McDonald v National Express Group Australia (Bayside Trains) Pty Ltd (ACN 087 425 287) [2021] VCC 926 (13 July 2021)

"If the steps advocated by Mr Lewis – installing a latch system – had been done, the plaintiff would not have been injured, as he would have been unable to open the train door"

Case: McDonald v National Express Group Australia (Bayside Trains) Pty Ltd (ACN 087 425 287) [2021] VCC 926 (13 July 2021)

Date of Judgement:13 July 2021

Court (Location): County Court of Victoria

Expert (for the Plaintiff): Roger Lewis, senior mechanical engineer

Solicitors: Carbone Lawyers (Plaintiff) and Transport Accident Commission (Defendant)

Legal Matter: Plaintiff suffered injury when alighting from a train at Dandenong Station.

Court Decision: Discounted by 70 per cent for contributory negligence, the plaintiff was entitled to judgment in the sum of $75,000.

Some extracts from Judge K L Bourke's comments in relation to evidence provided by expert witness engineer Roger Lewis.

Paragraph 7: Liability evidence was given by the plaintiff and engineer, Roger Lewis. The defendant called no viva voce evidence on liability and tendered some 2000-1 Bayside Train Fleet Maintenance records and other documents.

Paragraph 56: While the defendant took issue with Mr Lewis’ expertise,57 I am satisfied Mr Lewis has specialised knowledge based on his training and experience to provide opinion evidence in this matter.58

Paragraph 57: Mr Lewis is a qualified consulting engineer.59 He was involved with automotive engineering for twenty seven years at Ford. He can comment on the application of physics to the train - how it operates. While his practical experience was with Steam Rail Victoria, carriages on those trains are subject to the same physics and same principles of risk management as carriages on suburban trains.60 He had experience with risk assessments of passenger carriages operated on country networks.61

Paragraph 58: Mr Lewis gave his opinion as to the operation of the doors on a Hitachi train, having obtained the relevant documentation as to the carriage door mechanism, door faults and having discussed the operation of this type of train with two drivers who drove the train in the early 2000s.62

Paragraph 59: The defendant, a rail operator, gave no explanation why it did not call any expert evidence as to the operation of the train doors or the costs of any alternative systems. In those circumstances, I can more readily accept Mr Lewis’ unchallenged evidence.63

Paragraph 61: The primary matter Mr Lewis was asked to consider was whether there was likely to have been a fault in the train’s door closing or locking mechanism or otherwise for the door to be opened freely while the train was in motion and for the train to have been in motion while the door was still open.

Paragraph 62: His opinion, based on the assumed facts with which he was provided, was wholly and substantially based on his specialised knowledge and not ultimately really challenged by the defendant as his opinion was largely based on there being a fault and the door being easily opened by the plaintiff – a situation denied by the defendant.

Paragraph 84: Mr Lewis agreed that he wrote his report on the assumption that the train was moving, that is, when the plaintiff put part of his body, his foot, on the platform.85 He believed the door was opened as the train was moving.86 He was instructed the plaintiff was able to open the door freely and without force as the train was moving – a small amount of force would have been needed.87

Paragraph 86: Mr Lewis agreed that ultimately, his opinion went to what might have failed in terms of mechanical components and risk management based on the training material provided by the two drivers.88

Paragraph 87: When asked whether he knew of another consistent explanation with the plaintiff’s evidence, other than a fault, Mr Lewis “suspected” he would be asked whether the plaintiff forced the door open. He considered that and that was why he specifically asked the plaintiff what he heard and saw. There was no effort or force to open the door and there was no beeping – which should have happened when the door was opening and closing.89

Paragraph 88: Mr Lewis agreed where the plaintiff marked on the diagram where he fell was consistent with him being carried at least four to five carriages.90 Mr Lewis thought the platform at Dandenong was about 200 metres’ long and a carriage is about 22 metres’ long. Carriage 5 would be about 100 metres from the Pakenham end of the station.91

Paragraph 92: Mr Lewis explained the 2000-2001 Bayside Train maintenance documents showed 125 door piston or relay faults in 2001 across hundreds of carriages/thousands of doors. The 2001 data was trending at or lower the 2000 data.95

Paragraph 101: He conceded that the detailed training in place for drivers was a risk control measure but still thought it was inadequate.107

Paragraph 102: The defendant could have provided better supervision by station masters, by CCTV or improved monitoring of train arrivals and departures but he did not know the cost of those suggestions.108 He agreed the provision of side mirrors on the Hitachi trains was another control risk measure.109

Paragraph 103: No liability evidence was called by the defendant. There was no expert evidence challenging Mr Lewis’ evidence as to how the Hitachi train doors operated, the force required to open the door once the pneumatic system was in operation, the steps which could have been taken to prevent a passenger opening the door of a moving train or any difficulty introducing an alternate system of latching.

Paragraph 126: While there were a number of allegations of negligence pleaded, during the hearing, the plaintiff’s case focussed mainly on the mechanical faults which would have allowed the door to be opened easily – the pneumatic piston was likely to have failed (allowing the door to be opened without pressure) or there was a fault in the MS (with the driver seeing a solid blue light rather than a flashing one) allowing the plaintiff to open the door as Mr Lewis explained. If things are working properly, the train will not take off with the doors open.114

Paragraph 127: Further, it was alleged the driver failed to use the external mirrors. Even if the driver had a solid blue light, he would have seen the plaintiff if he used the mirrors.115 There were also deficiencies in the maintenance system of the train doors as described by Mr Lewis.116

Paragraph 137: As Mr Lewis stated, latching systems were available and in use in Europe from 1993 and in New South Wales from 1988.127 If there had been a latch, the door would not have been able to opened.128 It is a physical impediment to opening the door in the event the piston fails. It is important, because if the train is moving, the only thing that can stop it operating is a physical thing like a latch.129

Paragraph 149: However, Mr Lewis’ description of doors proven closed and the lights supported the defendant’s case. On that evidence, the train could not have started had the doors been open or not proven closed.143 The train cannot start unless doors are proven closed.144 You cannot drive off without a blue light. So, therefore, there was no fault.145

Paragraph 181: In the present case, there is evidence from Mr Lewis as to what steps could have been taken to reduce the risk of injury to the plaintiff in the circumstances. There was evidence as to what the safe system ought to have been and how such measures would have avoided the plaintiff’s injury.169

Paragraph 182: A latch opening system operated by a button, with no handle on the door, would have made it impossible for the plaintiff to have opened the door of a moving train.

Paragraph 184: There was no evidence called by the defendant that it was not reasonably practicable to have a latch system in operation at the time of the incident from a cost or other perspective. There was no explanation why this latch system was not in operation on the said date, particularly as it was able to be introduced about three years after the incident and had been in operation in New South Wales for twelve years as at the said date.

Paragraph 185: I reject the proposition advanced by the defendant’s counsel that such a system was too dangerous, particularly in an emergency. Mr Lewis was not challenged on this issue by counsel. Moreover, in the absence of expert evidence on the defendant’s part, it is not open to counsel from the Bar table to pose potential difficulties with the operation of the proposed system unsupported by expert evidence.

Paragraph 188: If the steps advocated by Mr Lewis – installing a latch system – had been done, the plaintiff would not have been injured, as he would have been unable to open the train door.

Full court report can be accessed via the Australasian Legal Institute - McDonald v National Express Group Australia (Bayside Trains) Pty Ltd (ACN 087 425 287) [2021] VCC 926 (13 July 2021)

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