STATE RAIL AUTHORITY OF NEW SOUTH WALES v GHANEM [1988] NSWCA 144

STATE RAIL AUTHORITY OF NEW SOUTH WALES v GHANEM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and SAMUELS JJA 16 February 1988, 8 June 1988

[1988] NSWCA 144

NEGLIGENCE — employer and employee — unsafe system of work — railway worker injured replacing overhead electric cables from top of repair train — factual dispute concerning circumstances and cause of injury — whether unsafe system — whether foreseeable risk of injury — whether alternative and reasonably practicable means of avoiding or diminishing risk of injury — challenge to assessment of damages — held: (1) No error in findings by trial judge (Lloyd Jones DCJ) as to circumstances of injury; (2) Risk of injury whilst working on top of cable repair train was foreseeable; (3) A safe alternative system available, viz working from stationary train; (4) expert evidence was unnecessary to prove this as this was the employer's proper system. Neill y NSW Fresh Food & Ice Pty Limited (1963) 108 CLR 362, 364; Australian Iron & Steel Pty Ltd v Krstevski (1973) 128 CLR 666 considered and distinguished; (5) Challenge to assessment of damages dismissed.

ORDERS Appeal dismissed with costs.

Kirby P I agree that this appeal should be dismissed for the reasons given by Samuels JA.

Hope JA I agree with Samuels JA.

Samuels JA The respondent, the plaintiff in the action before Lloyd Jones DCJ,was born on 22 January 1956 and was injured on 5 November 1983 while employed by the appellant as a linesman, a job in which he had been engaged for some time prior to that day. The work which he and other employees were undertaking involved the removal and replacement of overhead contact wire, that is, the line which carries the power for the propulsion of electric trains. The old wire was rigged from overhead stretchers carried on vertical stanchions at each side of the line, and set some distance apart; and was suspended from clips called droppers in which it was retained by means of pins or nails. The process was conducted in this way. A special wiring train was employed which consisted of some eight or so flat topped carriages preceded by a specially designed flat car on which were mounted drums, usually three, on which the new double contact wire was wound. On the roof at the front of the leading carriage there was a roller. The wire was led from the first drum to be used up at an angle and over the roller and then pulled off the drum until it lay on the flat roofs of the carriages along the length of the train. Then it was attached to an anchor point, a stretcher pole or stanchion, near to the rear of the train. The old contact wire was removed from the droppers along the length of the train by a number of employees standing on the roofs of the carriages. The new wire was picked up and placed in the same droppers and secured by reinsertion of the nails or pins previously removed to allow the unhitching of the old wire.