Safety Director responds to Supreme Court decision on case against Metro

7 May 2019

The Supreme Court of Victoria has dismissed an application by Transport Safety Victoria (TSV) for a review of the decision by the Magistrates’ Court to dismiss the charges against Metro Trains (MTM) for breaches of safety responsibilities, relating to the death of a teen who had been attempting to board a train.

The incident occurred on 22 February 2014 when 18-year-old Mitchell Callaghan attempted to board a departing city-bound train at Heyington station in Melbourne. A set of doors was being held open by a number of other passengers and, as the train departed, Mr Callaghan fell through the gap between the train and the platform. Mr Callaghan died as a result of his injuries.

The charges filed, as dismissed by the Magistrates’ Court, alleged MTM had breached its responsibilities to ensure the safety of its rail infrastructure operations (in relation to the gap between the platform and the train), and the safety of its rolling stock operations (in relation to installing indefinite interlocking traction delay to prevent trains from being moved with open doors).

In the Supreme Court’s decision on 5 April 2019, the Honourable Justice Garde AO held that his Honour Magistrate Goldberg was correct to determine that the prosecution by TSV against MTM, that commenced in January 2017, was invalidly brought.

The Court held that the charges could only have been prosecuted in accordance with legislative provisions that existed at the time of the incident on 22 February 2014.

Three months after the incident, there was a transition from state-based regulation of rail to a new national scheme in response to the establishment of the Office of the National Rail Safety Regulator (ONRSR). This required a different set of rail safety laws in Victoria.

The court ruled that in the context of these changes the proceeding should have been commenced under the state-based scheme that existed at the time of the incident, rather than the new set of laws.

TSV’s application for review submitted that the Magistrate committed an error of law in his decision.

TSV Director of Transport Safety David Hourigan responded today:

“It was disappointing to see that the Heyington case has had two legal challenges on technicalities and has been drawn out over two years since its first lodgement.

"Tragically, Mitchell Callaghan died in an incident related to these charges, and I don’t believe it is unreasonable for a court to hear both sides of the story and determine, on the merits of the case, whether MTM acted to ensure the safety of its operations so far as is reasonably practicable (SFAIRP) as required by the law.

"It is important to note that TSV had already successfully defended an application by MTM to the Supreme Court that contended that TSV could not be both the accrediting authority and prosecute MTM in this case.

"TSV is undertaking a comprehensive review into every aspect of this case and, given both the breadth of the case and its importance, we expect that will take some months.

"As Victoria’s independent safety regulator, TSV will continue to take action against transport operators where we believe they have breached their transport safety obligations.”