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. 2. At the aforesaid time, the said train guard saw a cloud of dust as the train was stopping at Mortdale platform. On investigating, he and another railway employee saw the Plaintiff lying near the train tracks after she had been discovered by someone else. She was at a position on the left hand side of the train tracks as the said train approached Mortdale station. She was about 150-200 metres east of the platform and about 3 metres south of the said train tracks. 3. Later that day inspection was made of the train set which formed the said run 5B, following the discovery of the Plaintiff. On inspection, no brush marks were found which could indicate the possibility of the set striking a person. A door on No.2 end of car number 4120 which was part of the said train set was found to be not operating properly. It did not automatically close with all the doors and could be manually opened and closed at will. The said door was on the left hand side of the said train as it approached Mortdale Platform which was on the right hand side of the train as it proceeded towards Mortdale. 2 UNREPORTED JUDGMENTS 4. Whilst the said train was travelling between Penshurst and Mortdale stations, the engine driver did not notice any person lying near the train tracks nor was he aware of the train striking any person." The plaintiff's case was that she had been a passenger on the train as it approached Mortdale railway station and had in some fashion, but accidentally, fallen out of the malfunctioning door referred to in para3 of the agreed statement of facts. The negligence alleged was the defendant's failure properly to maintain the doors so as to permit them to fall into an unserviceable condition which presented a hazard to passengers and was, as the plaintiff alleged, the immediate cause of her injury. The defendant did not admit that the plaintiff had been a passenger or had fallen from the train and denied the negligence alleged. In addition, it charged the plaintiff with contributory negligence, the particulars of which included the assertion that the plaintiff had jumped from the train or had attempted to alight from it when the danger of doing so was readily apparent. Badgery Parker J found on the probabilities that the plaintiff had fallen from the train, that the defendant was negligent in failing to adopt any adequate system of maintenance and inspection and so gave judgment for the plaintiff in the total sum of $202,364.96. The defendant appealed on the footing that there was no evidence of negligence, or, alternatively, that the learned Judge was wrong to find any fault on the defendant's part, and that there was "no sufficient evidence" that the plaintiff had fallen from the train, a contention which was modified into a submission that the learned Judge fell into error in arriving at his conclusion. In addition (the major grounds of appeal relating to quantum of damage having been abandoned) there was a complaint as to the award of interest. Plainly, the first question is to determine whether there was evidence upon which his Honour could have found that the plaintiff had sustained her injuries by falling from the train. As I have already indicated, there was no evidence of any eye witness and no documentary evidence that she had been a passenger at the time. Nor, indeed, is there any but the slightest evidence which tends to provide some reason why she might have been travelling to Mortdale. On the other hand, there is nothing in the topography of the area - that is to say, there was no overhead bridge or high embankment - which might have provided some explanation of the plaintiff's presence near the railway line below. More fanciful explanations can obviously be excluded, and taking account of such weight as may reasonably be accorded to the observations of the train guard, to the absence of any evidence capable of suggesting that the plaintiff had been run over by the train, to the failure of the driver to see anyone on or near the line and to the plaintiff's undoubted presence there after the train had stopped at Mortdale, I would agree with the conclusion of the learned Judge that the most probable explanation is that she was a passenger and had fallen from the train. In my view, therefore, the first challenge to Badgery Parker J's findings must fail. Given, therefore, that the plaintiff fell from the train and through the defective door, the issue which then arises is whether there was evidence upon which the learned judge was entitled to make the finding he did that the defendant was negligent in failing to devise and maintain a proper system of inspection. The evidence about the defective door was this. As I have indicated, para3 describes the nature of the defect but does not indicate whether the door which could be manually opened and closed was one of a pair of doors, and, if so, whether it was the leading door or the trailing door. This is of some importance UBJATE RAIL AUTHORITY OF NEW SOUTH WALES v LAJMONOVSKI (Samuels AJA) 3 because an engineer, Mr Boris Osman, gave oral evidence after his report had been tendered. In that report he said that a door in the condition in which this door was found to be after the accident (interrogatories establish that the inspection which disclosed the defect was performed after the train had completed its journey on the day of the accident) was capable of opening and closing in response to the train's acceleration or deceleration. Had it been the leading door of a pair, it would tend to close on acceleration and open on deceleration; a phenomenon which most people with only the most primitive notion of physics would recognise. But there is no evidence as to how it might have behaved had it been the trailing door except to suppose that it would have responded in the contrary manner. In any event, speculation is unnecessary because it is clear that the defect was such that a door might have been open while the train was in motion and, that that being the case, the plaintiff could have fallen through it in any one of a number of ways. However, the difficulty in the plaintiff's way was, and remains, that there was no evidence of how the defect might have been caused and for how long it had been manifest. Since, in particular, Mr Osman in his report said: "There are a number of ways in which the door opening and closing mechanism can become defective" and since the evidence of any system of inspection by the defendant was slender indeed, it was problematic whether the plaintiff had discharged her onus of proof of fault. This required her to establish that there was a system which it was feasible for the defendant to have adopted and which, if in operation, would have prevented the defect arising, or would have enabled the defendant to repair it or to remove this car from service, and that the plaintiff's injuries were caused by the defendant's failure to operate such a system of maintenance and inspection. The only evidence upon the point was given by Mr Osman and was to this effect. This was in cross examination: "Q. Did you know that before a train leaves a depot in the morning it is inspected by either the guard or the driver? A. Yes. In re-examination he was asked: "Q. It is your understanding, is it, in answer to a question by my friend, that there is an inspection before the train leaves the depot on (sic) the morning. Is that right? A. There should be an inspection before the train leaves the depot. Q. When would a train, having left the depot, next be inspected in the normal course of events in your experience? HIS HONOUR: Q. Do you know or would you only be guessing? A. No. I would only be assuming." The weight of this portion of the evidence was strongly challenged by the defendant but it seems to me that it does provide the plaintiff with a foothold for the conclusion that the defendant did have in force a system which involved an inspection before a train went out from the depot in the morning. Now, as the learned Judge pointed out, since the nature of the defect was not revealed "for all that is known, that defect could have existed for hours even days". As he went on to observe, only the defendant was in a position to say when the train had in fact last been inspected and found to be safe, before the inspection, after the accident, when the defect was revealed. It was the defendant which could have established the nature of the defect and, accordingly, when it was likely to have first become manifest; and that this was probably after the morning inspection 4 UNREPORTED JUDGMENTS and, most important of all, that the train had been inspected that morning and the doors had all been found to be operating efficiently and without defect. No evidence of this sort was called by the defendant. In particular, the evidence of those who, according to the interrogatories, did inspect the train after the accident, was not offered, and while the guard gave evidence, he was never asked any questions (by either side I must add) about the defendant's system of inspection. In any case, he had joined the train at Hurstville while it was in the course of its journey to Mortdale and had not been the guard who had taken the train from the depot in the morning. The plaintiff's case at the trial was somewhat obfuscated because a good deal of emphasis seems to have been placed upon an allegation of negligence arising from the absence of some kind of automatic interlock which would have prevented the train moving while any one of its doors was open. Accordingly, the case that was emphasised on appeal may not have been so clearly presented at the trial although it was certainly the case which commended itself to the learned primary Judge. That case offered two inferences. The first that although a proper system, and one which the defendant recognised, would have required an inspection to have been made that morning, no such inspection was carried out; or, in the alternative, that an inspection was carried out and something was seen, or ought to have been recognised, which either indicated that this door was then defective, or that there was some potential defect which was likely later to manifest itself in a frank malfunction. The absence of any evidence from the defendant's side enables those inferences to be drawn with greater confidence: Jones v Dunkel (1959) 101 CLR 298. Alternatively, recourse might be had to the principles discussed in The Nominal Defendant v Haslbauer (1967) 117 CLR 448 to the effect, applying them to the facts of the instant case, that a door in a suburban train is not likely to be found defective in the absence of negligence in the maintenance or inspection of the train. Upon either view, I think that the plaintiff did enough to get judgment and I would therefore conclude that Badgery-Parker J was perfectly correct. Ican see no basis for a finding of contributory negligence for the reasons stated by the learned trial Judge. There being no substance in the arguments addressed in support of the contention that the learned Judge was in error in his assessment of interest, the appeal must be dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: MJ NEIL QC with PW NEIL Instructed by: JM CRESTANI Counsel for Respondent: M WILLIAMS QC with R FOORD Instructed by: VICKOVICH and ASSOCIATES