STATE RAIL AUTHORITY OF NEW SOUTH WALES v DIMITRIJEVIC [1989] NSWCA 192

STATE RAIL AUTHORITY OF NEW SOUTH WALES v DIMITRIJEVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 7 November 1989 [1989] NSWCA 192

EMPLOYER — EMPLOYEE — negliaence — unsafe system of work defendant employer appeals against adverse judgment on factual grounds — no new matter of principle — appeal dismissed.

Priestley JA This is an appeal by the State Rail Authority against a judgment entered against it by Mr Justice Wood. Proceedings had been brought against it by a former employee who I will call the plaintiff.

The plaintiff began work with the State Rail Authority, which I will call the defendant, on a temporary basis as a fettler on Monday 25 July 1983. His first day on the job was the day after, the Tuesday. On this day he watched a gang removing sleepers. On the Wednesday, Thursday and Friday he worked at this job himself. On the Saturday, 30 July, doing the same job he fell and hurt his back.

Mr Justice Wood held the defendant liable for the damage he then suffered, assessed that damage at $424,691 and, after deducting what had been paid as workers compensation, entered judgment for $379,693.

In the defendant's appeal it has confined the grounds of appeal to those relevant to liability for negligence. The basis on which Mr Justice Wood held the defendant liable was that it had required the plaintiff to do the work he was doing without proper instruction and without proper supervision.

Mr Justice Wood arrived at these conclusions in light of the following facts.

The work of removing sleepers was done by employees working in pairs. The plaintiff's partner had no more experience than the plaintiff. The accident happened when the pair were trying to move a sleeper from its position on the track from underneath the rail which it had been supporting to the side of the track. First, in the plaintiffs words, they dug the hole, which meant moving the blue metal in which the sleeper was embedded, then took out two steel pins which attached the rail to the sleeper, and then began to use tongs to slide the sleeper from underneath the rail which, I should add, it seems had been hydraulically raised a little distance above the sleeper to the side of the track. In trying to move this particular sleeper the plaintiff was holding one arm of the tongs, his workmate the other, and they were standing with their feet at right angles to the line of the track and their backs to the side of the track. The plaintiff was pulling backwards with both hands on his arm of the tongs trying to free the sleeper when the tongs slipped and he fell backwards on to a railing or troughing, as it was described, some short distance behind him.