State Rail Authority of NSW v Schadel

CITATION : State Rail Authority of NSW v Schadel [2001] NSWCA 394 FILE NUMBER(S) : CA 40753/00 HEARING DATE(S) : 15 & 16 August 2001 JUDGMENT DATE : 9 November 2001

PARTIES : State Rail Authority - Appellant Michael Raymond Schadel - Respondent JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 9442/98 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER :

COUNSEL : M J Neil QC & R B Page - Appellant D F Jackson QC & T J Clarke - Respondent SOLICITORS : Dexter Healey - Appellant Keddies - Respondent CATCHWORDS : NEGLIGENCE - intoxicated passenger on railway platform - apparently leaving platform - train allowed to depart - passenger came in contact with train and was injured - whether breach by railway of duty of care owed to passenger - on facts, no breach. ND Astley v Austrust Ltd (1999) 197 CLR 1; Brooks v London Passenger Transport Board (1947) 1 All ER 506; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 3; Cincinnati, N O & T P Rly Co v Marrs 119 Ky 954; 85 SW 188 (1905); The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40; Derek v Cheung [2001] HCA 48 at [13]; Dunn v Dominion Atlantic Railway (1920) 52 DLR 149; CASES CITED: Jones v Atlanta-Charlotte Air Line Railway Co 218 SC 537; 63 SE 2d 476; 26 ALR 2d 297 (1951); Moloney v Commissioner for Railways (1978) 18 ALR 147; Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141; Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Rosenberg v Percival (2001) 75 ALJR 734; St Louis-San Francisco Railway Co v Simons 176 F 2d 654 (1949); Warren v Coombes (1979) 142 CLR 531; Watson v George (1953) 89 CLR 409. DECISION : (1) Appeal allowed; (2) Set aside the verdict and judgment for the plaitniff and in lieu thereof verdict and judgemnt for the defendant; (3) Respondent pay the appellant's costs of the appeal and of the trial, and have a certificate under the Suitors Fund Act if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40753/00 DC 9442/98 SHELLER JA BEAZLEY JA GILES JA

Friday 9 November 2001 STATE RAIL AUTHORITY OF NEW SOUTH WALES v SCHADEL

Judgment 1 SHELLER JA: I agree with Giles JA. 2 BEAZLEY JA: I agree with Giles JA. 3 GILES JA: The respondent was a passenger on the appellant's train. The train arrived at Central Railway Station at about 12.35 am on 6 January 1996. The respondent was extremely intoxicated. He and his companion got off the train and began to make their way to the exit from the platform. The station assistant gave the guard the signal for the train to depart, the guard in turn signalled the driver of the train, and the train departed. In unclear circumstances the respondent came in contact with the last carriage of the train as it departed, fell onto the railway tracks at the end of the platform, and was injured. 4 The respondent sued the appellant, alleging in substance that the appellant had failed to take reasonable care for his safety in that, given his intoxication and the proximity of the train, it should not have permitted the train to depart until he had left the platform or should have restrained him as it departed so that he could not come in contact with the train. The duty of care was said to arise in contract under a contract between the appellant as carrier and the respondent as passenger, or alternatively in tort under the general law by virtue of the relationship of carrier and passenger, with a higher duty of care arising in contract than in tort. 5 The proceedings were heard by Herron DCJ. His Honour found that there had been a contract between the appellant as carrier and the respondent as passenger. He did not think that the duties of care materially differed on the facts of the case, and without deciding whether they differed in law held that the appellant had been negligent. His Honour held that for the awarding of damages what befell the respondent was a motor accident within the Motor Accidents Act 1988 ("the Act"), and that by force of its provisions a defence of contributory negligence was available to the respondent's claim in contract notwithstanding the decision of the High Court in Astley v Austrust Ltd (1999) 197 CLR 1. (The Law Reform (Miscellaneous Provisions) Assessment Act 2000 was not in force at the time of his Honour's decision.) He found that the respondent's self-induced intoxication constituted contributory negligence whereby the damages recoverable should be reduced by one half. He assessed damages of $523,403.50. Accordingly the respondent obtained a judgment against the appellant for $261,701.75. 6 The appellant appealed as to liability and as to most components in the assessment of damages. The respondent cross-appealed as to the application of the Act, specifically the holding that it made a defence of contributory negligence available to the respondents' claim in contract, and as to the extent of contributory negligence found.

Liability 7 The appellant as carrier owed to the respondent as passenger a duty to take reasonable care for his safety (Maloney v Commissioner for Railways (1978) 18 ALR 147; Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107). The respondent submitted that for his claim in contract the appellant was under a higher duty of care than for his claim in tort, because the appellant impliedly warranted that the platform at Central Railway Station was as safe for his use as the exercise of reasonable skill and care could make it. Whether there is an implied warranty with a higher duty of care is debatable, see Watson v George (1953) 89 CLR 409; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 3, and the respondent acknowledged that "it may be to some extent a question of semantics as to whether that standard of care is higher than the duty to exercise reasonable care". The implied warranty is not a promise of safety, and does not call for more than the exercise of reasonable skill and care. On the facts of this case I am content to assume, without deciding, that there was a duty of care under the implied warranty and to consider the appellant's liability according to that duty of care. 8 Herron DCJ considered that the appellant's negligence was through the station assistant who gave the guard the signal for the train to depart. He held that there was no negligence on the part of the guard, because "[t]he accident probably occurred behind him as the train left the platform and I do not think that he failed to keep a proper lookout". Referring to the judgment of Mason J in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-8, he said that the risk of injury to the respondent was a real risk which would have occurred to the mind of a reasonable man in the position of the station assistant, and that as a reasonable response to the risk the station assistant "should have taken immediate steps when he saw the state in which the plaintiff was, as he alighted from the train, to have ensured that he was put in a position of safety before he signalled the departure of the train". His Honour considered that there were available personnel "who should have been utilised to remove [the respondent] from the platform or otherwise to ensure that he did not come into contact with the train", saying that although the station assistant was alone on the platform he could have contacted the Transit Police to come and give assistance. He said that he "rejected" what he described as the suggestion of Mr Hugh Cowling, a witness called for the appellant, that "to take such steps would have caused, in effect, havoc to the transport system". 9 It is necessary to examine in some detail the circumstances in which the station assistant gave the signal for the train to depart, and so far as it can be ascertained how the respondent came in contact with the train. It became apparent in the hearing of the appeal that the recitation of the facts by Herron DCJ and his Honour's findings of fact were less full than they could have been, and the examination which follows to some extent goes beyond his Honour's reasons. This Court can make its own findings of fact and draw its own conclusions from the facts (Warren v Coombes (1979) 142 CLR 531), subject to well-known constraints including respect for the trial judge's findings and conclusions and in particular recognition of the trial judge's advantages in seeing and hearing the witnesses (eg Rosenberg v Percival (2001) 75 ALJR 734). I do not think that in the present case those constraints preclude amplification from the evidence before his Honour of the facts to which he referred in his reasons. 10 The respondent and his companion spent some hours in a hotel at Liverpool on the evening of 5 January 1996. The respondent said that he "consumed [a] substantial amount of alcohol", although he could not recall what he was drinking. He took beer and a bottle of bourbon with him when they left the hotel. They caught a train at Liverpool Station to go to the city to "party on", and continued to drink in the train. 11 A pharmacologist gave evidence that analysis of a sample of the respondent's blood taken at the hospital after his injury showed a very high alcohol content of 0.42 gms per cent, and that the respondent was "most likely to have been extremely heavily affected by alcohol shortly before the collision [sic]" and "would have been obviously intoxicated and that this would have been apparent to anyone observing him for more than a few moments". When examined at the hospital the respondent was found to be "intoxicated, disoriented and combative". 12 The respondent had no recollection of getting off the train at Central Railway Station, of being on the platform, or apart from what he described as "little flashes" of coming in contact with the train and falling onto the railway tracks. His companion did not give evidence. The little flashes did not contribute to explaining how the respondent came in contact with the train. 13 The train drew into platform 22 at Central Railway Station. The platform is 160 metres long, with exits by two sets of steps going downwards at the northern end and two sets of steps going downwards at the southern end. One of the sets of steps at the southern end of the platform has its entrance from the platform approximately 17 metres from the end of the platform. The other set of steps is at the end of the platform with the entrance to the steps from the platform approximately 4 metres from the end of the platform. For ease of reference I will call these steps 1 and steps 2 respectively. Both sets of steps go downwards to the south. A passenger alighting from a train in the middle of the platform or towards its southern end who intends to leave the platform by the steps at the southern end will walk in a southerly direction to the entrance of one of the sets of steps and then continue in a southerly direction down the steps. 14 A wrought iron balustrade is erected around the sides and rear of the opening in the platform through which steps 1 take their downward course. From the edge of platform 22 to the edge of platform 23, the other "half" of the composite platforms, is a variable distance generally of the order of 9 or 10 metres. The distance between the balustrade and the edge of platform 22 is approximately 3 metres. A pole supporting a roofing structure stands next to the balustrade on the platform 22 side of the order of 1 or 2 metres to the south of the entrance to steps 1. Another pole stands approximately 8 metres further to the south, between the opening through which steps 1 take their downward course and the entrance to steps 2 but a little closer to the edge of platform 22. For ease of reference I will call these pole 1 and pole 2 respectively. 15 A control room stands approximately at the middle of the length of the platform, in and from which the station personnel set the lights on destination boards installed along the platform, play announcements concerning destinations and departures, and otherwise perform their duties. When an eight car train pulls into the platform the guard's compartment is adjacent to the control room. A station assistant located within the control room normally speaks to the guard, and in due course gives the signal for the train to depart, described as giving right of way to the train. Before doing so the station assistant sees that passengers have got off and got on the train and are not "half in the train", and when standing on the platform in the vicinity of the control room checks to see that the signal at the end of the platform is green to allow the train to leave, blows a whistle, and shows a white flag as the right of way signal to the guard. The guard signals the driver by a bell and the driver causes the train to depart, but until the automatic doors on the train have closed and the train is in motion the station assistant keeps looking to see whether someone is seeking to get off or get on the train at the last minute. The station assistant remains on the platform, looking up and down the platform, until the last carriage of the train has reached the end of the platform. 16 When the train in which the respondent and his companion were passengers pulled into platform 22 the station assistant, Mr Matthew Bartholomew, was alone in the control room and the only member of the station personnel on the platform. The train was an eight car train. Mr Bartholomew saw some people get off the train, he thought less than ten people. He saw two intoxicated men get off the train either from the northerly end of the third car or from the fourth car, that is, approximately 20 metres to the south of where he was standing outside the control room. He said that they were staggering, which he equated with swaying, and noticeably intoxicated, but when on the platform were walking in a relatively straight line side by side as if they were conversing. 17 Mr Bartholomew said that the men walked towards the middle of the platform, in context meaning its middle in width rather than length, and then turned to their right and walked towards the southern end of the platform. He saw them as they went along the platform in a southerly direction for up to 60 metres. They were keeping out from the train, the distance between the man closer to the train and edge of the platform being two or three metres. 18 Mr Bartholomew went into the control room and played the announcement for the departure of the train, and then returned to the platform. He saw that the two men had continued towards the stairs at the southern end of the platform. When asked whether they were still walking side by side when he last saw them he rather enigmatically answered "possibly", but said that the man closer to the train was still about 2 metres away from the edge of the platform. Mr Bartholomew saw the two men "fairly close to" or "at" steps 1 and expected them to walk down the steps. He checked the signal, blew the whistle, checked "that it was clear for the train to depart", and by showing the white flag gave right of way to the train. 19 Mr Bartholomew marked on a photograph the position of the men when he last saw them, which he said was after he had shown the white flag. He said he thought it was "in the vicinity of" and "at the most within 1 or 2 metres of" pole 1, and when asked in what direction the men were walking said "possibly still heading south"; later he said he believed the men "were still walking in the southerly direction". He was not certain of the steps and pole because of the distance, but the evidence to which I shortly refer tends to confirm his recollection of steps 1 and pole 1. As the train moved away his attention was concentrated on the northern end of the platform, because he considered that a slight curvature in the platform restricting the sight of the train doors to the north made that necessary. 20 Mr Bartholomew was called to give evidence by the respondent. He said that he did not now think that "there was anything that I should have done overly different", and that he did not agree that he should have "watched [the respondent and his companion] all the way down the stairs". 21 A minute or so after the train had left Mr Bartholomew was told of someone on the railway tracks. He called for an ambulance and the police and took steps to prevent further trains from arriving at platform 22, and then went to the southern end of the platform. He saw a person on the railway tracks whom he believed was one of the intoxicated men he had earlier seen, and said he saw "his friend still on the platform as well". 22 The guard, Mr Jasbir Gilhotra, knew nothing of an incident involving the respondent until he was told of it afterwards. He recalled seeing the station assistant, and that the train was given right of way, and said that he "looked both sides that no one is on the way, and then closed the doors". He said that he "watched the train in the sense that if somebody's coming - approaching towards me, then I should stop the train in emergency", and that he did not see any such person. He saw nothing potentially dangerous, and had no recollection of seeing anybody near the southern end of the platform on the occasion in question. It is not entirely clear whether at times Mr Gilhotra was speaking of his routine or of an actual recollection of the occasion, although on balance I think he asserted the latter; Herron DCJ clearly enough took that view. 23 Another station assistant, Mr Nigel South, ceased his duties on platform 16 at Central Railway Station at about midnight on 5-6 January 1996 and was then on cleaning duties, specifically the steps at the southern ends of a number of the platforms. He first went to the steps at the southern end of platform 22 and walked up steps 1. On reaching the platform he turned to walk towards steps 2. He saw two men about half way between pole 1 and pole 2. The two men were walking towards Mr South, that is, in a northerly direction. He greeted them and walked on and down steps 2. A train was standing at the platform, and Mr South said that he saw the driver leaning out the window of his cabin and looking in their direction. Very shortly afterwards Mr South was "alerted to something that was wrong", he returned to the platform, and saw a man lying on the railway tracks. He told Mr Bartholomew. 24 Mr South was not asked anything about intoxication of the two men he encountered, nor was he asked whether the man he saw on the railway tracks was one of the two men he had encountered. From the evidence to which I next refer, the men were probably the respondent and his companion. 25 Mr Kenneth Franks, the driver of the train, said that he looked out from his cabin immediately after he heard the bell from the guard indicating that the train could depart. He had to lean out the window because he was looking back along the platform. He said that he saw on the platform "two gentlemen that I knew that had been in - on my train behind me", and that the two men "were standing at the exit stairs". The two men were standing next to pole 1 about 1 metre in from the yellow line near the edge of the platform, and were standing still. A "station staff" was standing "at the mouth of the stairs" with a hose in his hand, facing the (southern) end of the platform, with the two men facing the station staff and "the centre of the platform", apparently meaning facing towards the control room. Mr Franks identified the respondent as one of the men he saw. Mr Franks then repositioned himself in his seat and caused the train to depart. He was not asked anything about the intoxication of the two men he saw, and clearly enough did not consider that departure of the train could endanger them. 26 Senior Constable Mark Lang was an officer in the Transit Police on duty on the night of 5-6 January 1996. He was called to platform 22 and saw a man lying on the railway tracks. He "smelt a smell I associate with a person having had large amounts of alcohol". He observed that the man's fly was down and there was a wet spot in his groin area. In a report he later wrote he expressed the view that the respondent had "approached the edge of the platform and proceeded to urinate on the passing train". He spoke to the respondent's companion, who said that he (the companion) did not see anything, and was "on the other side of the platform" and heard the respondent's screams. 27 From where the respondent was found on the railway tracks and the nature of his injuries, he must have been at or very near the southern end of the platform and his head or shoulder must have come in contact with the rear portion of the last carriage of the train. The train must have largely cleared platform 22 before the contact occurred. Had the respondent not been at or very near the southern end of the platform or had the contact been closer to the front of the train the respondent could not have ended up where he was found on the railway tracks, at least not without being killed or suffering injuries of a different and much more serious nature. 28 From all these facts, what probably occurred? 29 The respondent and his companion got off the train near the middle of platform 22 and slightly to its southern end. They walked clear of the train, 2 to 3 metres in from the edge of the platform, turned right towards the steps at the southern end of the platform, and walked along the platform for up to 60 metres to near the entrance to steps 1. They were obviously intoxicated and staggering or swaying, but despite their conditions kept clear of the train and walked in a more or less straight line staying 2 to 3 metres from the edge of the platform. 30 For an unknown reason or unknown reasons, the respondent and his companion did not leave the platform by going down steps 1. They went at least some way past the entrance to steps 1, then back in a northerly direction towards the entrance to steps 1. They encountered Mr South, and were seen by Mr Franks at that point, in the vicinity of pole 1. They were still clear of the train, and neither Mr South nor Mr Franks gave any evidence suggesting that to him their condition or position was such that they were at risk if the train departed. 31 It would have taken a little time for Mr Franks to set the train in motion and for the train to have progressed to where the last carriage was nearly clear of the platform. (The time from setting the train in motion to the last carriage clearing the end of the platform was estimated by one expert at 25 seconds.) Whether early in that time or only at its end, and the difference may only have been seconds, the respondent unexpectedly moved to the end and edge of the platform where he came in contact with the last carriage as the train departed. It is possible that he did so in order to urinate from the end or edge of the platform, if so hardly conduct to be expected even of an intoxicated man, but why he did so can not be found with any confidence. 32 On Mr Bartholomew's evidence he gave the train right of way when the respondent and his companion were at about the entrance to steps 1 and were apparently about to go down the steps. His recollection that they were still walking in a southerly direction appears to conflict with the evidence of Mr South and Mr Franks, because on the latter evidence at the time Mr Bartholomew gave the train right of way they must have been coming back to the entrance to steps 1. Herron DCJ did not refer to or resolve the possible conflict. Mr South and Mr Franks were close to the respondent and his companion, Mr Bartholomew was not certain, and what Mr Bartholomew saw must have been the two men close to pole 1 but not still walking in a southerly direction: it matters little, because they were still close to the entrance to steps 1 and Mr Bartholomew expected them to go down the steps. 33 Neither Mr Bartholomew nor Mr Gilhotra saw what must have been a sudden movement by the respondent to the end and edge of the platform as the train departed. Mr Bartholomew's attention was on the northern end of the platform, but if Mr Gilhotra saw nothing the sudden movement must have been very late in the time during which the train was set in motion and progressed to where the last carriage was nearly clear of the platform. Herron DCJ's finding that there was no negligence on the part of the guard because "[t]he accident probably occurred behind him as the train left the platform and I do not think that he failed to keep a proper lookout", which was not contested by the respondent in the appeal, means that the movement must indeed have been very late as the train left the platform. 34 It is as well to repeat the well known passage from the judgment of Mason J in the Council of the Shire of Wyong v Shirt at 47-8 - "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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." 35 Falling or being dragged beneath the train, or contact with the train without that result, may bring serious injury. Approaching too close to a train as it leaves the platform brings risk of injury, although it will not necessarily do so. People stand and walk close to trains on innumerable occasions without suffering harm. It could not be suggested and was not suggested that, had he not been in his intoxicated state, fulfilment of the duty of care owed to the respondent required that the appellant not permit the train to leave the platform until (in words used by Herron DCJ) he had been "put in a position of safety", by being removed from the platform or restrained. Restraint was the respondent's explanation of his Honour's general reference to otherwise ensuring that he did not come in contact with the train. If that were required in relation to a sober respondent, it would be required in relation to every other passenger getting off a train and every would-be passenger waiting on a platform. 36 Vital to breach of duty in the present case, therefore, is the effect of the respondent's intoxication on what a reasonable man would do by way of response to the ordinarily remote prospect that a passenger who has got off a train and is making his way towards the exit from the platform will come in contact with the train as it leaves the platform. 37 Given what he observed as to the respondent's intoxication and conduct, how would a reasonable man in the position of Mr Bartholomew have assessed the probability of occurrence of the risk of the respondent being injured if the train were permitted to depart before he had left the platform (whether voluntarily or by being removed) or without him being restrained to ensure that he did not come into contact with the train? The reasonable man would believe the respondent to be intoxicated, and would see him and his companion staggering or swaying as they walk along the platform. But he would also see that the respondent and his companion have walked clear of the train and are walking 2 to 3 metres in from the edge of the platform, in a more or less straight line. They are taking the appropriate route to the exit from the platform, and have walked up to 60 metres. They are near the entrance to the steps and, whether walking in a southerly direction or in the vicinity of pole 1 returning towards the entrance to the steps, appear to be intending to go down the stairs. There was no evidence from Mr South or Mr Franks from which it may be said that the reasonable man would have concluded that the condition of the respondent and his companion was such that they were at risk from the departure of the train, and Mr Gilhotra saw nothing untoward in his scanning of the platform. 38 In my opinion, the reasonable man would assess as very low the probability of what must have occurred, a sudden and last-second deviation from apparently going down the steps to going to the end and edge of the platform, perhaps to urinate, and so close to the train that the respondent was struck by it. Although obviously intoxicated, the respondent and his companion had shown no sign of such aberrant conduct as Mr Bartholomew saw them walk the 60 metres or so towards the exit from the platform with the apparent intention of leaving via the steps. 39 The reasonable man must then place in the balance the alleviating action said to be required of the appellant. Should it have bundled the respondent off the platform before the departure of the train? Should it have held him immobile until the train had left the platform? We were not referred to anything which entitled the appellant so to interfere with the respondent's personal liberty, but that would have required personnel to remove or restrain the respondent and any other intoxicated passenger or would-be passenger on the platform before the trains could depart. The burden of employing personnel could be great, because intoxication is not the only circumstance of risk of injury. There are many thousands of passenger journeys each day, by the young and the infirm as well as the intoxicated. I accept that there may be occasions when a railway authority should respond to risk of injury to a passenger or would-be passenger by some form of restraint, if there be authority for the restraint. That would mean that personnel must be available, not necessarily immediately on hand. But a possibly more realistic response in circumstances such as the present is to hold back giving the train right of way until the respondent and his companion have been seen to leave the platform, although that does not seem to have been the basis on which Herron DCJ found the appellant to have been negligent. Perhaps it was implicit in his Honour's reference to removal of the respondent from the platform, as voluntary departure from the platform would have had a similar effect, and Mr Cowling's "suggestion" was in substance that holding a train up until intoxicated passengers had left the platform would be "a recipe for chaos and anarchy" for a rail network. 40 Waiting until the respondent and his companion had gone down the steps at the southern end of the platform has an attractive simplicity. But the simplicity is false. If the appellant were required to wait for the respondent to leave the platform, it would be required to wait for every passenger or would-be passenger perceived to be at risk, from youth, infirmity or any other reason as well as from intoxication, voluntarily to leave the platform. It would have to keep any train at platform 23 from leaving as well. Occasional disturbances to regular operations, in the interests of safety, are and must be accepted, but the response presently under consideration would gravely impede the functioning of the rail transport system. 41 It is appropriate at this point to refer to the evidence of Mr Cowling. He was an engineer with particular expertise in rail transport systems and their conduct. He provided a report in which he referred to some overseas practices in giving a train right of way when an intoxicated person was in the vicinity, identified what he described as issues to be addressed "in assessing and controlling any 'affected' person(s)", identified what he described as issues involved "in holding up train movement until all 'affected' persons have departed from the platform", and expressed a "conclusion" on the latter subject. 42 The report was rejected so far as it stated issues on the former subject and some of the issues on the latter subject. The appellant submitted that the rejected portions of the report should not have been rejected. Much of what was stated was not opinion evidence, and I do not think Herron DCJ was obliged to dissect out fragments of fact and opinion of which Mr Cowling was able to give evidence. In any event, I do not think the fate of the appeal is materially affected by his Honour's ruling. 43 Mr Cowling's conclusion was what Herron DCJ described as the suggestion which he rejected (in the sense of did not accept). In form it commented on evidence given by Mr William Bailey, who had given evidence for the respondent. It read - "Mr Bailey has suggested that there should have been a procedure in place, which would have prevented a train departing until such time as 'drunk' customers were completely clear of the platform. I am sure that Mr Bailey's suggestion was made in good faith and from the very best of intentions. However, in my opinion, his suggestion is superficial and is nothing but a recipe for chaos and anarchy, in which the entire rail network simply could not operate. From an engineering standpoint it is obvious to me, if such a procedure was adopted the entire NSW railway system would have to be redesigned from the ground up. The resulting costs would be so high that in my view it would simply not be practicable to continue running train services in NSW. The resulting effects of discontinuing train services would result in very significant social breakdown and in my view simply could not be tolerated. As I intimated at the beginning of this report, my experience leads me to suggest that there is no comparable heavy rail network in the world that has such a procedure. In Part 1, I described the different procedure which operated in New York. My understanding is that in 1996 this was also standard practice in Sydney." 44 In some respects this conclusion may have gone beyond Mr Cowlings expertise. The evidence was admitted over the respondent's objection, the respondent's stance being that the case was "not a system case" and "had nothing to do with the railway network", and Mr Cowling was not cross-examined upon it. With respect to Herron DCJ, in my view it provided a sound foundation for expense, difficulty and inconvenience of taking the alleviating action of waiting until an intoxicated passenger or would-be passenger had left the platform before giving a train right of way. 45 Before conducting the balancing exercise of which Mason J spoke, what guidance can be obtained from other cases? It must be remembered that it is a question of fact in the circumstances of the particular case, and regard to other cases may be unhelpful or even misleading. Nonetheless we were referred to a number of decisions, particularly from North America. I will go to those most material to the present case, first those on which the respondent relied. 46 One of the cases did not involve an intoxicated passenger. In Brooks v London Passenger Transport Board (1947) 1 All ER 506 the plaintiff fell out of the open door of a train. It was held that the defendant should have ensured that the doors were closed, and if necessary should have delayed the start of the train so that that could be done even if "the exigencies of the traffic" meant that trains could not stand at stations for more than a short time (according to the report, 35 seconds). The report does not disclose the extent of delay involved, but the initial time was remarkably short and the delay would have been finite. It must have been considered such that, in balancing the impediment to the functioning of the rail transport system against the risk posed by an open door, the former was outweighed by the latter. The finite time needed to close doors does not compare with the more open-ended time in waiting for passengers or would-be passengers to leave the platform, and the circumstances in which delay was called for were different from those of the present case. The risk in the present case requires its own assessment and balancing against the impediment to the conduct of the rail transport system. 47 The other of the cases on which the respondent relied to which I will go were concerned with intoxicated passengers or entrants on railway premises. 48 In Dunn v Dominion Atlantic Railway (1920) 52 DLR 149 the plaintiff boarded a train in a state of intoxication, became disorderly, and misconducted himself in various ways culminating in a violent attack on the train conductor. He was put off the train by the conductor at the next station. It was about 1 am at night, the station was unlit and unattended and the passenger's intoxication was such that he was seen to stagger and fall when put off the train. The passenger was later found on the railway tracks a little distance from the station, having been struck by another train. 49 It was held by majority that the jury could properly have found, as it had, that the conductor had not exercised due care in putting the passenger off the train. The majority spoke of the "hopelessly drunken condition" of the passenger (per Idington J at 153), of the passenger lying on the railway tracks in a drunken stupor and being in "such an advanced state of intoxication that leaving him where he was placed involved endangering his life because he was unable to take care of himself" (per Anglin J at 155), and of the passenger being left "in his helpless condition where no one can look after him, and where he is in obvious danger of getting on the railway track and being injured or killed by a passing train" (per Mignault J at 158). The facts were quite different from the facts in the present case. 50 In Cincinnati, N O & T P Rly Co v Marrs 119 Ky 954; 85 SW 188 (1905) an intoxicated man was put on a train by his friends, and was found asleep in the train when it arrived at its depot. The railway staff roused him and put him on the station platform. A short while later he was found asleep between the railway tracks in the switch yard, was again roused, and walked off. Later he was found injured on the railway tracks, having apparently again fallen asleep. It was held that the defendant was "bound to know that … he would again succumb to the benumbing influence of the liquor with which he was intoxicated" (at 189), and that either he should have been seen safely out of the switch yard or particular care should have been taken in running trains through the switch yard. The circumstances were described as "… such as would lead any reasonably prudent person to believe that the passenger was incapable of caring for himself". Again, the facts are very different from the facts in the present case. 51 In St Louis-San Francisco Railway Co v Simons 176 F 2d 654 (1949) Grimson was found in an intoxicated state lying very close to the railway tracks in the defendant's railway yards. He said that he was unable to move, and was left where he was. The employee of the defendant who found him told a nearby resident, Simons, who said he would look after Grimson. Both Grimson and Simons were killed when struck by a railway engine operating in the yards. It was held that the jury's verdict in favour of Grimson was justified on the doctrine of discovered peril, described as the rule that where employees of a railroad company, other than those operating its trains, discover a person, known to them to be so intoxicated or otherwise disabled as to be unable to care for himself, in a position of danger on or near the tracks the railroad company may owe him the duty either to remove him from the place of danger or to exercise at least reasonable care to avoid injury to him from moving trains. Cincinnati, N O & T P Rly Co v Marrs was cited for the rule. Since Simons was also killed, it would seem that the defendant's fault was not dependent on Grimson's intoxication but lay in failing to operate the railway engine with due care. 52 The same doctrine of discovered peril, under the rubric of the doctrine of last clear chance, was recognised in Jones v Atlanta-Charlotte Air Line Railway Co 218 SC 537; 63 SE 2d 476; 26 ALR 2d 297 (1951), in which the deceased was wandering drunk on the railway tracks and was run down by a fast moving locomotive. Again the intoxication does not seem to have been particularly significant: the driver of the locomotive did not keep a proper lookout. 53 I do not find these cases helpful, and the other similar cases on which the appellant relied are even less material to the facts in the present case. 54 The appellant placed greatest reliance on Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, referring in particular to the judgment of Kirby J at 480-2 and saying that reasonably foreseen intoxication of the plaintiff did not mean that the cliff top had to be fenced. It said that the duty of care owed by an occupier to an entrant did not extend to protecting the entrant from foolhardy or reckless conduct, citing amongst further cases Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141. And it reminded the Court that the standard of care is reasonableness, not perfection, referring in particular to Derrick v Cheung [2001] HCA 48 at [13 ]- "Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care." 55 The decision depends on the particular facts. Returning to the balancing exercise in the present case, in my opinion the response to be ascribed to the reasonable man in the position of Mr Bartholomew is not that thought by Herron DCJ to have been appropriate, or waiting until the respondent and his companion had gone down the stairs, or doing other than what Mr Bartholomew did. 56 The respondent and his companion, although seen to be intoxicated and staggering, had safely made their way along the platform towards the exit, were near to the entrance to the steps, and appeared to be about to go down the steps. Their conduct at that time does not seem to have awakened in either Mr South or Mr Franks concern that they or either of them were unable to take care for their own safety. Mr Gilhotra did not see anything potentially dangerous. The train was given right of way, and began to leave the platform. Only at the very last, when the train had almost cleared the platform, did the respondent unexpectedly so conduct himself that he came in contact with the train. I do not think that the (assumed) duty of care under the implied warranty required that the appellant remove the respondent from the platform or restrain him, or wait until he had been seen to leave the platform, before giving the train right of way. 57 This is a conclusion on the facts of the present case. It does not mean that a railway authority has unbridled licence to send its trains on their way. A passenger still getting off or getting on the train, a child skylarking near the edge of the platform apparently heedless of the danger of a moving train, or an intoxicated person on the platform obviously unable to control himself and so in a position of danger, all these can be expected to preclude immediately sending the train on its way. There is a line between when a railway authority so conducts itself in sending a train on its way that the platform is as safe for the use of its passengers as reasonable skill and care can make it, and when it does not. The line can not be drawn in the abstract. It must be decided on the facts of each case whether the conduct falls on one side of the line or the other. In my judgment, the present case falls on the appellant's side of the line.

Damages 58 It is not necessary to deal with the appeal as to the components in the assessment of damages.

Contributory negligence 59 It is also not necessary to deal with the cross-appeal as to the defence and extent of contributory negligence. Since there may be extant other cases in which the availability of the defence of contributory negligence is an issue, however, I consider that I should say something of the opinion of Herron DCJ that the Act made the defence of contributory negligence available to the respondent's claim in contract. 60 Section 68 of the Act defines "motor accident" as including a transport accident referred to in s 69(2). Section 69(2) provides that Pt 6, which deals with the awarding of damages, applies "to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a transport accident …". The incorporated concept of a transport accident comes from other legislation. Herron DCJ held that what befell the respondent was a transport accident, and that the awarding of damages was governed by Pt 6 of the Act. There was no appeal from those conclusions. 61 Herron DCJ also held that, because many if not most transport accidents would necessarily involve passengers having a contract with the rail authority, s 69(2) "was clearly intended to cover claims brought for breach of contract and/or negligence". So far so good, but his Honour stepped from there to the availability of the defence of contributory negligence, apparently because of s 74(1) of the Act. It provides that, with qualifications stated in the remainder of the section, "[t]he common law and enacted law as to contributory negligence apply to claims in respect of motor accidents …". In my opinion the step was unwarranted. The law as to contributory negligence applies to a claim in contract in respect of a motor accident only to the extent that, according to that law, it applies to a claim in contract. If under the law as declared in Astley v Austrust Ltd contributory negligence was not a defence to the respondent's claim in contract, the Act did not make the defence available. 62 The appellant submitted that s 74(1) took up the common law and the enacted law as it was understood in 1988 when the Act came into force. I can see no reason why it would take up the law as at a frozen moment of time, and in any event in legal principle the law as declared in Astley v Austrust Ltd was the law in 1988 even though in some quarters it was thought to be otherwise.

Orders 63 I propose the following orders - 1. Appeal allowed.

2. Set aside the verdict and judgment for the plaintiff and in lieu thereof verdict and judgment for the defendant.

3. Respondent pay the appellant's costs of the appeal and of the trial, and have a certificate under the Suitors Fund Act if qualified. ______________

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