SRA v MAYLE [1999] NSWCA 388

New South Wales Court of Appeal CITATION : SRA v MAYLE [1999] NSWCA 388 FILE NUMBER(S) : CA 40463/98 HEARING DATE(S) : 29 June 1999 JUDGMENT DATE : 21 October 1999

PARTIES : STATE RAIL AUTHORITY OF NEW SOUTH WALES v MAREE JOSEPHINE MAYLE JUDGMENT OF : Handley JA at 1; Sheller JA at 26; Beazley JA at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7443/97 LOWER COURT JUDICIAL OFFICER : Herron DCJ

COUNSEL : C R R Hoeben SC/P Higgins (Appellant) J V Aigus SC (Respondent) SOLICITORS : Dibbs Crowther Osborne (Appellant) Potts Latimer (Respondent) CATCHWORDS : NEGLIGENCE - passenger injured by projectile breaking window on train - foreseeability - whether injury reasonably foreseeable - whether protective screens should have been fitted - whether evidence supported findings CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8 DECISION : Appeal allowed with costs - orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40463/98 DC 7443/97 HANDLEY JA SHELLER JA BEAZLEY JA

21 October 1999

STATE RAIL AUTHORITY OF NEW SOUTH WALES v MAREE JOSEPHINE MAYLE

NEGLIGENCE - passenger injured by projectile breaking window on train - foreseeability - whether injury reasonably foreseeable - whether protective screens should have been fitted - whether evidence supported findings

The respondent was injured when a projectile broke through the window of the "red rattler" carriage in which she was a passenger. She sued the appellant for negligence in failing to take reasonable steps to protect passengers from injury caused by projectiles launched at trains. The trial Judge found that the risk of injury was clearly foreseeable, that the degree of probability of such a projectile injuring a passenger was relatively high, and that protective screens should have been fitted to the windows. HELD , allowing the appeal: (1) The evidence did not support the finding that the degree of probability of a projectile hitting a passenger was quite high. (2) The evidence did not support the finding that the fitting of the protective mesh screens was a relatively simple solution with little inconvenience or expense. ORDERS (1) Appeal allowed with costs; (2) Judgment entered in the District Court set aside; (3) Substitute judgment for the defendant in the action with costs; (4) The respondent is to have a certificate under the Suitors Fund Act.