Symes v Mahon

An Unwelcome Visitor

On a Friday evening in September 1921, school teacher William James Mahon and his wife were relaxing in their home in the country town of Lower Light, South Australia. There was an unexpected knock on their front door and William found Constable Symes standing outside their house. The Constable informed William that there was a warrant out for his arrest for having failed to maintain an illegitimate child. The child’s mother was a woman named White who lived in Adelaide. William told the Constable that he was not the father of any illegitimate children, at which point Constable Symes informed William that he had a photograph of him at the police station. When William asked if the man in the photograph had his hair parted down the middle, Constable Symes responded: “yes; you’re the man alright”. Constable Symes then admitted to William that the name ‘Michael Hillary McMahon’ was written on the back of the photograph, but emphasised that the police were not taking any notice of this name.

The Constable told William that he was required to meet him at Two Wells Railway Station the following morning and accompany him by train to Adelaide. Feeling like he had no choice in the matter, William agreed. He was given the option of purchasing his own train ticket or travelling for free but having to accompany Constable Symes on the train. William selected the former option, stating he did not wish for people to know that he was under arrest.

The following morning, William and his wife travelled to Two Wells Railway Station where William purchased two train tickets to Adelaide.

A Brief Interlude: The Adelaide–Darwin Rail Corridor

Two Wells is a town situated approximately 40 kilometres north of Adelaide’s CBD. The journey along the Adelaide-Port Augusta railway line from Two Wells to Adelaide that William and his wife, accompanied by Constable Symes, made in September 1921, forms a part of the much longer Adelaide–Darwin rail corridor. Today, the experiential tourism train, The Ghan, travels along this 2,979 kilometre route.¹ One of the world’s most famous passenger trains, The Ghan reportedly takes its name from the camels and camel drivers who were brought to Australia from Afghanistan in the late 19th century to help find a way to reach Australia’s harsh interior.²

Throughout its nearly 100-years of operation, there have been a few notable incidents on The Ghan. Perhaps the incident with the most memorable set of facts occurred in 2009 when Chad Vance, a 19-year-old American tourist, clung to the outside of The Ghan for approximately two hours as the train travelled 200 kilometres across the Australian desert at speeds of over 100km/h. The temperature was below freezing and Chad was wearing only a T-shirt. He had been locked out of the train after alighting at a scheduled stop to stretch his legs and losing track of the time. He returned to the station just in time to see The Ghan pulling away. Chad chased after the train and managed to climb aboard. He banged desperately on the windows of the first-class dining carriage for help but was ignored by his fellow passengers. With The Ghan’s next stop still three hours away, Chad would likely have died from hypothermia, or lost his grip and fallen to his death, had his screams not been heard by one of the train’s technicians who applied the train’s emergency brakes. Chad was found shaking uncontrollably and was promptly given some soup and upgraded to a sleeper cabin so he could have a hot shower following the terrifying incident.³

Trapped on a Train

Back in 1921, upon arriving at Two Wells Railway Station, William and his wife found Constable Symes sitting inside the ticket office. The Constable handed William a copy of the arrest warrant and the photograph of the man for whom the warrant had been issued. William looked at the photograph and said: “It’s not anything like me; this man wears a soft collar, and I never wore a soft collar in my life.” Constable Symes responded: “I think it’s you all right”. The three of them then proceeded to board the train to Adelaide. William and his wife were seated in one carriage, and Constable Symes was seated in another.

When the train arrived in Adelaide, Constable Symes allowed William and his wife to drop their luggage at their hotel while the Constable waited at the railway station across the road. Shortly after, the three of them boarded a tramcar to the police watchhouse. At this point, Constable Symes said to William: “You are not under arrest now. I am only taking you up for identification.” However, when they reached the watchhouse, White—the mother of the illegitimate child—was not there. Constable Symes then allowed William and his wife, once again, to return to the hotel unaccompanied. When they returned to the watchhouse later that day, they were shown into a room where White was sitting. White took one glance at William and said: “No; that is not the man; I have never seen him before." At this point, William thanked Constable Symes for ruining his holidays, before promptly departing with his wife.

Injury to Liberty: The Tort of False Imprisonment

It was not long before William decided to sue Constable Symes for false imprisonment. False imprisonment is a tort which protects a person’s right to control the use of their own body,⁴ and, more specifically, protects their right to leave a particular place.⁵ Its ‘principal function’ is to provide a remedy for injury to liberty.⁶ Importantly, for the tort to be established, the imprisonment must be against the plaintiff’s will and it must be total.⁷ This means there must be no reasonable means of escape for the plaintiff. A mere partial obstruction or confinement will not suffice.⁸ In the leading case of Bird v Jones, Patteson J observed that:

‘[I]mprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his [or her] will, whatever inconvenience it may bring on him [or her].⁹

According to William, Constable Symes had directly deprived him of his liberty without lawful justification. William’s barrister argued that Constable Symes had intended William to believe that he was compelled to do as the Constable required, and as such, William did not act voluntarily in accompanying the Constable to Adelaide. On the other side, Constable Symes argued that there was nothing in the evidence to suggest that there was ever any physical control exerted by the Constable over William.

In the Local Court of Adelaide, the jury found in favour of William and he was awarded £60 in damages. Constable Symes appealed.

The Supreme Court Decides

The Supreme Court of South Australia found that it was reasonably open to the jury to find that Constable Symes had falsely imprisoned William.¹⁰ According to Murray CJ who delivered the Court’s judgment:

“In a case of this description, where there has been no application of physical force to the person alleging imprisonment, there must be evidence of complete submission by him to the control of the other party.”¹¹

The Chief Justice held that this requirement was clearly satisfied on the facts of the case. Even though William was not physically imprisoned by Constable Symes, he was still deprived of his liberty by submission to Constable Symes’ power and authority. There was a false imprisonment when William rendered himself up to Constable Symes at Two Wells Railway Station, and when he got onto the train. The false imprisonment continued throughout the entire train journey to Adelaide. Although it would have been possible for William to alight at one of the stations that the train stopped at en route to Adelaide, William knew that Constable Symes was nearby and was likely keeping an eye on his carriage to prevent him from escaping. According to Murray CJ, although William and Constable Symes travelled in separate compartments on the train and William had even paid for his own fare, William had nevertheless completely ‘submitted himself to the defendant’s power, reasonably thinking that he had no way of escape’.¹² The false imprisonment continued when William was taken to the watchhouse upon the train’s arrival in Adelaide.

False Imprisonment on the Railways

Symes v Mahon was not the first case to consider the tort of false imprisonment in the context of a railway journey. Nearly 40 years prior, in 1882, the New York Court of Appeals in Lynch v Metropolitan Elevated Railway Co¹³ considered the case of a plaintiff who purchased a ticket for the defendant’s railway, boarded the train, but then lost his ticket somewhere on board. When he attempted to pass through the gate to exit the platform upon arriving at his destination, he was stopped by the gate-keeper. When he refused to pay for another ticket, he was arrested and detained in the police station overnight. In an action for false imprisonment, it was found that the plaintiff’s detention was unlawful. The Court of Appeals held that while a railroad company can lawfully eject a passenger from its train for refusing to produce a ticket or pay for their fare, a railroad company is not entitled to imprison passengers for the purpose of compelling such payment.¹⁴

In the United States, the question of false imprisonment also arose in the 1902 case of Ollet v Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.¹⁵ In that case, the Supreme Court of Pennsylvania considered the legal rights of a 17-year-old boy who fell while attempting to climb upon a freight train. The train’s wheels ran over and crushed the boy’s foot. The train’s crew was informed that the boy did not want to be taken to the hospital, but instead wished to wait for his father and the family physician who had been sent for. Nevertheless, the train’s crew put the boy on the train and transported him to a nearby hospital where his foot was amputated. The boy’s removal from the location of the accident and transportation to the hospital was the false imprisonment complained of. However, the Supreme Court held that there could be no false imprisonment because the crew ‘were endeavouring to act the part of the good Samaritan’.¹⁶ The circumstances called for great haste, and the crew were simply seeking to assist the boy who was in real danger and distress.

Nine years later, in Whitman v Atchison, Topeka & Santa Fé Railway Company,¹⁷ the Supreme Court of Kansas considered the tort of false imprisonment, once again in relation to an injured passenger. The 75-year-old plaintiff broke his leg while alighting from a moving train in Cherryvale, Kansas. The train had not come to a complete stop and, fearing that he would be carried past his station, the plaintiff fell hard on the platform while attempting to alight from the train. As he lay injured on the platform, the conductor approached the plaintiff and informed him that the law required him to obtain from the plaintiff a written statement. Fearing that he would be violating the law if he refused to comply, the plaintiff, suffering from his injuries and in need of medical attention, nevertheless remained there for 15–20 minutes in order to provide a statement. There was in fact no law which required a passenger to make any such statement and the plaintiff succeeded in his action for false imprisonment.

More recently, in 2010, a French businessman attempted to sue a rail operator for false imprisonment after he was trapped for five hours on a Eurostar train with no food and water, shortly before Christmas. The train had broken down inside the Channel Tunnel (which connects England and France) during the freezing winter.¹⁸ There is no record to indicate that the businessman achieved any success in his false imprisonment action.

Conclusion

100 years ago, the court in Symes v Mahon provided clear guidance that to establish the tort of false imprisonment, it is not necessary for the plaintiff to be physically detained. William Mahon had many opportunities to escape from Constable Symes, including when the train stopped at intermediate stations en route to Adelaide, and during the two occasions when he was allowed to go to his hotel unaccompanied by the Constable. Despite this physical freedom, the Supreme Court of South Australia was clear that his liberty had still been deprived by submission to the defendant’s power and control. It was this recognition of a psychological, rather than physical, imprisonment that allowed William Mahon to recover damages for the time he spent trapped on a train.