The High Court has unanimously allowed an appeal from a decision of the New South Wales Court of Appeal relating to the tort of negligence and inferential fact-finding. Fuller-Lyons, a cognitively-impaired minor, was severely injured after he fell from a train moving at about 100kph. The primary judge found that it was likely that Fuller-Lyons’ body had prevented the rear doors from closing and that he fell, and that at least part of his body should have been visible to the station attendant, and consequently held the State vicariously liable for the station attendant’s negligence. The NSWCA allowed the State’s appeal against the primary judge’s decision, holding that in the absence of direct evidence of how Fuller-Lyons fell from the train, the primary judge should have based his findings on an examination of alternative hypotheses reasonable available: it was no less possible that the door was kept ajar by an object rather than Fuller-Lyons body, and in the absence of affirmative conclusion that his body was visible from the train Fuller-Lyons could not prove the State was negligent (see at [37]–[46]).

The Court (French CJ, Bell, Gageler, Keane and Nettle JJ) unanimously allowed the appeal, holding that the NSWCA erred in overturning the trial judge’s finding that at least part of Fuller-Lyons must have been visible. After revisiting the facts of the matter in detail, the Court stated, at [46], that:

Corey’s case depends upon proof of three inferences of fact: that as the train left Morisset Station he was trapped between the front, western doors of the lead car; that his arm, leg and part of his torso were protruding from the car; and that the protruding parts of his body were visible to a person standing in the CSA’s position on the platform. Corey’s case fails if any of these inferences is not a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.

If the primary judge correctly concluded that the most reasonable and probable explanation was that Corey was trapped in the doors, that finding remains correct even if ‘other possible explanations for the known facts cannot be excluded’ ([at [47]). Because the Court of Appeal accepted that Corey was trapped by the doors before the fall, it should have also upheld ‘the further finding that Corey came to be in this position as the result of the doors closing on him at Morisset Station [which was] correctly characterised [by the trial judge] as the most likely inference “by a large measure”‘ (at [53]).