Emergency-action policy didn't breach duty of care

A trial judge "set a standard of care well above that which was reasonable" when he ordered an employer to pay $650,000 in damages to a man who was hit by a train while intoxicated, the NSW Court of Appeal has found in quashing the decision.

Justices Ruth McColl, John Basten and Mark Leeming found neither Rail Corporation nor the train driver acted negligently at the time of the incident.

On 1 September 2006, the Sydney man drank alcohol with friends before going to a train station at about 3am the following morning and falling from the platform.

He was struck by a train and lost his left leg below the knee. He sued RailCorp for $1.3 million.

In 2013 proceedings, Supreme Court Justice David Davies found the train driver breached his duty of care in failing to apply the emergency brakes as soon as he saw an object on the track, and RailCorp was vicariously liable for his negligence.

He found the driver took more than six seconds to take emergency action because he initially thought the man, who was lying in the shadow of the platform, was a piece of rubbish or debris.

Justice Davies said the fact that the driver couldn't see what the object was because it was dark "was an added reason for erring on the side of caution".

"Since… the almost inevitable result of a train striking a human being will be death or serious injury, the only reasonable response to the risk, where an object is seen but not identified, is for emergency braking to be applied in an endeavour to avoid striking the unknown object," he said.

A RailCorp senior manager told the Court that drivers "repeatedly" saw rubbish such as newspapers and other debris on the line.

He said drivers weren't instructed to immediately apply the emergency brakes every time they saw an object on the track because doing so would "create an unacceptable level of risk" to passengers, and adversely affect service times.

Justice Davies said RailCorp's policy was acceptable in "ordinary situations", but "may not be appropriate" when it was dark and a driver couldn't determine what an object was.

He awarded the injured man $650,000, after a 50 per cent reduction for contributory negligence.

RailCorp appealed, and the Court of Appeal found that neither RailCorp nor the driver had breached their duty of care.

Justice Basten said the trial judge's finding that RailCorp's policy "may" not be appropriate in certain circumstances was "insufficient to demonstrate a breach of duty".

Such a finding "should only be made on a firm evidential basis. That basis was absent in the present case", he said.

Justice Basten said that as the driver hadn't been instructed to take emergency action whenever he saw an unidentified object on the track, "a finding of negligence on the part of the driver was to set a standard of care well above that which was reasonable".

Justices McColl, Basten and Leeming set aside Justice Davies' decision, and ordered the injured man to pay RailCorp's costs.

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