltd v Krstevski [1973] HCA 42

ORDER Appeal allowed with costs. Orders of the Supreme Court of New South Wales Court of Appeal Division set aside and in lieu thereof order that the appeal to that Court be allowed with costs and a verdict directed to be entered for the defendant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 17 Barwick C.J. and Menzies J.

An employee, who sues his employer for damages for negligence causing injury at work, is not entitled to have the verdict of the jury upon his claim unless there is evidence that the employee's injury was caused by the failure on the part of the employer, or those for whom the employer was responsible, to take reasonable care for the safety of the employee. Sometimes the happening itself provides the requisite evidence—res ipsa loquitur. In other cases it is necessary that there should be evidence from which negligence can be inferred. It is not enough that there is evidence to show that the employment involved the employee in "extreme risk" of "fearful consequences" and that the employer did not take any precaution to protect the employee in the event of that risk—notwithstanding due care—becoming a reality. Even in this technological age it is not a matter of common sense that, in every case, some precaution can and should be taken to protect an employee from the harmful consequences of a happening which may occur notwithstanding the exercise of reasonable care on the part of the employer. In so far as the judgment of the Court of Appeal of the Supreme Court of New South Wales, which is under appeal, asserts the contrary of the foregoing propositions, it is, in our respectful opinion, in error and finds no support either from the decision of the Court of Appeal in Dixon v. Cementation Co. Ltd. [1] , or the observations of Dixon C.J. in Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [1] , upon which it seems to have been based.