Reference no: EM133578241

Question: Counsel for the parties have been directed by the Judge to provide written submissions on the question of whether a duty arises.

Whether Department of Corrective Services owes Travis a duty of care in relation to the smoke inhalation suffered as a result of the incident in June 2022?
you represent the Plaintiff, Travis.
Robbo Spuds Limited ('RSL') runs a potato farming business in Robertson, New South Wales. RSL is one of six local farming businesses who have entered a contract with a private rail service, Highlands Rail, for the exclusive use of their rail lines, as well as an engine with three attached cargo carriages, from Monday to Saturday each week. The six farming businesses have a roster for one day each week between Monday to Saturday for the use of Highlands Rail's services, and RSL is always rostered under this agreement to use the rail services on a Thursday. Highlands Rail have built stations for loading produce at six points along the private rail line, corresponding to the farm gate of each of the six farming businesses who have contracted to use the rail service. This arrangement between the six local farming businesses and Highlands Rail has been in place for ten years.

The Highlands Rail private rail service runs directly from Robertson to a large agricultural distribution centre at Penrith. It costs RSL and the other farming businesses $12,000 per week each for three cargo carriages filled with produce to be transported from the farmgate station loading point at the farm to the distribution centre at Penrith.

Highlands Rail decides it can make more money by also contracting out its engine with an attached passenger carriage on Sundays, to transport prisoners under a contract with the Department of Corrective Services between the prison at Berrima near Robertson to the prison near Penrith. The Department of Corrective Services asks Highlands Rail if they can enter a contract to use their private rail services during the week as well, however Highlands Rail informs them that it cannot agree to this as it has an existing contractual obligation to the six local farming business for the exclusive use of its rail services on Monday to Saturday every week.

On the first Sunday in June 2022 Highlands Rail was transporting prisoners from Berrima to Penrith when a riot broke out in one of the passenger carriages. The riot was able to break out because the Department of Corrective Services did not adhere to the Department guidelines for guard to prisoner ratios, and there were too many prisoners for the guards to maintain control. Several prisoners broke through the doors between the passenger carriage and the engine carriage. The prisoners started a fire in the carriage. The fire damaged the engine so badly that it was out of service for the next month.

RSL had to pay a trucking freight company $60,000 per week to transport its potatoes to the agricultural distribution centre at Penrith, for the month that the Highlands Rail engine is out of service and being repaired.

Highlands Rail loses the contract payments from each of the six farming business to transport their goods for the month in which its engine is being repaired.

The engine driver, Latifa, has been diagnosed with post traumatic stress disorder following the riot and the prisoners setting fire to the engine whilst she was driving the train. She was not physically injured but was terrified by the prisoners breaking into her engine carriage and starting a fire.

Travis was walking his dog on the day of the riot, next to the train lines. He saw the smoke coming from the engine and saw the train come to a halt. The engine driver had applied the brakes to stop the train. Travis ran to the engine to see if he could help. Travis assists the engine driver to leave the engine carriage, and suffers from smoke inhalation at the scene. Travis is taken to hospital suffering from the smoke inhalation. He suffers permanent damage to his lungs. Travis becomes depressed at the lung damage and the impact it has on his day to day life.

Question was dismissed