Commissioner for Railways (NSW) v O'Brien [1958] HCA 20

OF AUSTRALIA. 211

(HIGH COURT OF AUSTRALIA.]

COMMISSIONER FOR RAILWAYS (N.S.W.) APPELLANT ;

; AND

OBRIEN. . ri : i E 2 . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Negligence—Employer—Safeguard employees from injury—Reasonable precautions H.C. or A. —System of work—Safe system—Duty to provide—Breach—Painter—Means for 1958. carrying out employee's work—Provision—Adequacy—Performance of work— =~ Instruction—Railway station—Roof—Corrugated asbestos cement sheels— Sypwny, Painting equipment—Removal risk—Injury sustained by employee.

The plaintiff, the respondent, was employed by the defendant as a painter. He and another employee, also a painter but slightly senior in the service, were told to remove some equipment from the roof of a platform to a store by another platform. The heads of the platforms were joined by an open pavement which was covered by an asbestos cement roof. Other and safe methods of transporting the equipment existed but the plaintiff and his fellow employee adopted the method of carrying it along the iron roof of the plat- form, across the asbestos roof and along the iron roof of the other platform. 'The plaintiff was aware that the brittle nature of the roofing made this danger- ous. On his third trip across the asbestos roof he fell through and was ii He brought an action for damages against the defendant, at the hearing of which the only issue left for the consideration of the jury was whether the defendant had committed a breach of its obligation to take reasonable care for the plaintiff's safety by failing to provide wire mesh below the asbestos roof or by failing to provide a catwalk across the roof itself. The jury returned a verdict in favour of the plaintiff and the defendant's appeal to the Full Court of the Supreme Court of New South Wales was dismissed. On appeal,