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.


The High Court has affirmed that the State owed a duty to exercise due care for the safety of passengers from dangers likely to arise out of the ordinary use of the train and which might be reasonably expected, which included the danger of being trapped in a door. This duty was not excluded because of the uncertainty of how or why the appellant became trapped.

Negligence was established due to the failure of staff to observe the gap in the door where the appellant was trapped and those parts of his body protruding from the door before signaling to the guard for the train to leave the station.


Rachael Arnold

Rachael is a well-rounded and experienced insurance lawyer with a focus on general insurance and product liability.

Ahranee Vijayaseelan

Ahranee advises insurers in the defence of public and product liability claims.

Related practices

You might be also interested in...

General Insurance | 19 Aug 2015

New South Wales IPART recommends abolishing property valuer licensing

New South Wales IPART’s final report on reforming licensing in New South Wales was released on Tuesday 11 August 2015.

General Insurance | 5 Nov 2015

Insurable Interest – Issue 39

The Queensland Court of Appeal has added to the growing body of recent case law on assault cases pursued against venues licensed to serve alcohol.