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 [1989] NSWCA 52

Costain, by reason of its involvement and arrangements regarding the extended work site (including the stockpile and railway crossing), owed a non-delegable duty of care to the plaintiff, an employee of the subcontractor, and breached that duty by failing to make enquiries regarding the railway's use and inform workers of the risks. The SRA was negligent for failing to ensure adequate warning was given of its locomotive’s approach and for excessive speed and inadequate lookout given the rarely used crossing near a worksite. The plaintiff was contributorily negligent but to a lesser degree. Apportionment by the trial judge was erroneous; responsibility should be 20% Costain, 40% Refca, 40%...

Parties
Plaintiff: Peter John Hensgen; Defendant: Refca Hunt Pty Limited; Defendant/appellant: Costain Australia Limited; Defendant/appellant: State Rail Authority of NSW; Defendant: Victorian Railways Board; Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
27 June 1989
Procedural Posture
Civil Appeal / Court of Appeal (judgment on Appeals and Cross Appeal)
Outcome
Appeals and cross-appeals dismissed except as to apportionment; apportionment between defendants varied.
Legal Topics
Duty of Care, Vicarious Liability, Contributory Negligence, Apportionment, Employment Liability, Level Crossing Accident, Head Contractor Liability
Tort Negligence Duty of Care Vicarious Liability Contributory Negligence Apportionment Employment Liability Level Crossing Accident +1 more

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Parties

Peter John Hensgen

Plaintiff

Refca Hunt Pty Limited

Defendant

Costain Australia Limited

Defendant/appellant

State Rail Authority of NSW

Defendant/appellant

Victorian Railways Board

Defendant

Commonwealth of Australia

Defendant

Procedural Posture

Civil Appeal / Court of Appeal (judgment on Appeals and Cross Appeal)

Legal Issues

  1. 1 Whether Costain as head contractor owed a duty of care to the plaintiff, an employee of the subcontractor, in relation to the system of work and safety at the railway crossing.
  2. 2 Whether the State Rail Authority of NSW was negligent in its operation of the locomotive at the level crossing.
  3. 3 Proper apportionment of responsibility between the negligent defendants.

Ratio Decidendi

Costain, by reason of its involvement and arrangements regarding the extended work site (including the stockpile and railway crossing), owed a non-delegable duty of care to the plaintiff, an employee of the subcontractor, and breached that duty by failing to make enquiries regarding the railway's use and inform workers of the risks. The SRA was negligent for failing to ensure adequate warning was given of its locomotive’s approach and for excessive speed and inadequate lookout given the rarely used crossing near a worksite. The plaintiff was contributorily negligent but to a lesser degree. Apportionment by the trial judge was erroneous; responsibility should be 20% Costain, 40% Refca, 40%...

Court Disposition

Appeals and cross-appeals dismissed except as to apportionment; apportionment between defendants varied.

Orders

  • Set aside judgments on cross-claims; substitute judgments based on 20% Costain, 40% Refca, 40% SRA liability.
  • Costain and SRA to pay plaintiff's costs of the appeal; plaintiff to pay costs of cross-appeal.