STATE RAIL AUTHORITY OF NEW SOUTH WALES v CARNEY [1994] NSWCA 295

STATE RAIL AUTHORITY OF NEW SOUTH WALES v CARNEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 7 March 1994, 7 March 1994 [1994] NSWCA 295

NEGLIGENCE — injury to passenger — whiplash injury on jerking train — proof of negligence — whether sufficient evidence on which liability for negligence could be based

held:

(1) there was sufficient evidence upon which a finding of liability for negligence could be based;

(2) there was no objective evidence demonstrating that the evidence of the plaintiff and her witnesses was incorrect or improbable;

(3) to the extent that liability was determined by the trial judge on the basis of credibility findings the Court is not entitled to interfere with those findings.

Mahoney JA I will ask Handley JA to give the first judgment.

Handley JA This is an appeal by the State Rail Authority from a judgment of his Honour Judge Lloyd Jones QC.

The appellant has challenged the judgment on both liability and damages and there is a further challenge on procedural grounds alleging that the trial Judge erred in refusing an application by the defendant for an adjournment to enable it to call a medical expert.

The plaintiff who was a passenger on an XPT train travelling between Sydney and Orange alleged that she had been injured during that journey on 18 April 1987. The train suffered from loss of power and allegedly jerked a number of times over a period of thirty to forty minutes while climbing a section of the line west of Bathurst known as the Tumulla Bank. The plaintiff alleged that as a result of the jerking action of the train she suffered a whiplash injury to her neck.

The issue of liability was strongly contested at the trial, but the trial Judge accepted the evidence of the plaintiff and two other lay witnesses called on her behalf - the twin sisters Lorraine and Leanne Wright. He did not find it necessary to deal in any definitive way with the expert evidence where there was a conflict between a Mr Nicholson called on behalf of the plaintiff and a Mr Sullivan called on behalf of the Authority. He assessed the plaintiff's damages at $30,000.