From: Neil Foster <>
Date: 02/09/2015 06:27:13 UTC
Subject: ODG: HCA- Decisions of fact best left to trial judge

Dear Colleagues;
I have to confess, more in the interests of completeness than for any significant legal insights, I mention today’s torts decision in the High Court of Australia, Fuller-Lyons v New South Wales [2015] HCA 31 (2 September 2015) . It was also of interest to me as I have often travelled on the train in question! 
The case involved the unfortunate death of an 8-year-old boy who fell from the Sydney to Newcastle train. The main issue was determining how, as a young lad, he had been able to open the automatic closing doors designed to prevent this very eventuality. The trial judge, after considering various options, concluded that he must have inserted his body between the automatic doors when they were open at the previous station. If this were so, then some parts of his body should have been visible from the platform, and an officer of the railway whose job it was to check departing trains should have seen this. Hence the trial judge found the State Rail Authority vicariously liable for the negligence of this officer. (The officer themselves was now deceased so there was no direct evidence.)
The Court of Appeal had been persuaded that other possible explanations were available. The High Court effectively ruled that, while this was so, the Court of Appeal identified no reason for concluding that the trial judge had misdirected himself on the issue, and hence his finding should not have been disturbed.

[47]…  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[1].

[1]      Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5-6; Luxton v Vines (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, 362 per McTiernan J; [1952] HCA 19; Strong v Woolworths Ltd (2012) 246 CLR 182 at 196-197 [34] per French CJ, Gummow, Crennan and Bell JJ; [2012] HCA 5.

Those who are interested can also find a summary of the case at the excellent “Opinions on High” blog: see .



neil foster 
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Newcastle Law School
Faculty of Business and Law

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