STATE RAIL AUTHORITY OF NEW SOUTH WALES v LAJMONOVSKI [1992] NSWCA 239

STATE RAIL AUTHORITY OF NEW SOUTH WALES v LAJMONOVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SAMUELS JJA 13 NOVEMBER 1992, 24 December 1992

[1992] NSWCA 239

NEGLIGENCE — RES IPSA LOQUITUR NEGLIGENCE — defective door on suburban railway carriage — evidence from plaintiff's side that inspection carried out before train leaves depot each morning — no evidence of cause of defect (which allowed door to open and close in response to acceleration and deceleration of train) or of length of time it had been present — no evidence called by defendant about system of inspection or maintenance or of pre-accident condition of doors, the defect having been found on inspection after accident HELD that there was evidence on which primary judge could have found negligence in maintenance and inspection against defendant and he was right to do so: Jones v Dunkel (1959) 101 CLR 298 and The Nominal Defendant v Haslbauer (1967) 117 CLR 448 applied.

Priestley JA I agree with Samuels AJA. Handley JA I agree with Samuels AJA.

Samuels AJA At about 7.25 pm on 17 December 1979 the plaintiff (whose identity remained unknown for some time) was found lying unconscious near the suburban railway line which runs from the city to Mortdale. She had sustained a serious head injury and had total amnesia for all the events of the day of the accident and was unable to give any account of how she sustained her injuries. There were no eye witnesses. As Badgery Parker J who heard the action pointed out, there was "indeed no direct evidence whether she was on the train and the evidence does not show whether or not she was in possession of a railway ticket to Mortdale."

For these reasons the case was largely conducted upon a statement of agreed facts which was in these terms:

"1. At approximately 7.25 pm on 17.12.79, train guard Mr McKinnon was in the rear guard compartment of train run 5B which was travelling from Central Railway to Mortdale where it was to terminate. Mr McKinnon joined the train at Hurstville.