The High Court of Australia (HCA) has upheld the appeal of a child by his tutor, for injuries sustained in a fall from an intercity electric V-set train.
Master Corey Fuller-Lyons (Child) brought proceedings for damages in negligence, against the State of New South Wales (State), as the legal entity responsible for the rail network.
The Child was eight (8) at the time of the incident. He was travelling with his brothers aged eleven (11) and fifteen (15). All three were in the lead car of an intercity electric V-set train (train) bound for Newcastle. About 15 minutes prior to the incident, the Child separated from his brothers.
A guard stationed in the rear car gave evidence that he walked along the train at Morisset Station prior to its departure and checked the doors before the train commenced its journey. The platform at Morisset Station is curved. A customer service attendant (CSA) was also on the platform at the time. The guard relied upon the CSA to observe those cars that he could not see. It was the role of the CSA to signal to the guard when the train was ready to depart. The CSA on duty at the time of the incident was deceased at the time of trial.
The guard conceded it was not possible for someone standing at the rear of the train to observe all four (4) cars. The guard said that because the doors were recessed, it was not possible to see if someone was holding something inside that recess. The trial judge concluded that it would not be possible for a guard at the rear car to see a small opening in the doors of the lead carriage.
The train left Morisset Station and two minutes later, the Child fell from the train. Following the incident a rail officer inspected the doors and observed signs of disturbance with both sets of doors at the front of the lead car. On the eastern side, the doors stalled momentarily when closing, creating a gap of about 350mm, and then continued to close and lock. On the western side, the doors closed with a gap of 100mm.
There was no direct evidence about the circumstances of the Child’s fall. The parties lead expert evidence from engineers. The engineer called for the Child said that it was unlikely that the Child forced the doors against the pressure of the door motors. The State’s engineer gave evidence that a 100m gap in the western side doors, suggested the doors had been held open at Morisset Station and later forced.
The trial judge found for the Child on the basis of inferential findings of fact. At first instance, it was accepted that the cause of the incident was the Child becoming trapped in the closing doors. The Court determined that the rail staff failed to observe the Child’s body protruding from the train, before it had left the station.
However, in the New South Wales Court of Appeal (NSWCA), the Court accepted an alternative hypothesis by the State – that the doors were obstructed by the Child’s shoulder, arm and leg, which would not have been visible. This hypothesis was to the effect that the Child had forced the doors open with the help of his brothers. The NSWCA allowed the State’s appeal.
The HCA concluded that a finding that the Child fell from the western side of the car was inevitable. Suggestions that the Child was up to mischief with his brothers were dismissed. It had not been put to the brothers that they had lied to the guard when questioned after the incident or that they were motivated to cover up any wrongdoing on their part.
In a judgment delivered on 2 September 2015 by French CJ, Bell, Gageler, Keane and Nettle JJ, the HCA determined the appeal was one for acceptance, finding as follows:
- Expert evidence from an engineer supported a view that a large part of the Child’s body became caught in the doors at Morisset Station.
- Part of the Child’s trunk and limbs would have been protruding from the train.
- It was accepted by the trial judge and the NSWCA that the child had his back to the doors prior to his fall.
- The CSA failed to observe the Child protruding from the train, prior to it leaving Morisset Station.
Damages awarded to the Child were in excess of $1.5M.
This case highlights the need for parties to take particular care when building a case that is reliant upon inferential findings of fact. Absent direct evidence about an incident, expert evidence will almost always be required.