Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Rail Corporation New South Wales v King [2014] NSWCA 207
• Hearing dates: 19 May 2014
• Decision date: 01 July 2014
• Before: McColl JA at [1]; Basten JA at [2]; Leeming JA at [35]

Decision

(1) Allow the appeal and set aside the judgment and orders of Davies J made on 12 April 2013.

(2) In place of those orders,

(i) give judgment for the defendant (RailCorp);

(ii) order the plaintiff to pay the defendant's costs of the trial.

(3) Order that the respondent (Mr King) pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORT - negligence - railway accident - plaintiff fell onto railway tracks at night - driver perceived an object on tracks - applied emergency brakes after realising object was a person - plaintiff struck by train - duty of driver - vicarious liability of railway authority - whether driver failed to keep a proper lookout - whether driver failed to apply emergency brakes in due time - whether breach caused collision - whether railway authority directly liable for failure to provide instructions on applying emergency brakes
• Legislation Cited: Transport Administration Act 1988 (NSW), ss 4, 5
• Cases Cited: Public Transport Commission (NSW) v Perry [1977] HCA 32; 137 CLR 107; Weal v Bottom (1966) 40 ALJR 436
• Category: Principal judgment
• Parties: Rail Corporation New South Wales (Appellant/Cross-Respondent); Shane John King (Respondent/Cross-Appellant)
• Representation: Counsel: Mr P Morris SC/Mr BR Wilson (Appellant/Cross-Respondent); Mr B Toomey QC/Mr S Longhurst (Respondent/Cross-Appellant); Solicitors: DLA Piper Australia (Appellant/Cross-Respondent); RMB Lawyers (Respondent/Cross-Appellant)
• File Number(s): CA 2013/137714

Decision under appeal

• Jurisdiction: 9111
• Citation: King v Rail Corp NSW [2013] NSWSC 241
• Date of Decision: 2013-04-12 00:00:00
• Before: Davies J
• File Number(s): SC 2009/297952

Judgment

1 McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. I also agree with Leeming JA's observations.

2 BASTEN JA: At about 3am on the morning of Saturday, 2 September 2006, Shane John King (the respondent in this Court and the plaintiff at trial) fell on to the rail tracks at Mortdale Station in south-western Sydney. About 30 seconds after the fall, a train arrived, causing him severe injuries, particularly to his left leg which was lying across one rail track. He sued the appellant (Rail Corporation New South Wales, also known as "RailCorp") as the body responsible for operating the train. (RailCorp is a body corporate created by the Transport Administration Act 1988 (NSW), s 4(1), its principal object being "to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner": s 5(1)(a).) Damages were agreed in an amount of $1.3 million, and the matter went to trial on the questions of the liability of RailCorp in negligence and the contributory negligence of the respondent. The trial judge (Davies J) found the appellant liable and assessed contributory negligence at 50%. He gave judgment for the respondent accordingly: King v Rail Corp NSW [2013] NSWSC 241.

3 The primary case against the appellant was based on vicarious liability for the negligence of its driver. Although there was no pleading of direct liability, there was a finding of breach on the part of RailCorp with respect to the instructions issued to drivers. RailCorp appealed against the finding of negligence, including vicarious and direct breaches of duty. Its primary case was that even if the driver were slow to respond, a response within a reasonable time would not have avoided the accident; hence the plaintiff did not establish that any lack of reasonable care caused the accident. Perhaps surprisingly, the respondent appealed against the finding of contributory negligence.

4 For the reasons explained below, the finding of negligence was not supportable on the evidence and accordingly the appeal must be allowed and the judgment set aside. It is not necessary to revisit the finding of contributory negligence.

Breach and causation

5 The plaintiff's pleading on which the case went to trial stated at par 3:

"The Plaintiff was on railway tracks owned and operated by the Defendant who had a duty to take all necessary precautions to prevent injury to persons on those tracks."

6 This inept and inaccurate pleading was not amended, but the matter was dealt with on the basis that the defendant (RailCorp) was vicariously liable for the failure of the train driver to take reasonable care to avoid running over the plaintiff, who was lying across the track. That the driver did take steps, by applying his emergency brakes and sounding the horn, is undisputed. In fact, with the assistance of logging devices on the train and CCTV on the station, what is known and what could have been done was able to be recorded and calculated with great precision. Thus, the evidence demonstrated that the emergency brakes were applied 6.21 seconds before the point of impact, when the train was 59 metres from the point of impact and travelling at 11.9 m/sec. In noting these matters, the experts duly recorded that the equipment was subject to a margin of error. With respect to the recording of speed, this was noted to be 2%.

7 Needless to say, there were far higher levels of imprecision in identifying what it was "reasonable" to expect of the driver. Two distances, however, were able to be identified with some precision. The first was the point at which the driver had a direct line of sight which would have allowed him (in theory) to see the respondent on the track: that was identified as 141 metres. Secondly, knowing the speed of the train and the effect of the emergency brake, the experts were able to calculate the "critical point" at which the emergency brake had to be engaged in order to stop the train before it hit the respondent. That was a distance variously calculated by the experts as 105 or 102 metres. Given the margins for error with the various calculations, the difference was not significant.

8 A third calculation, based on the speed of the train (which was at the time braking) and the distance between the first point at which the driver had a line of sight and the "critical point" for the application of the emergency brakes, was the time for the train to cover that distance, a period of approximately three seconds. That was the period within which the driver had to react and apply the emergency brake, in order to avoid the accident.

9 It was the assessment of what could reasonably be expected of the driver in that period of three seconds upon which the finding of vicarious liability depended. From the days when courts would scoff at the supposed expertise of those who called themselves experts in traffic accident reconstruction (see, for example, Weal v Bottom (1966) 40 ALJR 436) modern expertise relies upon mechanical engineering and psychological studies (and will no doubt shortly incorporate neuroscience). Suffice it to say that the elements of a response to imminent danger have been broken down into a number of stages which may be identified as (i) detection of danger; (ii) deciding how to respond; (iii) physical response, and (iv) mechanical response.

10 The fourth element was excluded from the calculation of the times involved. That was no doubt because the possible time taken for the emergency braking system to respond, once activated, was allowed for within the calculation of the known effect, being the time from the point of engagement in fact to the time at which the train came to a halt.

11 The second two elements were addressed in a report prepared by Mr Jeffrey Muttart. He identified a "perception-reaction" time of 0.8 seconds and a "movement time" of 0.35 seconds, thus giving a "full brake response time" of 1.15 seconds.

12 Mr Muttart did not attempt to calculate the 'detection' time. He made that clear in a number of passages in his report. Thus, at p 11 he stated:

"I have been asked to limit the scope of my analysis to the driver's brake-response time. Hence, I will not discuss the ability of a driver or observer to interpret that object or identify that object. Instead, I have been asked to assume that the object was immediately identified."

13 He set out his analysis, commencing with the following propositions at p 12:

"It is impossible for a crash reconstructionist to offer an expert opinion regarding the ability to avoid a crash without addressing the following three steps. Without a thorough analysis of each of these steps, any resulting opinion has to be speculative. Also, each opinion for each step should be based upon how people have responded in similar situations, in research and in real-life crash and near crash situations.

1. At what point in time or distance does the pedestrian become easily identifiable (conspicuous)?

2. What is the average and range of normal responses for this situation, after the hazard is identified, in step 1? ...

3. Given the speed and the time remaining (subtract 2 from 1 above) was this crash scenario avoidable and, if so, by what portion of the population?"

I have been asked to assume that the pedestrian was immediately discernible. ..."

14 Mr Muttart set out (at p 14) a diagram identifying the four stages in the analysis referred to above. It is clear from the diagram that what he described as the "perception-response times" did not include the phase identified by the word "detect". The diagram was followed by the following statement:

"My analysis should be applied to a point after the pedestrian was easily discernible. The reader must understand that all perception-response-related research has three things in common. The hazard was (1) easily identifiable, (2) it posed an immediate hazard, and (3) the driver initiated an emergency response. Hence, no investigator or expert should apply a perception-response time until all three are true. Drivers do not implement an emergency response maneuver for an undefined flicker, or blob. Instead, drivers typically restrain from responding in an emergency manner until they can discern the pattern of the object ahead. I have been asked to assume that the pedestrian was easily identifiable (a distinct and recognizable pattern) as a pedestrian once within the driver's sightline."

15 The appellant's case was that taking these distinctions into account, the 1.15 second period identified by Mr Muttart as a reasonable perception response time did not include the period required to detect and identify the danger ahead. As the period from the moment the respondent came within the driver's line of sight to the critical point at which the emergency brake had to be engaged was three seconds, and the reaction response time was 1.15 seconds, the driver had only 1.85 seconds to observe something on the track ahead and identify it as a danger.

16 The trial judge made a critical finding at [45], noting of the driver:

"If he 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) I consider that he was in breach of his duty in not so observing the object. In that regard he would not have been keeping a proper lookout."

17 In this passage, the trial judge did not require that the driver identify the "object" as a person lying across the track, a point to which it will be necessary to return. With respect to causation, the appellant relied upon a different proposition. It submitted that the trial judge allowed the driver two seconds to observe the object: however, in order to avoid the accident, the driver had only 1.85 seconds to observe the object and identify it as a danger which must be avoided at all costs. Thus, on the judge's own finding, the breach of duty was not causative in the relevant sense, because a reaction at a reasonable time would not have prevented the accident. This submission should be accepted.

Breach of duty by driver

18 From the moment that the object on the track came into sight to the point at which the emergency brakes were engaged was about 6.2 secs. The trial judge held that reasonable care required they be applied in half that time. However, the trial judge did not in fact require that the driver identify the object on the track as a person, nor did he find that the driver should reasonably have identified him as a person before he in fact did. That occurred when the respondent, whose body was mainly in the shadow of the platform, moved. There is no dispute that at that point the driver reacted immediately to apply the emergency brake and sound the horn. (The horn sounded for more than four seconds before the collision.) The question was whether he was negligent in not applying the emergency brake immediately he detected something on the rail head.

19 After noting that a collision between a train and an object might derail the train, with serious risk to life and limb, as well as the serious risk of a collision between a train and a person, the reasoning of the judge continued:

"[54] In circumstances where striking a human being was not the only risk but derailment of the train by reason of striking an inanimate object was also a risk, as [the driver] accepted, it seems to me that [the driver] breached his duty of care by not taking emergency action when he first saw the object and did not know what it was. ... Whilst striking a human being may have been the greatest risk, derailment of the train was a serious risk, because of injury to passengers and staff, if the object might have been such as to derail the train.

[55] If his vision was limited or impaired because it was dark that was an added reason for erring on the side of caution when he could not discern what the object was. Further, taking his eyes off the object until he knew what it was also amounted to a breach of his duty of care."

20 The driver had made a statement on 5 August 2009 which was in evidence and included the following paragraphs:

"[25] At about 100 metre from the departure end of Mortdale platform, I noticed an object adjacent to no 2 platform on the line.

[26] I have come around the corner and about 100 metre from the end of the platform I have noticed an object on the line. At that stage I had not seen that it was a person.

[27] Where the object was, was in the shadows between the platform edge and the rail head. The rail head is the top of the rail, and so it was in that area.

[28] It just looked like rubbish on the side of the track. It was indistinct and I could not see what it was, but it just looked like rubbish.

...

[30] When I got about 50 metre from the object I realised it was a person, as the object moved.

[31] I am concentrating on the end of the platform, and it was the movement of the object that drew my attention back to it."

(The train log suggested that the driver in fact reacted about 70-80 metres from the respondent: the emergency brake was engaged at 59 metres.)

21 The trial judge referred at [28]-[30] to aspects of the cross-examination of the driver, to the following effect:

"Q. You said 'It just looked like rubbish on the side of the track. It was indistinct. I could not see what it was but it just looked like rubbish'?

A. Correct.

Q. What does rubbish look like?

A. General litter.

Q. This is a human being wearing a back pack. In what way can you suggest it resembled rubbish?

A. I couldn't tell it was a human being wearing a back pack.

Q. But we know that it was. You say you saw it and you thought it looked like rubbish. I want you to tell us what it was about this human being wearing a back pack which resembled what you would expect rubbish to look like?

A. At the time I did not recognise it to be a human being.

Q. I know, but what did you see that made you think it was rubbish?

A. An indistinct shape that I couldn't tell was a human being.

Q. What sort of indistinct shape?

A. Just an indistinct shape as I say. Like, there's rubbish around the track all the time. It wasn't anything to be, I noticed to be out of different order.

...

Q. ... Since you didn't know what it was did it not occur to you that it would be prudent to take some steps so that you could stop if you had to?

A. It didn't occur to me to stop.

Q. Do you think you should have?

A. My only answer to that is once I realised it was a human being I took the appropriate action. I can't second guess myself and say that, because I didn't know what it was. My experience is there is a lot of rubbish and litter around the area and I can't keep pulling the train out for just anything.

Q. But that is all very well and you say, well, you didn't know it was a human being. But you didn't know it was just rubbish either, did you?

A. That is correct, I didn't.

Q. And since you didn't know it was just rubbish there was a possibility it was a person?

A. I didn't consider that it would be a person.

...

Q. When you first saw this object on the line, did you only see the part of the object that was on the rail head, or did you see more than that?

A. What I saw was really only on the rail head and perhaps in between the tracks. The shadows itself are from the platform and the station lighting. I really couldn't see anything in that area between the rail head closest to the platform and the platform itself.

...

Q. ... how often would you encounter on the track some form of what you have described as rubbish? Would it be on a daily basis or weekly or

A. Certainly a daily basis, possibly even every train you get on to, there is always rubbish on the side of the track or in that area. It's not a rare occurrence; it's a regular, normal occurrence.

Q. Do you have to make a judgment about what you are looking at, to see if there is a danger of proceeding, not so much because it might be a human being, but because it might derail the train?

A. Certainly, yes.

Q. What about the fact that, in this case, part of the object actually extended across the rail head. Did that not cause you some concern?

A. I didn't know what that object was.

Q. Well, the fact that you didn't know what the object was, ought to have caused you to do something to slow the train down until you did know, shouldn't it?

A. The object that I saw at the time, I ... obviously didn't feel as though it was a risk to either the safety of myself or of the train or the passengers upon the train."

22 The trial judge did not reject the driver's explanation that what he thought he saw on the track was rubbish, nor did he reject the evidence that the driver could not see the respondent (until he moved) because he was in the shadow of the platform. There was no finding that the respondent's leg could possibly have been identified as something which might derail the train. The finding that it was not reasonable for the driver to look away (at the end of the platform, being the point at which he was required to stop the train) was unsupportable but probably immaterial. The finding of breach of duty lay in the driver not engaging the emergency brakes immediately he saw something which he identified as rubbish on the track.

23 The driver gave evidence that he had not been instructed as to what he should do if he saw rubbish on the line. This finding of breach of duty appears to have turned on the further finding that RailCorp should have instructed its drivers to apply the emergency brakes in those circumstances, which is the element of direct negligence. In any event, absent instructions requiring him to apply the emergency brakes whenever there was anything on the track which was not clearly identified, a finding of negligence on the part of the driver was to set a standard of care well above that which was reasonable. Those considerations noted below which support RailCorp's view that no such general instruction was appropriate also support the conclusion that the conduct of the driver was not in breach of the appropriate duty of reasonable care.

24 Before leaving the question of breach of duty on the part of the driver, it may be noted that the trial judge commenced his discussion by reference to the circumstances in Public Transport Commission (NSW) v Perry [1977] HCA 32; 137 CLR 107. The circumstances of that case bore some similarity to the present, in that it involved a collision between a train and a woman who had fallen onto the tracks as a result of an epileptic fit at Lindfield Station. As the trial judge correctly noted, the issues of legal principle were not relevant in the present circumstances, this case being governed by the terms of the Civil Liability Act 2002 (NSW) and not by general law principles relating to injury to a person who might be characterised as a trespasser. Further, the Court did not make any findings of fact: it merely considered whether a finding of breach of duty was open to the jury (which had found for the plaintiff). The case was not authority for any relevant principle.

25 However, the trial judge at [50], in setting out a lengthy extract from the joint reasons of Mason and Jacobs JJ in Perry (at 148) emphasised the following passage:

"He made no stronger application of the brake until he positively identified the object as a human being. Only then did he apply the full emergency brake. ... It appears to us that the omission of the driver which the jury could regard as showing a lack of reasonable care was his failure to do anything until he positively identified the object as a human body."

26 Although the trial judge was undoubtedly aware that this language did not require him to adopt a similar approach, it was the approach he adopted. As the facts of Perry revealed, the jury might also have concluded that the driver should have identified the object as a human body before he did. (He observed the object at a distance of 300 yards; it was broad daylight; although he said he thought it was a large piece of brown paper, it was a woman wearing a white dress with purple stripes.) The case is of no assistance in the present circumstances.

Direct breach by RailCorp

27 The trial judge stated at [57]:

"In addition to those breaches on the part of [the driver], I consider that Rail Corp breached its duty of care by not issuing clear instructions to its drivers about the action they should take in circumstances where an object was seen on the track and the driver was not able to discern whether or not it was a human being. That is not to say that a driver would be obliged in every case that something is seen on the track to apply the emergency brakes with the dangers and inconvenience that that course may well entail. Since, however, the almost inevitable result of a train striking a human being will be death or serious injury the only reasonable response to the risk, where an object is seen but not identified, is for emergency braking to be applied in an endeavour to avoid striking the unknown object."

28 After reaching that conclusion, the trial judge referred to the evidence (unchallenged) of Mr Stephen Scott, then Acting General Manager of Operations for RailCorp. Mr Scott provided statistics as to the operation of the City Rail service and noted that drivers were not provided with instructions to apply emergency brakes immediately something was noticed on the line because of (1) safety concerns; (2) adverse impact to service availability, and (3) increased repair and maintenance costs. Mr Scott stated under the heading "Safety Concerns":

"13 Train drivers within the Sydney Metropolitan Network repeatedly report noticing objects on the line such as rubbish and general debris. This is a very common occurrence and the objects include newspapers, rocks, general rubbish and shopping trolleys. Drivers have even reported seeing garden settings and ladders on the railway tracks.

14 Every time a train driver applies the emergency brakes, the train stops very suddenly and unexpectedly which has safety implications for the people on board the train. Passengers who are standing could be injured as a result of falling over or even falling down the internal stairs. Further, special needs passengers including blind, disabled, elderly, children and inattentive or distracted passengers (such as Ipod listeners) are at an increased risk of being injured during emergency braking of the train.

15 The above risks are amplified if the emergency brakes are applied when a train is coming into a station as more passengers will be standing in preparation to alight the train.

16 Having regard to the frequency with which drivers report observing objects on the line together with the high volume of passengers using the Sydney Metropolitan railway (and whose safety is placed at risk during emergency braking), in my opinion the mandating of emergency braking as soon as anything is seen on the line would create an unacceptable level of risk."

29 The trial judge reached the following further conclusions at [61]:

"Mr Scott's evidence was not challenged by the Plaintiff. In any event, in terms of statements of general principle it can be accepted as common sense and appropriate in ordinary situations. It may not be appropriate, however, at night time, adjacent to a railway platform, in relation to a train where there were few passengers (as the CCTV makes clear and as the time of the events would strongly suggest) and where the driver could see that an object was across the railhead but did not know what it was."

30 This finding is not consistent with the finding of breach previously made at [57]. To say that the general instruction "may not be appropriate" in the set of circumstances identified is insufficient to demonstrate a breach of duty. A finding that it was unreasonable not to give a specific instruction in those circumstances required attention to the bases of Mr Scott's opinion.

31 No direct breach of duty on the part of RailCorp was identified in the pleadings, nor was the appropriate direction formulated with sufficient precision. No expert evidence supportive of such a direction was called for the respondent. Mr Scott was not cross-examined. A finding of systemic breach of duty by the manager of a large rail network should only be made on a firm evidential basis. That basis was absent in the present case. The finding as to the direct breach by RailCorp cannot be sustained.

32 This conclusion also undermines the assumption on which the finding of negligence on the part of the driver was based. If identification of any "object" on the line was insufficient to require the engagement of the emergency brake, there was no supportable finding of a breach of duty. Thus, the appellant is entitled to succeed with the respect to vicarious liability for negligence of the driver, not only on the basis that causation was not established, but also on the basis that there was no breach of duty on his part.

Conclusion

33 In these circumstances, it is not necessary to address other grounds of appeal nor the cross-appeal.

34 The Court should make the following orders:

(1) Allow the appeal and set aside the judgment and orders of Davies J made on 12 April 2013.

(2) In place of those orders,

(i) give judgment for the defendant (RailCorp);

(ii) order the plaintiff to pay the defendant's costs of the trial.

(3) Order that the respondent (Mr King) pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal.

35 LEEMING JA: I agree with Basten JA's reasons and proposed orders. The essential facts were established (subject only to very small measurement errors) by the CCTV footage at the station and the data loggers on the train. At around 3.08am on the morning of 2 September 2006, Mr King fell onto the tracks beside the No 2 southbound platform at Mortdale station. He remained there, mostly motionless, facing southwards, away from oncoming trains on that line.

36 The line from Central makes a sweeping left-hand bend into Mortdale station. A train approached shortly after Mr King fell onto the tracks. The train was already breaking normally, in order to stop at the station, before Mr King came into the driver's line of sight. By then, the train had slowed from some 61 km/h to 43 km/h.

37 The parties' experts agreed that Mr King first came into a direct line of sight when the driver was 141 metres away, which was about 12.4 seconds before the impact. It was common ground that (so long as Mr King continued to lie on the track) it was necessary in order to avoid a collision for the emergency brakes to have been applied when the train was 102-105 metres from him, which was between 9.5 and 9.7 seconds before the impact. That is to say, unless Mr King moved, only if the driver applied the emergency brakes no more than between 2.7 and 2.9 seconds after he came into direct line of sight would the train halt before colliding with him.

38 The driver did see Mr King. The driver applied the emergency brakes some 6.2 seconds before impact. The driver also applied the horn, continuously, for some 4.4 seconds prior to impact. Mr King did not move off the tracks. At the point of impact, the train was travelling at some 6.9 m/s (or 25 km/h). The train took another 25 metres to stop after hitting Mr King.

39 The unchallenged expert evidence was that once Mr King was clearly identifiable, the average person's "perception-response" time was 0.8 seconds, while for 85% of the population it was within 1.1 seconds. The expert (Mr Muttart) said that having detected something, the perception-response time was the time to categorise what was seen and decide to act. Further, having decided to act, it would take a further 0.35 seconds, on average, to perform the mechanical task of applying the emergency brake. The consequence is, as Basten JA has explained in more detail, that if Mr King remained on the tracks, a driver with average reaction times had to detect his presence in the early hours of the morning within 1.55 - 1.75 seconds of his coming into direct line of sight if a collision were to be avoided (the sum of 0.8 and 0.35 is 1.15, the difference between 2.7 and 1.15 is 1.55, and the difference between 2.9 and 1.15 is 1.75). If (as Mr Muttart considered) "the 85th percentile response time is the threshold typically used to compare normal responses", then there was even less time once Mr King came into line of sight.

40 It may be accepted that it is a simplification to divide human response into discrete times for "detection", "perception-response" and "movement". It is highly plausible that there is some overlap between those categories; human sensory perception and reaction is unlikely to be a series of discrete functional steps. Indeed, as Mr Muttart said, "At times in real-life the lines between each stage are blurred". However, on any view some time must be allowed for the first stage of detection. The reasoning of the primary judge did not do this. On the findings of the primary judge, there was no breach of duty by the driver in failing to detect Mr King within 1.55 - 1.75 seconds after he first came into direct line of sight. That is sufficient to resolve Mr King's primary claim against the appellant based on vicarious liability. I also agree with Basten JA's rejection of the case based on direct liability.

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Decision last updated: 01 July 2014