(See also Bryson JA at 457-458 in Lodge , supra).
37 Underpinning the defendant's submissions on the question of breach is the following statement of Mason J in Shirt (at 47-48):
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
38 It is desirable also to bear in mind what Gleeson CJ said in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 330:
"…in the context of the law of negligence, carelessness involves a failure to conform to a legal obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned. A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages?"
39 As I have found, the plaintiff deliberately opened the door and exited the train because he had missed getting off at Goulburn. As I have also indicated, that renders irrelevant the consideration of signage (which would not have stopped him) and the "fascinating construction" being exhibit O, which also would not have prevented the plaintiff from doing what I found that he did. Exhibit O is the buzzer system to which reference is made in the evidence. A person, having lifted the cover of the handle and thus activated the buzzer, would have made a noise: but the plaintiff still would have embarked on his perilous journey out of the railway car.
40 Before referring to the evidence on the issue that goes to the question of breach, I was referred by the defendant to some cases involving itself in which the conduct of the relevant plaintiff was, to say the least, extraordinary. In Robinson v State Rail Authority of NSW, Malpass M (unreported, NSWSC, 9 August 1996) entered a verdict for the defendant in circumstances where the plaintiff was injured when he deliberately hung out of the doors of a moving carriage and hit a stanchion adjacent to the track. Arguments similar to those raised in this case were put in relation to signage and "closing force bias" on the doors, each of which was rejected.
41 In State Rail Authority of NSW v Mayle [1999] NSWCA 388, a passenger was injured when a projectile broke through the window beside her and hit her in the face. There was no suggestion that the SRA had been negligent in selecting the glass used in the windows of the carriages. Rather it was suggested that some mesh screen should have been fitted to the trains to prevent such an event. In relation to the fitting of the screen (even if feasible) the court observed (per Handley JA at paras 22-23):
"22 There was also a question of causation which it seems his Honour completely overlooked. There could be no question of the Authority being bound to withdraw all of these 316 carriages from service at the one time and to keep them out of service until guards had been fixed to these windows. The highest the duty could possibly be put, and was put, was that the Authority should have fitted guards to the windows of these carriages progressively as they were temporarily withdrawn for maintenance or repair.
23 There was no evidence as to how long this process would have taken, and there was no evidence, other than the four incidents referred to, which would enable the court to fix the starting point for this process. There is therefore no evidence from which the court could determine the stage that this process should have reached by June 1989, and the probability or otherwise of this particular carriage having been fitted with mesh guards by that time."
42 Finally, in Rundle v State Rail Authority of NSW [2002] NSWCA 354, a 15-year-old plaintiff was injured whilst leaning out of a carriage window and spraying graffiti on the roof of the carriage. It was argued for the plaintiff that the windows were defective. Heydon JA, delivering the judgment of the court, stated (at para 38):
"…there is no true analogy between an injury suffered by a passenger using the carriage in the way it was intended and an injury suffered by the present plaintiff while carrying out a dangerous, foolhardy and reckless act in the course of which he was damaging the defendant's property, and thereby using the window for a purpose for which it was not intended."
43 In the face of the evidence called by the defendant, the plaintiff could not persuade me on the balance of probabilities, within the framework of the principles referred to above as to breach both by Mason J as his Honour then was and Gleeson CJ, that he had succeeded in making out a case.
44 The principal witness for the plaintiff was a Professor Joubert, whose reports were exhibits B and M.
45 I hold that Professor Joubert could not present himself as an expert on railways. Indeed the impression given is that he knew little about them, let alone the XPT in particular. He is not a member of relevant organisations, for example the Australasian Railways Association Inc, a railway technical society of the Institute of Engineers. He gave the impression of being unacquainted with relevant terminology as to "up" and "down" in track terminology. He was not familiar with staffing levels on the XPT in 1997. He did not strike me as having any knowledge about the details of the locking system that was included in the 13 carriages required by the SRA in 1993, or the processes that followed thereafter for the retrofitting of carriages and the installation of a whole new system on all doors throughout the XPT service.
46 I have already made some remark about his exhibit O, and it appears that he was less than accurate in his testimony to the court about certain testing operations.
47 Each of Professor Joubert's proposed "alternatives" was in my view successfully, articulately, rationally and reasonably "demolished" by a far more impressive witness, Mr Cowling. To the extent, for example, that it was the opinion of the Professor that "an automatic closing and locking door would have prevented the accident", Mr Cowling agreed but stressed, conformably with the evidence which in fact and thematically had been given that as at April 1997 there was no proven system, and what had already been implemented and fitted on the XPTs was proven to be unreliable and hence unsafe, and that he did not believe it would have been appropriate to have fitted the system then anticipated in 1997.
48 I was impressed by the candour of Mr Cowling and his knowledge of facts. In exhibit 8, the second report, he said:
"Since preparing my report dated the 21.8.97, the Defendant has retrofitted an automatic door safety interlock system to the passenger doors of all XPT carriages.
I made reference to a proposed door locking system in Part 11 of my report. This system like others before it was not implemented due to alleged technical difficulties.
The present system resulted from a tender submitted by an Australian company BAS Rail Vehicle Consultants Pty Ltd on 24.11.98. The system was completed at a cost of $1.3 million and fully commissioned on the entire XPT fleet on 22.10.2000.
The implementation of the present system offers reasonable protection for occupants in the event of fire. It also means that during transit, a fall from the passenger doors of a moving XPT carriage could not reasonably be envisaged.
Had this system been installed and operating correctly on the train in which Mark Langbourn travelled, the fall could not have occurred."
49 Of course what Mr Cowling says there is quite compelling - indeed it is obvious. But what was equally compelling was his analysis in the evidence that any system in mind as at 1997 simply had not been proven to be workable or reliable. The unreliability of the antecedent considerations are set out, inter alia, in exhibit 7 and Mr Cowling's testimony. Nothing that he there says persuades me that the non-implementation of that which was ultimately implemented was unreasonable (the system was unreliable in 1997) and I am persuaded that no "breach" has been established at this point.
50 A Mr Simpson was also called on behalf of the plaintiff as he, as had Mr Cowling, had been involved in the examination of a fatality involving a person who had come off an XPT. That person was a nine-year-old boy. Mr Simpson had expressed an opinion, having had regard to exhibit 7 (Mr Cowling's first report), that technically such door locks could have been very easily fitted as a retrofit or at the point of manufacture of the carriages well prior to 1997. Mr Cowling dealt with this aspect in the following persuasive terms (T196):
"…For all the reasons that I gave in my reports about the difficulties of retrofitting and of the very real difficulties involved in that, I say that is not a very realistic proposition. I come back to the problems being experienced in this time, 1995 to 1997, where it was shown there were real difficulties in retrofittings and these were not imagined nor were they unrealistic. So it is correct to say that trains could have been fitted with these and we know, for example, that the ones delivered in 1993 were in fact delivered with the compressed air-actuated bolts. Again we have seen with the best will in the world that it was done. It was still not practicable nor did they work.
Q. Mr Simpson proposed in his testimony that one way of dealing with the problem that you have identified about the potential loss of life in the event of fire was to have doors that were released. The locks were released when the train came to a stop and he proposed, firstly, at page 140 of the transcript, 19 June, line 15, a pneumatically operated bolt that would operate when the train was moving only and the notion that he expressed at pages 140 and 141 was when the train stopped then there would be an automatic release of the lock. What do you say about that proposal?
A. One of the real problems with that is you have the situation where people on board the train could then open the doors when it stopped for a signal in transit. So you are no longer dealing with the problems on transits. That problem is not related to loading or unloading on platforms. It is when the train stopped. Experience has shown and experience backed up with the UK with the HST trains where the bolts were fitted it was not reliable in releasing and the tolerances on the operation of the doors means that during the journey the doors tend to jam that type of lock in place and they are not reliable.
So dealing, firstly, with the issue of when it stops. That simply means that the train has stopped so people hop out for any reason. Then the second aspect is that it is not reliable anyway, the actuated lock."
51 Mr Shields was called for the defendant and gave detailed factual evidence relating to the history of the XPT and steps undertaken to introduce a safe system for the automatic locking of doors. Its straight-forwardness rendered Mr Simpson's rather simplistic "pneumatic bolt system" approach all the more unacceptable as a component that would discharge the plaintiff's onus of proof on the question of breach.
52 In the end, the following propositions could be stated: that the system ultimately installed would of course have made it physically impossible for the plaintiff deliberately to have jumped off the train. The system ultimately installed was in place of one which I am persuaded was recognised as being unreliable as at the relevant time, 1997, and that it was unreasonable for it or any of the possible alternatives by the plaintiff to have been adopted and installed.
53 None of what was proffered by the plaintiff in this case is sufficiently persuasive that a reasonable conclusion can be formed by the tribunal of fact that any one of them represents a "standard response" to be ascribed to the reasonable State Rail Authority placed in the defendant's position in the light of what is found to have taken place, namely in April of 1997 the 17-year-old plaintiff chose deliberately, and unaffected by alcohol or drugs or medication or sleep as I find it, to jump off the train because he missed getting off, as planned, at Goulburn.
54 I have made no mention of a factor that permeated the evidence of those who were proffered as experts, and that is what is fundamentally a dilemma: are passengers to be locked in or "contained" by a mechanism which prevents their escape in the event of fire or other catastrophe? There were references to rather horrendous events overseas. Mr Cowling was satisfied that the system ultimately adopted offered reasonable protection for occupants in the event of fire. To that extent the system decided upon and adopted after 1997 resolved the dilemma.
55 I will only add in a context unrelated to my reasons that this dilemma is still a current one and was referred to by the Honourable Peter A McInerney QC in his Final Report of the Special Commission of Inquiry into the Waterfall Rail Accident, vol 1, January 2005 at p 233ff.
56 Accordingly:
1. I find a verdict for and enter judgment in favour of the defendant.