Caterson v Commissioner for Railways

In October 1965, Mr Caterson leapt from a moving train in a desperate attempt to be reunited with his 14-year-old son, Brian, who was left behind on the platform. This case considered whether Mr Caterson’s dangerous act, in the agony of the moment, constituted contributory negligence.

The facts surrounding Mr Caterson’s decision to leap from a moving train are relatively straightforward. Mr Caterson and his son had driven to Casino Railway Station in New South Wales to drop-off a family friend, Mr Mackie, who wished to catch the Brisbane-Sydney express train. By 1965, the railway line between these two cities was well-established.

The Brisbane-Sydney Railway Corridor

It was not until the mid-1800s that railway travel began to look advantageous in Australia. Prior to the gold rush, Australia had neither the population, nor the economic productivity, to justify the construction of railways. However, as the promise of gold lured hundreds of thousands of people from around the world to New South Wales and Victoria, the advantages of railway travel became clear, with the alternatives for traversing Australia’s vast distances—including horse, camel, bullock, and foot—growing far less attractive with each passing day.¹

The first railway to link Sydney and Brisbane was completed in 1889. The final connection between these cities came with the opening of the Hawkesbury River Railway Bridge which connected the Central Coast of New South Wales with the northern outskirts of Sydney. At the time of its construction, it was the longest bridge in Australia and the fourth longest bridge in the world.² The bridge was also the final section of track needed for a continuous rail link between the colonies of Queensland, New South Wales, Victoria, and South Australia. Its construction attracted international media attention. On the occasion of the bridge’s opening, Sir Henry Parkes—Australia’s ‘Father of Federation’—observed:

“I feel that the toast entrusted to me represents an event superior to anything that has ever occurred in the history of these great colonies. We are, without any exaggeration of language, assembled here to celebrate an occurrence which has more interest, especially in anticipation of the future, than anything else that has taken place in our history. We have formed a communication by railway which may be said to bind the whole population of Australia in one chain…” ³

Prior to the bridge’s construction, rail passengers were required to transfer to a paddle-steamer to cross the Hawkesbury River. The journey took nearly two hours and, in addition to being a significant impediment to efficient railway travel, the paddle-steamer often had to traverse dangerous waters.⁴

By 1965, Mr Mackie and his fellow passengers on the Brisbane–Sydney express train were lucky enough to enjoy uninterrupted rail travel between these two cities.

A Father Leaps from a Moving Train

Upon arriving at Casino Station, Mr Caterson and his son accompanied Mr Mackie to Casino Station’s only platform. Opened in 1930, this railway station is heritage-listed and serves the town of Casino in the Richmond Valley Shire. The area is known for its cattle and crop growing industries, with Casino positioning itself as Australia’s beef capital.⁵

When the Brisbane–Sydney express train pulled into the station, Mr Caterson decided to help his friend board the train. He was ten years younger than Mr Mackie (who was approximately sixty-seven years of age) and was more than happy to help his friend carry his suitcase on board. Mr Caterson placed the suitcase on the carriage’s luggage rack, shook hands with Mr Mackie, and then proceeded to walk toward the door of the carriage. When he got to the door, however, he noticed that the train had started to move without warning. A panicked Mr Caterson did not think to find a communication cord which, if pulled, would have stopped the train. Rather, his thoughts were consumed by images of his 14-year-old son being left alone on the platform, a long 40 miles from their home in the small town of Bangalow. In the agony of the moment, he therefore decided to leap from the moving train. Holding onto a bar near the door of the carriage, Mr Caterson landed on the platform and decided the safest option was to run along with the train for a short while until it was safe to let go of the bar. Unfortunately, as the train gained momentum, Mr Caterson fell between the train and the platform. He then lost consciousness.

Mr Caterson brought an action in the Supreme Court of New South Wales seeking damages for personal injuries. He alleged that the defendant—the Commissioner for Railways—was negligent in the driving, control, and management of the train. His argument was that the defendant failed to give individuals on board the train sufficient opportunity to disembark whilst the train was stationary at the platform, given that the train had departed without any warning. The jury entered a verdict for Mr Caterson in the sum of over $37,000. The Commissioner for Railways appealed, and the jury’s verdict was set aside. Mr Caterson then appealed to the High Court of Australia.

Judgment of the High Court of Australia

Is it foreseeable that a man would do something as inherently dangerous as to leap from a moving train?

The High Court first had to determine whether the Commissioner for Railways owed a duty of care to Mr Caterson. In 1932, in the well-known ‘snail in the bottle case’ of Donoghue v Stevenson,⁶ Lord Atkin laid down his famous ’neighbour principle’: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (i.e. persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation as being so affected).

The Court of Appeal emphasised the words “likely to injure” in Lord Atkin’s neighbour principle and concluded that it could not be reasonably foreseen as “likely” that a man would do anything as inherently dangerous as to jump from a moving train, except to protect himself from a danger on the train itself. The Court of Appeal’s conclusion on this matter was, however, reversed by the High Court of Australia.

The High Court thought it was foreseeable that a person, other than a passenger, who found themselves on an express train which started to move without warning, might jump from that train. Barwick CJ held that there was a general duty of care arising in the circumstances:

“Liability must be placed on a general duty of care arising out of the circumstances that the defendant had the management of the train; that the appellant was properly upon it; that he was of a class of persons of whose presence on the train the respondent must be taken to have been aware; and that such persons would require adequate time to leave the train whilst it was stationary.”

Gibbs J agreed that the defendant should have foreseen that some persons, other than passengers, would board the train and then seek to alight from it before it resumed its journey. His Honour held that it was foreseeable that if the train started to move without warning, a person might try to jump off, whether because of the inconvenience of having to wait until the next station; because they thought the speed of the train enabled them to do so without risk of injury; because they wished to avoid the embarrassment of pulling the communication cord; or simply because, in the agony of the moment, it seemed like the only option.

On the issue of breach of duty, the High Court supported the jury’s finding that the inconvenience to the defendant of allowing the train to stop a little longer at the platform—so as to allow persons sufficient time to alight if they wished to do so—in addition to the expense of providing a warning of the train’s departure, were outweighed by the gravity of the consequences if a person did not use the communication cord and attempted to jump from the train if it suddenly started to move. Breach was therefore established.

The High Court also upheld the jury’s finding that Mr Caterson’s actions were ’the very kind of thing’ likely to happen as a result of the defendant’s negligence. In doing so, it rejected the defendant’s contention that Mr Caterson’s decision to leap from the train constituted a novus actus interveniens (an intervening event) which severed the chain of causation between the defendant’s negligence and Mr Caterson’s injuries.

Does leaping from a moving train constitute contributory negligence?

With the elements of negligence established, the defendant attempted to rely upon the defence of contributory negligence. At the time when Mr Caterson sustained his injuries, contributory negligence was a complete defence in New South Wales, meaning that if the defendant succeeded in arguing that Mr Caterson had acted without due care for his own safety, Mr Caterson’s contributory negligence, however slight, would provide the Commissioner for Railways with a complete defence to the negligence action.

The defence of contributory negligence is focussed on the plaintiff’s behaviour which either contributes to the cause of the accident, or results in an injury which is made more serious than it otherwise would have been. It has been held, however, that where the plaintiff, acting in the agony of the moment, unwittingly takes the wrong course in seeking to extricate himself or herself from a position of danger, contributory negligence will not be established.⁷ This is known as the ‘sudden emergency rule’, ‘agony of the moment rule’, or the ‘doctrine of alternative danger’. There is a clear rationale behind this rule: the defendant has placed the plaintiff in an emergency situation and, as such, should not be allowed to complain that the plaintiff has acted unreasonably in response.⁸

The defendant argued that the doctrine of alternative danger has no application unless the plaintiff has been placed in a position where he or she has to choose between two dangers. Here, Mr Caterson was forced to choose between a danger—leaping from the moving train—and an inconvenience—being carried approximately 80 miles to the next station. It was submitted that it is never reasonable to expose oneself to a risk of injury, merely to avoid an inconvenience, however great that inconvenience may be.

In the High Court of Australia, Gibbs J rejected this argument. His Honour held that this submission was inconsistent with the 1875 decision of Robson v North Eastern Railway Company.⁹ In that case, a train pulled into the small station of Benton in the North East region of England. The door of the plaintiff’s carriage was beyond the end of the platform. The plaintiff, whose hands were full with parcels, opened the door and waited on the step for assistance. When nobody came to assist, the plaintiff, fearing that the train would depart, attempted to alight by herself. In doing so, she fell down by the side of the carriage and was injured. The court found that the plaintiff had waited a reasonable amount of time for assistance and was justified in attempting to alight herself, even though she had risked injury to avoid a mere inconvenience.

According to Gibbs J in Caterson, the question therefore, is not whether the plaintiff has exposed themselves to a risk of injury merely to avoid an inconvenience, but rather, whether, upon weighing that risk with the degree of inconvenience to which the plaintiff will be subjected, it can be concluded that the act of taking the risk is unreasonable. Whilst it would be negligent to jump from a train travelling at full speed simply to avoid the inconvenience of being carried to another station, Gibbs J held that in Mr Caterson’s case, the train had not yet attained any great speed. The jury was also justified in considering it not unreasonable for Mr Caterson, in the agony of the moment, to attempt to leave the train immediately rather than to waste precious time looking for a communication cord:

“[T]he jury was entitled to conclude that the train had not attained any great speed when the appellant jumped from it. … They also had to consider the question whether the appellant failed to take reasonable care for his own safety by leaving the train instead of pulling the communication cord, assuming one to have been provided. In this connexion they could have considered the appellant’s evidence that he jumped instinctively and could have concluded that in the stress of the moment it was not to be expected that he would think of the possibility that the carriage would be provided with a communication cord or, alternatively, that it was not necessarily unreasonable for him to endeavour to leave the train immediately rather than to spend time looking for a communication cord, for if there had proved to be no cord the lapse of time would have increased the hazard of leaving the train, which was gaining speed. Bearing all the circumstances in mind I find it impossible to conclude that the jury was bound to find that the appellant’s injuries were caused or contributed to by any negligence on his own part.”

The decision in Caterson demonstrates that the doctrine of alternative danger can be extended to situations of significant inconvenience. It is important, however, to properly weigh the degree of inconvenience with the significance of the risk. On this point, Caterson can be contrasted with the earlier case of Adams v Lancashire & Yorkshire Railway Company.¹⁰ In that case, the plaintiff was a passenger on a train owned by the defendant railway company. During the journey, the train door flew open on four occasions as a result of the defendant’s negligence. It was possible for the plaintiff to avoid danger by sitting further inside the carriage, away from the door. However, on each occasion, the plaintiff decided to shut the door. On the fourth occasion, the plaintiff fell out of the moving train and was injured. In contrast to the High Court’s decision in Caterson, the Court of Common Pleas found that the plaintiff had taken a disproportionate and unnecessary risk and was therefore contributorily negligent. The inconvenience that the plaintiff would have suffered if he had not attempted to shut the door was slight compared to the significant risk of danger incurred in attempting to do so.

The Desperate Father Behind the Perilous Act

Plaintiffs who leap from moving trains do so at their own peril, and the question of whether in doing so, they have acted without due care for their own safety, will ultimately come down to the court’s weighing of the potential danger with the degree of inconvenience. Today, more than half a century since Mr Caterson leapt from the Brisbane–Sydney train, contributory negligence operates as a partial defence in many jurisdictions,¹¹ meaning a plaintiff’s partial responsibility for their own injuries will no longer defeat their negligence action all together.

Fortunately for Mr Caterson and his young son Brian, the High Court of Australia was willing to consider the human being behind the perilous act: a desperate father, perhaps too embarrassed to pull the communication cord, who, in the agony of the moment, believed his only option was to leap.