Prouse v State Rail Authority of NSW - [2002] NSWSC 487

No judgment structure available for this case.

CITATION: Prouse v State Rail Authority of NSW [2002] NSWSC 487

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20881/94

HEARING DATE(S): 22-24, 26, 29-30 April & 2 May 2002

JUDGMENT DATE: 3 June 2002

PARTIES :

Plaintiff: Jason Scott Prouse
Defendant: State Rail Authority of NSW

JUDGMENT OF: Newman AJ at 1

COUNSEL : Plaintiff: R.S. McIlwaine SC / G.F. Grinter
Defendant: C. O'Connor / M. Polin

SOLICITORS: Plaintiff: Priority Legal Services
Defendant: Gillis Delaney Brown

CATCHWORDS: Negligence - Breach of contract - onus of proof - unreliabililty of witnesses

DECISION: para 59

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Monday, 3 June 2002

20881/94 PROUSE v STATE RAIL AUTHORITY OF NSW
JUDGMENT

1 HIS HONOUR: At about 10.30pm on 15 November 1991 a train operated by the defendant known by a service number N192 departed the Newcastle railway station. Approximately 500 metres west of Newcastle station another train known by service number N187 was stopped at a signal known as No. 5 signal.

2 N187 was stopped so that N192 could clear Newcastle station, N187 was then was to enter the station at the place where N192 had departed. As N192 was passing by N187 the plaintiff, who was in the path of N192, was struck by that train suffering severe injuries. Principal amongst those injuries was the severing of the plaintiff’s left arm and leg.

3 Consequently, the plaintiff commenced action against the defendant seeking damages for personal injury as a consequence of the accident.

4 The plaintiff has pleaded his cause of action in both negligence and contract. In his third amended statement of claim the plaintiff alleges that the defendant was negligent in that it:-

(i) Caused or permitted the train to stop short of Newcastle Station at night and allowed the automatic doors to open in circumstances where it knew or ought to have known that there was a danger that passengers might have thought that the train had arrived at the Station and either alight or attempt to alight therefrom;

(ii) Caused or allowed the automatic doors of the train to open at night when it knew or ought to have known that the train had not reached the Station;

(iii) Caused or allowed the automatic doors of the train to open at night in circumstances where the train had stopped short of the Station just after an announcement had been made to passengers on the train to the effect that the train was about to arrive at the Station;

(iv) By announcing that the train was about to arrive at the Station, stopping the train and allowing the automatic doors to open, at night, induced the plaintiff to believe that the train had stopped at the Station;

(v) Having made an announcement that the train was about to arrive at the Station, stopping the train and allowing the automatic doors to open, at night, failed to warn the plaintiff the train had not arrived at the Station;

(vi) Failed to warn the plaintiff that there was danger of being struck by another train if he alighted before reaching the Station.

(vii) By failure of the guard and or driver of train N187 to warn the guard or driver of train N192 that passengers were alighting from train N187.

(viii) By failure of the guard and or driver of train N187 to warn the Personnel of the Newcastle Railway Signal Box and or the Personnel of the Newcastle Railway Station that passengers were alighting from train N187.

5 The plaintiff pleads his cause of action in contract as follows:

(a) Alternatively, it was agreed between the parties on the 15 November 1991 the defendant would, for reward, transport the plaintiff on its train from Wyong to Newcastle.

(b) It was a term and condition of the agreement or the defendant warranted that it would take reasonable care for the safety of the plaintiff in the course of such journey and would warn him of dangers to which he was exposed.

6 The defendant by its defence denies liability both in negligence and contract and pleads in relation to the allegations of tort made by the plaintiff contributory negligence.

7 Insofar as the claim in contract is concerned he relied upon the particulars of negligence as supporting the contractual claim of breach by the defendant’s failure to exercise reasonable care for his safety.

8 While the plaintiff did not abandon any of the allegations of breach of duty listed above in reality the plaintiff’s case ultimately revolved around the allegations contained in paragraphs (vii) to (ix).

9 On the question of liability the plaintiff’s case consisted of his own evidence, the evidence of eight passengers who had travelled from Wyong to Newcastle on service N187 and a Professor Johnston whose report was tendered in evidence.

10 The plaintiff himself had no recollection of the events which immediately surrounded the accident itself. What he did recall was that following his attendance at a gathering of people at the residence of one Lloyd Winney with whom he was then residing he and others departed Wyong to travel to Newcastle for the purpose of attending a nightclub. While he had no memory of moving from Winney’s house, which was at Wyong, to Wyong station he recollected catching the train which was revealed in evidence to be service N187 to Newcastle. He remembered that a number of people were travelling with him to Newcastle. Specifically he recalled four people, namely Craig McPeak, Brett Lamb, Bob Shorten and John Worrell, being on the train but his memory of any events or happenings on the journey from Wyong to Newcastle was blank. In particular he had no recollection of anybody drinking alcohol during the journey from Wyong to Newcastle. As I have said he had no recollection of the accident itself or of what happened immediately prior or its immediate aftermath.

11 His first recollection post accident was of events at Newcastle Hospital. Accordingly, the plaintiff’s evidence was of little assistance in determining the question of liability. All that could be gleaned from it is that he travelled as a passenger on 15 November 1991 on service N187 between Wyong and Newcastle.

12 What then in narrative form was the plaintiff’s case? As opened by senior counsel, it was this. The plaintiff and a number of friends travelled from Wyong to Newcastle on service N187. The train stopped at a signal some 500 metres to the west of Newcastle Railway Station. The doors of the carriage in which the plaintiff and his companions had been travelling opened. A number of his companions and the plaintiff then alighted from the train. There was but a relatively short distance between the place where the train stopped and a fence dividing the railway property from Scott Street Newcastle. The plaintiff was the last of the group to alight. Those who had alighted before him managed to make their way safely to the fence and were either over it or were safely within the bounds of the railway property. However, the plaintiff was struck as was earlier noted by train service number N192 which was travelling in a westerly direction and suffered grievous injuries.

13 As may be seen from the particulars of negligence set out above it was the plaintiff’s allegation that the train doors opened either as the result of a deliberate action taken by the guard or by reason of malfunction. In the event, as will be made plain when I review the evidence, this allegation while not abandoned was not pursued with vigour by senior counsel in his closing address.

14 In the upshot the plaintiff’s case was that at the time when his companions began to alight from the train N187, train N192 was in a position to the east of train N187 that the driver of N192 on seeing passengers leaving N187 could have stopped train N192 before it reached the point where it struck the plaintiff on the line. That distance was said to be some 200 metres.

15 It was also alleged on behalf of the plaintiff that the guard of train N187 saw the passengers alighting from the train at a time when he could have contacted by radio the Newcastle signal box or the driver of N192 to alert them of the hazard that had emerged. It was the plaintiff’s case that he had sufficient time so to do in order that such a warning could have obviated the risk of the accident occurring.

16 The defendant’s case was completely to the contrary. Both the driver of train N192 and the guard of N187 and a lay witness who was travelling on the train deposed that the doors on the subject carriage were forced open by passengers. Furthermore, at the time when the first of the passengers on N187 alighted from it N192 far from being some distance to the east of the front of N187 had in fact reached a position level with the driver’s cabin of N187. It was the defendant’s case that at the time when the driver of N192 first saw passengers leaving N187 even if he had immediately applied full braking to N192 he could not have stopped before striking the plaintiff. The evidence of the guard on board N187 was to similar effect. Accordingly, it was the defendant’s case that the plaintiff and his companions were the authors of his misfortune and thus the defendant was not in any way liable at law for the injuries suffered by the plaintiff.

17 I turn then to the evidence given on the question of liability at the trial. As I have already mentioned the plaintiff’s case consisted of his own evidence and the evidence of eight passengers who had travelled on the subject train from Wyong, together with an expert report from a Professor Johnston. I should add that Professor Johnston’s report annexed to it a number of statements made by witnesses including at least one who was not called in the case. I shall deal with this aspect of the matter latter in these reasons.

18 First, I will deal with the issue of how it was that the doors of the carriage in which the plaintiff had travelled from Wyong to Newcastle came to open at the point where they did. While there was some little confusion in the evidence on the subject I have no doubt that the plaintiff travelled from Wyong to Newcastle in the third carriage from the front of the train. The train itself consisted of four carriages. Equally, while there was some confusion about it, the doors from which the plaintiff and his companions alighted from the train were those at the eastern (i.e., Newcastle) end of the carriage. It was common ground that those doors were described in the diagram of the carriage tendered in evidence as door seven and door five. The carriage itself was a double-decker carriage. The doors themselves were adjacent to an open space in the carriage which was described in the diagram to which I have just referred as the vestibule.

19 The first witness called by the plaintiff was one Brett Lamb. He deposed that he was travelling with the plaintiff and other friends from Wyong to Newcastle on N187. During the journey he was sitting in the lower level of the carriage. After hearing an announcement on the public address system that the next stop was Newcastle he noticed the train slow down. He then moved towards the Newcastle end of the carriage eventually arriving at the vestibule area. When he reached that position it was his evidence that the doors seven and five were fully opened and he did not see anyone touching the doors. When challenged in cross-examination he denied that he saw anybody forcing the doors open or anybody depressing the emergency button. In cross-examination he deposed that by the time he reached the vestibule others had left the train.

20 The next witness called by the plaintiff was one Craig McPeak. He deposed that he travelled with the plaintiff and other friends from Wyong to Newcastle on the subject train. His evidence was that on hearing an announcement over the public address system that the next stop was Newcastle Station or something like that he moved forward to the vestibule adjacent to doors five and seven. He stated that two of his companions, namely Messrs Shorten and Worrell, had moved forward ahead of him. When he reached the vestibule he saw both of these persons jump from the train. Both doors, five and seven, were fully opened at that time and he did not know how the doors came to be open. In cross-examination he denied seeing anybody from his group force the doors open or that he held the doors open himself. Indeed, in cross-examination he agreed that he could not say how the train doors came to be open.

21 The next witness called by the plaintiff was a Mrs Sandra Eliot. On the night of the accident she was a single woman, her surname then being Knight. She had boarded the subject train at Wyong in company with a girlfriend of hers, then Deborah Hadley now Deborah Lewin. She did not know the plaintiff or any of his other friends but her friend, Deborah Hadley, was acquainted with some of them. She and her friend had travelled in the same carriage of the train as the plaintiff and his companions. During the journey she was seated in the lower deck area. When the train entered the area of Newcastle she moved into the part of the carriage known as the saloon area which in fact is next to the vestibule. When the train stopped she moved into the vestibule where she deposed in chief that doors five and seven were open. In chief she deposed as follows (p153):

22 Sandra Eliot’s evidence as to her movements immediately before the accident in the carriage was markedly different from that given by the next witness, her companion on the journey, Deborah Hadley now Lewin. Mrs Lewin deposed that she travelled from Wyong in the subject train with the witness Eliot and confirmed that she moved forward when the train was slowing down with Eliot to the vestibule adjacent to doors seven and five. In cross-examination Mrs Lewin, when taken to a statement she had provided to an investigator, gave the following responses to questions asked by Queen’s Counsel for the defendant (p170):

Q: You say:

“As we got to Newcastle the train stopped. It was stopped under an overhead bridge.”

A: Yes.

Q: And:

“I have no idea how long it stopped there for.”

Q: You say:

“While the train was slowing down…”

Q: You say:

“While the train was slowing down I went up to the forward vestibule…”

Q: And:

“… ready to get off the train. The others had already gone up there and by the time I got into the vestibule some had already got off the train by jumping out of the door.”

23 The next witness to give evidence on this topic was one Robert Shorten. His evidence was that on 15 November 1991 he was with the plaintiff and other friends on the train N187 travelling to Newcastle. He did not recall any women being in the subject carriage on the evening. In chief he stated that when the train reached the Newcastle area it started to slow down. He and John Worrell then moved forward into the vestibule next to doors seven and five. When he reached the vestibule the train had stopped and he observed that the doors were open. In cross-examination he denied that nobody in the group with whom he was travelling had held the doors open.

24 Next Mr John Worrell was called. He confirmed the evidence of Shorten that he and Shorten were the first to move forward when the train began to slow down. He stated that when he and Shorten reached the vestibule area the doors were open. In cross-examination he denied that the doors had been forced open.

25 A Christopher Langlois was the next witness called. He confirmed that he had travelled with the plaintiff and others from Wyong to Newcastle on the subject night. In chief he deposed that when he moved to the vestibule area next to doors seven and five the doors were open and at that time some of his companions had already left the train. He did not see anyone open the doors nor did he see anybody holding them open. In cross-examination the challenge to this evidence took the following form (p227):

26 The final witness called by the plaintiff on this topic was Christopher Langlois’ brother, Michael, whose evidence was that on reaching the vestibule on the subject night he noticed that the doors were open. Furthermore, the stated that he did not see anybody holding the doors open and at no time did he see the subject doors five and seven being closed.

27 A number of witnesses gave evidence on behalf of the defendant on this topic, the first being Mr Kevin Boris Maevsky. He deposed that he was a passenger on the subject train. He could not recall whether he was in the second or third carriage of the train but recollected the group of young people on the train. He had observed some raucous behaviour taking place during the course of the journey on the part of a number of young men whom he put as constituting between eight and ten in number. He recalled the train stopping and on hearing a commotion after it had done so he moved forward into the vestibule which he identified as being that next to doors five and seven. When he reached there he saw two persons holding the doors open. When the persons released the doors they closed slowly. Maevsky himself then forced open the doors so that he could observe what was going on. While challenged as to his evidence in cross-examination he maintained that that is what he saw happen.

28 The defendant then called Daniel Andrushak who was the guard on N187 at the time when the accident happened. In chief he described the manner in which he as guard of the train would operate the doors. This process involved the insertion of a bell plug in a console and the flicking of a switch in his cabin. It is his understanding that the doors were held closed by compressed air and when he flicked the switch that allowed the compressed air to vent into the atmosphere. However, the doors themselves would not open automatically and it was necessary for a passenger to use a handle on the door to open it once that procedure had been carried out. He had taken over the train at Sydney and prior to taking it over he had checked all the doors to ensure that they were in working order and he had found that they were. On the journey between Sydney and Newcastle at Dora Creek Station he had observed a passenger attempting to force open the doors and alight from the train as it was leaving Dora Creek Station. He was able to signal the driver to stop the train. Thus no mishap occurred.

29 When the train was nearing Newcastle Station he deposed that it stopped at a signal. After it had been stopped he opened his crew compartment door to see what was going on. He looked down the side of the train that being the side of the train alongside either Hunter or Scott Street Newcastle (those streets run parallel to each other). He then deposed as follows (p274):

30 The next witness called on this topic was Mr Collier who had undertaken the duties of guard on the train which had been known as N187 on its northern journey when it was to return to Sydney that evening. His evidence was that he checked the doors of the train and found nothing untoward with any doors except doors one and three and two and four where he observed that the emergency button had been depressed. He found nothing untoward about door seven and door five and he maintained that evidence in cross-examination.

31 The driver of train N187 was called but he could give no evidence as to how the doors in question came to be open.

32 The final witness called on this topic was the driver of train N192, a Mr Colin Dale Suprain. His evidence was that having departed Newcastle Station he observed train N187 standing at a signal which he thought was 400 to 450 metres from Newcastle Station. His evidence was that as he approached N187 he waved to the driver. He then deposed as follows (p321):

33 While I will review later in these reasons the evidence given by the witnesses whom I have already nominated in relation to other matters pertinent to the plaintiff’s claim I believe that it is appropriate at this stage for me to make some observations on the quality of the evidence given by the respective witnesses. I found the evidence given by Messrs Maevsky, Andrushak, Dunn and Suprain called on behalf of the defendant to be reliable. On the other hand the evidence given by the witnesses called on behalf of the plaintiff I found in general to be unsatisfactory. Accepting as I do the evidence of Mr Maevsky it is apparent that during the journey alcohol was being consumed by the plaintiff and his companions. There also seems to be very little doubt that prior to the plaintiff and his companions commencing their journey at Wyong Station on the subject night they had already consumed alcohol. The evidence of Mrs Eliot and Mrs Lewin is contradictory. As I have observed in the above narrative Mrs Eliot would have that she and Mrs Lewin were the first of the passengers in the subject carriage to arrive in the vestibule immediately before the accident. Mrs Eliot describes the doors as opening automatically. The uncontradicted evidence of Mr Andrushak is that the doors do not open automatically but require manual operation even after the guard has released the compressed air by flicking the appropriate switch. I shall point when dealing with the manner in which the plaintiff and his companions left the train on that evening to matters about the evidence of the plaintiff’s witnesses which I find to be unsatisfactory. At this point suffice it for me to say that I accept the evidence given by the witnesses called by the SRA on the manner in which the doors were opened on the evening of 15 November 1991 immediately before the accident. It follows that I find that doors five and seven were in fact forced open by persons travelling in the same group as the plaintiff. The evidence does not enable me to say who those persons were. However, what I do find is that the plaintiff has failed to establish that the doors of the train were opened as a result of any breach of duty on the part of the defendant, its servants or agents. I make the same finding as to breach of contract. Accordingly, this part of the plaintiff’s claim must fail.

34 I now turn to the remaining two issues. First, the plaintiff’s contention that the driver of train N192 should have seen the plaintiff or his companions leaving train N187 at a point in the journey of the train N192 where the driver could have brought it to a stop before the point where it collided with the plaintiff. Second, the plaintiff’s allegation that the guard of train N187 had time between when it was he that he first saw people leaving train N187 and the time of the collision to have alerted either the Newcastle signal box or the driver of N192 of the hazard which had been created. Again I shall deal with the evidence given by the witnesses in the order in which were called.

35 Brett Lamb deposed on these issues that he jumped out of N187 following Craig McPeak. When he jumped out he heard a horn which he sourced as coming from the headlight of train N192. At the time he was on ‘the tracks’. He estimated that at the time he heard the horn and then saw train N192 train N192 was about 100 metres from him. He then deposed that he proceeded across the tracks and jumped a small fence. He estimated that when he heard the train horn emanating from N192 it was about 100 metres from him. It was common ground at the trial that the length of the train carriages comprising train N187 was 20 metres. Accepting as I do that the plaintiff and his companions were travelling in the third car from the front and that they exited from the set of doors at the head of that carriage this would mean that the point of departure from the train was some 45 to 50 metres (approximately) from the front of train N187. It follows that if Lamb’s estimate is correct N192 was about a carriage length from the front of N187 when Lamb saw it. If N192 were travelling at 30kph (as Suprain, the driver, later deposed) it would have taken about 7.6 seconds for N192 to have reached a position immediately alongside doors five and seven of the third carriage of train N187.

36 Lamb was taken to a prior statement he had made in cross-examination. The following exchanges occurred between Lamb and senior counsel in cross-examination (p123):

Q. I’ll just read it to you again:

“I jumped of the train and saw a headlight…”

37 The next witness called by the plaintiff was Craig McPeak. Having given the evidence over the situation of the doors on the subject carriage to which I have already made reference McPeak went on to say that he saw Worrell and Shorten jump from the carriage, walk across the tracks and climb the fence dividing the railway premises from Scott Street Newcastle. He then said that he jumped onto the tracks and like Worrell and Shorten walked over the tracks and then ‘over the fence’. He claims he first saw train N192 when he was climbing over the dividing fence. It was his evidence in chief that at that time Shorten and Worrell were on the pavement on the footpath of Scott Street Newcastle. In chief his evidence as to his sighting of N192 was as follows (p144):

Q. Please, just answer the question.

HIS HONOUR: Just answer the question.

THE WITNESS: Sorry, can you repeat the question?

38 Sandra Eliot in chief deposed that she had seen four or five of the boys leave the train before the plaintiff. In cross-examination she said that while the other boys jumped from the train she didn’t see the plaintiff leave the train but only saw him on the tracks but she did not see him climb down a ladder and she denied that she saw him speaking to anybody in the vestibule of the train when he was on the track.

39 Deborah Lewin could not recall seeing anyone get off the train N187 when it was stationary. She said that all she could remember was seeing the plaintiff facing the train in which she was travelling yelling something and she turned away, ‘I heard a horn and then he was gone’. Nothing of significance arose in her cross-examination.

40 On this topic Robert Shorten in chief deposed that he had jumped out of the train, moved across the tracks and went through a hole in the fence. He said he was the second person to leave the train, the first being Worrell. He deposed that Worrell, like himself, moved across the track and went through a hole in the fence. He claims he saw McPeak follow a similar course again moving through a hole in he fence onto the pavement. He said that Lamb did the same. He claimed that he first became aware of the train coming from Newcastle when he heard a train horn but could not recall where the train was when he first saw it. In cross-examination the following exchanges occurred (p202):

Q. If I could just ask you to look at paragraph 19 of that document in front of you. You say:

“Brett just made it across the track, but as Scott jumped down and started over, he was too late, there was a train coming from Newcastle station and it hit him.”

41 John Worrell was the next witness called on behalf of the plaintiff on this topic. In chief he deposed that he jumped from the carriage and went from there across the tracks to a position where he waited by the fence. Initially he deposed that he waited on the track rather than the footpath side. He recalled that the dividing fence had a hole in it but could not remember if he and his friends went through the fence before or after the accident. He said that he did not see the plaintiff being hit by the train.

42 In cross-examination he said he did not seen any train coming from Newcastle station until he heard the sound of the horn of N192. This evidence emerged as follows (p221):

Q. Did you ultimately see the train that hit Scott?

…

43 Christopher Langlois who was next called gave evidence principally concerning the opening and closing of the train doors and added little to the evidence relating to the dynamics of the accident.

44 His brother, Michael Langlois, having given the evidence relating to the opening and closing of the doors to which I have already referred above gave this evidence in chief relating to the dynamics of the accident (p232):

A. I can remember Scott climbing down. I don’t know what he was climbing on, but he was backing down and out. And I can see him – picture his face towards me, so he was climbing sort of down the - down the side of the train and both doors were open.

45 I shall comment on the nature and quality of the evidence called by the plaintiff on these topics later in these reasons.

46 I turn then to the evidence called by the defendant on these issues. Mr Maevsky’s evidence had little to do with the dynamics of the accident itself but was largely confined to the question of the operation of the doors and I shall not review his evidence again.

47 As far as Mr Andrushak’s evidence is concerned I have already set out his evidence in chief relating to the manner in which he observed persons alighting from the train after it had stopped. He went on later in chief to depose as follows (p275):

48 Mr Andrushak was subjected to a long and searching cross-examination by senior counsel on behalf of the plaintiff. However, he in no way resiled from the evidence he gave in chief nor did the cross-examination, in my view, affect his credibility in any way.

49 Anthony Dunn to whom I have just made reference was the next witness called. He deposed that he had boarded the train at Broadmeadow for the purpose of travelling to Newcastle. His evidence in chief relating to the dynamics of the accident was follows (p305):

50 The defendant then called Roy Crawford Adams who was the driver of train N187 at the time when the subject accident occurred. He deposed that he had driven the train from Sydney to the Newcastle area and that he had stopped the train at subject signal. He first saw N192 when it was about 200 metres from him. He made no other observations of anything unusual about the passage of N192 until it was level with his carriage. He then noticed that the headlight of N192 was turned on and after that he heard its whistle. He said he first heard a long whistle and then maybe two or three short whistles. He responded to questions asked by me in the following manner (p317):

51 The final witness called by the defendant on these topics was Mr Colin Dale Suprain who was the driver train N192. Having first described the manner in which the train is driven including the operation of the braking, his testimony in chief continued as set out earlier in these reasons. He said that he first noticed the first two people jumping out of the train when he had just past the driver’s cab of N187. He deposed that the carriages were about 20 metres long. He believed that the first persons alighting from the train did so when he was between 45 and 50 metres from them. He deposed that it was not possible to stop a train of the configuration of N192 in 50 metres when he was doing in excess of 30 kph. Although in cross-examination a number of robust exchanges took place between Mr Suprain and senior counsel for the plaintiff he in no way resiled from the evidence he had given in chief, in particular he denied that he had first seen people alighting from the train at a point 200 metres from the front of N187. He explained that he was able to stop the train in the distance he did after applying the emergency braking system because at the time when the emergency braking system was put into operation he had already applied the initial braking position, having seen persons beginning to alight from N187.

52 With driver Suprain in the cabin of N192 was a guard, Richard King. Mr King was not called by the defendant in evidence. Accordingly, senior counsel for the plaintiff submitted that pursuant to the High Court’s ruling in Jones v Dunkel I should draw an inference that the untended evidence of King would not have helped the defendant and entitles me to more readily draw any inference fairly to be drawn from other evidence by reason of the defendant being able to prove the contrary had it chosen to call King. In fact a statement from King is contained in the report of Professor Johnston to which I have referred and is in that part of the tender to which no objection was taken. King’s statement is in the following terms:

‘I was at the front of (the) train as it was a short train. As we left the platform I saw the other train standing there. I saw a couple of people jump out on the up side of the line. Those two people got across the line and were standing in the vicinity of the fence. Then two more people forced the doors of the train and they jumped to the tracks on the up side. The first one got across to the other side of the track. The second fellow seemed to hesitate and seemed to move back to the stationary train again. I then heard the bang and the train stopped. I went back to see what could be done.

53 Another person who was mentioned in evidence but was not called was one Darren Moss. Again the statement from Moss is included in that part of Professor Johnston’s report which was not objected to. His statement is pithy:

‘heard call for Newcastle – train stopped – got off - over fence – looked back – saw victim get off – called ‘Look out’ – victim covered up then disappeared’.

54 The extracts I have cited from the evidence indicate a number of contradictions between the testimony given by certain of the witnesses called by the plaintiff. Lamb claimed he climbed over the fence after alighting from the train. So did McPeak. Lamb denied that there was a hole in the dividing fence. Worrell recalled that the dividing fence had a hole in it but could not remember if he went through the fence before or after the accident. Shorten deposed that he in fact having alighted from the train went through a hole in the fence as did Worrell, McPeak and Lamb. McPeak and Michael Langlois both deposed that they saw the plaintiff climbing out of the train. Shorten stated that he saw the plaintiff jump out of the train. Worrell was not definite on this topic but responded to a question found in the extract in paragraph 42 above to the effect that the plaintiff had jumped down onto the tracks.

55 These contradictions when coupled with evidence given by all witnesses for the plaintiff relating to the matter of opening and closing of the train doors to which I have already made reference, lead me to the conclusion that the evidence called by the plaintiff by eyewitnesses is inherently unreliable.

56 On the other hand, I find the evidence given by the eyewitnesses called on behalf of the defendant to be reliable. In short, I accept the evidence given by the witnesses called by the defendant as to the events leading to the subject accident.

57 It follows that I am of the view that the driver of N192, Mr Suprain, first observed persons alighting from N187 at a time when the driver’s carriage of N192 was alongside the driver’s carriage of N187. It follows that there was nothing that he could have done to stop the train prior to him reaching the point where it collided with the plaintiff. Second, his action in immediately sounding the horn and switching the headlight on as soon as he observed persons leaving N187 was entirely appropriate.

58 It also follows that Mr Andrushak, the guard, on these findings of fact did not have time to communicate with the Newcastle signal box or the driver of N192 when he saw persons alighting from the train.

59 While I have a great deal of sympathy for the plaintiff as a young and very pleasant man who has been grievously disabled by the injuries he suffered in the subject accident in my view he has not established that the defendant was in breach of the duty of care owed to him by it nor did it breach any contractual obligation. Accordingly, there will be judgment for the defendant plus costs.

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Last Modified: 06/17/2002

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Prouse v State Rail Authority of NSW [2002] NSWSC 487

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CITATION:	Prouse v State Rail Authority of NSW [2002] NSWSC 487
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20881/94
HEARING DATE(S):	22-24, 26, 29-30 April & 2 May 2002
JUDGMENT DATE:	3 June 2002
PARTIES :	Plaintiff: Jason Scott Prouse Defendant: State Rail Authority of NSW
JUDGMENT OF:	Newman AJ at 1

COUNSEL :	Plaintiff: R.S. McIlwaine SC / G.F. Grinter Defendant: C. O'Connor / M. Polin
SOLICITORS:	Plaintiff: Priority Legal Services Defendant: Gillis Delaney Brown
CATCHWORDS:	Negligence - Breach of contract - onus of proof - unreliabililty of witnesses
DECISION:	para 59