King v Rail Corp NSW - [2013] NSWSC 241

Supreme Court

New South Wales

Medium Neutral Citation: King v Rail Corp NSW [2013] NSWSC 241
Hearing dates: 31 July 2012, 1 August 2012, 16 & 17 October 2012
Decision date: 12 April 2013
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the Plaintiff in the sum of $650,000.
(2) The Defendant is to pay the Plaintiff's costs.

Catchwords: NEGLIGENCE - railway accident - Plaintiff falls onto railway line from platform at night - whether driver had time to stop train - perception of object on line - emergency brakes not applied until driver later perceives object as human being - whether breach of duty in so acting - whether instructions and guidelines to drivers adequate - Plaintiff's intoxication - impact on liability - contributory negligence
Legislation Cited: Civil Liability Act 2002
Transport Administration Act 1988
Cases Cited: Mobbs v Kain [2009] NSWCA 301
Public Transport Commission (NSW) v Perry [1977] HCA 32; (1977) 137 CLR 107
Thomas William Vale v Timothy David Eggins [2006] NSWCA 348
Category: Principal judgment
Parties: Shane John King (Plaintiff)
Rail Corporation New South Wales (Defendant)
Representation: Counsel:
B Toomey QC (31 July & 1 August 2012),
K Rewell SC (16 & 17 October 2012)
& S Longhurst (Plaintiff)
P Morris SC & G Antipas (Defendant)
Solicitors:
RMB Lawyers (Plaintiff)
DLA Piper (Defendant)

File Number(s): 2009/297952

Judgment

The Plaintiff was struck and run over by a train at Mortdale Railway Station at a little after 3:00am on 2 September 2006. He was badly injured with the most serious permanent injury being the loss of his left leg just below the knee. He sues Rail Corporation NSW in respect of that incident. Quantum has been agreed at $1.3 million. This judgment concerns liability including associated statutory issues as well as contributory negligence.

The accident

The Plaintiff was aged 32 years at the time of the incident. He had been working on the day before the accident doing spray painting and concreting from 6:30am until 2:00pm. After work he had an appointment with DOCS in whose care his two children were placed. He saw his children for approximately an hour and left them at about 4:00pm.

He then went to Dan Murphy's in Hurstville and bought three longnecks (750ml bottles) of beer. He took those bottles to a friend's place, Daniel Sanders at Hurstville. He arrived at Mr Sander's place at about 5:00pm and left at midnight. He claims only to have drunk those three bottles of beer in that time. He believes that he ate a chicken burger whilst at his friend's place.

Late in the evening he had an argument with a Lebanese man who lived in the premises. The Plaintiff said that he decided to leave and he left with a person whom he met whilst at his friend's place, a person called Brad Parker. They went to Hurstville Station. Mr Parker went into the city and the Plaintiff took the train to Mortdale. He did that because he intended to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Rail Corp NSW

Details

AGLC: King v Rail Corp NSW [2013] NSWSC 241
Case: [2013] NSWSC 241
Decision Date: 12 April 2013

CaseChat Overview and Summary

The plaintiff, King, sued the defendant, Rail Corp NSW, after a railway accident where King fell onto the railway line from the platform at night and was struck by a train. The key issues before the court were whether the train driver had sufficient time to stop the train, the adequacy of the instructions and guidelines provided to the drivers, and the impact of King's intoxication on liability. The court had to determine whether the driver breached their duty of care in not applying the emergency brakes sooner and whether King's contributory negligence should reduce the defendant's liability.

The court examined the timing and perception of the object on the line, as well as the adequacy of the instructions and guidelines provided to the drivers. It considered whether the driver's actions were reasonable given the circumstances, including the late perception of the object as a human being. The court also looked into the impact of King's intoxication on the assessment of liability, evaluating whether King's contributory negligence should be taken into account. The court assessed the balance of these factors to determine the extent of the defendant's liability.

After careful consideration of the evidence and arguments, the court found that the driver's perception of the object was delayed due to the circumstances, but the emergency brakes were not applied in a timely manner. The court held that the instructions and guidelines provided to the drivers were inadequate in ensuring timely application of emergency brakes. It also found that King's intoxication contributed to the accident but did not absolve the defendant of liability. The court concluded that the defendant was liable for the accident, but the degree of liability was reduced by King's contributory negligence.

The final orders of the court were that Rail Corp NSW was liable for the accident but the damages awarded to King were reduced by 30% due to his contributory negligence. The court ordered Rail Corp NSW to pay King the reduced amount of damages.

Orders