Mawlodi v SRA of NSW

[2001] NSWCA 415

CITATION:	Mawlodi v SRA of NSW [2001] NSWCA 415
FILE NUMBER(S):	CA 40973/00
HEARING DATE(S):	12/11/01
JUDGMENT DATE:	12 November 2001
PARTIES :	Omar Mawlodi & 2 Ors v State Rail Authority of New South Wales & 1 Or
JUDGMENT OF:	Meagher JA at 1; Heydon JA at 10; Rolfe AJA at 11

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	DC 377/99
LOWER COURT JUDICIAL OFFICER :	Gibb J

COUNSEL:	A: D Cochrane 1R: K Andrews 2R: J Turnbull
SOLICITORS:	A: Kevin O'Kane & Co 1R: Gillis Delaney Brown 2R: McCabe Terrill Lawyers
DECISION:	Appeal dismissed with costs; cross-appeals dismissed.

CA 40973/00
MEAGHER JA
HEYDON JA
ROLFE AJA


Monday, 12 November 2001

OMAR MAWLODI & 2 Ors v STATE RAIL AUTHORITY OF NEW SOUTH WALES & 1 Or

Judgment

1 MEAGHER JA: Mr and Mrs Mawlodi and their two daughters were on 13 May 1995 at about 6.30pm attempting to cross five sets of railway lines at Blacktown when they were proceeding in a northerly direction. As they crossed Mrs Mawlodi lagged behind the others and she was struck by a train and killed. The Mawlodis obtained access to the railway line by means of a hole in a boundary fence which had been erected by the State Rail Authority. They lived at 25 Mantaka Street, Blacktown. They intended to visit a friend on the northern side of the railway lines, who lived near a certain complex called the Blacktown Aquatic Centre.

2 Mr Mawlodi has sued the SRA under the Compensation to Relatives Act on behalf of himself and his two daughters. Each of him and his daughters has also sued the SRA for nervous shock. Each case failed in a trial before her Honour Judge Gibb. They are now the appellants in the appeal.

3 No cause of action which they raise can succeed unless the SRA was liable to Mrs Mawlodi in negligence. The hole in the boundary fence, it is now clear, was on land owned by the second respondent, the proprietors of Strata Plan number 31743, which is number 26 Mantaka Street, Blacktown. There was a great deal of confusion about whether it was on the boundary of number 25 or number 26, a confusion which was increased by the appellant’s early championing of number 25. However for reasons which have been explained to us by Mr Cochrane it would appear that the place in the boundary fence where the hole existed was number 26.

4 The plaintiff’s case against the SRA seems to be that that body should have kept the boundary fence in such repair that no person could insinuate himself though any hole in the fence or alternately should have installed warning notices. It is beyond doubt that the SRA knew that from time to time people did walk across the railway lines. That presumably is why it erected the boundary fence in the first place. It also knew that the fence was vandalised from time to time and had to be repaired. The plaintiff’s rather unrealistic contention is that the SRA should have erected and or repaired the fence in such a way that no person could ever create a hole in it. If this was so the SRA would be under a duty to erect very formidable fences on either side of every Metropolitan railway line in New South Wales, a proposition so extraordinary that it could not possibly be correct.

5 It was of course equally beyond doubt that the Mawlodis and all persons in their position knew that trains used the lines frequently, that trains were dangerous, that to be struck by a train might be lethal and that to walk on the railway lines was illegal. Mr Mawlodi tried hard to avoid making these concessions but his efforts at prevarication availed him nought. It is difficult to resist the conclusion therefore which is to quote what Mr Justice Heydon said in argument, that the behaviour of the Mawlodis was foolhardy and reckless. Her Honour’s conclusions in my view were correct.

6 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. To lessen the risk the SRA had already erected a fence and put in place a system for regular inspection and repair of that fence. That system seems to us as it seemed to her Honour to be perfectly reasonable. Applying the tests which have been laid down in cases such as Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 454 and Phillis v Daly (1988) 15 NSWLR 65 at page 73 her Honour came to the conclusion that there was no obligation for any further or more elaborate precautions to be taken. In my view, as I have said, she was correct.

7 As to the question of signage, we did not hear any oral submissions on this aspect of the case from Mr Cochrane this morning though the matter is adverted to in his written submissions and we think it proper that it should be dealt with.

8 The plaintiff as I have said actually lives at number 25 Mantaka Street, Blacktown. The boundary fence in question is not on the premises of number 25 but on the premises of number 26. So what the plaintiffs are really suggesting here is that a land owner has a duty to look after the safety of people who trespass onto his land in order to trespass on a third person’s land. That seems to me a remarkable proposition and one which the Court should not countenance. There is an even more novel proposition that a landowner should take precautions to prevent people lawfully departing from his own land.

9 There is one other matter with which I have not yet dealt. That is the question of bias. An allegation of bias in her Honour was made by the appellants. In argument it was clarified to the extent that it was ostensible not actual bias which was being alleged. After due consideration of a number of aspects of this submission the learned counsel for the appellants, Mr Cochrane, withdrew the submission and in my view he was perfectly correct in doing so. For all those reasons I am of the view that the appeal should be dismissed with costs.

10 HEYDON JA: I agree.

11 ROLFE AJA: I also agree.

12 HEYDON JA: Just one thing. There are two cross appeals on foot, is there any point in them being dealt with?

13 TURNBULL: No your Honour.

14 HEYDON JA: Do you agree Mr Andrews?

15 ANDREWS: No.

16 HEYDON JA: I suppose it is proper to dismiss them then.

17 MEAGHER JA: Without costs.

18 HEYDON JA: Without costs.

19 MEAGHER JA: Cross appeals dismissed.

******