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Supreme Court of Victoria - Court of Appeal |
Last Updated: 10 June 2022
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Applicant
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Respondent
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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JUDGMENT APPEALED FROM:
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[2021] VCC 926 (Judge K L
Bourke)
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NEGLIGENCE – Transport accident – Passenger injured after forcing open train doors and alighting from train after it commenced to move – Whether train operator breached duty of care owed to passenger by not having latching system which would prevent doors from opening – Whether judge erred in considering a case which was not pleaded or run at trial – Whether judge erred in drawing Jones v Dunkel inference against defendant – Whether judge reversed burden of proof – Whether judge erred in assessing reasonable response to risk of injury retrospectively instead of prospectively – Whether judge was precluded, by lack of evidence, from finding breach of duty – Application for leave to appeal granted – Appeal dismissed.
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Applicant:
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Mr J Ruskin QC with Mr B W Jellis
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Respondent:
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Mr A T Broadfoot QC with Mr A Ford
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Solicitors
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Applicant:
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Solicitor to Transport Accident Commission
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Respondent:
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Carbone Lawyers
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BEACH JA
McLEISH JA
KENNEDY JA:
1 On 27 September 2000, Gregory McDonald (‘the plaintiff’) was injured while alighting from a train at Dandenong Station. The train was operated and managed by National Express Group Australia (Bayside Trains) Pty Ltd (‘the defendant’).
2 In the proceeding at first instance, the plaintiff claimed damages from the defendant alleging that his injuries were caused by the negligence and/or breach of duty of the defendant, its employees and agents. The defendant denied any negligence or breach of duty, and alleged contributory negligence.
3 The plaintiff’s proceeding was heard by a judge in the County Court over four days in April 2021. On 13 July 2021, the judge published reasons in which she upheld the plaintiff’s claim in negligence and found that there was contributory negligence, which she assessed at 70 per cent.[1] The judge assessed the plaintiff’s damages for pain and suffering at $200,000, and for pecuniary loss at $50,000. On 26 July 2021, after taking into account the provisions of the Transport Accident Act 1986, the judge ordered that there be judgment for the plaintiff in the sum of $58,187.83.[2]
4 The defendant now seeks leave to appeal. Its grounds of appeal relate to the judge’s finding that it breached its duty of care to the plaintiff. Specifically, the defendant contends that the judge speculated about particular matters in the absence of evidence or sufficient evidence; reversed the burden of proof; and improperly drew an adverse inference against the defendant in respect of its failure to call particular evidence.
5 The plaintiff’s accident occurred at about 8:30 am on 27 September 2000. At approximately 7:15 am that morning, he boarded a train at Flinders Street, heading towards Dandenong Station where he intended to get off. He fell asleep, and was sound asleep as the train arrived at Dandenong. He was woken by the noise of people getting on and off the train and thought, ‘Shit, it’s Dandenong’.[3] He went to the door of the carriage, which by this stage had closed. As the judge found, ‘the plaintiff forced the door open with his left hand’.[4] As he was alighting, the train started to move. The plaintiff’s right foot was on the platform. He lost his balance and fell heavily and thereby suffered injury.
6 The train on which the plaintiff travelled was a Hitachi train, operated and managed by the defendant. In a Hitachi train, the driver has a set of controls that allows him or her to release the doors, enabling passengers to open doors by sliding them open as the air pressure is released. When it is time to drive off from the station, the driver presses a blue ‘doors close’ button that activates compressed air into pneumatic cylinders which close the doors. When the doors are fully closed, a micro-switch is closed which indicates to the driver that the doors are closed. The closing of the doors is indicated to the driver by the blue ‘doors close’ button being illuminated. The system does not allow the driver to apply traction (and thus start the train moving) unless the doors are shown to be closed by the illumination of the ‘doors close’ button.
7 The door-closing system is designed to ensure that, in the absence of an external force being applied to the doors, the train will not start to move from the station until the doors are shown to be closed. The doors, however, can be forced open by pulling on the door handle with what was described at trial by a consulting engineer (Roger Lewis) called on behalf of the plaintiff, as a sideways force of 20.5 to 29.5 kilograms — said to be the equivalent amount of force involved in ‘pushing a recalcitrant sibling out of the way’ or ‘pushing a loaded shopping trolley halfway up an escalator’.[5]
8 As opened at the commencement of the trial, the plaintiff’s primary case was that the plaintiff did not force the train doors open when he alighted at Dandenong Station. The door opened smoothly, and the plaintiff walked out of the train without noticing that it had commenced to move. Thus, the plaintiff’s case was that there was a malfunction in the door-closing system. The plaintiff contended that the piston system must have failed because he had been able to open the door easily and without using any force. The plaintiff alleged that the failure of the piston system was caused by the negligence of the defendant.
9 In this Court, there is an issue between the parties about whether the plaintiff’s case at trial included an allegation that his injuries were caused by the negligence of the defendant in not having a door-latching system which would have prevented the doors from being able to be opened even if the plaintiff (contrary to his evidence) forced the doors open. This alternative case (‘the alternative case’) was that, if the Court concluded that the plaintiff forced the doors open, and whether or not there was any failure of the pneumatic piston system, the defendant was negligent in failing to have a latching system which would prevent the doors from being forced open by a passenger as the train was about to move, or moving, away from a station.
10 The judge commenced her reasons for judgment by noting that evidence on liability was given by the plaintiff and Mr Lewis; and that the defendant called no viva voce evidence on liability, but tendered some 2000/2001 Bayside Train Fleet Maintenance records and other documents.[6] The judge summarised the plaintiff’s evidence[7] and then summarised the evidence of Mr Lewis.[8] In the course of summarising Mr Lewis’ evidence, the judge noted the evidence given by Mr Lewis that:
11 Under the heading, ‘Missing witnesses’, the judge said:
No liability evidence was called by the defendant. There was no expert evidence challenging Mr Lewis’ evidence as to how the Hitachi train doors operated, the force required to open the door once the pneumatic system was in operation, the steps which could have been taken to prevent a passenger opening the door of a moving train or any difficulty introducing an alternate system of latching.There was no explanation as to the absence of A Tate, the defendant’s authorised officer who filled out the Incident Form and answered ‘No doubt’ when asked to comment on the plaintiff’s version of the incident, provided by his solicitor.
There was also no explanation why the driver of the train was not called, details of the plaintiff’s injury having been entered in the defendant’s Excel spreadsheet of incidents within weeks of the incident.
In the absence of any explanation why these witnesses were not called, I can more readily accept the evidence relied on by the plaintiff and infer that the uncalled evidence would not have assisted the defendant.[12]
12 After referring to the plaintiff’s credit, a TAC claim for compensation signed by the plaintiff, a TAC accident report completed by an investigator of the defendant, and histories given by the plaintiff to various medical practitioners, the judge set out the parties’ cases on liability.[13] The judge identified the plaintiff’s case with respect to a latching system as follows:
There should have been a physical device — like a latch — attached to the doors to make sure they could not be opened if the pistons failed. The latch mechanically locks the door into a closed position. To operate it to open the door, the passenger pushes the button. That button is only operable when the train is stationary at the platform.[14]
In setting out the defendant’s case, the judge referred to its submission in relation to latches as follows:
It was submitted it was clear the system was working. If that was the case, there was no need for any latch. Latches did not come into play in Victoria until 2003, after the incident, and in Adelaide in 2008. There was no evidence of anything not working on the door.[15]
13 Under the heading, ‘Findings of fact’, the judge rejected the plaintiff’s principal case that he had been able to open the doors without forcing them. The judge said:
In my view, the most likely scenario is the plaintiff forcefully opened the door which was closed with his left hand and was able to break the pneumatic seal — using the force needed to push away a recalcitrant sibling or push a shopping trolley up an escalator — well within capacity of a strong man like the plaintiff.[16]
14 After referring to a number of authorities, including Wyong Shire Council v Shirt,[17] the judge identified the risk in the present case as being one where a person might force open the door of a moving train (or one that is about to start moving) with the prospect of ‘very serious injury’.[18] The judge said that such a risk ‘was not too far-fetched or too remote’;[19] ‘there was a clear risk of injury which should have been anticipated by the defendant’;[20] and that the risk of injury ‘was high — a fall from a moving train may produce a highly disabling or fatal injury’.[21]
15 Under the heading ‘Negligence of the Defendant’, the judge concluded that the defendant was negligent in having a system where the train doors were able to be opened when the train was starting to move or was moving; and that ‘the plaintiff was permitted to egress from the train when it was unsafe and hazardous for him to do so’,[22] exposing him to the risk of a highly disabling or fatal injury.[23] The judge then said:
The plaintiff must then establish that there were reasonable steps that could have been taken by the defendant to alleviate or reduce the risk of injury to him.In the present case, there is evidence from Mr Lewis as to what steps could have been taken to reduce the risk of injury to the plaintiff in the circumstances. There was evidence as to what the safe system ought to have been and how such measures would have avoided the plaintiff’s injury.
A latch opening system operated by a button, with no handle on the door, would have made it impossible for the plaintiff to have opened the door of a moving train.
This system was in operation in 1988 in New South Wales and in Europe from 1993 and introduced in Victoria shortly after the incident, in 2002. If this mechanism had been in place, the plaintiff would have been unable to open the door and would not have fallen from the moving train and suffered injury.
There was no evidence called by the defendant that it was not reasonably practicable to have a latch system in operation at the time of the incident from a cost or other perspective. There was no explanation why this latch system was not in operation on the said date, particularly as it was able to be introduced about three years after the incident and had been in operation in New South Wales for twelve years as at the said date.[24]
The judge then rejected a proposition advanced by the defendant’s counsel[25] from the Bar table that the latching system was ‘too dangerous, particularly in an emergency’, noting that Mr Lewis was not challenged on this issue; there was no evidence led by the defendant to support such a proposition; and that the introduction of the latching systems in New South Wales and overseas had ‘presumably [been undertaken] after consideration of the risks and benefits [associated with them]’.[26]
16 The judge concluded that if a latching system as described by Mr Lewis had been installed then the plaintiff would not have been injured, as he would have been unable to open the train door.[27] The judge then turned to the issues of contributory negligence and quantum. Having regard to the applicant’s proposed grounds of appeal, it is not necessary to summarise these parts of her Honour’s reasons.
17 In support of its application for leave to appeal, the defendant advanced four proposed grounds of appeal as follows:
1. The trial judge erred by finding that [the defendant] had breached its duty of care to [the plaintiff].2. The trial judge erred by finding that [the plaintiff] had established that a ‘latching’ system was a reasonably practicable response to the risk of a passenger using force to prise the doors of the train open, in circumstances where there was no evidence of:
(a) the prevalence of doors being forced open on trains operated by [the defendant];
(b) the cost of implementing a latching system for all of the trains operated by [the defendant];
(c) the manner in which a latching system could be implemented for all of the trains operated by [the defendant];
(d) the disruption that might be caused in implementing a latching system for all of the trains operated by [the defendant];
(e) the time it would have taken to implement a latching system for all of the trains operated by [the defendant];
(f) any danger posed by a latching system.
3. In assessing the alleged breach of duty by [the defendant] the trial judge erred by:
(a) assessing the reasonable response to the risk retrospectively, rather than prospectively;
(b) placing the burden of proof on [the defendant] rather than [the plaintiff].
4. The trial judge erred by drawing an inference against [the defendant] in circumstances where:
(a) [the defendant] was no longer a rail operator, having been in receivership since 2002;
(b) there was an explanation for any failure of [the defendant] to call evidence on the reasonable practicability of latching to prevent a door from being forced open, being that this was not the case pleaded or opened by [the plaintiff], but only relied upon by [the plaintiff] after the cases were closed and in final address.
18 Proposed grounds 1, 2 and 3(a) deal with the correctness of the judge’s conclusion on the issue of breach of duty/negligence. Proposed grounds 3(b) and 4 deal with the defendant’s contentions that the judge erred in relation to the burden of proof and in drawing an adverse inference against the defendant in respect of its failure to call evidence. It is convenient to deal with the proposed grounds by reference to the topics with which they deal.
19 Central to the defendant’s proposed grounds of appeal is its contention that the judge found for the plaintiff on a case that was neither pleaded nor run at trial. Before dealing with the proposed grounds of appeal, it is convenient to deal with this contention.
At trial, did the plaintiff run the alternative case?
Defendant’s contentions
20 The defendant contended that the plaintiff did not plead, or seek to prove, a case involving negligence on its part for failing to have a system that prevented the train door from being forced open. It submitted that, to the contrary, the plaintiff pleaded, as one of his particulars of negligence, that the defendant ‘[failed] to ensure that force [was] needed to be applied in order to open the door whilst the train was in motion’. The defendant then noted that the plaintiff’s counsel opened the case on the basis that the plaintiff’s evidence would be that he opened the door ‘and the door opened easily, and there was no resistance to indicate either that the door was locked, as the door used to lock when the train was about to depart, and there was no beeping to indicate that the doors were about to lock or that the train was about to move off’.
21 The defendant submitted that the plaintiff’s evidence was opened as being that ‘he was able to open the doors in the normal way and without using any more than the usual amount of effort and the doors opened smoothly’. The defendant noted that the plaintiff’s counsel identified the critical issue in the trial as being ‘whether the plaintiff was believed or not in terms of his version of events of how the accident happened’. Additionally, the defendant observed that, in his evidence at trial, the plaintiff was emphatic that he did not force the doors, saying (amongst other things) ‘I’ll argue that point till the day I die’.
22 The defendant contended that while Mr Lewis gave evidence about door latches and the use of a button to open doors when the train is stationary, ‘[h]is evidence about latching was not, in terms, focused on a risk that a person would force the doors open’. The defendant also submitted that Mr Lewis was never asked to, and did not, express an opinion that it would have been reasonably practicable some time prior to 2002, for the defendant to implement a latching system on all of its Hitachi trains. Additionally, Mr Lewis did not give evidence as to how that would be accomplished, nor how much it would cost, nor the prevalence of pneumatic doors being prised open once closed.
23 The defendant asserted that the alternative case (being a case that encompassed the risk that doors would be forced open) was first raised during an exchange between the judge and the plaintiff’s counsel in final address. Specifically, during his final address, the plaintiff’s counsel said that it was difficult to see how the defendant would be negligent if the plaintiff had physically forced the door open. As the defendant then put it, ‘only belatedly, and with evident reluctance, did counsel for the plaintiff acquiesce to the suggestion that an alternative case could be put on [the basis that the plaintiff had forced the doors]’.
Plaintiff’s contentions
24 The plaintiff accepted that his particulars of negligence were ‘very general’ including allegations that the defendant failed to provide a safe system of use; failed to provide and maintain the carriage safe for use by persons lawfully using the carriage; and exposed the plaintiff to a risk of injury which could be avoided with reasonable care on the part of the defendant. The plaintiff submitted, however, that no complaint was made by the defendant about the generality of his particulars; and that prior to trial, the defendant had been provided with Mr Lewis’ report ‘which identified the fact that latching devices on railway carriage doors were in use elsewhere, and would have prevented the plaintiff from exiting the carriage’.
25 The plaintiff contended that the case was opened principally on the basis that the plaintiff did not force the doors on the train, and that the doors were faulty. The plaintiff submitted that, in opening the case, however, it was made clear that the plaintiff’s counsel proposed to open the evidence of Mr Lewis separately and before he was called to give evidence. The plaintiff observed that no objection was taken to this course by the defendant at trial; and that, as foreshadowed by counsel at trial, before Mr Lewis gave evidence, plaintiff’s counsel opened Mr Lewis’ evidence by saying, amongst other things:
And he identifies measures in paragraphs 7.52 and 7.53 that could have been adopted to ensure that those circumstances would not eventuate, including by having a door with a latch instead of a pneumatic door system ... .
26 Paragraphs 7.52 and 7.53 of Mr Lewis’ report, referred to by the plaintiff’s counsel in opening Mr Lewis’ evidence, contained the following:
I consider that [the plaintiff] was placed at risk of injury in the circumstances described. The basis of this concluded opinion is in the apparent failure by [the defendant] to ensure the saloon doors operated as intended by resisting [the plaintiff’s] attempt to open them; by failing to control the risk of injury to passengers boarding or alighting from trains; and by failing to provide a latching door but instead relying on a pneumatic door system with a recorded history of faults.Measures which [the defendant] could have taken to prevent exposing [the plaintiff] to risk of injury include those listed below. Had these measures (or a suitable combination of selected measures) been implemented by [the defendant], it is likely that [the plaintiff] would not have been exposed to an unacceptable risk of injury:
27 The plaintiff submitted that, in opening Mr Lewis’ evidence at trial, in the circumstances and terms set out above, it was plain that it was part of his case that the defendant should have had a door-latching system which would have prevented the plaintiff from injuring himself. As the plaintiff put it, the fact that his primary case was that the Court should have accepted that he did not force the doors was neither here nor there in circumstances where the alternative case involving a latching system was opened and the subject of expert evidence during the course of the plaintiff’s case.
Analysis
28 There can be no doubt that the plaintiff’s case was pleaded in the broadest terms and at a high level of generality. Indeed, the plaintiff’s third particular of negligence was, in terms, ‘[f]ailing to ensure that the train’s door did not open whilst in motion’. That said, prior to trial, the plaintiff served the report of Mr Lewis containing the passages extracted above. From at least that point in time, the defendant was on notice that the plaintiff’s case was put on a number of bases, one of which involved an allegation that the defendant was negligent in failing to have a door-latching system of the kind described by Mr Lewis in his report.
29 For completeness, we should observe that, while the judge and the parties all had copies of Mr Lewis’ report and Mr Lewis was directed to parts of his report during the course of his evidence, Mr Lewis’ report was not tendered in evidence. After Mr Lewis’ evidence was opened at trial, the judge dealt with an objection by the defendant that Mr Lewis did not have specialised knowledge sufficient to enable him to express the opinions contained in his report. The judge ruled against the defendant on this issue and said:
So I am allowing you [the plaintiff] to call him. I really would prefer, because I think so much of this report is unhelpful and irrelevant, and there are criticisms of it that [defence counsel] has made, but the defendant is on notice under O.44 as to what his general opinion is, but I prefer if you just took him through it.
Counsel for the plaintiff responded by saying that he would lead Mr Lewis’ evidence-in-chief, rather than tendering his report.
30 From this point in the trial, there can be no doubt that the plaintiff was pursuing a primary case which involved him not having applied any force to the train door when he alighted from the train; and a secondary case that (if he was found to have applied force to the train door) involved an allegation that the defendant was negligent in failing to have a latching system which would have prevented the doors opening even if force were to be applied. Indeed, the plaintiff’s counsel then led from Mr Lewis the evidence relied upon by the judge in her reasons for judgment. We thus reject the defendant’s contention that the plaintiff did not seek to prove the alternative latching system case at trial. It follows that to the extent that any of the defendant’s submissions in this Court in relation to its proposed grounds of appeal are predicated upon such a contention, those submissions must be rejected.
31 Before leaving this topic, we should refer to a submission made by the defendant in its written case in this Court that the source of the alternative case came from statements made by the trial judge during the plaintiff’s final address, to which the plaintiff’s counsel acquiesced, ‘[o]nly belatedly, and with evident reluctance’. That submission must be rejected for the reasons already given. Additionally, we would note that if there was any substance in the submission then, when the defendant’s counsel was given an opportunity to reply to the plaintiff’s final address, one might have expected that he would object to the so-called new case raised by the judge and acquiesced in by the plaintiff’s counsel in final address. No such objection was, however, taken. The trial concluded with the following exchange, containing the whole of the defendant’s reply to the plaintiff’s final address:
HER HONOUR: Any matters in reply?[DEFENDANT’S COUNSEL]: Only if your Honour wishes me to - - -
HER HONOUR: If you have something you - - -
[DEFENDANT’S COUNSEL]: No I just wanted to, and I’ve said it already, I will reinforce, that there is no criticism at all in any of the material in the plaintiff’s court book that 20.5 kilos to 25.9 kilos is in any way improper in terms of maintaining the ability to open the door in the event that it needs to be opened, for example, in an emergency.
HER HONOUR: Yes. That’s it?
[DEFENDANT’S COUNSEL]: Thank you, Your Honour.
32 It is appropriate now to deal with the proposed grounds of appeal which assert that the judge reversed the burden of proof and erred in drawing an inference against the defendant, before then turning to the proposed grounds which assert that the judge erred in finding for the plaintiff on the issue of breach of duty.
Burden of proof and adverse inference: proposed grounds 3(b) and 4
Defendant’s contentions
33 Under proposed grounds 3(b) and 4, the defendant made complaint about the judge’s observation at Reasons [103] that the defendant did not adduce evidence of ‘the steps which could have been taken to prevent a passenger from opening the door of a moving train or any difficulty introducing an alternative system of latching’. The defendant then referred to an earlier statement made by her Honour at Reasons [59]:
The defendant, a rail operator, gave no explanation why he did not call any expert evidence as to the operation of the train doors or the costs of any alternative systems. In those circumstances, I can more readily accept Mr Lewis’ unchallenged evidence.
The judge footnoted the last sentence of this passage with a reference to Jones v Dunkel.[29]
34 The defendant submitted that the passage extracted above discloses ‘a series of errors’, as follows:
35 In relation to its contention that the judge reversed the burden of proof, the defendant took issue with what the judge said at Reasons [184], extracted in [15] above (namely, the judge’s observation that there was no evidence called by the defendant that it was not reasonably practicable to have a latching system in operation, nor any explanation why such a system was not in operation at the time of the accident when it had been in operation in New South Wales for 12 years prior to the plaintiff’s injury). The defendant submitted that the effect of this reasoning was to put the burden of proof on the defendant, rather than to require the plaintiff to prove that, prospectively assessed, latching was a reasonably practical response to the risk identified. The defendant’s written case on proposed grounds 3(b) and 4 concluded:
To then draw an adverse inference against [the defendant] compounded the error and the unfairness. A defendant is not to be expected to lead evidence to rebut a case that is neither opened, pleaded or led.
Analysis
36 The defendant’s submission that it cannot be expected to lead evidence to rebut a case that was neither opened, pleaded or led can be accepted. However, the assertion by the defendant that the alternative case was not opened, pleaded or led cannot be accepted. The alternative case did not go outside the pleadings, and it is notable that no such complaint was made by the defendant at trial or in this Court. While the defendant could have complained at trial about a lack of specificity in the plaintiff’s pleadings, the statement of claim was in fact broad enough to encompass the alternative case.
37 The defendant’s assertion that the alternative case was not opened at the commencement of the trial can also be accepted. However, notice of the alternative case was undoubtedly given by the service of Mr Lewis’ report on the defendant prior to trial. The alternative case was then relevantly opened by the plaintiff’s counsel (as he had foreshadowed when he told the judge that Mr Lewis’ evidence would be opened before Mr Lewis was called) prior to Mr Lewis giving evidence. Again, no objection was taken to this course by the defendant’s counsel at trial.
38 Additionally, we should note that, while the defendant called no evidence on the issue of liability, in its final address (given before the plaintiff’s final address) its counsel made a number of attempts to deal with the alternative case by, as the judge noted,[31] submitting that a latching system was ‘too dangerous, particularly in an emergency’.[32] Specifically, in final address, on the issue of door-latching systems the defendant’s counsel said:
No, and if you need to get people out, you need to be able to open the doors without the jaws of life or what have you.
A little later in his address, he said:
The other problem, if I could just address this — I’m taking a step back, we will talk about latches again — he’s talking about a latch that keeps the door closed but he doesn’t go on to tell us how that could be done in a situation where, in an emergency, you needed to get the doors open and presumably, because of that emergency, the electric system was down ... .
39 The defendant was aware of the alternative case before the plaintiff closed his case at trial. If, contrary to what we have said above, the defendant was taken by surprise by Mr Lewis’ evidence, one would have expected the matter to be raised with the judge by defence counsel. Specifically, one might have expected the defendant’s counsel to make a complaint that this was a new case, and one which the defendant was not then able to meet. No such complaints were, however, made. Instead, the defendant cross-examined Mr Lewis at some length, and later made the submissions on the alternative case to which we have already referred. In the circumstances, we see no error in the judge drawing a Jones v Dunkel inference against the defendant.
40 The fact that Mr Lewis did not give any specific evidence about the costs of a door-latching system was no impediment to the judge drawing a Jones v Dunkel inference against the defendant. In circumstances where evidence was given by Mr Lewis of door-latching systems that had been in place in other jurisdictions in the years prior to the plaintiff’s accident, the judge was entitled to infer that these systems were reasonably practicable absent a contrary suggestion by the defendant. The defendant did not attempt to suggest that cost might be a relevant or countervailing consideration. Rather, it chose to fight the issue on the basis of whether door-latching systems were appropriate in emergency circumstances. The judge was right to observe that the evidence given by Mr Lewis was unchallenged in the sense that the defendant did not call any witness to give evidence to the contrary. While a Jones v Dunkel inference cannot be used to fill a gap in the evidence, that does not prevent a judge from drawing such an inference in relation to the evidence actually given by a witness called at trial. This is the course the judge took. It involved no error.
41 Additionally, the fact that the defendant might have been in receivership for 20 years by the time of trial was not shown at trial, and has not been shown in this court, to have been any impediment to it retaining an expert of its own to contradict the evidence of Mr Lewis. The fact that the defendant was no longer a railway operator was no impediment to the judge drawing a Jones v Dunkel inference.
42 Finally (on these proposed grounds of appeal), there is nothing in the defendant’s contention that the judge reversed the burden of proof. Read fairly, the judge’s reasons as a whole demonstrate an acceptance, on the evidence called by the plaintiff, that a reasonable precaution to obviate the risk of a passenger overriding the pneumatic door-closing system was the provision of a door-latching system. The judge’s observations at Reasons [184] amount to no more than a statement that, the plaintiff having called evidence sufficient to establish a breach of duty by the defendant, the defendant did not call any evidence which might have undermined the plaintiff’s evidence or case on that issue.
43 Proposed grounds 3(b) and 4 must be rejected.
Breach of duty/negligence: proposed grounds 1, 2 and 3(a)
Defendant’s contentions
44 Under proposed grounds 1, 2 and 3(a), the defendant observed, and/or made complaint, about the following matters:
(1) The judge initially identified the risk in this case as being one ‘that the plaintiff may force open the door of a moving train, or one that is about to start moving’,[33] but then changed this description of the relevant risk to the more general proposition that the doors ‘were able to be opened when the train was starting to move or was moving’.[34](2) The judge misdescribed the facts when she said that the plaintiff ‘was permitted to egress from the train’;[35] whereas, in truth, the plaintiff overbore the pistons holding the door in place by forcing it open.
(3) The judge ‘appear[ed] to approach [the] question of whether there were reasonable steps that could have been taken only after already expressing the conclusion that the defendant was negligent’.
(4) The judge assessed the question of reasonableness ‘from a retrospective rather than prospective way; essentially asking what would have prevented the plaintiff’s injury, and not what was a reasonable response at the time’.
45 The defendant contended that in order to find that the plaintiff had met his burden on the alternative case, it was necessary for the judge to have sufficient evidence to evaluate and apply the Shirt factors. The defendant submitted that the judge did not have sufficient evidence to evaluate these factors, saying:
Too much was ignored by the plaintiff’s evidence:(a) Was the plaintiff suggesting that latching should have been retrofitted to all Hitachi trains, or would it have required new trains to be procured? How long would it have taken and [what] would have been the cost?
(b) What would have been the disruption or burden of doing so?
(c) What was the probability of the risk of injury, prospectively assessed?
(In particular, how great was the risk that a person would attempt to overbear the system, by prising the [doors] open to alight from a moving train, then being injured?)
46 In advancing submissions on these proposed grounds of appeal, the defendant asked a number of rhetorical questions:
Could latching have been retrofitted to all Hitachi trains, or would it have required new trains to be procured? How long would it have taken? What would have been the cost? What would have been the disruption to the train network? Were there countervailing safety considerations/could the latch be opened in an emergency?
47 By reference to identified shortcomings in the appellant/plaintiff’s evidence in Maloney v Commissioner for Railways (NSW),[36] and the judgment of Gummow J in Traffic Authority of NSW v Dederer,[37] the defendant submitted that evidence needed to establish negligence was not called by the plaintiff and the judge had ‘erroneously short-circuit[ed] the enquiry into breach of duty that is required by Shirt’.[38]
48 Ultimately, the defendant submitted that the judge ought to have found that the plaintiff had not met his burden of proving that, prospectively assessed, reasonable care required the defendant to have a door-latching system in place.
Analysis
49 There is no substance in the defendant’s complaint that the judge, having identified the risk as being one involving the possibility that the plaintiff might force open the doors of a moving train, reformulated the risk she had identified with a description of it that was too general or lacked appropriate precision. Read fairly, the judge determined the issue of liability by reference to the risk that she identified at Reasons [176]: namely, the risk that a passenger (the plaintiff) may force open the door of a moving train, or one that was about to start moving. That risk was brought about because, as the judge said at Reasons [179], the defendant had a system where the train doors ‘were able to be opened when the train was starting to move or was moving’.
50 When one takes into account the evidence about the amount of force required to override the hydraulic door-closing system,[39] the fact that the judge referred to the plaintiff forcing open the doors of the train in one passage of her reasons, and the doors being able to be opened in another passage in her reasons, is of no moment. There can be no doubt that, in considering negligence, the judge analysed the matter by reference to the risk of the train doors being opened by the application of the force described by Mr Lewis in his evidence at trial.
51 Similarly, there is no substance in the defendant’s complaint that the judge misdescribed the facts when she said that the plaintiff ‘was permitted to egress from the train’.[40] Plainly the plaintiff was permitted to alight from the train because the defendant’s door-closing system was one which allowed the plaintiff to overbear the pistons holding the door in place. The defendant’s assertion that the judge erred because, at one point in her Reasons, she did not refer to the plaintiff having overborn the pistons holding the door in place is without merit.
52 Insofar as the defendant submitted that the judge only considered the question of whether there were reasonable steps that could have been taken after already concluding that the defendant was negligent, that submission must be rejected. While it is the fact that the first sentence of the section of the judgment dealing with whether the defendant was negligent is the judge’s conclusion that the defendant was negligent in having the door-closing system it had in place on the day of the plaintiff’s injury, there is no basis for suggesting that her Honour arrived at this conclusion before considering whether there were reasonable steps which could have been taken by the defendant to alleviate the risk of injury identified by her Honour. The judge’s reasons follow a conventional form commonly used by decision makers, whereby a conclusion is stated followed by the reasons for the conclusion. There is nothing in the judge’s reasons to suggest that her Honour did not consider the question of whether there were reasonable steps that could have been taken before reaching her conclusion that the defendant was negligent.[41]
53 The defendant’s submission that the question of reasonableness has to be looked at prospectively, rather than retrospectively, must be accepted.[42] The defendant’s submission that the judge engaged in a retrospective analysis must, however, be rejected. The judge’s reasoning discloses that her Honour identified the relevant risk of the door being forced open; considered that this was a clear risk of injury which should have been anticipated by the defendant (a finding not challenged by any of the defendant’s proposed grounds of appeal); and concluded that the risk of injury was high with the possibility of the production of a highly disabling or fatal injury (another finding not challenged by any of the defendant’s proposed grounds of appeal). Her Honour then identified, from the evidence of Mr Lewis, the steps that could be taken to reduce the risk of injury by the use of systems that had been in place in other jurisdictions (for example, 12 years in New South Wales). Nothing in her Honour’s analysis suggests that the issue of reasonableness was considered from some retrospective position. Fairly read, her Honour concluded that a reasonable response in 2000 to the risk she identified was a door-latching system of the kind described by Mr Lewis.
54 Specifically, we do not accept the defendant’s submission that the judge ‘erred by focussing in retrospect on the failure of [the defendant] to prevent [the plaintiff from forcing the door open] as opposed to asking what, in prospect, the exercise of reasonable care would require in response to a foreseeable risk of injury’.[43] The judge did not treat negligence as having been established merely because the risk of injury was not prevented. The latching mechanism upon which her Honour’s finding of breach relied was treated instead as a reasonable response to the risk of injury as a result of the doors being opened while a train was moving.
55 As to the question of the cost of introducing a door-latching system of the kind described by Mr Lewis, and the various rhetorical questions posed by the defendant in its submissions in this Court, the first point to be observed is that the defendant took no issue at trial about any of the matters it now seeks to agitate. The only relevant issue it took at trial involved the question of the appropriateness or otherwise of a door-latching system in an emergency.
56 The plaintiff submitted that the judge’s approach in the present case was consistent with the approach taken by the High Court in Nelson v John Lysaght (Australia) Ltd.[44] Nelson involved a case brought by a worker who was injured while walking backwards across a ramp. At trial, evidence was given that shortly after the worker’s accident a new system was installed which made it unnecessary for workers to walk backwards across the ramp. The employer called no evidence to suggest that the new system was inordinately expensive or otherwise disadvantageous, and its counsel did not cross-examine in such a way to suggest that it was. Gibbs J (with whom Stephen and Mason JJ agreed) said:
In determining whether a reasonable employer would have provided such a new system it would be necessary to consider not only the degree of risk of accident and injury likely to result if no provision were made, but also the disadvantages, if any, of taking the suggested precaution ... . The onus of proving that it was unreasonable not to take the precaution, of course, lay on the appellant [plaintiff]. However, when the respondent [defendant], which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence, and by its counsel asked no questions to suggest that it was inordinately expensive or in any other way disadvantageous, the jury was entitled to infer at the very least that the advantages of the method which the respondent has since adopted were not outweighed by any disadvantages.The evidence was such as to entitle the jury to reach the conclusion that the respondent’s system of work in force at the time of the accident ... was such as to expose the appellant to a clear risk of serious injury, that it was practicable to eliminate or minimise that risk by the adoption of [the new method] ..., and that it was unreasonable of the respondent not to have adopted that method before the accident occurred.[45]
57 The plaintiff submitted that the High Court took a similar approach in Caterson v Commissioner for Railways.[46] Caterson was another case in which a plaintiff was injured as a consequence of alighting from a moving train. The injured plaintiff in that case jumped from a train onto the platform shortly after the train had begun to move. He had never intended to travel on the train, and the next station was some 80 miles away. The evidence at trial was that no warning sound had been heard by those in the carriage from which Mr Caterson jumped. In seeking damages for his injuries, Mr Caterson relied on the absence of a warning system; the existence of such systems having been identified in the evidence at trial. There is no suggestion in the judgments of the Court that specific evidence was led as to the cost (as opposed to the availability) of warning systems, or that the plaintiff should have led such evidence. Gibbs J (with whom Barwick CJ and Menzies and Stephen JJ agreed) said:
[I]t was for the jury to consider whether there would have been any difficulty, expense or disadvantage in providing a means of warning persons who were within the carriages of the intention to start the train. There was no evidence that the provision of an adequate warning system would have been impracticable on the ground of expense or otherwise. On the whole the jury was entitled to take the view that a reasonable man weighing the risk against the difficulties of eliminating it would have taken one or other or both of the possible precautions that might have averted the risk. It was therefore open to the jury to find that the respondent owed a duty of care to the appellant and had committed a breach of that duty.[47]
58 Similarly, in the present case, having regard to the way the defendant conducted the trial (without any suggestion that the provision of a door-latching system would have been inordinately expensive or too difficult to arrange) we do not see any error in her Honour’s conclusions on the issue of reasonableness or the judge’s application of the Shirt calculus.[48] At the very least, if there was any substance in the matters the defendant now seeks to agitate in this Court, one might have expected the defendant to have raised the issue at trial, either by cross-examining Mr Lewis or making some appropriate submission about a want of evidence. Mr Lewis’ evidence about the introduction and existence of door-latching systems, before 2000, in other jurisdictions, without the defendant taking any issue about the cost or inconvenience associated with their provision, entitled the judge to infer that the latching system was feasible and that cost and/or inconvenience were not matters which she was required to address in the way now contended for by the defendant.
59 Moreover (and recognising that the defendant did not carry any burden of proof on these issues), there is nothing in the evidence which suggests that, notwithstanding the defendant was in receivership and had not been an operator of trains for a considerable period, the defendant could not have called evidence on the issue of cost or any other difficulty in providing door-latching systems on trains in 2000 if it had wanted to raise that issue.
60 Having reviewed the evidence tendered at trial, and bearing in mind the issues raised by the parties at trial, we see no error in the judge’s conclusion that, prospectively assessed, the exercise of reasonable care required the defendant in this case to have a door-latching system in place which would have prevented the plaintiff from being able to force open the doors of the carriage in which he was travelling on the day of the accident.
61 Proposed grounds 1, 2 and 3(a) must be rejected.
62 While the defendant’s proposed appeal is sufficiently arguable to justify leave to appeal being granted, the appeal must be dismissed.
---
[1] McDonald v National Express Group Australia (Bayside Trains) Pty Ltd [2021] VCC 926 (‘Reasons’).
[2] The $50,000 assessed for pecuniary loss was below the threshold prescribed by s 93(7)(a)(i) of the Transport Accident Act 1986, and was thus not recoverable from the defendant. The $58,187.83 was calculated, in accordance with ss 93(7)(b)(i) and (11)(b)(i), after deducting an impairment benefit, paid in accordance with the provisions of that Act, of $6,040.56 from the pain and suffering damages of $200,000, and then reducing that amount by 70 per cent for contributory negligence.
[3] Reasons, [161].
[4] Ibid.
[5] No issue has been taken with these somewhat idiosyncratic comparators. We assume that the reference to an escalator is to a ramped moving walkway of some kind, rather than one with steps.
[6] Reasons, [7].
[7] Ibid [9]–[54].
[8] Ibid [55]–[102].
[9] Ibid [90].
[10] Ibid [97].
[11] Ibid [98].
[12] Ibid [103]–[106] (citation omitted).
[13] Ibid [126]–[153].
[14] Ibid [136] (footnotes omitted).
[15] Ibid [153] (footnotes omitted).
[16] Ibid [158] (footnote omitted).
[17] [1980] HCA 12; (1980) 146 CLR 40 (and in particular the oft-cited passage in the judgment of Mason J at 47–8) (‘Shirt’).
[18] Reasons, [176].
[19] Ibid.
[20] Ibid [177].
[21] Ibid [178].
[22] Ibid [179].
[23] Ibid [178]-[179].
[24] Ibid [180]–[184] (citations omitted).
[25] Not counsel who appeared for the defendant in this Court.
[26] Reasons, [185]–[186].
[27] Ibid [188].
[28] Emphasis added.
[29] [1959] HCA 8; (1959) 101 CLR 298.
[30] Ibid, 312.
[31] Reasons, [185].
[32] Ibid.
[33] Reasons, [176].
[34] Ibid [179].
[35] Ibid.
[36] (1978) 18 ALR 147 (‘Maloney’).
[37] (2007) 234 CLR 330 (‘Dederer’).
[38] Ibid 350 [55].
[39] The equivalent to pushing a recalcitrant sibling out of the way or pushing a loaded shopping trolley halfway up an escalator.
[40] Reasons, [179].
[41] See further, Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165, 1169 [14] where Gleeson CJ said that decision makers ordinarily ‘review the whole of the evidence, and consider all issues of fact, before they write anything’.
[42] See Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461–2 [126]–[128] (‘Vairy’); Dederer (2007) 234 CLR 330, 353 [65].
[43] Compare Dederer (2007) 234 CLR 330, 353 [66].
[44] [1975] HCA 9; (1975) 132 CLR 201 (‘Nelson’).
[45] Ibid 214–5.
[46] [1973] HCA 12; (1973) 128 CLR 99 (‘Caterson’).
[47] Ibid 109.
[48] Vairy [2005] HCA 62; (2005) 223 CLR 422, 462 [128].
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