King v Rail Corp NSW

The factual issues 11The factual issues in relation to liability were whether the driver should have been able to see the Plaintiff from the time that he was in the line of sight of the driver (agreed by the experts at 141 metres) or from that point up to a position about 121 metres from the point of impact by which time the driver could have reacted (1.15 seconds agreed) and applied the emergency brakes so that they operated from the critical point of either 105 metres (Mr Mitchell) or 102 (Mr Hespe), the critical point being the minimum distance the Plaintiff would have to have been from the train not to be struck. Put another way, should the driver have seen the Plaintiff in the time available to him by which time he needed to apply the emergency brakes? 12A subsidiary question was when the driver did in fact see the Plaintiff. He said he saw an object on the line when he was about 100 metres from the object. That could only be an estimate. His estimate of 50 metres, when he said that he realised it was a human being and applied the emergency brakes, has been shown to be objectively wrong. The emergency brakes commenced to operate 59 metres from the point of impact. Prior to that time 1.15 seconds needed to elapse to get back to the point where the driver realised it was a human being and responded by applying the brakes. At that time the train was travelling at about 12.1 to 12.3 metres per second. That means that objectively the driver must have realised there was a human being on the track at a distance of 73-74 metres from the point of impact. Did he underestimate the 100 metres by about the same amount that he underestimated the 50 metres? If in fact he only saw the Plaintiff at 100 metres it was too late to halt the train before the point of impact because the critical distance (as noted) was 102 or 105 metres depending who of Mr Mitchell and Mr Hespe is accepted. 13Expectation may be relevant from the driver's point of view. The Plaintiff said that a driver should be particularly vigilant when coming into a station because that is the place where people are most likely to be and, therefore, are most likely to be on the line. He said that it was the early hours of a Sunday morning when it might be expected that people would be around and that some of those people might be intoxicated or affected by drugs. 14There was a further issue about what in fact could be seen by the driver at various distances. Mr Mitchell had carried out an experiment and taken photographs. Those photographs tended, for the most part, to show that the driver would not have been able to see the Plaintiff on the line even at the point where the driver said he could see the Plaintiff on the line. In other words, those photographs did not accurately represent what the driver was able to see on the night. 15There was an issue concerning whether the Plaintiff was intoxicated and its causative relationship with the Plaintiff's being on the railway line. It was an issue said to be relevant both to liability and also to contributory negligence.

What could and should the driver have seen? 16There was expert evidence that it was not possible for a driver to see the full length of Mortdale station until a position about 50 metres from the commencement of the city end of the platform partly because of the curvature of the line and partly because of stanchions on the left side of the line. However, as noted earlier, the sight distance to where the Plaintiff was lying on the track was agreed at 141 metres. 17There was in evidence a DVD taken from the driver's cabin of a train as it travelled from Hurstville to Mortdale. The DVD was not made at 3:00am but was made during the night on 7 December 2010. It was fully dark. 18Objection was taken to this video by Mr Toomey QC for the Plaintiff on the basis that there was no way of knowing what the conditions on the night were when the accident happened and the conditions on the night of the DVD. I accept that that is so. The DVD was not put forward as a re-creation of what happened on the night in question. It was prepared so that a general impression could be obtained of what could be seen from the driver's cabin of a train approaching Mortdale station at night including such things as sight distances. It was admitted for that reason. 19What was clear from this DVD, and was accepted by both the Plaintiff and the driver, was that the lighting from Mortdale station resulted in the rail head being clearly able to be seen as a bright line because of the way it caught and reflected the light. 20What was also clear from the CCTV footage showing the Plaintiff on and near the tracks was that the Plaintiff's left leg was resting over the top of the western most railhead (the railhead closest to the platform) at various times before he was struck by the train. In my opinion, this ability to see the railhead because of the lighting on the station was significant as indicating what could have been seen by the driver from the point at which, or shortly after, there was a line of sight to where the Plaintiff was situated. This conclusion is highlighted by evidence that the driver gave. 21The driver's evidence was that he first saw something which he assumed to be rubbish at about 100 metres from the object. As I have already indicated, that distance could only be an estimate, and the driver cannot be criticised if it lacked precision. What is of greater significance is not when it was that he saw the object but when it is likely that he could reasonably have seen the object. 22His evidence was this. In his statement of 12 April 2012, prepared as his evidence in chief in the proceedings, he said that after coming around the corner before Mortdale station he noticed an object on the line approximately 100 metres ahead of him. He said (paragraph 21): The object was in the shadows between the platform edge and the railhead, and looked like rubbish on the side of the track. He said when he was approximately 50 metres from the object it moved, he realised it was a person and he applied the full emergency brakes. 23In his statement made to the police on the night in question he said: At the approach end of Mortdale platform I noticed what appeared to be a foreign object on or adjacent to number 2 platform on the line which was approx 100m ahead of me. The train was slowing in preparation to stop at Mortdale. As I got about 50m from the object I realised it was a person. He appeared to be laying down between the railhead and the platform. It was when he moved I realised it was a person. 24In a statement made for RailCorp's investigation on 5 August 2009 he said: [25] At about 100 metre from the departure end of Mortdale platform, I noticed an object adjacent to number 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 railhead. The railhead 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. (emphasis added) 25Mr Timu (the driver) said in his oral evidence that the references in paragraphs 25 and 26 of that statement to 100 metres from the departure end both were a reference to the country end of the platform, that is, the end of the platform furthest from Sydney and from where the train was travelling. 26In cross-examination he gave this evidence: Q. We've seen some DVD taken from a train coming into Mortdale station. Do you agree with me that the rail tops are shiny? A. Yes, I do. Q. And accordingly you would always be able to discern where there is any decent light source at all, you would always be able to discern the path of the rail? A. Yes, you would. Q. You understand what I mean by sight line, the moment when there is an uninterrupted sight between the position at which you are and the position of something else? A. Yes. Q. Did you notice that material beside the line immediately it was within your sight line? 27That question was objected to by the Defendant's counsel but, after argument, I allowed the question and the following evidence was given: Q. Do you understand the question, Mr Timu? A. I do understand the question. Q. What's your answer? A. The answer is no, I did not. Q. How long had you travelled from the time you had a clear sightline to the position where the object was before you noticed it? A. My estimate would be about 100 metres from the object itself. Q. Does that mean from the position where you had a clear sight line to where it was, that you travelled from that point to a point which was about 100 metres from the object before you noticed the object? A. I'm not sure of the way you phrase the question. My answer would be that I was a hundred metres away from the object before I noticed it. Q. Well, can you help us by telling me this. What is your estimate of the distance you were from the object, knowing what you now know, knowing where the object was because you later noticed it? How far away were you from the object when you first had a sight line of it? Do you understand? A. I do understand. I don't know, to be honest. Q. Well, was it half of a hundred metres? A. Well, I don't know. 28He then gave this evidence: Q. Are you able to tell us any reason why you did not see the object on the line before you did? A. I saw the object when I did. That's all I can say. TOOMEY Q. You said in the statement you made on 5 August 09 "At about 100 metres from the departure end" (Paragraph 25) "of Mortdale platform I noticed an object adjacent to number 2 platform on the line." I think you explained to us that the object was about a hundred metres from the departure end, is that correct? A. That's correct, yes. Q. How long is Mortdale station? A. Approximately 163, 165 metres. Q. And then you said "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 it was in that area, right? A. Correct. 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. 29A little later this evidence was given: 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. 30Then, significantly, he gave this evidence: 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. Mr Timu, 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 don't 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. ... Q. Did you have not a moment's thought as to the possibility that this thing sticking across the rail head interrupting the bright line of the rail head, might be human? Did it not occur to you for a fraction of a second? A. I didn't recognize it as being human, no. Q. But you knew it was something which interrupted the bright line, you knew it was an object intruding into the permanent way? A. Yes. Q. Right under a platform used by people? A. Yes. Q. Have you had any instruction from Rail Corp at any time as to what you should do if you saw material on the track, whether it was human material or otherwise? A. Specifically to that question, no one has actually ever said to me, if there is anyone in front of you, and there is a danger to persons health or their life, stop the train, because that's what you are going to do. So as far as a human person, obviously, they have never said anything about that because you are not going to do it. Q. No, I am going a little further than that. You see, clearly there can be no doubt that, had you recognized it was a human being, you would have done whatever you could to stop, instead of there being in the circumstances a crucial delay between you seeing it, recognising it was a human being, and then attempting to stop. What I am saying to you is, were you told at any time that if you saw material on the track, and you were not able to exclude the possibility that it was a human being, that you should then stop immediately? A. I don't remember ever been told that, no. HIS HONOUR Q. Were you ever given any instruction about what you should do if you just saw rubbish on the line? A. Specifically, no. (emphasis added) 31Finally, he gave this evidence: Q. What was the movement you saw which made you realize it was a human being? A. I don't think I could describe the movement. The movement attracted my attention back to it, the position of the object. And I realized it was I realized it was something that was alive, you know, living, and that's when I reacted. Q. You said it attracted your attention back to it because in fact you had stopped looking at it, hadn't you? A. Yes. Q. Because you were concentrating on the approach end of the platform for the purpose of positioning the train? A. The departure end, the country end, yes. Q. So you saw the material there, you looked away from it, then a movement attracted your attention back to it? A. Correct. Q. And there would, of course, have been some time period between your attention being attracted by the movement, and you moving your eyes back from the end of the platform back to where the rubbish was? A. Yes, I would imagine that a very brief moment. Q. Yes, but there would be some time period, brief as it may be? A. Probably, yes. Q. When you moved your eyes back to it again, you would assess, would you not, before acting? A. My memory of the event is, the movement caused me to believe immediately that it was a person, or there was something alive, I couldn't tell what it was. And I reacted as quickly as I possibly could. (emphasis added) 32What that evidence makes clear, in my opinion, is that Mr Timu saw an object which was across the railhead. Further, the DVD makes clear, that the whole of the railhead was visible because it reflected the lights from Mortdale station from the time that Mr Timu first had a sight line down the full length of the platform. Most significantly, Mr Timu's evidence shows that although he perceived an object on the railhead (and probably between the railhead and the platform) he did not keep his eyes on the object, and his attention was only drawn back to it when it moved. 33The experts called by each side (Mr Fredrick Hespe for the Plaintiff and Mr Ross Mitchell for the Defendant) prepared reports, met in conclave, prepared a joint report and later refined the joint report to prepare what ultimately became the joint report put forward in the proceedings (exhibit A2). There was only minor disagreement between them in relation to the matters contained in the joint report. In that regard both the experts and the parties were prepared to agree on some compromise figures without in any way impairing the integrity of their opinions. 34The following matters were ultimately agreed in the joint report: (i) The distance from the Sydney end of the platform to the point of impact was 90 metres; (ii) The front of the train stopped 25 metres beyond the point of impact; (iii) The emergency brakes were applied 81.25 metres (Mr Hespe) or 84 metres (Mr Mitchell) prior to the stop location. As a result of the agreement in (ii) above, the emergency brakes were applied 56.25 metres (Mr Hespe) or 59 metres (Mr Mitchell) before the point of impact; (iv) The emergency brakes were applied 12.61 seconds before the stop location. At that time the train was travelling at 11.9 metres per second. (v) The line of sight (because of the curvature of the line and the stanchions) was 143 metres (Mr Hespe) or 139 metres (Mr Mitchell). The experts agreed 141 metres was appropriate. (vi) The critical distance for the application of the emergency brakes (the distance in which the train could stop immediately before striking the Plaintiff) was 105 metres (Mr Mitchell) or 102 metres (Mr Hespe). (vii) From the first line of sight there were 2.89 to 3.12 seconds (Mr Hespe) or 2.68 to 2.91 seconds (Mr Mitchell) before the critical point was reached. (viii) A reaction time of 1.15 seconds was accepted by the experts based on expert evidence from another witness who was not required to give oral evidence. 35The main point of contention between the experts was what, in their opinions, the driver was able to see by reason of the darkness of the night and the extent of the lighting. In particular, Mr Mitchell relied upon a number of photographs that he took from the driver's cabin of a train that was stopped at various distances from the point of impact. The photographs were said to show what would have been able to be seen by the human eye from the position of Mr Timu in the driver's cabin. They were also said to show the effect of the platform and the effect of the lighting on the platform and the track. 36The real difficulty that became apparent from looking at these photographs was that, although Mr Mitchell agreed that at points 94 and 56 metres from the point of impact it was not possible to see the effigy which had been placed in the position of the Plaintiff, at those points, both objectively demonstrated and subjectively accepted by Mr Timu, he was able to see an object on the line. 37It is also not without some significance that the Plaintiff was wearing a white t-shirt and dark shorts. Mr Mitchell agreed that the colour of his skin assisted also in the refecting of light as well as the white t-shirt. 38The further matter of significance is that, as Mr Mitchell agreed, the direction in which Mr Timu was looking would be straight down the line towards the end of the platform because that was his target point, to bring the train to a stop at that position. 39Exhibit G was a very useful table prepared by Mr Mitchell but taking into account the small differences between his opinion and the opinion of Mr Hespe. I did not understand Mr Hespe to dissent from the figures contained in the document. What the document shows is that at Mr Hespe's first line of sight there were 6.38 seconds before the emergency brakes were applied. On Mr Mitchell's line of sight there were 6.17 seconds. After the emergency brakes were applied 6.21 seconds passed to the point of impact. 40A viewing of the DVD showing the CCTV footage demonstrates that the Plaintiff fell onto the line between 3.05.14 and 3.05.15am. He was struck at 3.05.45am. 41Using the times in exhibit G it can be concluded that at 3.05.32 the driver had a line of sight to the Plaintiff (3.05.45 minus 12.59 or 12.38). At that time the CCTV shows that the Plaintiff's left leg was clearly over the railhead. The left leg remains over the railhead for more than the 6.38 seconds available to the driver to apply the emergency brakes. The Plaintiff's left leg necessarily interrupted the bright line of the railhead as Mr Timu accepted (see the extract of the transcript in para [30] above). For the whole of the time the Plaintiff was in Mr Timu's line of sight there was no satisfactory reason for Mr Timu not to have observed at least an object across the railhead. 42The Plaintiff submitted that because the driver underestimated the distance of 50 metres at the point at which he realised the object was a human being he is likely to have underestimated when he said he first saw the object at 100 metres. The Plaintiff submitted that if he underestimated by the same distance he would have had the time to apply the emergency brakes and avoid hitting the Plaintiff. 43It does not seem to me safe to conclude that because one distance was underestimated by a particular length another distance would be similarly underestimated. There was expert evidence that wrong estimates were likely at a greater distance than at a shorter distance but whether those wrong estimates were likely to be underestimates or overestimates was not made clear. 44I consider that the driver did, however, underestimate the distance at which he first observed the Plaintiff on the line. That is because the object was across the railhead for the whole time it was within his line of sight. I consider that it is more likely he first observed the object at or very close to his line of sight (141 metres). He did not react to it because, as he said, he did not know what it was - it just looked like rubbish. 45If 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.

Breach of duty 46In Public Transport Commission (NSW) v Perry [1977] HCA 32; (1977) 137 CLR 107 a passenger at a railway station suffered an epileptic attack and fell unconscious onto the rails where she was struck by a train. Although the case was chiefly concerned with whether the Plaintiff was a trespasser by being on the rails (rather than the platform), and whilst the subsidiary issue was whether there was sufficient evidence on which the jury could have found for the Plaintiff (as it did) the case has some relevance to the present facts. 47The train was making its way from Killara to Lindfield station where the Plaintiff had fallen. The driver said that when he was about 300 yards to the north of the platform he saw something on the line. At that point he had an uninterrupted view of the platform. He had already started to apply his ordinary brakes for the purpose of making a normal stop at Lindfield station. He thought the object on the line was a large piece of brown paper although the Plaintiff was wearing a white dress with purple stripes. A man who had seen the Plaintiff fall ran down the edge of the platform for about 60-80 yards waving his hand and his briefcase to attract the driver's attention. The driver did not notice this man. He travelled for a further distance, which he estimated to be about 100 yards, before he realised that what he could see on the line was a person. He then applied the emergency brakes but the train struck the Plaintiff and travelled for about a car length before it stopped. 48The Judges of the High Court (Barwick CJ dissenting) thought that there was sufficient evidence upon which the jury could find that the driver was not keeping a proper lookout and was therefore not taking reasonable care. 49Stephen J said (at 141 [18] and [21]): Rail transportation has been a feature of our society for more than one hundred and twenty years and the fall from the platform, like the level crossing accident, is one of the classic hazards which every child is warned of and of which no railway authority can be unaware. ... What the [Public Transport] Commission must do to satisfy its duty will depend upon what may reasonably be expected of it in all the circumstances. It would, for example, be unreasonable to require it to run its trains at such a low speed as to enable them to stop immediately should persons suddenly fall directly in front of a train. But it is quite another thing to require only that those who drive trains should keep a proper lookout on the track ahead, something which is no doubt in any event essential for the safety of the train and its passengers. 50Mason and Jacobs JJ said (at 148 [13]): There was in our opinion evidence upon which the jury could on each of these inquiries reach a conclusion favourable to the respondent. The driver of the train gave evidence that he was on the look-out all the time, ready for any emergency. He agreed that an emergency was more likely to occur at a station than on the open line. He knew that quite often people fell on to lines. The driver observed something on the line when he was 300 yards from the platform of Lindfield station. He thought it looked like a large sheet of brown paper, but it was something which ought not to have been there, and it indicated to his mind the possibility of an emergency. It was something which potentially created an emergency, a hazard. It was open to the jury to conclude that in these circumstances a man in the position of the driver, knowing that people quite often fell on to the lines, would ordinarily have suspected that the object might well be a human body. The jury could then proceed to consider whether the driver of the train thereafter acted reasonably. The driver had already commenced the application of the service brake, an application sufficient to stop the train at Lindfield station. 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. This may have been at a distance of two hundred yards from the platform but the jury may have concluded that it was much closer. 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. Here was an object on the lines beside a railway platform at a busy time in the morning. All that the driver needed to do in order to ensure that, if it was a person who had fallen from the platform, then that person would not be injured was to apply his brake to the next stage by a further service application, so that the train would have been capable of being stopped at the northern end of or partly along the platform. (emphasis added) 51The Plaintiff drew attention to the judgment of McColl JA (with whom Macfarlan JA agreed) in Mobbs v Kain [2009] NSWCA 301 and to the very thorough analysis her Honour made of a large number of decisions involving speed and reasonable care in motor vehicle accidents at [58] - [92]. However, whilst some of the matters referred to by her Honour might apply analogously to a railway accident, generally speaking the considerations involved in the latter are different. 52A train driver can reasonably drive without regard for accidents involving other trains and, ordinarily, without the frequent sort of incidents which are likely to occur on a road even with a moderate amount of pedestrian or vehicular traffic. A train driver does not have to steer a train and does not have the problem of intersections and unexpected changes of traffic lights. The principal concerns that a train driver might be expected to experience would be objects or people on the track including a possible incident at a level crossing. 53On the other hand, a train driver would be well aware that a collision between the train and an object which might derail it is likely to cause injury, serious injury or death to a number of persons and that a collision between the train and a human being would almost inevitably result in serious injury or death to that person. 54In 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 Mr Timu accepted, it seems to me that Mr Timu breached his duty of care by not taking emergency action when he first saw the object and did not know what it was. Further, since the object must have been visible on the railhead from the moment it came into Mr Timu's line of sight, he breached his duty of care by not taking emergency action at that earlier point, again, in circumstances where he did not know what the object was: Perry at 148 [13]. 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. 55If 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. 56I bear in mind in s 5B Civil Liability Act 2002. The risk of injury to a person or derailment if the object was hit was foreseeable, the risk was not insignificant and I consider that a reasonable person in the driver's position should have observed the object on the line when it first came within his line of sight and applied the emergency brakes at that time. This is because of the likely seriousness of the harm which would occur if the object was a person and might occur if it was an object that would derail the train. 57In addition to those breaches on the part of Mr Timu, 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. 58Mr Timu's evidence was that he was not given any instructions as a train driver about what he should do if he saw rubbish on the line, nor what he was to do if he saw an object and could not exclude the fact that it was a human being. 59There was also evidence from Mr Stephen Scott, the Acting General Manager of Operations of RailCorp in the form of a letter to RailCorp's solicitors. In that letter Mr Scott said this: [7] As at the date of the Plaintiffs accident (3 September 2006) and subsequently, train drivers were not provided with instructions or advice that the emergency brakes on metropolitan trains operating within the Sydney Railway Network should be applied immediately once something is noticed on the line, whether the object is noticed within the region of a passenger platform or not. [8] The decision to apply emergency brakes in such circumstances is left to the discretion of each train driver. [9] The relevant responsibilities of train crews (including train drivers) are set out in the Training Operations Manual Notice dated 25 April 2010 (TOM3), a copy of which is annexed at Appendix 2. There is no blanket protocol or guideline requiring train drivers to immediately apply emergency brakes once something is noticed on the line. In fact, at page 5 of TOM3, drivers are specifically instructed to 'not stop between stations or out of course unless necessary for safety". [10] Although TOM3 only came into force as at 25 April 2010, the same protocol was in place as at the date of the plaintiffs accident. [11] There are three principle (sic) reasons as to why train drivers are not provided with instructions or advice to apply emergency brakes on the train immediately once something is noticed on the line. Before addressing these three reasons, it is necessary to provide some detail as to the size and nature of the Sydney Metropolitan Area rail network and the associated passenger activity. Annexed at appendix 3 is a compendium of city rail travel statistics which were current as at 30 June 2010 and which were prepared by RailCorp Market Development and Research Strategy & Service Development personnel. The compendium contains data on rail passenger activity in the city rail area and information on city rail users. Statistics are also included on the rail network and rail services. [12] The three principle (sic) reasons why train drivers are not provided with instructions or advice to apply emergency brakes immediately once something is noticed on the line are: 12.1 Safety concerns. 12.2 Adverse impact to service availability. 12.3 Increased repair and maintenance costs. 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. Mr Scott also provided some further information concerning the adverse impact on service availability as well as costs and maintenance arising from the application of emergency brakes. 60The document referred to as TOM 3 relevantly said only this: Professional driving Drivers must: ... keep the train under control so that it can be stopped by applying the automatic air brake, if required. not stop between stations or out of course unless necessary for safety. 61Mr 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. 62Given what was said by Mason and Jacobs JJ in Perry (at 148 [13]), that a lack of reasonable care might be demonstrated by the failure of the driver to take any action until he positively identified an object on the line in front of him as a human body, it is perhaps surprising that the instructions to drivers do not at least include some guidelines or requirements in such an event, particularly if it is dark and/or clear vision is or may be impaired.

Intoxication 63The issue of the Plaintiff's intoxication was raised. The Defendant relied on s 49 Civil Liability Act as a defence to the claim. It is necessary, therefore, to consider this issue and to determine, if intoxication is found, the effect of this section on the Defendant's liability. 64The Plaintiff is not able to remember anything about the night in question after he was walking up the steps at Mortdale station. He said that he was not intoxicated prior to that time having only drunk the three long necks of beer. 65In my opinion, the evidence points strongly to the fact that the Plaintiff was intoxicated, and was so intoxicated that he first fell onto the line and thereafter did not have sufficient comprehension either to try to remove himself from the line or at the very least to ensure that no part of his body protruded over the railhead. There is a distinct likelihood that if the whole of his body had been between the railhead and the platform he would not have been injured or would not have been injured to anything like the extent he sustained. 66The matters which cause me to think he was intoxicated to the extent I have found are these.

(a) Police assessment 67On his own evidence he had drunk three long necks of beer in the eight hour period. Bearing in mind the Plaintiff's admitted past involving the extent of his alcohol consumption, the three long necks were not likely to have left him in an intoxicated state by 3:00am. However, he had been asked by his friend Mr Sanders to leave his dwelling because the Plaintiff had an argument with someone in the premises. The police interviewed Mr Sanders about two hours after the accident at about 5.00 am. The information was entered in the COPS report. That report refers to the Plaintiff having been to the home of his friend Daniel Sanders until about midnight. It goes on to say: Whilst at the location Sanders states that King consumed a large amount of alcohol placing him in a highly intoxicated state. Due to his intoxicated state King was asked to leave the location by Sanders. King complied with this request. 68The Plaintiff's response to that matter was twofold. First, he pointed to part of the COPS record where the following appeared: Did this person consume alcohol prior to this incident?: Not known Level of intoxication: N/A Where did the person have their last drink? N/A 69That section of the COPS record was completed by Sergeant Vergana who was the investigating officer. His explanation for those answers was that he did not know anything about the Plaintiff's alcohol consumption because, rather surprisingly in my opinion, he did not ask the Plaintiff. He said that if he had observed some signs of alcohol he would have noted them. However, he was asked if he would have regarded intoxication of the Plaintiff as being relevant to the occurrence and he said that he would not because his main focus was on having an ambulance and attend to him. In my opinion, the police officer's evidence does not detract from what he was told by Mr Sanders on the night in question. 70The second matter the Plaintiff points to is that for reasons that nobody could explain or suggest Mr Sanders presented himself at Hurstville Police Station on 22 June 2009 (almost three years after the event) and made a further statement. That statement said this: [4] Myself and my flatmates had been drinking probably since sometime in the morning. I can't exactly remember. Back then I was fairly heavy drinker although I do not drink now. [5] From memory a friend of mine Shane King arrived at the boarding house at approximately 9pm. Whilst at the boarding house he had about one or two drinks. He wasn't at the place for long when he became involved in a verbal altercation with Saad Arachi. Saad lived in the house at the time. I broke the argument up. Not long after doing this Shane left the house. [6] A friend of mine Brad Parker walked Shane from my house to Hurstville Train Station so as Shane would not get into anymore fights. I did not see Shane again until later the next morning at St George Hospital. Police rang me at about 3\0300hrs. I went to Hurstville Police Station and the Police drove me to St George Hospital. 71I do not place much store by this statement for these reasons. First, a statement made contemporaneously is more likely to be accurate than one made almost three years after an event where a witness has time to think and may have motivations for having a different view of events. Secondly, the statement is inconsistent with the Plaintiff's own evidence which was that he arrived at Mr Sanders' place at about 5:00pm and had three long necks of beer, not one or two drinks. Thirdly, it was about six hours, on the Plaintiff's account, before he had the argument with the other person in the premises and not a short time. On the other hand, the statement in paragraph 6 that a mutual friend walked the Plaintiff to Hurstville station "so as Shane would not get into anymore fights" is at least consistent with the notion that the Plaintiff was somewhat intoxicated. 72It should be noted that Mr Sanders was not able to be located to give evidence. Enquiries showed that he had been in prison in the meantime but a number of other efforts to find him subsequently proved fruitless.

(b) Medical and ambulance records 73In the ambulance notes for the night of the accident the section headed "Patient Incident History" includes the following: Pt states he has been drinking a lot of beer tonight, denies drug use. 74The Plaintiff agreed that "a lot of beer" would be a lot more than three long necks of beer. 75There is also an entry in the hospital notes recording that he had drunk alcohol in the last 12 hours but there was no alcohol on his breath. Under the heading "Doctor's description of incident" the following appears: From police after r/v CCTV: - Appeared intoxicated on train platform - fell onto train tracks. ... 76I do not think I can place very much weight on that entry. Sergeant Vergana, who had noted alcohol being involved by reason of what Mr Sanders told him, was not asked if he was the police officer who formed the view that the Plaintiff was intoxicated after reviewing the CCTV. 77There is a further entry at 5:30am in the hospital notes which appears to read: Doesn't smell of alcohol. In the light of the evidence of Professor Graham Starmer, a toxicologist who specialises in matters including intoxication from alcohol, this entry is no indication that the Plaintiff had not been drinking - simply that the alcohol had passed out of his stomach as would be expected by that time. 78There is a further record in the hospital notes by someone from Alcohol and Other Drugs Service. It is apparent from the notes dated 4 September that they were made at or after the time of an interview with the Plaintiff. The notes say in part: Admitted [because of] accident in train station after intoxicated (sic). Substance use history: (1) alcohol: stated that he does not drink regularly for the last 2 mths. Binge drink over weekend.

(c) The Plaintiff's behaviour 79The Plaintiff's account of what he did, where he went, his estimates of time and distances between leaving Mr Sanders' place and arriving onto Mortdale station are at least consistent with a person affected by alcohol. His concern was said to be about the bus timetable. However, he did not go to the bus stop to look at the timetable but, rather, he asked persons who happened to be in the locality. He engaged in conversation for 15-20 minutes with a couple said to be dining at an unnamed restaurant between midnight and 1:00am. 80On his account he had walked at least halfway to his friend's place but when he became tired he decided to return to Mortdale station to make a less than straightforward train trip to Summer Hill (a train to Central or Redfern and then another train to Summer Hill) in circumstances where he had no idea if trains would still be running because of the lateness of the hour. His estimate of having walked about five kilometres towards his friend's place was demonstrated to be wildly inaccurate when he marked on a map the point at which he decided to turn back to Mortdale station. It was a park near a service station. That park was only three blocks from the station and was less than a kilometre from it. 81Finally, there was no explanation for why the Plaintiff was on the side of Mortdale station for trains going in the opposite direction to where he was intending to go (to Summer Hill).

(d) The CCTV footage 82The CCTV footage showing the Plaintiff on the station and falling onto the line is, particularly in conjunction with Professor Starmer's evidence, consistent with intoxication. Professor Starmer said that unsteadiness is to be found in the forward-backward movement when a person is intoxicated. Whether, as appears possible, the Plaintiff was actually crouching down to vomit onto the railway line, or whether he was simply so unsteady on his feet at the edge of the platform, the fact is that he fell onto the line and, although not unconscious, lay there moving his left leg on and off the top of the railhead. 83Professor Starmer calculated that if the Plaintiff had only drunk three long necks of beer between the hours of 5:00pm and midnight his blood alcohol content at the time of the accident would have been in the order of 0.021g/100ml. At a maximum it might have been 0.075g/100ml. Professor Starmer was of the opinion that that blood alcohol concentration was not consistent with the Plaintiff's observed behaviour on the platform before the accident. 84Professor Starmer said that one of the most noticeable effects of alcohol intoxication is that of staggering gait. The most prominent body sway occurs in the antero-posterior plane, that is to say, in the forward and backward movement. That evidence of Professor Starmer would be consistent with the way the Plaintiff fell onto the track.

(e) Evidence from the driver and the guard 85Both the driver, Mr Timu and the guard, Ms Baartz, said that when they were talking to the Plaintiff when he was trapped under the train there was a smell of alcohol around him. They did not assert that it was on his breath, only that they could smell alcohol whilst they were there. This evidence was challenged in the light of Professor Starmer's expert opinion that it would not have been possible to smell alcohol in those circumstances. It was also challenged by suggesting (faintly) that there had been some collusion between them particularly when their statements were taken by the RailCorp investigator. 86Although I have found that the driver breached his duty in a number of respects I consider that as a witness he was endeavouring to tell the truth. I accept that he would have a motive for suggesting fault on the Plaintiff's part because of his own responsibility not to run over the Plaintiff. I consider his evidence was truthful. 87I also consider that the guard was telling the truth when she gave her evidence about smelling alcohol in the vicinity of the Plaintiff. Apart from solidarity with the driver she had no motive not to tell the truth. Although it was suggested to her, in a somewhat elliptical way, that her evidence about smelling alcohol was related to her concern to protect Mr Timu, she denied this. I accept her denial. Despite Professor Starmer's evidence I consider that I should accept the evidence of the two persons present who spent some time talking to the Plaintiff whilst waiting for the emergency services. 88I do not accept that the Plaintiff drank only three long necks of beer in the period prior to this accident. In my opinion, on the balance of probabilities, the Plaintiff was considerably intoxicated, and it was that intoxication which was responsible for his presence on the railway line and his failure to remove himself from the position of danger that he found himself in. The question is whether this intoxication amounts to a defence to the claim for negligence. 89In the first place, it should be noted that s 50 CLA does not apply to the present accident. That is because the provisions of the Act (except those provisions mentioned in s 3B(2)) do not apply to motor accidents. Although the present accident involved a train that is a motor accident by virtue of s 121 Transport Administration Act 1988. 90Under s 3B(2) s 49 CLA applies to a motor accident. That section provides: 49 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person. (2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision. 91The section is a difficult one as was recognised by all of the Judges in Thomas William Vale v Timothy David Eggins [2006] NSWCA 348 although Bryson JA dissented in the result. 92In that case the Plaintiff was intoxicated and was staggering across Anzac Parade at Chiefly. The Defendant, who was driving his car, slowed down to a speed which was well within the speed limit but he struck the Plaintiff when the Plaintiff suddenly changed direction and moved in front of his car. The Trial Judge found a verdict for the Defendant. The Trial Judge's views on s 49 and Bryson JA's judgment in respect of them appear in the following passages of Bryson JA's judgment: [67] The Trial Judge discussed the operation of s.49 extensively (Judgment [47]-[61] Red 32-36) and expressed some views which I find rather sweeping. Her Honour said (Judgment [53] Red 34): "The policy rationale behind the introduction of s.49 is clear, especially when one has regard to the comments of Professor Starmer about how people who are drunk behave unpredictably on the roadway ... The rationale behind s.49 is to prevent such persons claiming compensation." Her Honour also said at Judgment [60] (Red 36) "Where a road user behaves unpredictably on the road in moving back into the path of an oncoming vehicle because his intellectual and physical actions have been affected by alcohol, the intention of section 49 is that the plaintiff is not entitled to recover damages." In my respectful view the Trial Judge was not correct in saying to the effect that the rationale behind s.49 is to prevent people who are drunk and behave unpredictably on the roadway from claiming compensation, and in saying that the intention of s.49 is that a road user who behaved unpredictably on the road because his intellectual and physical actions have been affected by alcohol is not entitled to recover damages. [68] Before turning to address s.49 her Honour made (Judgment [53] Red 34) a statement which I have no difficulty with. Her Honour said "The result is that the defendant owes the same standard of care to a plaintiff who is drunk that he would owe if the plaintiff was walking normally across the roadway". This, in my view, was correct, and made exposition of s.49(1)(c) unnecessary for deciding the issues. Whatever difficulties the construction or the application of s.49(1)(c) presents, it does not appear to me to present any real difficulty for disposition of this appeal. (The statement about walking normally was not a statement or finding about the facts of the present case.) [69] I do regard this as quite clear: that s.49 does not have the effect that no duty of care is owed to a person who is intoxicated, and does not have the effect that a person who is intoxicated is not entitled to recover damages for that reason. It is not the meaning of s.49(1)(c) that the standard of care is lowered in the case of a person who may be intoxicated, in comparison of the standard of care in relation to a person who is not intoxicated. If and insofar as the Trial Judge expressed such a view, it has my disapproval. As there was no finding, and no contention that the respondent knew or should have known that the appellant was not sober, s.49 has no real importance for disposition of these proceedings. 93Beazley JA (with whom McColl JA agreed) said: [24] Bryson JA has given consideration to the provisions of s 49 at [65]-[67] and concludes that her Honour's approach to the section was erroneous. Save for one matter with which I deal shortly, I agree with what his Honour says, but would add the following comments. Both the appellant and the respondent agreed that s 49 deals with the effect of intoxication in respect of both the duty and standard of care owed to the intoxicated person. They both agreed that it does not create a bar to recovery as occurs if the provisions of s 50 apply. That section provides, relevantly: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated." [25] Section 50 is not incorporated into the Motor Accidents Compensation Act 1999 (NSW). It is apparent, in my opinion, that her Honour appears to have misconstrued s 49 and in effect, reached a conclusion that may have been warranted by s 50 of the Civil Liability Act. However, that section has no application. It is clear that her Honour's approach was erroneous. [26] The one point of reservation I have in relation to the observations of Bryson JA is his statement at [68], where he said: "Before turning to address s.49 her Honour made (Judgment [53] Red 34) a statement which I have no difficulty with. Her Honour said "The result is that the defendant owes the same standard of care to a plaintiff who is drunk that he would owe if the plaintiff was walking normally across the roadway". This, in my view, was correct, and made exposition of s.49(1)(c) unnecessary for deciding the issues. Whatever difficulties the construction or the application of s.49(1)(c) presents, it does not appear to me to present any real difficulty for disposition of this appeal. (The statement about walking normally was not a statement or finding about the facts of the present case.)" [27] I do not understand his Honour to mean in this paragraph that a driver in the position of the respondent in this case could ignore that which he saw in front of him, that is, a person stumbling, on the assumption that that person might be intoxicated, and thereby control the speed and direction of his vehicle on the basis that the person was not intoxicated. If that is what is meant, I do not agree with his Honour's observations. However, as I have said, I do not consider that that is what either the trial judge or Bryson JA intended. Rather, as I understand it, no more is meant than that the standard of care is that of the ordinary prudent driver, acting reasonably, having regard to the circumstances as they occur. 94The Plaintiff, therefore, is not barred from recovery by reason of being intoxicated, save for a consideration of contributory negligence. Further, the judgment that I have made in relation to Mr Timu's breaches was based on the standard of care of the ordinary, prudent train driver and that standard of care was not affected by any intoxication which may be found.

Other defences 95The Defendant also relied on the provisions of ss 5F, 5G, 5H and 5I CLA. Section 5F, 5G and 5H deal with obvious risks with s 5G providing that a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk. Further, s 5H provides that a person does not owe a duty of care to another person to warn of an obvious risk. 96Senior counsel for the Defendant informed me that the pleading in relation to an obvious risk was an answer to the particular in the Statement of Claim of a failure to sound the horn by the driver. That particular was abandoned by the Plaintiff and the pleading in relation to obvious risk is no longer relied upon by the Defendant. 97Section 5I provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk, such a risk being the risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. 98No submissions were made about s 5I other than it being put that getting onto a railway line has an inherent risk of being run over by a train. That submission appears to me to be misplaced. Getting onto a railway line might amount to an obvious risk within the meaning of s 5F but an inherent risk, as I have noted, is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Section 5I does not seem to me to be engaged because I have found that the injury to the Plaintiff could have been avoided by the exercise of reasonable care and skill on the driver's part.

Contributory negligence 99The Defendant put forward a number of particulars of contributory negligence but, essentially, they amounted to the fact that the Plaintiff was on the railway line when he should not have been and it was said that the reason he was there was because he was intoxicated. The Plaintiff did not dispute that there had to be some reduction for contributory negligence but did not specify how much. Rather, the Plaintiff resisted the notion that he was intoxicated at all. The Defendant on the other hand said that contributory negligence should be higher than 50%. 100For reasons I have given I consider that the Plaintiff was intoxicated. It was the extent of that intoxication which caused him to be on the railway line and not to look after his own safety when he had fallen there. I consider that the contributory negligence was of a significant order and I find that the Plaintiff was 50% responsible for the accident.

Conclusion 101As noted at the beginning of this judgment, quantum was agreed at $1.3m. 50% of that figure is $650,000. Accordingly there will be judgment for the Plaintiff in the sum of $650,000. The Defendant is to pay the Plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2013