GAUKROGER v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES [1990] NSWCA 65

GAUKROGER v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA, MEAGHER and HANDLEY JJA 2 October 1990, 2 October 1990

[1990] NSWCA 65 NEGLIGENCE — inferences from primary facts — no question of principle.

Samuels JA We have before us an appeal and cross-appeal from a judgment of Studdert J in which he awarded damages of $137,250, a figure which includes a discount for contributory negligence, to the plaintiff who, when aged twelve, on 18 December 1980 sustained serious injuries while on or close to a pedestrian crossing across a single track railway line at Guyra. The facts are fully and clearly set out in the judgment under appeal and I need not repeat them all. Indeed, the findings of primary fact which are supported by direct evidence are not disputed. I need, however, to set out sufficient facts to provide some context for the conclusions at which I have myself arrived.

The pedestrian crossing as I will call it is made up of railway sleepers lying parallel to the axis of the railway track which runs from north to south. It is a single track at this point.

The plaintiff lived on the eastern side of the track and had been sent on an errand to shops on the western side. The train which the circumstances implicate was travelling from north to south. On the western side of the track there is a pathway which leads up to the pedestrian crossing. In the final few metres, judging from the photographs, there appears to be an uphill gradient so that it is precisely true to describe the track as running up to the crossing. At the time there were signs warning of trains on either side of the line but no barrier or railing or other obstacle which would compel a cyclist, for example, to dismount before crossing the line or at least to dismount before deciding whether to cross the line wheeling the bicycle or to mount it and ride across.