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. At the trial before Mr Justice Grove and a jury the plaintiff recovered a verdict and the jury assessed his damages in the sum of $110,000. In the view I take of the matter it is perhaps desirable not to say too much about this assessment. However, we have heard the arguments of Mr Kenny QC seeking to defend it, and it will suffice to say that to my mind it is manifestly unreasonable, that is to say, manifestly too low. At the trial the defendant raised the defence of contributory negligence and this the learned trial judge declined to put to the jury. The only matter which we have heard argued at any length is this issue. The plaintiff appealed, asserting that the damages were inadequate, and upon another ground that has not been pressed. The respondent cross-appealed, on a ground which also has not been pressed, and disputing the learned judge's ruling on contributory negligence. That is the matter about which this proceeding has rotated. I may say at once that, with all respect, I have come to the conclusion that 2 UNREPORTED JUDGMENTS Grove J was wrong to take the defence from the jury. In order to indicate why I will need to refer, shortly only I hope, to certain parts of the evidence. As I said, the plaintiff was on the upper deck and waited until the train stopped before he sought to leave it. There were a number of persons standing in the vestibule and the plaintiff thus had to push his way around them in order to get to the door. He was asked the question: "What did you do on reaching the vestibule?", to which he answered, "I proceeded to alight from the train and I had my attache case in my right hand and as I was approaching the doorway of the train I attempted - 'and at that moment his counsel cut in with a further question, namely, "What happened when you approached the doorway of the train?" Then, after some questions and answers to which it is unnecessary to refer, he was asked these questions and gave these answers: "Q. In what condition or position were the doors as you approached them? A. The doors were open. Q. As you got closer, did you notice something about the train? A. I don't know what you mean, sir, I'm sorry. Q. Did the train do something? A. As I approached the doorway? Q. Yes? A. Yes, it started moving off. Q. In what condition were the doors when that happened? A. As the train moved off, the doors started to close. Q. How far from the doors were you when those events occurred? A. I was about halfway out." So in substance at this point the evidence is capable of conveying the account that as the plaintiff approached the doorway the train started to move and the doors started to close. His answer in response to the question "How far from the doors were you when those events occurred?" that "I was about halfway out", may mean that he was about halfway out of the train, which would be consistent with what he asserted thereafter, or it may mean that he was in a position about halfway, but I do not know in relation to what measure, from the doors inside the train. There is a further passage to which I think I need to refer. He makes it clear that as he came down the stairs to the vestibule the doors of the train were open, and then in cross-examination he offered a long answer to a question seeking to elicit what he did. Actually, the question was "As the train neared Blacktown Station", but the answer covered the events which followed the stopping of the train. He said: "As I neared the doorway and was about to step out the train started to move, the doors started to close at the same time and my case in my right hand was caught on the door. At that time I was half way out. I couldn't get back in." It seems to me, and I take account also of later evidence, that it was open to the jury to consider that the plaintiff became aware that the train had started and that the doors had commenced to close before he commenced what I might describe as his definitive exit from the train. That is to say, that he was on notice that the train was moving and the doors were closing at a point when he could have stopped, and remained within the carriage. Mr Gross QC for the plaintiff points out to us quite rightly that there was no evidence as to precisely where the plaintiff was in the train when these events occurred. Nevertheless, there is evidence that they happened as he was approaching the doors; and I would have thought that it was a commonsense conclusion open to a jury to determine that at that point he could have averted the URJSON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 1) (Gleeson CJ) 3 catastrophe that ultimately occurred. His own account, as I have said, was that he was actually stepping out of the train when it started to move and the doors started to shut. A jury might well think that if this was so it is hard to see how he was unable to complete his exit which required only one further step to put him on the platform. They might also question how it was that his attache case was caught in the nip of the doors if they were only starting to close when he was halfway in and halfway out. It is true that there was no evidence as to the pace at which automatic doors of this type close. However, I would have thought that one can scarcely exclude from a jury's corporate understanding the perception that at least these doors do not close instantaneously. So a jury might think that the plaintiff's description of the accident was not wholly plausible. There was therefore material, in my opinion, which ought to have been left to the jury for their consideration on the defence of contributory negligence. As Priestley JA said during the course of the argument, it is necessary to look at the incident in its context. Thus one has to bear in mind that the plaintiff was, as he said, the last person to alight, and that therefore it is not by any means impossible that by the time he got down the steps, and through the crowd, and to the doors, they were commencing to close. Of course, he says that no signal was given, and that may very well have been so; but it was another possible element concerning both negligence and contributory negligence which ought to have been left to the jury to consider. Accordingly, in my opinion, it is necessary to reverse the ruling of the learned judge, and hence to set aside the judgment. We have had some discussion as to the best course which the Court should now follow. The accident happened ten years ago. The plaintiff's injuries turned out to be extremely serious and had a considerable impact upon his life. If a new trial were ordered it might not be heard for eighteen months, longer perhaps if it were a jury trial. We, that is to say, the Court of Appeal, could reassess the damages if that were the only issue before us, but we cannot intervene in questions of negligence or contributory negligence where a case has been heard by a jury. For my own part I am not confident that, even if we were to dispense with the jury, which we would have power to do in a proper case, we could then deal with the question of contributory negligence, negligence having been decided by a jury. It would be curious if those two issues were decided by different tribunals, and if the tribunal deciding contributory negligence was ignorant of the reasoning which had led to the finding of negligence. What I would propose is that, having given our reasons for differing from Grove J on the question of contributory negligence, we should abstain from making any further orders, and give the plaintiff the opportunity to make such application to this Court as he might be advised. The defendant will, of course, have its chance to answer any such application. We should stand over the further hearing of the appeal and cross-appeal for that purpose. Gleeson CJ I agree with what Justice Samuels has said. The plaintiff's allegation of negligence against the defendant was simple and in my view powerful. It was to the effect that it was negligent of the servants and agents of the defendant who were responsible for the movement of the train in question so to have conducted themselves that the train began to move away from the station before the doors of the carriage in which the plaintiff had been travelling closed. Nevertheless, there was evidence in the plaintiff's own account of the events in question which would have entitled a jury to conclude that the train began to move and that he noticed the train beginning to move at a time when he was still 4 UNREPORTED JUDGMENTS within the carriage. From that a jury might have concluded that it was open to him at that stage to abandon his decision to leave the carriage and that his conduct in failing to do so amounted to contributory negligence. If that issue had been left to the jury strong arguments could have been advanced on behalf of the plaintiff to the effect that the negligence of the defendant in causing the train to move away from the platform before the carriage doors had closed placed him in an unusual and hazardous situation and that it would be unreasonable either to conclude that he was either guilty of contributory negligence or to quantify the contributory negligence in a substantial amount. These, however, were questions that the defendant was entitled to have considered by the jury. The unattractiveness of a new trial in circumstances such as the present from a variety of points of view is obvious. The incident occurred more than ten years ago, although perhaps it should be added that the statement of claim appears to have been filed more than three years after the date of the accident. If it were possible to devise a means consistent with the rules of the Court that would enable the matter to be resolved without the necessity for a new trial that course would undoubtedly have a lot to commend it. I agree with the course proposed by Justice Samuels to enable the parties to have an opportunity to consider this matter. Priestley JA I also agree with the course that is proposed. The evidence givenby the plaintiff at the trial in great part was such that it would not have seemed to me appropriate to have left the issue of contributory negligence to the jury. Unfortunately from the plaintiff's point of view, however, there was some small but nevertheless not insignificant part of his evidence upon which it would have been possible for the jury to have come to a conclusion adverse to him concerning contributory negligence. By this I do not mean to say that the case even at its highest and even if restricted only to that part of the evidence which I have referred to could be classified as a strong one. Nevertheless, that part of the evidence, when taken together with the whole of the evidence on this issue, seems to me to have been such as to require that it be left to the jury and to have been wrongly taken away from the jury's consideration. As the other Judges have said, if this Court now had power to deal with the whole matter it would be by far the most practical and efficient course for the Court to take to dispose of the whole case in the course of this appeal. I am doubtful whether that can be done. Whether or not it can be done depends principally upon the interaction of s75A and s107 of the Supreme Court Act together with other sections which bear upon the meaning of those sections and the Court's powers to be derived from those sections. Although I am doubtful of the Court's power, even if it were to grant whatever applications might arguably be made under those sections, to take and dispose of the whole matter itself, I think it appropriate that the plaintiff should have an opportunity of considering whether he wishes to put argument to the Court designed to produce the result that this Court dispose of the whole matter finally on the appeal. It would seem probable, although again I have not formed any view on this, that if the defendants were to consent to the Court disposing of the whole matter, then the Court would be acting within jurisdiction in doing so. In saying this I do not want to give the impression that any judicial pressure is being brought to bear on the defendant, beyond this, that the defendant should give the situation thoughtful and reasonable consideration looking at the matter from the point of URJSON v STATE RAIL AUTHORITY OF NEW SOUTH WALES (NO 1) (Priestley JA) 5 view of what is best for it and bearing in mind the various considerations which I will not presume to try to detail here. In the event that the matter must go for a new trial it would be my opinion that this Court should do whatever can be done to bring about an expeditious further trial. GLEESON CJ: The orders that we make are as follows: 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. Counsel for Appellant: B Gross QC with JN Williams Solicitors for Appellant: Lyons and Lyons Counsel for Respondent: PJ Kenny QC with PR Sternberg Solicitors for Respondent: Mr FD Thompson