Sattar v State Rail Authority of New South Wales [2001] NSWCA 44 (15 March 2001)

Last Updated: 16 March 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: SATTAR v STATE RAIL AUTHORITY OF NEW SOUTH WALES [2001] NSWCA 44

FILE NUMBER(S):

40823/98

HEARING DATE(S): 5 March 2001

JUDGMENT DATE: 15/03/2001

PARTIES:

Qamar Jahan Sattar - Appellant

State Rail Authority of New South Wales - Respondent

JUDGMENT OF: Mason P Priestley JA Sheller JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 6957/97

LOWER COURT JUDICIAL OFFICER: Sinclair ADCJ

COUNSEL:

K J Ryan - Appellant

J W Dodd - Respondent

SOLICITORS:

Chegwidden Solicitors - Appellant

Dibbs Crowther Osborne - Respondent

CATCHWORDS:

NEGLIGENCE - liability - passenger injured in exiting train - whether plaintiff was thrown from train or stepped off - trial Judge's directions to jury.

LEGISLATION CITED:

Supreme Court Rules 1970

DECISION:

Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OFAPPEAL

CA 40823/98

DC 6957/97

MASON P

PRIESTLEY JA

SHELLER JA

SATTAR v STATE RAIL AUTHORITY OF NEW SOUTH WALES

The plaintiff claimed that on 2 March 1989, as a consequence of the defendant rail authority's negligence, she fell from the train on which she was travelling. The plaintiff commenced proceedings in the Supreme Court in 1992, from where the action was transferred to the District Court.

The plaintiff claimed that she was travelling on a train scheduled to stop at Wiley Park Station, and that she was thrown off when the train did not stop but rather slowed down - with the doors open - and then sped up again. The defendant argued that the train on which the plaintiff was travelling was not scheduled to stop at Wiley Park Station and that the plaintiff in fact stepped from the moving train. The parties agreed to put the issue to the jury as a simple one of fact - if they accepted the plaintiff's account of events, the defendant was liable; but if it was found that the plaintiff stepped off the train there was no liability on the part of the defendant. The jury found for the defendant, and the plaintiff appealed on a number of grounds against the trial Judge's directions to the jury.

Held: per Sheller JA (Mason P and Priestley JA agreeing):

The trial Judge did not err in:

1. Directing the jury that the defendant would only be liable if they accepted the plaintiff's version of events, since both counsel clearly accepted the case would be put on that basis.

2. Allowing a witness to answer a question put by the jury as to what type of train he thought the plaintiff would have been travelling on. The question was a reasonable one to ask of the witness, and the plaintiff did not object to the substance of the question at trial.

3. The directions he gave as to any Jones v Dunkel inferences that could be drawn from the absence of potential witnesses for the defence. Those witnesses would have been unlikely to be able to shed much light on the incident given the lapse of time. In the absence of an objection from the plaintiff at trial, the direction did not amount to a "substantial wrong or miscarriage".

4. The way in which he summarised the defence argument that the plaintiff had given inconsistent accounts of the accident, since the evidence supported this claim. Nor did the plaintiff seek a further direction on this matter.

Cases cited:

Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lolomanaia v Rush (1996) 24 MVR 128

ORDERS

Appeal dismissed with costs.

*****

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40823/98

DC 6957/97

MASON P

PRIESTLEY JA

SHELLER JA

Thursday, 15 March 2001

SATTAR v STATE RAIL AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1    MASON P: I agree with Sheller JA.

2    PRIESTLEY JA: I agree with Sheller JA.

3    SHELLER JA:

Introduction

By her statement of claim filed in the Common Law Division of the Supreme Court the plaintiff, Qamar Jahan Sattar, claimed that on 2 March 1989 she was a passenger in a train operated by the defendant, State Rail Authority of New South Wales, which was travelling between Lakemba and Wiley Park stations. At about 10.15 am the train slowed down on approaching Wiley Park and then jerked suddenly and gained speed causing her to lose balance and be thrown out of the train. As a result she suffered severe personal injuries, loss and damage. She sued the defendant for negligence.

4    In her particulars of economic loss she claimed that at the date of the accident she was employed at Deans Island and Asian Food Spice Centre at Harris Park as a shop manager and was receiving a net weekly wage of $500. As a result of her injuries and disabilities flowing from the accident, she was unable to continue in such employment and claimed economic loss of $500 per week.

5    In the Part 33 particulars among the alleged injuries and disabilities the most serious was brain damage. The defendant denied the plaintiff sustained any injury, loss or damage arising from any negligence by the defendant.

6    On 24 September 1997 the proceedings were transferred to the District Court where the particulars of injuries, disabilities and loss were significantly expanded.

Trial and Appeal

7    The trial took place in Sydney before His Honour Judge Sinclair QC and a jury between 21 and 25 September 1998 and on 28 September 1998 when the jury returned a verdict for the defendant.

8    The plaintiff filed an amended notice of appeal containing nine grounds. The third, fourth and fifth grounds to the extent to which they are not covered by other grounds were not pressed. The plaintiff sought leave, which the respondent defendant opposed, to add a new ground 10.

9    Before coming to the grounds of appeal, which, with the exception of ground 10, assert various misdirections in the summing up to the jury, two matters should be mentioned. First Mr Foord QC, who appeared for the plaintiff at the trial, did not complain about or seek any re-direction on the matters now relied upon as misdirections in the grounds of appeal. In Calin v The Greater Union Organisation Pty Limited [1991] HCA 23; (1991) 173 CLR 33 at 39 Mason CJ, Deane, Toohey and McHugh JJ said:

"Notwithstanding the absence of a request for a redirection, the Court of Appeal has power to order a new trial on the ground of misdirection or on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury if it appears to the Court of Appeal `that some substantial wrong or miscarriage has been thereby occasioned'; Supreme Court Rules (NSW) Pt 51 r16(1)(a) and (c) [see now Pt51 r23(1)].

Hence, according to the rule, as under the general law, there is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's discretion."

10    Secondly, at the trial counsel for both parties agreed that if contrary to the plaintiff's claim the facts were that the train was not scheduled to stop at Wiley Park and the plaintiff stepped off the train while it was moving, there was no liability on the part of the defendant. The price for this agreement was that the defendant did not rely on contributory negligence if the facts were as the plaintiff alleged.

11    The discussion which led to this agreement began on Friday, 25 September 1998 with the following interchange:

"HIS HONOUR: In relation to liability in this case, I would assume the plaintiff's case is simply this: That she was riding in a double decker train. When it came to the area of Wiley Park, it slowed down and the doors opened. In those circumstances, she thought she could get out but then the train jerked and went off with the doors open again. That is the substantial factual background, isn't it?

McMANAMEY: Yes your Honour.

HIS HONOUR: So we are not at all concerned with maintenance and all that?

McMANAMEY: No your Honour, there is no evidence about those sorts of matters."

Mr McManamey was junior counsel for the plaintiff.

We were told that counsel for the defendant addressed the jury before the matter was adjourned on that date.

12    On Monday, 28 September 1998 the following further interchange took place:

"HIS HONOUR: ....tell me one thing, I was thinking over the weekend, Mr Dodd [the defendant's counsel both at trial and on this appeal] you've made a reference to contributory negligence in the course of your addresses. Is it really a case where contributory negligence is an issue? I thought it was all duck or no dinner, if that's a permissible--

DODD: Yes your Honour and I think I put that to the jury that is if you - I put it as a scenario only.

HIS HONOUR: You should have said if there was some other scenario, she still stepped out and it was all her fault, something like that, but I just wondered aren't we just confusing it by talking about contribo?

DODD: I would have thought so your Honour unless what I had to deal with your Honour is a potential submission by my friend. I don't think he's going to make it but I'll have to deal with it.

HIS HONOUR: We'll leave it there for the moment but I was roughing out some short written questions to put to the jury.

FOORD: Your Honour would it help if I put a formal submission that there is no evidence of contributory negligence if the plaintiff's case is accepted.

HIS HONOUR: Yes that's one way of doing it but then we've got to go into it a bit more carefully. Let's leave it on the line for the moment, hanging on the line until the addresses are completed then I'll come back to it but that's my feeling it is not really a case where contributory negligence is an issue but least [sic - lest] I be wrong I'll leave it until the end of both counsels addresses.

DODD: If my friend concedes that his option B that the plaintiff stepped off the slowing moving train that wasn't going to stop at Wiley Park. If he accepts it in that situation there is no liability on the part of the railways, then I would not suggest there was contributory negligence for scenario A which is the plaintiff's case. That is the only basis that I raised your Honour.

HIS HONOUR: What do you think about that Mr Foord?

FOORD: I think that's right, the case would fail altogether if you don't accept the plaintiff's case.

HIS HONOUR: You either accept the plaintiff's story or you don't.

FOORD: We've got to be realistic your Honour I can't run away from that.

DODD: If my friend makes that concession your Honour there's no aspect of contributory negligence, it is as your Honour outlined, it's either A or B you either accept it or you don't.

FOORD: If a direction in those terms were given your Honour I would not seek an alteration in it.

HIS HONOUR: Well should I tell the jury when they come in that although counsel for the defendant did mention the words, the concept of contributory negligence, it is not a concept that is applicable to this case it is to use my phrase, all duck and no dinner.

FOORD: I'm content your Honour for you to lay it right on the line to them.

HIS HONOUR: I think that's the best way to do it.

DODD: Thank you, your Honour."

13    The jury were then recalled and the trial Judge told them:

"Counsel for the defendant yesterday, at the end of his remarks on liability, mentioned a concept of contributory negligence. I think he said if she stepped off a moving train, whatever train it was, that there would be evidence of contributory negligence and she was the author of her own misfortune and therefore not entitled to damages. I'm not arguing with that - the general proposition. But contributory negligence is a concept that is not really applicable to the circumstances of this case.

.....

The bottom line is this, both counsel agree that the issue on liability in this case, although I'll have to give you a little direction as to the law because I must do that otherwise three wise men elsewhere will say I didn't sum up properly, but the real issue is this, if you accept the plaintiff's case as to how it happened, that is abundant evidence that the defendant was negligent. If you don't accept it then there is no negligence. You've got the two versions and counsel agree. Look it is quite simple, if you accept the case she has proved her case in negligence. If you don't accept the case there is a verdict for the defendant. Now that is the ultimate in simplicity isn't it and I think I'm right. Do I truly reflect what we have talked about for a few minutes?

DODD: Yes your Honour."

Mr Foord then began his address to the jury.

Grounds of Appeal

14    The grounds of appeal relied on were as follows:

1. His Honour erred in his direction to the jury as to law on the issue of liability by the direction: `That is the first issue you have to determine and so it is for you to decide whether you are satisfied, on balance of probability, that the accident happened in the way the plaintiff said it happened. If it did not, that is the end of the case and you do not go on to damages'.

2. His Honour erred in law by his direction to the jury as to the issue of inferences by the direction: `My advice to juries, but it is a matter for you, is decide what you do except (sic) sweep everything else away and operate on the evidence you do have'.

6. His Honour misdirected the jury in that he put the defendant's case to the jury (page 6/7) on the alleged inconsistency between the plaintiff's evidence and the prior histories given to Mr Romeo the station master, Dr Sue and the Canterbury Hospital in such a way that the jury could have understood his Honour to be directing them that those prior histories were in fact inconsistent with the plaintiff's sworn evidence.

7. His Honour erred in law in failing to direct the jury that properly understood in the circumstances of the plaintiff's case the histories given to Mr Romeo, Dr Sue and Canterbury Hospital were capable of being construed as consistent with and supportive of the plaintiff's sworn evidence.

8. His Honour misdirected the jury on the proper effect and weight of the ruling Dunkel and Jones in respect of the absence of the train guard and driver as witnesses in that his Honour effectively emasculated his ruling in two ways: firstly, by directing the jury (page 8.7) in the following way:

`I always say to juries basically operate on the evidence you have'.

And secondly by broadening the facts relevant to the consideration of the rule to include the absence of the plaintiff's economic witness (page 9.2) and the plaintiff's credit (page 9.5) in such a way as to off set or balance out the absence of the train guard and driver in evidence on the issue of liability and nullify the effect of his Honour's prior ruling.

9. His Honour erred in law in directing the jury that the issue of liability was identical to the issue of whether the accident happened in the way that the plaintiff said that that if it did not that was the end of the plaintiff's case (page 10.3) and failing to direct the jury that there was evidence (Mr Ahmad - page 74 and Mr Khan - page 92) that whether or not the accident happened in the way the plaintiff said and regardless of how the plaintiff came to be outside the train, she had suffered a head injury between the time when the doors opened and coming in contact with the platform at a time when the train was not stationary which could only mean, if the evidence was accepted, that the defendant was negligent.

10. That his Honour erred in law in allowing into evidence an inadmissible question from a juror which resulted in an answer causing irremediable prejudice to jury deliberations.

15    The short summary the trial Judge gave of the plaintiff's case on 25 September 1998 which I have quoted, sufficiently indicates that she claimed she was riding in a double decker or silver train with doors which were intended to be opened automatically when the train stopped at a station, to enable the passengers to alight, and for obvious safety reasons were closed before the train departed. The plaintiff's case was that she had boarded a silver double decker train at Circular Quay station believing from what she heard and saw at the station that she had boarded a train scheduled, after stopping at a number of intermediate stations, to stop at Lakemba, Wiley Park and Punchbowl before terminating at Bankstown.

16    Such a train was scheduled to leave Circular Quay at 9.37 am and stop at Wiley Park at 10.11 am. Another train was scheduled to leave Circular Quay at 9.49 am and, without stopping at either Lakemba or Wiley Park, terminate at Punchbowl at 10.20 am. There was some evidence that the train scheduled to leave Circular Quay at 9.49 am was not a silver double decker train but a red single deck train without doors capable of being automatically or electrically closed during the journey, known colloquially as a "red rattler". Had the plaintiff been on the red rattler departing Circular Quay at 9.49 am, the doors would not have been automatically closed during the journey and the train would not have made a scheduled stop at Wiley Park. The plaintiff's case was, and her evidence was to the effect, that she was not travelling on a red rattler.

Grounds 1 and 9

17    The passage from the trial Judge's direction referred to in ground 1 must be understood in the context of what his Honour had said earlier to the jury, before counsel for the plaintiff addressed, about accepting or not accepting the plaintiff's case as to "how it happened", and in the context of his summing up. His Honour said that if the plaintiff's case was accepted there was abundant evidence that the defendant was negligent. If the plaintiff's case was not accepted there was no negligence. No one suggested to the trial Judge that this did not accord with the agreement reached between the party's legal representatives. Quite clearly it did. The benefit for the plaintiff was that the jury was not to be confused by any submission about contributory negligence, with the possibility that some deduction would be made on that account. The jury had to deal with the straightforward case of whether to accept what the plaintiff and the two eye witnesses she called, Mr Ahmad and Mr Khan, had said in evidence about the way she fell from the train.

18    An alternative case that the train doors were open as the train was moving into Wiley Park station and that the plaintiff attempted to alight while the train was still moving and fell and suffered injury, raised difficult questions of contributory negligence and involved the plaintiff putting to the jury a case which she and the eye witnesses had denied in evidence. Furthermore, this case was the defendant's case only in the sense that the plaintiff had made statements consistent with the conclusion that she had attempted to step from a moving train. No doubt experienced counsel acting for the plaintiff at the trial chose on her behalf and instructions to take the all or nothing approach. There is no injustice to the plaintiff in keeping her to that choice. There would be a considerable injustice to the defendant in permitting the plaintiff now to withdraw from it. Despite Mr Ryan's powerful urgings that this alternative negligence case should have been left to the jury, whatever counsel had agreed, I am not persuaded that that is so.

19    Ground 9 ignores the agreement counsel reached about how the plaintiff's case should be put to the jury. It follows from what I have said about ground 1 that this ground also fails.

Ground 10

20    In the oral argument this ground became a central feature of the appeal. The question complained of was asked of Mr Romeo, the station master at Wiley Park, by a juror through the trial Judge. Mr Romeo had been cross-examined by the plaintiff's counsel about the two scheduled trains to which I have referred, the one that stopped at Wiley Park and terminated at Bankstown on which the plaintiff said she thought she was travelling, and the other which was not scheduled to stop at Wiley Park but terminated at Punchbowl. The point of the cross-examination was to try and establish that the plaintiff must have been on the train scheduled to stop at Wiley Park.

21    In the course of re-examination, Mr Dodd tendered a report dated 18 June 1997 prepared for the defendant by H & D Cowling Pty Limited, specialist engineering consultants. In s3 of that report, Mr Hugh Cowling indicated that over a period examined from late 1988 through to 1990 Run 307E, the service not scheduled to stop at Wiley Park but to terminate at Punchbowl, had been operated by a double decker train on only one occasion. Other than on that occasion the service had been operated by a red rattler. Mr McManamey objected to this part of the report but it was admitted in evidence and its admissibility has not been challenged in this appeal. On 2 March 1989 Mr Romeo had made a station diary entry "307 Run 10.18 am". The effect of the entry was that that train passed through Wiley Park at that time but did not stop.

22    After the tender of the report and while Mr Romeo was still in evidence, the trial Judge was handed eight questions from the jury. The trial Judge ruled that question 8 was not admissible. His Honour then put the other questions to the witness. The trial Judge asked: "What type of train do you believe that one was, the 10.18 train? Are you able to tell us with any degree of confidence whether it was what we would call a red rattler?" Mr McManamey said: "I think I have to object to the question in that form. His belief is neither here nor there. The question is whether he saw the train and knows." (emphasis added) Despite that objection, the witness answered: "I did not see that train on that particular day but usually that run there is normally 90 per cent and probably more, is usually a red rattler at that particular year, but I did not see it." The trial Judge said: "You didn't see it so you can't be sure what it was The next question is could you or did you actually see the train during its progress through the station, that particular train?" The response by Mr Romeo was: "No, I did not." No further objection to the question or the answer was taken.

23    The plaintiff submitted that the defendant at the trial had sought to damage her case that she was a passenger on a silver double decker train with automatic doors by putting questions in cross-examination to the effect that the subject train was a red rattler which did not have automatic doors. The question put at the juror's request was said to be a loaded question. Because Mr Romeo had not seen the subject train the question was inadmissible and the answer caused serious prejudice to the plaintiff's case coming through the trial Judge from the jury. Moreover, the trial Judge gave no direction about it.

24    With due respect, there seem to me to be insurmountable problems with these arguments. In the first place the only objection taken to the question was as to form. No application was made to have the answer struck out or for a direction to the jury to ignore the answer. No further direction about it was asked for. There was no reason why the defendant should be denied the opportunity to try and show, by reference to timetables and practice about the operation of red rattlers in March 1989, that the plaintiff arrived at Wiley Park station in a red rattler with non-automatic doors and not scheduled to stop there, a conclusion consistent with the plaintiff's evidence that the train did not stop and that the doors were open as it passed through the station and her contemporaneous statements that she stepped or jumped from it while it was moving. In my opinion, this ground of appeal must fail.

Grounds 2 and 8

25    These grounds can be taken together. The trial Judge directed the jury as follows:

"The plaintiff, through her counsel Mr Foord says, `Well, look, there is corroboration of the story she tells'. You also take into account, particularly, what is said and done on that day, what is called contemporary actions that day and into that role falls the evidence of Dr Sue as to the account the plaintiff gave to him and of Canterbury Hospital. That evidence you have got from their records. And of course, the evidence given by Mr Romeo as to what she said when she came up to the station master's office that day. It is suggested to you quite properly by Mr Foord - he said, `Well look, where is the driver and where is the guard from this train'. You certainly have not got a driver and a guard from the train. True it is it is nine years after the event, but it is a matter that they have not been called. There is no evidence from the railways except from what Mr Romeo told you that anybody had actually spoken to the staff of this or another train about that time. In respect of that omission, if you might put it that way, is that a hole in the defendant's case? I will give you a short passage of law in relation to witnesses who are not called, because I am sure all juries wonder when they go out why people who seem to be relevant are not called in the case. The law simply says this. If a witness is not called who is one that you think would normally be expected to be called by one side or the other, then it is a fair comment to be put by the other side that you may draw an inference from the absence of that witness or witnesses that nothing they would say would assist the case of the party who had normally be expected to call them. So in this case if you are looking at the - possibly, why have not we seen the train driver and the guard, you are entitled to draw an inference that nothing either of them would say would assist the case for the defendant. But a failure to call a witness does not support the positive inference that the witness who was not called would have given positive evidence to support in this case the case of the plaintiff. Do you follow me? It is a very limited inference and I always say to juries, basically operate on the evidence you have. It is not a perfect world, particularly nine years after the event where every possible conceivable witness is always called. Because you see the defendant could make the same comment into the failure to call Mr Dean. Remember Mr Dean of that company Dean and something Spice Company? According to the plaintiff, he is the fellow who took her on part-time for a while and then five days later said, `Right, you have got the job of manager', I think it was, `of the store'. And at that time in fact gave her a letter saying so. The defendant has made quite some point about those letters being fakes and that that in itself really goes to the credit of the plaintiff.

So be careful first of all of any inference from a person who is not called is fairly limited to the inference that person is unlikely to say anything that would assist the case of the person who expects them to be called. But it does not go to a positive inference. And also, there you are, you have got two people on one side on one another just as quick as a flash you can see who are missing witnesses and liable to such comment unless their absence is explained. Well, there is no specific explanation about the driver and guard of the train except that Mr Romeo tells you in broad terms they made all sorts of inquiries and did not turn up any witnesses. But that seems to be on the platform. And then by the same token not a word has been said about why Mr Dean did not come along here, seeing really he is the linchpin of the plaintiff's case on great wage loss. But do not speculate on what people might or might not have said. My advice to juries, but it is a matter for you, is decide what you do except sweep everything else away and operate on the evidence you do have. Weigh up that evidence remembering that in respect of each and every witness......." (emphasis added)

26    The trial Judge obviously thought that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 direction should be given. To the extent that the trial Judge gave one, the direction was undermined by his advising the jury to sweep everything else away and operate on the evidence "you do have". If the jury wondered why the driver and guard of the train in which the plaintiff was travelling were not called, the Jones v Dunkel direction given allowed the jury to infer that the evidence of the driver and the guard would not assist the defendant's case. But the trial Judge advised the jury to ignore the absence of the two witnesses and as a result the direction he had given.

27    Another point counsel for the plaintiff made was neatly summarised in the judgment of Clarke JA in Lolomanaia v Rush (1996) 24 MVR 128 at 131:

"During the course of his judgment Abadee J observed that the respondent had not given evidence and that it was legitimate for him to infer that she would not have been able to assist her case. But that, as his Honour put it, was `the end of the inference'. It is submitted that his Honour failed to appreciate that the principle in Jones v Dunkel permits the court to draw more easily available inferences adverse to the party who failed to call available evidence, including an inference of negligence. The submission is, in substance, correct. So much appears from the statement of Kitto J at CLR 308:

`that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.'

The same point was made by Menzies J with particular reference to inferences of negligence and causation. His Honour first set out the relevant portion of the answer given by the trial judge to a question put by a juryman as to the significance of the fact that the defendant did not call evidence at CLR 312:

`This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff's evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant.'

Having indicated that that was incomplete his Honour said at CLR 312:

`In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference'."

The plaintiff submitted that the trial Judge failed to direct the jury that the plaintiff's evidence, which might have been contradicted by the driver or guard of the train, could be accepted more readily because they failed to give evidence, if the jury thought there was no sufficient explanation for their absence.

28    One of the problems in the present case is that according to the evidence of Mr Romeo, the station master at Wiley Park, the plaintiff had told him she "fell off the train" and when he said to her "the last train did not stop here", she said "I know but the train slowed down and I went to get off". In another account the station master said that she had told him "the train slowed down and she had to get off at Wiley Park and she just jumped and got off the train". When Mr Romeo was asked whether he obtained any other information as to whether there were any other witnesses for the plaintiff's injuries, he said "Yes, I asked did anybody see her fall off the train and she said no". Mr Romeo also gave evidence that "if a lady falls off the train, the train does not move from the platform until the guard of the train actually comes and tells me". He said that he investigated "with the trains that did go to Bankstown and no guards reported any of those incidents that a lady fell off the platform at Wiley Park." He said "The trains that you mentioned that went to Bankstown, I have checked with Punchbowl and Bankstown stations and there was [sic] no reports of any ladies falling off at Wiley Park."

29    According to Mr Romeo's entries in the station diary, the plaintiff came to the booking office door at about 10.45 am and requested attention. When Mr Romeo asked her what had happened she said that "she fell off the train". Mr Romeo's note continued:

"307 run 10.18 am the train that lady fell [sic] did not stop at Wiley Park but because the train was going at a slow speed that lady advised me that she jumped off while the train was moving.

Please note I did not or any other persons witnessed this accident."

30    Counsel did not suggest to Mr Romeo that he had been told that the plaintiff had been thrown out of the train when the train made a sudden jerking movement. It is not clear when the defendant first learnt that this was the plaintiff's case. The statement of claim in the Supreme Court was filed on 16 April 1992, three years after the event. The parties had agreed that the plaintiff succeeded if her evidence was accepted that she was in a silver double decker train scheduled to stop at Wiley Park which slowed down as it approached the station and then jerked suddenly and gained speed causing her to lose balance and be thrown out of the train.

31    I am not persuaded that, in the circumstances of this case, it should be presumed that either the driver or the guard, asked about the event many years after its occurrence and with no contemporaneous notice of the allegation, would be able to throw any light on the plaintiff's case that the train, after slowing down on approaching Wiley Park station, then jerked suddenly and gained speed. Nor am I persuaded that the evidence did not provide sufficient explanation of their absence. Senior counsel for the plaintiff did not seek any redirection. To my mind there is no doubt that if, as his Honour thought, it was appropriate to give a Jones v Dunkel direction the complete direction should have been given and should not have been watered down by a suggestion to the jury that they could ignore it. However, no point about this was taken at the trial. That being so, and in all the circumstances, I do not think to use the language of Pt 51 r23 of the Supreme Court Rules 1970 "some substantial wrong or miscarriage has been thereby occasioned."

Grounds 6 and 7

32    The trial Judge said in the course of summing up:

"The defendant, it is implicit in what I said, does not deny that it is subject to that duty of care but nevertheless it strenuously denies there was any negligence on its part and it asserts, quite frankly, this claim is false, it did not happen that way. In support of that assertion that it is a false claim for example and I do not go into every detail, they say, `Look, that is not the story the lady told to Mr Romeo, the stationmaster. It is not the story she told Dr Sue who she saw a little later that day. It is not the story she told to the Canterbury Hospital when she went along there later in the day and that you will be unable to be satisfied in the light of those immediate facts that her story is true.' In the course of the case, the defendant refers to other facts upon which it based its submission that it just cannot accept that story. It is highly unlikely in the circumstances. For example, it says - would a lady be lying unconscious on the platform for five or ten minutes as she described. And the defendant refers to the two letters from the company by whom she says she was already engaged - they had agreed to employ her permanently - which he submits to you must be a fake because the letterhead did not come into existence, he submits on the evidence before you, until months later, and that that part of it relates to a substantial part of her claim wherein she asserts that because of her continuing injuries and disabilities, she has been unfit to work over the past nine years and claims a substantial sum in the future."

33    I have already referred to the evidence of what the plaintiff told Mr Romeo. According to the report of Dr Richard Sue of 24 May 1989 headed with the plaintiff's name:

"The above patient came to see me on 2nd March 1989 and gave the following history:

On 2nd March 1989, at approximately midday, she got off a slowly moving train at Wiley Park station. She fell and hit the back of her head, hands and hurt her lower back. She felt dazed and dizzy but was not knocked unconscious.

....

When she came to see me on 14 April 1989, Mrs Sattar told me that she was confused when she gave me the history on 2 March 1989 as to the cause of her fall.

She (on 14.4.89) alleges that the sequence of events leading to her fall on 2.3.89 was:

As the train was slowly moving into Wiley Park Station, she was standing near the train door. As the train door opened, the train suddenly took off, she felt a jerk, bumped her head and was knocked out and she didn't remember what happened after."

34    According to progress notes from the Canterbury Hospital which the plaintiff attended on the date of the accident in the afternoon "Patient stepped out of train when she fell and landed on her buttocks 10.30 am also hit head."

35    Another note at the Canterbury Hospital made on the same day was: "Apparently she had a bad fall this morning at the Wiley Park railway station. She managed to struggle back home but collapsed when she got in. Local GP Dr Richard Sue came and saw her at 11 am and gave her anti-tetanus injection and left her at home."

36    The trial Judge did not misdirect the jury in the way he described the defendant's case on the inconsistent accounts given by the plaintiff. No further direction was sought. Counsel for the plaintiff may well have thought that the matter was best left alone particularly as the transcript we have of his final address to the jury contains no reference to the histories apparently given to the Canterbury Hospital and to Dr Sue. Mr Ryan submitted that there was some evidence to suggest that a neighbour of the plaintiff, Mrs Mumtaz Ismail, who gave evidence, had accompanied the plaintiff to Dr Sue's rooms and provided the history to Dr Sue. But the terms of Dr Sue's report state quite plainly, as one would expect, that he obtained the history from the plaintiff. Dr Sue was not required to give evidence. It was quite open to the jury to conclude, as the defendant had submitted, that the plaintiff's account of what happened to her given in evidence was inconsistent with the accounts she had given to the station master, the hospital and the doctor who treated her on the day of the accident. If counsel thought some further direction should be given he did not ask for it.

37    In my opinion grounds 6 and 7 should be rejected.

Conclusion

38    This case was fought on a simple basis. The plaintiff gave an account of being thrown onto the platform at Wiley Park through the open door of a moving train scheduled to stop there. She said this was caused by the jerking movement of the train as it appeared to be slowing to stop and then gathered speed. The defendant put the plaintiff to proof of her story. The parties agreed that if the jury accepted the plaintiff's story she should succeed. If they did not believe her story she failed. Clearly the jury did not believe her story. The appeal is based almost entirely on what are said to be misdirections by the trial Judge in summing up to the jury. None of these was raised by senior counsel with the trial Judge. No redirection was sought. The remaining ground is based on a question, the only objection to which was as to form. No application was made to have the answer struck out or for the jury to be directed to ignore the answer.

39    The only ground of appeal raised which has any substance is that about his Honour's Jones v Dunkel direction. The others relate to matters which should have been dealt with by counsel when addressing the jury. If there was in any of those other grounds a misdirection counsel did not mention it. Nor was any redirection sought on the Jones v Dunkel point. In my opinion, none of the grounds of appeal as argued suggests that any substantial wrong or miscarriage has been occasioned. Accordingly, the appeal should be dismissed with costs.

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LAST UPDATED: 16/03/2001