SRA v MAYLE

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/98 DC 7443/97 HANDLEY JA SHELLER JA BEAZLEY JA

STATE RAIL AUTHORITY OF NEW SOUTH WALES v MAREE JOSEPHINE MAYLE

NEGLIGENCE - passenger injured by projectile breaking window on train - foreseeability - whether injury reasonably foreseeable - whether protective screens should have been fitted - whether evidence supported findings

The respondent was injured when a projectile broke through the window of the "red rattler" carriage in which she was a passenger. She sued the appellant for negligence in failing to take reasonable steps to protect passengers from injury caused by projectiles launched at trains. The trial Judge found that the risk of injury was clearly foreseeable, that the degree of probability of such a projectile injuring a passenger was relatively high, and that protective screens should have been fitted to the windows. HELD , allowing the appeal: (1) The evidence did not support the finding that the degree of probability of a projectile hitting a passenger was quite high. (2) The evidence did not support the finding that the fitting of the protective mesh screens was a relatively simple solution with little inconvenience or expense. ORDERS (1) Appeal allowed with costs; (2) Judgment entered in the District Court set aside; (3) Substitute judgment for the defendant in the action with costs; (4) The respondent is to have a certificate under the Suitors Fund Act.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/98 DC 7443/97 HANDLEY JA SHELLER JA BEAZLEY JA

STATE RAIL AUTHORITY OF NEW SOUTH WALES v MAREE JOSEPHINE MAYLE JUDGMENT

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".

11 These issues were not further explored. The Judge thought that the fitting of the screens would not be a problem and invited senior counsel for the plaintiff to take the point no further in his cross-examination. However the feasibility of particular solutions to this problem called for something more than questions from counsel in cross-examination and a lay opinion from the tribunal of fact. The question called for appropriate expert evidence on which the Judge could base a finding and there was none. 12 The only carriages with the angled windows were the so-called red rattlers which had been introduced into service between 1926 and 1963. By June 1989 there were only 316 of this type left in service or some 20% of the total fleet of nearly 1,500 carriages. The problem affected only two windows at one end of each of these older carriages. The newer carriages were rectangular and did not have angled windows at the front. When two red rattlers were linked together there was a substantial space between the carriages which made it easier for a projectile to enter the gap and either directly or by ricochet strike one of the angled windows. The gap between the more modern carriages dating from 1964 was considerably less and it was difficult for a projectile to enter the gap. The side windows on all carriages were parallel to the line of travel and less vulnerable to breakage. 13 The feasibility of physically fixing mesh guards to these windows was not the only problem confronting the Authority at this time. During the 1970s it began to withdraw these single deck carriages from service and by the end of that decade approximately half had been retired. The new Tangara carriages were ordered in 1986 with deliveries to commence in October 1987, but they did not commence until April 1988. Deliveries were further delayed and only a limited number had been delivered by June 1989. However the Authority were able to withdraw 33 carriages of the older type from service during that year. In January 1992 the bulk of the remaining carriages were withdrawn and the last 36 were withdrawn in February 1993. 14 Annual suburban passenger journeys on the suburban railway service peaked at 281.4 million in 1955 and from then on declined steadily reaching 185 million in 1985. However at that stage and unexpectedly passenger traffic on the service began to grow rapidly and by June 1988 the annual figure had increased by 46 million passenger journeys. Passenger traffic continued to grow during the following year. Mr Cowling said that by June 1989 carriage utilisation levels were at their peak. As a result of these developments, and the delay in the delivery of the new Tangara carriages, the phasing out of single deck carriages originally planned for the mid 1980s had to be deferred. Mr Cowling said that during this period the Authority's workshops were fully utilised and it had to source repair and maintenance work with outside contractors in Broadmeadow, the State Dockyard Carrington, and Lansdowne Engineering in Taree. The red rattlers needed to be serviced more frequently and thus were more likely to be off the line and it was suggested that this provided the Authority with a reasonable opportunity to carry out the necessary modification work. When this was put to Mr Cowling he said: "It sounds so simple. The fact is that there were neither the staff available (or) … the places available they had to get them back into service so quickly". (194)

15 He said that in theory it would be a good time to do the work but not in practice. (195) In fact at this time the Authority had to bring carriages back into service that had previously been withdrawn. (196) 16 The presence of asbestos in the walls of these carriages had not been referred to in Mr Cowling's report which had been served on the plaintiff's solicitors in accordance with DCR Pt 28 r 8. Dr Coyle had not been cross-examined to suggest that asbestos was present and would be a problem, and the matter had not been led from Mr Cowling during his evidence-in-chief. It emerged in an answer to a question from the Judge. Senior counsel for the plaintiff objected to this evidence after it had been given, but the Judge allowed the answer to stand. During Mr Cowling's cross-examination senior counsel for the plaintiff said "I may well be moving for an adjournment to qualify an expert to deal with that (asbestos) problem if it is going to be of relevance in the case". At a later stage, during the cross-examination of Mr Cowling, the following exchange took place: "His Honour: Q What is it just tin plate the same as a car body is it? A bit thicker than that? A Very - more substantial than that, but yes it's essentially the same principle. Q But there are structural beams running there too … His Honour: Mr Agius, I haven't heard from Mr Biggins, but I can't - the proposition is that these grates could be put on the windows. I can't see any … Agius: Well if I don't have to deal with that then I won't persist in this line, but for the very first time in this witness's oral evidence we are told, not even in cross-examination of my expert, that there is a difficulty in fixing. His Honour: Well I'll assume - well you've heard what I've said. Agius: Alright your Honour, I won't persist with it then, thank you. His Honour: But that doesn't end the matter of course. Agius: Of course it doesn't. I know when I am being - -".

17 There was no further cross-examination and no case in reply. The plaintiff's counsel did not seek an adjournment to qualify an expert to give evidence on the asbestos problem, or the practicability of fitting mesh guards to the windows on these carriages. The result is most unfortunate. The evidence of the plaintiff's expert was received and accepted where he clearly lacked relevant expertise. The question of asbestos is then introduced by a question from the Judge without any prior warning to the plaintiff, either in an expert's report or in the cross-examination of her expert. The Judge then invites counsel to stop his cross-examination of the defendant's expert and counsel accepted the Judge's invitation. 18 On the evidence the injury to the plaintiff caused by the projectile which broke through the window was the first of its kind. During the previous 12 months the suburban railway network carried 246.1 million passenger journeys. The four earlier incidents disclosed in the evidence do not suggest that stone throwing at trains at this point or anywhere else was a significant risk to passengers. There was only one incident which involved physical injury and this was minor and had not been caused by penetration through a closed window. I have already held that the Judge's findings that the risk of injury in this situation was "clearly foreseeable", and the probability of a rock injuring the plaintiff "relatively high" cannot be supported. On the statistics for total passenger journeys the risk could fairly be regarded as infinitesimal. 19 The Judge said that Dr Coyle had pointed to "a relatively simple solution to the problem". He later said: "Mr Cowling also spoke about the danger of asbestos … it's a little unfortunate that Mr Cowling did not refer to that particular problem in his report but nevertheless it seems to me that 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".

20 He added that it seemed to him that it could not be said that to carry out the suggestion of Dr Coyle would be placing an undue burden upon the Authority, or that the inconvenience referred to by Mr Cowling in his report arising from the need for carriages to be available for the railway service was within the statement of principle of Mason J in Wyong Shire Council v Shirt (above). 21 It would be most unfortunate if this case were to be decided on an issue which arose by accident as a result of a question asked by the Judge, but it is not necessary to do so. The Judge could not properly find, on the basis of Dr Coyle's evidence, that "a relatively simple solution" was available to the Authority, or that the task of fitting windows with mesh "would (not) put the Authority to inconvenience and expense". The infinitesimal risk made questions of inconvenience and expense critical. Given the evidence of Mr Cowling about the pressure on the suburban railway service at the time, the question of inconvenience could not be brushed aside. 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. 24 The reasonableness or otherwise of the Authority's failure to take any steps to guard these windows must also be viewed against the existence of the order for the new Tangara carriages placed in 1986 with delivery due to commence in October 1987. It may well have been reasonable for the Authority to decide that the replacement of the old carriages with the new would be an adequate response to any perceived risk, and that no further expenditure on, or time out from service for, these old carriages was warranted. 25 In my opinion therefore the plaintiff's case failed on all the issues relevant to liability and consequently the appeal should be allowed. The following orders should be made: (1) Appeal allowed with costs; (2) Judgment entered in the District Court set aside; (3) Substitute judgment for the defendant in the action with costs; (4) The respondent is to have a certificate under the Suitors Fund Act. 26 SHELLER JA: I agree with Handley JA. 27 BEAZLEY JA: I agree with Handley JA.

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