Transport Commission v Neale Edwards Pty Ltd [1954] HCA 21

High Court of Australia Webb, Fullagar and Kitto JJ. Transport Commission v Neale Edwards Pty Ltd [1954] HCA 21

ORDER Appeal allowed with costs; judgment of the Supreme Court of Tasmania set aside. In lieu thereof judgment for the defendant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 4 Webb J.

This is an appeal from a judgment of the Supreme Court of Tasmania (Green A.C.J.) awarding the respondent company £3,622 5s. 0d. in an action tried without a jury and brought by the respondent against the appellant commission to recover damages for breach of contract arising from the alleged wilful misconduct, negligence or breach of duty of the appellant's servants in the carriage of goods, i.e. 164 bales of rabbit-skins by railway, or in the maintenance or supervision of the railway system. The appellant agreed to carry the skins from Glenorchy to Burnie on the terms of a consignment note which provided that in consideration of the payment of a lower freight rate the respondent would release the appellant from all liability, among other things, for loss or damage to the skins, except upon proof that such loss or damage arose from the wilful misconduct of the appellant's servants. The train carrying the skins capsized, resulting in loss or damage amounting to £3,622 5s. 0d. There is no question as to this being the amount of the damage done, if it is recoverable. The learned trial judge found that the capsize was caused solely by the excessive speed of the train, i.e. 45 m.p.h. on a curve of five chains radius, which the railway regulations required to be negotiated at a speed of not more than 20 m.p.h. His Honour found that the engine-driver was indifferent to the speed attained because he was not attending to his duty, and so was guilty of wilful misconduct.