In overturning a decision by the NSW Supreme Court, the Court of Appeal held that a court ought not to be persuaded by speculation in the absence of actual evidence in relation to relevant events. 

After a train had departed the station, the 8 year old plaintiff exited the carriage doors and fell out while the train was travelling at 100 kph. The train doors would pneumatically close on departure from a station and automatically lock when they were in a fully closed position. However, the plaintiff had somehow prevented the doors from fully closing (and therefore locking) when the train left the station. The plaintiff suffered serious injuries including a fractured skull and had no memory of the circumstances leading up to the fall. No witnesses saw what occurred.

The plaintiff sued the state of NSW. Because there was no direct evidence as to how the plaintiff had managed to keep the doors wedged open as the train left the station, a finding as to how he did so had to be based on inferences drawn from the few known facts. After consideration of several possibilities, the trial judge concluded that the plaintiff must have placed a significant part of his body between the doors as the train left the station such that a few minutes later he was able to squeeze his whole body out. On that basis, the trial judge found that the state breached its duty of care as its platform attendant failed to notice that significant parts of the plaintiff’s body were protruding from between the doors and therefore did not give a signal to the driver not to depart the station.

The Court of Appeal considered that there was no reason to exclude other possibilities as to how the plaintiff had managed to keep the doors open as the train left the station. For example, the plaintiff could have used a school bag or other object to keep the doors open.  The trial judge had not adequately explored the possibility of such items being available to the plaintiff. Equally, the wedge which initially kept the doors open could have been the plaintiff’s shoulder, an arm or a leg which the platform attendant may not have noticed in any event. 

The Court of Appeal concluded that the evidence did not warrant an inference that the plaintiff’s body was protruding significantly from the train doors when the train left the station. As that was the only circumstance in which the plaintiff contended that a reasonable person in the position of the platform attendant would have noticed and taken action which would have avoided the plaintiff’s fall, the State’s appeal succeeded.

In reaching its finding, the Court of Appeal made clear that it was not for the State to disprove various hypotheses. The onus of proof was on the plaintiff to establish, on the balance of probabilities, that there were no other reasonable hypotheses. It also explained that courts cannot reach factual conclusions where there are conflicting inferences of equal degree of probability such that the choice between them is a mere matter of conjecture.

State of New South Wales v Fuller-Lyons [2014] NSWCA 424

In the absence of evidence, the courts will not speculate in order to make a finding between competing hypotheses. The onus remains on plaintiffs to prove the factual basis of their claim.