Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Fuller-Lyons [2014] NSWCA 424 Hearing dates: 13 and 14 November 2014 Decision date: 09 December 2014 Before: McColl JA at [1]; Macfarlan JA at [9]; Sackville AJA at [72] Decision: (1) Refuse leave to the respondent to file a notice of contention in the form identified in the course of argument. (2) Allow the appeal. (3) Set aside orders (1) and (2) made by the Common Law Division on 8 April 2014 and entered on 11 April 2014. (4) Judgment for the appellant on the respondent's claim against it. (5) Order the respondent to pay the appellant's costs of the proceedings at first instance and on appeal. (6) Grant to the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if qualified. [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: NEGLIGENCE - respondent injured after falling from moving train operated by appellant - whether sufficient evidence to enable affirmative conclusion to be drawn that respondent's body was protruding significantly from train doors when train left station - whether conflicting inferences of equal degree of probability - whether primary judge's acceptance of evidence of respondent's brothers was glaringly improbable or otherwise flawed - whether State was denied procedural fairness by supposedly late formulation of case against it - appeal allowed Legislation Cited: Suitors' Fund Act 1951 (NSW) Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 Curtis v Harden Shire Council [2014] NSWCA 314 Fox v Percy [2003] HCA 22; 214 CLR 118 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Luxton v Vines [1952] HCA 19; 85 CLR 352 McLennan v Nominal Defendant [2014] NSWCA 332 Minogue v Rudd [2013] NSWCA 345 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Category: Principal judgment Parties: State of New South Wales (Appellant) Corey Travis Fuller-Lyons by his Tutor NSW Trustee and Guardian (Respondent) Representation: Counsel: R J Burbidge QC/A C Casselden (Appellant) C T Barry QC/J Davidson (Respondent) Solicitors: Hicksons Lawyers (Appellant) AC Lawyers (Respondent) File Number(s): CA 2014/134679 Decision under appeal Jurisdiction: 9111 Citation: Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672 Date of Decision: 2013-11-15 00:00:00 Before: Beech-Jones J File Number(s): SC 2008/316134 HEADNOTE [This headnote is not to be read as part of the judgment] On 29 January 2001 the respondent, Corey Fuller-Lyons, who was then 8 years of age, fell at Dora Creek near Morisset from an intercity train that was travelling to Newcastle at about 100 kilometres per hour. Tragically, he sustained severe injuries. In the present proceedings he sued the State of New South Wales, as operator of the train, for damages as a result of its alleged negligence. By judgment of 15 November 2013, Beech-Jones J of the Common Law Division of the Supreme Court upheld Corey's claim. His Honour found that it was likely that Corey's body had prevented the doors of the train from closing and locking when the train left Morisset station, and that Corey fell as he attempted to open one of those doors. His Honour also found that when the train left Morisset station, Corey had at least an arm, a leg and part of his torso protruding from the train doors and that this should have been observed by the State's Customer Service Attendant ("CSA") who was on duty at the station at the relevant time. His Honour therefore held that the State was vicariously liable for the negligence of its employee. His Honour was unable to conclude whether Corey had become unwittingly trapped or had intentionally interfered with the doors, but accepted the denials of Corey's brothers (with whom he was travelling) of any observation of Corey's fall and any knowledge of how it occurred. Held, allowing the appeal (per Macfarlan JA; McColl JA and Sackville AJA agreeing): (1) As the primary judge found that he could not give any weight to Corey's evidence by reason of his cognitive impairment, there was no direct evidence of how Corey came to fall from the train. A finding as to how that occurred therefore needed to be based on inferences. Inferences are reasonable deductions from proven facts and are to be distinguished from mere conjecture, although the dividing line will often be difficult to identify ([30]). Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, applied. (2) In an action for negligence, the plaintiff fails unless the evidence supports a positive inference implying negligence. This inference must arise as an affirmative conclusion from the circumstances proved in evidence. The facts proved must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture ([31]). Jones v Dunkel [1959] HCA 8; 101 CLR 298, applied. (3) There is no reason to exclude the possibility that, when the train was about to leave Morisset station, Corey used an object to keep the doors open to a sufficient extent to enable him to insert at least his shoulder between the doors ([34]). Furthermore, it is possible that the wedge that initially kept the doors from closing was Corey's shoulder, arm and leg. These possible mechanisms for preventing the doors from closing did not necessarily involve a significant part of Corey's body protruding from the train in such a way that it would, or should, have been visible to the CSA on the platform ([36]). (4) There is no reason to suppose that Corey did not have available to him an object that was sturdy enough to prevent the doors from closing. It was not for the State to prove what the boys did or did not have with them or to otherwise negative reasonable possibilities. The onus of proof was on the plaintiff. It was incumbent on him to show that there were no other reasonable hypotheses of equal or greater probability than that upon which he relied ([41]). (5) These possibilities are no less likely than that found by the primary judge ([37], [45]). Accordingly, the evidence did not warrant an affirmative conclusion that Corey's body was protruding significantly from the train doors when the train left Morisset station ([46]). As this was, subject to his proposed notice of contention, the only circumstance in which Corey contended that a reasonable person in the position of the State or its employees would have taken action that would have avoided his fall, Corey did not prove that the State or its employees were negligent ([46]). (6) The respondent should be refused leave to file a proposed notice of contention asserting that the State's employees were negligent, even if Corey's body was not protruding significantly from the train doors, by allowing the train to leave Morisset station without all of its doors being closed and locked. That further contention, if allowed to be put, would be bound to fail ([54]). (7) The primary judge's acceptance of the evidence of Corey's brothers that they were not involved in, and did not observe, Corey's fall was not contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" ([60]-[61], [63]-[67]). In light of the passage of over 12 years between the incident and the trial, there could have been no reasonable expectation that the brothers' evidence about details of their trip other than their (lack of) involvement in or observation of Corey's fall would be accurate. The primary judge would have been alive to this possibility in assessing their evidence ([61], [63], [66]). Fox v Percy [2003] HCA 22; 214 CLR 118, applied. (8) The State is not entitled to have the primary judgment set aside on the ground of denial of procedural fairness. If the State suffered any prejudice by the supposedly late formulation of the case ultimately found by the primary judge, it had the opportunity to seek to have that prejudice overcome by an adjournment or other indulgence. It is bound by its forensic decision not to avail itself of that opportunity ([69]-[70]). Judgment 1McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes. I would add the following observations which assume familiarity with the facts as recounted by Macfarlan JA. 2The primary judge carefully directed himself as to the principles to be applied in a case which depends upon the drawing of inferences: Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672 (at [68] - [72]). However, with respect, in my view his Honour failed to apply the requirement to distinguish carefully between inference and conjecture or speculation (see Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (at [80] ff) per Spigelman CJ) and in concluding the inferential approach favoured the respondent's hypothesis as to the cause of his fall. 3The objective evidence was that a Customer Service Attendant ("CSA") was on duty at Morisset Station on the day of the accident. The CSA's duties included giving the train guard, Mr Meiforth, a signal when the train was ready to depart - a signal which would not be given if that officer observed any object interfering with the doors closing. It could be inferred, as the primary judge clearly did, that the CSA gave that signal before the train departed: primary judgment (at [78]). 4The primary judge recognised that his conclusion that at the time the train left Morisset Station at least the respondent's leg, arm and part of his torso were protruding outside the exterior of the door as it closed before the CSA signalled for the train to depart involved the CSA failing to observe those matters: primary judgment (at [78]; see also [145]). Nevertheless his Honour concluded that allowing for "what appears to be a failing on the part of the CSA, this scenario [was] a far more likely inference than all others": primary judgment (at [78]). 5In my view that conclusion was not open on the objective evidence and amounted to impermissible conjecture or speculation. On the objective evidence, the respondent's accident could have happened even if the CSA had properly discharged his duties. 6The objective evidence established that the respondent fell from the train as it was rounding a bend at approximately 100 kilometres per hour 2 - 3 minutes after the train left Morisset Station. Prior to leaving Central Station inspections had revealed that the doors to the carriage from which he fell were operating properly and, in particular, appeared to be closing completely along the length of their juncture. Upon inspection on the train's arrival in Newcastle following his fall the doors were found to have been tampered with in the manner Macfarlan JA has explained (at [14]). Other evidence demonstrated that the closing function of the doors could be disrupted by the insertion of even a small object such as a soft drink bottle and clearly by something larger and that such an object would not be observable by a CSA in the ordinary course of that person's duties. The evidence from both Mr Meiforth and the respondent's expert, Mr Clemens, established that an eight year old boy could open the doors, assuming there was a gap. 7It was an available inference on the objective facts, accordingly, that the CSA discharged his duties on the day, but that the train doors on the western side had been kept open by an object which was not visible to that person. Accepting the primary judge's rejection of the appellant's case as to the brothers' involvement, that object was most probably inserted by the respondent. It was also an available inference that after the train left the station the respondent used that opening to enlarge the gap before, regrettably, opening the doors to a point where the centrifugal forces (of which there was evidence: see primary judgment (at [77])) applied as the train rounded the bend propelled him out of the carriage. 8This was the appellant's theory of the case. It was in my view as possible as the respondent's. The facts proved did not, accordingly, "form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied" in favour of the respondent's case: cf Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 305) per Dixon CJ. 9MACFARLAN JA: At about 12.09 pm on Monday 29 January 2001 the respondent, Corey Fuller-Lyons, who was then aged 8, fell at Dora Creek, near Morisset, from an intercity train travelling to Newcastle at about 100 kilometres per hour. Tragically, he was severely injured. In the present proceedings he sued the State of New South Wales, as operator of the train, for damages as a result of its alleged negligence. 10In a judgment given in the Common Law Division of the Court on 15 November 2013 Beech-Jones J found that it was likely that Corey fell as he attempted to open one of a pair of train doors, his body having prevented the doors from closing and locking when the train left the station at Morisset. His Honour found that as the train left Morisset station Corey had at least an arm and a leg, as well as part of his torso, outside the train, that this should have been observed by the State's Customer Service Attendant ("CSA") who was on duty at the station and that the State was vicariously liable for that employee's negligence. His Honour was unable to conclude whether Corey was "unwittingly trapped, attempted to interfere with the doors and then became trapped, or intended to be caught in the doors with a view to attempting to prise them open while the train was between stations" (Judgment [82]). His Honour accepted the denials of Corey's brothers (Dominic, then aged 11 and Nathan, then aged 15), with whom Corey was travelling, of any observation of Corey's fall and of any knowledge of how it came about. 11The issues on appeal are as follows: (1) If it be assumed in Corey's favour that his brothers' denials were truthful, was there sufficient evidence to enable an affirmative conclusion to be drawn that a substantial part of Corey's body was protruding from the train doors when the train left Morisset station? Alternatively, were there at least equally available hypotheses, first, that his body prevented the doors from closing but did not protrude significantly or, secondly, that the doors were prevented from closing by some other object that had been placed between them? (2) Should Corey be given leave to file a notice of contention alleging that the State is liable to him even if his body was not protruding significantly from the train doors when it left Morisset station? (3) If the answer to the first question is that there was sufficient evidence to found that conclusion, should the State nevertheless succeed because: (a) the primary judge was not justified in accepting the denials of Corey's brothers, or (b) the State was denied procedural fairness at first instance. 12I have concluded that questions (1) and (2) should be answered in the negative and that the appeal should therefore be allowed. THE FACTUAL CIRCUMSTANCES 13According to the boys' mother, on the morning of 29 January 2001 Corey and his brothers were only to make a local train trip from Sydenham to visit friends at St Peters. However, they boarded the train to Newcastle at Central Station and were still on board it at Morisset station. They travelled at the front of the lead of four carriages. The carriages had two levels of seating with a vestibule at the front. There were double doors in the vestibule on both sides of the carriage. The State's evidence was that there were some 120 to 130 people on the train but Dominic's evidence was that there were only about 4 others in the lead carriage. In any event, leaving his brothers aside for the present, it does not appear that anyone saw Corey fall from the only place from which he could have fallen, namely, from the left-hand doors in the front vestibule of the lead carriage. 14Because the doors were inspected at both the beginning and end of the train's journey, the hearing below proceeded upon the basis that the operation of those doors was not affected by any defect in them. The latter inspection did however disclose a gap of approximately 100 mm at the foot of the doors on both the right and left sides of the vestibule. These gaps did not prevent the doors from closing and locking properly, nor did they enable anyone to exit, but their presence did indicate that there had been some interference with the doors on the journey because the evidence suggested that the gaps would likely have been observed on the pre-journey inspection if they had been present then. 15The doors were designed to remain closed and locked whilst the train was in motion. On arrival at a station, the train guard, situated in the rear carriage, would activate an unlocking mechanism which would enable passengers to pull levers to open the doors where required. When the train was ready to depart from the station, the guard would activate the door closing mechanism which would result in electro-pneumatic pressure being applied to each of the double doors to push them together. When they were together, they would lock automatically. There was no electronic device on the train in question to warn the guard if one or more sets of double doors had not properly closed and locked. 16The State's expert, Mr Cowling, gave evidence that the pneumatic pressure applied to close the double doors was seven kilograms for the first 230 millimetres of their closure, building to approximately 16 kilograms. In his oral evidence he referred to a force of about 20 kilograms (Transcript p 338). 17Although some strength would clearly have been required to open the doors when the pneumatic pressure was being applied when leaving and between stations, Mr Bruce Meiforth, the train guard on the journey in question, expressed the view that (assuming the doors were not fully closed and locked) an eight year old boy would have had the strength to open one of the doors far enough to get out if he had his back against one door and used his arms to force the other open (Transcript p 329). In cross-examination the plaintiff's expert, Mr Clemens, agreed that at least some eight year old boys would be able to do this (Transcript pp 210, 232-3, 254-5, 269). 18Mr Meiforth gave evidence that due to curvature of the station platform at Morisset, it was not possible for the guard at the rear of the train, without stepping away from it for some distance, to see the whole length of the train when it was at the platform. He said that, as a result, there was usually on duty at Morisset station a CSA or other station assistant who would stand where he or she could see the front of the train and signal to him when the train was ready to depart. He said that that person was like "a second eye for me" (Transcript p 302). The evidence showed that there was a CSA on duty at Morisset on the day in question: a roster showed that one was scheduled to be there and one of the post-accident reports referred to the CSA having been present. That person was deceased by the time of the trial. 19Mr Meiforth also gave evidence that the train doors were recessed and that if a guard or CSA was looking along the station, he or she would only see "if someone is hanging out, if there is anything sticking out a foot or so" but if they were "just holding something inside that recess you wouldn't see it ... " (Transcript p 328). 20Other uncontradicted evidence indicated that time pressures rendered it impractical for a guard (or CSA) to walk the full length of a train (of approximately 100 metres length in this case) to check from up close whether all doors were fully closed and locked. This was consistent with the terms of the State's "Operation Manual for Electric Trains" which stated that a train guard was not to give the driver a signal that it was all clear for the train to leave the station unless "no person is observed to be caught in the doors" (Judgment [140]). The Operation Manual also provided that "if station staff are in position", the train guard was to blow the whistle and close the doors upon receiving the "right of way" signal from station staff (Judgment [141]). 21Nathan Lyons' evidence was that at some stage in the train journey he and his brother Dominic noticed that Corey had not returned from leaving them to get a drink of water. He said that they searched the train and then spoke to the train guard (Mr Meiforth) who checked with the stationmaster at Morisset that Corey was not back at that station. After searching the train, Mr Meiforth concluded that Corey had probably fallen from it and took steps to prevent trains from passing over the track where Corey may have fallen. Dominic Lyons also gave evidence that there was a point in the journey when he and Nathan noticed that Corey was missing, with the result that they searched the train and then reported his absence to the train guard. 22It was subsequently ascertained that when Corey fell out of the train he slid for approximately 20 metres down and across an embankment. Despite sustaining severe injuries, he then climbed the embankment, walked across both rail tracks and climbed a safety fence before being noticed by passing motorists. Ambulance officers arrived at the scene at 12.56 pm on 29 January 2001. THE PRIMARY JUDGMENT 23Corey gave evidence at the hearing at first instance but the primary judge concluded that his impaired cognitive functioning meant that no weight could be attached to his description of the events that led to his falling from the train. 24The primary judge noted that the State alleged that Dominic and Nathan's evidence that they did not see their brother fall from the train was false. His Honour rejected that allegation and continued: "60 Despite their being recalled for further cross examination, it was never put to either Nathan or Dominic that they had either lied to or misled Mr Meiforth when they spoke to him that day, much less that they did so because they were conscious of their own involvement in Corey's fall. It was also not put to them that they had not conducted any search of the train in the immediate aftermath of Corey's fall as they claimed. The failure to do so makes it very difficult to accept these allegations when they were not given the opportunity to respond to them." 25His Honour then concluded that in any event, for detailed reasons that he gave, the circumstances and events established by the evidence did not support the State's contention. As a result, he accepted Dominic and Nathan's evidence denying any knowledge of the circumstances of Corey's fall from the train (Judgment [9], [54]-[67]). 26His Honour found that the only possible point of exit for Corey from the train was the front left-hand doors on the lead carriage and that those doors must have remained at least partially open when the train left Morisset station because if they had closed they would have locked in a way that prevented them from being opened (Judgment [74]). His Honour then reasoned as follows: "75 I have already found that I accept Nathan's evidence that neither he nor Dominic assisted Corey in interfering with the doors in any way (or otherwise witnessed the fall). It therefore follows that Corey alone interfered with the doors at Morisset. How far were they left open, what was caught in the door, and was his interference intentional or unintentional? 76 How far was the door kept open as it departed Morisset station? I have described the evidence of the force exerted by the doors as they close above (at [21] to [25] and [50]). I found Mr Meiforth's reaction to the proposition that an eight year [old] boy might prise or push the door open particularly telling. I am satisfied that the only realistic means by which Corey could generate sufficient force on his own to open the door far enough for him to fall out was by having his back to one door and pushing with his arms or a leg against the other. This makes it very unlikely that the door was only kept open when the train left Morisset station by Corey's foot or a small object such as a soft drink bottle or the like. If that had occurred he would have had to squeeze himself into the small gap, somehow wriggle into the space to insert himself and then exert sufficient force to create a sufficient gap to fall out. This manoeuvre would have to have been undertaken in the minutes between the time the train left and the time he fell. This is very unlikely. A potentially more plausible scenario is that some larger object was placed in the doors that made it easier for Corey to insert himself. However it is difficult to conceive of an object large enough and sturdy enough that was available to Corey to allow this to have happened. Even if it was used and he then inserted himself, this is difficult to reconcile with the timing of the fall being so soon after the train left the station. 77 The most likely possibility by a large measure is that, as the train left Morisset, Corey was already inserted between the doors with his back to one of them. This represents the most likely scenario in which he could have exerted sufficient force on one of the doors in an attempt to open it in the minutes before he fell out of the train. This possibility would entail the door closing on some point of the span of his body between his two shoulders. It means that, as the train left the station, at least one of his legs and arms was outside the train and part of his torso. From that point Corey would have been able to generate sufficient power to force the doors open a little further in the minute or so before the fall. As he did so and the train veered to the east, he fell out, bearing in mind the centrifugal force that was operating as noted by Mr Cowling. 78 One matter tending against this is that it involves the CSA at Morisset failing to observe (at least) Corey's leg, arm and part of his torso as they protruded outside the exterior of the door as they closed before he signalled the guard for the train to depart. I have considered that matter. However the balance of the circumstances, namely the characteristics of the door and the timing of the fall, point strongly to this scenario as the most likely minimum level of interference with the door when it left Morisset. Even allowing for what appears to be a failing on the part of the CSA, this scenario is still a far more likely inference than all others. The lesser the part of Corey's body that was inserted or caught between the doors the more difficult it was for him to insert himself and exert the strength necessary to force them back, especially in the limited time between the train's departure from Morisset Station and his fall from the train. 79 At this point of the analysis the circumstance of Corey being unwittingly trapped in the closing doors is certainly an inference that is open on the known or established facts. As outlined below, such a circumstance was not an unknown or even unusual occurrence, even if it was not common. A State Rail Authority Fleet Engineering Report dated May 1994 outlining the technical specifications of the LDM installed on intercity trains states that the doors take four seconds to close, give or take half a second. That length of time is not inconsistent with passengers being unwittingly trapped, as they have been on other occasions (see [91] to [93]). An eight year old unsupervised child is exactly the category of person who might become unwittingly trapped in the doors as they close. 80 However there are also other possibilities that involve Corey having intentionally interfered with the doors. Corey could have, as suggested by the State, deliberately prevented the doors from closing with a view to prying them open after the train left the station. Alternatively, Corey could have been simply interfering with the doors at Morisset as part of some game and then become unwittingly trapped in them as they closed. As noted, the State placed some emphasis on the state of the door on the number 1 side of the number 2 end on DJM8124 [the right-hand doors in the lead carriage] as indicating repeated interference with the doors by Corey, Nathan and Dominic throughout the journey. However in light of my rejection of the challenge to Nathan's and Dominic's evidence in that respect, this does not advance the matter far. Nathan was only asked about the train journey from a point prior to Morisset when Corey went to the vestibule area. The questioning of him did not address whether Corey was ever in the vestibule area by himself at a train station when door 2 on DJM8124 opened and he could have interfered with it. In those circumstances and given the various possibilities that could have caused the gap in that door, the 100mm gap in that door does not assist. 81 Finally I note that, even if the conversation Corey's mother recounted having with him at the hospital represented an accurate recollection on Corey's part, which is doubtful, it is equally consistent with Corey forcing the doors open after they had closed on him unwittingly or after he had deliberately interfered with them. 82 This analysis leads to me to find [sic] that Corey was placed in the doorway as the train left Morisset in the manner described at [77]. However I am unable to conclude whether he was unwittingly trapped, attempted to interfere with the doors and then became trapped, or intended to be caught in the doors with a view to attempting to prise them open while the train was between stations. It follows that the Court will have to address the allegation of negligence on the basis that, whether or not Corey deliberately interfered with the doors or deliberately meant to become trapped in the doors at Morisset, is unknown." 27The primary judge went on to reject Corey's case that the State was negligent in not having installed on this train by the day of the accident a Traction Interlocking mechanism which would have registered if a train door was open and prevented the train from leaving the station until the problem was rectified (Judgment [138]). That conclusion was not challenged on appeal. 28The primary judge however found that the employee of the State who was acting as the CSA on the Morisset platform on the day in question was negligent in failing to observe Corey's body protruding from the front train doors adjacent to the station platform and in not therefore preventing the train from departing until the doors were cleared (Judgment [145]). 29His Honour found that that negligence, for which the State was vicariously liable, was causative of Corey's injuries and that Corey was not guilty of contributory negligence. The findings on causation (assuming negligence on the part of the CSA) and contributory negligence were not challenged on appeal, nor was his Honour's assessment of the quantum of damages to which he found Corey to be entitled. RELEVANT LEGAL PRINCIPLES 30As the primary judge found that he could not give any weight to Corey's evidence by reason of Corey's cognitive impairment, there was no direct evidence of how Corey came to fall from the train. A finding as to how that occurred therefore needed to be based on inferences. Inferences are reasonable deductions from proven facts. They are to be distinguished from mere conjecture, although the dividing line will often be difficult to identify (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [84]-[88]). 31In an action for negligence, the plaintiff fails unless the evidence supports a positive inference implying negligence. This inference must arise "as an affirmative conclusion from the circumstances proved in evidence" (Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 304). The facts proved "must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture" (ibid at 304-5 citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5). The Court is not authorised "to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied" (Jones v Dunkel at 305; see Luxton v Vines [1952] HCA 19; 85 CLR 352 at 359-360 and recently Minogue v Rudd [2013] NSWCA 345 at [66]; Curtis v Harden Shire Council [2014] NSWCA 314 at [18]; McLennan v Nominal Defendant [2014] NSWCA 332 at [86] and Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 at [22]). RESOLUTION OF THE APPEAL 32At this stage of my judgment I shall assume in Corey's favour that the primary judge's acceptance of Corey's brothers' denials of involvement in and knowledge of Corey's fall is not amenable to challenge. This is an assumption favourable to Corey's case because if his brothers were involved, a reasonable hypothesis, at least as probable as that found by the primary judge, is that the brothers, perhaps with the assistance of Corey, pulled one or both of the train doors further open after they had, whether by use of a foot or other object, prevented them fully closing and therefore locking upon the train's departure from Morisset station. The likely greater strengths of Corey's older brothers would have made it much easier for them, particularly if they acted together, to have pushed or pulled a door open than it would have been for Corey acting alone. In accordance with the legal principles to which I have referred above, the existence of this not less probable hypothesis would defeat Corey's claim as it does not involve Corey protruding from the train as it left the station in such a way that he should have been seen by the CSA. 33The question then arises whether some such hypothesis is reasonably available (and not less probable than that found by the primary judge), even if it be assumed that Corey was acting alone. In my view it is. 34First, there is no reason to exclude the possibility that, when the train was about to leave Morisset station, Corey used an object to keep the doors open to a sufficient extent to enable him to put at least his shoulder into the space between the doors. The expert evidence did not indicate precisely what would have been a sufficient space to enable this to occur but Mr Meiforth referred to his experience of glass "Coke" or "cordial" bottles of 20 to 25 cm in length being used to keep train doors from closing (Transcript p 314). A photograph of Corey in evidence suggests that at the time of the accident he was not a particularly bulky boy. A gap sufficient to allow Corey to push against the door could have resulted from a backpack or other bag, a shoe placed lengthways or even a ball such as a basketball or soccer ball being placed between the doors as they closed. There was no exploration in the evidence of the availability to Corey of such items but his access to one or other is a distinct possibility which his case did not exclude. 35Once a gap of that magnitude was maintained after the train left Morisset station, Corey could have inserted his shoulder into it and sought to enlarge it by pushing one of the doors with both hands whilst obtaining leverage from part of his back leaning against the other door. It is consistent with Mr Meiforth and Mr Clemens' evidence (see [17] above) that Corey may well have had sufficient strength to push the door back, at least a little, if he was in this position. Corey would have needed to make very little progress in doing this to obtain a gap sufficient for his body to slip through it. No doubt his fall was accidental, but the possibility that it occurred in this way is not at all unlikely when his struggle to get the door open is imagined and regard is had to the fact that at the time that he fell, the train was negotiating a right-hand curve which would have put outward pressure on his body if it was precariously placed between the left-hand doors. 36Furthermore, it is possible that the wedge that initially kept the doors from closing was Corey's shoulder, arm and leg. Contrary to the primary judge's view, I do not consider that this mechanism for preventing the doors from closing necessarily involved a significant part of Corey's body protruding from the train in such a way that it would, or should, have been visible to the CSA on the platform. Corey's shoulder, and an arm and a leg, may have been between the doors but not have protruded significantly. 37I do not consider that there is anything about these possibilities that makes them less likely than that found by the primary judge, that is, that Corey stopped the doors from closing by using his torso, leaving a substantial part of the torso, and an arm and a leg, protruding to a significant extent from the train doors. 38I turn then to examine the primary judge's contrary reasoning in paragraphs [76] to [82] of his judgment (see [26] above). 39First, I accept, as the primary judge concluded at [76], that "the only realistic means by which Corey could [have] generate[d] sufficient force on his own to open the door far enough for him to fall out was by having his back to one door and pushing with his arms or a leg against the other". 40Secondly, his Honour concluded that this made it "very unlikely that the door was only kept open when the train left Morisset station by Corey's foot or a small object such as a soft drink bottle or the like" because he would have had insufficient time between the train leaving the station and when he fell to "somehow wriggle into the space to insert himself and then exert sufficient force to create a sufficient gap to fall out". However this reasoning contemplates that the gap was large enough for Corey to get an arm, a leg and a shoulder into it. If he was able to do this, very little widening of the gap would have been required for the rest of his body to go through it and, as the judge concluded, Corey would have had the strength to make the gap larger by using his arms, back and perhaps his leg. I do not see why this could not have occurred in a matter of seconds, well within the period of two to three minutes which the evidence indicated was the likely period between the train leaving Morisset station and Corey's fall. There was no expert or other evidence that suggested otherwise. 41Thirdly, the primary judge then recognised that Corey could have inserted himself in and through the gap more easily if it had been larger, as a result of a larger object having been used to prevent the doors from closing. However he said that "it is difficult to conceive of an object large enough and sturdy enough that was available to Corey to allow this to have happened". With respect, I do not agree. As I have said, there is no reason to suppose that Corey did not have available to him an object such as a backpack or other bag or a large ball, or that this would not have been sturdy enough to prevent the doors from closing. The evidence that a foot could have done so (presumably without injury) suggests otherwise. It was not for the State to prove what the boys did or did not have with them or to otherwise negative reasonable possibilities. The onus of proof was on the plaintiff. It was incumbent on him to show that there were no other reasonable hypotheses of equal or greater probability than that upon which he relied. 42A further reason that the primary judge gave for rejecting the hypothesis involving the use of "some larger object" was that even if it created a gap into which Corey was able to insert himself, his fall was difficult to reconcile with the limited time between the train leaving the station and Corey's fall. However, if the gap had been created by such a "larger object", in my view it would not have taken any significant time at all for Corey to insert himself into the gap and fall through. This could readily have occurred within the two to three minutes available. 43The primary judge concluded at [77] that the "most likely possibility by a large measure" was that "as the train left Morisset, Corey was already inserted between the doors with his back to one of them". His Honour regarded this as the scenario in which Corey would have been best able to apply force to one of the doors in an attempt to open it and said that it would have entailed "the door closing on some point of the span of his body between his two shoulders. It means that, as the train left the station, at least one of his legs and arms was outside the train and part of his torso". However this was not the only reasonable possibility: as I have said above, Corey could have had a shoulder, arm and leg between the doors when the train left Morisset station without any of them protruding significantly. Alternatively, when the train left Morisset station the gap between the doors could have been created by an object placed between them and been large enough for Corey to insert himself easily in and through it in the two to three minutes available before his fall. In my view, these possibilities were no less likely than that identified by the judge. 44Supporting this view is the fact that the CSA at Morisset apparently did not observe Corey's body to be protruding significantly from any of the train doors. Whilst an alternative possibility is that (as the plaintiff alleged) Corey was in this position when the train left Morisset station and the CSA negligently failed to observe him, it cannot be assumed that this is what occurred. It is at least as plausible that the CSA was doing his or her job but did not see Corey because no significant part of his body protruded beyond the doors. 45The primary judge proceeded to consider in paragraphs [79] to [82] whether Corey had become unwittingly trapped between the doors or had in some fashion been interfering with the doors in an attempt to open them or keep them open (or perhaps a combination of both). His Honour said that the evidence did not enable him to reach a conclusion as to which was applicable and it was not asserted on the appeal that any such conclusion should or could be reached. It follows that intentional interference with the doors was not, on the balance of probabilities, excluded as a reasonable possibility and that the hypotheses that I have identified, alternative to that found by the primary judge, therefore remain reasonably available. 46For these reasons, my view is that the evidence did not warrant an affirmative conclusion that Corey's body was protruding significantly from the train doors when the train left Morisset station. Subject to the notice of contention issue to which I will refer below, this was the only circumstance in which the respondent contended that a reasonable person in the position of the State or its employees would have taken action that would have avoided Corey's fall. As a result, subject to the same qualification Corey did not prove that the State or its employees were negligent and his claim must be dismissed, with judgment to be entered for the State. THE PROPOSED NOTICE OF CONTENTION 47The primary judge found that the CSA on duty at Morisset at the relevant time was negligent in failing to observe the protrusion of Corey's body from the left-hand (that is, platform-side) doors of the front carriage when the train left Morisset station (Judgment [143]). His Honour had found that at least one of Corey's arms and one of his legs and part of his torso were protruding from the doors (Judgment [77]). It appears to be implicit in his Honour's judgment that he would not have found the CSA negligent if the platform-side doors in the front of the first carriage had been kept open to some extent but there was no significant protrusion of Corey's body through them. However his Honour did not have to make a finding as to that because it did not reflect the case that Corey conducted. 48In the course of his address on appeal, Corey's senior counsel however sought the Court's leave to file a notice of contention asserting that the State's employees were negligent in allowing the train to leave Morisset station without all of its doors being closed and locked. Thus he sought to contend that the State's employees had been negligent even if Corey's body had not protruded to any significant extent from the left-hand doors of the front carriage. 49Counsel indicated that the only evidence that he relied upon to support the proposed notice of contention was the answer to the second question in the following exchange that occurred in the course of Mr Meiforth's re-examination: "Q. If something were happening at the very front doors of the train, and you were looking either from the position where the CSA was, or alternatively, to the point where you would walk in the absence of a CSA, could you observe a small opening on the doors at the front left-hand end to the car in the front? A. No I couldn't see it. The doors are recessed and it is very hard to see that because you are looking along a kerb, you can only see if someone is hanging out, if there is anything sticking out a foot or so, you could see it but if they are just holding something inside that recess you wouldn't see it, sir. HIS HONOUR Q. What about where the CSA-- A. He should be able to see it sir, yes." 50The answer relied upon is, at best for Corey, ambiguous. The previous answer responded to a question directed both to the position where the CSA would ordinarily stand and to the position to which the guard would move if there was no CSA present. Mr Meiforth's answer was to the effect that he (being a guard, not a CSA) would not see a small opening between the doors on the front carriage but, as I have noted, the question related both to the position to which he would go if there were no CSA present and to the CSA's ordinary position on the platform. The remainder of his answer explained why that opening would not be seen by someone who was not immediately adjacent to the partially open doors: the doors were recessed and "you are looking along a kerb, you can only see if someone is hanging out, if there is anything sticking out a foot or so ... but if they just holding something inside that recess you wouldn't see it, sir". 51I do not consider that his next answer can reasonably be understood as indicating that the CSA (who would not ordinarily be standing adjacent to the front doors of the first carriage) would, or should, see a small opening in the relevant doors if there was nothing protruding significantly from them. His answer to the previous question and the reasoning it contained contradicted that proposition. 52Mr Meiforth's answer to the second question only makes sense if it is understood (as its language is quite capable of permitting) as evidence that the CSA would see "if someone is hanging out, if there is anything sticking out a foot or so". I am fortified in this view by the fact that the primary judge, who heard the evidence being given, did not interpret the evidence otherwise because he contemplated that, implicitly in conformity with the whole of the evidence in the case, a failure of the CSA to observe a small opening might be consistent with him or her exercising reasonable care (Judgment [143]). 53Further, the evidence, understood in this way, conforms with that of the State's expert, Mr Cowling, that "unless an observer was standing on the platform at or about 90 degrees to each doorway it would not be possible to reliably detect an open door" (Report dated 26 March 2013, p 6). 54I would therefore refuse leave to file the proposed notice of contention as the further contention, if allowed to be put, would, for these reasons, be bound to fail. 55I add that Corey's case, both actual and proposed, did not involve any contention that the State was negligent in not having an employee (whether the CSA or guard) walk up and down the platform to check at close range that all the doors were locked before the train was allowed to leave the station. The plaintiff's expert, Mr Clemens, accepted that this would have been impractical in light of the time that would be required to undertake the task, and that it would have had a significant adverse effect on the network's train scheduling (Transcript pp 292-3). This was consistent with the view of Mr Cowling, the State's expert (Report of 26 March 2013, p 6). OTHER CONTENTIONS OF THE STATE 56As the matters with which I have dealt above indicate that the appeal should be allowed and judgment entered for the State, it is unnecessary to refer more than briefly to the other bases upon which the State sought to reverse the judgment at first instance. The finding that the brothers were not involved in and did not observe Corey's fall 57As the primary judge's acceptance of the evidence of Corey's brothers was credit-based, to successfully challenge it the State needed to demonstrate that the acceptance was contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] and [29]). 58Senior counsel for the State sought to support the State's challenge on four bases (appeal transcript pp 47-50). 59First, the State relied upon the brothers' alleged non-responsiveness to questions in cross-examination. It referred in this context to the brothers' many answers in cross-examination professing an inability to recall sufficiently to answer questions put to them. 60I do not consider that this circumstance indicates that the primary judge's acceptance of the brothers' evidence was "glaringly improbable" or otherwise flawed. 61The brothers gave evidence on 22 April 2013 about an incident that occurred on 29 January 2001, over 12 years earlier, and there was no indication that they had given earlier statements from which they were able to refresh their memories. Whilst they were understandably able to recall without difficulty whether or not they were involved in or observed Corey's fall, it is not at all surprising that their recollection of the details of what they otherwise did or observed on that day might be non-existent, deficient or erroneous. The passage of a great length of time between the incident and their giving of evidence makes that a matter of common sense. This was no doubt a matter to which the primary judge was well alive and which he took into account in assessing their credit. In my view, the deficiencies in the brothers' recollections fall far short of establishing that the primary judge's acceptance of their evidence was "glaringly improbable". 62Secondly, the State contended that the primary judge should have rejected the brothers' evidence because what they said occurred after they realised that Corey was missing (involving searching the train and speaking to the train guard) could not have occurred as there was insufficient time for that to happen in the period of about two to three minutes between the train leaving Morisset station and Corey falling. 63The answer to this point is the same as that to the State's first point. In light of the passage of time there could have been no reasonable expectation that the brothers' evidence about details, other than their involvement or lack of involvement in or observation of Corey's fall, would be accurate. They might for example have been quite wrong in saying that they undertook a complete search of each of the carriages before contacting the guard. Thus, when giving evidence 12 years later they may well have been quite mistaken as to the thoroughness of their search. Again, the primary judge would have been alive to this possibility in making his overall assessment of their evidence. 64The State's difficulties are compounded by the fact, as noted by the primary judge (see Judgment [60] quoted in [24] above), that the supposed impossibility of the brothers doing what they said they did within the time available was not put to them in cross-examination. This deprived them of the opportunity to profess a difficulty in recollection or to otherwise explain or retract their evidence. The primary judge was correct to take this into account in his decision to accept their evidence. 65Thirdly, the State relied upon evidence that when asked in hospital by his mother how he got out of the train doors, Corey replied "it was a bit hard, mum". Even if weight could be attached to this answer (bearing in mind Corey's condition at the time), it did not implicate his brothers. It was consistent with Corey acting alone in the manner referred to above. 66Fourthly, the State relied upon a difference between the evidence of Nathan and his mother about what was said when the boys left home on the morning of 29 January 2001. Nathan denied that, as his mother deposed, there was discussion about the three boys going only to St Peters. This discrepancy is again well capable of explanation by the passage of time and is simply one of many matters bearing on Nathan's credit that the primary judge needed to, and no doubt did, consider. The discrepancy falls far short of establishing that the primary judge's decision to accept Nathan's evidence on the critical point as to the brothers' involvement in or observations of Corey's fall was glaringly improbable. 67For these reasons, I would reject the State's challenge to the primary judge's acceptance of the brothers' evidence. Whether the State was denied procedural fairness 68On appeal the State contended that the basis of Corey's case ultimately accepted by the primary judge was not articulated until near to the conclusion of the hearing at first instance and was inconsistent with that which had been pleaded and thus far conducted. Corey's senior counsel denied that this was so. 69It is unnecessary to determine whether the State's contention is correct as the State did not, in response to the allegedly new point, seek an adjournment or other indulgence such as leave to call further witnesses or further examine or cross-examine those that had been called. I do not consider that in these circumstances the State is entitled, as it seeks to do, to have the first instance judgment set aside on appeal on the ground of denial of procedural fairness to the State. 70The case as found by the primary judge was in fact conducted at first instance, albeit, according to the State's submission, that it was formulated only late in the hearing. If the State suffered any prejudice by that supposedly late formulation of the case, it had the opportunity to seek to have that prejudice overcome by an adjournment or one or more of the other steps to which I have referred. It is bound by its forensic decision not to avail itself of that opportunity. Indeed, that the very experienced leading counsel for the State made that decision strongly suggests that the State did not in fact suffer any prejudice as a result of what occurred. ORDERS 71For the reasons that I have given, I propose the following orders: (1)Refuse leave to the respondent to file a notice of contention in the form identified in the course of argument. (2)Allow the appeal. (3)Set aside orders (1) and (2) made by the Common Law Division on 8 April 2014 and entered on 11 April 2014. (4)Judgment for the appellant on the respondent's claim against it. (5)Order the respondent to pay the appellant's costs of the proceedings at first instance and on appeal. (6)Grant to the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if qualified. 72SACKVILLE AJA: I agree with the orders proposed by Macfarlan JA and his Honour's reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2014