ISON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 1) [1989] NSWCA 107

ISON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 1) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and PRIESTLEY JJA 6 September 1989, 6 September 1989 [1989] NSWCA 107

NEGLIGENCE — no question of principle.

ORDERS

The appeal is stood over for a period of 14 days in order to enable the appellant to make such application as he may be advised. In the event that no application is made by the appellant within a period of 14 days then the Court orders that the cross-appeal is allowed, that there be a new trial of the action generally and that the appellant is to pay the respondent's costs of the cross-appeal; and it is noted that the time spent in relation to this hearing has been taken up in connection with the cross-appeal and that both parties agree that there were no separate costs relevantly incurred in relation to the appeal. The appellant is to have, in relation to the costs of the cross-appeal, a certificate under the Suitor's Fund Act. It is further ordered, this order again being conditional on no application being made within 14 days, that in order to give effect to the earlier orders the appellant's appeal is formally dismissed.

Samuels JA The plaintiff, the appellant, was a passenger on a suburban railwaytrain travelling from Wynyard to Blacktown on 17 August 1979. His case in negligence against the respondent, the defendant at the trial, the State Rail Authority, was shortly this: The plaintiff, as I will call him, was sitting on the upper deck of a double decker railway coach. He waited until the train stopped at the station and got up, followed some passengers who were in the course of alighting down to the vestibule, as it was called, the open part of the coach which has a door on each side, and was in the act of leaving the train, was in the doorway, when, without any prior warning, the train began to move and the doors began to close. He had a briefcase in one hand. This became jammed in the nip of the automatic doors. The plaintiff managed to drag it free but in doing so fell on to the platform and fractured the head of his left femur. This injury had very serious consequences which resulted in five separate surgical procedures and unfortunately, as the evidence ran at the trial, the almost certain promise of a sixth.