Mawlodi & Ors v State Rail Authority of NSw & Anor

[2002] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S285 of 2001

B e t w e e n -

OMAR MAWLODI

First Applicant

MARIZYA MAWLODI

Second Applicant

RAZIYA MAWLODI

Third Applicant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES

First Respondent

THE PROPRIETORS OF STRATA PLAN NO 31743

Second Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 12.01 PM

Copyright in the High Court of Australia

____________

MR D.J. COCHRANE:   May it please the Court, I appear for the applicants.  (instructed by Kevin O’Kane & Co)

MR P.R. GARLING, SC:   May it please the Court, I appear with my learned friend, MR K.W. ANDREWS, for the first respondent.  (instructed by Gillis Delaney Brown)

MR J.B. TURNBULL:  May it please the Court, I appear for the second respondent.  (instructed by McCabe Terrill)

GUMMOW J:   Yes, Mr Cochrane.

MR COCHRANE:   May it please, your Honours.  Your Honours, in the documents that came up yesterday, there was a list of authorities.  It is noted that there needed to be some input in relation to specific pages and that has now been attended to.  If I may hand to your Honours that list of authorities and to my learned friends.

GUMMOW J:   Well, we are not going to read 16 cases on the run in 20 minutes.

MR COCHRANE:   Your Honour, I do not intend to take you through all of those cases, given the time.

GUMMOW J:   What do you say are the fundamental questions of principle that you would want to have us embark on?

MR COCHRANE:   The first matter is whether or not there was a duty of care.

GUMMOW J:   Where do you say the Court of Appeal got it wrong in dealing with these questions of fundamental principle?

MR COCHRANE:   In our arguments at page 63 of the application book, and in particular at page 66 of the application book, paragraph 3, it is submitted:

The Trial Judge failed to find there was any duty of care that either Respondent was responsible for.  The Court of appeal failed to correct this error.  At paragraph 6, Meagher, JA stated:  “The starting point is not to ask in the abstract whether the SRA had a duty of care.  The correct question to formulate is whether things being what they were the SRA had any duty to take further measures to ensure the safety of trespassers on its property.  I do not see why they had.  The risk of being struck by a train if one wanders onto the railway line is blindingly obvious.”

GUMMOW J:   What is wrong with that?

MR COCHRANE:   They do not appear to have looked at the principles set out by Justice Mason, as he then was, in Wyong Shire Council v Shirt and nor do they appear to have considered those matters that were set out in State of New South Wales v Steed.  It is submitted that the appropriate question to ask is whether a reasonable man in the respondent’s position would have foreseen that his conduct or lack of conduct involved a risk of injury.

GUMMOW J:   Well, exactly, that is right, and you seem to have a new sort of reasonable person that appears in paragraph 6 on page 67.

CALLINAN J:   And also a special category of persons to whom special rules of allurement have to apply.

MR COCHRANE:   Yes, your Honour.

CALLINAN J:   Well, what is the proposition?  If you are right, why should not it be that perhaps the Federal Government should not be liable for putting these people into the community without giving them an education course in not walking on railways?

MR COCHRANE:   Well, your Honour, that might be a consideration.  However, what we are saying is that the trial judge failed to find any duty.  It is our respectful submission that the opening of the railway corridor in the way that it was, and it was known by staff members of the Railway Authority and by the body corporate that there was a hole constantly there in the fence.  It was being breached constantly.  There was a path, in the sense of a dirt track, obviously created by people walking on it constantly, across a railway line, to ‑ ‑ ‑

CALLINAN J:   Mr Cochrane, really, this is totally unreal.  There were five railway tracks, were not there?

MR COCHRANE:   There were.

CALLINAN J:   And trains passing with great frequency and making a lot of noise while they were doing it?

MR COCHRANE:   That may have been, but there were in the high rise buildings many occupants and there were persons that were seen constantly crossing the railway tracks to the sporting facilities at the Blacktown Aquatic Centre and other sporting facilities in that general area.

CALLINAN J:   Simply because other people were being equally stupid, it seems to me, does not impose an obligation upon the operator of the railway.

MR COCHRANE:   Well, with respect, your Honour, the concern was nugatory.  The Rail Authority was not maintaining adequately its corridor, and so persons, known to the Rail Authority, were constantly trespassing upon the land.  True it was it was a dangerous exercise of trespass, but when you look at ‑ ‑ ‑

CALLINAN J:   It was a foolhardy exercise.  It was not dangerous.  It was foolhardy.

MR COCHRANE:   Hackshaw v Shaw and other cases – Papatonakis and so forth - those matters as to the way in which entrants come upon land, where it is known by the occupier that there is a danger, even though it be obvious, where it is known that there are children as well as adults, and of course, the second and third applicants are children ‑ ‑ ‑

CALLINAN J:   Being led by their father across the line.

MR COCHRANE:   Well, they were going with their father across the line ‑ ‑ ‑

CALLINAN J:   And their mother.

MR COCHRANE:   It was the first time that that had ever transpired, and in those circumstances – be it very sad and tragic – their mother was killed.  Their mother had not been on the line before either, but these persons were immigrants.  They did not know our custom, they did not appreciate nor know that all of these people had nothing other than a right of way.  They considered they had a right of way and there were other witnesses.  There were five Kurdish persons who gave evidence.  Two other witnesses, Mr Hosseini and Mr Movloudi, they were persons of some standing in the Kurdish community and they were crossing the railway line in that particular area.

GUMMOW J:   That may be true but ‑ ‑ ‑

MR COCHRANE:   And it was known because in the ‑ ‑ ‑

GUMMOW J:   Just listen to me for a minute, Mr Cochrane.  It might be to your advantage.

MR COCHRANE:   Certainly, your Honour.

GUMMOW J:   You have to get, do not you, to page 72 and Part IV of your application?  Now, why should we embark on all of those questions and what answer could we possibly come up with?

MR COCHRANE:   Well, your Honour, firstly, we are saying that in that particular environment, close to facilities that are created by a government authority, it is known that persons were constantly trespassing.  It is known that footbridges might be constructed.  It is known that there were no footbridges.  It is known that the corridor was being constantly breached.  The suggestion of redefining the reasonable man or person given community changes to ethnic minorities emanating from government immigration policies is something that does need to be visited.

GUMMOW J:   Why?

MR COCHRANE:   And this might be a proper vehicle to so do.

GUMMOW J:   Why?  When you say “visited”, to what end?

MR COCHRANE:   To redefine those aspects of the law of allurement.

GUMMOW J:   To different sections of the Australian community?

MR COCHRANE:   No, to the Australian community.  Allurement was open to persons, not just children, but those that might have been taken in and in this instance ‑ ‑ ‑

GUMMOW J:   Well, you seemed to complain at one stage that the warning signs were in English, not Kurdish.

MR COCHRANE:   Well, the warning signs were not present.  No warning signs, on the evidence, were available during 1995, nor was the breach of the corridor fixed at that particular point in 1995.  The documentary material that was produced by the first respondent did not disclose any correction to that breach during the whole of 1995 through to this incident.  After the incident there was a plethora of activity and there were a number of attendances to overcome the problem of the breach.

The government settling people in the area immediately opposite a public recreational area, and it is an extra kilometre for those people – approximately, a little bit more – to walk to the facility and back around to where they may be living.  The high rise development is at 26 Mantaka and 25 Mantaka Crescent at Blacktown, comprising some 12 blocks of units of substantial size and height.  The breach was at the back of 26 Mantaka Street and the Court of Appeal corrected the error that had befallen the trial judge as to where the particular breach was and where the deceased had moved through the boundary between 26, the second respondent’s property, and the Rail Authority’s property.

GUMMOW J:   Now, there is a factual problem for you too, is not there, which Mr Garling points to, at page 77, paragraph 19, non-acceptance of evidence.

MR COCHRANE:   Your Honour, that touches upon the subject of all of the Kurdish witnesses.  They were persons who were not taken apart, as it were, in cross‑examination.  Mr Movloudi and Mr Hosseini gave evidence of the breaches, gave evidence of the worn path.  Her Honour did not in any sense in her judgment give reasons as to why she did not accept those persons.  The status of the worn path was determined by the trial judge on the basis there had been no breach of duty, in one sense; rather there was no duty of care owed.  That was because, firstly, her Honour had not had a view, although she was requested to have one.  Secondly, she did not perceive that the actual breach was where it was said to have been; that was on the boundary between 26 Mantaka Street – the premises of the second respondent – and the Rail Authority.

Her Honour, with that prefatory finding – and those findings come about as to duty at pages 19, lines 44 and 45, at page 23, lines 6, 7 and 8, the finding that no relevant duty was owed, at page 27, line 35, and following what Mr Justice Mahoney had found in another case at line 20.  The confusion as to 25 and 26 Mantaka Street was at page 14, and the way in which her Honour dealt with Mr Mawlodi and the credit issues revolving around Mr Mawlodi because of not being able to properly present through an interpreter that there had been a break in the fence was as to the existence of the property, and it appeared in a number of places.  At line 24:

The plaintiffs’ witnesses were at some pains to describe the gap in the fence as a gate –

But her Honour, of course, found that that was not the gap or gate, as it were, that the deceased moved through.

The use of the word “gate” was something that arose through an interpreter.  It is not a word that is part of the native language of Mr Mawlodi.  The findings on credit in relation to those other witnesses all emanated from the finding that where the deceased moved through the hole was not in fact the place where there was a breach and was not on the boundary of No 26 Mantaka Street.  The realities are, your Honour, that the Court of Appeal corrected that, so the prefatory finding of the trial judge as to credit was ousted, and it needs to be looked at again – hence the seeking that special leave be granted.

In respect of those other matters that were sought to be addressed, your Honour, the injustice aspect, the definition of danger, the application of the law of allurement all link, in effect, to perhaps duties that might be imposed on occupiers where trespasses are involved.  And in this instance, public safety and a statutory authority’s duty, it may amount to one that requires a special duty given the extreme danger, even though it be obvious to most of the community ‑ ‑ ‑

GUMMOW J:   To anybody, surely?

MR COCHRANE:   But to the Kurdish community, to the persons that have come Iraq, as was the applicant in these proceedings.

CALLINAN J:   Are you suggesting that there are not any railway lines in Iraq?

MR COCHRANE:   I am not suggesting that.  I do not know.  What I do know though is that it is a land where there is certain authoritarianism and the government was permitting, as it were - and the way in which Mr Mawlodi was looking at this was permitting that a path continue to exist by virtue of allowing access through a hole in the fence to the government’s property, as it were, and allowing that to permit persons to cross and have access and egress from the public conveniences and all of the aquatic centre facilities on the other side of the railway line.

The reason why this was the path was that there was a culvert on the other side and it allowed persons to gain access into the playing fields and playing area, and I think it was Mr Movloudi who had seen and had been across that path himself and he held this position in the Kurdish community, but Mr Hosseini used to go and he used to play – I think it may have been soccer, the real football – and he, with his team mates, used to cross constantly along this path and along the trodden area.  And to those persons

who are coming from a pseudo‑totalitarian State or a totalitarian State where what the Government permits and allows is what exists, there had been no closure of that area, hence the suggestion and the proper submission that this case may be a vehicle to look at the law of allurement and at the law of trespass in respect of areas bounded by or close to public facilities, playgrounds, playing areas.

On the central railway side of Seven Hills Station is a pedestrian footbridge.  There is no reason why a footbridge could not be put across this particular area.  In my respectful submission – perhaps with leave, your Honour – there has been a miscarriage of justice.  The points in relation to bias are points that perhaps ought also to be aired, given what occurred in the Court of Appeal.

GUMMOW J:   Well, the question is, do you press that ground of the application, not whether it ought to be aired or not?

MR COCHRANE:   Yes, your Honour, I am instructed to do that.

GUMMOW J:   All right, thank you.

MR COCHRANE:   That is our case, your Honour.  If you wish me to expound on it I certainly will.  I notice the time.

GUMMOW J:   Well, if your time is up, it is up.

MR COCHRANE:   Yes, may it please your Honour.

GUMMOW J:   We will take a short adjournment.

AT 12.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.26 PM:

GUMMOW J:   We do not need to call on you, Mr Garling and Mr Turnbull.

The applicants seek special leave to appeal to challenge a decision of the New South Wales Court of Appeal.  That court dismissed an appeal from a decision of the District Court of New South Wales.  The District Court had dismissed an action for damages for loss of support arising out of the death of the mother of two and the wife of one of the applicants which occurred when she was struck by a train as she was crossing a series of railway tracks in a railway corridor to which she and the applicants had gained access through a hole in a fence.

It was held that the applicants failed to establish negligence on the part of either the Rail Authority or an adjoining landowner on whose land the fence in part may have been constructed.  Among other submissions, counsel for the applicants submitted that as his clients were emigrants of Kuridsh origin, the hole in the fence constituted an allurement to them and that special provision by a warning sign in their native language or otherwise should have been made for their protection.  That submission should be rejected.  So also should the submission that the concurrent findings of fact made by the applicants were not properly open.

No error on the part of the Court of Appeal has been shown and the application should be refused with costs.

AT 12.28 PM THE MATTER WAS CONCLUDED