Cashmore v Chief Commissioner for Railways and Tramways (NSW)

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, William Cashmore, had sued the Chief Commissioner for Railways and Tramways of New South Wales for personal injuries sustained while travelling as a passenger. Cashmore alleged his arm was struck by the negligently left-open door of a passing train. The jury at trial found a verdict for Cashmore, but also found that his elbow was outside the window at the time of the injury. The Supreme Court subsequently set aside the jury's verdict and entered a verdict for the defendant, holding that the plaintiff's arm being outside the window constituted contributory negligence as a matter of law.

The High Court was required to determine whether the Supreme Court erred in holding that a passenger protruding their arm from a train window, to any extent, constitutes contributory negligence as a matter of law, thereby disentitling them from recovering damages. The Court also considered whether the question of contributory negligence, in such circumstances, should be left to the jury to decide based on the specific facts and the reasonableness of the passenger's conduct.

The High Court, in allowing the appeal, held that the mere fact of a passenger's arm protruding from a train window does not, as a matter of law, amount to contributory negligence. Instead, the Court reasoned that a passenger is entitled to make reasonable and usual use of an open window, and the question of whether protruding an arm constitutes a failure to take reasonable care for one's own safety is a question of fact for the jury. The jury must consider all the circumstances, including the nature of the railway line, the construction of the carriage, and the probability of encountering danger from passing objects. The Court rejected the notion that such an act is an unauthorised use of the carriage or negligence per se, distinguishing it from situations where danger is obvious and unavoidable. The Supreme Court's decision was reversed, and the original jury verdict in favour of the plaintiff was restored.