The foreseeability test in negligence does not require that the harmful event be probable (more likely than not), only that it be 'not unlikely' — a real risk rather than a mere theoretical possibility. The alternative danger doctrine applies where a plaintiff faces serious inconvenience, not only physical danger.
Later decisions that cite Caterson v Commissioner of Railways
Decisions cited by Caterson v Commissioner of Railways
CATERSON v. COMMISSIONER OF RAILWAYS. [1973] HCA 12; (1973) 128 CLR 99
Negligence
High Court of Australia.
Barwick C.J.(1), McTiernan(2), Menzies(3), Gibbs(4) and Stephen(5) JJ.
CATCHWORDS
Negligence - Duty of care - Foreseeability of injury - Breach of duty - Train leaving station without warning - Person farewelling passenger jumping from moving train - Novus actus interveniens - Contributory negligence.
HEARING
Sydney, 1973, March 15, 16;DECISION
May 10.
2. The Supreme Court reached its conclusion in this case because, as I
understand its reasons, it held the view that the respondent
would only be
liable to the plaintiff in the circumstances of the case if it could be held
that it was likely that a person, not
intending to travel on the train and in
no physical danger if remaining on it, would attempt to leave it if the train,
not having
allowed adequate time for such a person to disembark whilst it was
stationary, moved off without due warning. Likelihood in this
connexion
appears to have been equated by the Supreme Court to probability in the sense
that the event was more likely than not to
happen or occur. (at p101)
3. No doubt in the decisions concerned with liability in tort, various
expressions have been used by distinguished judges in speaking
of the
necessary relationship between what has occurred in the particular case and
the foreseeability of that event which had to
be predicated of the person
sought to be made liable for the consequences of the occurrence. Some of
these expressions are referred
to in the speeches in C. Czarnikow Ltd. v.
Koufos [1967] UKHL 4; (1969) 1 AC 350 . I have no present need to list them all with
references to the
decisions in which they have been used: but
they include
"likely", "seriously possible", "of real risk", "of real
danger", "not
unlikely" or "liable". Suffice it to say that
doubtless the expression used
in particular cases served well enough
to encompass
its user's meaning in
relation to the facts of
the case before him. At times, because of the quality
of those facts,
an expression
has been used which was enough to produce
liability
in respect of them, though in truth lesser facts and a less
stringent
criterion
would have also produced liability. Consequently,
unless
expressions used in reasons for judgment are designed accurately
to formulate
a general principle or proposition, care must
be taken not to erect a
particular expression into a formula or an essential
part of
a formula. (at
p101)
4. In my opinion, liability in tort will be possible if the event which has
occurred and the damage therefrom which the claimant
has suffered were both
foreseeable by the person sought to be made liable and of such a kind as he
ought to have realised were not
unlikely to occur, subject only to the
exception constituted by the decision in Bolton v. Stone [1951] UKHL 2; (1951) AC 850 .
Of
the various possible
descriptions of the event and damage I prefer "not
unlikely to occur" because on the one
hand it denies the
proposition that the
event or damage should be apprehended as more likely than not to occur or to
be suffered
and on the other hand,
by its negative form,
it excludes
possibilities which are theoretical and unreal in all the circumstances:
it
accommodates the idea
of a real risk or danger
though in relation to some
situations it may possibly be more embracing than either
of those terms. (at
p102)
5. As a concise formulation of the liability in tort, I would respectfully
adopt the language of Lord Reid in C. Czarnikow Ltd.
v. Koufos (1969) 1 AC, at
pp 385-386 when he says: "The modern rule of tort is ... the defendant will
be liable for any type of
damage which is reasonably foreseeable as liable to
happen even in the most unusual case, unless the risk is so small that a
reasonable
man would in the whole circumstances feel justified in neglecting
it", if by "liable to happen" is meant, as I apprehend Lord Reid
intended it
to mean, "not unlikely to happen". That formulation, if extended to include
the act or event causing damage, would,
in my respectful opinion, be equally
valid. (at p102)
6. In my opinion, the categories of occupier and invitee and occupier and
licensee are quite inappropriate for the resolution of
the present case.
Liability must be placed on a general duty of care arising out of the
circumstances that the defendant had the
management of the train; that the
appellant was properly upon it; that he was of a class of persons of whose
presence on the train
the respondent must be taken to have been aware; and
that such persons would require adequate time to leave the train whilst it was
stationary. (at p102)
7. Failure to give adequate time, particularly if the train moved off without
adequate warning, was in my opinion a breach of the
duty of care for the
safety of such persons which arose out of the circumstances. The question of
how human beings placed in a situation
of emergency will act is very much a
question of fact: where a jury forms part of the tribunal of fact, it is a
fact pre-eminently
suitable for its decision. Thus, the question whether
persons placed as the appellant found himself in this case were not unlikely
to attempt to disembark from the train during its initial period of movement
was a matter for the jury. I have no doubt that it
was entitled in this case
to conclude that it was not unlikely that the appellant, under threat of being
carried by the train against
his wish for some sixty miles, would attempt to
disembark so soon as he became aware of the train's motion and before it
gained a
speed at which disembarkation with safety was evidently quite
impossible. Further, it was entitled to conclude that the respondent
ought to
have foreseen that it was not unlikely that a person, placed as was the
appellant, would so attempt to leave the train.
(at p103)
8. I would allow the appeal. (at p103)
McTIERNAN J. The declaration filed by the plaintiff in this action alleges
that the damage for which he claims compensation was
caused by negligence in
the driving, control and management of the train. The defendant filed a plea
of not guilty and a plea of
contributory negligence. (at p103)
2. The plaintiff gave evidence and called witnesses. The defendant called a
number of witnesses. At the close of the evidence
a submission was made to
the judge on behalf of the defendant, that there was no reasonable evidence of
negligence and the judge
ought not leave the case to the jury. The judge did
not act on the submission. The jury returned a verdict in favour of the
plaintiff
and awarded damages to him. The defendant appealed. The Court of
Appeal decided that on the evidence of the way in which the accident
happened,
the defendant could not be held guilty of negligence resulting in the
accident. (at p103)
3. It appeared that when a train arrived at the railway station at Casino,
the plaintiff went on to the train with a man, who intended
to travel by
train, to help him to put his luggage on the train, and having done this the
plaintiff proceeded towards the doorway
in order to get off the train. When
the plaintiff reached the doorway he realised the train was in motion. The
plaintiff decided
to get off the train. It was because of the way in which he
did this that the Court of Appeal decided that the duty of care owed
by the
defendant to him did not apply. In order to get off the train the plaintiff
caught hold of a vertical bar at the side of
the doorway and jumped onto the
platform. He ran with the train for some yards. Failing to steady himself,
he fell between the
platform and the train and sustained serious personal
injury. With respect, I think that the Court of Appeal took an unduly adverse
view of what the plaintiff meant by saying that he "jumped" out of the train.
It was within the province of the jury to make a finding
on the whole of the
plaintiff's account of how he got out of the train. It was open to the jury to
find that he did something less
extreme than literally to leap from the
doorway onto the platform. (at p103)
4. The plaintiff was lawfully on the train. The plaintiff's case was that
the defendant knew that persons not travelling came onto
the train when it
stopped at the railway station and the defendant was under a legal duty of
care to them which included giving them
a reasonable opportunity to alight
from the train while it was stationary. On the evidence it was open to the
jury to find that
the defendant put the train in motion in breach of that duty
of care. The jury could reasonably find on the evidence that the train
was
moving slowly when the plaintiff jumped out of the doorway, holding onto the
vertical bar to support himself. It ought reasonably
to have been in the
contemplation of the defendant's employee concerned with starting the train
that if a reasonable opportunity
was not given to visitors on the train, one
or more of them would be likely to alight from it as soon as it was put in
motion and
this would be a dangerous thing to do. (at p104)
5. Lord Atkin said in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562, at p 580 : "You
must take reasonable care to avoid
acts
or omissions
which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour?
The
answer seems
to be - persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation
as
being
so affected when I am directing my mind to the acts or omissions which
are called in question." This principle applies
to this case.
The plaintiff,
as a visitor on the train, was "neighbour" to the defendant while on the
train. He did not cease to
be "neighbour"
immediately the train was put in
motion. I would accept as good law this statement: "it is not necessary to
show
that the particular
accident which has happened was foreseeable, any more
than it is necessary to show that the particular damage
was foreseeable; it
is
enough that if it was reasonable in a general way to foresee the kind of thing
that occurred": Salmond on
the Law of Torts, 15th
ed. (1969), p.291. I think
this statement of principle applies to the act of the plaintiff described as
"jumping"
from the train.
(at p104)
6. It was a question of fact for the jury to decide whether the provision of
a chain to pull in order to stop the train was a sufficient
precaution to
fulfil the defendant's duty of care. Apparently the jury decided it was not.
The issue of contributory negligence,
as well as the issue of negligence, was
left to the jury. Their general verdict shows that they found in favour of
the plaintiff
on both issues. In my opinion, there is not ground for
disturbing the jury's finding on either issue. (at p104)
7. I would allow the appeal. (at p104)
MENZIES J. This is an appeal from a decision of the Court of Appeal of the
Supreme Court of New South Wales setting aside a verdict
and judgment in
favour of the appellant against the respondent in an action for damages for
negligence. (at p105)
2. The jury could, upon the evidence, have found:
(1) that the plaintiff entered a train standing at the platform at Casino
to stow in his compartment the luggage of a passenger
friend who was boarding
the train;
(2) that the train started to move without giving the plaintiff time,
without waste of time, to do what he had to do and leave
the train;
(3) that the train started to move without any warning audible to the
plaintiff inside the carriage;
(4) that, on reaching the doorway to alight upon the platform, the
plaintiff found the train already in motion and either stepped
or jumped out
holding a hand-bar on the outside of the carriage;
(5) that the plaintiff's attempt to alight was unsuccessful and he fell
between the train and the platform sustaining the injuries
for which he sued;
(6) that at the time the plaintiff attempted to leave the train, it was
still travelling slowly but was gathering speed. (at p105)
3. It appears to me that, upon such evidence, the jury could properly return
a verdict for the plaintiff, finding negligence and
not finding contributory
negligence, unless the respondent was entitled to disregard as a small risk
not calling for precautionary
measures the possibility that a person lawfully
upon a train and being carried away from a station upon which he wanted and
had good
reason to alight, would run the risk of trying to leave the train
when he found that it was moving off and gathering speed, even
though it was
common knowledge that there was a stop cord that could have been pulled to
stop the train. (at p105)
4. I have had the advantage of reading the judgment of Gibbs J. in which the
problems to which the appeal gives rise are fully discussed
and for the
reasons which he gives, I have reached the conclusion that the risk that what
did happen here would happen in such circumstances
was not so small that a
reasonable person would be justified in disregarding it. (at p105)
5. Consequently, I agree that the appeal should be allowed. (at p105)
GIBBS J. This is an appeal from a judgment of the Court of Appeal Division
of the Supreme Court of New South Wales. An action
was brought in that Court
by the appellant against the respondent, the Commissioner for Railways, for
damages for personal injuries
sustained by the appellant by reason of the
negligence of the respondent. The action was tried by a judge sitting with a
jury, and
a verdict was entered for the appellant. The Court of Appeal ordered
that the verdict be set aside and that in lieu thereof a verdict
be entered
for the respondent. (at p106)
2. At the trial there was a conflict of testimony on some points but the jury
was entitled to accept the following version of the
facts. The appellant, who
lived at Bangalow, had driven to Casino, forty miles away, and had been
accompanied by his son, aged fourteen,
and a friend, Mr. Mackie, who wished to
catch the Brisbane-Sydney express train which was due to arrive at Casino at
7.44 p.m. and
to depart at 7.51 p.m. on the day in question. The train arrived
on time or a minute or two early. Because its length was greater
than that of
the platform at Casino it made two stops; passengers intending to travel in
sleeping compartments were allowed to enter
their carriages at the first stop
and the train was then moved forward to allow the other passengers to get
aboard. The train stopped
twice as long in the first position as in the
second. When the train stopped on the second occasion the appellant and Mr.
Mackie
happened to be standing almost opposite to the door of the carriage in
which Mr. Mackie was to travel. Although there was no suggestion
that Mr.
Mackie, who was aged about sixty-seven, was incapable of carrying his own
suitcase, the appellant, who was ten years younger,
carried it into the
carriage for him. He placed the case on the rack, shook hands with Mr. Mackie
and without wasting time commenced
to walk out of the carriage. When he got
to the door he noticed that the train had started to move. There was some
evidence that
it had commenced to move at the appointed time, 7.51 p.m., but
the jury was not bound to accept that evidence. The appellant did
not look at
his watch, or at the station clock, to check the time before he entered the
carriage or while he was within it. At least
two other persons who had
entered the carriage to assist their relatives with their luggage were still
on board when the train began
to move. Neither they, nor the appellant, had
heard any warning that the train was about to depart. The next station at
which the
train would have stopped in the ordinary course of events was about
eighty miles away. The appellant thought of his son on the platform,
forty
miles from home, and "instinctively", as he said, and without giving any
thought to the risk involved, tried to get onto the
platform by jumping out of
the carriage and running with the train while holding a bar placed near to the
door of the carriage.
At the time when the appellant got to the door of the
carriage the train, to use his words, "was not travelling too fast", although
its speed was too great for him simply to step out of the carriage. It
appears from the evidence of another witness, Miss Stuckey,
that the train had
just started to move off but it had gathered speed fairly quickly. It did not
occur to the appellant to attempt
to find a communication cord which, if
pulled, would stop the train. There was no direct evidence that there was a
cord in the carriage
but there was evidence from which it might have been
inferred that there was such a cord. On this material the jury was entitled
to conclude that the train did not stop long enough on the second occasion to
allow the appellant to enter the train, go to Mr. Mackie's
seat, deposit the
luggage and then leave the carriage. Further, the jury was entitled to find
that no warning which could be heard
within the carriage was given before the
train began to move from the station. (at p107)
3. The question that then falls for decision is whether it was open to the
jury in these circumstances to find that the respondent
had been guilty of
negligence which caused the appellant's injuries. There can, I think, be no
doubt that the jury could properly
have held that the respondent should have
foreseen that some people other than passengers would board the train while it
was halted
at the station and would seek to alight from it before it resumed
its journey. It is common knowledge that passengers who board
an express
train are often accompanied by other persons who assist them to carry on their
luggage or find their seats, and if a passenger
is a young child or is old and
infirm it is highly likely that he will need to be helped in this way. I did
not understand this
to be disputed by the respondent. Further, it was not
contested that it was foreseeable that if such a person, finding himself on
the train when it started to move off, tried to get back on to the platform,
he would be likely to suffer injury. However, the Court
of Appeal took the
view that it could not be foreseen that any act or omission of the respondent
in relation to the operation of
the train would be likely to cause injury to a
person who jumped from the train while it was in motion unless he did so to
protect
himself from the danger of some physical injury that might be caused
to him if he remained on the train. Their Honours thought that
it was not
foreseeable that a man would do anything so dangerous as to jump from a moving
train except to protect himself from a
danger on the train itself and that the
appellant's act of jumping was not a likely result of any earlier act or
omission of the
respondent. Therefore it was held that there was no duty of
care on the part of the respondent related to the injury suffered by
the
appellant. Alternatively it was said that if a relevant duty of care be
assumed there was no breach thereof which caused the
appellant's injuries.
(1970) 3 NSWR 388 (at p108)
4. With great respect, I am unable to agree that no reasonable jury could
find that it was foreseeable that a person other than
a passenger, who had
found himself on an express train which started to move off without warning,
might jump from it, even though
he was in no danger by remaining on the train.
It would of course be a very considerable inconvenience for anyone to be
carried against
his will to another town eighty miles away and in some cases
the person on the train would have an additional strong reason to wish
to
avoid being so carried, as for example, if he had left a helpless child on the
platform or a sick wife at home. A jury could
in my opinion reasonably
consider that a person on an express train faced with such a possibility might
attempt to leave the train,
particularly if it had not yet picked up speed.
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. (at p108)
5. 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. In Overseas Tankship (U.K.) Ltd. v. Miller
Steamship
Co. Pty. Ltd. [1966] UKPC 1; (1967) 1 AC 617, at pp 642-643 , Lord Reid, after discussing the
decision in Bolton v. Stone
[1951] UKHL 2; (1951) AC 850
, and saying that the House of Lords
there held that "the risk was so small that in the circumstances
a reasonable
man would have
been justified in disregarding it and taking no steps to
eliminate it", went on to say:
"But it does not follow that, no matter what the circumstancesIn 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 (see also Morris v. West Hartlepool Steam Navigation Co. Ltd. (1956) AC 552, at pp 574-575 and Schiller v. Council of the Shire of Mulgrave [1972] HCA 60; (1972) 46 ALJR 650, at p657; (129 CLR 116). 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. Similarly it 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. (at p109)
may be, it is justifiable to neglect a risk of such a small
magnitude. A reasonable man would only neglect such a
risk if he had some valid reason for doing so, e.g., that it
would involve considerable expense to eliminate the risk.
He would weigh the risk against the difficulty of eliminating
it...In their Lordships' judgment Bolton v. Stone [1951] UKHL 2; (1951) AC 850 did
not alter the general principle that a person must be
regarded as negligent if he does not take steps to eliminate a
risk which he knows or ought to know is a real risk and not a
mere possibility which would never influence the mind of a
reasonable man. What that decision did was to recognize
and give effect to the qualification that it is justifiable not to
take steps to eliminate a real risk if it is small and if the
circumstances are such that a reasonable man, careful of the
safety of his neighbour, would think it right to neglect it."
6. The next question for consideration is whether the jury was entitled to
find that the negligence of the respondent had caused
the appellant's
injuries. On behalf of the respondent it was submitted that the voluntary act
of the appellant in jumping from the
train broke the chain of causation
between the respondent's negligent acts and omissions and the appellant's
injuries. It is no
answer to this submission to say that the appellant's act
was foreseeable: Chapman v. Hearse [1961] HCA 46; (1961) 106 CLR 112,
at p 122 and McKew
v.
Holland & Hannen & Cubitts (Scotland) Ltd. [1969] UKHL 9; (1969) 3 All ER 1621, at p 1623 .
In the
latter case Lord Reid said (1969) 3 All ER,
at p 1623 that "it is
often easy to foresee
unreasonable conduct or some other novus
actus
interveniens as being quite likely.
But that does not mean that the defender
must
pay for damage caused by the novus actus".
On the other hand, the
intervention of
the voluntary action of the appellant did not
in itself
necessarily have the result that
his injuries were not caused by the
respondent's
negligence. In Summers v. Salford Corporation
(1943) AC 283, at
p 296 , Lord Wright
said that
"if a plaintiff suffers damage by the defendant's default,The effect of the intervening action of a third party was recently discussed in Dorset Yacht Co. Ltd. v. Home Office [1970] UKHL 2; (1970) AC 1004, at pp 1027-1030 , and in the course of that discussion Lord Reid cited the following passage from Haynes v. Harwood (1935) 1 KB 146, at p 156 :
the damage may be directly due to that default and recoverable
even though the accident and damage would not have
happened but for some action of the plaintiff, so long as his
action was in the ordinary course of things and, at least
generally speaking, was not blameworthy."
"If what is relied upon as novus actus interveniens is theIt is unnecessary to go beyond those propositions for the purposes of the present case. The jury was entitled to consider that the appellant's action of jumping from the carriage was "in the ordinary course of things" and "the very kind of thing" likely to happen as a result of the respondent's negligence. For reasons which I am about to give, the jury could also have taken the view that the appellant's conduct was not unreasonable, and that the appellant's injuries were caused by the respondent's negligence. (at p110)
very kind of thing which is likely to happen if the want of
care which is alleged takes place, the principle embodied in
the maxim is no defence. The whole question is whether or
not...the accident can be said to be 'the natural and
probable result' of the breach of duty."
7. At the present stage of these proceedings the questions of causation and
contributory negligence run together. If the appellant's
action in jumping
from the train was not unreasonable it could not be said in the circumstances
that that action, rather than the
respondent's negligence, was the cause of
the injuries. If, on the other hand, the appellant by jumping from the train
failed to
take reasonable care for his own safety he could not recover from
the respondent damages in respect of his injuries because at the
relevant time
contributory negligence was still a complete defence in New South Wales.
There may have been open at the trial two
questions on the issue of
contributory negligence which having regard to the verdict of the jury cannot
now be raised by the respondent
with any hope of success. These questions
were whether the appellant was negligent in failing to keep a close eye on the
time when
he entered and remained within the carriage and whether, having
decided to jump, he took less than reasonable care in executing that
decision.
It was clearly open to the jury to negative these suggestions and they may now
be put aside. The question remains whether
the appellant by the very act of
jumping from the train failed to take reasonable care for his own safety, and
thus acted unreasonably.
(at p111)
8. No doubt on the evidence it was open to the jury to find that the
appellant did not take reasonable care for his own safety and
that his
injuries were caused by his own want of care. It was submitted by the
appellant that it was not open to the jury to take
any other view. It was
said that the principle which is sometimes referred to as the doctrine of
alternative danger, and of which
Jones v. Boyce [1816] EWHC J75 (KB); (1816) 1 Stark 493 (171 ER
540) is an early example, has no application unless the plaintiff
has been
placed by the
defendant's negligence in a position in which he has to choose
between two dangers; it will never be reasonable,
so it was said,
to take a
risk of injury merely to avoid an inconvenience, however great. I cannot
agree with that submission which
seems to me
inconsistent with the decisions
in Robson v. North Eastern Railway Co. (1875) LR 10 QB 271 (see especially
(1875) LR
10 QB, at p
275 ) and Sayers v. Harlow Urban District Council (1958)
1 WLR 623 . Where a plaintiff has by reason of the negligence
of the defendant
been so placed that he can only escape from inconvenience by taking a risk,
the question whether his action in taking
the risk is
unreasonable is to be
answered by weighing the degree of inconvenience to which he will be subjected
against the risk
that he takes
in order to try to escape from it - cf. per
Lord Evershed M.R. in Sayers v. Harlow Urban District Council (1958) 1
WLR, at
p 626
. (at p111)
9. No one could doubt that it would be negligent to jump from a train
travelling at full speed simply to avoid the inconvenience
of being carried on
to another station. On the other hand, a person who wished to avoid being
carried on to a distant station might
not unreasonably jump out from a train
which was travelling very slowly. The question at what speed the train was
travelling was
therefore in the present case a critical one. Having regard to
the evidence to which I have referred it seems to me that the jury
was
entitled to conclude that the train had not attained any great speed when the
appellant jumped from it. The jury then had to
weigh the inconvenience which
the appellant would suffer if he remained on the train against the risk of
leaving a train which was
moving at the speed at which they considered that it
was travelling. They also had to consider the question whether the appellant
failed to take reasonable care for his own safety by leaving the train instead
of pulling the communication cord, assuming one to
have been provided. In
this connexion they could have considered the appellant's evidence that he
jumped instinctively and could
have concluded that in the stress of the moment
it was not to be expected that he would think of the possibility that the
carriage
would be provided with a communication cord or, alternatively, that
it was not necessarily unreasonable for him to endeavour to leave
the train
immediately rather than to spend time looking for a communication cord, for if
there had proved to be no cord the lapse
of time would have increased the
hazard of leaving the train, which was gaining speed. Bearing all the
circumstances in mind I find
it impossible to conclude that the jury was bound
to find that the appellant's injuries were caused or contributed to by any
negligence
on his own part. (at p112)
10. The power of the Supreme Court of New South Wales to enter a verdict
contrary to that of a jury, in case where contributory
negligence was in
issue, was considered in Williams v. Smith [1960] HCA 22; (1960) 103 CLR 539 . I need not
here discuss the principles
there laid
down. It is enough to say that for the
reasons I have given,
I consider that there was evidence on which the jury
could
reasonably
find for the appellant, and that the respondent was not as
a
matter of law entitled to a verdict. Moreover, I consider
that the
verdict
was not against the evidence and the weight of evidence,
or unreasonable, and
that a new trial, if asked for, should
have
been refused. (at p112)
11. I would allow the appeal. (at p112)
STEPHEN J. I have read the reasons for judgment of the Chief Justice and of
my brother Gibbs and agree both with their conclusions
and with their reasons
for those conclusions. I would allow this appeal. (at p113)
ORDER
Appeal allowed with costs. Judgment of the SupremeCourt of New South Wales Court of Appeal