Kane Rundle by his next friend Gail Rundle v State Rail Authority of New South Wales

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20386/97 - Kane RUNDLE by his next friend Gail RUNDLE v STATE RAIL AUTHORITY OF NEW SOUTH WALES

1 HIS HONOUR: The plaintiff sues the defendant for damages for injuries he sustained when he was a passenger on a Sydney suburban train on 6 May 1994. He was then aged fifteen. The plaintiff has no memory of the events that occurred and there is no eyewitness. However, there does not seem to be any doubt about the relevant facts. 2 By the time of the accident, the plaintiff was accustomed to disfiguring railway property with graffiti. He gave evidence that he started writing graffiti on trains in about Year 8. He appears to have regularly engaged in the activity and failed to attend much, if at all, to his school studies from this time onwards. Initially, he used "textas" to write on the inside of trains, but over time worked his way outside where he used spray cans. He mostly wrote words, usually one of his "tags". He commonly wrote the word "Oops" and sometimes "fork". 3 In 1994 the Sydney metropolitan railway network had a total of 775 double-decker silver carriages. The plaintiff was travelling in one of these carriages when he was injured. By the time of the accident the plaintiff had taken to squeezing the top half of his body out of an upper window of the train to spray graffiti on the side of the train, and above the window, with a "pressure pack" can. The window was located just below the gutter at the low point of the roof. As a consequence graffiti painted above the window was on the roof of the train that curved at this point.

The window 4 The upper window consisted of four panels of glass, two on either side of a fixed mullion. Each of the panels could slide to allow ventilation but the window was designed so that the distance any panel could travel was confined. As designed the window would only have allowed a horizontal opening of 115 millimetres, the vertical opening was a constant 425 millimetres. The design of the window included a rubber gasket that, if it was in place, had the consequence that the window could not be opened beyond its designed width. It would have been impossible for any person to manoeuvre through such a narrow opening. 5 With some effort the rubber gasket could be removed. It is also apparent that with time, the gasket would deteriorate. If the gasket was removed or had otherwise failed, the window would slide to an opening of approximately 235 millimetres. Through this opening it was possible for a person of the plaintiff's build, he was then and remains a relatively slight person, to put his head out of the window and then twist his shoulders and upper body through until his buttocks were located on the bottom part of the window. From this position the plaintiff could lean out of the train and use his spray can on the roof and the side of the carriage. 6 The plaintiff said it was "quite easy" to get out of the window, but I do not accept this was the case. I have no doubt the plaintiff became adept at the manoeuvre but it must be remembered that he practiced it on many occasions. 7 Simon Walker is a friend of the plaintiff. He commonly joined the plaintiff in spraying paint on to trains. His tag was the word "abuse". He described the process in a similar manner to the plaintiff: "You would first find a window that would open to be wide enough, and then sort of put your head out and twist your hips out and then sit on the outside of the train and do it on the top."

8 Because the side of the train tapered, and the roof curved away, he said by staying close to the outside of the window he could use his spray can without hitting anything. He said he was careful not to lean out too far. 9 The plaintiff said that he was not aware of how to remove the rubber gasket from the window, although he had heard of "kids" who would do it. He said that it was unnecessary for him to remove the gasket because there were always windows that could be opened. Simon Walker said the same. I accept their evidence in respect of these matters. There is little doubt, either because the window had been previously vandalised, or through a natural process of deterioration of the gasket, that the plaintiff and his friends had little trouble finding a suitable window for their activities.

The accident 10 No one is able to say precisely what occurred on 6 May 1994. There were no witnesses. However, it is apparent that the plaintiff, having boarded a train, manoeuvred himself out of an upper window of the double decker carriage that did not have the restraining rubber gasket and commenced to write the word "oops" using a spray can. After the accident, the train was found to have the two "oo's" and part of the "p" completed on the roof. As he was in the course of writing the word, and, while the train was moving, the plaintiff's head contacted an object, probably a stanchion or signal, beside the track, causing him severe injuries. The external object which struck the plaintiff's head was never identified, but there was blood found inside the carriage at the position of the window. 11 The plaintiff gave evidence that it had been his usual practice to board a train at Revesby, and travel to East Hills. Once on the train he would look for an empty carriage and test the windows to see if he could find one in which the gasket had been removed so that he could use it to access the outside of the train. It is likely that this was the sequence of events on 6 May 1994. 12 Both the plaintiff and Simon Walker said that the plaintiff had been putting his tag on the roof of trains for maybe six months before the accident. The plaintiff and his friends were not the first to spray graffiti on to the roofs. They merely copied others who had done it before them.

The evidence of Mr Simpson 13 Mr Colin Simpson is an experienced engineer with particular expertise in mechanical engineering problems. His evidence was not a matter of significant dispute. In his opinion the train window could have been modified so that it would not open far enough to allow a fifteen year old to squeeze through it. Either by the use of screws passing through the window frame and rubber gasket or by applying adhesive to the rubber to glue it to the window frame, the opening could have been confined to its original design. Although adhesive alone may have failed, if both adhesive and screws were used the window would have been most unlikely to have failed. 14 Although Mr Simpson accepted that a teenager could not accidentally pass through the fully opened window, he was of the opinion that some people could easily fit through it when fully opened. However, he accepted that only a person of limited size could do this and agreed that a person "would have to manipulate their body in a way particularly designed to get them through."

The evidence of Mr Cowling 15 Mr Cowling, who is also an engineer, gave evidence in the defendant's case. Although not employed by the defendant, it is clear he has spent a great deal of time examining issues related to the safety and performance of the railways and has given advice to and evidence on behalf of insurers of the defendant. His knowledge of the design and performance of trains on the city network is considerable. 16 He accepted that the defendant could have attempted to glue the gasket to the window frame and could have applied screws to each window. Indeed, after the accident, as an interim measure, the gaskets were glued. Mr Cowling did not believe that this alone would be an effective long term solution. Apparently the gasket will naturally deteriorate and with time the window could be forced out to its maximum opening unless otherwise mechanically restrained. 17 Mr Cowling examined many records and carried out extensive research into the details of railway accidents. He indicated that he had not found any record which suggested that people were squeezing through the windows prior to the accident. There had been incidents where people spraying graffiti when hanging out of carriage doors had been injured and killed but none which involved the use of windows. 18 Carriages of the silver double-decker type were first constructed and brought into service in the 1970s. By the late 1980's it was recognised that there was a need to upgrade them to provide locking doors and other modifications. Together with a program to fund the provision of a new type of train known as the Tangara, funds were provided to upgrade the silver double-deckers. It became known as the "CityDecker" upgrading program. Although it was intended that the program would commence in 1990 there were some problems. By May 1994, although the 775 carriages had been fitted with automatic doors, the rest of the program had not been implemented. This locking door program alone cost $4.5 million. 19 In May 1994 the CityDecker project was restarted at a cost of about $148,000 per car for the first 200 cars, making a budget for this batch of about $28.7 million. 20 The project involved upgrading with improved lighting, vandal resistant seating, repainted ceilings and walls, glass screen partitions between vestibules and saloons, slip resistant floors, tinted inward-opening hopper windows, high-visibility paint treatment to external ends of carriages, passenger "help-points" in vestibules and improved communications. 21 The implementation of the intended program was made difficult by problems with the Tangara. At about the time that the CityDecker program was to commence, an unprecedented increase in damage by vandals to the glazing of the Tangara carriages occurred, creating a major crisis in the availability of those carriages. 22 The design of the Tangara is such that although passenger safety was not at risk, the large external areas of glass offered vandals an easy target for missiles such as rocks and slingshots. 23 I understand that the glass replacement cost as a result of breakage was in the region of $400,000 per annum, which raised the initial need for consideration of a separate upgrading of the Tangara glazing system. 24 Apart from the direct glass replacement costs, this also meant that more of the non-Tangara rollingstock were required to make up for the shortfall in Tangara availability, in order to maintain the daily timetable requirements. The result was that the CityDecker upgrading could not proceed at the intended rate. 25 Up to June 1996 a total of 136 suburban cars and 38 intercity cars had been upgraded for a total cost of over $25 million. 26 Since then approximately a further 150 suburban cars have been upgraded each year under the CityDecker project for a total approximate cost of about $111 million. 27 If the defendant had believed it necessary, it may have been possible to modify the windows of the silver double-decker carriages before the accident as a separate task rather than replace the windows as part of the total upgrade of each carriage. However, because of the need to maintain fleet requirements for effective daytime operation, the work could only have been done in the evening when the carriage was undergoing its nightly cleaning. 28 Mr Cowling indicated that two people working together could have glued the rubber gasket at a rate of two carriages per night. The task could have been achieved as part of the normal maintenance operation but would have taken many months to complete. 29 If, however, in addition to the adhesive, two screws were inserted, this would have involved drilling and tapping, and although this may have been an effective solution to the problem, it would have taken four persons one night to complete the modifications to a carriage if the task was done as part of the normal maintenance procedures. At this rate the total program would have occupied some years. 30 As part of the general upgrade, the defendant embarked upon a major program to replace the windows on the double deck carriages. The new window was differently designed being an inward opening hopper with the consequence that there was no possibility of a person squeezing through it. The cost involved in modifying the window in this manner was obviously considerable, although because it was part of the general upgrade, it was not separately identified. 31 Mr Cowling observed many of the replaced windows. His evidence was that by the time they were being replaced many of the windows had reached the end of their useful life. In particular by 1996, windows were found without rubber gaskets or where the gasket had worn to the point where it no longer secured the window. If this was the case by 1996 it is obvious that many gaskets would have worn at an earlier point making it likely that many were in this state in 1994. As the windows were first constructed in the 1970s, this may explain why the plaintiff and his friends readily found windows which were no longer restrained by the rubber gasket. Graffiti 32 From at least 1989 graffiti was a significant issue for the railways. Apart from the damage caused by the severe disfiguring of the inside and outside of carriages, by 1989 deaths had occurred when young people were hanging out of the doors of trains to spray graffiti. For this and other reasons there was a concerted program to provide automatic door closures. Even this modification did not stop a determined youth from blocking the door with a foot and leaning out of the opening. 33 Graffiti was common on the outside of single deck carriages, especially the older type known as "red rattlers". Graffiti was put on the carriages when they were parked overnight and was also sprayed on when the carriages were moving. Some of this graffiti was located around the windows although it was mostly around the doors. Mr Cowling had observed this graffiti but said that when associated with windows it was generally poorly formed, giving him the impression that paint was sprayed by someone putting his or her hand through the window rather than leaning out from it. 34 Evidence given by the defendant's employees indicated that prior to this event they had observed graffiti in various places including above the windows of trains. The strategy adopted to deal with graffiti was to inspect and clean the carriages every night. Apparently a major motivation for the graffiti vandal was the pleasure in observing his or her "tag" on the train. If it could be cleaned immediately the pleasure was lost and the desirability of applying graffiti diminished. This was the approach adopted by the authorities in New York. It was successful there and largely successful in Sydney. 35 As part of the nightly inspection the windows were also visually inspected for breakage. However it was not usual to carry out a close inspection of a window and no effort was made to determine whether the rubber gasket remained in place. To do this would have involved a greatly increased staffing requirement and a consequential significant cost. 36 Mr Phillip McColl, the Fleet Manager of the Flemington maintenance centre of the defendant, gave evidence that in 1994 he would, in the course of his duties, observe up to 160 to 180 carriages per day. He commonly observed graffiti on the inside of carriages and on the outside, within about one arm's length of the doors, windows and ends of trains. Although he said he could not recollect seeing graffiti on roofs, I do not accept this evidence. It is plain from answers he gave in cross-examination, that he had seen graffiti above the upper windows of double-decker carriages and the consequence is that the graffiti must have been on the roof. The only means by which this could be done would be from the upper level window. However, I accept that he did not appreciate that youths were squeezing through the windows and hanging out of the train to spray the roof. 37 Mr Michael Logue, the manager of fleet presentation at Central station at the time of the accident, also gave evidence. He said that amongst other places he had seen graffiti above the windows of double deck carriages. He confirmed that he had observed it on the roof of trains in a position similar to the plaintiff's "tag" by the time of the accident. 38 Although I am of the view that the defendant was aware that graffiti was being sprayed on to the roof of double-decker carriages before the accident, I am also satisfied that the defendant was not aware that young people were squeezing through windows and hanging their bodies out in order to spray the roof. If its officers had given the matter careful thought they would have realised this was occurring but because the opening, even without the gasket, was so small, the possibility did not occur to them. 39 Evidence was given about the design of railway carriages and the clearance for fixed structures beside the track. The minimum separation allowing for movement of the train through roll and wearing of mechanical parts is 525 mm. A youth hanging out of the train could readily extend beyond this safety margin and contact a fixed structure as happened in the present case.

The plaintiff's life before the accident 40 The plaintiff was a troubled child. His family circumstances were not without problems, his father was an alcoholic, and his mother has been addicted to heroin. She has been on a methadone program for the last fifteen years. Before the accident the plaintiff had failed to perform at school and had been expelled from a number of schools. He was difficult at home and appears to have been unable to effectively control his anger. 41 The plaintiff apparently progressed satisfactorily, in primary school, although he had a stutter in his speech which responded to therapy. He had friends and notwithstanding the family difficulties, appeared to make satisfactory progress. 42 After his parents separated the plaintiff's life became more difficult. He initially lived with his father but this lasted only a few months. He had problems at school and when his mother moved to Revesby and the plaintiff was sent to South Strathfield High School, his behaviour deteriorated. The plaintiff became a regular truant, used marijuana and alcohol and regularly put graffiti on many public places, including on the inside and later the outside of trains. 43 The difficulties between the plaintiff and his mother were significant. By 1986 a child welfare worker had become involved and thereafter constant efforts were made to try and ensure the plaintiff attended school. However, even when he went to school, his attention to his studies was poor and his behaviour often unacceptable. 44 The plaintiff had on three occasions, been apprehended by the authorities for his graffiti activities. On the last occasion he was sentenced to a term of community service. 45 Before the accident the plaintiff had trouble controlling his anger, would often shout abuse at his mother and behave in other unacceptable ways. His relationship with his sister was poor. I am satisfied that by the time of the accident it was unlikely that the plaintiff would have obtained his school certificate and his prospects of conventional employment and family life were poor.

The plaintiff's injuries and their effects 46 The plaintiff suffered very significant injuries. He was found lying on the floor of the carriage, bleeding, with an open wound to the right side of his head. A scan of his brain showed a depressed right parietal skull fracture with extension of the bone fragment into the brain for some 3 cm, a haemorrhagic contusion of the adjacent brain substance with protrusion of some skull through the skull defect, a thin subdural collection of blood extending posteriorly around the right occipital lobe and alongside the falx in the midline, a small amount of subarachnoid bleeding, and a mild shift in the midline structure to the left side. 47 The plaintiff was taken to Royal Prince Alfred Hospital in an unconscious state. Upon arriving at the hospital he underwent surgery. After a period in intensive care he made a good recovery, having regard to the extensive injuries he had suffered. His memory did not return until some eight days after the accident. He was discharged from Royal Prince Alfred hospital for rehabilitation to Lidcombe hospital on 26 May 1994. By this stage he was conversing normally but had a left hemiplegia. He was readmitted to Royal Prince Alfred hospital for the insertion of an acrylic cranioplasty and has been left with a left-sided weakness, although he is able to walk unaided. His left arm is almost entirely useless. He also suffers some speech deficiency and his balance is impaired. He suffers headaches and has had difficulty adjusting to his altered life circumstances. Although he has scarring to his head, having regard to the nature of his injuries, his hair masks a great deal of the scar tissue. 48 Following the accident, the plaintiff has retained his sense of smell, and his taste, vision and hearing are not impaired although he has reported light-headedness on occasions. He has suffered four epileptic fits, of which the first was the most significant. The plaintiff also suffers from impairment of his memory and, for a time after the accident, was particularly intolerant of noise and bright lights. Following the first epileptic fit he was impaired in his social capacity and effectively secluded himself in his room for about two years. This has changed and he now spends time with friends, who take him to the local club on Friday nights. 49 The plaintiff gave evidence that because of the lack of capacity in his left arm he has difficulty in performing many tasks. He has become dependent on his mother to perform many functions for him. It would appear that she is quite willing to carry out these tasks and as a consequence the plaintiff relies to a significant degree on his mother to carry out every day domestic activities for him. 50 After the accident the plaintiff formed a relationship with a young woman by the name of Corinne who came to live with him at his mother's house. A child was born to them and for a time they lived in a flat of their own at Bankstown. However, the relationship failed after the plaintiff began having delusions and brought a machete into the house. Apparently, he began to accuse Corinne of having an affair and she left him not long before the hearing. He now lives at home with his mother and his sister. He has attempted to get work but has been unsuccessful. He spends his days sleeping until the middle of the day and then watches television, spending some time with his friends, one in particular, in the evenings. 51 The plaintiff has been assessed by a number of psychologists. He has obviously suffered a significant impairment of his intellectual skills and social abilities because of the accident. However, because of his very poor school record before the injuries, there is some difficulty in determining the true impact of his injuries. Susan Chadwick, a clinical psychologist has seen the plaintiff on more than one occasion. She has concluded that the plaintiff had significant behavioural problems from a very early age, which was reflected in his poor school record. In her opinion the plaintiff's pre-accident IQ fell within the average range of ability but he has suffered impairment particularly of his immediate memory since the accident. She formed the opinion that the plaintiff's tendency to irritability and some violence following the accident is consistent with his behaviour before the accident, and does not believe this is due to any significant extent to the injury which he suffered. 52 Miss Chadwick concluded that the plaintiff would be able to live independently in the future, although he may need some minimal supervision by appropriate personnel, either from the Brain Injury Unit, or the local community health centre. She believed that he may also need minimal assistance with the day to day activities of budgeting, shopping and housework. 53 Many other medical practitioners have seen the plaintiff. In general, the conclusions expressed by doctors retained on behalf of the plaintiff are similar to those expressed by experts engaged by the defendant. Although I have considered them all, I have not related all of them in these reasons. A significant question is whether the plaintiff will ever be able to be gainfully employed and whether his difficulties are due to the accident or would have been present in any event. 54 Dr Klaas Akkerman, a physician, assessed the plaintiff and formed the view that his injuries are now largely untreatable. He has no doubt that the plaintiff is totally and permanently incapacitated for any kind of work. He indicated that he was satisfied that the plaintiff had problems prior to the accident. In his opinion he suffered from attention deficit disorder and he had secondary cognitive disorder. He was also abusing marijuana. Dr Akkerman formed the view that the current state of his IQ had been contributed to by the accident. Although the plaintiff's adolescence was obviously one of turmoil, he believed that on the balance of probabilities "there was a pretty good chance that Mr Rundle would have been able to overcome these problems at least to some extent." He believes that it is "possible" that [the plaintiff] would have been able to overcome his [problems] and he would have had a normal, productive life." 55 Dr McGee Collett, a neurological surgeon, also saw the plaintiff. He formed the view that his: "Already disadvantaged life has been wrecked by his brain injury and Kane will most likely remain permanently incapacitated and dependent upon supervision, domestic help and the 'welfare state' since he does not appear to me to be employable on the open labour market and he also seems incapable of pursuing occupational training. " 56 The view of doctors who have seen the plaintiff is consistent in relation to his degree of physical injury. The general view is that he has a permanent loss of the left arm of seventy-five percent of the most extreme case and has suffered injuries which leave him with significant disability. He also has difficulties with adjusting his behaviour, although these problems existed before the accident. 57 Dr John Fardy has examined the plaintiff on a number of occasions. His diagnosis of the consequences of the head injury included epilepsy, left hemiparesis with disturbed language ability. He has diagnosed schizophrenia with paranoid delusions. The schizophrenia has required hospitalisation on one occasion. He is of the view that this condition is common in young males aged sixteen to twenty-four and may not be directly attributed to the head injury. 58 Leanne Gale, a consultant occupational therapist, has also seen the plaintiff. She has formed the view that the physical impairments which the plaintiff has suffered because of the accident, are permanent and to gain further independence he will require retraining in one handed techniques. She believes he has the capacity to learn and retain information that will give greater independence than he presently has. She found that he had difficulties with the taking of medications - he sometimes did not arrive to receive it - and was impaired by his psychological and behavioural problems. 59 The plaintiff used to stutter before the accident and there is evidence that the stutter has increased since. However, when he gave evidence no significant impediment was apparent. The evidence does not persuade me that the accident in any way has contributed significantly to an impairment of his speech. 60 The plaintiff has also been examined by Dr Taylor, a consultant psychiatrist and the medical superintendent of Bankstown Health Service. He was admitted to the hospital on 2 July 2000 after his behaviour at home became agitated and aggressive. He was reported to have been violent with his girlfriend. Because of his erratic behaviour and persisting delusions, a community treatment order was applied for and granted. Since that time he has apparently been uncooperative with the treatment and has not kept appointments that were made for him. 61 At that time it was concluded that the plaintiff lacked insight and that his paranoid beliefs have been suppressed by medication but had not been resolved. He failed to attend for his medication on regular occasions. 62 Dr Taylor has concluded that the plaintiff is suffering from paranoid psychosis which is likely to be a consequence of brain damage sustained in his accident. However, because the plaintiff was not observed prior to the accident it is not possible to reach a certain conclusion on this question. 63 I am satisfied that the plaintiff has suffered a significant physical injury. This has left him with a limited capacity in his left arm and hand and some incapacity in his left leg. He has also suffered significant impairment of his memory and has significant psychological difficulties. I am satisfied that he is not capable of any gainful employment in the future. 64 Whether the plaintiff would have been able to achieve a satisfactory life for himself without the accident, is difficult for me to determine. The evidence indicates that although he may have been of average intelligence, his social incapacity was such that he failed to achieve at school to the point where there was a diminished prospect of his being able to hold down regular gainful employment. To this lack of educational achievement must be added his incapacity to form stable relationships with his family and his often anti-social behaviour. The plaintiff's difficulty in controlling anger and inability to resolve social issues in a conventional manner suggest that he may have had difficulty structuring a life for himself, even without the injuries he suffered as a result of the accident. Liability 65 The plaintiff sues in tort alleging that the defendant had a duty to provide and maintain a railway carriage which was safe. It is submitted that the defendant breached its duty because it failed to maintain the window opening so that the plaintiff could not pass through it and expose himself to the risk of collision with a stanchion or other permanent railway structure. The particulars provided in the Statement of Claim are as follows:

Failure to prevent the windows of the train from being opened more than approximately ten centimetres such that they would not allow a person particularly a child to exit through any of those windows.

Failure to ensure that the windows of the train would not open sufficiently to stop a person particularly a child putting their head and/or other bodily part through any window.

Failure to warn or adequately warn the plaintiff of the danger of climbing or attempting to climb through any window of the train and of putting his head or other part of his body through any window in it.

Failure to prevent the plaintiff from putting his head or any other part of his body through any window in the train.

Failure to adopt proper and reasonable precautions to ensure the safety of the plaintiff then being a child of fifteen years of age while he was a passenger on the train.

Failure to staff the said train adequately so as to ensure that the infant plaintiff was properly controlled and managed.

Failure to staff the said train adequately so as to ensure that the infant plaintiff did not put himself in a position of danger by putting his head and any part of his body out of the window of the train.

With knowledge in the defendant that for some time prior to the accident on 6 May 1994 persons of similar age and stature to the plaintiff were in the habit of extending themselves through windows of trains in the Sydney metropolitan area operated by the defendant for the purpose of spraying graffiti on those trains, its failure and neglect to take all such steps as were reasonably necessary to prevent such persons (including the plaintiff) from doing so. 66 Some of the particulars refer to the obligation owed by the defendant to infants and children. I do not understand that the plaintiff could, at any relevant time be described as an infant and although technically a child, he was in fact an adolescent of fifteen years of age when the accident occurred. As such it could not be doubted that he would have been able to appreciate that there were risks involved when leaning out of the window of a moving train. He was not an infant or child who needed protection from his own involuntary or unthinking acts. Futhermore, the allegation of failure to adequately staff the train and train those staff were not, as I understand the position, pressed at the hearing.

Duty of care 67 There is no doubt, and the defendant accepted, that it owed a duty to take care for the safety of its passengers. A duty has been imposed in other cases involving railways or tramways: see Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; State Rail Authority of New South Wales v Mayle [1999] NSWCA 388; Robinson v State Rail Authority of NSW, Master Malpass, NSWSC, 9 August 1996, unreported. The duty is owed to passengers within a railway carriage and to others who may be in and about the platform or other railway facilities: see Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236; Rich v Commissioner for Railways (1959) 101 CLR 135.

The consequence of the plaintiff's illegal act 68 By hanging out of the window the plaintiff breached by-law 1360 clause 14 of the By-laws of the State Rail Authority. 69 Although it may have been the law that a duty was not owed to a person who is breaking the law, this has long since ceased to be the case. 70 In Henwood, the deceased, in breach of the relevant by-law, being ill, leant over the guard rail of a tram to vomit and hit his head on a standard beside the track carrying wires and died. His parents sued but failed at the trial, where it was held that the breach by the deceased of the by-law which made it an offence to lean out, was "a conclusive answer to the claim in any form in which it could be presented." 71 In the High Court, having identified the reasons which supported the trial judge's position, Latham CJ went on to point out that the law did not, as a matter of principle, deny recovery to someone engaged in an illegal enterprise. He addressed the circumstance where the illegality alleged was a breach of the law intended to provide for the plaintiff's safety distinguishing it from the circumstance where the by-law provided a duty of care owed by one person to another: "But the case is different when the statute (or by-law) is not enacted for the purpose of prescribing some duty of care owed by one person to another person. The present by-law affords a good illustration of the distinction. The by-law in question is directed towards securing the safety of passengers themselves by punishing them if they are careless of their own safety. It is not directed towards the relations between the tramway trust and passengers. It is not a provision designed to protect the trust against damage which might be caused to the trust by passengers leaning out of the vehicles. The by-law was not concerned with duties of passengers to the trust. The by-law provides its own remedy for breach, namely, a penalty of £ 5. It does not provide that the result of a breach of the by-law shall be that the offending passenger shall not be entitled to recover damages against the trust or that his breach of the by-law shall necessarily amount to contributory negligence."

72 Dixon and McTiernan JJ delivered a joint judgment. They acknowledged that a carrier of passengers has a duty of care to carry those passengers safely and securely but no higher duty. The carrier is not required to ensure safety, "and their duty in respect of the transportation of passengers is measured by no exceptional rule" (at 456). In the circumstances that prevailed they held that a duty was owed to protect a passenger from coming into contact with a standard. The difficult question was whether the action failed because the deceased, albeit unwittingly, but nevertheless obviously, breached the by-law. 73 Acknowledging that the decision was complicated by the fact that contributory negligence was at the time a complete defence to the action, their Honours said: "We do not think that, in the absence of English authority requiring us to do so, we ought to adopt as part of the law of torts a general principle that, if the damage suffered by the plaintiff has been directly brought about by an act of his which is unlawful, he can never complain of a wrongful or negligent act or omission on the part of the defendant from which the damage otherwise flows as a reasonable and probable consequence. It appears to us that in every case the question must be whether it is part of the purpose of the law against which the plaintiff has offended to disentitle a person doing the prohibited act from complaining of the other party's neglect or default, without which his own act would not have resulted in injury. The condition proposed by Sir John Salmond in the case cited does not go so far as this, although it goes in the same direction. According to his view, it is enough that the penal provision had for its purpose the prevention of the kind of accident that happened. He treats such a statute as fixing, so to speak, a precise act or omission as contributory negligence. Because he regards such a provision as determining that specified conduct shall be contributory negligence, he is able to add a still further condition, namely, that the breach of the penal law shall be a wilful act or omission. When negligence as a cause of action is in question, breach of a legislative provision requiring a specific precaution amounts to evidence of what of reasonable case (Blamires v Lancashire and Yorkshire Railway Co (1873) LR 8 Ex 283 at p 289). But it is not negligence per se. If the statute means to confer a private right, a cause of action arises, and as a matter of nomenclature neglect of a statutory duty implying a correlative private right may answer the description negligence (Lochgelly Iron Co v M'Mullan (1934) AC 1). But the reason why the cause of action arises is not because the statute includes in its purposes the prevention of a given kind of accident as a result of the act or omission penalised. It arises because, upon a full consideration and examination of the nature and purposes of the statute, it is found to disclose an intention of conferring a correlative private right, as well as imposing a liability for punishment, in respect of the neglect of the specified precaution. It is true that in ascertaining the intention of such statutes modes of interpretation are adopted which appear to rest rather on presumption that upon ordinary rules of construction. But the general principle remains that a private right of action is not created by a penal statutory provision unless the statute so intends. In the same way, we think that, unless the statute so intends, no penal provision should receive an operation which deprives a person offending against it of a private right of action which in the absence of such a statutory provision would accrue to him." (at 460-461) 74 Their Honours concluded, at 466, that "the obligation of [the defendant] was to exercise due care for the safety of passengers from dangers likely to arise out of the ordinary use of the tram which might reasonably be expected. Unless the by-law had the intention of affecting, so as to deny, civil liability (as opposed to seeking to discipline the behaviour of patrons) a breach of it alone would not defeat a claim." 75 In my opinion, the same conclusion is appropriate in the present case. The by-law was not intended to deny civil liability if the circumstances are otherwise appropriate.

The scope of the duty 76 The search for the principles by which the scope of a duty of care should be defined has engaged many judicial hours. It is now generally accepted that the approach adopted by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 provides a comprehensive guide when determining whether a duty is owed and the content of that duty in a particular case. (But see the discussion especially by Kirby J in Crimmins v Stevedoring Committee (1999) 200 CLR 1 at 80-81). 77 The first question to be determined is "whether a reasonable man in the defendant's position would have foreseen that this conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff." 78 If the answer to this question is "yes" it is necessary to determine a second question - what a reasonable man would do by way of response to the risk. 79 The answer to the first question will be informed by the knowledge that a "risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk." 80 The answer to the second question will be informed by "consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other responsibilities which the defendant may have": Mason J - Shirt at 47. (The issues were discussed and the approach adopted by Mason J confirmed in Nagle v Rottnest Island Authority (1993) 177 CLR 423 and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431.)

Foreseeability 81 In my view the possibility that young people might attempt to hang out of the windows of trains to spray graffiti was foreseeable by the defendant. The evidence of the graffiti on exterior parts of the train including the roof, make it apparent that young persons were leaning out of the carriage to some extent. It must have been obvious that at least their hands and arms were outside the train. I am satisfied that it was foreseeable that some would be able to squeeze their upper bodies through the window if the rubber gasket had been removed or was ineffective. The fact that it may have been difficult to squeeze through does not mean that it was not foreseeable. The risk was neither "far fetched or fanciful": Shirt at 47.

What should the defendant reasonably have done? 82 In the present case there is little doubt that a person hanging out of the window of a moving train was at risk of sustaining a very serious injury. The plaintiff suffered such an injury. In many cases the injuries would prove fatal. 83 Although it was foreseeable that some young people might squeeze through a faulty window, I am satisfied this would only occur with difficulty. By the time of the plaintiff's injury, the defendant was not aware of any accident involving a person hanging out of an upper level window. Although it was possible that an injury might occur in this manner it was not at all probable. Most people, aware of the size of the window opening (and a cut out was tendered in evidence) would, in my view, although accepting the possibility of a determined person squeezing through, believe this to be most unlikely. 84 Whereas in Henwood, the risk to be guarded against was essentially an involuntary action, in the present case the risk was only created by a deliberate act of the plaintiff in circumstances where a window was found to be defective. Although by providing opening windows in the carriages, the defendant created the elements which allowed the risk to occur, the injury eventuated because of the plaintiff's act. 85 The window was originally designed and constructed in such a manner that it cold not be opened far enough to allow a person to pass the upper part of his or her body through it. Whether this was the intention of the designer, or whether that intention was confined to avoiding involuntary passage by small children, is not clear. However, if as the plaintiff suggested, there had been a rivet and the rubber gasket was glued, it is most unlikely that the window would have been able to open beyond its design width. Of course, the window itself might also have been of a wholly different design which prohibited passage. This is now the situation. 86 By providing the window which it did, even with the gasket removed, the defendant had ensured that considerable agility and determination would be required of a young person intent on hanging the upper part of his or her body out of the window. Even without the rubber gasket, the window opened only a short distance (235mm). I do not believe it would be reasonable to find that the defendant owed a duty to the plaintiff to ensure that the window was always confined to an opening of 115mm. 87 Furthermore, I am not persuaded that the defendant was obliged to have responded to the possibility of injury to a determined youth by the implementation of an intensified maintenance regime, or accelerated window modification, or replacement program. Even a nightly maintenance program which fixed every window would not have proved a barrier to a determined youth. Such a program would have added significantly to the cost of managing the rail network. 88 Apart from intensified maintenance, it is obvious that the defendant could have modified the window. However, this would also have involved a significant cost and would, if the efficient running of the metropolitan network was to be maintained, have taken months, if not years to complete. In circumstances where a program was already in place, which, subject to funding being available, would provide for complete replacement of the windows in the near future, to require a special maintenance or modification program to guard against the limited possibility of a determined youth squeezing through a defective window would not be reasonable. 89 Although the defendant, as the body responsible for the Sydney metropolitan railway system, may, in some circumstances, owe a duty to people who may be breaking the law, I do not believe, in the present circumstances, that duty extended to preventing a young person, intent on disfiguring the train, from deliberately squeezing through the narrow window opening. 90 This finding is sufficient to dispose of the matter. However, against the possibility that I may be in error, the parties have asked that I determine all issues in the proceedings, including the quantum of damages. I am satisfied that it is appropriate for me to take this course.

The breach issue 91 Because in my opinion there was no relevant duty, this question does not arise. However, if the duty was to provide and maintain a window which only opened to approximately 115mm, or which did not allow a person to pass the upper part of his body through it, that duty was breached.

Causation 92 Issues of causation have proved troublesome in recent years. In March v Stramare (E & M H) Pty Ltd (1990-1991) 171 CLR 506, the difficulties in the application of the "but for test" were identified. Mason CJ, setting aside the "but for test" as an exclusive test, emphasised that determining the cause of an event for the purpose of attributing legal responsibility would often depend on the elements comprising the duty which the defendant owed to the plaintiff: "As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things." (At 518-519. See also Deane J at 521-523). 93 See also Gleeson CJ in Modbury Shopping Centre v Angil (2000) 75 ALJR 164 para 39. 94 In Bennett v Minister of Community Welfare (1992) 176 CLR 408 Gaudron J identified the settled principles derived from Sutherland Shire Council v Heyman (1985) 157 CLR 424 and March, and said with respect to causation: "Generally speaking, if an injury occurs within an area of foreseeable risk, then in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed it will be taken that the breach of the common law duty caused or materially contributed to the injury."(421) 95 In Chappel v Hart (1998) 195 CLR 232, McHugh J, who had been reluctant to relinquish the "but for test", explained how the issue of causation must now be approached. He said: (at 244-245) "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increased the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of injury occurring." 96 In the present case, if it is correct as I have found, that the defendant did not owe a duty to provide a window through which the plaintiff could not squeeze and hang out of the train, no question of breach arises and thus, any failure by the defendant did not materially contribute to, and accordingly did not cause, the plaintiff's injuries. 97 However, if I am wrong and the defendant owed a duty to the plaintiff to maintain the window so that he could not pass the upper part of his body through it, the breach of that assumed duty did relevantly contribute to the plaintiff's injury and was a cause of it. Without the opportunity to squeeze his upper body through the larger opening the accident could not have happened.

Volenti 98 The defendant has pleaded that it is not liable by reason of the fact that the plaintiff chose to expose himself to the risk by hanging out of the window. The common law defence of volenti not fit injuria is pleaded. 99 The onus is on the defendant to establish the defence: The Insurance Commissioner v Joyce (1948) 77 CLR 39; Roggenkamp v Bennett (1950) 80 CLR 292 at 300. There are essentially three elements that must be established. The plaintiff must have:

(b) Fully appreciated the risk of injury created by the danger (a) and (b) requiring subjective inquiries); and

(c) Voluntarily agreed to accept the risk and its consequences - ie thereby absolving the defendant of responsibility (an objective inquiry to be inferred from a plaintiff's words or conduct: see Joyce ) (See also Clarke AJA in Hadland v Council of the City of Blacktown , unreported, Court of Appeal, 21 May 1997; and, Studdert J's adaptation of the 1994 Halsbury's statement in Beck v State of New South Wales & Anor [2001] NSWSC 278). 100 In McPherson v Whitfield (1996) 1 Qd R 474 at 480-481, Lee J said: "A successful plea of volenti involves proof of two elements: firstly, an appreciation by the plaintiff of the risks involved in the undertaking, and secondly, full acceptance by him of those risks: Smith v Baker & Son [1891] A.C 325; Imperial Chemical Industries Ltd v Shatwell [1965] A.C 656; Roggenkamp, 300; Blakeney, 364-365, 368. It is no doubt the emergence of the second of these factors as the focus of judicial attention that has led to the less vigorous use of the defence over the last century."

101 Lee J went on to note, at 481, that where acceptance: "Is sought to be implied from the mere fact that the plaintiff has undertaken the activity which is said to give rise to the risk, it will, in my opinion, often be difficult if not impossible to infer that the plaintiff has 'taken the legal risk of injury upon himself': Wilkinson v Joyceman [1985] 1 Qd. R. 567, 568." 102 A plaintiff must be shown to have consented to a specific risk: see Roggenkamp at 300; and also Rootes v Shelton (1967) 116 CLR 383. 103 In Rootes, the plaintiff sustained injuries when he collided with a stationery boat whilst water skiing. The plaintiff claimed that his injuries were the result of the negligence of the driver of the boat, by which he was being towed, in failing to take due care in the control of the boat and in his failure to warn him of the presence of the stationery boat. An important aspect of the evidence in the case was that it was usual practice to have an observer, as well as a driver, in the towing boat, and that both would signal the presence of any obstacle in the water. On the occasion in question, there was a driver and one other person on board the towing boat, but the other person was not acting as an observer, and at no time was a signal given by either the driver, or the other person, to warn of the presence of the stationery boat. 104 The court held that by engaging in a sport or pastime a person might be held on occasion to have accepted risks which are inherent in the sport or pastime. (See Barwick CJ at 386, McTiernan agreeing at 386, Kitto J at 390, Taylor J at 391 and Owen J at 395-396.) However, the specific risks were that of the respondent's failing to warn of the stationery boat and steering a course that was closer to the stationery boat than was reasonable in the circumstances, and there was no evidence that the appellant had voluntarily assumed those risks. 105 The cases involving sporting injuries feature prominently in recent decisions. In Hadland v Council of the City of Blacktown, unreported, Court of Appeal, 21 May 1997, the appellant was injured whilst playing amateur cricket for St Marys RSL Cricket Club on a pitch owned by the council in a district competition. The pitch was made of artificial grass with the result that the bounce of the ball was normally more predictable than on some turf pitches. The appellant faced the first ball of a match in December 1991. The ball hit a dangerous patch on the pitch, rose steeply and penetrated the grill on the appellant's helmet, striking him in the nose. 106 The dangerous patch in the pitch had previously come to the attention of the plaintiff and others. In fact, the club had already written a letter to the council expressing concern at the condition of the pitch. During the 1990/1991 season the plaintiff had noticed a section of the pitch that was devoid of [artificial] grass and that appeared to have been burned. The plaintiff had bought himself a helmet to wear when batting after he saw a batsman injured from a ball that rose steeply from the pitch, hitting the batsman in the left temple early in the 1991/1992 season. 107 The plaintiff failed at the trial, the judge finding that the plaintiff was fully aware that a ball landing on the dangerous patch was likely to rise at a pace and height to cause him injury, that he was aware of the complaints made about the pitch and was aware that it constituted a risk of injury to himself and other players. 108 On the appeal, Clarke AJA commented on the "dearth of authorities" relevant to the defence of volenti and the limited examination of the question presented by the third element, which the defendant must prove to sustain the defence, ie the requirement that the plaintiff voluntarily accepted the relevant risk. With respect to this element he said: "[T]he correct approach requires that the court focus on the factual issue whether the plaintiff voluntarily agreed to accept the risk of injury and its consequences. In one sense the issue may be seen to pose two distinct questions. First whether the acceptance was voluntary and secondly, assuming that the plaintiff's actions were voluntary, and that there was no express acceptance of the risk, whether the inference should be drawn from all the circumstances that the plaintiff accepted the relevant risk, in that he or she agreed to bear the consequences of any injury. No doubt there will be cases where these questions are clearly separate but in other cases it may well be that those factors relevant to the consideration of the voluntariness question bear on both…The weight of authority and the observations of text writers seem to me to support the proposition that it is only where the inference is drawn that the plaintiff consented to run the risk at his or her own expense, in the sense that he or she could not sue if injured, that the defence will prevail (Charlesworth and Percy, supra 3- 109; Salmond and Heuston on the Law of Torts, 20th Edition, p487; the Law of Torts, Fleming, 8th edition, 296- 297). Some writers have contended that it must be possible to infer an agreement between the plaintiff and the defendant, whereby the former assumes the relevant risk, before the defence will stand but it seems to me the better view is that it is necessary only to establish that the plaintiff accepted the risk in the sense that he or she gave away his or her right to sue if injured as a consequence of the danger. A conclusion on this question will invariably depend upon whether that inference is available from the proven material"

109 In Hadland Clarke AJA held that the inference that the appellant voluntarily agreed to accept the risk of injury and its consequences was not open. He considered that: "The evidentiary material simply does not support the inference that the appellant was agreeing to run the risk of injury. It goes no further than showing that the appellant, and all the other cricketers, elected to play despite their knowledge of the dangerous condition of the pitch in circumstances where any other election would seem to have been out of the question [an allusion to the consequence of forfeiting the game]." (See also Beck v State of New South Wales & Anor [2001] NSWSC 278). 110 The defendant submits, that in the present case, all of the necessary ingredients of the defence are satisfied. The plaintiff was fifteen, he had been engaged in the practice of hanging out train windows and doors for some time and was well aware of what he was doing. The defendant submits that there was "full consent, full knowledge, and no coercion." 111 However, the plaintiff's evidence, which I accept, is at odds with this submission. The following exchange occurred when he was cross-examined: "Q. I take it that on the occasions that you applied graffiti to the outside of trains before this accident --- A. Yep. Q. - you knew that you were engaging in a very dangerous activity? A. Yes. Q. Even though you were engaged in a dangerous activity, you were prepared to do it? A. Yes." 112 He was then asked about the social standing to be gained from spraying graffiti: "Q. You were able to do that [ie increase his standing with his friends] by demonstrating that you were doing something which you knew was dangerous, but you got away with it? A. Yes. Q. Were you prepared to accept the consequences if you got hurt? A. I thought that nothing was going to happen. Q. Why did you think nothing was going to happen? A. Because I thought that nothing could happen, you know. Like, I knew something would happen, but I was young and I thought that nothing could hurt me and stuff, you know, so --

113 I accept that the plaintiff knew, in a general sense, that hanging from train windows was dangerous. However, I do not believe that he appreciated that there was a risk he would hit a stanchion or other fixed object. Although I would infer that he accepted a risk that he might fall, as a reflection of some generalised notion of risk, I cannot conclude that he accepted the relevant risk or agreed to bear the legal consequences of any injury. 114 It follows that the defence has not been established.

Contributory negligence 115 The plaintiff accepts that even if entitled to a verdict it must be significantly reduced on account of the plaintiff's negligence. A fifty percent contribution by the plaintiff was accepted as appropriate. The relevant principles are discussed in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. For my part the plaintiff's negligence should be reflected in a greater proportion. Having regard to the circumstances of the accident, which involved the plaintiff in a deliberate act which exposed him to danger, I find that the plaintiff's negligence contributed seventy-five percent to the accident.

Damages 116 The plaintiff claimed the damages provided in the following schedule: General Damages: Out of pocket expenses 73,758.95 Past economic loss 93,600.00 12.3.97 - 4.9.01 at $400 net pw Future economic loss $400 net pw x 5% multiplier 318,920.00 938 x $400 = $375,200 less 15% discount Griffiths v Kerkemeyer 167,076.00 (i) Past care (ie November 1994 to 4.9.01) ie 28 hours pw x $17 per hour = $476 pw x 351 weeks

(ii) Future care 123,552.00 (a) Sept 2001 - Sept 2002 (ie 12 hours per day x 7 days x 51 weeks

Gale Report (b) Thereafter, ie Sept 2002 to end of life at $17 per hour x 1006 x 28 hours pw 478,856.00 Items in Gale Report (i) 3.1.1 5,760.00 (ii) 3.1.2 1,800.00 (iii) 3.1.3 case manager x 2 years x $6,480 12,960.00 (iv) 4.1.3 Protective Commissioner Future medical costs 4,500.00 (i) annual gym membership x 10 years at $450 pa (ii) physiotherapy at $840 pa x 10 years 8,400.00 (iii) initial gym membership (iv) medication for life: 1,000.00 Tegretol Cogenten 7,597.00 Fluanxol 843.00 (v) Visits to 1 specialist pa and 2 general practitioner per month (ie $990 pa x 10 years) 1,609.60 9,900.00

117 Damages in the present matter are controlled by the relevant provisions of the Motor Accidents Act 1988. 118 The parties are agreed that applying the relevant provisions, the maximum amount recoverable for general damages in a most extreme case is $284,000. This is not a most extreme case and in my opinion only seventy percent of a most extreme case would be appropriate, being the sum of $199,000. Out of pocket expenses are agreed. 119 With respect to past economic loss the defendant accepts that but for his injuries the plaintiff may have obtained employment, but submits that there was only a fifty percent chance he would have earned the sum claimed by the plaintiff. I accept this submission. The plaintiff's behaviour at school and uncooperative attitude at home, suggest that he may have had real difficulty, firstly obtaining and then sustaining gainful employment. 120 Regrettably, I have formed a similar conclusion with respect to the claim for future economic loss. The defendant submits that rather than a discount of fifteen percent, a discount of thirty-five percent is appropriate. I accept that submission. Accordingly, I assess past economic loss in the sum of $47,000 and future economic loss in the sum of $244,000. 121 The Griffiths v Kirkemeyer claim for past and future care are agreed but for the claim from September 2002. 122 With respect to this claim the defendant submits that the plaintiff will be able to be retrained so that he can carry out many tasks for himself over time and would only require of the order of 12 hours per week by way of assistance. The appropriate sum on this basis would be $205,224. 123 Although this matter is difficult I have concluded that the plaintiff will undoubtedly come to perform many more tasks for himself in the future. Notwithstanding his severe injuries and difficult circumstances, in my opinion further, retraining will prove successful and he will be able to lead a significantly independent life. The fact that this has not already occurred is due to the willingness of the plaintiff's mother to make sacrifices on her son's behalf. Once the plaintiff is confronted by the need to do more for himself, I have little doubt he will respond. I would allow only the sum acknowledged by the defendant. 124 The other matters in the schedule are agreed. Accordingly, I would, if I had found for the plaintiff, have assessed damages in the sum of $1,113,981.00 to which interest would be added. Any verdict would have to be adjusted having regard to my finding of contributory negligence. 125 However, for the reasons I have stated, I am of the opinion that there should be a verdict for the defendant and judgment accordingly. ******

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