Caterson v Commissioner for Railways

High Court of Australia|1973-07-01|Before: Stephen JJ

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Caterson v Commissioner for Railways (NSW) [1973] HCA 12

ORDER Appeal allowed with costs. Judgment of the Supreme Court of New South Wales Court of Appeal Division set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

My brother Gibbs in his reasons for judgment, which I have had the advantage of reading, sets out the facts relevant to the decision of this appeal. I have no need to repeat or to add to what he has written. I agree with what he has said and with the conclusion to which he comes. However, I wish to add brief remarks on my own account.

The Supreme Court reached its conclusion in this case because, as I understand its reasons, it held the view that the respondent would only be liable to the plaintiff in the circumstances of the case if it could be held that it was likely that a person, not intending to travel on the train and in no physical danger if remaining on it, would attempt to leave it if the train, not having allowed adequate time for such a person to disembark whilst it was stationary, moved off without due warning. Likelihood in this connexion appears to have been equated by the Supreme Court to probability in the sense that the event was more likely than not to happen or occur.

No doubt in the decisions concerned with liability in tort, various expressions have been used by distinguished judges in speaking of the necessary relationship between what has occurred in the particular case and the foreseeability of that event which had to be predicated of the person sought to be made liable for the consequences of the occurrence. Some of these expressions are referred to in the speeches in C. Czarnikow Ltd. v. Koufos [1] . I have no present need to list them all with references to the decisions in which they have been used: but they include "likely", "seriously possible", "of real risk", "of real danger", "not unlikely" or "liable". Suffice it to say that doubtless the expression used in particular cases served well enough to encompass its user's meaning in relation to the facts of the case before him. At times, because of the quality of those facts, an expression has been used which was enough to produce liability in respect of them, though in truth lesser facts and a less stringent criterion would have also produced liability. Consequently, unless expressions used in reasons for judgment are designed accurately to formulate a general principle or proposition, care must be taken not to erect a particular expression into a formula or an essential part of a formula.

In my opinion, liability in tort will be possible if the event which has occurred and the damage therefrom which the claimant has suffered were both foreseeable by the person sought to be made liable and of such a kind as he ought to have realised were not unlikely to occur, subject only to the exception constituted by the decision in Bolton v. Stone [1] . Of the various possible descriptions of the event and damage I prefer "not unlikely to occur" because on the one hand it denies the proposition that the event or damage should be apprehended as more likely than not to occur or to be suffered and on the other hand, by its negative form, it excludes possibilities which are theoretical and unreal in all the circumstances: it accommodates the idea of a real risk or danger though in relation to some situations it may possibly be more embracing than either of those terms.

As a concise formulation of the liability in tort, I would respectfully adopt the language of Lord Reid in C. Czarnikow Ltd. v. Koufos [2] when he says: "The modern rule of tort is the defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it", if by "liable to happen" is meant, as I apprehend Lord Reid intended it to mean, "not unlikely to happen". That formulation, if extended to include the act or event causing damage, would, in my respectful opinion, be equally valid.

In my opinion, the categories of occupier and invitee and occupier and licensee are quite inappropriate for the resolution of the present case. Liability must be placed on a general duty of care arising out of the circumstances that the defendant had the management of the train; that the appellant was properly upon it; that he was of a class of persons of whose presence on the train the respondent must be taken to have been aware; and that such persons would require adequate time to leave the train whilst it was stationary.

Failure to give adequate time, particularly if the train moved off without adequate warning, was in my opinion a breach of the duty of care for the safety of such persons which arose out of the circumstances. The question of how human beings placed in a situation of emergency will act is very much a question of fact: where a jury forms part of the tribunal of fact, it is a fact preeminently suitable for its decision. Thus, the question whether persons placed as the appellant found himself in this case were not unlikely to attempt to disembark from the train during its initial period of movement was a matter for the jury. I have no doubt that it was entitled in this case to conclude that it was not unlikely that the appellant, under threat of being carried by the train against his wish for some sixty miles, would attempt to disembark so soon as he became aware of the train's motion and before it gained a speed at which disembarkation with safety was evidently quite impossible. Further, it was entitled to conclude that the respondent ought to have foreseen that it was not unlikely that a person, placed as was the appellant, would so attempt to leave the train.

The declaration filed by the plaintiff in this action alleges that the damage for which he claims compensation was caused by negligence in the driving, control and management of the train. The defendant filed a plea of not guilty and a plea of contributory negligence.

The plaintiff gave evidence and called witnesses. The defendant called a number of witnesses. At the close of the evidence a submission was made to the judge on behalf of the defendant, that there was no reasonable evidence of negligence and the judge ought not leave the case to the jury. The judge did not act on the submission. The jury returned a verdict in favour of the plaintiff and awarded damages to him. The defendant appealed. The Court of Appeal decided that on the evidence of the way in which the accident happened, the defendant could not be held guilty of negligence resulting in the accident.

It appeared that when a train arrived at the railway station at Casino, the plaintiff went on to the train with a man, who intended to travel by train, to help him to put his luggage on the train, and having done this the plaintiff proceeded towards the doorway in order to get off the train. When the plaintiff reached the doorway he realised the train was in motion. The plaintiff decided to get off the train. It was because of the way in which he did this that the Court of Appeal decided that the duty of care owed by the defendant to him did not apply. In order to get off the train the plaintiff caught hold of a vertical bar at the side of the doorway and jumped onto the platform. He ran with the train for some yards. Failing to steady himself, he fell between the platform and the train and sustained serious personal injury. With respect, I think that the Court of Appeal took an unduly adverse view of what the plaintiff meant by saying that he "jumped" out of the train. It was within the province of the jury to make a finding on the whole of the plaintiff's account of how he got out of the train. It was open to the jury to find that he did something less extreme than literally to leap from the doorway onto the platform.

The plaintiff was lawfully on the train. The plaintiff's case was that the defendant knew that persons not travelling came onto the train when it stopped at the railway station and the defendant was under a legal duty of care to them which included giving them a reasonable opportunity to alight from the train while it was stationary. On the evidence it was open to the jury to find that the defendant put the train in motion in breach of that duty of care. The jury could reasonably find on the evidence that the train was moving slowly when the plaintiff jumped out of the doorway, holding onto the vertical bar to support himself. It ought reasonably to have been in the contemplation of the defendant's employee concerned with starting the train that if a reasonable opportunity was not given to visitors on the train, one or more of them would be likely to alight from it as soon as it was put in motion and this would be a dangerous thing to do.

Lord Atkin said in Donoghue v. Stevenson [1] : "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." This principle applies to this case. The plaintiff, as a visitor on the train, was "neighbour" to the defendant while on the train. He did not cease to be "neighbour" immediately the train was put in motion. I would accept as good law this statement: "it is not necessary to show that the particular accident which has happened was foreseeable, any more than it is necessary to show that the particular damage was foreseeable; it is enough that if it was reasonable in a general way to foresee the kind of thing that occurred": Salmond on the Law of Torts, 15th ed. (1969), p. 291. I think this statement of principle applies to the act of the plaintiff described as "jumping" from the train.

It was a question of fact for the jury to decide whether the provision of a chain to pull in order to stop the train was a sufficient precaution to fulfil the defendant's duty of care. Apparently the jury decided it was not. The issue of contributory negligence, as well as the issue of negligence, was left to the jury. Their general verdict shows that they found in favour of the plaintiff on both issues. In my opinion, there is not ground for disturbing the jury's finding on either issue.

This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales setting aside a verdict and judgment in favour of the appellant against the respondent in an action for damages for negligence.

(1) that the plaintiff entered a train standing at the platform at Casino to stow in his compartment the luggage of a passenger friend who was boarding the train;

(2) that the train started to move without giving the plaintiff time, without waste of time, to do what he had to do and leave the train;

(3) that the train started to move without any warning audible to the plaintiff inside the carriage;

(4) that, on reaching the doorway to alight upon the platform, the plaintiff found the train already in motion and either stepped or jumped out holding a hand-bar on the outside of the carriage;

(5) that the plaintiff's attempt to alight was unsuccessful and he fell between the train and the platform sustaining the injuries for which he sued;

(6) that at the time the plaintiff attempted to leave the train, it was still travelling slowly but was gathering speed.

It appears to me that, upon such evidence, the jury could properly return a verdict for the plaintiff, finding negligence and not finding contributory negligence, unless the respondent was entitled to disregard as a small risk not calling for precautionary measures the possibility that a person lawfully upon a train and being carried away from a station upon which he wanted and had good reason to alight, would run the risk of trying to leave the train when he found that it was moving off and gathering speed, even though it was common knowledge that there was a stop cord that could have been pulled to stop the train.

I have had the advantage of reading the judgment of Gibbs J. in which the problems to which the appeal gives rise are fully discussed and for the reasons which he gives, I have reached the conclusion that the risk that what did happen here would happen in such circumstances was not so small that a reasonable person would be justified in disregarding it.

Consequently, I agree that the appeal should be allowed.

This is an appeal from a judgment of the Court of Appeal Division of the Supreme Court of New South Wales. An action was brought in that Court by the appellant against the respondent, the Commissioner for Railways, for damages for personal injuries sustained by the appellant by reason of the negligence of the respondent. The action was tried by a judge sitting with a jury, and a verdict was entered for the appellant. The Court of Appeal ordered that the verdict be set aside and that in lieu thereof a verdict be entered for the respondent.

At the trial there was a conflict of testimony on some points but the jury was entitled to accept the following version of the facts. The appellant, who lived at Bangalow, had driven to Casino, forty miles away, and had been accompanied by his son, aged fourteen, and a friend, Mr. Mackie, who wished to catch the Brisbane-Sydney express train which was due to arrive at Casino at 7.44 p.m. and to depart at 7.51 p.m. on the day in question. The train arrived on time or a minute or two early. Because its length was greater than that of the platform at Casino it made two stops; passengers intending to travel in sleeping compartments were allowed to enter their carriages at the first stop and the train was then moved forward to allow the other passengers to get aboard. The train stopped twice as long in the first position as in the second. When the train stopped on the second occasion the appellant and Mr. Mackie happened to be standing almost opposite to the door of the carriage in which Mr. Mackie was to travel. Although there was no suggestion that Mr. Mackie, who was aged about sixty-seven, was incapable of carrying his own suitcase, the appellant, who was ten years younger, carried it into the carriage for him. He placed the case on the rack, shook hands with Mr. Mackie and without wasting time commenced to walk out of the carriage. When he got to the door he noticed that the train had started to move. There was some evidence that it had commenced to move at the appointed time, 7.51 p.m., but the jury was not bound to accept that evidence. The appellant did not look at his watch, or at the station clock, to check the time before he entered the carriage or while he was within it. At least two other persons who had entered the carriage to assist their relatives with their luggage were still on board when the train began to move. Neither they, nor the appellant, had heard any warning that the train was about to depart. The next station at which the train would have stopped in the ordinary course of events was about eighty miles away. The appellant thought of his son on the platform, forty miles from home, and "instinctively", as he said, and without giving any thought to the risk involved, tried to get onto the platform by jumping out of the carriage and running with the train while holding a bar placed near to the door of the carriage. At the time when the appellant got to the door of the carriage the train, to use his words, "was not travelling too fast", although its speed was too great for him simply to step out of the carriage. It appears from the evidence of another witness, Miss Stuckey, that the train had just started to move off but it had gathered speed fairly quickly. It did not occur to the appellant to attempt to find a communication cord which, if pulled, would stop the train. There was no direct evidence that there was a cord in the carriage but there was evidence from which it might have been inferred that there was such a cord. On this material the jury was entitled to conclude that the train did not stop long enough on the second occasion to allow the appellant to enter the train, go to Mr. Mackie's seat, deposit the luggage and then leave the carriage. Further, the jury was entitled to find that no warning which could be heard within the carriage was given before the train began to move from the station.

The question that then falls for decision is whether it was open to the jury in these circumstances to find that the respondent had been guilty of negligence which caused the appellant's injuries. There can, I think, be no doubt that the jury could properly have held that the respondent should have foreseen that some people other than passengers would board the train while it was halted at the station and would seek to alight from it before it resumed its journey. It is common knowledge that passengers who board an express train are often accompanied by other persons who assist them to carry on their luggage or find their seats, and if a passenger is a young child or is old and infirm it is highly likely that he will need to be helped in this way. I did not understand this to be disputed by the respondent. Further, it was not contested that it was foreseeable that if such a person, finding himself on the train when it started to move off, tried to get back on to the platform, he would be likely to suffer injury. However, the Court of Appeal took the view that it could not be foreseen that any act or omission of the respondent in relation to the operation of the train would be likely to cause injury to a person who jumped from the train while it was in motion unless he did so to protect himself from the danger of some physical injury that might be caused to him if he remained on the train. Their Honours thought that it was not foreseeable that a man would do anything so dangerous as to jump from a moving train except to protect himself from a danger on the train itself and that the appellant's act of jumping was not a likely result of any earlier act or omission of the respondent. Therefore it was held that there was no duty of care on the part of the respondent related to the injury suffered by the appellant. Alternatively it was said that if a relevant duty of care be assumed there was no breach thereof which caused the appellant's injuries. [1]

With great respect, I am unable to agree that no reasonable jury could find that it was foreseeable that a person other than a passenger, who had found himself on an express train which started to move off without warning, might jump from it, even though he was in no danger by remaining on the train. It would of course be a very considerable inconvenience for anyone to be carried against his will to another town eighty miles away and in some cases the person on the train would have an additional strong reason to wish to avoid being so carried, as for example, if he had left a helpless child on the platform or a sick wife at home. A jury could in my opinion reasonably consider that a person on an express train faced with such a possibility might attempt to leave the train, particularly if it had not yet picked up speed. It is true that the safer course in such a situation would be to pull the communication cord, if one were provided, but people do not always choose the safer course and it was foreseeable that a person wishing to get off the train might try to jump off it while it was moving, because he thought that the speed of the train enabled him to do so without risk of injury, or because he wished to avoid the embarrassment of pulling the communication cord and for that reason was prepared to take a chance of injury, or simply because in the heat of the moment it seemed to him the only thing to do. In the circumstances of the present case it was open to the jury to find that the respondent could have foreseen that there would be on board the train after it had stopped at Casino persons who intended to leave it before its departure and that those persons would be exposed to the risk of injury if the train started to move without adequate warning and after so short a stop as not to give them a reasonable opportunity to alight.

I am prepared to assume that the carriage was provided with a communication cord and that many persons in the predicament in which the appellant found himself would have used the cord to stop the train. Notwithstanding these assumptions the jury might properly consider that there was a real risk that if the train began to move while persons who were not passengers were still aboard it, one of these persons would try to leave the train and in so doing would suffer injury. Moreover, if someone did jump out of the train and fell between it and the platform the consequences would be likely to be serious. In Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd. [2] , Lord Reid, after discussing the decision in Bolton v. Stone [1] , and saying that the House of Lords there held that "the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it", went on to say:

But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it In their Lordships' judgment Bolton v. Stone [1] did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it. In the present case the jury, once it had decided that there was a real risk of injury if the train commenced to move without proper warning or after too short a stop, had to consider what difficulty, expense and disadvantage there would have been in taking steps to eliminate the risk (see also Morris v. West Hartlepool Steam Navigation Co. Ltd. [2] and Schiller v. Council of the Shire of Mulgrave [3] ). No doubt there would have been some disadvantage in allowing the train to stop a little longer at the station, but it was for the jury to weigh that disadvantage against the risk. Similarly it was for the jury to consider whether there would have been any difficulty, expense or disadvantage in providing a means of warning persons who were within the carriages of the intention to start the train. There was no evidence that the provision of an adequate warning system would have been impracticable on the ground of expense or otherwise. On the whole the jury was entitled to take the view that a reasonable man weighing the risk against the difficulties of eliminating it would have taken one or other or both of the possible precautions that might have averted the risk. It was therefore open to the jury to find that the respondent owed a duty of care to the appellant and had committed a breach of that duty. 1. [1967] 1 A.C. 617, at pp. 642-643. 2. [1951] A.C. 850. 3. [1951] A.C. 850. 4. [1956] A.C. 552, at pp. 574-575. 5. (1972) 46 A.L.J.R. 650, at p. 657; 129 C.L.R. 116.

The next question for consideration is whether the jury was entitled to find that the negligence of the respondent had caused the appellant's injuries. On behalf of the respondent it was submitted that the voluntary act of the appellant in jumping from the train broke the chain of causation between the respondent's negligent acts and omissions and the appellant's injuries. It is no answer to this submission to say that the appellant's act was foreseeable: Chapman v. Hearse [1] and McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [2] . In the latter case Lord Reid said [3] that "it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus". On the other hand, the intervention of the voluntary action of the appellant did not in itself necessarily have the result that his injuries were not caused by the respondent's negligence. In Summers v. Salford Corporation [4] , Lord Wright said that

if a plaintiff suffers damage by the defendant's default, the damage may be directly due to that default and recoverable even though the accident and damage would not have happened but for some action of the plaintiff, so long as his action was in the ordinary course of things and, at least generally speaking, was not blameworthy. The effect of the intervening action of a third party was recently discussed in Dorset Yacht Co. Ltd. v. Home Office [5] , and in the course of that discussion Lord Reid cited the following passage from Haynes v. Harwood [6] : If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not the accident can be said to be "the natural and probable result" of the breach of duty. It is unnecessary to go beyond these propositions for the purposes of the present case. The jury was entitled to consider that the appellant's action of jumping from the carriage was "in the ordinary course of things" and "the very kind of thing" likely to happen as a result of the respondent's negligence. For reasons which I am about to give, the jury could also have taken the view that the appellant's conduct was not unreasonable, and that the appellant's injuries were caused by the respondent's negligence. 1. (1961) 106 C.L.R. 112, at p. 122. 2. [1969] 3 All E.R. 1621, at p. 1623. 3. [1969] 3 All E.R., at p. 1623. 4. [1943] A.C. 283, at p. 296. 5. [1970] A.C. 1004, at pp. 1027-1030. 6. [1935] 1 K.B. 146, at p. 156.

At the present stage of these proceedings the questions of causation and contributory negligence run together. If the appellant's action in jumping from the train was not unreasonable it could not be said in the circumstances that that action, rather than the respondent's negligence, was the cause of the injuries. If, on the other hand, the appellant by jumping from the train failed to take reasonable care for his own safety he could not recover from the respondent damages in respect of his injuries because at the relevant time contributory negligence was still a complete defence in New South Wales. There may have been open at the trial two questions on the issue of contributory negligence which having regard to the verdict of the jury cannot now be raised by the respondent with any hope of success. These questions were whether the appellant was negligent in failing to keep a close eye on the time when he entered and remained within the carriage and whether, having decided to jump, he took less than reasonable care in executing that decision. It was clearly open to the jury to negative these suggestions and they may now be put aside. The question remains whether the appellant by the very act of jumping from the train failed to take reasonable care for his own safety, and thus acted unreasonably.

No doubt on the evidence it was open to the jury to find that the appellant did not take reasonable care for his own safety and that his injuries were caused by his own want of care. It was submitted by the appellant that it was not open to the jury to take any other view. It was said that the principle which is sometimes referred to as the doctrine of alternative danger, and of which Jones v. Boyce [1] is an early example, has no application unless the plaintiff has been placed by the defendant's negligence in a position in which he has to choose between two dangers; it will never be reasonable, so it was said, to take a risk of injury merely to avoid an inconvenience, however great. I cannot agree with that submission which seems to me inconsistent with the decisions in Robson v. North Eastern Railway Co. [2] (see especially [3] ) and Sayers v. Harlow Urban District Council [4] . Where a plaintiff has by reason of the negligence of the defendant been so placed that he can only escape from inconvenience by taking a risk, the question whether his action in taking the risk is unreasonable is to be answered by weighing the degree of inconvenience to which he will be subjected against the risk that he takes in order to try to escape from it - cf. per Lord Evershed M.R. in Sayers v. Harlow Urban District Council [5] .

(1816) 1 Stark. 493 [171 E.R. 540]. 2. (1875) L.R. 10 Q.B. 271. 3. (1875) L.R. 10 Q.B., at p. 275. 4. [1958] 1 W.L.R. 623. 5. [1958] 1 W.L.R., at p. 626.

No one could doubt that it would be negligent to jump from a train travelling at full speed simply to avoid the inconvenience of being carried on to another station. On the other hand, a person who wished to avoid being carried on to a distant station might not unreasonably jump out from a train which was travelling very slowly. The question at what speed the train was travelling was therefore in the present case a critical one. Having regard to the evidence to which I have referred it seems to me that the jury was entitled to conclude that the train had not attained any great speed when the appellant jumped from it. The jury then had to weigh the inconvenience which the appellant would suffer if he remained on the train against the risk of leaving a train which was moving at the speed at which they considered that it was travelling. They also had to consider the question whether the appellant failed to take reasonable care for his own safety by leaving the train instead of pulling the communication cord, assuming one to have been provided. In this connexion they could have considered the appellant's evidence that he jumped instinctively and could have concluded that in the stress of the moment it was not to be expected that he would think of the possibility that the carriage would be provided with a communication cord or, alternatively, that it was not necessarily unreasonable for him to endeavour to leave the train immediately rather than to spend time looking for a communication cord, for if there had proved to be no cord the lapse of time would have increased the hazard of leaving the train, which was gaining speed. Bearing all the circumstances in mind I find it impossible to conclude that the jury was bound to find that the appellant's injuries were caused or contributed to by any negligence on his own part.

The power of the Supreme Court of New South Wales to enter a verdict contrary to that of a jury, in case where contributory negligence was in issue, was considered in Williams v. Smith [1] . I need not here discuss the principles there laid down. It is enough to say that for the reasons I have given, I consider that there was evidence on which the jury could reasonably find for the appellant, and that the respondent was not as a matter of law entitled to a verdict. Moreover, I consider that the verdict was not against the evidence and the weight of evidence, or unreasonable, and that a new trial, if asked for, should have been refused.

I have read the reasons for judgment of the Chief Justice and of my brother Gibbs and agree both with their conclusions and with their reasons for those conclusions. I would allow this appeal.

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Judgment (39 paragraphs)

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