Rail Corporation New South Wales v King [2014] NSWCA 207

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rail Corporation New South Wales v King [2014] NSWCA 207 Hearing dates: 19 May 2014 Decision date: 01 July 2014 Before: McColl JA at [1]; Basten JA at [2]; Leeming JA at [35] Decision: (1) Allow the appeal and set aside the judgment and orders of Davies J made on 12 April 2013. (2) In place of those orders, (i) give judgment for the defendant (RailCorp); (ii) order the plaintiff to pay the defendant's costs of the trial. (3) Order that the respondent (Mr King) pay the appellant's costs in this Court. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - negligence - railway accident - plaintiff fell onto railway tracks at night - driver perceived an object on tracks - applied emergency brakes after realising object was a person - plaintiff struck by train - duty of driver - vicarious liability of railway authority - whether driver failed to keep a proper lookout - whether driver failed to apply emergency brakes in due time - whether breach caused collision - whether railway authority directly liable for failure to provide instructions on applying emergency brakes Legislation Cited: Transport Administration Act 1988 (NSW), ss 4, 5 Cases Cited: Public Transport Commission (NSW) v Perry [1977] HCA 32; 137 CLR 107 Weal v Bottom (1966) 40 ALJR 436 Category: Principal judgment Parties: Rail Corporation New South Wales (Appellant/Cross-Respondent) Shane John King (Respondent/Cross-Appellant) Representation: Counsel: Mr P Morris SC/Mr BR Wilson (Appellant/Cross-Respondent) Mr B Toomey QC/Mr S Longhurst (Respondent/Cross-Appellant) Solicitors: DLA Piper Australia (Appellant/Cross-Respondent) RMB Lawyers (Respondent/Cross-Appellant) File Number(s): CA 2013/137714 Decision under appeal Jurisdiction: 9111 Citation: King v Rail Corp NSW [2013] NSWSC 241 Date of Decision: 2013-04-12 00:00:00 Before: Davies J File Number(s): SC 2009/297952