SRA v MADDEN

COUNSEL : Appellant - L King SC/J G Campbell Respondent - R V Letherbarrow SC/D M Wilson SOLICITORS : Appellant - Gillis Delaney Brown Respondent - Stacks The Law Firm CATCHWORDS : NEGLIGENCE - personal injury - whether duty owed by rail authority to take reasonable care to prevent young children entering into railway station to play games - whether duty breached - plaintiff's case was that system of supervision adequate but not complied with - whether injury to foot when jammed in escalator caused by breach - whether trial Judge erred in assessment of damages for future economic loss David Jones (Adelaide) Limited v Roupas [1965] SASR 17 David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 Wyong Shire Council v Shirt (1980) 146 CLR 40 CASES CITED: Chapman v Hearse (1961) 106 CLR 112 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Chappell v Hart (1998) 195 CLR 232 Romeo v The Conservation Commission of the Northern Territory (1998) 192 CLR 431 DECISION : Appeal allowed - orders made

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40320/00 DC 1076/99 HANDLEY JA IPP AJA ROLFE AJA

23 October 2001 STATE RAIL AUTHORITY OF NEW SOUTH WALES v PAUL MADDEN

NEGLIGENCE - personal injury - whether duty owed by rail authority to take reasonable care to prevent young children entering into railway station to play games - whether duty breached - plaintiff's case was that system of supervision adequate but not complied with - whether injury to foot when jammed in escalator caused by breach - whether trial Judge erred in assessment of damages for future economic loss The respondent injured his right foot as a result of an accident which occurred at Redfern Railway Station. He was aged five at the time of the accident. He and a group of other children came into the station and continued a game of "tip" that they had been playing outside it. They were not accompanied by an adult. The respondent was travelling on an escalator and his shoelace, which was undone, got caught in the escalator. As a result, his right foot got jammed between the escalator and the comb plate at the lower landing. The respondent's case was that the appellant was negligent in allowing the respondent to enter the station with a group of other children with whom he was playing. The case was put on the basis that although the system devised by the appellant to prevent children entering into the station was adequate it was not followed in practice, nor was it enforced. The trial Judge found that the appellant was negligent and awarded damages of $265,400. The appellant appealed this decision on issues of liability and damages. HELD (by majority, allowing the appeal in part):

Per Handley JA, Ipp AJA agreeing: (1) The case law confirms the conclusion, which a tribunal of fact could reach independently as a matter of commonsense and ordinary experience, that moving escalators are dangerous to young children. (2) The trial Judge was correct in finding that a duty of care existed: the question is not whether the reasonable person would have foreseen that the child could be injured because his loose shoelace became caught in the escalator and jammed his foot between the escalator and comb plate - it is sufficient that he could reasonably foresee that an unaccompanied five year old might be injured in some way on the moving escalator. (3) A duty of care arose because of the foreseeable risk of injury to these young children if they were allowed to play unsupervised in the station - questions of breach and causation must be approached on this basis. (4) The Judge was not shown to be wrong in concluding that the appellant breached its duty of care: the respondent's evidence established a prima facie case and the appellant had the evidential burden of establishing that the exercise of reasonable care could not have prevented this group of children from entering the station when they did - there was no such evidence; the possibility that they entered when the station assistant was so busy that he could do nothing to stop them was entirely speculative. (5) Where a breach of duty occurred, which allowed the children to enter the station without supervision, an injury of the kind that was foreseeable was the very thing that was likely to result. Since an injury of that kind did result, the injury should be found to have been caused by the breach. Per Rolfe AJA (dissenting):

(1) The system which the defendant devised did not require the employees implementing it to stop, in all circumstances, children entering the station - it was dependent upon their seeing the children, a circumstance which may have escaped them if they were engaged in their other duties. (2) Since the plaintiff accepted that this system was adequate, there was no evidence to support a finding that the defendant breached its duty of care: there was no suggestion that the station staff were not on duty when the plaintiff entered the station; or that the station staff were not going about their various tasks, including having to look out for such children, in circumstances inimicable with negligence on their part. (3) The mere allowing of the plaintiff to enter the station was not causative of any damage: he could have trodden on his undone bootlace and fallen, or in some other way, fallen because his bootlace was undone in circumstances where it could not be said that the defendant, merely by having a station with a hard footpath onto which he fell and hurt himself, could be liable - once it was conceded that there was no negligence in relation to the escalator it took on the same character as the footpath. In relation to damages

The fact the respondent was unemployed and lacked education and motivation must be taken into account in the calculation of damages. The damages awarded by the trial judge were too high and should be replaced with an amount of $190,400. ORDERS

(2) Judgment for $265,400 in favour of the plaintiff set aside and in lieu thereof substitute judgment for the plaintiff for $190,400 with effect from 17 April 2000;

(3) Order for costs made by the trial Judge confirmed;

(4) Respondent to pay ¼ of the appellant's costs and to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40320/00 DC 1076/99 HANDLEY JA IPP AJA ROLFE AJA

23 October 2001 STATE RAIL AUTHORITY OF NEW SOUTH WALES v PAUL MADDEN JUDGMENT 1 HANDLEY JA: This is an appeal by the State Rail Authority from a judgment for $265,000 entered by Taylor DCJ on 17 April 2000 in favour of the respondent. The proceedings arose out of an accident to the plaintiff 's right foot which occurred on an escalator in Redfern Railway Station on the afternoon of Sunday 16 November 1986 when the plaintiff was 5 years of age. The Judge found that negligence had been established. The Authority has challenged the judgment on issues of liability and damage. 2 That afternoon the plaintiff was one of a group of 6 or 7 boys who were playing tip in and around the Eveleigh Street block. A "couple" of the boys may have been 2 years older, some may have been younger (CAB 3). The group proceeded down to Lawson Street, crossed to the other side of the road, and, unaccompanied by an adult, went through the main entrance to Redfern railway station on the western side of Lawson Street. 3 In 1986 the station included a vestibule (91) outside "the main gate" or ticket barrier where a ticket collector was on duty "all the time" (91). This gave access to the main concourse. The vestibule contained the ticket office and the clocks showing the estimated arrival times of the trains and the boards showing their destinations. An officer was normally on duty at the ticket office and a "clock man" was stationed in the vestibule to update the estimated arrival times and the intended destinations of the trains. The person on duty at the ticket office had no other duties (96), and the clock man was fully occupied even on a Sunday because of the number of trains (86). 4 A shop and public toilets were located on the main concourse (86, 91) on the far side of the main gate (94). The concourse gave access to the station platforms. In 1986 there were 10 above ground platforms. In addition there were 2 below ground platforms for the Eastern Suburbs railway to which access was gained by escalator (56-7). Five lines passed through the station (75), and the Judge found that in 1986 about 50 trains an hour stopped during daylight hours on a Sunday (76-7, 86). The station was open around the clock (97). The above ground platforms were located on 6 island type structures; those on the outside extremities serviced 1 line and those in-between serviced 2 lines. Access was gained from flights of stairs leading down from the main concourse (61). 5 There was quite a distance between the main entrance in Lawson Street and the top of the escalators leading to the below ground platforms. One first had to pass the stairs leading down to a number of the above ground platforms. The underground platforms were at the extreme western side of the station complex (62) some distance past the last of the stairs (63). 6 The evidence included photographs of the station entrance and the escalators, and an enlarged section of a street directory showing the general area. Unfortunately there was no plan of the station and its layout as it existed in 1986. The Court has had to attempt to build up a "picture" of the complex from the evidence of several witnesses. 7 The plaintiff and the other members of the group passed through the ticket barrier. The game of tip was then recommenced (17), someone else was "in" (17), and the plaintiff proceeded to the far end of the concourse and descended the escalator. The shoelace on his right gym shoe was undone and it got caught in the escalator when he was about half way down (20). He was unable to free himself in time and at the bottom his right foot became jammed between the escalator and the comb plate on the lower landing (39). Fortunately a woman was able to press the emergency switch and stop the escalator. The plaintiff was taken to the Children's Hospital where he underwent partial amputations of the first three toes of his right foot. Counsel for the plaintiff, both at the trial and before us, did not contend that the escalator was defective and it was clear that the appropriate warnings and safety features had been provided. 8 The plaintiff said that the group were behaving themselves as they walked through the ticket barrier in a normal way (16), but without having purchased tickets (3), and he had been "just standing" on the descending escalator. Apart from the clock man, the person in the ticket office, and the station assistant at the ticket barrier, the staff on duty comprised the station master, one person per double or single platform, a cleaner and two security staff who were on continuous patrol (79, 85-6). Their duty was to maintain order and they were also on call. 9 The Authority had in place a system which required its employees to check the intentions of young children who were seeking to enter the station concourse. It was common for unaccompanied children to enter the station in order to travel on trains, particularly during week days. However it was also common for unaccompanied children who were not intending passengers to be in and about the station on weekends. 10 It was no part of the plaintiff 's case, either at the trial or before this Court, that the Authority's safety arrangements were deficient, or that additional staff or some additional supervisory strategy should have been in place. The plaintiff 's case was that although the system devised by the Authority was adequate it was not followed in practice and was not enforced. 11 The station assistant at the ticket barrier was there to check tickets, particularly for persons leaving the station (91). The assistant on duty can be busy on a Sunday if people are arriving or leaving at the same time but it can be quiet (88). The station is quiet at weekends compared with week days (74), and at weekends most passengers use the station to change trains (83). Passengers changing trains did not have to pass out through the ticket barrier. 12 Mr Daniel, a station assistant who had been at Redfern station since 1982, said that whoever was on duty at the ticket barrier should have challenged the group of boys when they attempted to enter the main concourse, especially if they had no tickets, and were apparently coming to play a game (92). Indeed the Authority's book of rules and regulations for the conduct of traffic, and the guidance of employees, required persons who didn't have tickets to be stopped before entering the station (93). He said that if children were "mucking around or skylarking" within the premises "we call the security straight away" (90). 13 Nevertheless at that time unsupervised children were a problem in the station. They played games, and would throw bottles and stones if anyone upset them, sometimes even if they were asked for a ticket. It appears that the station assistant at the barrier was the target. The children were playing "all the time" (94) and they would try to sneak in (97). Railway staff tried to shoo them away but sometimes they were allowed through the ticket barrier because they said they wanted to go to the shop or the toilets (94, 96). Mr Daniel said that there was not exactly a practice of leaving these kids alone "we try to stop them coming in, at the same time we are trying to be nice to them, not to get in trouble" (95). The security staff also tried to do their best. "We try to stop them but didn't work … no system worked" (96). 14 The plaintiff had started kindergarten (24) and he walked there with his elder brother (28). Prior to the accident he had travelled on escalators with his mother (30). 15 Mr Stokmanis was responsible in 1986 for the maintenance of lifts and escalators for the Authority. He believed that at that time the escalators at Redfern carried signs warning users to stay within the yellow lines painted on the steps (34, 42) and to attend to children (41, 42). He was aware from records under his control of the accidents that occurred on the Authority's escalators (37). There were about 10 falls a month on them (47), but there were also one or two "footwear accidents" a year (40, 47). 16 The gaps between the moving stairway and the upright sides and at the comb plates on the landings created hazards for young children and others. The yellow lines on the stairway and the warnings to stand within them and attend to children showed that the Authority was aware of these risks. Thus these risks, especially to children, were not only reasonably foreseeable, they were actually foreseen. 17 The warnings may have been adequate for adults but they were ineffective as a means of protecting unaccompanied children as young as this plaintiff. The Law Reports furnish examples of accidents to young children on escalators, even when accompanied by their mothers (see David Jones (Adelaide) Limited v Roupas [1965] SASR 17 and David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185). These cases confirm the conclusion which a tribunal of fact could reach independently, as a matter of commonsense and ordinary experience, that moving escalators are dangerous to young children. 18 The trial Judge found that the Authority's system for keeping unauthorised persons out of the station complex, although adequate on paper, had failed in practice, and that "the failure was of considerable proportions". As he said a group of young children between 5 and 7 were allowed, without parental supervision of any kind, to play tip inside the station. 19 He found that there was a foreseeable risk of injury to a 5 year old who was allowed to use an escalator unaccompanied. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 Mason J quoted Glass JA in this Court who had referred to "the undemanding test of foreseeability". Moreover as the High Court said in its joint judgment in Chapman v Hearse (1961) 106 CLR 112 at 120-1: It is not necessary for the plaintiff to show that the precise manner in which his injuries was sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen … It would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. 20 The question therefore is not whether the reasonable man would have foreseen that the plaintiff could be injured because his loose right shoe lace became caught in the escalator jamming his right foot between the escalator and the comb plate on the lower landing. It is sufficient that he could reasonably foresee that an unaccompanied 5 year old might be injured in some way on the moving escalator. It was also reasonably foreseeable that one of these children would be injured in some other way while playing unsupervised in this large railway station where 50 trains were arriving and leaving every hour. 21 In my judgment the answer to that question is clear and the Judge was correct in finding a duty of care existed. 22 The duty of care arose because of the foreseeable risk of injury to these young children if they were allowed to play unsupervised in the railway station. Questions of breach of duty and causation must be approached on this basis. The duty could be performed most efficiently by preventing this group of children from entering the railway station without tickets or adult supervision. The size of the group and the common practice of young children using the station as a playground on weekends should have made it clear to the station assistant on duty the purpose that these children had in mind when they sought to pass the ticket barrier. 23 The children "just walked straight in" (3, 4). The plaintiff said he was not stopped by any member of the SRA staff and added "not that I recall" (4). There is no evidence that the children mingled with adults who were going in past the ticket barrier or attempted to sneak in some other way. There is no evidence that they entered when no one was on duty at the ticket barrier. The arrangements, if any, for another member of the staff to relieve the station assistant for meal or tea breaks, or visits to the toilet, were never explored. It is not to be supposed, in the absence of evidence, that there were no such arrangements and that at such times there was no one on duty at the ticket barrier. 24 The Authority's rules and regulations required there to be a person on duty at the barrier to collect the tickets and control entry. The plaintiff 's evidence established a prima facie case and the Authority had the evidential burden of establishing that the exercise of reasonable care could not have prevented this group of children from entering the main concourse when they did. There was no such evidence. The possibility that they entered when the station assistant was so busy that he could do nothing to stop them was entirely speculative. In my opinion the Judge's finding that the Authority was in breach of its duty of care has not been shown to be wrong. 25 The remaining question is that of causation and this too is governed by the nature of the duty. The relevant principles were stated by Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-422: In the case of an omission [questions of causation] are answered by reference to what would or would not have happened had the act occurred. In that exercise the larger philosophical questions are brushed aside and the issue is approached on the basis that when there is a duty to take a precaution against damage occurring to others … through accident, breach of that duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm … 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. There are two aspects to the question whether performance of a duty would have averted the loss or injury suffered. The first is the general sufficiency of the duty to avert or prevent harm of a kind in issue. The second involves a consideration of what would or would not have happened in the particular circumstances of the case. … So far as general sufficiency is involved in the question of causation, there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation. That is because a duty is imposed by the common law by reason that it is a precaution that a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of harm of a kind suffered. Thus questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as reasonable unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence. 26 See also Chappell v Hart (1998) 195 CLR 232 at 244-5 per McHugh J, a passage cited by the trial Judge. 27 If the Authority came under a duty of care to protect young unsupervised children from entering its station without tickets on a Sunday to play games because there was a foreseeable risk of injury, its duty was to take reasonable care to prevent such entry. Where a breach of that duty has occurred, which allowed the children to enter, an injury of a kind that was foreseeable is the very thing which is likely to result. If it does result then in my judgment the injury should be found to have been caused by the breach. Accordingly the Authority has failed to establish that the Judge's finding on causation was wrong. 28 The Authority also challenged the Judge's assessment of damages, particularly his award of $175,000 for future economic loss. This was awarded on the basis of a buffer, as contended for by the Authority, and the Judge rejected the plaintiff 's initial attempts to work from figures for his estimated weekly loss because of the uncertainties involved. 29 The plaintiff was 18 at the date of trial and had left school early in 1997 at the age of 15 without obtaining the School Certificate. Since then he had not pursued any course of vocational training at a TAFE, or obtained paid employment. However during 1999 he undertook a Skill-Share course making tables and bush furniture (185). 30 At the date of trial the plaintiff lived in Taree with his mother and siblings, including a brother who was 18 months older. This brother also left school at Year 9 and had never obtained paid employment (11). 31 The relevant medical evidence included reports by Dr O'Keefe (21/9/99), Dr Hyde-Page (14/2/00), who were qualified for the plaintiff, and Dr Hopcroft (14/3/00), who was qualified for the Authority. Dr O'Keefe said that with the assistance of an appropriate orthotic inside his shoe rather than just a tissue the plaintiff could be gainfully employed but with his educational level this would be difficult in the Taree area. When all factors were taken into account he thought it was highly unlikely that the plaintiff would ever join the workforce "but this is only partially attributable to his injury" (183). Dr Hyde-Page said that overall the outlook for the plaintiff as regards his job prospects was quite restricted due to his permanent foot disability (186). On the other hand Dr Hopcroft did not believe that this injury would incapacitate the plaintiff "for a vast number of jobs in the labouring workforce but preferentially he should seek work where prolonged walking can be avoided" (200). All three doctors said that the plaintiff would benefit from the use of an appropriate orthotic or prosthetic device in his right shoe, but at the date of trial this had not been obtained, and no claim for the cost of obtaining such a device was made on behalf of the plaintiff. 32 The Judge must have preferred the opinion of Dr Hopcroft because he said that it was likely that the plaintiff will find and have some sort of work (red 24). He added that the plaintiff 's employment prospects in the country were limited and "his prospects without the impact of the accident appear to have been limited" (24). In making this finding the Judge must have accepted the opinion of Dr O'Keefe to which reference has already been made. 33 The Judge assessed the plaintiff 's ongoing loss as being on the average between $100 and $200 a week "bearing in mind the difficulty the plaintiff will have in gaining employment as he moves from one employment to another". 34 The plaintiff himself said that he could do physical work (9) and was confident that there were jobs he could do (15). He appeared however to lack relevant motivation as although he felt he could do a TAFE course he had made no enquiries about doing one and could suggest no reason why he had not done so (12/13). He believed that he could do carpet laying and had a friend in the trade but had made no attempt to try to do this work (13). 35 The award must cover a period of 47 years until the plaintiff attains the age of 65. Mr Leatherbarrow SC sought to support the award by converting it into a nett weekly amount, including superannuation, and allowing 15% for vicissitudes, but this was the very approach the Judge had rejected in favour of awarding an amount by way of a buffer. 36 The question is not an easy one but when allowance is made for the plaintiff 's lack of education and motivation, the inability of the uninjured elder brother to obtain work for 4½ years since leaving school, the problems of obtaining work in Taree, and the vicissitudes facing an uninjured person in the plaintiff 's position, I have come to the conclusion that the award is too high and this Court must interfere. I would substitute an award of $100,000 for this head of damages and enter judgment for $190,400 in lieu of the amount awarded by the trial Judge. The Judge's order for costs should not be disturbed. 37 The Authority has had substantial success on the issue of damages but this occupied only a short part of the oral hearing and was dealt with in only a few pages of the written submissions. The evidence relevant to damages reproduced in the appeal book was also quite limited. Justice would be done if the respondent was ordered to pay ¼ of the appellant's costs. 38 The following formal orders should be made:

(2) Judgment for $265,400 in favour of the plaintiff set aside and in lieu thereof substitute judgment for the plaintiff for $190,400 with effect from 17 April 2000;

(3) Order for costs made by the trial Judge confirmed;

(4) Respondent to pay ¼ of the appellant's costs and to have a certificate under the Suitors Fund Act. 39 IPP AJA: I agree with Handley JA. 40 ROLFE AJA:

The plaintiff/respondent, Mr Paul Madden, ("the plaintiff"), for whom Mr RV Letherbarrow of Senior Counsel and Mr DM Wilson of Counsel appeared, was born on 16 October 1981. On 16 November 1986, he sustained personal injuries to his right foot whilst standing on a step of a descending escalator at Redfern Railway Station of which the defendant/appellant, State Rail Authority of NSW, ("the defendant"), for which Mr L King of Senior Counsel and Mr SG Campbell of Counsel appeared, was the occupier. 41 The accident occurred because the lace of the plaintiff's right boot was undone and caught in some part of the escalator, thus pulling his foot into the area of the moving escalator and its stationary side wall. It is unnecessary to explore this aspect further because, both at the hearing and on appeal, Mr Letherbarrow expressly disclaimed any negligence on the defendant's part in relation to the installation, operation, conduct or control of the escalator (transcript on appeal page 28), although the particulars of negligence pleaded a number of such allegations.

On the same page Mr Letherbarrow made it clear that the negligence on which he relied was the defendant's allowing the plaintiff to enter the Railway Station with a group of young children with whom he was playing. He added:- "There maybe an opportunity for persons out of the vestibule area to observe and stop this group of young children but the difficulty is we don't know how long they were in the station before the incident took place. There were some security guards and some other employees. But the real nub of it is that they shouldn't have been let in in the first place ." (My emphasis) 42 In November 1986 the plaintiff lived with his family in Eveleigh Street, Redfern. On the afternoon of 16 November, which was a Sunday, he was playing a game of tip with a group of about seven or eight children of approximately his age in Eveleigh Street. The game involved one child, who had previously been tipped by being touched physically, tipping another, whereupon the "tipped" child would be "in" until he touched another. The game apparently proceeded along Eveleigh Street to its essentially T Intersection with Lawson Street and along Lawson Street to the Lawson Street entrance to the station. Although the evidence was sparse, it appears that the plaintiff and the other children entered the station through that entrance. The case was fought on that basis. 43 Redfern is a large station on the fringes of the Central Business District. Mr Avery, the plaintiff's solicitor who used it reasonably frequently in 1986, said that it comprised to his knowledge, ten above ground platforms and two below ground platforms; BAB page 56, the two below ground ones being serviced by escalators on the descending one of which the plaintiff sustained his injuries.

THE PROCEEDINGS 44 The proceedings were commenced by an Ordinary Statement of Claim issued in the District Court on 3 May 1999. The pleadings bore little relationship to the case on which the plaintiff ultimately founded. They asserted his being allowed to enter the station whilst unaccompanied by an adult and to "descend the escalators". Ten particulars of negligence were pleaded, eight of which referred to the escalator in terms. The first two stated:-

(a) "failed to take all reasonable precautions to prevent the accident from occurring;

(b) failed to stop children entering the station without carrying a ticket "; (my emphasis). 45 I refer to the particulars because the plaintiff did not, so far as I can see, allege a case based on the only head of negligence on which he ultimately relied, namely "allowing these children into the Railway Station"; transcript on appeal page 28. 46 No objection was taken to the way in which the case was finally put. I point to the way the plaintiff pleaded his case to show, at least when that occurred, it did not seem to those advising him that merely allowing the plaintiff onto the station constituted negligence. In fact, the second particular I have quoted, assumes that there would be no negligence in permitting the plaintiff entry provided he was "carrying a ticket". The significance of this is that there was no allegation that the station constituted an allurement or some similar attraction, nor was there an allegation that the station contained any danger to a person entering it, even of the age of the plaintiff at the time, if that person had a ticket. There was thus no allegation of negligence that in no circumstances should the plaintiff have been allowed access at his then age unaccompanied or unsupervised by an older person. Perhaps regard was had, sensibly enough, to the fact that many children travel daily on trains to school basically unattended and unsupervised. 47 The hearing commenced before Taylor DCJ in Taree on 30 March 2000 and, on 17 April 2000, his Honour gave judgment in which he found a verdict for the plaintiff in the sum of $265,000, which comprised a component of $175,000 for loss of future earning capacity. The defendant has appealed against his Honour's finding of negligence and the award of $175,000, contending that if the first ground of appeal fails damages for loss of future earning capacity should be reduced to $100,000.

HIS HONOUR'S REASONS 48 His Honour set out the facts, noting that the plaintiff and his friends were playing "tip" in the station, and that the plaintiff said that "he was just standing on the escalator". The plaintiff elaborated on this at BAB pages 16-17. His Honour described how the accident happened and the plaintiff's subsequent physical problems. He then turned to the question of the escalator and, after noting some evidence about it, he summarised other evidence. 49 His Honour dealt with the evidence of Mr Daniel, a Senior Station Assistant employed by the defendant. Mr Daniel had said that at the time of the accident he was aware that unsupervised children from Eveleigh Street were using the station; that he regarded this as a continuing problem; that there were commonly children playing there; that station staff tried to "shoo" them away; that sometimes the children went to a shop and toilets in the station foyer (it not being clear whether one had to pass through the turnstiles to gain access to them); that sometimes children on being given a direction to leave would start throwing bottles and rocks "and all that" at the staff; that that situation improved when security guards were present; and that children could "sneak in". 50 The evidence of the plaintiff was that he and his friends "just walked straight into the station": (BAB page 3). 51 His Honour held that the evidence made it clear that the escalator was properly constructed and maintained and had appropriate warnings and safety features, at least for people old enough to read and comprehend them. 52 He held that the plaintiff entered the station by the Lawson Street entrance at which "there would almost certainly have been an employee of the defendant present on a Sunday afternoon". He said that it was usual for unaccompanied children to enter the station to travel on trains; that the defendant had in place a system implemented through its employees on the spot to check children's intentions; that the defendant's priority was for the safety of children; and that it was common for unaccompanied children, who are not intending passengers, to be "in and about the station precincts". The second and fourth matters seem to imply that if children, and for present purposes his Honour must have been considering those of the age of the plaintiff, were intending passengers, there was no further problem. This would accord with the second particular of negligence pleaded. 53 His Honour then said:- "The Court is of the opinion that it was the defendant's system in this instance that failed. The failure was of considerable proportions. A group of young children were able, without intervention, to play "tip" at the station entrance.

The defendant was the occupier of the Redfern Railway Station. It had a duty to exercise care over the entrance to the premises. The Court is of the opinion there is a foreseeable risk of injury to a five year old using an escalator unattended". 54 His Honour referred to portions of the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at page 47, and Kirby J in Romeo v The Conservation Commission of the Northern Territory (1998) 192 CLR 431 at page 478. These passages called for a reasonable response to a situation from which injury may occur. His Honour then said:- "This case, however, is one where the plaintiff does not now contend that additional staff, or some supervisory strategy, should have been put in place. It is likely that security staff were employed at the time. No expenditure or any steps were needed to be taken. The Court is of the opinion that the risk of injury was within the scope of the defendant's duty".

A CONSIDERATION OF THIS FINDING 55 The first three sentences of this passage make it clear that the plaintiff was not complaining about the adequacy of the system that the defendant had put in place to prevent unaccompanied children entering the Railway Station so far as the number of staff, expenditure, or the taking of other steps. In the submissions before this Court it was agreed that there were three staff members in the general vicinity of the Lawson Street entry and two security guards, who had the job of patrolling the whole station. 56 The three staff members were a ticket seller, a ticket collector at the barrier or turnstile and the man who changed the clocks indicating the departure and arrival times for trains. It was agreed that in addition to a supervisory role, they had the duties to which I have referred and, whilst engaged in them, their attention could be diverted from ensuring that unaccompanied children did not enter. It is also clear that all of them were likely to be busy in their various tasks at about the same time, namely when a train had just arrived. Nor was it suggested that if one or more left the area for a short time he or she should be replaced. Finally it was not contended that the security guards should have been at this entrance at all times. 57 One would have expected, particularly in the light of the circumstances which existed at the Lawson Street entrance, that if evidence was available to support the requirement for a better system, such as placing a security guard permanently at the entrance, it would have been called. But no attack was made on the adequacy of the implemented system, notwithstanding that it was this system which allowed unaccompanied children and children without tickets to enter the station. That was the system which the plaintiff accepted, for the purposes of the litigation, as satisfactory and requiring no improvement and in respect of which his Honour had said that no expenditure or other steps needed to be taken. 58 The last sentence of his Honour's quoted passage, is difficult, if I may say so with respect, to understand. I assume he meant to say that the defendant's duty was to prevent, so far as reasonable, the risk of injury. That is unexceptional. The problem with his Honour's reasoning, in my respectful opinion, is that once there was an acceptance of the adequacy of the system, which the defendant had devised and implemented, notwithstanding its suggested imperfections, it cannot be said that in that regard the defendant had breached its duty of care. 59 The question then is how, in the absence of such a breach, his Honour reached the conclusion that the defendant was negligent. There is no doubt that the defendant had a duty of care as an occupier, but here the duty alleged, in the case as fought, was to prevent entry. It was accepted that a proper system had been devised and implemented. In these circumstances, subject to some other causal act of negligence, there was, in my opinion, no breach of that duty. 60 At this point of his reasons, his Honour had not stated what breach of duty he found, unless his statement that the group of children were able to enter without intervention to play "tip" at the station entrance was intended to be the breach. However, as I have said, that could not be a breach unless the system to prevent that was shown to be defective. Not only was it not so shown, but it was accepted as being adequate. 61 His Honour nextly dealt with the question of causation and continued:- "The Court has concluded that the nature of the defendant's failure here in taking no action in respect of the children playing at the entrance and within the Station, and contrary to its system of supervision, materially contributed to the injury. The defendant is in breach of its duty to the plaintiff". 62 There are two concepts involved in this passage. First, his Honour draws from the defendant's failure, to which he refers, that there was a breach of duty. However, the system in place did not require that in every case where children might be playing in such circumstances the defendant's employees necessarily had to act. As I have explained they may, within their unchallenged system, have been engaged otherwise or not immediately available. In my respectful opinion, his Honour has applied a system demanding that there be someone on duty to prevent that conduct at all times. That may have been an available system, but it was not the one in operation on this station, and it was not attacked for that or any other reason. Therefore, for all the reasons I have given, there was no breach of duty. 63 In my opinion, the matter can be approached in another way. The mere allowing of the plaintiff to enter the station was not causative of any damage. He could, for example, have trodden on his undone bootlace and fallen, or, in some other way, fallen because the bootlace was undone in circumstances where it could not be said that the defendant, merely by having a station with a hard footpath onto which he fell and hurt himself, could be liable. Once it was conceded that there was no negligence in relation to the escalator it took on the same character as the footpath. 64 THE REASONS OF HANDLEY JA

I have had the advantage of reading in draft the reasons of Handley JA. His Honour has come to the conclusion that the defendant was negligent. In paragraph 11 he sets out the tasks of the various employees and, in paragraph 12, he states:- "Mr Daniel, a Station Assistant, who had been at Redfern Station since 1982, said that whoever was on duty at the ticket barrier should have challenged the group of boys when they attempted to enter the main concourse, especially if they had no tickets, and were apparently coming to play a game (92). Indeed the Authority's Book of Rules and Regulations for the conduct of traffic, and the guidance of employees, required persons who didn't have tickets to be stopped before entering the Station (93). He said that if children were "mucking around or skylarking" within the premises "we call the Security straight away". (90) 65 It is necessary, in my respectful opinion, to consider the totality of the evidence of Mr Daniel. When that is done it places in the context the evidence he gave at BAB page 92, to which his Honour refers in the first sentence I have quoted, and shows that there was no absolute obligation to challenge the group. He described the work the defendant's employees had to do and, at BAB page 89, he said that children could get into the station "somehow". He was asked by the trial Judge what he meant by that to which he replied:- "A: I mean by, if the guy doing the gate is busy with people going out to check his tickets while he is busy if somebody just walked in he cannot do it a 100%". 66 Subsequently, on the same page, he gave the following evidence:- "Q So what training or instruction did you receive in relation to dealing with unaccompanied children?

"A We haven't got information about that, but it is something like, we work it out with common sense, if we see them and we ask them, if he is okay or not". (my emphasis) 67 Mr Daniel thus made the point about "seeing" entrants. 68 At BAB page 90, Mr Daniel said that if the children were asked whether they were allowed to be on the station, and satisfied the employees that they were, they were admitted to it, and allowed to board the train. 69 On the same page cross-examination commenced, and Mr Daniel gave the following evidence:- "Letherbarrow:- Q Mr Daniel, is it the case that back in 1986 at the main Lawson Street entrance that to walk into the Station you would walk initially past the man on the gate to collect the tickets? A Yes

Q For people exiting the station and also to check that the persons coming onto the Station had a ticket?

A Yes". 70 He was then cross-examined about the man who changed the clocks and, at BAB pages 91-92, he gave the following evidence:- "Q As well within the vestibule area before you got to the gate man you would pass by the ticket purchase boxes, that'd have people sitting in them looking out into the vestibule area, is that right?

Q That's within the vestibule area before you go past the gate man?

Q So there was another person sitting at a stool or whatever behind the glass screen looking into the vestibule area?

A Yes. But one thing I want to mention about the person who was on the gate he would be paying attention more to the people going outside the Station, it was more important to see if they got a ticket, or he's got an expired ticket, more than the people going inside. Q Now you were asked some questions about children entering the Station, and I think you were asked some questions about children at the age of six or seven entering the Station and you mentioned that you'd call security if you saw them. I just want to ask you some questions, were there any instructions at all given to you in relation to the admission of young children through the main gate?

A Personally I didn't receive them, but if I see children around that age, six or seven, I would go and ask him if he is okay or not . Q What about for example if there were a group of children, seven or eight in fact, who were ranging in age from four to seven years of age, from four year olds to seven year olds in a group of six or seven, who had been playing a game in the area, who came into the Lawson Street entrance, you would of course expect whomever saw them to challenge them and stop them going through, wouldn't you? Into the station itself?

Q Especially of course if they didn't have a ticket and they were just coming, apparently to play a game?

A That's right, yeah. Q And that you say, do you, is simple common sense?

Q Is it also the primary duty of all employees of the State Rail Authority to ensure the safety of all persons on Authority premises?

A Yes." (my emphasis) 71 The questions I have emphasised were those from which, so it seems to me, Handley JA came to this conclusion based on the evidence at p 92. But, in my respectful opinion, it was qualified in a manner to which his Honour does not refer by the requirement, which was acknowledged in the questions, that the employees, whilst carrying out their various duties, should see the children. There was no absolute obligation on them to do so. 72 I have quoted this passage at some length because Mr Daniel made it clear that the situation could exist where the people in the vestibule did not see entrants because they were engaged in their other duties and the cross-examination proceeded on the basis that the staff did see such people. In particular the question at BAB page 92 was crafted on the basis of an expectation that an employee of the defendant, who saw such children, would challenge them. It was not fashioned on the basis that an employee must see the children. 73 It was never suggested to Mr Daniel that whoever was on duty at the ticket barrier should, in every circumstance, have challenged the group in any circumstances. 74 The situation was made even more clear, in my respectful opinion, at BAB pages 96-97. In re-examination Mr Daniel was asked:- "Q With a group of children of the type my learned friend described did you ever catch them trying to evade the station's staff and sneak in?

Objection. Not in evidence. Legal Argument. Question Allowed.

A Yes, they did, because the man who was on the gate he has got telephone, comes from all the platforms to him, and he has got a signal box to ring him and give him information about the clocks or any train delays and while he is on the phone to talk to whoever it is he cannot check the tickets and some kids will sneak in and get in.

Q But you said it was your practice to personally speak to children if you saw them trying to get in , did you observe whether other station staff followed the same practice? A Yes ". (my emphasis) 75 The significance of this evidence is not that it could be said that the plaintiff was trying to sneak in, but rather that it emphasised that the system was one in which the conduct of the employees implementing it was not such that they had to stop, in all circumstances, children entering the station. It was dependent upon their seeing the children, a circumstance which may have escaped them if they were engaged in their other duties. 76 There was no evidence of any causal act of negligence. There was no suggestion that the station staff, who would otherwise be implementing the system, were not on duty when the plaintiff entered the station. There was no suggestion that the station staff on duty were not going about their various tasks, including having to look out for such children, in circumstances inimicable with negligence on their part.

CONCLUSIONS 77 For these reasons I am of the opinion that once it was accepted that the system was adequate for ensuring that children did not enter the station, even though there may be circumstances where the implementation of this system meant they were not seen, there is, in my opinion, no evidence to support a finding that there was negligence on the part of the defendant. In the result, I consider that the verdict for the plaintiff should be set aside and, in lieu therefore, there should be a verdict and judgment for the defendant, and the plaintiff should pay the defendant's costs of the trial and of the appeal, and have a certificate if otherwise qualified. 78 If, contrary to the view to which I have come, the appeal on the question of liability is dismissed, I agree with the reasons of Handley JA, and the orders his Honour has proposed in relation to damages and costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.