The New South Wales Court of Appeal recently handed down judgment in the matter of Rail Corporation New South Wales v King. The facts of the matter are that at 3:00 am on the morning of Saturday, 2 September 2006, Shane King fell onto the rail tracks at Mortdale Station. Shortly after the fall, a train pulled into the Station. A collision resulted causing substantial injury to the Mr King’s left leg which was lying across the railway track.

At first instance, Justice Davies of the Supreme Court of New South Wales found RailCorp to be liable as its driver ‘did not observe the object on the line when it was first within his line of sight or very soon after (no more than two seconds)’ and thus failed to ‘keep a proper lookout.’ Further, his Honour found that RailCorp had breached its duty of care in failing to issue clear instructions to drivers about the action that should be taken when an object is seen on the track. His Honour also found that Mr King contributed to his own injuries due to his level of intoxication at the time of the fall, and his failure to look after his own safety.

RailCorp appealed the Supreme Court’s findings. RailCorp argued that any lack of reasonable care on the part of its driver was not the cause of the accident. Rather, Railcorp submitted that the collision would not have been avoided even if the driver had responded to the obstacle (being Mr King) within a ‘reasonable time’ by Justice Davies’ standards. 

It was determined that the point at which the driver had a direct line of sight from which he could have (in theory) seen Mr King on the track was 141 metres. Experts were engaged to establish the point at which the emergency brake had to be triggered in order to stop the train before it hit the Mr King. This point was between 102 and 105 metres. The driver’s ‘full brake response time’ was calculated to be 1.15 seconds. This figure, however, failed to take into account the time it took the driver to detect that something was on the track. 

The experts calculated that there were three seconds in between the point at which Mr King became visible and the time in which it was necessary for the driver to act if a collision was to be avoided. It was the assessment of what could reasonably be expected of the driver in that period of three seconds upon which the decision of liability depended. 

As it had been determined that the driver only had three seconds to act in order to avoid the collision, Basten JA held that to find negligence on the part of the driver would be to ‘set a standard of care well above that which is reasonable.’ Basten JA held that, at [17], ‘the breach of duty was not causative in the relevant sense, because a reaction at a reasonable time would not have prevented the accident.’  His Honour held that not only was causation not established, but that there had been no breach of duty on the part of the driver. Finally, his Honour rejected the case based on direct liability in finding that implementing emergency braking whenever an object is seen but not identified was an unreasonable, unnecessary and a too onerous response.

David Partridge