1 HANDLEY JA: The respondent was a passenger in an electric train travelling west from Blacktown towards Doonside on the afternoon of 22 June 1989. Some projectile broke through the carriage window and struck her in the face. She was sitting next to a fixed window on the angled section which linked the side and front of a single deck carriage of the type known as a "red rattler". She suffered injuries to her left cheek and jaw.
2 The projectile, which was probably a stone or part of a brick, was launched from a reserve adjacent to the western side of the line. There was evidence that from time to time objects were placed on the rail tracks and stones were thrown at trains at this point on the line. Stone throwing at trains was a reasonably common occurrence.
3 The respondent sued the State Rail Authority ("the Authority") for negligence for failing to take reasonable steps to protect passengers such as herself from injury caused by projectiles launched at trains. Her action was heard by Herron DCJ who entered judgment in her favour for $371,122.
4 The Judge found that the risk of injury to passengers in a train from such a projectile was clearly foreseeable because the throwing of rocks etc at trains at this point on the line was well known to the Authority. He also found that the angled window next to the plaintiff was more vulnerable than the side windows because the forward motion of the carriage added to the effect of the impact of a projectile. The Judge then found:
"The degree of probability of a rock injuring the plaintiff in the circumstances was in my view relatively high".
5 There was no suggestion that the Authority had been negligent in selecting the glass used in the windows of these carriages. It was 5 mm thick, shatterproof, toughened and of an acceptable standard. Dr Coyle, the plaintiff's expert, suggested that the windows on the train, or at least these angled windows, should have been protected by prefabricated mesh screens fitted to the outside of the carriage in order to prevent projectiles coming through the window and causing injury to a passenger. The Judge considered that this was "a relatively simple solution to the problem". Having referred to the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8, he said:
"whichever way one looks at it it could not be said that the task of fitting the windows with such mesh was a particularly great one or was such that would put the Authority to inconvenience and expense and … such inconvenience and expense which would allow it to ignore the risk which I have found was foreseeable".
6 The Authority challenged these findings. There was evidence that the throwing of stones at trains at this point was "a reasonably common occurrence" and "an ongoing problem". The diary of the station master at Doonside from July 1984 to April 1987 was in evidence. It contained references to four incidents involving stones being thrown at trains. On two occasions stones appear to have gone through open windows; in another a window was broken, and in another a window and door were smashed. An incident on 21 April 1987 when a stone went "through" a window caused "a split" to the forehead of a passenger and damage to his glasses. There was no other report of injuries and the report of the incidents when windows were broken did not refer to injuries. Those reports do not suggest that the projectiles had penetrated the window glass.
7 The railway line at this point was at the top of an embankment a considerable height above the level of the reserve. The windows in the carriages were some 8.3 metres (27 ft) above the ground level. Stones and similar projectiles thrown by hand from the reserve would lose much of their force by the time they hit a train. The projectiles which broke windows were probably propelled by a slingshot or the like.
8 The plaintiff was not exposed, sitting where she was, to any risk that a projectile would come through an open window. There was no evidence that before June 1989 a projectile had broken through a window and caused injury to a passenger. The evidence did not support the Judge's finding that "the degree of probability of rock injuring the plaintiff in the circumstances was relatively high". The adequacy of the Authority's response to the known risks caused by projectiles being thrown or propelled at trains must be assessed on this basis.
9 Dr Coyle, who the Judge considered to be qualified to give relevant expert evidence, was by training a psychologist and ergonomist. In my judgment he lacked the expertise to give evidence on the degree of risk and the steps reasonably open to guard against it. He does not appear to have been aware of the structure of this type of carriage, and did not know that the windows on these carriages were not of a standard size. The window frames were not designed to carry an external mesh guard or equivalent as suggested by Dr Coyle. It emerged during the evidence of Mr Cowling, the expert for the Authority, that the walls of this type of carriage were lined with asbestos and that the unions had banned all work such as drilling in the walls that could release asbestos.
10 Confronted with this problem senior counsel for the plaintiff suggested to Mr Cowling in cross-examination that the mesh guards could be spot welded to the sides of the carriages. Mr Cowling agreed but said that the skin of the carriage was not intended for this, and that it would not be satisfactory or reliable. When asked why it would not be reliable he said:
"Because the type of body skin is not - you've not got any substantial framework. You're talking virtually of a thin skin wall on the outside, you're not talking of substantial body framing".