Ryan v State Rail Authority of New South Wales

PARTIES : Jamie Lee Ryan by his Tutor Nancy Joan Ryan (Plaintiff) State Rail Authority of New South Wales (Defendant) JUDGMENT OF : Dunford J

COUNSEL : R McIlwaine SC with P O'Connor (Plaintiff) D Grieve QC (Defendant) SOLICITORS : Lyons Barnett Kennedy (Plaintiff) Dibbs Crowther & Osborne (Defendant) CATCHWORDS : NEGLIGENCE - 13 year old boy jumps onto moving wheat train - falls off - railway yards unfenced - whether defendant negligent - contributory negligence - assessment of damages. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 479; Hackshaw v Shaw (1984) 155 CLR 614; Thompson v Municipality of Bankstown (1952) 87 CLR 619; Munnings v Hydro Electricity Commission (1971) 125 CLR 1; Commissioner for Railways v Cardy (1960) 104 CLR 275; CASES CITED : Hughes v Lord Advocate [1963] AC 837; Southern Portland Cement Ltd v Cooper [1974] AC 623; Stone v Clarence Municipality (1993) 79 LGERA 392; Pederson v Barclay and ors (unreported - NSW Supreme Court - Dunford J - 27 June 1996); McHale v Watson (1966) 115 CLR 199; Mye v Peters (1967) 68 SR(NSW) 298; Arvind & Kundo v Greco (unreported - Court of Appeal - 24 July 1995). DECISION : Judgment for the plaintiff in the sum of $341,210.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 16 DECEMBER 1999 20112 / 97 - Jamie Lee RYAN by his Tutor Nancy Joan Ryan v State Rail Authority of New South Wales JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff claims damages for personal injuries suffered by him when he fell from a moving wheat train at Werris Creek on 4 September 1995 at about 7.15 pm when he was aged 13 years, having been born on 3 February 1982.

Facts 2 To understand the plaintiff's case it is necessary to give some general description of the Werris Creek railway establishment as it was at the time and as it largely still is. 3 Werris Creek is only a small town but it is and was the centre of railway operations in the north west of the state, being the junction of the Main North Line to Tenterfield and the North West Line to Moree and Mungindi, the lines meeting at the southern end of the railway station in the form of a y-intersection. It also has and had extensive shunting yards mainly south of the passenger station and known as South Box. North west of the station and close to and running off the Moree and Mungindi Line is a bulk wheat siding and further to the east about half way between the bulk wheat siding and the Main North Line was formerly another goods siding which was no longer in use in 1995 and the tracks of which were no longer connected to the tracks which were in use, although the former tracks had not been entirely removed. East of that former goods siding was what has been described as the SRA Perway Yard used by railway staff which had some small buildings on it. 4 Access to the passenger station was by road leading from the main street north of the station by a level crossing across the Main North Line and then along a road to a car park near the northern end of the station, or by a footbridge from the main street to near the northern end of the car park. 5 Between the western boundary of the Perway Yard and the north eastern boundary of the Moree-Mungundi Line was private grazing land fenced with a five strand barbed wire fence meeting its apex at a strainer corner fence post. 6 These various features are depicted in Ex. C, and the photos taken 15 December 1995 (Ex. A) whilst the corner fence post is shown in Ex. 1. Along the southern and western boundaries of the car park there was in September 1995 a steel mesh fence about 3-4 feet high shown in the bottom right hand corner of Ex. A2, and in Exs. B1 and B7 and on the south west boundary of the railway area was a wire netting fence about 7 feet high topped with two strands of barbed wire shown in Exs. B8, B9 and B10. There was at that time no fence between the Perway Yard and the Moree-Mungindi Line from the end of the car park to the commencement of the private grazing land at the strainer corner fence post. 7 The plaintiff said that on the evening in question he met three of his mates, Jamie MacBeath, Garry MacBeath and Jarrod Kirkwood and went with them to the western side of the footbridge where they talked for a while. After some time they heard a train coming from the direction of the silos but not from the silos themselves, so he and Jarrod Kirkwood walked down to the railway line and onto the track area. They walked further along the track towards the silos and hid behind a tree, the route taken being marked by him on Ex. D. There was no fence to stop them and he said that if the fence that is there now had been there he would not have attempted to climb over it. They watched the train, which was a wheat train, approach and after the locomotive went past they came out from behind the tree, ran along the side of the train and jumped up onto the ladders on the side of it. The plaintiff said he jumped on, climbed over the top of the wagon so that he was on the other side and was climbing down the ladder on the other side of the wagon when his foot slipped, he felt numbness and knew what had happened, hit the ground and that was it. He said that he had done a similar thing a couple of times before, that is climbing onto the ladders of the moving freight trains, but this was the first time he had attempted to climb up one side of the wagon and climb down the other side. 8 He was not challenged on this account of what happened, but it is somewhat different to what he said when interviewed by police on 22 October 1995 (Ex. 4). On that occasion he said "and the train came and I jumped from the station side and went through the gap between the carriage, I jumped off, I went to get back on again and one foot slipped through the rail of the ladder. I felt it go under the wheel and I was sitting on the ladder on the bottom step then I thought I better get off so I pushed myself off and onto the ground." In other words he indicated on the earlier occasion that he had not climbed over the top of the wagon to get from one side to the other, but had moved around in the space between two successive wagons, and had actually got off and was climbing up the other side rather than climbing down at the time he lost his footing and slipped. 9 He agreed that he knew that the activity was wrong and that it was dangerous, and that if they had been seen by any responsible adult near the railway line they would have been told to leave. There was evidence that children and young people did tend to use the Werris Creek Railway Station and adjoining car park for riding bikes, skateboards and other recreational activities, but that whenever railway staff saw them they were told to leave or were hunted away. There was no evidence that youths had actually played on or adjacent to the railway tracks or that railway staff had been aware of the plaintiff's previous couple of escapades joy-riding the wagons. 10 It appears that the plaintiff's shoe was found almost level with the boundary of the private grazing land to the north-west of the railway area near the fence corner post and the plaintiff himself was opposite the northern building on the railway station marked as "recovery point" on Ex. C. Neither the driver of the train nor his assistant saw the plaintiff or his companion, Kirkwood, and the only other railway employee on duty at the time was engaged at the southern end of the platform to exchange the staff and adjust the points so that the train could enter the South Box marshalling yards. He could not have been expected to see the plaintiff and his companion either cross the Perway Yard or go onto the lines, and as previously noted when they got there they hid behind a tree until the locomotive went past. 11 Since the accident, a steel mesh fence about 6 feet high has been constructed from the end of the car park to the commencement of the private grazing land at the strainer corner fence post as shown in Exs. B1 and B7 and shown by a dotted green line on Exs. C and D. This fence is identical to one which has been erected on both sides of the line for the whole length of the railway track through the built up area of the City of Tamworth. If in place it would have effectively blocked the access route used by the plaintiff on the night in question. It was not erected in order to prevent access by unauthorised persons to the railway line but to prevent SRA staff when driving vehicles from gaining access to the authorised level crossing leading into the car park from a position inside the gate and the warning sign. It was not expensive to erect and took about a week to build. There is, and has for many years also been, a post and wire mesh fence topped by two strands of barbed wire about 7 feet high on the western side of the railway area as shown in Exs. B, 8, 9 and 10.

Liability 12 Mr Grieve QC on behalf of the defendant relied on the facts that the plaintiff was a trespasser on the defendant's property and that, although children were known to the defendant's agents to play on the railway station from where they were moved on, there was no evidence that the defendant knew or had reason to believe that the plaintiff or any other children were playing on or near the actual railway tracks or that they were climbing onto and over moving wheat wagons. He accordingly submitted that the defendant owed no duty of care to the plaintiff, and alternatively, if it did owe such a duty, it was not in breach thereof. 13 A number of particulars of negligence were alleged in the statement of claim, but having regard to the fact that the plaintiff and his companion moved to the area adjoining the railway tracks under cover of darkness and then hid behind a tree to avoid detection by the driver of the locomotive, and the plaintiff's frank and honest admission that warning signs would not have deterred him, the only particular on which the plaintiff ultimately placed reliance was the failure to erect fences around the track in the area of Werris Creek Station. 14 Nowadays it is not necessary to consider the different categories of entrant and the separate duties owed to those different categories but the issue is whether, in all the relevant circumstances including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care to the plaintiff under the ordinary principles of negligence; and the touchstone is that there be reasonable forseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; at 488 citing Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3. 15 In this case the nature of the defendant's occupation was that it used the land for the passage of trains, objects which because of their movement, bulk, weight and, at times, speed are inherently dangerous. 16 The plaintiff was a trespasser in that he was on or near the railway tracks without permission and for no lawful purpose, and his actual presence in that area was not known to any of the defendant's servants; but it was known that from time to time children played on the railway station and in my view it was reasonably foreseeable that young persons, boys in particular, would be attracted to the moving trains, and it was also foreseeable that if they got onto or close to the lines they could be injured in a variety of ways, even if they did not try and jump on or ride moving wagons, but even that was a foreseeable possibility in respect of boys of a certain age. 17 The law has long recognised that children are attracted to things which do not attract adults and this "allurement" has been recognised as relevant to the duty of care owed, particularly to child trespassers e.g. Thompson v Municipality of Bankstown (1952) 87 CLR 619 at 633; Munnings v Hydro Electricity Commission (1971) 125 CLR 1 at 35-36; Commissioner for Railways v Cardy (1960) 104 CLR 275 at 326-7; Hughes v Lord Advocate [1963] AC 837 at 851; Southern Portland Cement Ltd v Cooper [1974] AC 623 at 640-1, 644-6. See also Stone v Clarence Municipality (1993) 79 LGERA 392 at 400; Pederson v Barclay and ors (unreported - NSW Supreme Court - Dunford J - 27 June 1996). 18 In my opinion the risk of young boys going onto the railway line was reasonably foreseeable and was not far fetched or fanciful, and accordingly the plaintiff was under a duty to take reasonable care to prevent injury to such persons, including the plaintiff. This could have been done simply and economically by erecting a fence where one was subsequently erected. It matters not that the fence was ultimately erected for another purpose; it could and should have been erected to prevent, or at least hinder, access to the railway lines and moving trains. Young persons were known to congregate and/or play on the platform and in the area of the car park and Perway Yard and these areas were connected by the footbridge to the main street of the town, yet the lines where trains ran past these areas were not fenced off. At one stage Mr Grieve sought to test the matter by proposing that the fence could not have been built whilst the now disused siding was still in use, but the fence could have at that stage been built to the east of that siding, and been equally effective. 19 I am accordingly satisfied that the defendant owed a duty of care to the plaintiff and was in breach of that duty. As the plaintiff clearly suffered damage, the defendant is accordingly liable in negligence. 20 On the issue of contributory negligence, a young person is expected to exercise the degree of care for his or her own safety as would reasonably be expected of a child of the same age, intelligence and experience: McHale v Watson (1966) 115 CLR 199; Mye v Peters (1967) 68 SR(NSW) 298. 21 In the present case the plaintiff was 13 years old, he had lived in Werris Creek, a railway town, virtually all his life and was familiar with trains. He knew they could be "lethal objects", that what he was doing was wrong and dangerous; and he also knew that if he was observed by any responsible adult, he would be chased away. In these circumstances he must accept a significant degree of responsibility for his injuries, and I assess such responsibility as one third. The damages will be apportioned accordingly.

Damages 22 As already noted, the plaintiff was born on the 3rd of February 1982 so he was aged 13 years at the time of the accident and is now 17, going on 18, years. He has been raised from birth by his grandmother and since the age of 4 they have lived in the township of Werris Creek. He attended Werris Creek Public School and his secondary schooling was at Quirindi High School, where in 1995 he was in Year 8. He was not a good student and the only subjects he enjoyed were metal work and agriculture. Prior to his accident, (bearing in mind he was then only 13½) he had in mind that he wanted to be a mechanic or a welder. He was however successful at cricket and rugby league which he played at school and he also played club rugby league for Werris Creek in the local junior league. Although he was not good at his studies, he appears to have had no problems either socially or health wise prior to the accident. 23 When he slipped off the wagon he fell beside the track, he felt numbness in his legs, and experienced a lot of pain. Jarrod Kirkwood and Jamie and Garry MacBeath came to him and someone rang the ambulance. After a short time, his grandmother and brother and sister also arrived. Whilst waiting for the ambulance he realised he had been seriously injured and felt very scared. He was taken by ambulance to Tamworth Base Hospital, continuing to suffer pain which felt as though he was being continually stabbed over and over again in the one spot with a knife. 24 At the hospital he was found to have suffered a traverse fracture of the proximal shaft of the left femur whilst the right leg had suffered extensive compound comminuted fractures and dislocations. The left femoral fracture was treated in traction with a left tibial Steinman's pin whilst the right leg was debrided, the fracture of the tibia and fibula were reduced and the reduction maintained with an external fixateur and fracture dislocations of the ankle and foot were reduced and maintained with Kirshner wires and a traverse Steinman's pin whilst the wound was loosely closed and left elevated on a pillow and observations of circulation carried out. But there was a loss of circulation below the levels of the injuries and a gradual development of dry gangrene, and ultimately a right below knee amputation was performed on the 11th of September. At the same time the left femoral fracture was treated with a closed Kuntchner nail and proximally locked. His reaction when told that his right leg was to be amputated was that he felt "shattered", then he was tearful and angry. He was on extensive pain killers for 3 or 4 days after the surgery but after that the stump area became very painful. 25 Post-operatively, progress was complicated by a tendency of the left femoral fracture to externally rotate and a distil locking screw was inserted on the 26th of September. There was delayed wound healing with the right below knee amputation stump, but he was able to walk on crutches and discharged home on the 15th of October, after some 6 weeks in hospital. Before leaving hospital he had some training in the use of an artificial leg which he found difficult and frustrating. His grandmother stayed with him the whole time he was in hospital to provide moral support and occasionally to get things for him when the nurses were not available. He does not think he would have coped emotionally if his grandmother had not been there with him. 26 When he left hospital he had a temporary prosthesis and also crutches which he found difficult to manage at home particularly because of the steps. On the 8th of December 1995, some 5 weeks after leaving hospital he received his first permanent prosthesis and he had some problems with this, and required his grandmother to dress it for him, but it increased his mobility. 27 At the beginning of 1996 he returned to school in Year 9 but found himself further behind with his studies than before because of the time he had missed. He also had difficulty getting up and down the stairs at school and to and from class and was experiencing phantom pains. He experienced a degree of teasing and name calling from other students, and the teachers required him to walk to and from the sports grounds on sport afternoons, even though he was unable to take part. He had quite a number of days absent from school during that year, a total of 115, mainly on sports days because rather than watch others play sport he simply did not go or had his grandmother pick him up and bring him home, and he also suffered infection and blisters on the amputation stump. 28 Meanwhile in July 1996, he received a replacement prosthesis due to the fact that he was growing. As he was not coping at school he decided to leave school at the end of Year 9 in December that year 1996. In 1997 he did not seek work because he did not feel he was physically ready for it. During that time he started to notice pain on the right side of his lower back particularly when lifting things. 29 At present he is unable to run and cannot squat or kneel easily, and if he does so for any time he has pain below his right knee. He also gets pain in the stump if he walks or stands on it for periods of time and pressure sores on the stump for which he needs to apply powder and take antibiotics. Similarly his left leg aches towards the end of the day, mainly in the hip area, particularly if he has done a lot of walking. He cannot play any sports, particularly cricket or rugby league, and he misses the latter in particular. He said he is bothered emotionally by having a prosthesis because people look at it and ask him questions about it and he tends to wear long pants whenever possible. He has not worked in regular employment but he has a friend who drives a truck and he goes with him not infrequently; he helps him with any mechanical breakdowns and can travel in the truck for long periods without any pain or other problems. 30 There were no recent medical reports, but in November 1997, Dr Geoffrey P Hibbard, Consultant Physician, reported that examination of the left leg appeared completely normal and there appeared to be full range of movement of the right knee with the prosthesis, and apart from scars on the left thigh there was no other clinical abnormality detected but he noted continuing phantom pains and periods of depression and irritability due to the frustration involved with the loss of the lower leg and the severe restriction on walking and leisure pursuits. He considered these complications were most likely permanent and irreversible. 31 At about the same time Peter Briggs, Clinical Psychologist, noted that he was able to wear shorts and attend the local swimming pool without undue embarrassment and, although he had been depressed in the early stages, he reported that he no longer felt tearful and depressed but was continuing to have problems with anger. He found no continuing signs of significant depression or anxiety but emphasised that the plaintiff nevertheless had significant adjustment problems which will be more emotionally impactful at different times in his future life together with increased problems with pain and discomfort which are likely to increase his emotional reaction. 32 I assess the plaintiff's general damages for pain and suffering, loss of amenities, loss of interference with leisure activities and loss of enjoyment of life at $160,000 of which I attribute $60,000 to the past, and I allow interest on this latter amount at 4¼ years at 2%, namely $5,100. 33 Out-of-pocket expenses to date are agreed at $32,357 and in respect of future out- of-pocket expenses there is agreement for the cost of renewal of the prosthesis of $109,573. There is a claim for Tegretol and powder for application to the stump which together total $12.50 per week. This amount does not seem to be seriously in dispute and, having regard to the plaintiff's expectation of life, namely 63 years, I allow $12.50 per week at 3% for 63 years, namely, $18,639. A claim is also made for regular visits to a general practitioner, the plaintiff claiming that these should be allowed at 26 visits a year or once a fortnight, whilst the defendant submits that 6 times a year would be more reasonable. At present the plaintiff attends because of pressure sores on the stump and all the general practitioner can do in this regard is prescribe pain killers and antibiotics. The pressure sores are more likely to be removed by adjustments to the prosthesis, which is already taken care of in the allowance for visits to the prosthetist. In my opinion, 6 visits a year appears to be a reasonable allowance for visits to the general practitioner. I really cannot see any possibility of him continuing to go to a general practitioner on account of his stump every fortnight for the next 63 years. Accordingly I allow 6 visits a year at the agreed rate of $38.50 per visit for 63 years, $6,624. These three items of prothesis, pharmaceuticals and general practitioner total $134,836 and I allow such amount for future out-of-pocket expenses. There is also a claim for the possibility of the need for future psychological counselling, but in my view the evidence on this issue is too vague to justify allowing anything for this item. 34 The plaintiff left school at the end of 1996 and made no effort to seek work until 1998. At the beginning of that year he registered with Job Network and subsequently applied for work at Woolworths and Kay's Meats in Tamworth. Neither organisation had advertised that they had any job vacancies and he simply walked in and applied for employment. Both applications were unsuccessful. Subsequently in August 1999 he applied for a position which was advertised at Paiada Pty Ltd as a chicken catcher; again this application was unsuccessful and he remains unemployed. 35 The plaintiff has grown up in a small country town. He was not performing well academically at school before his accident and the IQ testing places him towards the lower end of the community. As a 13 year old before the accident he had some ideas that he might like to become a mechanic or a welder and he liked doing things with his hands, but whilst he might have gone on to become a mechanic or a welder, I find that he more likely would have become an unskilled labourer probably working on farms, or for a local government authority and he may have suffered significant periods of unemployment. 36 He has been assessed (Ex. 6) as having the physical and intellectual capacity for a number of occupations notwithstanding his injury, and his evidence is that after the case is over his first priority will be to endeavour to find employment. He has been travelling on a truck with a friend of his not for wages but for something to do, and is able to travel lengthy distances seated in the truck without any particular discomfort. He is apparently able to change a tyre but suffered pain after doing so. 37 Notwithstanding the loss of his right leg below the knee, I am satisfied that he does have a capacity for gainful employment but he will be unfit for work involving bending, squatting, climbing ladders or work that requires him to spend a large part of the day on his feet. Whereas he could formerly have worked as a farm hand, builder's labourer, construction worker or such like, I consider that he is now most likely to be employable as a process worker, such as in a fruit and vegetable factory. Some of the other vocations said to be suitable to him would not readily be available in the Tamworth, Werris Creek area. He has observed his friends working as welders and feels that that would be beyond his capacity because of the bending and twisting involved. Moreover, he can expect longer periods of unemployment than if he had not lost his leg. Agreed weekly award wage rates were produced, including farm hand - $353.10 net per week, builder's labourer - $379.28 net per week, cleaner - $394.45 net per week and construction worker - $433.45 net per week, welder - $353.85 to $388.45 net per week, whereas the award wage for a fruit and vegetable factory hand under the Food Preservers (State) Award for an adult is $301.40 per week net. Using these figures merely as a guide and having regard to the factors to which I have referred including the reduced employment opportunities in country areas and the plaintiff's lack of education I assess his loss of earning capacity at $130 per week net. No claim is made for loss of earnings to date but for the future I allow to age 65, 47 years at $130 per week at 3% p.a. less 15% for vicissitudes, namely $146, 447. 38 In respect of the claim for loss of superannuation benefits, no precise figures are available, but I have done some rough calculations based on a gross weekly wage loss of $150 along the lines suggested by counsel, and on this basis I allow $19,000. 39 There is also a claim for unpaid domestic assistance, past and future. During the 6 weeks that the plaintiff was in hospital his grandmother stayed at the hospital and provided him with emotional support. She also fetched things for him when the nurses were not around and he was reluctant to call them. Whilst it was undoubtedly beneficial to have her provide the emotional support which she did, this is not, as I see it, a type of service or domestic assistance which can be the subject of a claim for damages, because it is not the type of service which could have been purchased at a price from someone else if not provided by the grandmother, as it was only on account of her relationship with him that she was able to provide this emotional support. I therefore allow nothing for the period whilst he was in hospital. 40 Following his discharge from hospital and for a period of about 6 months thereafter whilst he was on his temporary prosthesis and initially on his first permanent prosthesis, and whilst he still had a pin in his left femur, the plaintiff needed a considerable degree of assistance around the house and in his ordinary everyday living, including getting him in and out of the shower, preparing his clothes and his prosthesis, fetching things for him around the home and such like. During this time he also had a number of blisters on the stump and these required treatment and dressing. In respect of this period I allow 3 hours per day at the agreed rate of $18.75 per hour, i.e. $56.25 per day or $393.75 per week for 26 weeks = $10,237. Since then she has on occasions rendered him assistance such as dressing blisters on the stump when he has had them and matters of that nature but this is intermittent and irregular and she also does some other things for him like preparing his prosthesis each evening and making him a sandwich before she goes to bed, but these are matters which, on the plaintiff's own admission, he could easily do for himself. In respect of the period, from 6 months after he came out of hospital and for the future I am not satisfied that the plaintiff has any valid claim for further domestic assistance. He is however entitled to interest on the amount of $10,237: Arvind & Kundo v Greco (unreported - Court of Appeal - 24 July 1995). It is in respect of a closed period, and so I allow interest on that sum at 10% for 3 years 9 months, total $3,839. 41 The various heads of damages may therefore be summarised as follows: General damages $160,000 Interest on past general damages 5,100 Out-of-pocket expenses to date 32,357 Future out of pocket expenses 134,836 Loss of future earning capacity 146,447 Loss of future superannuation benefits 19,000 Loss of domestic services 10,237 Interest thereon 3,839 $511,816

After allowing an one third apportionment on account of the plaintiff's contributory negligence, these damages are reduced to $341,210.

ORDERS 42 I direct the entry of judgment for the plaintiff in the sum of $341,210 and order the defendant to pay the plaintiff's costs of the proceedings. 43 Having regard to the fact that the plaintiff will turn 18 in approximately 6 weeks time, and it would be undesirable to incur the charges involved in paying the money to the Public Trustee and then having it paid out again to the plaintiff, so shortly, I am prepared to accede to the request made by Senior Counsel for the plaintiff and so I order that the amount of the judgment be paid into Court and thence to the plaintiff's solicitors on an undertaking from a partner of that firm to pay the outstanding medical expenses, a sum of $600 per month to the plaintiff until his 18th birthday and the balance to be held as controlled money in an interest bearing deposit without charge to the plaintiff other than bank fees until he turns 18 years, whereupon it is to be paid to the plaintiff. -----------------

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