Public Transport Commission (NSW) v Perry [1977] HCA 32

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Public Transport Commission (NSW) v Perry [1977] HCA 32

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1977, June 22 Barwick C.J.

The basic facts relevant to the resolution of this appeal are that an electric train in the service of the appellant was being driven upon the appellant's property between two stations on the northern suburbs line of the appellant's electric railway system in the Sydney metropolitan area. It had left Killara, the more northerly station, and was proceeding towards the city, the next station being Lindfield station at which it was scheduled to stop. On a platform of that station there were passengers waiting to be uplifted for carriage to Sydney. Amongst them was the respondent. Whilst awaiting the arrival of the train, she was subject to some form of epileptic attack which rendered her unconscious. She was then standing at a point proximate to the edge of the platform from which, in that state, she fell on to the railway track, straddling the lines or at least one of them. This happened when the train had left Killara station and was on its way to Lindfield station which was at a lower altitude than the former. Throughout, the train was being driven at the speed at which such trains usually travel between those stations. When the train reached the point appropriate to such a course, the driver duly applied the service brake which would have brought the train into Lindfield station at a speed appropriate for stopping there. The direct evidence of the driver was that he looked forward down the line towards the next station. When he closely approached the "accept signal" for Lindfield station, though there was a slight bend in the line, his view forward allowed him to see the place where the respondent lay on the railway track. Whilst thus looking, he said that he saw what appeared to him to be some paper on the line in the area of the station. The presence of the paper on the line created no hazard and in itself, in my opinion, could not reasonably be held to call for any further action on the part of the driver, beyond the application of the service brake which, in fact, was already in operation. A very—indeed an extremely—short time thereafter, according to the evidence, the driver realized, as he had a closer view, that the object on the line was a human being. He said that he then immediately applied his brakes to their full extent by operating the emergency braking mechanism. There was clearly nothing else he could then have done to avoid injury to the person on the line. However, this application of the brakes did not bring the train to a halt before it reached the point where the respondent lay. It almost did so, but when it reached her it continued for a short distance in the course of which it caused her serious injury. According to her own evidence, the respondent remained unconscious at least until she was struck by the train.