Schadel v State Rail Authority of NSW

[2002] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S283 of 2001

B e t w e e n –

MICHAEL RAYMOND SCHADEL

Applicant

and

STATE RAIL AUTHORITY OF NSW

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 10.24 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR T.J. CLARKE, for the applicant.  (instructed by Keddies)

MR P.R. GARLING, SC:   May it please the Court, I appear with my learned friend, MR R.B. PAGE, for the respondent.  (instructed by Dexter Healey)

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  As our summary of argument makes clear in paragraph 24 at page 71, the basis of this application is that the applicant suffered a serious injustice.  We submit he suffered a serious injustice by the Court of Appeal doing the very thing that this Court in Abalos and other cases said that it should not do, namely to decide the case mainly on the result of their own comparisons and criticisms of the witnesses and their own views of the probabilities of the case.  The case involves a little more than that in that the decision of the Court of Appeal called in aid the evidence of an expert who had given oral evidence, a Mr Cowling, and whose evidence had been specifically not accepted.

Your Honours, may I just say something about the essential facts and then go to what we submit are the errors in the Court of Appeal.  In dealing with the facts – this was a very simple case – the applicant, then 27, was one of two young men who had been drinking, and drinking a lot, at Liverpool.  They wanted to go on, presumably, in the city.  They took public transport, the train, to Central Station.  The train had eight units.  It came into platform 22, as it was, from the north, that is, from the right of a person standing on the platform facing the train coming in.  Not many people got off - fewer than 10, your Honours.

GUMMOW J:   What time of night was it?

MR JACKSON:   It was 12.37 am, your Honour.  I may be a minute or two out but that is approximately it.  Mr Bartholomew was in charge on the station at the time.  He was at the middle of the platform.  Your Honours will see that at page 41, paragraph 15 in the reasons of the Court of Appeal.  You will see there:

A control room stands approximately at the middle of the length of the platform, in and from which the station personnel set the lights on destination boards

and so on.

When an eight car train pulls in –

as this was -

the guard’s compartment is adjacent to the control room.

That is in the middle of the train.  Now, the applicant was, and was seen by Mr Bartholomew to be, obviously seriously affected by alcohol.

McHUGH J:   He had what, .42, I think, did he not?

MR JACKSON:   Yes, it was thought at the time it might have been .3 something.  I will take your Honours to that in just a moment.  Indeed, if I could go to it now.  Your Honours will see that at page 3, lines 9 to 39 where the uncontested evidence of Dr Dauncey was:

that the reading at the time of the accident would have been about 0.37 –

And going down to line 21:

most likely to have been extremely heavily affected by alcohol shortly before the collision” and that he “would have been obviously intoxicated and that this would have been apparent to anyone observing him for more than a few moments.”

That goes on to the end of that paragraph.

Now, your Honours, could I say in passing that the judge’s perception of the degree of obviousness to Mr Bartholomew - and I will come to that in just a moment – must have depended upon his impression of Mr Bartholomew as a witness.   The judge’s view appears at page 4 commencing at about line 16.  After referring to the number of passengers your Honours will see that reading through that paragraph in relevant parts he:

did notice two intoxicated people in particular getting off the train.” and they alighted either from the northerly end –

which is the end on the right of the third car or the fourth car -

“possibly” twenty metres from him.  He noticed that they were staggering and he observed them walking in a southerly direction along the platform.

Your Honours will see what goes on and through the remainder of the paragraph, and also that the train was in a bit earlier than expected, which is perhaps an unusual event to happen in that part of the world.  The judge found what appears at line 45, on page 4, and that is:

that he saw these intoxicated men again and they continued towards the stairs at the southern end of the platform.

Your Honours, there were two sets of stairs at the southern end of the platform.  The southern end was where the front of the train was and one of the sets of stairs was four metres from the end of the platform and one was 17.  That is referred to by the Court of Appeal at page 40, about line 13.  Then Mr Bartholomew gave the “right of way” without seeing what the men did.  Now, in fact, the applicant must have moved to at or near the end of the platform and the evidence – when he was found after the accident – that he had an open fly and a wet patch on his trousers suggested he had endeavoured to urinate and was struck by the latter part of the moving train.

The trial judge, your Honours, took the view that there was a real risk and that Mr Bartholomew should have responded to it by ensuring that the applicant was off the platform before the train left and the steps which might have been taken were referred to at page 11 at about line 34.  Your Honours will see that the judge said:

A reasonable man in the position of Mr Bartholomew would have responded to that risk by taking steps as are suggested on behalf of the defendant.

That should be “plaintiff”, your Honours, obviously enough.  That takes one back to page 2, lines 31 to 36:

It was submitted on behalf of the plaintiff that Mr Bartholomew should have personally, or by summoning available railway personnel, ensured that the plaintiff was safely off the platform or otherwise put out of harms way prior to his giving the signal for the train to depart.

McHUGH J:   You rely on Abalos, but did not the Court of Appeal depart from that view of the judges concerning the degree of risk by saying that a reasonable man would assess as very low the probability of what must have occurred, namely that the plaintiff would deviate from going in the direction to go down the steps and then go close to the end of the platform to urinate?

MR JACKSON:   They did, your Honour, in this way.  Your Honours will appreciate that – as appears from page 4 about line 16 - Mr Bartholomew was called in the plaintiff’s case, principally, no doubt, because the plaintiff did not have any recollection of ‑ ‑ ‑

GUMMOW J:   What about his colleague?

MR JACKSON:   Your Honour, his colleague was not called and all one can get from that really is that his memory was as much affected by the intoxication as was the plaintiff’s.  The position was simply this, that Mr Bartholomew gave evidence and the judge was entitled to take the view from the way in which he gave evidence about what he saw and the way in which he said what he saw of what was the likely risk.  Inevitably involved in that was a view affected by the demeanour of the witness.  I think various descriptions have been given of that.

GUMMOW J:   The demeanour?

MR JACKSON:   The demeanour of the witness when giving evidence.  What I mean by that is that if he says they are staggering and so on, the extent to which one would think that is a serious matter is something that one would get from seeing the witness give the evidence.  So, in our submission, that was something that affected the judge’s view.  The judge did not have to go through the case in detail, going through every possible fact, but the short fact is that one then sees the trial judge saying, in effect, that at the very least, why did he not wait until he was off the platform?

GUMMOW J:   Because he thought he was going down the stairs.

MR JACKSON:   Your Honour, he thought, but the short – no doubt that was the reason.  The question was whether that was sufficient.  The judge had the advantage of seeing the place where the accident happened, having been to the site, having heard the evidence of Mr Bartholomew, weighed up his evidence, and it was really in the end then a very simple case.  Could I say, your Honours, the evidence ‑ ‑ ‑

McHUGH J:   But according to Mr Bartholomew, the plaintiff was walking “in a relatively straight line”, I think was his expression, two metres from the edge of the platform.

MR JACKSON:   Yes.

walking . . . “swaying or staggering I believe.”

McHUGH J:   He watched them for 60 metres.

MR JACKSON:   Yes, your Honour, “swaying or staggering”.  All he had to do was wait to see if they were off the platform.  There did not seem to be any particular question of time.  The train was early.  In the circumstances, the judge was perfectly entitled, in our submission, to take the view that this was a case where the right thing – performance of the duty owed to a passenger, be it two young men having a night on the town or being it two old soldiers having had a big day on Anzac Day.

Your Honours are entitled to take the view that one of the purposes of showing a flag to let the train go was to ensure that no one who was in the position where danger might occur to them was in a position of danger.  The obvious thing is if you have two pretty intoxicated people going out the way people are told to, using public transport, that they are people you have to look after.  The Court of Appeal – perhaps I should just say one thing before going there.

McHUGH J:   Were they coming home?  I thought that they were carrying on.

MR JACKSON:   I am sorry, your Honour, I said coming home or going out.

McHUGH J:   Yes.

MR JACKSON:   No one quite knew what they were doing but they were not ‑ ‑ ‑

GUMMOW J:   They were not going back to Liverpool.

MR JACKSON:   They were going on, your Honour, I think I said at the start.  That was the inference that one might draw.  Young men tend to do these things, your Honours.  At page 11 your Honours will see about line 41 that the judge said that he rejected:

Mr Cowling’s suggestion that to take such steps –

And the steps referred to were a few lines further up:

suggested on behalf of the defendant.

would have caused, in effect, havoc to the transport system.

McHUGH J:   The Court of Appeal noted that the judge had rejected much of the evidence of Mr Cowling, but Justice Giles nevertheless took the view, did he not, that it did provide a sound foundation that it would require expense, difficulty and inconvenience if you were going to stop trains until intoxicated passengers had left the platform.

MR JACKSON:   In that regard may I say two things.  The first was that what was under consideration was not a case where it was being said that there must be some system in being which would prevent a train from going until people were all off the platform.  All that was being said was that in the particular case something more needed to be done than just let the train off in circumstances where these people were on the platform.  All that had to be done was, at the minute, just wait to see if they actually left the platform.

In that regard could I say your Honours will see the evaluation of the conduct at paragraph 37 in the Court of Appeal commencing at page 48.  Now, that goes through paragraphs 37 to 39 and could we say in relation to that and, in particular, that the problem with it all is that Mr Bartholomew did not ever look to see what was actually happening as they moved along.  People who are intoxicated do odd things.  Even the Full Court’s analysis shows that at page 45, paragraph 30, because if Mr Bartholomew had looked to see what was happening before he gave the signal he would see that:

For an unknown reason or unknown reasons, the respondent and his companion did not leave the platform by going down steps 1.  They went at least some way past the entrance to steps 1, then back in a northerly direction ‑

to it.  If I could go back then to paragraph 39 of the Court of Appeal’s reasons at about line 35, page 49, your Honours will see the Court of Appeal said:

But a possibly more realistic response . . . to hold back giving the train right of way until the respondent and his companion have been seen to leave the platform, although that does not seem to have been the basis on which Herron DCJ found the appellant to have been negligent.

That does not sit very well with the passage at page 11 picking up what was said at page 2.

Finally, at paragraph 40 of the Court of Appeal’s reasons at page 50 your Honours will see that a very large potential difficulty is adverted to and, as one sees at paragraph 44, the Court of Appeal appears to have relied on that and also on Mr Cowling’s evidence.  But Mr Cowling’s evidence was directed to what your Honours will see at the top of page 51:

a procedure in place, which would have prevented a train departing until such time as ‘drunk’ customers were completely clear of the platform.

Your Honours, all that was being suggested in the particular case was that in circumstances where there was no especial difficulty that emerged, the

train should not have been given a signal to go in circumstances where these two gentlemen had not been seen off the platform, as it were.  The case depended, in our submission, very much on the trial judge’s view of the evidence and his view of the scene which he is entitled to take into account under section 54 of the Evidence Act.

McHUGH J:   Thank you, Mr Jackson.  Yes, we need not hear you, Mr Garling.

We are of the opinion that in the exercise of its appellate jurisdiction to review the facts of the case it was open to the Court of Appeal to find that the defendant was not negligent.  There is no error of principle in the court’s judgment and nothing else about the case that would warrant a grant of special leave to appeal.  The application is therefore dismissed.

MR GARLING:   We seek an order for costs, your Honour.

McHUGH J:   Yes.  You cannot oppose that, Mr Jackson?

MR JACKSON:   No, your Honour.

McHUGH J:   The application is dismissed with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED