Rail Commissioner (Formerly TransAdelaide) v Warner (BY Her Next Friend Airs)
[2011] SASCFC 90
•16 August 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RAIL COMMISSIONER (FORMERLY TRANSADELAIDE) & ANOR v WARNER (BY HER NEXT FRIEND AIRS) & ANOR
[2011] SASCFC 90
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)
16 August 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE CONFLICT OF EVIDENCE
Appeal against decision of District Court Judge awarding damages to Dennis Martin, deceased father of the plaintiff/first respondent, for injuries sustained to him on 21 November 2001 on train operated by fourth defendant/first appellant (TransAdelaide) and driven by third defendant, Mr Paterson – Martin was ejected by the second defendant/second appellant, Mr Haynes, a conductor, and the first defendant/second respondent, Ms Kernke, a security guard, when he was found not to have a ticket – Martin was injured on attempting to re-board train – trial Judge held Haynes and TransAdelaide liable in negligence – Judge also held TransAdelaide liable on the wider basis that it was in breach of its duty of care to Martin in failing to have in place an adequate system of ensuring that trains would only leave the platform when it was safe to do so – Judge found Kernke not liable and considered it unnecessary to find whether Paterson was or was not liable.
Whether trial Judge’s finding as to position of Martin at the time of the train starting to depart should be interfered with – whether Judge’s findings were based on evidence that is glaringly improbable or opposed to established facts or incontrovertible evidence – whether Judge erred in concluding that safety system was unsafe.
Held (Peek J, Sulan J agreeing): appeal as to liability dismissed – trial Judge’s findings as to Martin’s position should not be disturbed – Judge fully appreciated that evidence of passenger McAlpine was inconsistent with that of Paterson and rejected the latter’s assertion that no one was adjacent to the train when it started to leave Bowden station – Judge was entitled to prefer McAlpine’s evidence for a number of reasons – not necessary to consider fully the appeal against trial Judge’s findings of liability on alternative basis that safety system in place was unsafe.
(Vanstone J dissenting): appeal as to liability allowed – Judge’s failure to explain why he rejected Paterson’s evidence means that his reasons for decision are inadequate – his decision cannot stand – Judge’s finding that Martin was “immediately next to the doors” when the train moved off cannot stand with Paterson's evidence – there is no apparent reason for rejecting Paterson's evidence – Judge’s reliance on McAlpine’s evidence is not free from difficulty.
Undesirable to send the matter back to the District Court for a retrial – this Court should dispose of the action – finding that Martin moved away at least three steps beyond the white line and was continuing to move away when Paterson engaged the throttle – trial Judge’s finding that safety system in place was unsafe must not stand – Paterson was reasonable in causing the train to move off as he did.
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - OTHER MATTERS
Relevance of long delay between trial and delivery of judgment and reasons.
Held (Peek J): while delay may cause a number of collateral problems and is to be greatly regretted, an appellant must demonstrate that such delay has in fact caused error before a delayed judgment will be set aside – just because a judgment is late does not mean that it is also wrong – that the advantage of the trial Judge may be diminished by delay, is not to say that it will necessarily be entirely lost.
(Sulan and Vanstone JJ): long delays between the end of a trial and the delivery of judgment can tend to erode confidence in the administration of justice.
(Sulan J): the delay of over two years between the conclusion of the evidence and judgment is excessive in a case in which the evidence was not complex or lengthy.
DAMAGES - GENERAL PRINCIPLES - OTHER MATTERS
PROCEDURE - COSTS - APPEALS AS TO COSTS
Appellants appealed against the Judge’s decision as to the quantum of damages and also his decision to order that the appellants pay the costs of Kernke (Sanderson order).
Held (Peek J, Sulan J agreeing): appeal as to quantum of damages and costs dismissed – award of $40,000 for past economic loss was a moderate amount and compensated for Martin’s loss of earning capacity in the absence of the injuries of the accident – award of $70,000 for voluntary services was not excessive in all of the circumstances – no error of principle has been established by appellant in relation to Sanderson order – cases against Kernke and Haynes were substantially connected both factually and as a matter of law.
(Vanstone J): Unnecessary to deal with these matters.
Survival of Causes of Action Act 1940 (SA), referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Fox v Percy (2003) 214 CLR 118; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 588; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, applied.
Warner v Kernke [2010] SADC 170; Wilson v McLeay (1961) 106 CLR 523; Lanahmede Pty Ltd v Koch [2004] SASC 204; Caterson v Commissioner of Railways (1973) 128 CLR 99; Zalewski v Turcarolo [1995] 2 VR 562; Sanderson v Blyth Theatre Co [1903] 2 KB 533; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; Terry v Leventeris [2011] SASCFC 26; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; R v Maxwell (Unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998); Cobham v Frett [2001] 1 WLR 1775; Hadid v Redpath [2001] NSWCA 416; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246; R v Nguyen (2010) 85 ALJR 8; D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Van Gervan v Fenton (1992) 175 CLR 327, considered.
RAIL COMMISSIONER (FORMERLY TRANSADELAIDE) & ANOR v WARNER (BY HER NEXT FRIEND AIRS) & ANOR
[2011] SASCFC 90Full Court: Sulan, Vanstone and Peek JJ
SULAN J. I would dismiss the appeal as to liability, quantum and costs. I agree with Peek J. I agree with the comments of Vanstone J that a lengthy delay between the end of a trial and the delivery of judgment can tend to erode confidence in the administration of justice. There are occasions when some delay is unavoidable. However, I consider that a delay of over two years between the conclusion of the evidence and judgment to be excessive in a case in which the evidence was not complex or lengthy.
VANSTONE J. At about 11.00pm on 21 November 2001 Dennis Martin fell under a train operated by the first appellant (originally called TransAdelaide) and suffered injury, including the loss of a leg. Mr Martin had been travelling on the train without a ticket and, after a disturbance, had been ejected from the train at the Bowden railway station by the TransAdelaide conductor, Mr Haynes (the second appellant) and a contracted security guard, Ms Kernke (the second respondent).
Mr Martin sued TransAdelaide, Mr Haynes, Ms Kernke and the train driver, Mr Paterson, for damages for “negligence and/or breach of duty of care”. The proceedings were taken just prior to the elapse of three years after the incident.
The trial upon the claim commenced in the District Court on 9 September 2008. The evidence was taken over seven days and the addresses of counsel occupied a little more than one day. Judgment was delivered on 24 December 2010, being more than two years and three months after the end of the trial. By that time, Mr Martin was dead. He died on 26 October 2009 from a disease unrelated to his injuries. Prior to judgment being delivered, orders were made substituting Mr Martin’s daughter as plaintiff. Notwithstanding that, I shall refer to Mr Martin as the plaintiff.
The trial judge found that Haynes and Paterson should have ensured that the plaintiff was “well away from the train” when it moved off, whether that involved waiting for him to leave the platform, or removing him from the platform: [95]. He found that the conductor was negligent in “telling an intoxicated man that he was to be evicted from the train because he did not have, or would not buy a ticket and then not taking steps to prevent the train moving off while the intoxicated plaintiff was immediately next to the doors and in the process of or likely to attempt to re‑board the train”: [98]. He found that TransAdelaide was negligent in “failing to have in place a system whereby, when there was a [conductor] present, the [conductor] would give the all clear to the driver that it was safe to depart”: [99]. Damages totalling about $168,000 were awarded. The judge found it unnecessary to determine whether the driver was negligent: [102]. The plaintiff’s case against Kernke was dismissed and the judge ordered TransAdelaide and Haynes to pay her costs of action.
TransAdelaide and the conductor, Haynes, now appeal against the finding of liability, aspects of the award of damages and the order that they pay Kernke’s costs. In respect of the liability question they argue that, unless the driver’s evidence was rejected, it was not open to the trial judge to accept the passenger McAlpine’s evidence that the plaintiff was immediately next to the train doors at the time when the train started to move from the station; and that there was neither any reason to reject the driver’s evidence, nor any explanation given for rejecting it, nor indeed any explicit rejection of it.
Background
The events giving rise to the action were proved, in part, by electronic evidence in the form of a videotape generated by security cameras within the carriage and also by electronic records associated with the controls of the train. The latter proved the movements of the train, including that it was stationary at the Bowden Station for ten seconds. The plaintiff gave evidence of the events. Due to his state of extreme intoxication at the relevant time – found to be 0.31 grams of alcohol per 100mls of blood – his recollection of the event was very limited. A number of eye-witnesses gave evidence on behalf of the defendants, including Kernke, Haynes, the driver, and passengers McAlpine, Rees and Kiosowski.
It was proved that the plaintiff boarded the train in company with an acquaintance, one Woodley, whom he apparently met by chance on the platform. The plaintiff was carrying two plastic bags containing groceries. The plaintiff claimed that he had earlier purchased a ticket but that he gave it to Woodley. When he was approached by the conductor he was unable to produce a ticket and was told that he would have to buy one. That led to the plaintiff swearing at the conductor and Kernke and, on the defendants’ case, trying to strike her. McAlpine, Rees, the conductor and Kernke all attested to the plaintiff having attempted to strike Kernke, but the judge specifically rejected Kernke’s evidence to that effect and, it follows, must have rejected McAlpine’s, Rees’ and Haynes’ similar evidence. Anyway, that confrontation led to his ejection. It appears that, upon leaving the train, Woodley picked up the two bags of groceries which the plaintiff had placed on the floor of the carriage in the course of the confrontation with the conductor and Kernke. The video shows that Woodley left the train at Bowden and was followed by the plaintiff, who was escorted to the front doors and released there by Kernke and the conductor. The plaintiff’s recollection of the events included running after the train because he thought he had left his groceries behind.
Early in his reasons for judgment, the judge set out what he referred to as the issues for determination. He referred to the questions of liability of the defendants and contributory negligence and then nominated the following matters:
13The issues for determination include whether the plaintiff was travelling lawfully on the train, whether the plaintiff was intoxicated, the nature of the discussion between the plaintiff and Haynes, whether Haynes was entitled to request information from the plaintiff, whether Haynes and/or Kernke were entitled to use force to eject the plaintiff, and whether a duty was owed to the plaintiff.
From that point the judge turned to the evidence. He made a number of findings about the matters just set out, under the appropriate headings.
I do not find it necessary to deal with the question of whether the plaintiff was lawfully on the train, or with the question of what powers the conductor and security officer had to deal with a person travelling without a ticket, or with an intoxicated and aggressive passenger. In my view those matters do not directly bear on whether the plaintiff’s injuries were caused by the negligence of any of the defendants.
In his findings related to the crucial matter of the plaintiff’s proximity to the train at the point of its departure from the Bowden station, the judge principally relied upon the evidence of McAlpine, which he said was consistent in some respects with the plaintiff’s. I shall now summarise the evidence going to that issue.
McAlpine’s account was that after Kernke and the conductor let the plaintiff off the train (on the left side) he fell over onto his back, and the doors were closed. He was a metre or 1.5 metres from the doors. When he got up he stood back and was looking through the doors at Kernke and the conductor. When the train started to take off the plaintiff was “parallel” to the doors and, as the train gathered speed, so did the plaintiff. McAlpine said he then saw the plaintiff extend his left arm towards the handle alongside the door and grab it. There was a thud and then the train braked and stopped. No other witness described the plaintiff falling to the ground upon leaving the train. Both Kernke and the conductor said that once the plaintiff was out of the train they closed the doors and held them closed.
Kernke said that after the plaintiff left the train she saw him gathering spit in his mouth and so she and Haynes quickly shut the doors. She went on to say that:
… he also moved over the white line backwards and I did see his back at one stage. So he had turned around and moved back about three steps over the white line.
She went on:
… as the train started gathering its momentum, Mr Martin then launched himself at the train and began running alongside the train and then grabbed hold of the side hand rail of the doors. … Not long after that I observed Mr Martin disappear and I thought that he had let go and given up the chase.
The conductor said that having left the train the plaintiff looked as if he would spit in the direction of himself and Kernke and then did so, the spittle lodging on the doors which they had closed. He said that when the train commenced to move the plaintiff “was walking away from the train towards the building of platform 1 of Bowden Station”. He was probably four metres or more away from the train. He said that the plaintiff would have been “another approximately three metres” from the white line. He was “quite a lot closer to the building than actually the train”. The conductor next observed the following:
Well, the train started going and then I don’t recall seeing him start running towards the train, but we were still standing at the doors, and then the next thing he came into my view and he was reaching for the door of the train, after the train was moving. … he reached for the door handle. I believe he grabbed the door handle … would have held on to it for more than two or three seconds. I don’t believe he had a firm grip on it. He then let go of the door handle and I observed him going away from the train.
The conductor next saw the plaintiff after the train had stopped. He had not known why the train had stopped but, after speaking to the driver, he saw the plaintiff on the tracks.
Paterson is an experienced train driver, familiar with the train he was driving on this night and with the route. He was seated at the front of the train, on the left side, near to the platform. He described the view he had in his rear vision mirror by reference to a photograph, exhibit 2D21. That was a photograph of a rear vision mirror positioned on a train in such a way as to allow the driver to view a section of the platform adjacent to the train showing, first, a yellow line close to the edge of the platform and then a white line, approximately a metre back from the yellow line. Paterson said he would have positioned his mirror to allow a wider view of the platform than that indicated by the exhibit.
This was a single carriage train, the driver being located in the front part of the train, in a cabin, which was partitioned from the balance of the carriage. Although the driver would have been in close proximity to the disturbance which occurred as the train approached Bowden, he said he was unaware of it.
The driver’s evidence was that when he stopped at the Bowden station he pressed the “door open” button and looked in the rear vision mirror to see if anyone was going to get on or off. He said no-one was getting on. He saw one Aboriginal person leave from the front door carrying a couple of bags. He said “probably one or two seconds behind him another Aboriginal got off fairly quick”. (Woodley and the plaintiff were of Aboriginal appearance). He said he then glanced forward to make sure there was no-one running in front of him and looked back to the rear vision mirror. He said everyone was all clear and the two persons had moved out of his range of vision. He said the doors had closed behind the second person. He knew that they were closed, first because the carriage was not throwing light through the doors onto the platform and also because his brake pressure had dropped. The driver said he then used the horn, pressed the “door close” button and engaged the throttle brake controller to notch 4 (of 5) and started to move off. He said he kept looking in the mirror and to the front. He said that after probably about two or three seconds he noticed a male person running up next to the carriage. The person was running between the white line and the rail car. The driver adjudged he was far enough away for him to continue safely. He said that such an event is not unusual. He said the person then came close to the white line and lunged for the train, grabbing the door. At that point the driver engaged the full brake and continued watching. He then said “… he was still hanging onto the door. Then he tripped over his own feet and let go of the door and fell down between the car and the platform”. The train then came to a standstill. While the driver’s evidence was probed in cross-examination, it was not put to him that his evidence was inaccurate in any way.
In accordance with the driver’s evidence the judge found that it was his decision as to when the train should leave stations other than the Adelaide Railway Station. That is, there was no communication from the conductor to the driver to indicate that it was safe to leave the station. The judge made the following finding as to the usual system which operates when a train arrives at a station. He said:
64When the train comes to a stop at a station away from Adelaide, the driver presses the door open button for the corresponding platform side and looks in the mirror, if the platform is, as in the present case, on the left. The procedure is to then check to see whether passengers are getting on and off and when all is clear, a horn is sounded, the door close button is pushed, and the driver both checks the line ahead, and watches in the mirror, while moving off.
The evidence of both the conductor and Kernke as to the plaintiff’s movements upon leaving the train was rejected. The evidence of the driver must also have been rejected. That rejection is not made explicit in the reasons, but the driver’s evidence was contrary to McAlpine’s and broadly consistent with that of the conductor and Kernke.
Were the judge’s reasons adequate?
The critical issue for determination was, if TransAdelaide owed a duty of care to persons who were present on the platform having recently alighted from the train, at the time when it was about to depart, was it in breach of that duty in causing the train to depart. That question involves an examination of the actions of the driver and the conductor prior to the driver causing the train to move off. In terms of the responsibility of TransAdelaide directly, the question is whether there was in place an adequate system governing the driver’s decision to leave. Critical to the resolution of the issues are findings of fact as to the plaintiff’s proximity to the train and his movements close to the time the train started to move off.
As set out earlier, the judge found that the plaintiff was “immediately next to the doors” when the train moved off: [98]. As I have said, that finding cannot stand with the driver’s evidence. His evidence was critical to the defendants’ case. On the face of the transcript, there is no apparent reason for rejecting the driver’s evidence. This deficit is both more stark and more significant having regard to the long delay between trial and delivery of judgment and reasons.
The driver had responsibility for the movements of the train. It was for him to ascertain that it was safe to depart from the platform. The fact that he was watching the platform is demonstrated by his clear recollection of the departure from the train of the two men who, from the videotape, were plainly Woodley and the plaintiff. He had a clear view over the distance of perhaps five metres from his own position to the first door via his rear vision mirror. He had not seen the video of the events and so was relying on his memory. Moreover, his evidence that the two men had cleared the train is supported by the conductor and Kernke.
The judge’s reliance on McAlpine’s evidence is not free from difficulty. McAlpine said he was sitting on the right hand side or far side of the carriage, away from the doors. He was travelling with the passenger Rees. In order to see what was occurring he had to look over his left shoulder. McAlpine described seeing the events “out of [his] left-hand peripheral vision”. The conductor, Kernke and the driver all had clear views of the plaintiff, arguably better than McAlpine’s. His view of events outside the carriage must have been impeded by the conductor and Kernke standing at the glass doors. He said his view was through the window of the door. Rees said he could not see the platform because of the reflection in the glass.
It is instructive to note that the judge did not accept the whole of McAlpine’s evidence. I have already related that although McAlpine, along with Rees, Haynes and Kernke, described the plaintiff as having attempted to strike Kernke, the judge apparently did not accept that evidence. The judge did not explain why that was so.
The driver’s evidence reads impressively. Given that it is self evident that he was watching the platform immediately prior to setting the train in motion, and given that his evidence was supported by Haynes and Kernke, it is hard to see why his account was rejected. His evidence is compatible with that of Kernke and the conductor to the effect that, while the plaintiff was clear of the train, he suddenly moved back towards the train and lunged at it. Again, that is compatible with the plaintiff’s own evidence that he realised he was not carrying his parcels and, for that reason, tried to re-enter the train. (However, the plaintiff’s evidence that he was holding the handle next to the doors for “probably about five minutes” including as the train started to move is not supported by any other witness.) These matters underline the necessity for the judge to have explained his reasons for rejecting the driver’s evidence.
The fact that the judge has not explained why he rejected Paterson’s evidence means that his reasons for decision are inadequate. His decision cannot stand.
Should there be a retrial?
In my view it is undesirable to send the matter back to the District Court for a retrial. As seen, the event which gave rise to the action occurred almost ten years ago. In the trial in the District Court the judge made no general findings about the demeanour of the witnesses and, with one minor exception, made his findings on the basis of the content of the evidence given. It is hard to imagine that, were the matter to be re-tried, the demeanour of those witnesses who remain would be critical to a determination of the issues. Rather, I consider that this Court is in as good a position as would be a new judge in deciding the issues.
Moreover, the author of the proceedings has died. In these circumstances the interests of the community dictate that the matter is finalised sooner rather than later. In all these circumstances I consider that this Court should dispose of the action.
Evaluation of the evidence
The driver, Paterson’s evidence should be accepted. I can find no valid reason to prefer McAlpine’s evidence to the broadly similar, and certainly compatible, versions of Paterson, the conductor and Kernke. The plaintiff’s evidence is self-evidently unreliable. That means that, prior to engaging the throttle, the driver saw Woodley and the plaintiff move away beyond the white line, out of his vision, apparently in the process of departing from the platform. I find that, consistent with the conductor’s and Kernke’s evidence, the plaintiff moved away at least three steps beyond the white line and was continuing to move away when the driver engaged the throttle. I find that after the train started to move away, the plaintiff turned and moved towards it, ran alongside it, and then lunged or launched himself at the train with a view to gaining entry and recovering his parcels.
The risks involved in this activity were obvious, even to an intoxicated man. I consider that a reasonable person in the position of the driver is unlikely to have foreseen such conduct. Even if such a person had known of recent events on the train, I think such foresight unlikely, although certainly the actions of an intoxicated man are likely to be seen as more unpredictable.
It is convenient to now consider whether, bearing in mind that the train was carrying a conductor, there should have been in place a system whereby the conductor was required to advise the driver when it was safe to leave the platform. On behalf of the plaintiff it was suggested that the conductor had knowledge of the intoxication of the plaintiff and the fact that he was required to leave the train a stop earlier than planned. The judge found that “a prudent driver” in possession of that knowledge would have “taken steps to ensure that the plaintiff was clear of the train entirely before he commenced to move off”: [100].
The judge found that in circumstances where there was a conductor present on the train that conductor should have been required to take control of the carriage doors and advise the driver that the platform was clear before the driver moved off: [101]. The judge found that such a system of communication was in place on trains consisting of three or more carriages at night: [101].
I consider to be compelling the argument of the appellant that implementation of such a system would have made no difference in this case. As Mr R Harms, for the appellant, submitted, had such a system been in operation, then, having regard to the conductor’s observations of the plaintiff’s movements, he would have given the all clear to the driver. As mentioned, this was a single carriage train and the doors from which the appellant left the train were only a few metres from the driver’s position and immediately in view via his rear vision mirror. In fact, the conductor gave evidence of two mechanisms whereby he could have prevented the train leaving the station, in circumstances where he perceived danger. On his person he carried a key which could be used to override the driver’s locking of the train doors. That would have alerted the driver to a difficulty. There was also an emergency lever located at the end of the carriage, about six or seven metres from where the conductor was standing at the front doors. From the conductor’s evidence it is clear that he gave no consideration to use of either of these mechanisms to cause the train to remain in Bowden Station, since he perceived no need to do so. In my view the finding against the first defendant on the basis of inadequacies in its system cannot stand. There were adequate means available by which the conductor could have prevented the train from being put into motion in circumstances where he was aware of some danger or difficulty of which the driver was ignorant.
The live issue remains whether the driver and the conductor were in breach of any duty in not waiting for the plaintiff to move further beyond the white line, or perhaps to leave the platform entirely, before causing or allowing the train to leave the station.
In The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, Mason J, with whom Stephen and Aickin JJ agreed, discussed the approach to determining whether in a given case, a duty of care existed and whether it had been breached. That approach has been followed over many years including recently: Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 247-248.
In Shirt Mason J said at 47-48:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
Dealing firstly with the question of whether TransAdelaide, through the driver and conductor, owed a duty of care to the plaintiff immediately prior to causing the train to leave the station, and accepting, as I have, the evidence proving that the plaintiff was at least three steps beyond the white line, that he was following Woodley and not evincing any intention to return to or re-board the train, I consider that a person in the position of the driver is unlikely to have foreseen what must have occurred next. In my view the possibility of the plaintiff not only turning back and running alongside the train, but then launching himself at it would have been seen by the reasonable man as a far-fetched possibility. If I am wrong and the possibility of the plaintiff acting as he must have done was foreseeable, then I would conclude that the actions taken by the TransAdelaide personnel met the applicable standard of care.
I would say that because it seems to me that only by insisting that the platform was absolutely clear of any person would the possibility of such an occurrence have been reduced to a negligible one. I say “negligible” because even from a position off the platform, a person could still run at the train and alongside it and launch himself at it. However, in my view it was beyond the practicable means of the appellant to clear the platform. It had no personnel on the platform. Although there was no evidence about this, it is most unlikely that the conductor and security guard would have been permitted by their protocols to leave the immediate vicinity of the train. What if there were persons on the platform who decided to wait there for their own reasons? Would the train driver have been required to wait at the station indefinitely while those persons remained? I consider that it would put too onerous an obligation upon the train service to require that the platform be entirely free of persons before the train departed. Such a requirement would tend to throw into disarray the train timetable.
Furthermore, as I have said, if, contrary to my finding, the plaintiff’s actions were foreseeable, it follows that I assess the probability of what he did as extremely low. Granted, the actions carried with them a substantial risk of injury, as the plaintiff’s injuries demonstrate. However, taking into account all these matters, I consider that the action of the conductor in taking no steps to prevent the departure of the train and the action of the driver in causing the train to move off once the plaintiff was seen to be at least three steps beyond the white line and proceeding away from the train was reasonable.
Delay
I earlier remarked on the long lapse of time between the end of the trial in this matter and the delivery of judgment, some two years and three months. This is not a case where the fact of that delay was itself a ground of appeal. But it was relevant to the complaint of inadequate reasons and it is appropriate to say something about it.
In Goose v Wilson Sandford & Co (1988) 142 SJLB 92 the English Court of Appeal considered a decision of a judge of the High Court in a commercial cause. It was a matter of some complexity. The trial had occupied over five weeks of sitting time and a very large amount of written material was tendered. The Court of Appeal was critical of a delay of over 20 months in delivering judgment. Some of that period was due to the judge’s ill health; he had undergone surgery at one point. The Court said at [112]:
A judge’s tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser’s confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again.
Reference was made to Goose’s case in a criminal matter which came to the New South Wales Court of Criminal Appeal; R v Maxwell (1998) 217 ALR 452. The appeal was against a decision of a judge sitting alone in a murder trial. There was a delay of ten months between trial and delivery of verdict and reasons. The Court noted that public confidence in the judicial process is of particular significance in the administration of the criminal law: 463. Observations made in R v Nguyen (2010) 85 ALJR 8 by the High Court critical of the Victorian Court of Criminal Appeal for reserving a decision for seven months support that view.
However, that is not to imply that it is only in criminal matters that there is a need to maintain public confidence.
The central concern of the exercise of judicial power is the quelling of controversy. It is not only the parties to any particular dispute who are interested in its resolution. The community itself has a keen interest in the finalisation of controversies: D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at 16 per Gleeson CJ, Gummow, Hayne and Heydon JJ. Long delays in delivering judgments are antithetical to the very purpose for which the courts exist.
In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Heydon J was critical of a single judge of the Supreme Court of the Australian Capital Territory for having reserved a decision (interlocutory in nature) for a period of ten months, so delaying the trial of the action.
It can be seen that the concern for the expeditious and efficient disposition of litigious matters extends to every jurisdiction. Long delays in the delivery of judgments tend to erode confidence in the administration of justice and must be avoided.
Further complaints of the appellants
The appellants further appeal against the quantum of damages awarded. They also appeal against the order that they pay the successful defendant’s costs.
In view of my opinion that the plaintiff’s claim should have failed, it is unnecessary to deal with these matters.
Conclusion
I consider that the judgment and orders given in the Court below should be set aside and in their place an order dismissing the claim should be made.
PEEK J. This is an appeal against findings and orders made at trial by a District Court Judge in relation to liability, quantum and costs following the now deceased plaintiff suffering serious injuries in a train accident.
Introduction and background
Although the evidence was somewhat more complicated, for the purposes of the appeal the relevant facts are that on 21 November 2001, at about 11.10pm, Dennis Martin (who was originally the plaintiff and will be referred to as “Martin”) was travelling from Adelaide to a station beyond Bowden in a train operated by the fourth defendant, TransAdelaide, who was also the entity in control of the Bowden station. The train was driven by the third defendant, Mr Paterson, who was directly employed by TransAdelaide.
The second defendant, Mr Haynes (Haynes), a Passenger Service Assistant (PSA), or conductor, employed by TransAdelaide was checking tickets and found that Martin did not have one. Martin was in an intoxicated state. He responded aggressively when asked for identification and, after a scuffle, was ejected from the train at the Bowden station by Haynes and the first defendant, Kernke, a security guard; she was not employed by TransAdelaide, but rather by Group 4 Securitas, presumably under a contractual arrangement with TransAdelaide.
Martin’s subsequent precise movements on the platform are highly contentious. His case was that he was immediately adjacent to the train and trying to open the door to re-board it as it began to move from the station, he then running alongside the moving train and then falling between the platform and the train, suffering serious injuries with his left leg being amputated.
The extent of Martin’s intoxication
Martin’s evidence was that he had ceased working at about 4.00pm, over the next hour or so consumed six stubbies of beer and had then walked to the Tattersalls Hotel in Hindley Street where he consumed more beer over a period of what appears to have been about three hours. The undisputed medical evidence was that when tested at the Royal Adelaide Hospital after the incident, the plaintiff’s blood alcohol reading was .31gm per 100ml of blood. The evidence of the passengers, and the defendants Haynes and Kernke, was that Martin smelled strongly of alcohol. His Honour’s finding that Martin was significantly intoxicated which state was, or should have been, apparent to those dealing with him, was not challenged.
The pleadings
The plaintiff’s allegations against Haynes and Kernke are essentially that they ejected Martin from the train, refused to allow him to re-board the train and permitted the train to move off from the station in circumstances which placed Martin at significant risk of harm. The allegation against Paterson, the driver, is essentially that he drove the train away from the station in circumstances where it was unsafe to do so. The allegations against TransAdelaide are couched in general terms of exposing Martin to risk of injury; failing to have in place a system which would ensure his safety; failing to provide plant and equipment to enable him to enter or leave the train safely including an allegation that it failed to provide adequate lighting at the station, and failing to ensure that its agent servants and employees did not act unreasonably towards members of the public including Martin.
The effect of the defendants’ pleadings is that Martin was travelling without a ticket and responded aggressively when asked for identification. He was escorted from the train at Bowden and appeared to move away from the train thus enabling the train to safely depart. However, after the train had commenced to move, he ran towards the doors which could not be opened while the train was in motion, and fell from the platform. Liability was denied and contributory negligence was pleaded in the alternative. There are no contribution proceedings between any of the defendants.
Substitution of plaintiff and delay in delivery of judgment
After the evidence had been completed and judgment was reserved on 19 September 2008, Martin died from complications of HIV/AIDS on 26 October 2009. His death was unrelated to the injuries the subject of this action. Orders were made to substitute his daughter as plaintiff by her next friend, Ms Warner. Judgment was later delivered on 24 December 2010, about two years three months after it had been reserved. The significance of this delay will be considered below.
For the sake of simplicity and clarity, I will refer to Martin as if he remained the plaintiff and will generally refer to all other parties individually by their name rather than status in the action or appeal.
Summary of his Honour’s findings, awards and orders
His Honour’s findings as to negligence
His Honour found Haynes liable on the basis of his particular actions in relation to Martin and TransAdelaide liable on the basis of vicarious liability for those actions of its employee Haynes. His Honour also found TransAdelaide liable on the wider basis that it was in breach of its duty of care to Martin in failing to have in place an adequate system of ensuring that trains would only leave the Bowden platform when it was safe to do so.
His Honour found that Kernke was not liable and considered that it was not necessary to find whether Paterson (the driver) was or was not liable having regard to his findings of liability of TransAdelaide above.
His Honour’s findings as to contributory negligence
As to contributory negligence, his Honour stated:[1]
[110]The plaintiff clearly acted in a manner which contributed to his own injuries. In his state of intoxication, he attempted to re-board the train and ran along the platform holding onto the train. I have no direct information as to how it was that he came to fall between the platform and the train, and no expert evidence was led by any party in that regard. I can only assume that he somehow lost his footing whether as a result of the train speeding up or braking, or stumbling due to his intoxication.
[111]Nevertheless, as I have said, his actions showed considerable disregard for his own safety. He was negligent in attempting to gain re-entry to the moving train. I am of the view that the plaintiff’s negligence did contribute to his own injuries and that the plaintiff was responsible for his own injuries to the extent of 50 percent.
[1] Warner v Kernke [2010] SADC 170.
There was no cross-appeal or notice of cross-contention filed by the plaintiff/respondent on the appeal and no appeal against the finding of contributory negligence by either the plaintiff or the defendants.
The awards of damages
Because of the intervening death of Martin, and pursuant to the Survival of Causes of Action Act 1940 (SA), awards were only made for past economic loss ($40,000), voluntary services ($70,000), Wilson v McLeay[2] damages ($1,200) and special damages ($57,721.80). All awards are to be reduced by 50% for contributory negligence. The first two awards form the subject of the quantum appeal by the defendants.
[2] (1961) 106 CLR 523.
Costs orders
His Honour made a Sanderson[3] order against the unsuccessful defendant Haynes to pay the costs of the successful defendant Kernke and this order is also the subject of appeal by both appellants.
[3] Sanderson v Blyth Theatre Co [1903] 2 KB 533.
The duty of care to the plaintiff
His Honour correctly recognised that even if the obviously intoxicated plaintiff had been travelling without a ticket and had subsequently misbehaved and the defendants were justified in removing him from the train, nevertheless a duty was still owed to him in relation to his well being during, and subsequent to, removal from the train. His Honour further recognised that such duty will encompass guarding against a foreseeable risk of such a person undertaking foolish acts even if such acts are quite unlikely to occur. His Honour cited the decisions in Wyong Shire Council v Shirt[4] and Lanahmede Pty Ltd v Koch.[5]
[4] (1980) 146 CLR 40. Mason CJ there stated at 47: “A risk of injury which is quite unlikely to occur, ... may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.”
[5] [2004] SASC 204.
His Honour also referred to the decision in Caterson v Commissioner of Railways,[6] where the plaintiff boarded a train solely to assist with loading luggage and then found it departing in circumstances where he would have been taken miles out of his way. Rather than using the emergency cord, he foolishly attempted to alight from the moving train and suffered severe injuries. The High Court restored the verdict in favour of the plaintiff. Gibbs J (with whom Menzies and Stephen JJ concurred) stated:[7]
It is true that the safer course in such a situation would be to pull the communication cord, if one were provided, but people do not always choose the safer course and it was foreseeable that a person wishing to get off the train might try to jump off it while it was moving, because he thought that the speed of the train enabled him to do so without risk of injury, or because he wished to avoid the embarrassment of pulling the communication cord and for that reason was prepared to take a chance of injury, or simply because in the heat of the moment it seemed to him the only thing to do. In the circumstances of the present case it was open to the jury to find that the respondent could have foreseen that there would be on board the train after it had stopped at Casino persons who intended to leave it before its departure and that those persons would be exposed to the risk of injury if the train started to move without adequate warning and after so short a stop as not to give them a reasonable opportunity to alight.
I am prepared to assume that the carriage was provided with a communication cord and that many persons in the predicament in which the appellant found himself would have used the cord to stop the train. Notwithstanding these assumptions the jury might properly consider that there was a real risk that if the train began to move while persons who were not passengers were still aboard it, one of these persons would try to leave the train and in so doing would suffer injury. Moreover, if someone did jump out of the train and fell between it and the platform the consequences would be likely to be serious.
[6] (1973) 128 CLR 99.
[7] Ibid 108.
The trial Judge here recognised that such duty will encompass the acts of persons who are mentally disturbed by reason of a permanent disability or temporary impairment such as intoxication. His Honour referred to Zalewski v Turcarolo[8] where a police officer, Zalewski, was sued for damages in negligence for his shooting of the mentally disturbed plaintiff in circumstances where it was foreseeable that Zalewski’s conduct might precipitate an aggressive reaction by the plaintiff, requiring Zalewski to act in self defence. Hansen J (with whom JD Phillips J concurred) stated:[9]
In my opinion it was open to the jury to conclude that when Zalewski responded to the situation by opening the door and confronting and shouting at the respondent, it was foreseeable that the respondent might point a possibly loaded gun at one or both of them or that in moving or reacting in this or some other way the police officers or one of them may fire a shot or even be shot at. It is to be remembered that Zalewski understood the respondent had twice pointed the gun at his father. By opening the door and addressing the respondent in the way in which they did, they confronted him with a sudden and urgent situation in which it was open to the jury to find that the reaction of the respondent which led to the police shooting was a foreseeable consequence. It was a real risk foreseen by Zalewski, and not far-fetched or fanciful, that as a consequence of the opening of the door, the respondent would behave in such a way as to make it necessary for them to shoot him in self-defence.
…
… [I]t was open to the jury to find that a reaction of a kind which gave the police officers an apprehension of threatening behaviour could have been anticipated by them as the reaction of a person with a mentally disturbed mind when confronted with a sudden and unexpected situation at the doorway of his bedroom. It was also open to the jury to find that Zalewski acted too quickly, without time for proper inquiry and reflection concerning the respondent and his likely reactions, and to plan his approach accordingly with less confrontation and in a manner consistent with his training for such a situation, the primary object of which was to save life and avoid injury. For all of these reasons I am of the opinion that it was open to the jury to find negligence on the part of Zalewski.
[8] [1995] 2 VR 562.
[9] Ibid, 573.
In the present case, the trial Judge also referred to the decision in Lanahmede Pty Ltd v Koch[10] where it was emphasised that the factor of potential intoxication must be taken into account in appropriate circumstances. Thus Bleby J there stated:
[2]… There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others.
[10] [2004] SASC 204.
In my view, his Honour rightly concluded that the risk that an obviously intoxicated person such as Martin, who had been ejected from the train, late at night, at a station earlier than his destination, with no transport to get home, might attempt to reboard the moving train and thereby injure himself was foreseeable within the meaning of the relevant authorities.
His Honour’s findings as to Martin’s position when the train started moving
His Honour clearly found that Martin was immediately adjacent to the train when it started moving. His Honour’s findings at [60] and [98] are as follows:
[60]The plaintiff said that he was holding onto the train door attempting to open it at the time the train moved off. Whilst that is not consistent with the evidence of Paterson, it is consistent with the evidence of McAlpine and to a certain extent consistent with Kernke and Haynes although they say that he was holding onto the door initially and then turned away and gave the impression that he was leaving. I do not accept that. I prefer the evidence of McAlpine. He was adamant that the plaintiff’s face was visible at the door when the train commenced moving.
…
[98]It seems to me that Haynes has been negligent, for the reasons described, in telling an intoxicated man that he was to be evicted from the train because he did not have, or would not buy a ticket and then not taking steps to prevent the train moving off while the intoxicated plaintiff was immediately next to the doors and in the process of or likely to attempt to re-board the train.
In making the above findings, his Honour relied heavily upon the evidence of the passenger, Mr McAlpine (McAlpine) who was actually called by the defendants at trial. He was in no way acquainted with either Martin or any of the defendants. It could in no way be suggested that he was biased in favour of Martin; indeed, the flavour of his evidence strongly conveys the impression that he was quite unimpressed with Martin’s intoxicated behaviour and was not critical of the robust handling of the situation by Haynes and Kernke.
McAlpine was seated facing forwards, three rows back from the front of the train, on the right hand side of the aisle for the direction of travel. He was travelling with a friend, Mr Rees (Rees) who was seated behind the driver, facing backwards for the direction of travel and on the left side of the aisle. The exit door was on the left side of the train.
The evidence of McAlpine is correctly summarised by his Honour thus:
[56]McAlpine said that when the train stopped Kernke opened the door and Kernke and Haynes “let the plaintiff off”. He said that after the plaintiff was “unrestrained” he fell over. Before the doors closed he said he could see the plaintiff on the ground on his back. The warning bells for the doors closing sounded and the plaintiff stood up and was looking through the doors. He said the train started to take off and the plaintiff was parallel to the door and as the train speed increased so did the plaintiff. He said he could see the plaintiff’s left arm extend towards the handle on the side of the rail car door and that he grabbed the handle. After that there was a thud and then the train braked.
[57]McAlpine said that he could not see Kernke and Haynes physically holding the doors closed, but that they remained standing at the door, and, at the point when the train moved off, the plaintiff was still at the door. He said that Kernke and Haynes remained standing at the door until the train came to a stop. That is consistent with the surveillance video.
His Honour’s broader findings
However, his Honour’s finding of liability in TransAdelaide was not restricted to the basis of a determination that the plaintiff was immediately adjacent to the train when it started moving. His Honour in fact reasoned on a broader basis thus:
[91]In my view, Haynes was not entitled to physically eject the plaintiff from the train. He may have been entitled to seek his name and address, or some means of identification. He did not do so. The course open to the defendants, upon either discovering that the plaintiff had no ticket, or as I have found, upon the plaintiff saying he had no ticket, was to request details of his name and address or proof identity so that an expiation notice could be issued. The remedy was not to evict the plaintiff from the train.
[92]Indeed even had the first and second defendants been persons authorised by the Minister pursuant to s 56 of the Passenger Transport Act, there was a procedure to be followed and it was necessary that details of the plaintiff’s identity be sought. I have found that Haynes did not ask the plaintiff for his name and address or for proof of identity. Upon ascertaining that the plaintiff had no ticket, and the plaintiff saying he had no money to buy one or did not intend to buy one, Haynes told the plaintiff that he was going to be ejected from the train. That threat of eviction onto a train station which was not the plaintiff’s intended stop, after 11 o’clock at night, not surprisingly caused resentment and agitation in the plaintiff. Whilst the first and second defendants may have been responding to a perception of aggression on the part of the plaintiff in taking hold of him, the plaintiff’s response was generated by the inappropriate action taken by Haynes.
[93]In removing the plaintiff from a position of relative safety within the carriage, and ejecting him onto the platform of the Bowden railway station after 11 o’clock at night, a station at which they knew he did not wish to alight, Haynes was under a duty of care to take reasonable steps for the plaintiff’s safety. That was particularly so in circumstances where the plaintiff was obviously intoxicated and could be anticipated to behave recklessly.
[94]In my view, it was foreseeable that the plaintiff, having been evicted in the circumstances I have described, might try to re-enter the carriage. So much is apparent from the evidence that Kernke and Haynes closed the carriage doors and held them closed anticipating that the plaintiff might try to re-enter. There is some evidence from them as to the plaintiff intending to, or actually, spitting, but I find that that was not the initial motive for them holding the doors closed against him.
[95]It was incumbent upon Haynes and Paterson to take steps to make sure that the plaintiff was well away from the train when it moved off, whether that involved waiting for him to depart the platform, or in fact removing him from the platform. As I have said, the entire stop at Bowden station occupied only some 10 seconds and it would have been of little moment to wait to make sure that the plaintiff had in fact exited from the area.
[96] As Gibbs J observed in Caterson (at 109):
In the present case the jury, once it had decided that there was a real risk of injury if the train commenced to move without proper warning or after too short a stop, had to consider what difficulty, expense and disadvantage there would have been in taking steps to eliminate the risk (citations omitted). No doubt there would have been some disadvantage in allowing the train to stop a little longer at the station, but it was for the jury to weigh that disadvantage against the risk.
[97]Having created that situation of risk where although an unusual case, the event and damage were “not unlikely to occur” within the meaning described by Barwick CJ, then in driving off without making sure that the plaintiff was clear of the platform, TransAdelaide by its employees breached the duty owed to the plaintiff.
[98]It seems to me that Haynes has been negligent, for the reasons described, in telling an intoxicated man that he was to be evicted from the train because he did not have, or would not buy a ticket and then not taking steps to prevent the train moving off while the intoxicated plaintiff was immediately next to the doors and in the process of or likely to attempt to re-board the train.
[99]The fourth defendant was negligent in failing to have in place a system whereby, when there was a PSA present, the PSA would give the all clear to the driver that it was safe to depart. Such a system was used where there were four cars or more during the day or three cars or more at night, because the PSA has a better view of the platform and of departing passengers than does the driver.
His Honour then considered in some detail whether there was a safe system in place and concluded that there was not. His Honour then stated:
[103]A breach of the duty owed to the plaintiff occurred by virtue of the fact that having ejected the plaintiff, Haynes took no steps to ensure that he was clear of the train and indeed clear of the platform before the train departed, and took no steps to inform the driver of the potential danger of the plaintiff attempting to return to the carriage. TransAdelaide was in breach of its duty in failing to have in place a system of dealing with a passenger attempting to board a moving train. Such a system could have encompassed communication between the PSA and the driver, a requirement that the PSA when present should give an all clear signal to the driver after the PSA had taken steps to ascertain that an evicted passenger was not in a position to attempt re-entry.
Issues on the appeal
Ground one of appeal was as follows:
The learned trial Judge erred in finding that the plaintiff was at the door of the train when the train commenced moving and should have found that the plaintiff walked some metres away from the train and did not move towards the train until after the train was in motion.
Counsel for the appellants contended that this was the central factual issue on the liability appeal and conceded in his outline of argument that the appellants accepted that the driver was negligent if he put the train in motion when the plaintiff was immediately next to the doors. Counsel stated in opening the appeal:[11]
The finding is that he was immediately next to the doors and in the process of or likely to attempt to re-board the train at the time when the train was put in motion, and it’s that finding of which we complain.
I have said in the outline that if in fact that was the position, if I’m not successful in persuading the Court to set that finding aside, then I do have a problem, quite obviously, not for the reasons stated in the judgment, but simply because the driver should not have taken off, if that was the position, and although the driver wasn’t found negligent at first instance, quite clearly, it would have been negligent if he had taken off at that point, and the appellant, that is, the Railway Commissioner, would be vicariously liable for that negligence.
[11] T3 (Full Court transcript).
Counsel for the appellants also referred to the two painted lines that appeared on the platform (and are depicted in exhibit photographs), namely a yellow line right at the edge of the platform and a parallel white line some distance in from the edge of the platform. As is spelt out in the evidence of the witness Kernke,[12] a person would be “over” the white line if he were between the white line and the yellow line at the platform edge and would be “behind” the white line if he were on the side of it furthest from the platform edge.
[12] T258.
Counsel for the appellants asserted that the white line was a guide to TransAdelaide’s personnel as to the required degree of separation of persons from moving trains and conceded that if the Judge’s finding that Martin was “over the white line” (i.e. between the two lines) when the train set off was not overturned, the appeal could not succeed.[13]
[13] T45(33)-T46(2) (Full Court transcript).
I agree with that analysis as far as it went, but I do not agree that it would necessarily follow that the defendants would therefore not be liable if Martin had been somewhat further from the platform edge and behind the white line when the train started to move. It is to be stressed that there was no particular legal significance to be attached to the precise distance from the platform that the defendants had chosen to delineate by the painting of the two lines.[14] Liability in a particular case will obviously depend on the whole of the circumstances of the case and it may well be that liability will accrue in a particular case where a plaintiff is considerably behind the white line.
[14] There is no suggestion that the distance between the lines corresponded to any distance specified in any regulation or code etc.
In my view, counsel for the appellants is quite right in conceding that if he cannot overturn what he refers to as his Honour’s “critical findings” as to Martin’s position when the train started moving, they must lose the appeal. However, as stated above, if such findings were overturned on the basis that Martin was behind the white line, that would necessarily lead to a further and wider enquiry as to whether liability was still sustained having regard to his Honour’s wider bases of liability.
I foreshadow that my conclusion is that his Honour’s findings as to the position of Martin at the time of the train starting to depart should not be interfered with. Accordingly, as the appellants concede, the liability appeal must be dismissed and it will be unnecessary for me to consider the wider basis of liability. My reasons follow.
Appellate review generally
Before considering the appellants’ submissions in detail, it is worth repeating the obvious proposition that there are significant constraints on appellate review of findings of fact in civil trials heard by Judge alone, particularly where, as here, the Judge has been presented with a direct conflict between the evidence of several eye witnesses to the same event. It is well recognised that the trial Judge has primary responsibility for factual adjudication in such a situation and that his findings should not be disturbed unless good and sufficient reason to do so is positively established by the appellant.
In the recent decision in Sands v Channel Seven Adelaide Pty Ltd[15] Gray J (with whom Nyland and Vanstone JJ concurred) stated:
[56]The approach of this Court is settled. The Court’s function was considered in Fox v Percy.[16] Gleeson CJ, Gummow and Kirby JJ noted that, while an appeal court should conduct a “real review”[17] of the trial and the trial judge’s reasons, there was nevertheless a need for “appellate respect for the advantages of trial judges”.[18]
[57]The majority also considered that an appeal court should give weight to the trial judge’s reasons for making his or her findings. The Court should also take into account “the ‘feeling’ of a case which an appeal court, reading the transcript, cannot always fully share”[19] and “the unexpressed conclusions” that went into the judge’s findings.[20]
[58]In particular, the members of the High Court endorsed the statement of principle to be found in Jones v Hyde,[21] Abalos v Australian Postal Commission,[22] and Devries v Australian National Railways Commission,[23] that a finding of fact by a trial judge, based on the credibility of a witness may only be set aside upon appeal where incontrovertible evidence or uncontested testimony demonstrate that the judge’s conclusions are erroneous,[24] or that alternatively, a decision at trial may be set aside where a finding of fact is “glaringly improbable” or “contrary to compelling inferences”.[25]
[15] [2010] SASC 202.
[16] Fox v Percy (2003) 214 CLR 118.
[17] Ibid [25].
[18] Ibid [26].
[19] Ibid [23].
[20] Ibid [41].
[21] Jones v Hyde (1989) 63 ALJR 349, 351-352.
[22] Abalos vAustralian Postal Commission (1990) 171 CLR 167, 179.
[23] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479, 482-483.
[24] Fox v Percy (2003) 214 CLR 118, [26]-[27].
[25] Ibid [29].
In referring to “the advantages of trial judges”; “the ‘feeling’ of a case which an appeal court, reading the transcript, cannot always fully share”; and ‘the unexpressed conclusions’ that went into the judge’s findings”, Gray J emphasises that appellate Courts must show restraint because the impression made by the respective witnesses on the Judge seeing and hearing them in Court may be important.
The three decisions of the High Court in Jones v Hyde,[26] Abalos v Australian Postal Commission,[27] and Devries v Australian National Railways Commission[28] were approved in both Sands v Channel Seven Adelaide Pty Ltd[29] and Fox v Percy,[30] where Gleeson CJ, Gummow and Kirby JJ stated:[31]
[26]After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
(Citations omitted)
[26] (1989) 63 ALJR 349.
[27] (1990) 171 CLR 167.
[28] (1993) 177 CLR 472.
[29] [2010] SASC 202.
[30] (2003) 214 CLR 118.
[31] Ibid 127.
This “trilogy” of cases makes it clear that the mere fact that the trial Judge attempts to explain his preference for the evidence of one witness over another in objective and logical terms rather than expressly justifying his decision by direct reference to the advantage of seeing and hearing the witnesses, does not mean that he has not also made use of that advantage which is available only to him. This matter was emphasised in Jones v Hyde[32] by McHugh J (with whom Brennan, Deane, Dawson, and Toohey JJ concurred) and repeated in Abalos v Australian Postal Commission[33] by McHugh J (with whom, on this occasion, Mason CJ, Deane, Dawson, and Gaudron JJ concurred). Thus in Jones v Hyde,[34] McHugh J stated:[35]
It is true that the learned judge did not expressly rely on the demeanour of the plaintiff in making his findings of primary fact. But this does not mean, as Mr Ellicott submitted, that an appellate court is in as good a position as the trial judge to determine the primary facts of the case. When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. It does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion: cf Martin v Option Investments (Aust) Pty Ltd [No 2] [1982] VR 464 at 468.
[32] (1989) 63 ALJR 349.
[33] 1990) 171 CLR 167.
[34] (1989) 63 ALJR 349.
[35] Ibid 351.
And in Devries v Australian National Railways Commission[36] Deane and Dawson JJ stated:[37]
Indeed, as Kirby ACJ pointed out in Galea v Galea [(1990) 19 NSWLR 263, 266], in many cases today, judges at first instance expressly “disclaim the resolution of factual disputes by reference to witness demeanour”. However, this does not deny that in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings.
(Citation inserted)
[36] (1993) 177 CLR 472.
[37] Ibid 480.
“Established facts”, “incontrovertible evidence” and “glaringly improbable evidence”
It is, of course, the case that particular expressions such as “findings based on evidence that is glaringly improbable” or findings based on “evidence opposed to established facts or incontrovertible evidence” do not per se wholly delineate the test to be applied: rather, they are illustrative of the sort of factual situation that may justify appellate interference; thus Deane and Dawson JJ noted in Devries v Australian National Railways Commission[38] that the appellate duty cannot be explained “in any short exhaustive formula” and that the reference to “glaringly improbable” in the joint judgment in Brunskill v Sovereign Marine and General Insurance Co Ltd[39] was by way of “example”.
[38] (1993) 177 CLR 472, 480.
[39] (1985) 59 ALJR 842, 844.
Nevertheless, such expressions have the imprimatur of the High Court and serve to emphasise the exceptional nature of appellate interference in such circumstances. In fact there are two slightly different approaches, each the reverse side of the other.
The first approach refers to the fact that a trial Judge’s finding may be overturned by establishing that it is based on evidence that is “glaringly improbable”. Here, the emphasis is on the exceptionally fragile nature of the evidence that forms the basis of the finding and the degree of required weakness is illustrated by phrases such as “glaringly improbable”. In the present case it could not seriously be said that, standing by itelf, the evidence of McAlpine is “glaringly improbable”.
The second approach refers to an appellate reversal of “findings based on evidence that is opposed to established facts or incontrovertible evidence or contrary to compelling inferences”. Here the emphasis is on the exceptionally solid nature of clearly identified objective evidence with which the Judge’s finding is inconsistent. It is mainly this second approach that is adopted by the present appellant.
Such evidence must be quite inconsistent with the evidence of the witness(s) accepted by the trial Judge and have a greatly superior claim to reliability. Such was the position in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq)[40] with the clear trail of documentation and in Fox v Percy[41] with the independent evidence of vehicle skid marks, as to which Gleeson CJ, Gummow and Kirby JJ there stated:[42]
[37]In the end, it was not logic and the assessments of probable behaviour in the circumstances that persuaded the majority of the Court of Appeal. Such considerations might not alone have warranted disturbance of the primary judge’s conclusion. It was the objective fact of the skid marks which, to the close of the trial, remained unexplained, or insufficiently explained, by the appellant.
[38]… The skid marks showed objectively the direction of the respondent’s vehicle from the application of the brakes to the place of rest at the point of the collision with the appellant’s horse. Alike with Beazley JA, we regard the skid marks as an incontestable fact that rebuts the claim of negligence propounded by the appellant. Clearly, it was open to the Court of Appeal, conducting the rehearing, to reach that conclusion. Once it did so, that Court was bound to give effect to its opinion.
[40] (1999) 160 ALR 588.
[41] (2003) 214 CLR 118.
[42] Ibid 130-131.
However, evidence which, while no doubt opposed to, or said to be inconsistent with, the evidence of the witness(s) accepted by the trial Judge, has no greatly superior claim to reliability and will usually be insufficient. Thus in Devries v Australian National Railways Commission[43] Brennan, Gaudron and McHugh JJ stated:[44]
Mohr J appears to have taken the plaintiff’s answers in the compensation claim form and report form as “established facts”, but that is not the sense in which the term “established facts” is used in authorities such as Brunskill v Sovereign Marine & General Insurance Co Ltd [(1985) 59 ALJR 842, 844]. The statements in the reports were not “established facts”. They constituted admissions which could be used to discredit the plaintiff’s testimony. But the “facts” in the statements did not constitute “facts incontrovertibly established by the evidence” [Ibid]. One of the critical issues in the case was the extent to which the statements could be relied on as an accurate account of how the plaintiff had sustained injury. The question for the judge was whether he should accept the plaintiff’s oral evidence or whether the accounts in the claim form and report threw such doubt on the plaintiff’s evidence that it should not be accepted. Once the trial judge concluded that the plaintiff’s hospitalisation, pain and limited knowledge of English explained his failure to mention the specific incident or give 23 January 1985 as the date of the incident, the statements had little, if any, evidentiary value. In accepting that there was an explanation for the inconsistencies, the trial judge had the advantage, which was denied to the judges of the Full Court, of being able to judge the true character and intelligence of the plaintiff and his ability to understand questions and to express himself in answer to those questions. These matters were fundamental to determining whether the plaintiff’s evidence should be accepted.
(Citation added)
[43] (1993) 177 CLR 472.
[44] Ibid 477.
The effect of “substantial or excessive delay” in delivering a judgment
In Terry v Leventeris[45] Gray J (with whom Sulan and Vanstone JJ concurred) considered the effect that “substantial or excessive delay” in delivering a judgment may have on the approach to be taken to appellate review of that judgment. His Honour stated:
[45] [2011] SASCFC 26.
[15]In support of the contention that delay should be taken into account when reviewing the Judge’s findings, the defendant relied upon the observations of the Western Australia Full Court in the decision of Mount Lawley Pty Ltd v Western Australian Planning Commission[46] and upon the observations of the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd.[47] Consideration of those two authorities and the cases considered within, allows for the following summary of principles to be identified in relation to situations where there has been substantial delay in delivering judgment:
· Delay in delivery of judgment does not, on its own, constitute a ground of appeal.[48] However, in certain circumstances, the delay can give rise to a miscarriage of justice or other errors, which constitute a ground of appeal.[49]
· In circumstances where there has been substantial delay in delivering judgment:
·the delay weakens the advantage, as discussed above in Fox v Percy, that a trial judge has over an appellate court;[50]
·appellate courts are to take the delay into account when reviewing the trial judge’s factual findings[51] and when considering the adequacy of the judge’s reasons;[52]
·the trial judge’s reasons should indicate that he or she has fully considered all of the evidence.[53] It is incumbent upon the trial judge to indicate why he or she rejected the evidence of a particular witness and to indicate why he or she preferred one witness’s evidence over another witness’s evidence;[54]
·assertive statements made by a trial judge which would normally be assumed to have been made after the trial judge comprehensively considered the evidence, need to be supported by a more complete statement of the relevant evidence;[55]
·the assumption that a trial judge has considered all of the evidence, albeit not referring to all of the evidence in the judgment, can no longer be made;[56] and
·it is to be borne in mind that disquiet can result in the general public, in the losing party in that they may lose confidence in the correctness of the decision and in the winning party in that they may feel they have had to wait too long for justice.[57]
[46] Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]-[34].
[47] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]-[79].
[48] Ibid [69].
[49] Ibid [69]; R v Maxwell (Unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998); Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]; Cobham v Frett [2001] 1 WLR 1775, 1783-1784.
[50] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69]-[70], [78]; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, [113].
[51] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [69].
[52] Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30]; see above, Cobham v Frett [2001] 1 WLR 1775, 1783.
[53] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [73].
[54] Ibid [72]; Hadid v Redpath [2001] NSWCA 416, [34], [53].
[55] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [71]; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, [30].
[56] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, [72].
[57] Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246; Goose v Wilson Sandford & Co (1998) 142 SJLB 92, [112].
As to the evidence of Kernke on the same topic, I will place it in a little broader perspective. On close analysis, she refers to several periods of movement by Martin after he left the train. In the first period, Martin walks away from the train and crosses the white line (so that he was “behind” the white line) but then walks backwards over the white line toward the train with his back in view (so that he was then “over” the white line – in other words between the two lines). Kernke’s version is that during this period, Martin grabs the door knob and appears to prepare to spit. At this stage, he is holding the doorknob for “maybe two seconds or something”. Thus Kernke states:[71]
[71] T256.
Q:When he moved out off the train, do you recall whereabouts onto the platform he went?
A:At that stage he looked like he was going to spit at us and I saw him gathering spit in his mouth. So we quickly shut the doors at that stage but he also moved over the white line backwards and I did see his back at one stage. So he had turned around and moved back about three steps over the white line.
Q:Just coming back for a moment. When he first got off the train, did he do anything?
A: Yes, he tried to – he grabbed the doorknob and then he tried to spit on us and –
Q: For how long did he hold onto the doorknob?
A.:Maybe two seconds or something because we tried to shut the doors because we didn’t want to get assaulted and we didn’t want to get spat on. So we held the door shut and I saw him move away from the train again.
(Emphasis added)
There is uncertainty about her evidence as to the precise order in which the grabbing of the door handle and the walking backwards over the white line occurred, but it is clear enough, on her evidence, that subsequent to these events, Martin ends up behind the white line and a fair distance from the train.
In fact, Kernke admits that at this stage she and Haynes are still keeping the door closed tight because they believed that Martin was going to try to come back in. Thus Kernke states:[72]
[72] T257-258.
Q:Once Mr Martin had moved back over the white line, did you continue to keep him under observation?
A:Yes, we did. We tried to hold the doors as well because we believed he was going to come back in and at that point, because he wasn't near the train, the train started moving away and then –
Q: Pausing there, when the train started to move off –
HIS HONOUR: Mr Cole, I think Ms Kernke was completing an answer.
XN
Q: Please continue.
HIS HONOUR
Q: You were saying the train started to move off?
A:Yes. Just before the train – as the train was moving off we were holding the door shut and the train – Mr Martin was not holding onto the door at that stage. Then as the train started gathering its momentum, Mr Martin then launched himself at the train and began running alongside of the train and then grabbed hold of the side hand rail of the doors.
XN
Q: What did you observe after that?
A:Not long after that I observed Mr Martin disappear and I thought that he had let go and given up the chase.
Q:At the time the train commenced to move, can you recall where Mr Martin was standing?
A: He was standing out in a shadow somewhere, behind the white line.
Q: On the part of the white line furthest away from the train?
A:That’s correct. When we say ‘behind the white line’ we mean over towards the station, when we say ‘over the white line’ that means closest to the train.
(Emphasis added)
Thus Kernke purported to recall a sequence of events in which Martin, after leaving the rain, went backwards and forward over the white line on several occasions – but maintained that he was later well away from the train at the precise time that it moved off. Cross-examination in this area on Kernke’s incident report and contemporaneous notes was extensive and effective. His Honour was under no obligation to reproduce or recount all of it; his judgment made it sufficiently clear that this was a matter he took into account as adversely affecting the credit of Kernke. Thus his Honour said:
[45]She agreed that despite her evidence that the plaintiff initially grabbed hold of the outside hand rail, and then came back to the train once it started to move, she did not record those separate movements in her notes or her incident report.
[46]Her incident report described the event as “walked him back across to the doors on the platform side so he could get off, the train stopped, we let go of the offender and he alighted the train” and went on to say “the (offender) quickly moved forward to try and stop the doors closing. The PSA and I had managed to get the door shut”.
[47] Her contemporaneous notes in her notebook record the following:
Tries to spit on, tries to get back in through door, train takes off, we hold door shut, offender grabs rail by door and runs along side of train, train gathers speed.
[48]The implication from that note is that the plaintiff did not leave the vicinity of the door and then launch himself back at the train after it had commenced moving off, but rather he remained at the door trying to get back in, and the train moved off with him standing at the door.
Of course, both Haynes and Kernke were concerned to emphasise that at the time that the train moved off, Martin was so far behind the white line that it was quite safe for the train to move off. But that alleged distinct separation, of course, immediately begged the question of why, if it were so, did Haynes and Kernke continue to persist in holding the door tightly closed to prevent Martin getting back into the train? In fact, that question was to be simply answered by referring to the evidence of McAlpine that Martin was right at the door at that time, trying to get back in. His Honour was entirely justified in accepting that evidence and it is easy to see why his Honour rejected the evidence of Haynes and Kernke.
Finally, as to the matter of McAlpine’s evidence of Martin falling to the ground, either or both of Haynes and Kernke may easily have missed seeing the fall while concentrating on closing the door and maintaining a tight hold on it, a matter which they clearly considered to be a priority. Alternatively, if one or both of them did observe the fall, they would clearly have realised that such a fall would be embarrassingly consistent with some force being used to evict Martin from the train, a suggestion that they were concerned to eschew. His Honour was entirely entitled to prefer the evidence of McAlpine to the extent to which it was inconsistent with that of Haynes or Kernke
Contention: “McAlpine’s evidence was inconsistent with that of Paterson”
The first point to note, and it is quite important in a case where delay is relied on by the appellants, is that this is not a case where the trial Judge entirely fails to refer to a body of evidence, such failure raising a real question as to whether his Honour actually failed to take the evidence into account.
In the present case, it is clearly the case that his Honour did take the evidence into account because his Honour specifically directed himself (at [60]) that the evidence of McAlpine was “not consistent with the evidence of Paterson” and decided to accept McAlpine’s evidence notwithstanding that inconsistency.
Were it not for the factor of delay, that might well be enough to dispose of the matter but in the circumstances I will stay to consider the evidence of Paterson in some detail.
Paterson’s observations or lack thereof
Paterson stated that he noted two persons, who were no doubt Woodley and Martin, leave the train (in the case of Martin, in circumstances consistent with ejection as stated above) and that the door was then closed. He stated that he did not see Martin again until after he had started to put the train in motion. He described what followed thus:[73]
[73] T431.
Q: So you observed the doors were closed, what did you do?
A:I used the horn, pressed the ‘Door close’ button, put the throttle brake controller into notch 4 and started to move off and just keeping a look in the mirror and in front.
Q: At some point did you notice something in the mirror?
A:Probably about two to three seconds I noticed someone was running up next to the carriage.
Q: Can you describe that person?
A: I can’t remember. Male, that’s all I can remember.
Q: When you saw that, where in relation to the train was he?
A:You have got a white line on the platform and he was running close between the white line but between the white line and the rail car itself.
Q: Did you see anything?
A: I kept an eye on him. He was far enough away for me to proceed safely.
Q: Is it an unusual occurrence to have someone running alongside the car?
A: No, it is not.
Q: How regularly does that sort of thing happen?
A: You could say easily once a day.
Q: I interrupted you there. He was running along close to the white line?
A:Close to the white line and then he lunged for the train. He grabbed the door. Then I put it into full brake, when he grabbed the door.
The thing that is immediately noticeable is that while Haynes and Kernke each give a detailed description of Martin’s movements after leaving the train, which included him performing actions in the area which it is asserted was within the field of view of Paterson, Paterson observes none of it.
Hayne’s sequence of events
Hayne’s sequence of events was as follows:
1Martin walked only a couple of metres from the train, remained there and spat at the train, what looked like spittle landing on the window (T335).
2Martin then moved behind the white line and was behind it as the train started to move, but then after the train was moving, Martin came into view, reaching for the door handle, and held on to it for more than two or three seconds (T337).
3Martin “then let go of the handle and I observed him going away from the train” (T337).
4I believed the situation was then over (T341).
Kernke’s sequence of events
Kernke’s sequence of events was as follows:
1Martin initially had hold of the door handle and tried to open it, but then gave up. (T256, 271).
2He then walked away from the train and behind the white line but he then walked backwards over the white line towards the platform again by about three steps (T256). He tried to spit on her and Haynes. (T256, 271).
3He then moved behind the white line again away from the platform and was well behind the white line as the train started to move, but then after the train was moving, Martin launched himself at the train and grabbed hold of the side hand rail of the doors (T257).
It seems clear that Paterson cannot have been maintaining a constant view between when he saw Martin leave the train and when he put the train in motion because he simply does not see any of the events that are described as occurring in that intervening period in the area of his field of view in the mirror.
What Paterson does describe is seeing Martin actually running between the two lines but making no effort to brake or slow the accelerating train on the basis that, in Paterson’s opinion, “He was far enough away for me to proceed safely.” He continues that after a deal of running along, Martin “lunged for the train” and it was only then that he braked.
It is convenient to note here that the fact that Paterson does not refer to the initial fall described by McAlpine is of no consequence in the light of the fact that he refers to nothing of the behaviour of McAlpine following his ejection from the train.
The view available to Paterson
One reason for the failure to describe any such events may be that he simply did not see them owing to the poor visibility prevailing at the time.
Counsel for the appellants submitted that Paterson had a particularly good view by virtue of his rear view mirror and a photograph of the image of the platform in such a mirror was tendered by the plaintiffs. However, that photograph was taken in broad daylight and the question of the utility of the mirror must be addressed against the question of what light was showing on the particular relevant area of the platform at the relevant time. It is interesting to have regard to the evidence of Paterson given in a quite different context when he was asked as to how he knew whether the train door had closed after Martin had left the train:[74]
[74] T430.
A: The doors closed right behind this last person that got off.
Q: How did you know the doors were closed?
A:Two reasons I could tell. One, there was no light on the platform because it was dark, it was night-time, so you can see the light coming out of the rail car coming onto the platform, there was no light.
Q:When you say you could see the light coming out, through what would normally – if the doors were open you could see lights coming out?
A:Lights coming out, yes. The other reason is that the brake pressure dropped as well.
(Emphasis added)
When the matter was later raised with him directly in the context of how well he could see passengers and therefore whether it was safe to proceed, his evidence took on a slightly different flavour. He said:[75]
[75] T449.
Q:The platform at Bowden you said was such that you could see the lights from inside the train shining onto the platform?
A: Yes.
Q: When the doors were open?
A: That is correct.
Q: Is that so even if the doors are directly opposite the shelter?
A: All depends how bright the lights are on some of the platforms as well.
Q: Is Bowden one where you could see the train light onto the platform?
A: Yes.
Q: Does that indicate that it wasn’t particularly brightly lit?
A:I would say it is bright enough, from what I can recall, anyway. Some platforms are lighter and some are duller.
Conclusions as to his Honour’s preference of McAlpine’s evidence
His Honour fully appreciated that the evidence of McAlpine was inconsistent with that of Paterson on the aspect of the position of Martin at the time the train started to leave Bowden station because his Honour specifically says so at [60]. It is therefore clear that his Honour has specifically decided to accept the evidence of McAlpine on this point and reject Paterson’s assertion that no one was adjacent to the train at that time.
If one has regard to the second of the two ways in which I have put the matter of appellate review above, McAlpine’s evidence was opposed to the evidence of Paterson, but the latter was not of the class of “established facts” or “incontrovertible evidence” such as that exemplified in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq)[76] by the clear trail of documentation, or in Fox v Percy[77] by the vehicle skid marks. The trial Judge was well entitled to prefer the evidence of McAlpine for a number of reasons.
[76] (1999) 160 ALR 588.
[77] (2003) 214 CLR 118.
First, McAlpine had a better ability to observe the relevant events than Paterson. McAlpine was closer to Martin than was Paterson and was looking directly at Martin. Importantly, McAlpine had been watching Martin throughout the episode leading up to the ejection while Paterson, on the other hand, was quite unaware of anything happening in the carriage that was unusual. Paterson was dependent on looking in a mirror but was also required to be observing a level crossing straight ahead as well as keeping a general lookout. Further, Paterson’s disadvantage would have been exacerbated by the poor lighting conditions prevailing.
Second, while the question upon which Paterson differed from McAlpine was as to whether Martin was adjacent to the train at the time that it started to move off, it would have been plain from Paterson’s point of view that that question was equivalent to the question of whether or not it was safe to start the train. Paterson was very far from being an independent witness without an interest in the answer to that question and this would have been most plain to the Judge. McAlpine, on the other hand, was truly independent, and clearly not infected with any bias against any of the defendants.
Third, to make the above observation is not to assert that Paterson deliberately set out to lie about the matter but merely to appreciate that it is a human characteristic to view one’s past actions “through rose tinted glasses”. Paterson was an experienced train driver with a good record and rightly proud of it. He no doubt had a practice of not just relying on the conductor’s signal of closing the door but also double checking the matter for himself by looking in the mirror. When giving evidence, he may well have believed that at the time that he started the train no one was then adjacent to it, but such belief may have originated in a confidence that he would have adhered to his usual system. In this he may have been wrong. A momentary deviation from his usual system of double checking through a distraction, or tiredness or for whatever reason may have led to a failure to observe the position of Martin, and a starting of the train upon the usual signal of the conductor by closing the door may have occurred.
Fourth, judges are also human. His Honour may well have come to the view that Paterson was a decent hard working person who was mistaken rather than being deliberately untruthful. We know that his Honour decided to abstain from pronouncing upon whether Paterson had been negligent, viewing his findings against Haynes and TransAdelaide as sufficient in all the circumstances. Consistently, his Honour probably considered that it was sufficient to mark the point at [60] that he was conscious that the evidence of McAlpine was inconsistent with the evidence of Paterson and that he preferred the evidence of McAlpine lest anyone think that he had not addressed the conflict.
Finally, in the context of the undoubted delay that has occurred, I indicate that I have had careful regard to all of the authorities referred to by Gray J in Terry v Leventeris.[78] However, I make some final comment by referring to just one of the authorities, namely Cobham v Frett,[79] where Lord Scott of Foscote in delivering the judgment of the Privy Council, stated:[80]
It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge’s findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. It will be important to consider the quality of the judge’s notes, not only of the evidence but also of the advocates’ submissions. In the present case the judge’s notes were comprehensive and of a high quality. As to demeanour, two things can be said. First, in their Lordships’ collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the re-reading. Second, every experienced judge, and Georges J was certainly that, is likely to make notes as a trial progresses recording the impressions being made on him by the witnesses.
[78] [2011] SASCFC 26.
[79] [2001] 1 WLR 1775.
[80] Ibid 1783.
In my view, while delay may cause a number of collateral problems and is to be greatly regretted, an appellant must demonstrate that such delay has in fact caused error before a delayed judgment will be set aside; just because a judgment is late does not mean that it is also wrong. Further, to say that the advantage of the trial Judge may be diminished by delay, is not to say that it will necessarily be entirely lost.
In the present case, there is a full typed transcript of not only the evidence but also the three final addresses of the respective counsel for Martin, Kernke and Hayne at trial. Reference to those lengthy addresses shows that they are liberally interspersed with active dialogue between Bench and Bar showing a very keen appreciation by his Honour of all of the issues and with his Honour testing his tentative views by actively putting questions to counsel on a large number of aspects of the case, including the critical matters that have been discussed above. Counsel who appeared on appeal for all of the appellants also appeared at trial for all of the appellants except Kernke. He forcefully put the same arguments to his Honour as were put on appeal. In such circumstances, it seems to me that the observations of Lord Scott of Foscote in Cobham v Frett[81] as to the likelihood of the Judge’s impressions of the witnesses being revived by the re-reading of high quality notes (here a verbatim print) are particularly apposite in the present case.
[81] Ibid.
Safe system
His Honour found that the system that applied to trains of three or more carriages should have applied to all trains where a conductor was on board (the present train being less than three carriages), namely that the conductor was to assume control of the carriage doors and notify the driver that the platform was clear before the train moved off.
Since my view is that the findings of liability are to be upheld on the basis of breach of duty by Haynes for which TransAdelaide is vicariously liable, it is unnecessary to consider fully the appeal against his Honour’s findings of liability on the alternative basis that the system in place was unsafe. However, I am prepared to say that, having regard to the behaviour of Haynes on that night, it does not appear that the presence of such a system would have deterred Haynes from giving such advice to the driver to depart with the same result eventuating in any event. Further, I should say that in my view the system in place was not unsafe. There were safeguards in place. A conductor carried a key to be used to override the locking of doors by the driver and there was also an emergency lever nearby. As I have stated, the problem here was not the system in place but Haynes’ failure to adhere to it and his behaviour in breach of duty to Martin as discussed above; accordingly, TransAdelaide is clearly vicariously liable for his actions.
Conclusion as to the appeal as to liability
For the reasons stated above, I consider that the appeal as to liability should be dismissed.
THE APPEAL AS TO QUANTUM OF DAMAGES AND COSTS
The appeal as to quantum of damages and costs took only a small portion of the hearing, the major argument being on liability. The relevant grounds of appeal were as follows:
2. The Learned Trial Judge erred in finding that:-
2.1. the plaintiff is entitled to $40,000 for past economic loss, and
2.2 the plaintiff is entitled to $70,000 for voluntary services
These awards of damages are excessive and not supported by the evidence.
3.The Learned Trial Judge erred in exercising his discretion in ordering that the Appellant’s pay the costs of Kernke. The Learned Trial Judge should have found the plaintiff liable for Kernke’s costs as Kernke was maintained in the proceedings by the plaintiff, notwithstanding that there was no evidence that Kernke was liable for the plaintiff’s injuries.
Mr Martin was born in 1967 and the subject accident occurred on 21 November 2001 when he was aged 33. He died on 26 October 2009, his death being unrelated to the accident.
His Honour stated the background as follows:
[112] Section 2 of the Survival of Causes Act 1940 relevantly provides:
(1) Subject to this Act—
(a)a cause of action vested in a person at the time of his or her death survives for the benefit of his or her estate; and
(b)[not relevant]
[113]Section 3 restricts the damages recoverable for the benefit of the estate by excluding any entitlement to damages for pain or suffering and bodily or mental harm.
[114]As the plaintiff’s death was unrelated to the cause of action the provisions exclude damages for loss of expectation of life. Damages for loss of earning capacity or loss of future earnings during the “lost years” are not compensable.
[115]The estate is entitled to damages for loss of income up until the time of death, medical and like expenses, for voluntary services damages and Wilson v McLeay damages.
[116]The plaintiff was born in 1967 and was 33 years of age at the time of the incident and 40 years of age at trial. He led a most unfortunate life. He was made a ward of the state when he was a child, as were his older siblings. Whilst in state care the plaintiff was sexually abused. His eldest sister, an impressive woman who gave evidence in the plaintiff’s case, was placed into foster care at the age of 15 years. Over the next three years she proceeded to locate and communicate with her siblings who had been placed into state care.
[117]Despite the difficult circumstances of his childhood, the plaintiff, who is clearly an intelligent man, matriculated from St James Christian Brothers College in Brisbane. Upon leaving school he obtained employment initially as a clerk in a legal office, and then as an assistant travel officer in the Department of Education. He then obtained work as a trainee linesman performing manual labour laying underground cables. He later joined the defence forces. He was discharged from the military, due to problems with alcohol abuse, and depression, after about three years. He had been diagnosed as suffering from bipolar disorder.
[118]He commenced a course of studies at university in the Northern Territory, and later at Curtin University in Western Australia although with limited success due to difficulties with mental health problems, and admissions to hospital.
[119]He was largely unemployed for most of the decade in the 1990s until diagnosed with HIV/AIDS in 1998 when he was awarded a disability pension. He moved to live in Adelaide in that year and from that time until the time of the incident, worked from time to time on a casual basis, although earned very little, and at all times less than the cut off point at which he would be required to declare his income to Centrelink.
[120]That is not to say that he did not have the potential to earn a greater amount and indeed since this accident he has demonstrated his preparedness to contribute to the community by doing voluntary and occasional paid work at Glandore Community Centre, as well as serving on the HIV Positive Advisory Group which meets in Sydney.
Award of $40,000 for past economic loss
His Honour made the following award in relation to this head of damages:
[121]The plaintiff was in receipt of a disability pension. He provided no documentary evidence of any other income. He had undertaken some studies and evinced an intention to undertake work in the future. There was evidence as to the amount which could be earned without affecting the pension. The award can only be made on a loss of chance basis taking into account my view that there was only a limited prospect of the plaintiff ever exercising his earning capacity. I award $40,000.
In my view, this is a moderate award. The injuries that Martin suffered as a direct result of the subject accident were very serious, including amputation of the left leg. Such injuries suffered by a 33 year old man would usually give rise to a substantial loss of earning capacity. The period between the date of the accident and Martin’s death was just under eight years and I will henceforth refer to it as “the eight year period”. The amount of $40,000 for past economic loss approximated $5,000 per year for each year of the eight year period.
The submission of the appellants is that had the accident not occurred on 21 November 2001, Martin would not have exercised that earning capacity at any time up to his death and therefore the amount of the award is manifestly excessive. They attempt to make good that submission by reference to the behaviour and habits of Martin both before the accident and after the accident.
As to pre-accident evidence, his Honour obviously considered that the paucity of evidence adduced as to earnings militated against a higher award as sought by the plaintiff. But his Honour also properly recognised that what was to be compensated was the loss of earning capacity and that although the evidence in relation to pre-accident earnings was somewhat sparse “That is not to say that he did not have the potential to earn a greater amount”.[82]
[82] Warner v Kernke [2010] SADC 170, [120].
As to post-accident evidence, in my view one must be careful to avoid circularity of argument here. The appellants submit that there is little evidence of earnings between the date of the accident and death. This, it is said, is consistent with the pre-accident behaviour and therefore establishes that even if the accident had not occurred, Martin would never have exercised that earning capacity after 21 November 2001. In my view, the problem with that submission is that it has insufficient regard to the fact that after 21 November 2001 Martin did have, as part of his being and persona, the injuries and sequelae of the accident; such circumstances may well have affected what he did do, and/or what he felt he was able to do, after that date.
His Honour rightly observes that since the accident Martin had demonstrated a willingness and desire to work. That being so, it cannot be said that Martin, during that same lengthy period of eight years, with that same desire but absent the injuries and sequelae of the accident, would not have been able to translate that desire into remunerative work and actual earnings.
His Honour was correct in saying that he was forced to adopt the use of the broad axe. I consider that he wielded it in a conservative and moderate manner. This ground of appeal is not made out.
Voluntary services
His Honour made the following award in relation to this head of damages:
[123]The plaintiff’s brother commenced providing care for the plaintiff in late 2002. There was no expert evidence as to the plaintiff’s need for care; rather evidence was led as to the assistance provided by the plaintiff’s brother. He said that he would attend to the plaintiff’s needs for about eight hours per day. However, that is not a proper basis for the calculation of an award under this head. On the evidence as to which was needed, as opposed to what was provided, it is reasonable to allow about 10 hours per week, which related to cooking an evening meal, cleaning, gardening, shopping and accompanying the plaintiff to medical or hospital appointments. Such assistance was required at a greater level, earlier, but less so as the plaintiff gained independence. The rate agreed as at trial was $20 per hour. There was no evidence as to earlier rates. The period over which care was provided was almost seven years. Making allowance for lesser rates in earlier years the appropriate award is $70,000.
It is to be noted that his Honour was well aware of the critical distinction between what was provided and what was in fact needed, and appreciated that where the former is greater than the latter, only the latter is to be the subject of an award. His Honour allowed for a need of ten hours per week and I do not consider that the evidence establishes that to be excessive in all the circumstances.
I can see no fault with the methodology that his Honour adopted. It accords with the High Court decision in Van Gervan v Fenton.[83] The figures that his Honour used are in accordance with the evidence in the present case and the calculations that his Honour performs are not asserted by the appellant to be inaccurate.
[83] (1992) 175 CLR 327.
This ground of appeal is not made out.
The Sanderson order
The appellants complain of the Sanderson order made by the learned trial Judge that the appellants pay the costs of the successful defendant, Ms Kernke.
It is clear that it is insufficient to advance reasons as to why the order should not have been made or even to satisfy the appellate Court that it would not have made it. The exercise of the unfettered discretion in relation to costs orders should only be interfered with if an error of principle has been made or it is clear that the actual order is so unreasonable or unjust as to require the appellate Court to substitute own discretionary order. In my view, no error of principle has been established and nor is it established that the order is at all unreasonable or unjust, let alone to the requisite degree to require appellate intervention here.
The order to pay Ms Kernke’s costs was made against Haynes (the second defendant) and TransAdelaide (the fourth defendant who was the employer of Haynes and vicariously liable for his conduct) but I will henceforth for the sake of simplicity refer only to Haynes.
In my view, it was open to his Honour to approach the matter on the basis that Martin’s solicitors had been justified in viewing the case in the following way.
First, there were two, and two only, persons who could have been directly responsible for forcibly ejecting Martin from the train, Kernke and Haynes. The solicitors were justified in perceiving the case against Kernke and Haynes as closely intertwined in that both were close to each other at relevant times and each performed certain actions in relation to Martin but in circumstances where one might be liable in damages and the other not.
Second, that at all stages of the case, both Kernke and Haynes each denied forcefully ejecting Martin and denied that Martin was immediately adjacent to the train as it commenced to depart the station. The solicitors were justified in considering that those denials were false and that such matters of which of the two did precisely what actions with what accompanying state of mind were unclear and could only be precisely known by Kernke and Haynes. It is to be noted that the situation from the point of view of the solicitors was particularly difficult because, due to the intoxication of Martin, they could not rely on him for precise instructions on the matters of detail that might determine whether one of Kernke or Haynes was liable to the exclusion of the other and, if so, which?
The end result of the case was that his Honour ultimately found that Haynes was liable (and thereby the fourth defendant was liable as well) but Kernke was not liable. However, it was only possible to make the factual findings that led to that ultimate differential decision on the basis of the whole of the evidence. Indeed, a major aspect of his Honour’s judgment was the findings in relation to the credibility of Haynes, it being found that he had lied as to his actions and as to the proximity of Martin to the train at the time of its departing the station.
It follows that his Honour could legitimately take the view that the cases against Kernke and Haynes were substantially connected both factually and as a matter of law and that the false position taken by Haynes in disputing liability right up to judgment caused, contributed to, or bore upon, the position taken by Martin’s solicitors to maintain their action against Kernke. In such circumstances, his Honour’s decision that it was just as between the plaintiff and Haynes that Haynes (and therefore TransAdelaide) bear the costs of Kernke should not be interfered with.
This ground of appeal is not made out.
Conclusion as to the appeal as to quantum and costs
For the reasons stated above, I consider that the appeal as to quantum and costs should be dismissed.
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