High Court reinstates $1.5million award of damages in favour of boy who fell out of moving train

The High Court unanimously allowed an appeal from the New South Wales Court of Appeal and restored the primary judge’s award of damages in favour of the appellant.

In 2001, the then 8 year old appellant suffered severe injuries when he fell from a train (which was travelling at 100 kph) departing from Morisset Station in New South Wales. The appellant’s mother, in her capacity as his tutor, commenced proceedings in the Supreme Court of New South Wales against the State of New South Wales (the State), as the legal entity operator of the rail network.

At first instance

At the trial, there was no direct evidence of how the appellant fell from the train. The train doors were fitted with electro-pneumatic locking motors which were centrally operated by the guard on the train. However, the appellant had somehow prevented the doors from fully closing (and therefore prevented the doors from locking) when the train left the station.

The trial judge (Justice Beech-Jones) considered the most likely explanation regarding how the appellant fell was that he had been caught between the doors as they closed at the station, leaving part of his torso and at least one of his arms and legs outside the train. There was uncontested evidence given by a station guard that the platform attendant (who was deceased at the time of trial) would have seen a significant part of the plaintiff’s body hanging out of a door, but not a small object or part of a limb. The primary judge held the State vicariously liable for the negligent failure of the railway employee to keep a proper lookout before signaling the train to depart and awarded the appellant damages in the sum of $1,536,954.55.

Court of Appeal

The State successfully appealed against the finding of liability in the Court of Appeal. Whilst the Court of Appeal accepted the trial judge’s ‘inferential fact-finding’ that the appellant must have been positioned with his back to one door so that he could push the opposing door, the Court of Appeal considered there were equally probable alternative hypotheses available to explain how the appellant came to be in that position which did not involve negligence on the part of railway staff.

High Court

On appeal, the High Court found that the Court of Appeal erred in overturning the trial judge’s ‘ultimate factual finding’. The High Court stated that the appellant’s case depended upon proof of three inferences of fact, namely:

1. that as the train left Morisset Station, the appellant was trapped between the front western doors of the lead car;
2. that the appellant’s arm, leg and part of his torso were protruding from the car; and
3. that the protruding parts of his body were visible to a person standing in the position of the customer service attendant on the platform.

The High Court held if it was accepted that the appellant had his back to one door and he was able to force back the opposing door with his arms and a leg, then it necessarily meant that at least part of the appellant’s trunk and limbs must have been protruding from the train.

Given that the Court of Appeal accepted that the appellant was in that position before his fall, the further finding that the appellant came to be in this position as a result of the doors closing on him at the station was held to have been correctly characterised by the trial judge as the most likely inference ‘by a large measure’. Accordingly, the High Court held that the factual finding by the trial judge was correct notwithstanding that other possible explanations could not be excluded.