Fuller-Lyons v State of New South Wales (No 1) [2013] NSWSC 411

Supreme Court New South Wales

Medium Neutral Citation: Fuller-Lyons v State of New South Wales (No 1) [2013] NSWSC 411 Hearing dates: 23 April 2013 Decision date: 23 April 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender of engineer's report rejected. Parts of safety expert's report rejected but tender of balance allowed. Catchwords: Opinion evidence - relevance - expert allegedly adopting role of "advocate" - qualifications - whether plaintiff's case confined to that suggested by his own evidence. Legislation Cited: - Evidence Act 1995 - s 80, s 81, s 135 Cases Cited: - Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 54 ACSR 326 - Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Category: Procedural and other rulings Parties: Corey Travis Fuller-Lyons (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C.T. Barry QC, G.J. Davidson (Plaintiff) R.J. Burbidge QC, A.C. Casselden (Defendant) Solicitors: AC Lawyers (Plaintiff) Hicksons (Defendant) File Number(s): 2008/316134

Judgment - Ex tempore on admissibility 1Objection is taken by senior counsel for the defendant, Mr Burbidge QC, to the tender on behalf of the plaintiff of two expert reports. To address the objections it is necessary to briefly outline the nature of the proceedings. 2The plaintiff sues the State of New South Wales as the legal entity responsible for the conduct of the train service between Sydney and Newcastle on 29 January 2001. On that day, when he was eight years old, the plaintiff was travelling on the train with his two older brothers. Some minutes after the train left Morisset Train Station, the plaintiff fell from the western side of the train and was severely injured. 3It appears to be common ground that the only possible exit point or points from the train were the doors of the train. In particular, it seems at this stage most likely that he exited from one of the doors on the western side of the front carriage as the train travelled northwards. It is fair to say that how the plaintiff could have fallen through the doors is a matter of some conjecture and, the plaintiff submits, ultimately one of inference. In his opening, senior counsel for the plaintiff, Mr Barry QC, submitted that the Court would have to determine how the accident occurred by the process of drawing inferences from the undisputed events, the characteristics of the train and, in particular, the operation of its doors. 4The particulars of negligence alleged against the State of New South Wales are as follows: "a. Failing to take reasonable care for the Plaintiff's safety and well being; b. Failing to maintain the railway doors to prevent them from opening without warning; ... e. Failing to have in place a system or mechanism to identify whether a door remained open at the time for departure of the train from a station; ... g. Failing to observe that a door remained open when the train departed from the previous station; h. Failing to observe or detect that a door had been opened or come open whilst the train was in motion; ... k. Failure to display instructions on the train for a passenger to advise the rail guard and/or train driver of a door malfunction; l. Failure of the driver of the train and/or rail guard to properly check the operation of the train doors before putting the train in motion; m. Failure of the railway staff at each station including but not limited to Morisset on this occasion and on all previous occasions during which rail car DJM8124 was in service, to:- i. Notice a train door not closing properly ii. Inform the rail guard that the door was not closing properly; n. Failure to put remedial measures in place to deal with a door which permitted it to pivot, leaving a gap through which a passenger could fall; o. Failure to put remedial measures in place to deal with a door which became stuck temporarily or permanently in a position where if [sic] left a gap through which a passenger could fall; p. Failure to properly maintain the train doors to:- i. Ensure that they did not pivot when closing and leave a gap. ii. Ensure that they slid smoothly and did not become stuck when closing; q. Failure to train staff in the way in which the door was capable of malfunctioning; and r. Failure to take simple mechanical precautions to prevent the door from pivoting and/or leaving a gap when closing." 5Subparagraph 8(a) does not take the matter very far and subparagraph 8(b) was said, in particulars, not to be relied on. It is noticeable that the manner in which those particulars are framed does not confine the plaintiff to identifying the precise means by which he fell from the train. 6In his opening, Mr Barry QC raised three possibilities as to how the accident happened. The first was that there was deliberate interference with the doors of the train, and in particular interference at Morisset Train Station, that prevented the doors from closing. The second possibility was said to be that the doors opened in the course of the train travelling. The third was what was described as a "trap and grab". That is, the doors on the railcar closed trapping the plaintiff in them when it left Morisset Train Station and he wriggled out of the doors a few minutes later but was ejected as the train went around a sharp bend. 7In his evidence, the plaintiff said that he had some recollection of how the accident happened. He said: "I was standing at the door and the doors suddenly opened". 8During the course of submissions on the admissibility of these experts reports, Mr Burbidge QC submitted that the plaintiff was, in effect, confined to running a case that was consistent with this evidence, namely that the doors were closed and only suddenly opened at the time he fell from the train. I do not accept that contention. There is no reason, as a matter of principle, why the presentation of a plaintiff's case is solely confined to the version of events the individual plaintiff gives in the witness box. In circumstances where, at the time of the accident, the plaintiff was only eight years of age, suffered significant injuries, including head injury, and gives their oral evidence some twelve years later, I see no reason as a matter of practice, or even good forensic sense, why the plaintiff should either limit themselves or be confined to a case which is focussed on the recollections of a boy who was eight years old at the time of the accident.