KELLY v NARRANDERA SHIRE COUNCIL and ORS; GIO WORKERS COMPENSATION (NSW) LTD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD [1998] NSWCA 121

KELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LTD vy MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL and STEIN JJA and ROLFE AJA 20 May 1998, 16 December 1998 [1998] NSWCA 121

Mr Kelly was employed by Narrandera Shire Council as the driver of a front end loader, which he was required to drive on public streets, over railway level crossings and in other places in and around Narrandera. It could have been, but was not, fitted with a seat belt. Mr Kelly's uncontradicted evidence was that had a seat belt been fitted he would have worn it whilst driving.

Early one morning Mr Kelly was driving the front end loader in the course of his employment. It was necessary for him to cross a railway level crossing, which was controlled by a stop sign and with which he was very familiar. At first instance it was found that Mr Kelly stopped at the stop sign, but failed to observe a train, for which the State Rail Authority was responsible, approaching the level crossing from his left. It was found that he was not keeping a proper lookout, and that had he been he would have observed the train, and that Mr Kelly, without taking any reasonable precautions for his own safety, commenced to drive the front end loader on to the level crossing into the path of the train. Notwithstanding that those in the train were keeping a proper lookout and immediately applied the emergency brakes after seeing Mr Kelly start to move the front end loader forward the train, which was travelling at no more than the prescribed speed, collided with the front portion of the front end loader and spun it around in a full circle.

The dynamics of the situation caused Mr Kelly to be thrown out the back of the front end loader and he landed in such a way that he suffered injuries, which rendered him a paraplegic.