New South Wales Supreme Court CITATION : LANGBORNE v STATE RAIL AUTHORITY OF NSW [2005] NSWSC 47 HEARING DATE(S) : 15, 19, 20, 21, 22, 28 May 2003; 16, 17, 18, 19, 20 June 2003; 13, 14, 15 October 2003 JUDGMENT DATE : 14 February 2005 JUDGMENT OF : Levine J DECISION : 1 Verdict for and judgment in favour of the defendant; 2 Plaintiff to pay the defendant's costs; 3 The exhibits and MFIs are to be returned. CATCHWORDS : Negligence - trespasser deliberately jumps from moving XPT - duty owed - no breach Henwood v Municipal Tramways Trust (1938) 60 CLR 438 Hoyts Pty Ltd v Burns [2003] HCA 61 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Robinson v State Rail Authority of NSW (unreported, NSWSC, Malpass M, 9 August 1996) Rundle v State Rail Authority of NSW [2002] NSWCA 354 CASES CITED : State Rail Authority of NSW v Mayle [1999] NSWCA 388 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 University of Wollongong v Mitchell [2003] NSWCA 94 Waverly Council v Lodge (2001) 117 LGERA 447 Waverly Municipal Council v Swain [2003] NSWCA 61 Wyong Shire Council v Shirt (1980) 146 CLR 40 MARK LANGBORNE (Plaintiff) v PARTIES : STATE RAIL AUTHORITY OF NEW SOUTH WALES (Defendant) FILE NUMBER(S) : SC 20134 OF 2001 M Cranitch SC / M Inglis (Plaintiff) COUNSEL : PH Greenwood SC / P Biggins (Defendant) Commins Hendriks (Plaintiff) SOLICITORS : Dibbs Barker Gosling (Defendant) LOWER COURT JURISDICTION : [2005] NSWSC 47 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JUSTICE DAVID LEVINE MONDAY 14 FEBRUARY 2005 20134 OF 2001 MARK LANGBORNE (Plaintiff) v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Defendant) JUDGMENT (Negligence – trespasser deliberately jumps from moving XPT – duty owed – no breach) 1 At the commencement of the hearing of the action to which these reasons for judgment relate, evidence was called in matter number 20452/02, Langborne v Whitbread. The present SRA matter involves an incident which occurred on the 11th of May 1997 constituted by the plaintiff "coming off" the XPT a short distance out the Sydney side of Goulburn railway station. 2 The Whitbread action involved a motor accident which occurred on the 4th of November 1997. 3 On the 21st of May 2003, settlement was reached in the Whitbread matter and the balance of the hearing was concerned solely with the SRA event. 4 The final form of the pleading of the plaintiff's case against the defendant was in an Amended Statement of Claim filed in court on the 18th of June 2003. The plaintiff alleges that on the 11th of May 1997 he was travelling as a passenger (in reality, as the evidence discloses, he was a "trespasser") on train number ST2, being the XPT service between Melbourne and Sydney. At a point between Goulburn and Moss Vale, it is pleaded, the plaintiff fell from the train and thereby suffered injury. 5 The particulars of negligence are as follows: " PARTICULARS OF NEGLIGENCE The defendant by itself, its servants or agents was negligent in that it: 1. Failed to ensure that all entry/exit doors on the carriages were locked and secure whist the train was in motion. 2. Failed to install and maintain a system for ensuring that all doors on the carriages were locked and secure whilst the train was in motion. 3. Failed to adequately or at all sign post and mark all doors to the carriages. 4. Failed to clearly mark and identify doors to toilets contained in the carriages. 5. Failed to warn passengers including the plaintiff that exit doors could be opened whilst the train was in motion. 6. Failed to adequately or at all supervise passengers on the train. 7. Failure to differentiate the toilet and external doors by both signage and colour inside the carriage vestibule. 8. Failure to ensure any warning signs which were used were as effective as possible by use of conventional warning or prohibitive symbol ensuring that: - i) It was highly visible and prominently located; ii) It conformed with other signs of its kind and was therefore familiar to the viewer; iii) It was legible with graphics and typeface that were well designed in terms of size and shape; iv) It used colour and space in an effective manner; v) It was in good repair and unspoiled by vandalism graffiti or wear and tear. 9. Failure to comply with Australian Standard AS/NZS 4360:1995 Risk Management and engage in proper risk analysis in association with that standard having regard to severity of injury and frequency of occurrences of people falling from then open door of trains." 6 It will be seen that essentially the particulars relate to the security of the doors on carriages (I do not understand "supervision of passengers" to have been pressed), and what I will call the semiotic aspect, namely the confusion between the appearance of a toilet door and an exit door of the XPT. 7 This two-fold approach, in the end, can be seen to have been pleaded and litigated to accommodate two quite distinct factual probabilities. The first is that the plaintiff (for reasons to which I will come in due course) deliberately opened the door and jumped off the train after it had left Goulburn station. The second is that he confused the exit door with the toilet door and thus "fell" from the train. Other "scenarios" were proffered as the case progressed and are referred to below. 8 The plaintiff's account is best revealed in his evidence in chief (at T50-52): "Q. You know that you had an accident on 11 May 1997? A. (Witness nodded). Q. Before boarding the train, where had you been? A. I went to a mate's place and caught up with them and then they were having a party. Q. There was a party on. And who was your mate? A. I think his name was Cain. Q. Were you drinking at the party? A. I think I had one or two glasses of wine, if that. Q. Did you meet a gentleman by the name of Shawn at the party? A. Yes. I actually went to the party with Shawn. Q. Was he a friend of yours at that time? A. Yes. Q. Where was Shawn living at that point in time? A. At the refuge. Q. Did you and Shawn have some plans for what you would do after the party? A. Yes. Q. What was that plan? A. Catch the XPT. Q. From where, from Wagga? A. From Wagga. Q. Where were you going? A. Sydney or Goulburn. I got them both in me head. Q. Beg your pardon? A. I had both Sydney and Goulburn in my head. Q. That's what you recall now. Do you have any other recollection now about whether you were to stop at Goulburn and then proceed to Sydney or whether Goulburn was your destination? A. We would stop at Goulburn and then go to Sydney. Q. What time did the XPT leave Wagga? A. Midnight, a couple of minutes after or whatever. Q. Around midnight you thought? A. Yes. Q. Did you leave the party with Shawn with the express purpose of catching the XPT? A. Yes. Q. Did you have any money for a fare? A. No. Q. What did you do when you got to Wagga Station? A. Hopped on the train. Q. Did you hop on with Shawn or did you separate? A. No we separated. He hopped on one carriage, I hopped on a couple down. Q. Were you at the front of the train or the back of train, do you remember? A. No I don't, sorry. Q. Had you been on a train before? A. Yes. Q. How often had you been on a train? A. Can't remember exactly, but a couple of times. Q. Had you ever been on the XPT before? A. Yes. Q. Do you remember in what circumstances you had been on the XPT previously? A. Sydney to Wagga, Wagga to Sydney. Q. Was that to see people in Sydney? A. I think so. Q. Were you accompanied on those other occasions when you went on the XPT prior to this night? A. Yes. Q. Who was with you? A. Me mum. Q. After you got on the XPT, what happened, did you take a seat there? A. Yes. Q. Did you remain in that seat during the course of the journey through to Goulburn or did you have to get up from time to time? A. No I remained in the seat. Q. What was the plan about Goulburn. Were you to get off at Goulburn? A. Yes. Q. When you sat down in your seat, what happened to you? A. I went to sleep. Q. Do you remember waking up? A. Yes. Q. Do you remember where the train was when you woke up? A. Leaving Goulburn. Q. What did you do so far as you can recall? A. I got two thoughts in me head; looking out the window or looking out the door, and then I remember sitting back down. Q. So you looked out. It was either out of the window or out of the door? A. Yes. Q. And then you remember sitting back down again? A. Yes. Q. Do you remember anything else after that? A. Waking up in hospital." 9 In cross-examination, the plaintiff essentially adhered to the vagueness of his account. It was elicited from him however that he "looked outside and saw something with Goulburn on it". This, I understood to be, was when the train was "going slow" leaving that railway station. He then got up from his seat and "went somewhere"; looked out the window or a door, decided the train was going "too quickly" and resumed his seat. 10 The evidence from the plaintiff, it cannot be stressed too much, proves nothing as to what in fact happened. He simply does not remember. 11 The only other person concerned in the enterprise on the train was Mr McCallum whose testimony overall was, to the extent that it could be comprehended, of such unreliability as to be of almost zero utility. He gave three accounts, one of which was an admitted false one to the police. It does appear however that as far as his intention was concerned, at the age of about 15 years, it was to "hop" the XPT to end up in Sydney with a view to going to Holsworthy Army Barracks to obtain a cache of firearms. The statement he made to the police is exhibit H and that which he made to the investigator is exhibit J. 12 The only conclusion to which I can come from the testimony of this witness is that he, having suggested first that they get off at Goulburn, then changed his account to having suggested that he and the plaintiff get off at Moss Vale, and that somewhere after Goulburn and before Moss Vale, he lost the plaintiff on the train and expressed anxiety when he himself disembarked at Moss Vale. Such is the want of confidence that I have in the testimony of this witness that it would be unworthy even to speculate whether his final account, insofar as one can work out what it was, was produced to eliminate the possibility of the plaintiff deliberately jumping off the train rather than to create a factual construct in which the probability was that the plaintiff confused the external door for the toilet door or fell out of an "open" door). 13 During the hearing, a view was conducted. The parties boarded the XPT at Wagga Wagga at midnight and disembarked at Junee. In the context of course of not knowing through which door the plaintiff came off the train but it being the upside, that is the left-hand side of the train as it is going to Sydney, it was patent that upon the train being maintained at a speed of 60 kph, a speed at which it was at the point after Goulburn where it is assumed the plaintiff left the train, that upon the opening inwards of the external door, the rush of air and the sound of the speed clearly indicated that it was not a door to a toilet. 14 Other areas of testimony relevant to the plaintiff's "leaving" the train were questions asked of certain witnesses as to the dynamics of a person leaving a train travelling at 60 kph. Evidence on that subject was given by a consulting engineer, Mr Simpson, called for the plaintiff (exhibit R). In cross-examination Mr Simpson gave the following evidence (T138-139): "Q. Can I ask you not about trains but dynamics. A person coming out of a train that is going 60 kilometres an hour comes out at 60 kilometres an hour, right? A. Yes. Q. And if a person comes out of a train facing, as it were, perpendicular to the train, then their feet when they hit the ground will be immediately swept to the left? A. Yes. Q. And their body will immediately rotate to the right? A. Yes. Q. And in those circumstances, one would expect that the body would hit on the right-hand side – hit the ground on the right-hand side? A. Yes. Assuming, of course, that it – the body moves out and doesn't change orientation on the way. Q. You have raised that as a possibility because a person, when they step out, may well pitch forward? A. Pitch forward or rotate. Q. In the course of the falling? A. Yes. Q. By contrast, if a person jumps from a train facing in the direction of travel, their feet will hit the ground again at 60 kilometres an hour? A. Yes. Q. And their body will rotate forward so that they will come down on their hands, knees and face? A. Yes." In re-examination, in elucidating the reference to the change in orientation, Mr Simpson said (T141-142): "A. There has been a lot of research in particular involving motor vehicle accidents as to the dynamics of bodies of humans and it has been confounding during that to find that the bodies do not necessarily move as simple physics would suggest. They do not just travel as rigid objects. There is an additional factor involved apart from the elasticity and the ability for all the joints move of whatever the person attempts to do during the manoeuvre. Animals and humans will attempt to save themselves in one way or another which seems to suggest an attempt to turn their body one way or another either to face or about-face an object approaching, things of that nature, in order to protect themselves. Q. And does that, just to understand your evidence, alter the orientation that you would expect otherwise? A. Yes, the classic example is lifting a cat up, turning him upside down and dropping him. He is well-known to land on his feet. The energy and the source of movement comes from within the body. It is not reliant on something outside." 15 Professor Joubert was called for the plaintiff and he was cross-examined at some length again on this subject, and I will extract part of that (T49-50): "Q. Now, Professor, when a person exits from a train and the train is travelling about 60 kilometres per hour they are travelling at 60 kilometres per hour, aren't they? A. Yes. Q. And so the first part of the body that touches the ground, it's the ground travelling at or very close to 60 kilometres per hour? A. Yes, plus the velocity of height they might have fallen through. Q. In terms of the height, just looking at the train depicted in Photograph 3 to your first report Exhibit B, is the height of the doorway, the bottom of the doorway there on that train about five feet or so above the ballast? A. It appears so. Q. So, in terms then of touching the ground, is it right then that as the ground is going past the person at 60 kilometres per hour whatever part of their body touches the ground first will hit and move, using this instance, namely, the track going north and coming out on the side we know Mr Langborne came out, the first part of the body will go immediately to the left? A. I am not sure of your orientation. Q. All right, I will try and make it clear. Whatever part of the person's body that touches the ground first will come in contact with a stationary force and the rest of their body will continue to move at 60 kilometres per hour? A. Well, the centre of gravity would be falling through a parabolic path. It will have a downward velocity as well as the horizontal velocity of 60 kilometres per hour so the centre of gravity will strike, well, will create an angle to the horizontal at ground level. That part of the body that first touches the ground will be decelerated relative to the centre of gravity and the body will probably rotate. Q. You put into terms what I was trying to say. So, for example, if I were to step off the Bar Table and the ground was going at 60 kilometres an hour under me and I just step off facing the side of Court, my feet would hit the ground and the rest of my body would pitch to my right, correct? A. Yes. Q. If I were facing His Honour and jumped off the Bar Table on to the ground and the ground was going 60 kilometres an hour under me – A. Yes. Q. – then I would pitch forward onto my face, wouldn't I? A. I – assuming you landed vertically. The art in jumping off a moving vehicle and still maintaining a balance is to put your feet further forward, of course, but at 60 kilometres an hour there is only academic. Q. Have you examined the material that was produced to the Court in relation to the Coronial investigation undertaken in relation to Mr Jones' incident? A. Not been shown that. I don't think so. Q. In the circumstances where I first demonstrated stepping off the Bar Table hitting the ground and my right side would connect with the ground, one would expect that my right arm would come into severe contact with the ground, correct? A. It's a possibility but it may not have happened that way. Q. You would agree with me that the most likely scenario would be that the right side of my head would hit the ground? A. That is a possibility but that is all I can say at this stage. Q. In those circumstances wouldn't you agree it would be probable that a person stepping from a train in that way that I have just demonstrated would be likely to suffer on their right side fractures to their arms, leg and to the right side of their head? A. Problem with accidents is that the unusual often happens." 16 The last answer is perhaps in the end the most useful of all this material that sought to assist the court in determining whether, as-it-were, the plaintiff "fell" or jumped. None of this material assists me in coming to the conclusion to which I will refer in due course. 17 With respect to the witnesses and the parties, when one considers this testimony it is very difficult, to the extent that it is comprehensible, to see what part it can play in a real sense in determining the critical factual issue. 18 I add for completion that a report of Dr Millons (exhibit 13) was tendered for the defendant on this issue. It was tendered over the objection of the plaintiff, Dr Millons being unavailable to be cross-examined. The view he expresses, based upon his understanding of the compression fractures to the plaintiff's spine, in particular taking into account his youth, was that the probabilities favour the jump and a heavy landing rather than a mere falling out of a train. Bearing in mind the plaintiff's position vis-à-vis Dr Millons, I cannot help but remark that his short and simple explanation is of more utility than the convolutions through which the experts went on this subject-matter. 19 It is appropriate to deal with what, in the end, was a proffering of alternative scenarios by the plaintiff in the circumstance where he has no recollection of what happened. 20 The first was that the doors were not closed when the train left Goulburn and the plaintiff in some way was merely walking past and fell out. This is purely speculative in nature. There is a want of evidence of a door being left open when the plaintiff left Goulburn and what led to the plaintiff "falling out". And to the extent that the matter of the dynamics to which I have referred above and the injuries sustained referred to in Dr Millons report, there is some inconsistency. 21 This scenario, it was argued for the defendant, and I accept, was not consistent with other evidence about the plaintiff's reason to exit the train. It is contradicted in the evidence of Mr McCallum that there were no doors open and is contradicted by the evidence of Mr Smith (for the defendant) as to the usual procedure for the closing and checking of doors. In any event it provides no explanation consistent with the plaintiff's evidence, such as it was, or otherwise, as to how he came to fall off the train. 22 The second alternative scenario is to the effect that someone had opened the door after the train had left Goulburn station and somehow, again, the plaintiff, walking past, fell out. The same considerations apply as to the first of the alternative scenarios. The extra problem here, as the defendant in my view correctly identifies, is that there is no basis upon which a finding of negligence on the part of defendant could be made in relation to a casual act by negligence (if that is what it was) by a passenger (if that is who did it). I find further from exhibit 17 that at the point of exit the track was straight: that is, no movement of the train could account for the exit through such an open door. 23 I turn to the principal scenario, namely the confusion in the plaintiff between the toilet door and the adjacent exit door. Associate Professor Finkelstein in her quite interesting evidence agreed that the signage on the typical toilet door at the time had the characteristics (as a matter of semiotics) that rendered them "most effective". As the defendant submits, when a person wishing to go to the toilet looks first for a sign that indicates that it is a toilet before opening a door and then checks (in a situation such as an aeroplane or a train) whether the toilet is occupied, there is little room left for inferring that the plaintiff on this occasion may have thought he was going to a toilet when he had put his hand on the exit door and opened it. 24 The evidence constituted by the view, as I have already remarked, makes it obvious that opening inwardly a door of a train travelling at 60 kph made it clear that it was not a door to a toilet. No other reasonable, and I stress the word reasonable, conclusion can be reached in that regard. 25 A difficulty with Professor Finkelstein's evidence was that her report (exhibit Q) was based upon her observations of one photograph that had been emailed to her but never produced to the court and without any observation of an actual carriage or a consideration of all the issues relevant to the application of signs or the relevance to this case. At its highest, as the defendant submits, Professor Finkelstein's evidence amounts to no more than an assertion that other signs could have been placed on the exit doors to provide additional warnings that they were exit doors, an assertion that is not contentious. 26 In reality, the suggestion that the plaintiff "exited" the train by opening the external door in mistake for a toilet door cannot be accepted because of the flawed basis upon which it purports to rest, namely that the plaintiff himself was of that view. That is not the plaintiff's evidence. There is absolutely no evidence from the plaintiff to find on any reasonable basis what is no more than a hypothetical exercise in semiotics. 27 I reject the principal scenario – it is with the utmost respect essentially bizarre and a fruitless nonsense. 28 I find that the plaintiff on boarding the train was not under the influence of alcohol. He had a couple of plastic glasses of wine sometime beforehand. There is no evidence that persuades me that he was under the influence of drugs or medication, though he had a history of marijuana use. On the probabilities the arrangement was that he and his travelling companion were in fact to alight at Goulburn. They sat separately and the plaintiff dozed off, woke up and either through a window or a door saw something with "Goulburn" on it. He realised that the train was leaving the station and deliberately chose to exit the train at the point north of Goulburn as indicated in exhibit 17 (a video), a built-up and well-lit area. That he should do so is supported to some extent by the testimony of Mr McCallum. Once, however, all other scenarios are rejected, which each rationally can be in my view, the plaintiff on his own account leaves only one probability available, and that is the one which I have found. 29 There are other aspects of the evidence that support the finding that the plaintiff chose to jump from the train. He had arranged with his father on the preceding Friday to visit his mother on the Sunday, that Sunday being Mothers' Day. Mrs Langborne was unaware that the plaintiff was leaving Wagga; he had spoken to his mother and had said he was going to visit her at Coolamon hospital on that Sunday. It would have been out of character according to Mrs Langborne for her son not to have kept that arrangement. 30 It is clear to me that a great deal of spontaneity attended the boarding of the train, and that the seed for the exercise was planted by Mr McCallum. 31 The plaintiff further had to attend lectures at TAFE on Monday and the tenor of his evidence in relation to his education was that he was enjoying it and was diligent. Other evidence was, though it cannot be said to be of overwhelming weight, that the plaintiff apparently told his father that he recalled "standing by the door" and that he had told, according to Mr Langborne Snr, a Dr Davidson that he had been standing at an open door. The plaintiff had grown up, as I understand it, with a train carriage in his backyard from which he used to jump. 32 Exhibit 3, which is a map of Goulburn, and exhibit 17, which is a videotape of the train departing Goulburn and the route it followed around the area of Goulburn station, discloses the particular area to be built-up and well-lit and that the area where the plaintiff left the train was the first open area and close to the town at a point where the train was travelling relatively slowly. 33 The plaintiff's position in relation to an asserted confusion between the exit door and the toilet door is simply untenable. I have already referred to the foundational problem that the plaintiff cannot even remember what happened. He could remember looking out at either a door or a window and seeing the word 'Goulburn'. The evidence of the semiotician falls by the wayside as irrelevant. 34 The fact however that the plaintiff deliberately jumped off the train does not, however, end the matter. Liability in negligence? 35 The defendant, although the plaintiff was a trespasser, accepts that it owed the plaintiff a duty of care (Henwood v Municipal Tramways Trust (1938) 60 CLR 438). In all the circumstances, however, the defendant's position is that the scope of that duty was "no more and no less" than the ordinary duty to take reasonable care (Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 per Mason J at 20). The defendant submits that it had no duty to prevent the plaintiff from undertaking a deliberate and obvious act that could result in him being injured, nor did it have a duty to provide warnings about matters that were obvious: see Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; Waverly Council v Lodge (2001) 117 LGERA 447; Waverly Municipal Council v Swain [2003] NSWCA 61; University of Wollongong v Mitchell [2003] NSWCA 94; Hoyts Pty Ltd v Burns [2003] HCA 61. 36 The defendant concedes that although it accepts that the risk of a person jumping from the train was foreseeable (Wyong Shire Council v Shirt (1980) 146 CLR 40), the words from the oft-cited passage as follows cannot be overlooked (per Mason J at 48): "But, as we have seen, the existence of the risk of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." (See also Bryson JA at 457-458 in Lodge , supra). 37 Underpinning the defendant's submissions on the question of breach is the following statement of Mason J in Shirt (at 47-48): "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 38 It is desirable also to bear in mind what Gleeson CJ said in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 330: "…in the context of the law of negligence, carelessness involves a failure to conform to a legal obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned. A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages?" 39 As I have found, the plaintiff deliberately opened the door and exited the train because he had missed getting off at Goulburn. As I have also indicated, that renders irrelevant the consideration of signage (which would not have stopped him) and the "fascinating construction" being exhibit O, which also would not have prevented the plaintiff from doing what I found that he did. Exhibit O is the buzzer system to which reference is made in the evidence. A person, having lifted the cover of the handle and thus activated the buzzer, would have made a noise: but the plaintiff still would have embarked on his perilous journey out of the railway car. 40 Before referring to the evidence on the issue that goes to the question of breach, I was referred by the defendant to some cases involving itself in which the conduct of the relevant plaintiff was, to say the least, extraordinary. In Robinson v State Rail Authority of NSW, Malpass M (unreported, NSWSC, 9 August 1996) entered a verdict for the defendant in circumstances where the plaintiff was injured when he deliberately hung out of the doors of a moving carriage and hit a stanchion adjacent to the track. Arguments similar to those raised in this case were put in relation to signage and "closing force bias" on the doors, each of which was rejected. 41 In State Rail Authority of NSW v Mayle [1999] NSWCA 388, a passenger was injured when a projectile broke through the window beside her and hit her in the face. There was no suggestion that the SRA had been negligent in selecting the glass used in the windows of the carriages. Rather it was suggested that some mesh screen should have been fitted to the trains to prevent such an event. In relation to the fitting of the screen (even if feasible) the court observed (per Handley JA at paras 22-23): "22 There was also a question of causation which it seems his Honour completely overlooked. There could be no question of the Authority being bound to withdraw all of these 316 carriages from service at the one time and to keep them out of service until guards had been fixed to these windows. The highest the duty could possibly be put, and was put, was that the Authority should have fitted guards to the windows of these carriages progressively as they were temporarily withdrawn for maintenance or repair. 23 There was no evidence as to how long this process would have taken, and there was no evidence, other than the four incidents referred to, which would enable the court to fix the starting point for this process. There is therefore no evidence from which the court could determine the stage that this process should have reached by June 1989, and the probability or otherwise of this particular carriage having been fitted with mesh guards by that time." 42 Finally, in Rundle v State Rail Authority of NSW [2002] NSWCA 354, a 15-year-old plaintiff was injured whilst leaning out of a carriage window and spraying graffiti on the roof of the carriage. It was argued for the plaintiff that the windows were defective. Heydon JA, delivering the judgment of the court, stated (at para 38): "…there is no true analogy between an injury suffered by a passenger using the carriage in the way it was intended and an injury suffered by the present plaintiff while carrying out a dangerous, foolhardy and reckless act in the course of which he was damaging the defendant's property, and thereby using the window for a purpose for which it was not intended." 43 In the face of the evidence called by the defendant, the plaintiff could not persuade me on the balance of probabilities, within the framework of the principles referred to above as to breach both by Mason J as his Honour then was and Gleeson CJ, that he had succeeded in making out a case. 44 The principal witness for the plaintiff was a Professor Joubert, whose reports were exhibits B and M. 45 I hold that Professor Joubert could not present himself as an expert on railways. Indeed the impression given is that he knew little about them, let alone the XPT in particular. He is not a member of relevant organisations, for example the Australasian Railways Association Inc, a railway technical society of the Institute of Engineers. He gave the impression of being unacquainted with relevant terminology as to "up" and "down" in track terminology. He was not familiar with staffing levels on the XPT in 1997. He did not strike me as having any knowledge about the details of the locking system that was included in the 13 carriages required by the SRA in 1993, or the processes that followed thereafter for the retrofitting of carriages and the installation of a whole new system on all doors throughout the XPT service. 46 I have already made some remark about his exhibit O, and it appears that he was less than accurate in his testimony to the court about certain testing operations. 47 Each of Professor Joubert's proposed "alternatives" was in my view successfully, articulately, rationally and reasonably "demolished" by a far more impressive witness, Mr Cowling. To the extent, for example, that it was the opinion of the Professor that "an automatic closing and locking door would have prevented the accident", Mr Cowling agreed but stressed, conformably with the evidence which in fact and thematically had been given that as at April 1997 there was no proven system, and what had already been implemented and fitted on the XPTs was proven to be unreliable and hence unsafe, and that he did not believe it would have been appropriate to have fitted the system then anticipated in 1997. 48 I was impressed by the candour of Mr Cowling and his knowledge of facts. In exhibit 8, the second report, he said: "Since preparing my report dated the 21.8.97, the Defendant has retrofitted an automatic door safety interlock system to the passenger doors of all XPT carriages. I made reference to a proposed door locking system in Part 11 of my report. This system like others before it was not implemented due to alleged technical difficulties. The present system resulted from a tender submitted by an Australian company BAS Rail Vehicle Consultants Pty Ltd on 24.11.98. The system was completed at a cost of $1.3 million and fully commissioned on the entire XPT fleet on 22.10.2000. The implementation of the present system offers reasonable protection for occupants in the event of fire. It also means that during transit, a fall from the passenger doors of a moving XPT carriage could not reasonably be envisaged. Had this system been installed and operating correctly on the train in which Mark Langbourn travelled, the fall could not have occurred." 49 Of course what Mr Cowling says there is quite compelling – indeed it is obvious. But what was equally compelling was his analysis in the evidence that any system in mind as at 1997 simply had not been proven to be workable or reliable. The unreliability of the antecedent considerations are set out, inter alia, in exhibit 7 and Mr Cowling's testimony. Nothing that he there says persuades me that the non-implementation of that which was ultimately implemented was unreasonable (the system was unreliable in 1997) and I am persuaded that no "breach" has been established at this point. 50 A Mr Simpson was also called on behalf of the plaintiff as he, as had Mr Cowling, had been involved in the examination of a fatality involving a person who had come off an XPT. That person was a nine-year-old boy. Mr Simpson had expressed an opinion, having had regard to exhibit 7 (Mr Cowling's first report), that technically such door locks could have been very easily fitted as a retrofit or at the point of manufacture of the carriages well prior to 1997. Mr Cowling dealt with this aspect in the following persuasive terms (T196): "…For all the reasons that I gave in my reports about the difficulties of retrofitting and of the very real difficulties involved in that, I say that is not a very realistic proposition. I come back to the problems being experienced in this time, 1995 to 1997, where it was shown there were real difficulties in retrofittings and these were not imagined nor were they unrealistic. So it is correct to say that trains could have been fitted with these and we know, for example, that the ones delivered in 1993 were in fact delivered with the compressed air-actuated bolts. Again we have seen with the best will in the world that it was done. It was still not practicable nor did they work. Q. Mr Simpson proposed in his testimony that one way of dealing with the problem that you have identified about the potential loss of life in the event of fire was to have doors that were released. The locks were released when the train came to a stop and he proposed, firstly, at page 140 of the transcript, 19 June, line 15, a pneumatically operated bolt that would operate when the train was moving only and the notion that he expressed at pages 140 and 141 was when the train stopped then there would be an automatic release of the lock. What do you say about that proposal? A. One of the real problems with that is you have the situation where people on board the train could then open the doors when it stopped for a signal in transit. So you are no longer dealing with the problems on transits. That problem is not related to loading or unloading on platforms. It is when the train stopped. Experience has shown and experience backed up with the UK with the HST trains where the bolts were fitted it was not reliable in releasing and the tolerances on the operation of the doors means that during the journey the doors tend to jam that type of lock in place and they are not reliable. So dealing, firstly, with the issue of when it stops. That simply means that the train has stopped so people hop out for any reason. Then the second aspect is that it is not reliable anyway, the actuated lock." 51 Mr Shields was called for the defendant and gave detailed factual evidence relating to the history of the XPT and steps undertaken to introduce a safe system for the automatic locking of doors. Its straight-forwardness rendered Mr Simpson's rather simplistic "pneumatic bolt system" approach all the more unacceptable as a component that would discharge the plaintiff's onus of proof on the question of breach. 52 In the end, the following propositions could be stated: that the system ultimately installed would of course have made it physically impossible for the plaintiff deliberately to have jumped off the train. The system ultimately installed was in place of one which I am persuaded was recognised as being unreliable as at the relevant time, 1997, and that it was unreasonable for it or any of the possible alternatives by the plaintiff to have been adopted and installed. 53 None of what was proffered by the plaintiff in this case is sufficiently persuasive that a reasonable conclusion can be formed by the tribunal of fact that any one of them represents a "standard response" to be ascribed to the reasonable State Rail Authority placed in the defendant's position in the light of what is found to have taken place, namely in April of 1997 the 17-year-old plaintiff chose deliberately, and unaffected by alcohol or drugs or medication or sleep as I find it, to jump off the train because he missed getting off, as planned, at Goulburn. 54 I have made no mention of a factor that permeated the evidence of those who were proffered as experts, and that is what is fundamentally a dilemma: are passengers to be locked in or "contained" by a mechanism which prevents their escape in the event of fire or other catastrophe? There were references to rather horrendous events overseas. Mr Cowling was satisfied that the system ultimately adopted offered reasonable protection for occupants in the event of fire. To that extent the system decided upon and adopted after 1997 resolved the dilemma. 55 I will only add in a context unrelated to my reasons that this dilemma is still a current one and was referred to by the Honourable Peter A McInerney QC in his Final Report of the Special Commission of Inquiry into the Waterfall Rail Accident, vol 1, January 2005 at p 233ff. 56 Accordingly: 1. I find a verdict for and enter judgment in favour of the defendant. 2. The plaintiff is to pay the defendant's costs. 3. The exhibits and MFIs are to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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