Sections 5B and 5C of the CLA
125Sections 5B and 5C of the CLA provide:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
126The first step in applying s 5B is identifying the relevant "risk of harm". The judgment of Gummow J in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 has been treated as authoritative on the matters with which it deals in relation to the concept of the "risk of harm", even though Dederer did not involve the CLA much less s 5B. His Honour observed that it is only through the correct identification of risk that one can assess what the reasonable response to that risk would be (Dederer at [59]). This applies equally to s 5B as it does to the so called calculus of breach elucidated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 to 48. Further, the concept of risk in s 5B must entail some adverse consequence as it refers to "risk of harm". In Dederer Gummow J stated at [59] that the proper identification of risk involved "accurately identify[ing] the actual risk of injury faced by [the plaintiff]" (emphasis added).
127However the formulation of the risk of harm by reference to the precise harm suffered by the injured plaintiff in the precise manner alleged is an approach that has been rejected (Benic v State of New South Wales [2010] NSWSC 1039 at [83] per Garling J). Such an approach would result in a false assessment of the criteria in s 5B(1)(a) and (b) and an incorrect assessment of the reasonableness of taking specified precautions (see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [24] and [25]). Equally, a risk of harm which is pitched at too a high level of generality may also skew the assessment. While such a risk of harm is more likely to be foreseeable and "not insignificant", in some cases it may be less likely to be preventable by reasonable precautions.
128In this case Mr Barry QC submitted that the relevant risk was of "passengers being trapped in the doors" and that this was foreseeable and not insignificant. This formulation suffers from the deficiency that it omits the element of "harm" or adverse consequences from being caught in the doors. Further, it may be that it is too narrowly expressed as it excludes the risks associated with passengers deliberately interfering with the doors in the circumstances such as those outlined in the extract at [89] or objects becoming caught in the doors. It is not necessary to consider that further as it would not materially affect the outcome of the following analysis, other than to make the risk of harm even more foreseeable and "significant". I will consider the matter on the basis that the risk of harm is the risk of passengers being trapped in the doors and suffering injury.
129At this point I will address ss 5B(1)(a) and (b) bearing in mind that they must addressed prospectively and not retrospectively (see [131]). Even so the risk of harm was both foreseeable and, even if not common, was "not insignificant" (Shaw v Thomas [2010] NSWCA 169 at [44] per Macfarlan JA, with whom Beazley and Tobias JJA agreed; Benic at [93] to [101] per Garling J). It is to be remembered that this assessment is undertaken in the context of the adoption of the door security policy by the RTA which gave effect to the methods of "motorised door locking", and without any technology that prevented the motorised doors closing on passengers, or allowed them to open the doors if caught. In that context, the material set out above outlines the incidence of complaints of passengers being trapped and clearly envisages that there were some occasions where actual injury was occasioned by passengers being caught in closing doors, and others where it was avoided by some intervening action. The type of physical harm that can be suffered will obviously vary but clearly could range from a fatality to very minor physical harm. The passage extracted at [92] contemplates that a passenger who is caught and dragged may suffer no physical harm but could still suffer psychological injury. This appears to be a reference to a passenger on the outside of the train who would presumably fear for their life. However a passenger caught on the inside might still experience some panic and could easily hurt themselves in extracting themselves from the doors (or even fall out, as in this case). Overall this risk was considered to be of such a magnitude that, well prior to the accident, it warranted the purchase and installation of the TI (and DVA) systems even if they were not commissioned for some years.
130Before addressing the two precautions suggested by Mr Barry QC I note two further matters about breach.
131First, at the risk of repetition, the assessment of breach must always be undertaken prospectively and not retrospectively by inquiring into whether certain postulated actions could have prevented the particular plaintiff's injury (Dederer at [65]; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] to [128] per Hayne J; Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 at 293).
132Second, the passage from Henwood cited above at [117] identifies the extent of the duty owed by the State as being one that involves a "high degree of precaution ... before ... the standard of reasonable skill and prudence is attained". That statement reflects the nature of the service being provided, the reasonably high level of control that railway authorities are capable of exercising over their operations, the significant potential dangers posed by the machinery and operations of a rail network, and the broad range of persons who utilise their services including the very young, the very old, the frail and the infirm. That said, the "essential concept" in addressing allegations of negligence is "reasonableness" (Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [8] per Gleeson CJ). In this context the relevant precautions were those that were reasonable to take in response to "dangers likely to arise out of the ordinary use of the [train and] which might reasonably be expected" and not the steps that necessarily ensured protection against such dangers.
133The first precaution identified by Mr Barry QC was the commissioning of the TI system that had already been installed on the various trains at some point prior to Corey's fall on 29 January 2001. Mr Barry QC pointed to the material set out above as demonstrating the potential for the locking doors to trap and potentially drag passengers. He also submitted that the technology to address and potentially eliminate that danger was not only available to the State, it was in fact installed. He contended that the period of time between its installation and commission involved "extraordinary dilatory behaviour". He contended that "no evidence was given by the defendant as to why the [commissioning] process could not have been started much earlier so as to ensure that it was commissioned prior to [Corey's] accident in 2001". In oral submissions he pointed out that, in the absence of TI being commissioned, the State was reliant upon the accuracy of observations by guards, which were inherently more unreliable.
134I have described the history of the installation and commissioning of the TI system (and DVA) at [94] to [106] above. As noted, the decision to commission TI was made in March 2003 for DDS trains and in March 2006 for Tangara trains. The decision to commission TI on the intercity fleet was only taken in April 2007. The reason why the intercity fleet was last was not specified in the material, but presumably it was due to the likely lower level of passengers entering and leaving trains on those services. Trials commenced in April 2007 and, after staff training, commissioning commenced on 30 September 2007 and was completed in May 2008. Thus the time period to commission a particular train or carriage fleet was somewhere between six and twelve months. Further, it is likely that this period of commissioning time was streamlined by that stage having regard to the experience in commissioning TI on the other trains.
135The evidence establishes that one reason for the delay in commissioning TI was the staging of the Sydney Olympics in September and October 2000. I take the reference to the "Olympics" in the various documents as including the Paralympics in the latter part of October 2000. The description of what was involved in the commissioning process (at [97] to [101]) reveals that it was a significant undertaking. There is nothing in the evidence that is capable of undermining the assessment that the process of commissioning TI had a realistic potential to disrupt the rail network's preparation and the staging of the Olympics.
136Mr Barry QC's submissions appeared to deny that the constraints imposed on a rail system by the need to stage such an event could ever be invoked as a basis to delay commissioning a measure designed to address a safety danger such as the possibility or likelihood of door closing and locking systems trapping passengers. I disagree. As noted, the touchstone of this area of discourse is "reasonableness". Many decisions to implement safety changes, including technological change, will involve trade-offs between safety and the ability of the system to provide a reliable and reasonably efficient service even in the short term. A rail system could choose only to allow its trains to travel at 5km per hour. Such a system would undoubtedly be very safe but it is unlikely to be of much utility. As was noted by Gleeson CJ in a different context in Jones v Bartlett [2000] HCA 56; 205 CLR 166 at [23]:
"There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense."
137The operation of a railway system is a vastly different context to that being considered in Jones v Bartlett. The statement as to the extent of the duty in Henwood that I have emphasised above (at [132]) reflects that. However the duty is still conditioned by the need for reasonableness which, of necessity, must embrace what are sometimes the competing considerations of efficiency in passenger movements and passenger safety.
138Corey's accident occurred in January 2001 some four months after the conclusion of the Paralympics. Even if a decision had been made to commence the commissioning process for TI on the day after the Paralympics concluded, and even if the intercity V-Sets were commissioned first rather than last, as they were in the events that happened, then I am not satisfied that it could have been operational on DJM8124 by the time of Corey's accident. The experience from 2007 suggests that, at an absolute minimum, a period of six to twelve months was required to commission the whole intercity fleet, and no carriage would be commissioned in less than six months from commencement. It follows that it is not necessary to consider whether the delay by the State in commissioning TI on the intercity fleet after the Olympics was dilatory or not. In light of the circumstances facing the rail network in the lead up to the Olympics, the "burden" of taking the precaution, assessed prospectively, was such that I am not satisfied that a "reasonable person in [the State's position] would have taken the precaution" of commissioning TI on that fleet or DJM8124 prior to 29 January 2001 (CLA, ss 5B(1)(c), 5B(2)(c) and 5C(a)).
139The second precaution identified by Mr Barry QC was the making of an observation by staff of the open state of the door of DJM8124 as it departed Morisset Station. Although the submissions were directed towards both the guard, Mr Meiforth, and the CSA the suggestion that Mr Meiforth missed something was not taken up with him directly in cross examination. I will confine consideration to the suggestion of negligence on the part of the CSA although it is necessary to consider aspects of the guard's role as well. This is to be considered in light of the adoption of the door security policy that I have outlined and in a context where the State declined to commission technology that it had installed to deal with one of the consequences of that policy, namely an increased potential for train doors to trap passengers.
140The relevant operational rule for staff ("Safe Working Unit 141") specified that one of the basic duties of guards was to "close the automatic doors, where provided, before signalling the driver to depart from a platform". The State tendered an "Operation Manual for Electric Trains" which was dated September 1994 and noted the door security policy described above. It also stated:
"It is the guard's responsibility to give the 'all right' signal to authorise the driver to proceed and to ensure that passengers are clear of the doors prior to closing them and before giving the 'all right' bell signal to the driver
...
Before giving the 'all right bell signal to the driver, the guard is to ensure that the 'doors open' indicator light (where provided on the guard's panel) is not shining and, that no person is observed to be caught in the doors" (emphasis added)
(It was not suggested that a "door open" indicator light in the guard's compartment was operational.)
141The Operations Manual also recorded the following as the obligation of the guard "if station staff are in position":
"When you receive the 'right of way' signal from station staff, provided that the signal is clear to proceed and station work has been completed:
announce on the public address system 'stand clear, doors closing', blow your whistle, close the doors (ensure that the 'doors open' indicator light goes out on Tangara trains), and then give the 'all right' (--) bell signal to the driver."
142I have described the curved platform at Morisset Station. The practical effect of that curvature and these provisions of the Operations Manual were such that, if there was a CSA present on the platform at Morisset, then the guard could rely on them to be satisfied that "no person is observed to be caught in the doors", as referred to in this manual.
143These instructions to staff simply reflect the obvious position that, especially in light of the adoption of the door security policy with a "motorised door locking system" and in the absence of technology designed to either detect doors that have remained open or disable the train from running if there are doors that have not locked, it was the responsibility of staff to make an observation that the doors were properly closed before the train departed to either avoid or minimise the risk of passengers being caught (whether or not as a result of interfering with the doors). This was the minimum standard required to be met to display the "high degree of precaution" referred to in Henwood. In the case of the doors on the number 1 side at the number 2 end of DJM8124 at Morisset Station that observation at least had to be made by the CSA given the curved nature of the platform. The adoption of such a system leaves open the possibility adverted to during the hearing that small impediments that prevented the door opening might not be observed with the exercise of reasonable care by the CSA. However the finding that I have made as to the level of interference with the doors is inconsistent with the CSA having exercised reasonable care at that point. The minimum degree of protrusion of Corey's body that would have prevented the doors closing should have been observed by the CSA but was not.
144The "precaution" of making a proper observation (or not signalling to the guard to proceed without having made such an observation) was one that a reasonable person in the CSA's position would have taken. The burden of taking that precaution was not great (CLA, ss 5B(2)(c) and 5C(a)). To the contrary, it was exactly what they were required to do in order to address the specific contingency that the door had not closed because of interference. The discussion at [129] informs a consideration of ss 5B(2)(a) and (b) of the CLA in this case. If the precaution was not taken passengers could be trapped and a spectrum of consequences could result ranging from no harm to fatalities.
145Accordingly I accept Mr Barry QC's submission that, a CSA being present on the platform, that person "was negligent in failing to keep a proper lookout for the plaintiff trapped in the doors when he gave the signal to Mr Meiforth that it was safe for the train to leave".