French CJ; Bell, Gageler, Keane & Nettle JJ:  On 29 January 2001, Corey Travis Fuller-Lyons suffered severe injuries when he fell from a train. Corey was eight years old at the time. Corey brought proceedings in the Supreme Court of New South Wales (Beech-Jones J) by his tutor claiming damages in negligence against the State of New South Wales (“the State”) as the legal entity responsible for the operation of the rail network.
 There was no direct evidence of the circumstances of Corey’s fall. The ultimate conclusion of negligence rested on inferential fact-finding. The primary judge found that, shortly before he fell, Corey had become trapped between the doors of the train before it left Morisset Station. His Honour held the State vicariously liable for the negligent failure of a railway employee to keep a proper lookout before signalling to the guard that it was safe for the train to depart from the Station. Judgment was entered for Corey in the amount of $1,536,954.55.
 The State appealed to the Court of Appeal of the Supreme Court of New South Wales (McColl and Macfarlan JJA and Sackville AJA) against the finding of liability. There was no appeal against the assessment of damages. The Court of Appeal identified alternative hypotheses that did not entail negligence on the part of railway staff. These alternative hypotheses were, in the Court of Appeal’s estimate, of equal or greater probability than the hypothesis upon which the primary judge based his conclusion of negligence. The appeal was allowed, orders of the primary judge were set aside and judgment was entered for the State.
 On 17 April 2015, Bell and Gageler JJ granted Corey special leave to appeal to this Court. Five grounds of appeal express the same complaint in different ways, which is that the Court of Appeal did not undertake a “real review” of the evidence or the primary judge’s reasons before concluding that alternative hypotheses were equally open. One aspect of this complaint is the assertion that the Court of Appeal identified an alternative hypothesis based on facts that were not in evidence. A sixth ground contends that Corey was denied the opportunity to deal with this hypothesis.
 The appeal must be allowed. To explain why that is so, it is necessary to refer to the evidence in some detail. The trial was heard over seven days. A number of issues that were explored in evidence may be put to one side because they fell away during the hearing or because they are the subject of unchallenged findings. Relevantly, the evidence established the following facts.
- Corey’s case depends upon proof of three inferences of fact: that as the train left Morisset Station he was trapped between the front, western doors of the lead car; that his arm, leg and part of his torso were protruding from the car; and that the protruding parts of his body were visible to a person standing in the CSA’s position on the platform. Corey’s case fails if any of these inferences is not a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.
- The conclusion that Corey fell from the front, western doors of the lead car is inevitable. The conclusion that immediately before the fall Corey must have been between the doors with his back to one (as he pushed against the opposing door) is accepted by the primary judge and the Court of Appeal to be the correct inference. If the primary judge’s conclusion, that the reasonable and probable explanation for this state of affairs is that Corey was trapped between the doors as they closed at Morisset Station, is a correct finding, it remains correct notwithstanding that other possible explanations for the known facts cannot be excluded.
- Mr Clemens considered it probable that Corey had become trapped in the doors, or was standing in the doors, as they closed. In cross-examination, he was asked:
“Q. Well then, how do you envisage that he was entrapped? Which part of him?
- Oh, I’ve got no evidence to say which part of him was trapped. But given that he fell out I’d suggest a good portion of him was caught in the doors.
Q. All right. And then what, this is at Morisset?
A. It seems most likely to me, yes.”
- The cross-examiner obtained Mr Clemens’ agreement that Corey might have been seeking to stop the doors from closing. The cross-examination continued:
“Q. He may have simply, for example, put his foot in the door, right?
A. Yes. More likely his body I would have thought.”
- While Mr Clemens’ evidence allowed of the possibility that some eight-year-old boys might have the strength to force an opening in the doors of a V-set car against the pneumatic pressure, his evidence did not support a conclusion that this was a likely occurrence.
- Mr Meiforth’s evidence, which impressed the primary judge, was against acceptance of the body wedge hypothesis.
- The evidence was that it was not unusual for passengers to become trapped in the doors of cars as they closed at stations. As the primary judge observed, an eight-year-old, unsupervised child might well become trapped in the closing doors of a train either accidentally or intentionally.
- Acceptance that Corey had his back to one door and that he was able to force back the opposing door with his arms and a leg carries with it that, at that time, one door was against the span of Corey’s back at a point between his shoulders. Necessarily, at least part of his trunk and limbs must have been protruding from the train. In light of the Court of Appeal’s acceptance that Corey was in that position before his fall, the further finding that Corey came to be in this position as the result of the doors closing on him at Morisset Station is correctly characterised as the most likely inference “by a large measure”. The Court of Appeal erred in overturning the finding for the reasons that it gave.
Two further State submissions
- Before leaving the appeal, there should be reference to two submissions made by the State on the hearing in this Court, which do not appear to have been made below. First, it is submitted that the primary judge’s finding, that Corey became trapped by the closing doors before the CSA signalled the guard, was unsupportable. Shortly put, the submission is that the guard only switches on the locking mechanism when he receives the CSA’s signal. Therefore, so the argument goes, Corey could not have been trapped by the closing of the doors when the CSA gave the signal. The submission misconceives the evidence and the primary judge’s finding.
- The applicable Operation Manual for Electric Trains was in evidence in the State’s case. Relevantly, as the primary judge noted, the manual contained the following instructions:
“It is the guard’s responsibility to give the ‘all right’ signal to authorise the driver to proceed and to ensure that passengers are clear of the doors prior to closing them and before giving the ‘all right’ bell signal to the driver.
Before giving the ‘all right’ bell signal to the driver, the guard is to ensure that the ‘doors open’ indicator light (where provided on the guard’s panel) is not shining and, that no person is observed to be caught in the doors.” (emphasis added by the primary judge)
- As might be expected, the manual required that, before the signal that informs the driver that it is safe to depart from the platform is given, railway staff ensure that no person is observed to be caught in the doors.
- The State’s second submission is that Mr Meiforth’s evidence, that it would be “much too hard” for an eight-year-old boy to force open a door, was directed to a different type of train to the V-set intercity train from which Corey fell. The submission takes an answer out of context. It is unnecessary to set out the questions and answers leading to the statement. It suffices to observe that, when the evidence is read as a whole, it is clear that Mr Meiforth’s opinion, that it would be “much too hard” for an eight-year-old boy to force open a door, was with respect to forcing the doors of the train in 2001. The conclusion accords with the primary judge’s understanding of the evidence as it was given.
- The appeal must be allowed.
I refer you to the judgment summary.
David Cormack – Brisbane Barrister & Mediator