The State of NSW has been ordered to pay more than $1.5 million in damages to a man who fell from a moving train when he was eight years old.
Corey Fuller-Lyons, now 23, sustained severe injuries when he fell from an intercity train as it rounded a bend between Morisset and Dora Creek railway stations on the Main North Line near Lake Macquarie on January 29, 2001.
The train was travelling at around 100km/h when Corey fell through the front left door of the front carriage at around 12.09pm.
According to police, the boy missed a power line, before sliding roughly 20 metres down a 3 metre embankment, sustaining severe injuries.
Despite this, Corey – described as average sized for an eight-year-old – was able to climb the embankment, walk across both tracks and climb a safety fence before being noticed by passing motorists, who alerted police and ambulance officers.
He was airlifted to Newcastle’s John Hunter Hospital where he stayed for four days.
Corey was diagnosed with a compound frontal skull fracture with missing bone and exposed dura – the membrane surrounding the brain – as well as a fractured bone in his right arm, splintered teeth, swelling around his face and multiple abrasions and lacerations over the rest of his body.
Twelve years later, in 2013, Corey sued the State of New South Wales for negligence.
It was submitted to the Supreme Court of NSW that he must have become wedged in the door of the train prior to its departure from Morisset, and that station or train staff should have discovered this before the train departed.
It was also submitted the State was negligent in failing to commission a traction interlock, which was fitted on the train but not in operation. Corey’s representatives contended the system would have prevented the train from departing Morisset while its doors were impeded from closing.
The State denied negligence.
The State contended Corey had deliberately interfered with the doors with the assistance of his brothers: he was travelling that day with Dominic, 11, and Nathan, 15.
Corey’s mother Nita Lyons said the boys, who had travelled to Central station from Sydenham, were supposed to be meeting friends at St Peters, four stations south of Central on the Bankstown line. Instead they had boarded a train from Central to Newcastle – a fact not explained in any of the court cases.
Corey’s brothers told the court they had been seated in the main saloon of the carriage while Corey “got up to wander around”. Both brothers denied being in the vestibule – the carriage’s entry way, where the doors are – when Corey fell.
The seating area in the carriage, a DJM V-set model, is separated from the vestibule by an internal door.
Supreme Court Justice Robert Beech-Jones found in Corey’s favour in the 2013 case, saying the State owed a duty to “exercise due care for the safety of passengers from dangers likely to arise out of the ordinary use of the [train and] which might reasonably be expected.”
Justice Beech-Jones considered the most likely explanation for the accident that Corey became caught between the doors as they closed at Morisset station, leaving part of his torso and at least one of his arms and legs outside the train – enough for him to be thrown from the train as it rounded the bend.
Morisset is a curved station, making it hard for the train guard, in the back carriage, to see the front of the train, which in this case was four carriages – or roughly 100 metres – long.
A customer service attendant was often stationed on the platform to assist the guard. While the train guard could not recall whether an attendant was on the platform at that day, records show there was one rostered on. He was identified in the 2013 trial, but it was found he had passed away in 2008.
In summary, Justice Beech-Jones held the state vicariously liable for the negligent failure of a railway employee to keep a proper lookout before signalling for the train to depart.
This initial judgement resulted in Corey being awarded $1,536,954.55 in damages; an amount made up of general damages, past and future economic loss, cost of past and future care, and medical expenses.
The State successfully appealed that decision in December 2014.
The State initially challenged the finding that Nathan and Dominic had not been involved in interfering with the doors, but this challenge was rejected.
However, the Court of Appeal accepted an alternate hypothesis posited by the State: that Corey wedged the door open with his shoulder, arm or leg at Morisset, but not with enough of his body to attract the staff’s attention.
Then, once the train was moving, Corey could have wedged more of his body between the doors, until he was thrown from the train, according to the hypothesis.
Satisfied that this alternative explanation was just as likely as Justice Beech-Jones’ initial explanation, the Court of Appeal overturned the ruling.
On Wednesday, September 2, the Court of Appeal’s ruling was itself overturned, this time by the High Court of Australia.
“The Court of Appeal erred in overturning the primary judge’s ultimate factual finding,” the High Court said in a statement on Wednesday.
“[Justice Beech Jones’ finding] was a correct finding notwithstanding that other possible explanations could not be excluded … it was an error to reject the primary judge’s finding on the basis that [Corey’s representatives] had failed to exclude one alternative hypothesis that had not been explored in evidence.”
The High Court returned the full $1.54 million damages order to Corey and his representatives.
Nathan Fuller-Lyons, the eldest of the three brothers on the train in 2001, is now a train driver for Transport for NSW.