Public Transport Commission (NSW) v Perry

On the morning of 14 February 1972 at approximately 8:15AM, Mrs Perry arrived at Lindfield Railway Station in the northern suburbs of Sydney. With her weekly ticket in hand, Mrs Perry waited on the platform for the arrival of her train. Little did she know, this was not going to be her regular Monday morning commute to work. In a dreadful turn of events, Mrs Perry would soon be rendered unconscious, fall onto the track, and be struck by a train.

The North Shore Railway Line

For Mrs Perry and her fellow passengers, their regular daily commute to work was an impressive one. Opened on 1 January 1890, the North Shore Railway Line travels over one of the most iconic bridges in the world–the Sydney Harbour Bridge. Commuters enjoy spectacular views of Sydney Harbour and the Sydney Opera House as the railway carries them into Sydney’s central business district.

On 28 July 1950, there was a significant accident on the North Shore Railway Line when three trains collided between Roseville and Lindfield stations, injuring 11 people. A train being driven by 61-year-old Francis Barrett violently collided with a stationary train ahead. A few moments later, a third train approaching from the opposite direction crashed into the wreckage. Francis had recently been on sick leave and the day of the accident was his first day back on duty. He blamed the accident on an uncontrollable fit of coughing which diverted his attention away from the tracks.¹ A subsequent inquiry placed the blame for the accident squarely on Francis.²

Twenty-two years later, on the same portion of the North Shore Railway Line, it was an epileptic fit, rather than a coughing fit, that would cause Mrs Perry to be struck by a train.

Stop the Train, there’s a Woman on the Tracks!

As Mrs Perry waited on the platform with her fellow commuters to be uplifted for carriage to Sydney, she experienced an epileptic attack which rendered her unconscious. She fell onto the railway track, straddling at least one of the lines. At this point, Mrs Perry’s train had left the previous station and was fast approaching. The train driver had already applied his service brake for the purpose of stopping the train at Lindfield Station. As the train approached the platform, the driver saw an object on the line which he thought was a large piece of brown paper. He decided that the presence of the paper created no hazard and did not apply the train’s emergency brakes.

One of the commuters on the platform, Mr O’Donnell, saw Mrs Perry lying unconscious on the railway track and ran over 50 metres along the edge of the platform, waving his hands and briefcase in a frantic attempt to attract the train driver’s attention. The driver did not see Mr O’Donnell running and waving his briefcase.

As the train edged closer to Mrs Perry, the driver realised he had made a horrible mistake. Far from being a piece of brown paper, it became clear that the object on the line was in fact a woman dressed in a bright white dress with purple stripes. The driver immediately applied his emergency brakes, but it was too late. The application of the brakes was unable to bring the train to a stop in time. The train struck Mrs Perry, before pushing her forward for a short distance, causing her serious injury.

Mrs Perry brought an action in negligence against the Public Transport Commission of NSW, seeking damages for the personal injuries she sustained. In the Supreme Court of NSW, the jury returned a verdict for Mrs Perry, awarding her $90,000. The Public Transport Commission’s appeal to the NSW Court of Appeal was dismissed. The Public Transport Commission again appealed, this time to the High Court of Australia. It argued that it did not owe Mrs Perry a duty to take reasonable care for her safety because she was a trespasser on the railway line.

The Chief Justice’s Decision – Mrs Perry is a Trespasser!

Chief Justice Barwick accepted the Public Transport Commission’s submission that Mrs Perry was a trespasser. His Honour acknowledged that Mrs Perry could not have been sued in trespass because her presence on the railway line was involuntary and it is well-established that a person cannot commit an actionable trespass with an involuntarily act. However, his Honour was not prepared to accept that the Public Transport Commission owed Mrs Perry any duty of care other than that owed to a trespasser:

“No doubt [Mrs Perry] could not be said to be at fault in being overcome by the epileptic attack: that, however, is no basis for implying any right by invitation or licence to her to be upon the railway track.”

Put simply, Mrs Perry was still a trespasser for the purpose of the rules governing an occupier’s liability. As such, Barwick CJ held that the train driver did not owe Mrs Perry a duty of care to keep a proper look out. Rather, the duty owed to Mrs Perry as a trespasser was no more than ‘a duty not to be reckless to the point of inhumanity towards the person known to be at the particular place upon the land’. Here, the train driver did not know of Mrs Perry’s presence on the line until he realised that she was a human being and not a piece of paper. Significantly, Barwick CJ observed that even if the train driver had known of her presence at any earlier time, this would have made no difference because the driver’s failure to apply the emergency brakes at an earlier point in time was not ‘reckless to the point of inhumanity, however negligent it might have been not to have done so.’

The Majority’s Decision – The Neighbourly Duty to take Reasonable Care

In contrast to Barwick CJ, the majority of the High Court rejected the submission that Mrs Perry was a trespasser. According to Gibbs J:

“In my opinion a person who is lawfully upon premises, and is using the premises in an ordinary and reasonable way, becomes a trespasser only if he [or she] goes voluntarily on to a part of the premises to which the invitation does not extend: if he [or she] falls, or is pushed, on to a forbidden area he [or she] does not thereby become a trespasser.”

While Mrs Perry’s ordinary and reasonable use of the premises meant that she could not be regarded as a trespasser for the purpose of the rules governing an occupier’s liability, Gibbs J was not prepared to accept that someone whose presence on premises came about involuntarily could never be regarded as a trespasser. His Honour observed that if Mrs Perry had fallen from an adjoining tree, landed in a crashed aircraft, or was thrown onto the tracks by hoodlums, then it would be unfairly burdensome to find that the occupier owed her a higher duty of care, given that her presence in these circumstances could not have been reasonably foreseen.

Gibbs J further held that the special rules which govern the liability of an occupier of premises ‘do not in every case state exhaustively the nature of the occupier’s duty to the person who has come on to [the] premises’. This is because an occupier may also owe a general duty of care which may be higher than the duty it owes as an occupier. Here, Gibbs J referred to the High Court’s decision in Caterson v Commissioner for Railways.³ Readers can refer to our previous post for a summary of the decision in Caterson. Briefly, the High Court found in favour of a plaintiff who leapt from a train when it began to move without warning. Significantly, the High Court in Caterson did not concern itself with whether the plaintiff had purchased a ticket for the train because in any event, the Commissioner for Railways owed a general duty of care to the plaintiff.

It was on the basis of this general duty of care that Gibbs J found that the Public Transport Commission was required to take reasonable care for Mrs Perry’s safety.

On the issue of whether this duty of care owed to Mrs Perry was breached, Gibbs J held that it was open to the jury to conclude that the train driver had not kept a proper look out. Here, Gibbs J drew on the fact the train driver mistook Mrs Perry, in her white dress with purple stripes, for a piece of brown paper, as well as the fact he did not see Mr O’Donnell running along the platform and waving his briefcase.

Stephen J also found in favour of Mrs Perry on the basis of the Public Transport Commission’s ‘underlying and more general duty of care’. According to his Honour, this general duty is measured not by reference to the extent of an occupier’s invitation in relation to premises, but rather, by reference to considerations of proximity and foreseeability. On the facts of the case, this duty clearly arose, with Mrs Perry treated as the Public Transport Commission’s “neighbour” in law.⁴

On the issue of breach, Stephen J agreed that it was open to the jury to conclude that if the train’s full braking capacity had been applied at an earlier point, Mrs Perry would have escaped injury. This was supported by the fact Mrs Perry was only carried forward a short distance by the train before it come to a halt.

Mason and Jacobs JJ also held that the Public Transport Commission owed a duty to take reasonable care not to cause injury to a person in the position of Mrs Perry who had been invited onto the station platform. Their Honours were conscious of the fact that it is not uncommon for people to fall onto railway lines. They observed that even if Mrs Perry was to be categorised as merely a trespasser, a duty of care would still have arisen well before the train driver knew for certain that there was a human being on the railway line:

“If a man is out shooting on his land and something comes to his notice which would ordinarily lead to a suspicion that a human being may well be actually in the line of fire, he cannot escape liability by saying “Perhaps I had reason to suspect that something which could well be a human being was actually in the line of fire but I did not know positively that what I had observed was a human being. Therefore it was not incumbent on me to alter my shooting pattern in any way nor to take any step to negative the possibility that it might be a human being in my line of fire”.

Human Experience on the Railways: The Classic Hazard of Falling onto the Tracks

For Mrs Perry who was run over by a train whose driver thought she was a large piece of brown paper, the decision not to apply the train’s emergency brake until the driver had positively identified the object on the line as a human being had catastrophic consequences. Mrs Perry’s case highlights the underlying tension between: (i) efficiency in railway operations; and (ii) human experience on the railways. For Chief Justice Barwick, the former was given priority:

“a railway system, perhaps particularly such a system in a densely populated metropolitan area, cannot be conducted on the footing that the trains must travel at a speed and under such restraint that if at any time a person should fall upon a line, whether from a moving train or from a station platform, the train can be halted without injury to the fallen person.”

Stephen J’s judgment, by contrast, was influenced by ‘common community experience’ on the railways:

“Rail transportation has been a feature of our society for more than one hundred and twenty years and the fall from the platform, like the level crossing accident, is one of the classic hazards which every child is warned of and of which no railway authority can be unaware.” ⁵

While the driver of Mrs Perry’s train may have failed to apply his brake and avert catastrophe on the Monday morning in question, the majority of the High Court were alive to the dangers of railway transportation and, most importantly, were willing to recognise the underlying duty of care owed to the woman on the tracks.