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: