Caterson v Commissioner for Railways (NSW) [1973] HCA 12

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Caterson v Commissioner for Railways (NSW) [1973] HCA 12

ORDER Appeal allowed with costs. Judgment of the Supreme Court of New South Wales Court of Appeal Division set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 10 Barwick C.J.

My brother Gibbs in his reasons for judgment, which I have had the advantage of reading, sets out the facts relevant to the decision of this appeal. I have no need to repeat or to add to what he has written. I agree with what he has said and with the conclusion to which he comes. However, I wish to add brief remarks on my own account.

The Supreme Court reached its conclusion in this case because, as I understand its reasons, it held the view that the respondent would only be liable to the plaintiff in the circumstances of the case if it could be held that it was likely that a person, not intending to travel on the train and in no physical danger if remaining on it, would attempt to leave it if the train, not having allowed adequate time for such a person to disembark whilst it was stationary, moved off without due warning. Likelihood in this connexion appears to have been equated by the Supreme Court to probability in the sense that the event was more likely than not to happen or occur.

No doubt in the decisions concerned with liability in tort, various expressions have been used by distinguished judges in speaking of the necessary relationship between what has occurred in the particular case and the foreseeability of that event which had to be predicated of the person sought to be made liable for the consequences of the occurrence. Some of these expressions are referred to in the speeches in C. Czarnikow Ltd. v. Koufos [1] . I have no present need to list them all with references to the decisions in which they have been used: but they include "likely", "seriously possible", "of real risk", "of real danger", "not unlikely" or "liable". Suffice it to say that doubtless the expression used in particular cases served well enough to encompass its user's meaning in relation to the facts of the case before him. At times, because of the quality of those facts, an expression has been used which was enough to produce liability in respect of them, though in truth lesser facts and a less stringent criterion would have also produced liability. Consequently, unless expressions used in reasons for judgment are designed accurately to formulate a general principle or proposition, care must be taken not to erect a particular expression into a formula or an essential part of a formula.