COSTAIN AUSTRALIA LTD v PJ HENSGEN STATE RAIL AUTHORITY OF NSW v PJ HENSGEN [1989] NSWCA 52

COSTAIN AUSTRALIA LTD v PJ HENSGEN; STATE RAIL AUTHORITY OF NSW v PJ HENSGEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, CLARKE and MEAGHER JJA 27-28 April 1989, 27 June 1989 [1989] NSWCA 52

Negligence — collision between locomotive and front end loader on level crossing — Injured driver of loader sued sub-contractor-employer, head contractor and State Rail Authority — Finding of negligence against each defendant and of contributory negligence on part of plaintiff — Apportionment of responsibility between defendants — Works being carried out on one side of railway line pursuant to contract between head contractor and Commonwealth — Part of work being carried out by sub-contractor-employer required its employees to cross railway line to pick up gravel from stockpile on other side of line — railway line a spur line very rarely used — no information as to use of line provided by head-contractor or by sub-contractor-employer — appeals as to findings of negligence, degree of plaintiff's responsibility and apportionment, and cross-appeal by plaintiff as to damages — liability of head contractors — precautions required of rail crews — appeals and cross-appeal dismissed save as to apportionment — apportionment of between defendants fixed by trial judge varied. ORDERS 1. Parties to bring in short minutes within 7 days to give effect to the Court's conclusions.

Hope JA On 2 December 1983 the plaintiff Peter John Hensgen was injured when a front-end loader which he was driving was struck by a railway locomotive owned and controlled by the State Rail Authority of New South Wales (the SRA). The plaintiff was employed by Refca Hunt Pty Limited (Refca) which was carrying out road and earthworks connected with the construction of buildings at the Bandiana military camp in Victoria near the New South Wales border as subcontractor to the head contractor Costain Australia Limited (Costain). The camp site was owned by the Commonwealth with whom Costain had contracted to carry out the works. The Commonwealth authority responsible for the work appears to have been the Department of Housing.