Fuller-Lyons v State of New South Wales (No 3) - [2013] NSWSC 1672

Supreme Court

New South Wales

Medium Neutral Citation: Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672
Hearing dates: 22, 23, 24, 26 and 29 April, 1 and 2 May 2013
Decision date: 15 November 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The proceedings stand over to 6 December 2013 at 9.30am for directions.
(2) There be liberty to apply on one day's notice.

Catchwords: NEGLIGENCE - plaintiff injured after being trapped by train door and falling from moving carriage - part of the body of the plaintiff protruding from door when train left station - duty owed - being trapped in door a danger likely to arise from the ordinary use of the train and which might reasonably be expected - risk of harm - breach of duty - failure of customer service attendant to observe plaintiff trapped by door before signalling to guard that train could leave - causation - contributory negligence - standard of care - position of unsupervised child with little experience of train doors or riding on trains - whether cognitive impairment of plaintiff before accident relevant - assessment of damages - eggshell skull rule - relevance of pre-accident developmental delays.
Legislation Cited: - Civil Liability Act 2002
- Civil Liability Amendment (Personal Responsibility) Act 2002
- Motor Accidents Compensation Act 1999
- Road Transport (General) Act 1999
- Road Transport (General) Act 2005
- Transport Administration Act 1988
Cases Cited: - Action Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128
- Benic v State of New South Wales [2010] NSWSC 1039
- Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
- Carey v Lake Macquarie City Council [2007] NSWCA 4
- Condos v Clycut Pty Ltd [2009] NSWCA 200
- Doubleday v Kelly [2005] NSWCA 151
- Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
- Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155
- Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
- Holloway v McFeeters [1956] HCA 25; 94 CLR 470
- Jackson v Lithgow City Council [2008] NSWCA 312
- Jones v Dunkel [1959] HCA 8; 101 CLR 298
- Kain v Mobbs [2008] NSWSC 383
- Kavanagh v Akhtar (1998) 45 NSWLR 588
- Langborne v State Rail Authority of NSW [2005] NSWSC 47
- Luxton v Vines [1952] HCA 19; 85 CLR 352
- Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
- Manly Council v Byrne [2004] NSWCA 123
- Millicent District Council v Altschwager (1983) 50 ALR 173
- Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501
- Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
- Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268
- Richard Evans & Co Ltd v Astley [1911] AC 674
- Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
- Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
- Rundle v State Rail Authority of New South Wales [2002] NSWCA 354
- Shaw v Thomas [2010] NSWCA 169
- Smith v Jenkins [1970] HCA 2; 119 CLR 397
- Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
- Tame v New South Wales [2002] HCA 35; 211 CLR 317
- Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
- Visyboard Pty Ltd v Ranieri [1999] NSWCA 331
- Wallace v Kam [2012] NSWCA 82
- Wallace v Kam [2013] HCA 19; 87 ALJR 648
- Waverley Council v Ferreira [2005] NSWCA 418
- West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62
- Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Category: Principal judgment
Parties: Corey Travis Fuller-Lyons (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
C.T. Barry QC, G.J. Davidson (Plaintiff)
R.J. Burbidge QC, A.C. Casselden (Defendant)
Solicitors:
AC Lawyers (Plaintiff)
Hicksons (Defendant)

File Number(s): 2008/316134

Judgment

Sometime after midday on Monday, 29 January 2001, motorists driving on Main Road 217 near Marconi Road, Dora Creek, were confronted with the sight of a eight year boy covered in blood near the side of the road. That boy was Corey Fuller-Lyons who by his mother, Nita Lyons acting as his tutor, is the plaintiff in these proceedings.

Earlier that day Corey had boarded a train at Sydenham with his two elder brothers, Dominic and Nathan. They had changed at Central Station and boarded a train to Newcastle. It is common ground that Corey exited the train shortly after it departed from Morisset station on the western side of the train line. The police report describes him as having missed a power line before hitting the ground, and sliding for approximately 20 metres over a three metre embankment. He received severe lacerations to his forehead, legs and arms. Somehow Corey was able to climb the embankment, walk across both tracks and climb a safety fence before being noticed by passing motorists. The police and ambulance were called. Ambulance officers arrived at the scene at 12.56pm. Corey was airlifted to John Hunter Hospital in Newcastle.

In these proceedings Corey sues the State of New South Wales as the legal entity responsible for the operations of the rail network on which he was travelling. It was ultimately submitted that the Court should find that he became accidentally trapped in the doors of the train when they closed upon departure from Morisset station, that a significant part of his body was protruding from the train such that the gap in the door should have been observed by rail staff at the station, and that he fell out the door as he struggled to break free from the doors as the train veered around a bend at high speed.

It was also submitted on Corey's behalf that the State was negligent in that it failed to commission an item of technology known as a "traction interlock" ("TI") that the train was already fitted with and which, if operational, would have prevented the train from departing Morisset station while its doors were impeded from closing. It was also submitted that the State was negligent by reason of the failure of the staff at Morisset station to observe that the doors to his carriage had not closed and parts of his body were protruding.

The State denied negligence. It submitted that Corey had failed to prove the findings that he contended for. Even though Corey bore the onus of proving negligence, the State also contended that it should be found that Corey deliberately interfered with the doors with the assistance of his brothers. In those circumstances the State denied that it owed him a duty of care or that there was any breach. The State further submitted that if, contrary to its case, it was found negligent there should be a finding of contributory negligence.

For the reasons that follow I find that, when the train left Morisset station, Corey was located between the doors to his carriage with at least one arm, one leg and part of his torso protruding from the carriage. However I am left in a state of uncertainty as to whether Corey was in that position because he was unwittingly trapped in the doors, deliberately interfered with them before becoming trapped, or deliberately impeded them for the purposes of opening them during transit. I reject the State's allegation that either of Corey's brothers assisted or witnessed him interfere with the doors (or witnessed his fall). I find that they did not.

I also find that the State owed Corey a duty to "exercise due care for the safety of passengers from dangers likely to arise out of the ordinary use of the [train and] which might reasonably be expected" (Henwood v Municipal Tramways Trust (South Australia) (1938) 60 CLR 438 at 466 per Dixon and McTiernan JJ), which included the danger of being trapped in the door. This duty was not excluded because of the uncertainty as to how or why Corey came to be so trapped. I am not satisfied that the State breached that duty by failing to commission the TI system. However I am satisfied that negligence was established by the failure of staff at Morisset station to observe the gap in the door where Corey was located and those parts of his body that protruded before signalling to the guard for the train to leave the station. I find that this negligence was causative of the injuries Corey suffered in the accident. I am not satisfied that the State has discharged the onus upon it to establish contributory negligence on the part of Corey. It follows that Corey succeeds in his claim against the State.

I have assessed the damages payable to Corey, however I cannot enter a judgment in his favour as the parties need to update the relevant figures and confer in relation to the issue of the cost of funds management

The accident

In their evidence Dominic and Nathan both stated that they were inside the saloon of the rail carriage and did not see their brother fall. The State alleges that their evidence in this respect was false and that they were present. For the reasons set out below I reject that allegation. Thus, other than Corey, there were no eye witnesses to his fall from the train. I describe Corey's evidence and his impaired cognitive functioning below. Their effect is such that no weight can be attached to his description of the events that led to his falling from the train. Instead as the party who bears the onus of proof Corey must rely on the drawing of inferences about the fall. Before that can be considered, it is necessary to make findings of fact from the direct evidence concerning Morisset station, the condition of the train and especially its doors, and what is known about Corey's train journey.

Corey and his brother were travelling on a four carriage train. During the relevant part of the journey they were sitting in the front carriage which had the description "DJM8124". This carriage had an internal door separating the vestibule from the saloon chairs. It was not explored in the evidence whether anyone who was yelling from the vestibule area could be heard in the saloon area. Corey was last seen by his brothers in the vestibule area at the front of DJM8124. The train was a City Rail double decker intercity train described in the evidence as a "V-Set". Carriage DJM8124 was 20m in length. The four train carriage was approximately 100m in length. Although DJM8124 is the front carriage, passengers within it are separated from the driver. There was a guard stationed on the train at the rear.

At around 12.07pm the train departed from Morisset station. Morisset train station consists of two platforms, each on either side of parallel train tracks running north and south between Sydney and Newcastle. As one approaches from the south the platform curves to the right. One consequence of this is that someone standing near the doors at the southern end of a four carriage train, such as a guard, does not have a direct line of sight to the immediate exterior of the doors on the front carriage. In effect they cannot see people accessing and exiting the doors at the northern end of the train without walking out onto the platform. On the western side of the platform was a nondescript brick building which housed a station master's office and public toilets. With some trains passing through Morisset a customer service attendant ("CSA") was often stationed on the platform to assist the guard by assessing the state of the train prior to its departure.

Having regard to what was common ground in relation to Corey's fall, the parties accepted he must have fallen at approximately 12.09pm. By that time the train was travelling at approximately 100km per hour. Further, at that point the train track veers to the right as one travels north. The report prepared by the network operations superintendent at Gosford records Mr Meiforth, the train guard, being approached by Corey's brothers at "approximately 1210 hours". The evidence concerning their interaction is discussed below.

Upon the arrival of the train at Newcastle, Mr Meiforth reported Corey as missing to Mr Ross-Gowan, an operations inspector apparently based at Newcastle. Mr Ross-Gowan telephoned Morisset station to see if Corey was on the platform. When Nathan and Dominic arrived at Newcastle Mr Ross-Gowan took them to the station manager. There was no evidence as to what was discussed upon their arrival.

The doors to DJM8124

It was common ground at the hearing that Corey's only possible exit point from the vestibule area of the train was through the northern doors on the western side of DJM8124 as the train travelled north.

At some point on 29 January 2001, a maintenance facility manager, Mr Trevor Weir, was notified that a youth had fallen from the train. He travelled to Newcastle station. He arrived at 1.25pm and carried out a test on the doors of DJM8124. One of the guards closed all the doors and Mr Weir and an assistant attempted to force them apart. Mr Weir reported that all doors were found to be locking when closed, but "all doors at [the] number 2 end of DJM8124 when closed and locked left a gap of approximately 100mm at the floor level and no gap at the ceiling level".

The "number 2 end of DJM8124" was the end of the carriage facing the direction the train was travelling in (ie the northern end). Mr Weir also recorded that the "doors at [the] number 2 end number 1 side of the DJM8124 stalled momentarily with a gap of approximately 350mm then continued to close and lock". These were the doors on the eastern side of the train as it travelled north. As noted, Corey exited the western side of the train as it travelled north. The doors on that part of the train are described as the "number 2 end number 2 side".

The State tendered two reports from an engineer and safety expert, Mr Cowling. Mr Cowling explained the operation of the V-Set doors then in use on DJM8124. The carriage had four pairs of doors. They were hung from the top of the vestibule using two adjustable roller brackets attached to the top of each door leaf. At the top of the doors rollers ran on an overhead track attached to the carriage superstructure. The base of each door formed an inverted "U" which ran over a bar inside the door threshold on the floor. The doors were inset from the exterior of the carriage by what appears from the various photos to be about six inches.

Between October 1999 and May 2000 the V-Set doors including those on DJM8124 were fitted with "locking door motors" ("LDM"). The form of LDM installed was a system manufactured and supplied by Parker Hannifin (Australia) Pty Ltd ("Parker Hannifin"). This system was electro-pneumatically controlled. To close the doors the guard cuts power to the door's solenoid valve which drains air from the door motor and automatically retracts the pistons in the LDM. Each piston was threaded through a bracket on one of the two door hangers and operates so that the doors close automatically when the pistons retract. The doors are opened by the guard operating a door release switch. It provides power to the electro pneumatic valve and allows an air feed to the door motor cylinders. This pushes out the pistons. On an intercity train when the pistons are extended the doors can be manually opened by passengers at stations who want to leave or enter the train. On city based trains the guard's actions automatically open the doors.

Five matters should be noted about these doors.

First, the Parker Hannifin LDM has a locking system such that once the door was closed it was locked and could not open without metal being sheared or cut. This reflected an apparently controversial policy choice then in place of attempting to prevent falls from trains by having doors locked shut (see [83]ff). This had the consequence that, in the event of a loss of power or an accident, passengers would be locked in the carriage. The inspection that was conducted in Newcastle after the train arrived there confirmed that the locking system was working properly. This meant that Corey's fall could not have occurred by the door suddenly opening after it left Morisset or it being prised open from a locked position. Further it was accepted that he could not have exited through the 100mm gap at the bottom of the doors.

Second, Mr Cowling provided figures for the force exerted by the door as it closed. He stated that the initial closing force for the first 230mm of travel was equivalent to a force of approximately 7kg (ie 7kg accelerating at the physical constant "g") or 70 newtons (being the force capable of giving a mass of one kilogram an acceleration of one metre per second). He further stated that after the initial 230mm has been traversed, the "normal closing force" applies, being a 16kg force (or 160 newtons). Mr Cowling explained that the initial 7kg force is referred to as the "soft edge" or "soft nosing" and was intended to prevent injury to passengers should they become caught between closing doors.

In his oral evidence Mr Cowling clarified that if the door impacted with any object (including a person) in the last 230mm of closing, the force would reduce to around 7kg but then gradually increase to exert "a force ... equivalent to somewhere around 20 kilos".

Corey also tendered evidence from an engineer, Mr Clemens. In his report he stated that it was "unlikely that an eight year old child forced the doors against the pressure of the door motors". In cross examination he conceded that it was possible that an eight year old boy could place his foot in the door and force the door open some distance sufficient to insert his shoulder ("I've had an eight year old boy, he couldn't do it. But I could imagine some boys could, yes").

In his report in reply Mr Cowling stated that he did not agree with the statement in Mr Clemens' report and "refer[red] to the opinions" that he had expressed in his first report. This appears to have been a reference to his overall conclusion that the 100mm gap at the base of the doors suggested that the doors were held open at Morisset and then later forced.

Mr Meiforth also gave very important evidence concerning the degree of force necessary to force the doors open against pneumatic pressure. This is set out below at [50].

Third, Mr Cowling addressed how a gap could arise at the bottom of the doors of the kind that was noticed when the train arrived at Newcastle. As explained, the Parker Hannifin LDM mechanism applied pressure at the top of the doors. Mr Cowling considered that, if the closure of doors was obstructed at their bottom, then the application of force to close the doors at the top would apply various stresses and strains to the door's structure and hinges such that the door hangers and the door itself would tend to ride up.

Fourth, at the time of the LDM's installation a system to alert the train guard if any door had been forced open or prevented from closing was installed but not commissioned. The LDM incorporated a proximity sensor which recognised whether the door was closed and locked in place. According to Mr Cowling, there was a facility to enable a "Door Open Indicator Light (DOIL)" as a relay to prevent the traction engine drive from "being energised if any door was open (the traction interlock)". It was submitted on behalf of Corey that this system should have been implemented prior to his accident. I address this below.

Fifth, Mr Cowling rejected any suggestion that Corey could have been "sucked" out of the train at the time he exited. Instead he posited:

"It seems to me that a far greater force was at work at the fall location. This was the effect of centrifugal force on a free body as represented by [Corey] whilst the train transited at high speed through a right-hand bend."

Ultimately, senior counsel for the plaintiff, Mr Barry QC, accepted and embraced this as describing the relevant force operating upon Corey to expel him from the train.

Corey's evidence

Corey was born on 21 July 1992. He was eight and a half at the time of the accident and almost twenty-one at the time of the trial. A photograph of him taken after the accident does not suggest that he was either abnormally large or small for his age. He suffered significant head injuries as a result of the accident and has experienced severe cognitive dysfunction since then. His evidence in chief was brief. He said he could not remember the train journey or falling out. He said that his only memory of the accident was "to the point where the doors opened".

In cross examination he added that he was standing in the area of the carriage doors and his brothers were sitting inside the rail car. He recalled looking outside the window in the door. He could not remember what happened when the doors opened. Nor could he remember Morisset train station. He did not have any recollection of holding the doors open.

Given his age and the injuries I accept that Corey was genuine in stating his lack of recollection of the accident and the events that preceded it. Nevertheless his description of the door having suddenly opened was completely inconsistent with the operation of the LDM device. It probably represents no more than some form of impressionistic reconstruction on his part. I do not attach any weight to his description.

Dominic Lyons' evidence

Dominic Lyons was born in July 1989. He was approximately eleven and half at the time of the accident and almost twenty-four at the time of the trial. He recalled catching the train at Sydenham with his brothers Corey and Nathan. He said they all sat together in the "second row" but could not recall what carriage. He said that at some point they were sitting down and Corey "got up to wander around". He said he went and looked for Corey throughout the carriage. He said he came back to Nathan and told him "he's not there". He said they went to Newcastle station, left the train and looked for Corey in the remaining carriages.

As I will explain, even this brief description of the events is inaccurate in a number of respects. The cross examination of Dominic confirmed that he had only a sketchy recall of the day's events at best. Initially he stated that he could not recall the train stopping at Morisset but later stated he could but could not recall whether they were all sitting in their seats. He stated that Nathan did not speak to the guard until the train arrived at Newcastle. He initially denied that Nathan walked to the back of the train to speak to the guard sometime after leaving Morisset, but then stated he could not recall whether he ever walked through the train with Nathan to speak to the guard. He then answered a series of questions which were predicated on him being present when Nathan spoke to the guard. He eventually agreed that he, Nathan and the guard searched the whole train looking for Corey. He agreed that the guard said to both of them "[a]re you sure you are telling me all of the truth?" He could not recall any other part of the conversation. He did not agree that at some point Nathan told the guard that Corey had fallen out of the train.

Dominic was recalled for further cross examination on the sixth day of the hearing. He said that he and his brothers did not occupy the vestibule area at the front of the train, but instead sat down in the carriage before Corey wandered off. He denied assisting Corey to stop the doors from closing or holding them open at any of the platforms.

Nathan Lyons' evidence

Nathan was born in October 1985. He was aged fifteen at the time of the accident and twenty-seven at the time of the trial. He stated that he had been interested in trains "long before" he was sixteen. As fate would have it, he now works for CityRail as a train driver. He joined CityRail as a trainee guard in January 2008 and when he was qualified worked on trains running between Sydney and Newcastle. He started training as a driver in 2010 and has been driving for three years. He explained that while working as a guard his job was to ensure the doors were clear of people and that no one was trying to board the train as it was departing.

Nathan said that he travelled through Morisset train station while working as a guard on a train on a number of occasions. He explained that the front doors of the train on the platform side were not visible from the guard's compartment. Instead a guard had to alight the train and walk onto the platform to view the front of the train at least to make "sure that no-one is caught in the door".

Nathan stated that during the three years he had been driving, passengers were caught in train doorways "a couple of times a week". He stated that with the interlock system now commissioned, if the train doors were not fully locked and closed, the train will not "power but it can roll". In cross examination he agreed that this was implemented in "comparatively recent times".

Nathan recalled that on the day of his little brother's accident he and his brothers were sitting in the front car. He recalled that, after the train crossed the Hawkesbury River, Corey went to get a drink of water. He said that after ten to fifteen minutes he noticed that Corey was missing, although he could not recall whether the train had stopped at any stations while he was absent. Nathan said that he and Dominic "went out to where he was [ie the vestibule area of the carriage] and he wasn't there, so we began searching the whole train for him". They searched upstairs, downstairs, the toilets and the vestibule areas.

Nathan said that they spoke to the guard at the rear of the train and said "[h]ave you seen our brother get off?" and the guard said "no". He said they returned to the seats believing he had left the train at a station. He said when the train arrived at Newcastle they went and spoke to the station master.

In cross examination he was asked about the conversation with the guard at the rear of the train. He could not recall much of the conversation. When asked whether the guard said to him "[a]re you sure you have been telling me everything about this" and whether he replied that his brother had fallen out of the door of the train, Nathan replied "I'm not too sure".

Nathan was recalled for further cross examination on day six of the trial. He denied that he and Dominic were in the vestibule area of the train after it left Morisset. He said that he and Dominic were sitting in the carriage and could not see Corey. He denied that he and Dominic ever tried to hold the doors open against their closing action or saw Corey attempting to do the same.

Nita Lyons' evidence

Ms Lyons is the mother of Corey, Dominic and Nathan. She said that the boys were only meant to travel to St Peters on the train to visit Nathan's friends (and not Newcastle). At around 3.00pm she learnt of Corey's accident and travelled to John Hunter Hospital. Ms Lyons was later interviewed by a journalist for a story concerning Corey's accident some time after she and Corey had returned to Sydney. She agreed that she told the journalist that "she questioned Corey about how he opened the doors [and] he told her it had been 'a bit hard'". She also agreed that this reflected what Corey had told her.

Bruce Meiforth's evidence

As stated, Mr Meiforth was the guard on the train. Mr Meiforth worked for CityRail from 1973 until his retirement in January 2012. He worked as a passenger train guard from at least 1984. He said that on the day of Corey's fall, but prior to the train leaving for Newcastle, he undertook a check to see that all of the doors were closing properly. He said that he closed the doors on both sides and then conducted a "walk-through". He said he gave the doors a shake to see if they could be opened. He said that he could detect any gap in the closing of the doors because it was darker inside the train than out and daylight would filter through any aperture. Although he did not expressly say so the implication of his evidence was that he did not detect gaps in the doors of the kind that were observed after the train arrived at Newcastle.

Mr Meiforth explained that there was normally a CSA at Morisset who assisted him by holding up a white flag to indicate that the platform was clear. Mr Meiforth explained:

"... [Morisset] is on a curved platform so it is hard for me to see to the front of the train. So [the station assistant] will stand in a position where he can see up to the front of the train. He looks back at me and when it is all clear to him he will [hold] the white flag out to me and that gives me an indication to say everything is good, everything is clear and I will close the doors ..."

Mr Meiforth explained that the CSA usually stood near the third car so that he could see the front of the train. Mr Meiforth explained that if there was a CSA he would only walk out a metre or two on the platform to observe the train. Mr Meiforth explained that the CSA was meant to continue observing the train until after it left the platform, ie after the doors closed, and that he, Mr Meiforth, would keep the CSA in his sight until he passed him. Mr Meiforth could not recall whether a CSA was on duty when the train passed through Morisset on the day of the accident although he could recall that he stepped off the train but not far enough to see the front of the train. As noted below, the evidence confirms that a CSA was on duty.

In re-examination he was asked the following questions, the first by Senior Counsel for the Defendant, Mr Burbidge QC, and the second by me:

"Q. If something were happening at the very front doors of the train, and you were looking either from the position where the CSA was, or alternatively, to the point where you would walk in the absence of a CSA, could you observe a small opening on the doors at the front left hand end to the car in the front?

A. No I couldn't see it. The doors are recessed and it is very hard to see that because you are looking along a kerb, you can only see if someone is hanging out, if there is anything sticking out a foot or so, you could see it but if they are just holding something inside that recess you wouldn't see it, sir.

HIS HONOUR

Q. What about where the CSA -

A. He should be able to see it sir, yes."

Although the first question in this extract asked him to consider whether a small opening would be visible from the position of "where the CSA was, or ... to the point where you would walk in the absence of a CSA", Mr Meiforth's answer was only directed to the latter alternative. He stated that, from the position that a guard walks to when no CSA is on duty, the guard cannot observe a small opening in the door, but can observe something protruding by a foot or so. In the second answer he indicated that a person in the position of a CSA should be able to see even a small opening in the door. Mr Clemens took a more benign view. He stated that it was highly likely that someone looking at the door (from the viewpoint of a CSA) would not observe a child with their foot in the door or even their knee in the door. However he considered it "highly likely" that they would observe a child's torso inserted between the doors.

Mr Meiforth recalled that on the day of the accident, as the train was near Dora Creek Station, two boys came and knocked on his door at the rear of the train. He recalled that they said they could not find their little brother. He said they "seemed a little bit upset" so he searched the carriages with them. He checked the doors and did not notice anything unusual about them. When he returned to the guard's compartment he telephoned the station master at Morisset to see if Corey was on the platform. Shortly afterwards the station master rang him to say there was no sign of Corey.

Mr Meiforth said that he noticed the boys appeared to be "scared or frightened or something". He said he asked them "[w]hat's wrong? There is something wrong. What's happened?" He recalled the bigger and older boy said "[m]y brother's fallen out of the train". Shortly afterwards Mr Meiforth contacted the station master at Morisset to advise him to stop trains running north and south along the line to Newcastle. When the train arrived at Newcastle he took the boys to the station master's office and said he "gave the station master the information [he] had".

In cross examination Mr Meiforth described trying to force the doors open against the pneumatic pressure exerted by the pistons, ie prior to them locking and closing. He described it as "very, very hard". Mr Meiforth said his weight was 95 kilograms and described himself as "very strongly built". He estimated that he could eventually force one door back over "20, 30 seconds" but that he could not force both doors back under any circumstances. He described having attempted to force the doors on a number of occasions such as removing an obstacle like a soft drink bottle placed in the doorway. He agreed that forcing one door apart would be "[m]uch too hard for an eight year old boy". However, in re-examination he said a boy could force a door back if he had his back against one door and was using both arms to force it open.

He also agreed that the boys would have likely overheard the conversation between him and the station master at Morisset to the effect that Corey was not to be found on the platform. He said his walk through the train with the boys occupied approximately six minutes and the whole interaction took nine minutes. Mr Meiforth agreed that Nathan might have said that Corey got off the train at Morisset. (Mr Ross-McGowan has recorded Mr Meiforth as having told him that.) He accepted the sequence was that he was told Corey might have left the train at Morisset, he telephoned Morisset and was told he had not and this occurred after they searched the train. Mr Meiforth estimated that there were approximately 120 to 130 people on the train.

In relation to the CSA's role, Mr Meiforth was asked and answered as follows:

"... he's there to make sure the public are safely on the train and clear of the train before departure. To go through all those doors every time, sir, it would take up too much time.

Q. Whose responsibility is it to ensure that there is nobody stuck in the doors when a train is leaving a platform station?

A. It is the CSA['s] and the guard['s], sir."

The Morisset station guard

The State tendered documents indicating that, at the time the train passed through Morisset train station, Michael Dunn was rostered to work as the CSA and Peter Goodhew was rostered to work as the station manager. Mr Dunn passed away in 2008. Mr Goodhew passed away in 2005.

The competing oral evidence and the State's allegations

It is appropriate at this point to record my findings concerning the credibility and reliability of the various witnesses, particularly where they are in contest. I have already addressed the reliability of Corey's recollection of the accident.

To the extent that there was a discrepancy between the evidence of Mr Meiforth on the one hand and Nathan and Dominic on the other, I prefer that of Mr Meiforth. On the day of the accident both Nathan and Dominic were young. The events of that day were clearly upsetting and stressful. My observation of both Nathan and Dominic especially in cross examination was that they had difficulty recalling the events immediately following their search for Corey. At the time of the accident Mr Meiforth was an experienced train guard. For him the event was one of the utmost seriousness and he reported the incident to his superiors who made a record of what he told them. However, understandably enough, with the passage of time there were some details that even Mr Meiforth could not recall exactly and for which the records are a more reliable guide (see [51]).

I consider that the most likely sequence of events was that Nathan and Dominic approached Mr Meiforth at the back of the train and told him that they could not find their little brother and seemed upset. They then searched the train and could not find him. Nathan told him that Corey might have left the train at Morisset. He telephoned the station master at Morisset. In their presence the station master told him that Corey was not on the platform at Morisset. Events then transpired as recounted at [49].

However this does not mean that the balance of Dominic's and Nathan's evidence is of no assistance, especially so much of it as involved a denial by them of assisting Corey to interfere with the doors of the train, being present while he did so or directly observing Corey fall from the train.

While emphasising that the onus of proof remained on Corey to prove his case, the State nevertheless contended that the explanation for the fall was that Corey deliberately interfered with the doors to DJM8124 with the assistance of Nathan and Dominic. I will address the matters said to support that submission so far as it concerns Corey below, but at this point I note it involved a number of steps that not only require the rejection of Dominic's and Nathan's denial of seeing Corey fall, but the acceptance of serious assertions about their allegedly lying to Mr Meiforth and the Court. Thus the State's written submissions contended, inter alia:

"25. The first alert was given to guard Meiforth near Dora Creek Station about one minute after the Plaintiff fell (see also Figure 6 of Exhibit 8 and accompanying text). That circumstance establishes that the account given to the Court by the two elder brothers is untrue: they must have set off for the guard's carriage immediately after the Plaintiff fell, which circumstance in turn establishes that they were present in the vestibule as activity in the vestibule cannot be seen from the saloon.

26. Support for that reasoning is provided by ...

 The deception attempted by the elder brother suggests complicity, which would in turn provide an explanation of any uncertainty as to whether the Plaintiff might have struggled to open the doors alone against the pneumatic pressure.

...

53. [Corey] it is submitted was engaged in risky behaviour without which the accident could not have occurred. [Corey] has lied to the Court, the brothers deceived their mother, and sought to distance themselves from the knowledge that the Plaintiff had fallen from the train by initially deceiving the guard. The timeline demonstrates that they were aware of the Plaintiff falling from the train at the time that it happened and the inference proper to draw is that they sought to distance themselves from the scene by asserting that the Plaintiff was missing and that they had searched for him throughout the train. That diversionary conduct it is submitted implies that they were present when the Plaintiff fell from the train. The further recognition that it would not be easy for the Plaintiff to force the doors further open suggests the strong likelihood that they were involved in that exercise." (emphasis added)

Another written submission lodged on behalf of the State elaborated upon this by alleging that Nathan, as the alleged "leader" of the boys, reacted to Corey's fall by concocting a story and setting out to deceive Mr Meiforth including by conducting a futile search of the train even though he knew his brother fell from the train.

Despite their being recalled for further cross examination, it was never put to either Nathan or Dominic that they had either lied to or misled Mr Meiforth when they spoke to him that day, much less that they did so because they were conscious of their own involvement in Corey's fall. It was also not put to them that they had not conducted any search of the train in the immediate aftermath of Corey's fall as they claimed. The failure to do so makes it very difficult to accept these allegations when they were not given the opportunity to respond to them.

Further, the circumstances and events do not support that contention. If Nathan and Dominic had known all along that Corey had fallen off the train why would they participate in a search of the train with Mr Meiforth which would have wasted time while Corey was potentially seriously injured? At the time of the accident Nathan was fifteen. From his presentation in the witness box at age twenty-seven, I expect that he was a reasonably intelligent and capable fifteen year old. If he had known that Corey had fallen, but was worried because he had helped that happen or watched it without preventing it, he could have made up some story involving a fall and him being innocent and then immediately raised the alarm.

Also, Mr Meiforth's observations of Nathan and Dominic after he spoke to the station master at Morisset do not advance these contentions of the State. They are more consistent with Nathan and Dominic becoming upset from overhearing his conversation with the station master and realising that, if Corey was not at Morisset and not on the train, then he must have fallen off, bearing in mind they were responsible for him.

In accusing Dominic and Nathan of lying to the Court and Mr Meiforth, as well as of involvement in their brother's fall, the State's submissions draw support from the fact that Corey is said to have fallen at 12.09pm and Nathan and Dominic are said to have presented to Mr Meiforth at the back of the train at 12.10pm. It contends that one minute was not enough time for Nathan and Corey to conduct a search of the train, and instead they must have walked straight to the back of the train immediately after watching him fall.

This contention does not withstand scrutiny for three reasons. First, it fails to come to grips with them then conducting a further search of the train with Mr Meiforth which, as noted, was pointless if they knew Corey had fallen off. Second, the evidentiary foundation for the precise reporting time of 12.10pm is flimsy. It is only recorded in a note prepared by the Network Operations Superintendent at Newcastle later that afternoon which refers to Mr Meiforth being approached at "approximately 1210 hrs". Mr Meiforth did not state that he took a note of the time it was reported to him. The times at which he said various activities took place were only estimates (see [51]). In the scheme of things a few minutes discrepancy is more than possible.

Third, it fails to account for the period in which a fifteen year old boy and an eleven year old boy could perform a search of the train. Nathan described both himself and Dominic walking the full length of the train checking upstairs and downstairs, the toilets and the vestibule areas. They could have undertaken the "search" by one walking downstairs and the other upstairs. They could traverse four cars very quickly. I am not satisfied that a quick walk through the four carriages looking for their little brother was not possible in a few minutes.

One other matter relied on by the State as part of its overall theory that Dominic and Nathan assisted Corey to interfere with the doors was the observed state of the doors when the train arrived at Newcastle, compared with their condition when Mr Meiforth examined them prior to the journey (see [15] to [16] and [43]). The 100 mm gap in the doors on DJM8124 on side 2 at the number 2 end could have been occasioned by either Corey being trapped in the door or deliberately interfering with it at Morisset. This was certainly Mr Cowling's theory and he did not postulate that more than one person had to be involved to cause that damage. The 100mm gap in the doors on side 1 could have been occasioned by deliberate or innocent interference sometime during the journey, but that matter alone or considered with other circumstances does not point to Dominic's or Nathan's involvement.

Finally, I should record that while I was left in some uncertainty about Dominic's evidence, I was impressed with Nathan as a witness of truth. While Mr Meiforth's recollection of the sequence of events after Corey went missing is more reliable than his, I have no hesitation in accepting the truth of Nathan's denials that neither he nor Dominic interfered with the doors during the journey, assisted Corey to do so or witnessed his fall from the train.

Circumstances of the accident

As noted, the only witness to Corey's fall was Corey himself, and his recollection is of no assistance in determining how it happened. I must therefore resort to a process of drawing inferences based on the known or established facts. Inferences "from actual facts that are proved are just as much part of the evidence as those facts themselves" (Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480 per Williams, Webb and Taylor JJ, citing Richard Evans & Co Ltd v Astley [1911] AC 674 at 687; see also Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 309 per Menzies J). Moreover, a court is entitled to draw inferences from "even slim circumstantial facts that exist so long as that goes beyond speculation" (Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq, with whom Ipp JA and Davies AJA agreed; Condos v Clycut Pty Ltd [2009] NSWCA 200 at [68] per McColl JA, with whom Campbell and Macfarlan JJA agreed). In that regard I note four points.

First, all the circumstances proved in evidence, however slim, should be closely examined in order to establish whether they "rais[e] a more probable inference in favour of what is alleged [ie negligence on the part of the defendant]" (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155 at 161 to 162 per Stephen J).

Second, the inference must arise as an affirmative conclusion from the evidence and be established to the reasonable satisfaction of a judicial mind (Jones at 304 per Dixon CJ, West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 at 66 per Stephen, Mason, Aickin and Wilson JJ, Condos at [68] per McColl JA, Campbell and Macfarlan JJA agreeing, Jackson v Lithgow City Council [2008] NSWCA 312 at [10] per Allsop P, Basten JA and Grove J agreeing).

Third, where the circumstances give rise to nothing but conflicting conjectures that are of equal degrees of probability, the court cannot reasonably arrive at an affirmative inference of negligence (Bradshaw at 5, Luxton at 360 per Dixon, Fullagar, Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, West at 68 per Stephen, Mason, Aickin and Wilson JJ, Girlock at 161 to 162 per Stephen J). The plaintiff cannot succeed unless the more probable inference is that the injury arose from the defendant's negligence (Millicent District Council v Altschwager (1983) 50 ALR 173 to 174 per Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ).

Fourth, it is no answer to the question of whether something has been shown to be more probable than not to say that there is another possibility open (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34] per French CJ, Gummow, Crennan and Bell JJ).

On behalf of Corey it was submitted that the Court should infer that he was inadvertently trapped in the doors when they closed at Morisset, that a significant part of his body was trapped when they closed such that the open door and the protrusion of his body would have been visible to the CSA on duty at Morisset station, and that he fell out the number 2 side of the train while pushing the door open to free himself as the train rounded a corner turning to the east. The State disputes that there is a basis for each and every one of these inferences but also maintained that there are competing inferences of greater or at least equal likelihood. Some of these competing inferences are either to the effect of, or premised upon, the involvement of Dominic and Nathan in assisting Corey to interfere with the door during their journey, a contention I have already rejected. However it also contended that there was a competing inference that Corey had deliberately interfered with the doors and that they were only just held open at Morisset with Corey wriggling into the space after the train left.

The starting point is that the only point of exit for Corey from the train was the doors on the number 2 side of the number 2 end of DJM8124. There was nothing about the inspection of DJM8124 at Newcastle or Mr Meiforth's search in the presence of Dominic and Nathan which suggested any other possible exit point, including the windows. It also must follow that when the train left Morisset station the doors on side 2 of end 2 on DJM8124 remained open. The nature of the locking system is such that if the doors closed then it would not have been possible for Corey or anyone else to open them no matter how hard they tried, much less in the minute or two between the departure from Morisset and his exit from the train.

I have already found that I accept Nathan's evidence that neither he nor Dominic assisted Corey in interfering with the doors in any way (or otherwise witnessed the fall). It therefore follows that Corey alone interfered with the doors at Morisset. How far were they left open, what was caught in the door, and was his interference intentional or unintentional?

How far was the door kept open as it departed Morisset station? I have described the evidence of the force exerted by the doors as they close above (at [21] to [25] and [50]). I found Mr Meiforth's reaction to the proposition that an eight year boy might prise or push the door open particularly telling. I am satisfied that the only realistic means by which Corey could generate sufficient force on his own to open the door far enough for him to fall out was by having his back to one door and pushing with his arms or a leg against the other. This makes it very unlikely that the door was only kept open when the train left Morisset station by Corey's foot or a small object such as a soft drink bottle or the like. If that had occurred he would have had to squeeze himself into the small gap, somehow wriggle into the space to insert himself and then exert sufficient force to create a sufficient gap to fall out. This manoeuvre would have to have been undertaken in the minutes between the time the train left and the time he fell. This is very unlikely. A potentially more plausible scenario is that some larger object was placed in the doors that made it easier for Corey to insert himself. However it is difficult to conceive of an object large enough and sturdy enough that was available to Corey to allow this to have happened. Even if it was used and he then inserted himself, this is difficult to reconcile with the timing of the fall being so soon after the train left the station.

The most likely possibility by a large measure is that, as the train left Morisset, Corey was already inserted between the doors with his back to one of them. This represents the most likely scenario in which he could have exerted sufficient force on one of the doors in an attempt to open it in the minutes before he fell out of the train. This possibility would entail the door closing on some point of the span of his body between his two shoulders. It means that, as the train left the station, at least one of his legs and arms was outside the train and part of his torso. From that point Corey would have been able to generate sufficient power to force the doors open a little further in the minute or so before the fall. As he did so and the train veered to the east, he fell out, bearing in mind the centrifugal force that was operating as noted by Mr Cowling.

One matter tending against this is that it involves the CSA at Morisset failing to observe (at least) Corey's leg, arm and part of his torso as they protruded outside the exterior of the door as they closed before he signalled the guard for the train to depart. I have considered that matter. However the balance of the circumstances, namely the characteristics of the door and the timing of the fall, point strongly to this scenario as the most likely minimum level of interference with the door when it left Morisset. Even allowing for what appears to be a failing on the part of the CSA, this scenario is still a far more likely inference than all others. The lesser the part of Corey's body that was inserted or caught between the doors the more difficult it was for him to insert himself and exert the strength necessary to force them back, especially in the limited time between the train's departure from Morisset Station and his fall from the train.

At this point of the analysis the circumstance of Corey being unwittingly trapped in the closing doors is certainly an inference that is open on the known or established facts. As outlined below, such a circumstance was not an unknown or even unusual occurrence, even if it was not common. A State Rail Authority Fleet Engineering Report dated May 1994 outlining the technical specifications of the LDM installed on intercity trains states that the doors take four seconds to close, give or take half a second. That length of time is not inconsistent with passengers being unwittingly trapped, as they have been on other occasions (see [91] to [93]). An eight year old unsupervised child is exactly the category of person who might become unwittingly trapped in the doors as they close.

However there are also other possibilities that involve Corey having intentionally interfered with the doors. Corey could have, as suggested by the State, deliberately prevented the doors from closing with a view to prying them open after the train left the station. Alternatively, Corey could have been simply interfering with the doors at Morisset as part of some game and then become unwittingly trapped in them as they closed. As noted, the State placed some emphasis on the state of the door on the number 1 side of the number 2 end on DJM8124 as indicating repeated interference with the doors by Corey, Nathan and Dominic throughout the journey. However in light of my rejection of the challenge to Nathan's and Dominic's evidence in that respect, this does not advance the matter far. Nathan was only asked about the train journey from a point prior to Morisset when Corey went to the vestibule area. The questioning of him did not address whether Corey was ever in the vestibule area by himself at a train station when door 2 on DJM8124 opened and he could have interfered with it. In those circumstances and given the various possibilities that could have caused the gap in that door, the 100mm gap in that door does not assist.

Finally I note that, even if the conversation Corey's mother recounted having with him at the hospital represented an accurate recollection on Corey's part, which is doubtful, it is equally consistent with Corey forcing the doors open after they had closed on him unwittingly or after he had deliberately interfered with them.

This analysis leads to me to find that Corey was placed in the doorway as the train left Morisset in the manner described at [77]. However I am unable to conclude whether he was unwittingly trapped, attempted to interfere with the doors and then became trapped, or intended to be caught in the doors with a view to attempting to prise them open while the train was between stations. It follows that the Court will have to address the allegation of negligence on the basis that, whether or not Corey deliberately interfered with the doors or deliberately meant to become trapped in the doors at Morisset, is unknown.

Door security and passenger trapping

It is necessary to note the evidence concerning the adoption, implementation and consequences of two decisions by those responsible for the railways concerning train doors. The first was a door security policy implemented in the 1990s designed to address the problem of doors being improperly or accidentally opened by passengers at inappropriate times. The second was a decision to install but delay implementation of the TI. TI operated to "power down" the train if passengers were caught in or interfered with the doors. Associated with this was a form of Digital Voice Announcements ("DVA") that automatically advises passengers that the doors are about to close.

In 1990, StateRail adopted a new door security policy. It involved locking the side passenger doors of a train as the train was about to move off from the station, and preventing passengers from being able to unlock and open the doors once that had occurred, even in case of emergency. In the event of loss of electric or pneumatic power supply, the door motors are to "fail" to the locked position. With few exceptions, the evacuation of passengers is therefore dependent upon train crew unlocking the doors.

A Safety Report from the Independent Transport Safety and Reliability Regulator entitled "Train Door Emergency Egress and Access and Emergency Evacuation Procedures" indicates that this policy was current as at 2004. It states the rationale of the policy was to reduce injuries to passengers (i) through falling from open doorways and (ii) after unsupervised exit. The Report explains that the implementation of the policy involved installing locking door engines, disabling the internal emergency release mechanism that was fitted in existing Tangara cars, and having it removed from future cars. Compliance by the suburban electric fleet was to meant to be achieved by 1994.

Included in the Report are figures for the injuries and fatalities said to have resulted from passengers opening doors and subsequently falling from CityRail trains for the period 1989 to the first half of 2004. The Report acknowledges there may be some inaccuracy in the figures as the database from which they were drawn did not always adequately explain the reason for the injury or fatality in the "remarks" section. In particular, it was said that there were several instances where an incident was simply described as "fall from train", and it was uncertain whether the passenger had fallen from a doorway or between carriages.

Although there are a few outliers, consistent with the implementation of the door security policy there is a general downward trend in the number of both injuries and fatalities due to passengers opening doors and falling from CityRail trains from the mid to late 1990s. In discussing these figures the report stated:

"The StateRail door security policy was signed in 1990 and by 1994 all doors were to be locked on CityRail trains. However it was still possible in many of the cars to force open some of the doors. Two of the fatalities in 1998, involved young men forcing the doors open and then jumping from the train. As a result of the continuing injuries through people forcing doors open, StateRail then ordered a 'door motor locking system' to be installed on all trains. This commenced in approximately 1997, however the modification took a few years to retrofit to all cars. This door motor locking system was to prevent persons being able to force the doors open. This explains why injuries continued even once the door security policy was introduced." (emphasis added)

The evidence as to the timing of the fitting of the Parker Hannifin system in V-Set trains was consistent with the statement in this extract as to the implementation of the "door motor locking system". The Report also noted that the door locking policy was not implemented on the XPT trains (which is borne out by the facts found in Langborne v State Rail Authority of NSW [2005] NSWSC 47).

It is also pertinent to note the following discussion as to the range of circumstances in which persons attempted to interfere with or open doors:

"The reasons for the injuries vary and although often categorized under the term 'vandalism' this is not always the case. Certainly there are cases of school age children leaning out of open doorways or forcing doors open and jumping from the train. However there are several cases of adults forcing the doors open to either alight from the train at an unscheduled stop, leaping off prior to the train stopping at a station or jumping off as the train starts to move. There are cases of elderly persons forcing the doors open as they realised at the last minute they were about to miss their stop, for example an 89 year old priest pulled the doors open as the train was leaving a station and other cases of ladies in their seventies or eighties pulling doors open to get off the train. In these cases the term 'vandalism' is not really appropriate; it gives an unrealistic impression of what is happening and the problem involved. Vandalism as defined in the dictionary, involves malicious or wilful damage to property. Door opening does not always fall into this definition. The reasons for it happening are often different from that associated with graffiti or damage to seats. If this problem is to be managed it must be properly understood."

The injury figures listed in this report do not provide any indication of how many injuries were suffered from persons being trapped or dragged by side passenger doors after the implementation of either the door security policy or motorised door locking. However, a StateRail "Implementation Plan" for TI and DVA dated 27 October 2003 (the "2003 Implementation Plan") and a RailCorp "Project Completion Report" relating to "DVA/TI for CityRail's Intercity (V-Set) Fleet" with a release date of 4 September 2007 (the "2007 Project Completion Report") provide some assistance in that respect.

The 2003 Implementation Plan states that as at 2003 approximately 230 complaints per annum were received from StateRail customers who claimed to have been "caught in doors". About forty incidents of passengers being "caught and/or caught and dragged" were recorded in the StateRail Safety Database per year. About six of those were recorded each year as involving passengers being "caught in doors and dragged by trains".

The 2007 Project Completion Report records the position as follows:

"There are on average approximately eight passengers per year recorded as being Caught and Dragged on CityRail trains. Of this eight, in the order of 1 to 2 are on the Intercity (V Set) fleet. Incidents categorised as Caught & Dragged may be any incident where a passenger is caught in train doors and the train starts to move off. Recorded incidents have not usually resulted in physical harm as the train has been quickly brought to a halt, the passenger has been able to free themselves or the passenger has been carried between stations but not harmed, eg pram stuck in doors. It is noted that psychological trauma may result however, even if there has been no physical injury."

Although both the 2003 Implementation Plan and the 2007 Project Completion Report post-date Corey's accident, they were only outlining the extent of a problem that had been well recognised before it.

The delay in the implementation of Traction Interlocking

As stated, TI is a mechanism that aims to reduce the incidence of passengers being trapped and dragged. When the TI system on a train registers a door as open, it removes power to the Driver's Master Controller and prevents the train from moving for a period, allowing the driver and guard to take corrective action.

Both the 2003 Implementation Plan and the 2007 Project Completion Report state that TI was installed on all of CityRail's pre-Tangara DDS and intercity trains in the mid-1990s, but that the commissioning of the installed equipment was postponed. The Project Completion Report further states that following a review of the issue by Capital Works & Development in March 2003, the StateRail Board approved the commissioning of DVA and TI on DDS trains in July 2003, on Tangara trains in March 2006, and on the intercity fleet in April 2007. The overarching objective of this project, as approved by the Board, was "to enhance passenger safety by reducing the risk of passengers being caught in doors, dragged by the train, or falling from the train in motion".

The commissioning of DVA and TI on the intercity fleet commenced on 30 September 2007 and was completed on 1 May 2008. The Report indicates that the postponement of the commissioning of TI equipment was primarily due to "uncertainty ... regarding the implementation strategy and concern about it having an unmanageable impact on rail operations". It details a number of perceived constraints on implementation which I now summarise.

First, it was necessary to conduct "in-service trials" under controlled conditions to allow for the review and finalisation of the functionality and design of the TI equipment, stakeholder consultation and identification of the requirements for roll out. In respect of the intercity fleet, these trials commenced on 24 April 2007.

Second, both fleet and labour availability were said to be concerns. No additional sets could be withdrawn from service in order to implement the necessary on-train modifications and the capacity of workers at Flemington Maintenance Centre to undertake modification work was uncertain as ongoing maintenance work took priority over any modification work. These constraints meant that work was ultimately completed concurrently at the Flemington Maintenance Centre and MainTrain, with the former working on its own fleets during off-peak hours (particularly on weekends) and the latter performing modification work in tandem with other programs.

Third, maintenance staff and train crew were required to undergo training in DVA/TI "specific to Intercity cars", and Rail Operations Staff and Equipment Examiners had to train in "DVA/TI operations" to minimise in-service impacts from the commissioning of DVA and TI. Training of crews ran from early July to October 2007 and the training of maintenance staff ran from August to October 2007.

Fourth, it was necessary to control the introduction of permanently commissioned DVA/TI trains into in-service operations by way of gradual implementation. The Report states that although DVA/TI is a "risk reduction project", and early introduction is a "key consideration", the "commissioning rate ... needed to be moderated by a number of factors apart from completion of the modifications themselves" which were monitored during the roll out. These included crew response, assimilation of DVA/TI into routine operation, in-service incident level and nature, time to rectify door-open indications, door and door motor reliability, and the Maintenance Centre's ability to respond to an increased standard for door maintenance.

Fifth, DVA/TI commissioned trains had to be introduced into in-service operations "in a manner tolerable to [On Time Running] goals". This was listed in the Report as a "Key Deliverable" of the project and by the Implementation Plan as a key "risk issue". At trial, Mr Clemens explained that On Time Running (OTR) refers to the reliability of a train arriving at its destination within five minutes of its timetabled time of arrival. In his report, he states the delay in commissioning was "due to concerns with door failures to close properly potentially creating operating delays on the network". This concern was echoed by Mr Cowling, who listed the "tightly integrated nature of the [State Rail Authority] train operation and timetabling" as a major reason why the commissioning of TI had not proceeded as at 2000.

One matter that received particular attention during the hearing was an apparent concern to preserve OTR in the lead up to the Olympic Games. Mr Clemens agreed that the Government regarded it as of the "highest priority" that people should be moved efficiently to and from the Olympic site by rail and accepted that the Games were at least one reason why the TI equipment installed on the intercity fleet in the mid-1990s was not commissioned before 2000. In his report, Mr Cowling, who as at 1999 was engaged by the Olympic Coordination Authority (OCA) to evaluate pedestrian access requirements at key Games venues and transportation, states that a key reason for postponing the commissioning of TI was the "[d]irection from [the] Government through the [relevant Minister] to avoid any potentially damaging changes in the lead up to the Olympics".

Their evidence is borne out by the statements made regarding the Games in the 2000/01 Annual Report of the State Rail Authority of New South Wales tendered before me. That Report indicates that the Games involved more than a doubling of passenger traffic. It states that CityRail ran services 24 hours a day for nineteen days and almost thirty million people caught trains, compared to fourteen million people in a similar period outside the Games. Car kilometres increased from 700,903 per day to 1,050,000 per day. Accordingly, various measures were adopted to ensure high "service reliability" and a "high fleet utilisation rate", such as placing extra staff on busy platforms and increasing maintenance efforts both before and during the event, but the view was taken that:

""Established processes were in place. A decision was taken to strengthen systems rather than change them for the Olympic Games. No major structural changes were made because of the Olympic and Paralympic Games." (emphasis added)

The Project Completion Report records the effect on OTR of the commissioning of TI equipment on CityRail's intercity fleet during the roll out period between September 2007 and May 2008. It states that "[OTR] delays due to door to door related TI issues initially increased during the commissioning period but subsequently stabilised and reduced to well below the target level of two OTR incidents per week". The average weekly OTR delays was 0.6 in the six months to May 2008 and 0.9 in the three months to May 2008, when the number of DVA/TI commissioned V-Sets increased from 17 to 53. Accordingly, in the three months leading to the end of the roll out phase there was a 200% increase in the number of commissioned V-Sets, compared with a 50% rise in OTR incidents.

Finally, I note that Mr Cowling referred to three other reasons, not referred to in the Project Completion Report, which he said influenced the decision not to commission TI before 2000. These were industrial pressures involving the Rail Bus and Tram Union, the Special Commission of Inquiry into Glenbrook which had not yet delivered its Final Report (published in April 2001), and the "[u]nresolved and highly controversial issue of passenger containment and means of emergency egress".

For present purposes two matters should be noted. First, this material confirms that well before Corey's accident there was a realisation that passengers were being caught in the doors of trains. This realisation had led to the installation of the TI system and was otherwise recognised by the instructions given to staff (see below). Second, although the TI system was installed in the trains well before Corey's fall it had not been commissioned by that time. Mr Barry QC, ultimately submitted that it was negligent not to have done so. I address this below.

Is the State liable to Corey in negligence?

Applicability of CLA

At all relevant times, s 121 of the Transport Administration Act 1988 has provided that Chapter 5 of the Motor Accidents Compensation Act 1999 (the "MAC Act") applies "to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident". Under s 121(3) of the Transport Administration Act a "public transport accident" means, relevantly, "an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway ...". It was not in issue that Corey's accident fell within this description.

On 20 November 2002 the Civil Liability Amendment (Personal Responsibility) Act 2002 was enacted. It amended the Civil Liability Act 2002 by the insertion of, inter alia, Part 1A which in part governs the manner of demonstrating "negligence", defined as a "failure to exercise reasonable care and skill", and Part 5 which addresses the liability of public and other authorities. It also inserted s 3B which specified the applicability, either in part or in whole, or non-applicability of the CLA to various types of claims. There have been various amendments to the CLA including to s 3B over time, the relevant ones having had retrospective effect so as to apply to this case. For present purposes it suffices to note that ss 3B(1)(e) and (2) provide:

"3B Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

...

(e) civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988) - the whole Act except the provisions that subsection (2) provides apply to motor accidents,

...

(2) The following provisions apply to motor accidents:

(a) Divisions 1-4 and 8 of Part 1A (Negligence),

(a1) section 15B (Damages for loss of capacity to provide domestic services),

(b) section 15C (Damages for loss of superannuation entitlements),

(c) section 17A (Tariffs for damages for non-economic loss),

(c1) section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)),

(d) Division 7 (Structured settlements) of Part 2,

(e) Part 3 (Mental harm),

(f) section 49 (Effect of intoxication on duty and standard of care),

(g) Part 7 (Self-defence and recovery by criminals),

(h) Part 8 (Good samaritans)." (emphasis added)

It appears that the common assumption of the parties was that s 3B(2) applied those parts of the CLA referred to in s 3B(2)(a) to (h) to these proceedings. Although it was not stated, presumably the reasoning they adopt reflects the following passage from the judgment of McColl JA in Sheehan v State Rail Authority (SRA); Wicks v SRA [2009] NSWCA 261 at [84]:

"It was common ground at trial and on appeal that those issues fell for determination under that Act by virtue of s 3B(2)(e) of the Civil Liability Act which renders Pt 3 applicable to motor accidents, notwithstanding their prima facie exclusion in s 3B(1)(e). Although it was not debated it would seem the Waterfall derailment is classified as a 'motor accident' because the train was a motor vehicle, being a vehicle built to be propelled by a motor that forms part of the vehicle: Road Transport (General) Act 2005, s 3; applied by virtue of s 3, Motor Accidents Compensation Act 1999 (the 'MAC' Act) and the deaths or injuries caused by its derailment during its operation were as a result of and caused during either the driving of the vehicle, or the vehicle running out of control: definition of 'motor accident', s 3, MAC Act."

On this approach although the phrase "motor accident" in s 3B(2) of the CLA is not defined, resort is had to the definition in the MAC Act, which refers to "an incident or accident involving the use or operation of a motor vehicle". In Sheehan, the relevant definition of "motor vehicle" pursuant to s 3 of the MAC Act was to be found in s 3 of the Road Transport (General) Act 2005 which extended to trains. In Corey's case the relevant definition of "motor vehicle" is to be found in the former Road Transport (General) Act 1999, s 3 of which was not relevantly different.

The respective cases on liability

The respective cases put by the parties on liability only engaged with one another at the point of seeking to determine what factual findings should be made about how Corey's accident occurred. As noted on his behalf it was contended that he was innocently trapped in the door in a manner that should have been observed by the CSA and fell trying to extricate himself. From that point a duty of care is assumed. Mr Barry QC's written submissions identified the risk of harm of being a passenger "trapped in the doors". Although a number of particulars of negligence were identified in the statement of claim, in his written submissions Mr Barry QC only identified two relevant "precautions" that he submits should have been but were not undertaken. The first was the failure to implement the TI system that I have referred to. The second was the failure of the staff at Morisset to detect that the doors were not closed before signalling the train driver to depart.

As I have noted, not only did the State not accept that any of the inferences contended for Mr Barry QC had been established, it also submitted that it should be concluded that the accident was a consequence of deliberate or reckless interference with the doors by Corey. It contended that this had the legal consequence that no duty of care was owed to him by the State (as the legal entity responsible for the operation of the railways). In relation to breach, Mr Burbidge QC submitted that, even if "reasonable care required the Defendant to guard against known risk taking, any duty that existed to inhibit people squeezing through closed doors did not extend to making that course impossible".

The State's defence also pleaded that "alighting from a moving train not at a platform represented an obvious risk" within the meaning of s 5F of the CLA, Corey must be taken to be aware of this risk pursuant to s 5G, and there was no duty of care to warn of an obvious risk pursuant to s 5H. As pleaded, this type of risk appears to assume Corey jumped off the train, which was a scenario neither party contended for. In any event, as finally formulated Mr Barry QC did not submit that there was a duty to warn Corey of any matter so that s 5H is irrelevant.

Further, the State also pleaded reliance on ss 42 and 43 of the CLA. Section 43 can be put aside because no relevant "statutory duty" was identified as being relevant to his case. Section 42 specifies certain principles that apply in determining whether a public authority has a duty of care or has breached its duty of care (see Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at [388] per Campbell JA, with whom McColl JA and Sackville AJA agreed). Both ss 42 and 43 are found within Part 5 of the CLA. However, on the hypothesis that the CLA applies because of s 3B(2), it does not render Part 5 of the CLA applicable to "motor accidents" (see [108]).

Duty of care

Although the factual basis for the State's submission that there was no duty of care has not been accepted, it is still necessary to address whether there is such a duty and, if so, its scope.

The State placed great emphasis on the decision in Rundle v State Rail Authority of New South Wales [2002] NSWCA 354, which in turn adopted and applied the analysis of Dixon and McTiernan JJ in Henwood at 455 to 456 of the duty of care owed by a tram operator to a passenger. In Henwood a tram passenger who was ill leaned over a guardrail on the side of the car to vomit and was struck by a standard carrying overhead wires and died. His actions in doing so were contrary to a by-law made by the trust controlling the tramway which prohibited a person from projecting any part of their head or other part of the body or limbs outside of, inter alia, any barrier on a tram.

Dixon and McTiernan JJ held that the liability of the trust should not be determined by the rules applicable to occupiers but "by the legal duty resting upon a carrier of passengers to exercise due diligence to carry them safely" (at 455). Their Honours then stated (at 455 to 456):

"It has long been settled that a carrier of passengers incurs no higher responsibility than that of exercising reasonable skill and care for the purpose of carrying them safely and securely. A high degree of precaution is necessary before in such a matter the standard of reasonable skill and prudence is attained. But carriers of passengers, even if by statute they be common carriers, do not insure safety, and their duty in respect of the transportation of passengers is measured by no exceptional rule." (emphasis added)

Their Honours then considered and rejected the proposition that the passenger's breach of the by-law precluded recovery. Their Honours found that it was not the intention of the statute to preclude recovery in such circumstances (at 467). In further discussing the content of the duty their Honours stated (at 466):

"We think that the obligation of the Trust was to exercise due care for the safety of passengers from dangers likely to arise out of the ordinary use of the tram which might reasonably be expected, and that the case should not be treated as one where the danger consists in defective premises or a dangerous structure." (emphasis added)

It follows that their Honours regarded the accident caused to the passenger in that case as something "likely to arise out of the ordinary use of the tram", even though his actions involved a breach of a by-law.

In Rundle a fifteen year old passenger on a train was injured while spraying graffiti on the roof of the train. He had squeezed the top half of his body through an upper window of the carriage to gain access to the roof. He had lost at first instance and appealed. Heydon JA (as his Honour then was), with whom Young CJ in Eq and Foster AJA agreed, adopted the above statements from the judgment of Dixon and McTiernan JJ in Henwood as stating the scope of the relevant duty (at [52]). Further, his Honour stated:

Dr Batchelor conducted a series of neuropsychological tests on Corey. Those results revealed a "cognitive abnormality" in that there was a "significant disparity between scores on measures of verbal and nonverbal intellect", although she accepted that "abnormality is known to have existed prior to the accident in question". However she added that he had deficits in his "measures of nonverbal working memory, receptive memory and adaptive ability" which she found "difficult to account" for by reference to his "pre-accident history of language or attentional problems". She considered that he demonstrated many features of "frontal lobe syndrome" including that he was "uncharacteristically aggressive, disobedient, oppositional and inflexible".

Dr Batchelor concluded:

"I agree that it is highly unlikely that [Corey] would now be able to maintain open employment. He does have cognitive impairments. There is ample evidence indicating that he demonstrates many features of a frontal lobe syndrome including a failure to think through the implications of his responses and a disturbance of impulse control. Accordingly, he has been judged to be a risk both to himself and to others. The level of support and supervision that he would require in the workforce is beyond that which any employer could realistically be expected to provide. I do agree with the contention that in terms of his level of functioning and had he not incurred the brain injury he would have been capable of maintaining some form of practical employment."

In his second report Dr Darveniza concluded that Corey suffered from "cognitive dysfunction including a frontal lobe syndrome with pathological shyness, forgetfulness [and] slowness of thought". He considered it "unlikely [Corey would] find gainful employment in the open labour market, except in a very protective and benevolent environment". One difficulty with Dr Darveniza's reports is that they do not refer to Corey's impaired functioning prior to the accident and thus do not expressly address the consequential level of deterioration, if any, in his functioning.

The joint report reveals that the differences between Dr Roberts and Dr Batchelor are more a matter of degree than principle. The critical part of the joint report was as follows:

"2. The extent of any continuing incapacity (cognitive/ behavioural)

...

Dr Roberts' view (after extensive comparison of all available neuropsychological test findings over time) is that problems found on cognitive testing with verbal fluency and new verbal learning are highly likely to have predated the accident. Dr Roberts found no current evidence of cognitive problems on testing consistent with frontal lobe dysfunction.

Dr Roberts does not rule out an element of organically based behavioural problems being present, but regards the contribution as quite small when pre and post accident, family/reactive behavioural problems are taken into account. Dr Roberts is not prepared to give an exact percentage, apart from saying that it would generally fall in the lower end of the 0-14% range using the Clinical Dementia Rating Scale. Her view is that it is not possible to be more precise due to inherent problems with the Clinical Dementia Rating Scale (more so with children) and the arbitrary process involved in that scale to pick a percentage.

Dr Batchelor agrees that pre and post accident family/reactive behavioural problems are of relevance. However, she is of the opinion that Mr Fuller-Lyons' ability to deal with such stressors is significantly reduced as a direct result of the frontal lobe pathology sustained at the time of the accident. Essentially, due to acquired brain damage he is no longer able to modify his behaviour in the manner that can most. There have been family difficulties but he is not able to regulate his responses and deal with emotions as effectively as can others. Accordingly, she would rate him as falling at lower extreme of CDR category (15-29%).

3. In what way is it alleged that Corey Fuller-Lyons' ability to lead a normal life is significantly impaired by the injury?

Again, our comments relate to cognitive and behavioural issues.

Dr Roberts concluded that his ability to lead a normal life has been affected by pre-existing issues, family problems, the accident and, in particular, his concern about scarring and inability to play football for some time. Therefore, the accident is but one contributing factor.

Dr Batchelor is of the opinion that his ability to lead a normal life is reduced as a direct result of the traumatic brain injury due to cognitive and behavioural problems. She is of the opinion that it is highly unlikely that he would be able to maintain open employment. Due to frontal lobe damage he is a risk to both himself and others. In her opinion, the accident is a significant contributing factor to disability.

4. In light of the amended statement of particulars, please confirm the following:

(a) is Corey Fuller-Lyons' current condition consistent with the alleged injuries?

Dr Roberts' view is that his current condition is consistent with a number of factors, including the injuries sustained in the accident. There are many aspects which are not accident-related and which reflect family upheaval and instability as well as pre-existing cognitive and behavioural problems.

Dr Batchelor agrees with the above but emphasises that his ability to deal with family upheaval and instability is significantly and adversely affected as a result of frontal lobe damage." (emphasis added)

The State sought to support what it submitted was Dr Roberts' opinion that the effect of any frontal lobe dysfunction caused by the accident was relatively minor by pointing to various activities that it submitted Corey could undertake. I have set out the activities it nominated and my findings in respect of them at [163] above. I am not persuaded that Corey's level of functioning is inconsistent with the level of frontal lobe dysfunction suggested by Dr Batchelor. Dr Batchelor was not required for cross examination so these matters were not taken up with her. However, the activities that I have found Corey can undertake do not involve any sustained social interaction on his part with anyone other than his family or him having to deal with and respond to expectations being placed on him as would be the case if he was, for example, employed.

Otherwise it is evident from these passages from the joint report of Dr Roberts and Dr Batchelor that Dr Roberts does not deny that Corey has frontal lobe damage. She accepts that the accident was a "contributing factor" to his inability to lead to a normal life which presumably extends to his difficulties in obtaining and retaining employment. Furthermore she does not deny that his frontal lobe damage makes some contribution but also identifies "reactive behavioural problems" and refers to his scarring and his inability to play football as matters affecting or contributing to his ongoing incapacity (or inability to lead a normal life). Of course, these are both physical injuries caused by the accident.

Dr Batchelor observed that the frontal lobe damage occasioned by the accident meant that he lost the ability to "regulate his responses and deal with [his] emotions as effectively as can others". The material that pre-dates the accident does not indicate that Corey faced any significant emotional problems, although, even if he did, it seems that the accident impaired his ability to cope.

Dr Roberts' reports reveal that Corey faced significant problems absent the accident. Even allowing for his young age, the material she has pointed to indicates that he was very likely to have had limited schooling and employment prospects. That said the State takes Corey as it finds him. As further explained below, prior to the accident his employment prospects may have been impaired but after it they were all but destroyed. People with delayed expressive and receptive language who face social problems at home are not necessarily lacking in motivation, unable to control their emotional responses, oppositional, introverted and otherwise alienated as Corey has become. Whether those behavioural responses are either a consequence of frontal lobe damage or the result of the "reactive behavioural problems" identified by Dr Roberts operating on a background of social disadvantage and delayed development does not matter in terms of causation, although I find Dr Batchelor's explanation more persuasive and I accept it. On either view those responses are sequelae of physical injuries sustained in the accident.

Non-economic loss

Section 131 of the MAC Act precludes the making of an award of damages for non-economic loss unless the degree of impairment as a result of the injury caused by the accident is greater than 10%. Sections 132 to 133 in conjunction with Part 3.4 of the MAC Act provide a regime for obtaining an assessment of whether the threshold has been exceeded. In this case there was no issue that the threshold had been exceeded. Section 134 specifies that the amount awarded for non-economic loss cannot exceed a particular sum, currently fixed at $477,000.

I have described the circumstances of Corey's accident and his physical injuries. They should not be underestimated. The accident would have been terrifying and he was no doubt in considerable pain and discomfort in the aftermath. In the medium term he has had operations and scarring. He had to watch his friends and classmates pursue physical activities that he could not.

The findings that I have made at [179] are of particular significance. Corey was vulnerable prior to the accident but his opportunity for a full life was substantially impaired by the accident. To inflict frontal lobe syndrome on a young boy with delayed development is to cause very significant damage indeed. It will affect him for the remainder of his life. In that respect he was the cognitive equivalent of the "eggshell skull" (Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501 per McHugh JA, Samuels JA agreeing; Kavanagh v Akhtar (1998) 45 NSWLR 588 at 600 to 601 per Mason P, Priestley and Handley JJA agreeing). Unconstrained by s 134 I would assess general damages in an amount that well exceeded the cap in s 134. It follows that I award general damages in the amount of $477,000.

Economic loss - past and future

Mr Barry QC put Corey's case for loss of earning capacity as involving a simple calculation based on Corey commencing work after he left school in 2008 and then receiving average weekly earnings until an expected retirement age of 67, with a deduction of the usual 15% for vicissitudes. Ultimately the State accepted that it was appropriate to adopt a retirement age of 67. However it raised two other issues, namely the starting assumption that Corey's earning capacity can be equated to average weekly earnings and whether he had and has any residual earning capacity.

Any assessment of future economic loss must be undertaken in conformity with, inter alia, s 126 of the MAC Act which provides:

"Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

I have already summarised Corey's level of cognitive function both before and after the accident, the contribution of the accident to that difference and the opinions of Dr Roberts and Dr Batchelor on his "ability to lead a normal life" which, at least in Dr Batchelor's case, appears to extend to earning capacity. Dr Roberts' reports are not promising reading in that respect either.

In their joint report Associate Professor Jones and Dr Monica Ling agreed that Corey is presently capable of performing four to six hours work per day for three to four days per week. They were asked to specify the type of duties he could perform, but did not do so. I expect it was low-skilled labour. They both stated that there "are contributing factors from traumatic brain injury and developmental disability" resulting in his incapacity for work. They were also asked and answered the following question:

"5. If you determine that [Corey's] incapacity can be apportioned to the subject injury and any prior or subsequent injury or condition, what is your apportionment?

The percentage of traumatic brain injury is 50/50. Associate Professor Richard Jones and Dr Monica Ling agree on this apportionment."

The difficulty with this answer is that it is ambiguous as to whether it is directed to the "but for" analysis required by s126(2) of the MAC Act and the common law for any assessment of past economic loss. It leaves open the possibility that, but for the traumatic brain injury, Corey could have overcome his various delays and established a substantial earning capacity.

The joint report from the two occupational therapists, Ms Gill and Ms Dinley, relevantly stated:

"Dinley, on page 1, 11 in Report II, indicated that it was believed that the Plaintiff had a poor prognosis for open work due to the premorbid medical conditions impacting on the frontal lobe head symptoms. Both Occupational Therapists agree that the Plaintiff's employment prospects were impacted upon independent of the injuries of the Train Incident although it is recognised and agreed that the frontal lobe injury would have resulted in limited employment opportunities including the sustainability of employment.

...

Both [Occupational Therapists] concur that the Plaintiff's incapacity for work, being trained for and having a sustainable capacity to work is a result of multiple variables.

6. If you determine that [Corey's] incapacity can be apportioned to the subject injury and any prior or subsequent injury of condition, what is your apportionment?

The Occupational Therapists agree that the apportionment is:

- 50% pre-existing

- 50% due to the frontal lobe injury

The Occupational Therapists agree that the Plaintiff could work in a part-time position i.e. 20 hours per week.

Both Occupational Therapists agree with the following regarding the Plaintiff's prognosis for any employment considering his frontal lobe injury.

- It would need to be transient short term unskilled labour

- Employment prospects limited due to social circumstances but it is opined that he could succeed in basic repetitive blue collar work without any high-level responsibilities. It is opined that interaction with others would need to be limited as he tends to have interpersonal altercations if he does not like another person, though he could work in parallel with others.

- He has demonstrated capacity with using a computer, though his ability to build / fix / work with others has been dependent on the activity type and the other persons involved. Now expected capacity to work in isolation (i.e. not confronting / being responsible for others) in repetitive tasks and basic environment in supported work with minimal responsibilities and worked that is checked regularly. e.g. computer data entry, non-time regulated; own pace / flexible pace; flexible deadlines; non critical information etc.

- In a part time capacity up to 20 hours." (emphasis added)

Again the "apportionment" undertaken in this passage suffers from the limitation noted above.

The first matter to address is Corey's earning capacity but for the accident. Both Ms Gill and Ms Dinley accepted that Corey's employment prospects were "impacted upon independent of the injuries" occasioned by this accident. This was strongly supported by both neuropsycholgoists and especially by the extensive discussion in Dr Roberts' reports about Corey's difficulties prior to the accident. Although he was only seven at the time of the accident, none of the experts suggested that the deficits in his level of pre-accident cognitive functioning were likely to improve or self correct if the accident had not occurred. In those circumstances, I do not accept the starting point for Mr Barry QC's calculation which assumes that, but for the accident, Corey could be expected to have received average weekly earnings for the balance of his working life. Instead, and allowing for the uncertainty involved, I consider that a more realistic assessment is one that contemplates Corey being able to pursue largely manual labour, either unskilled or semi-skilled, for a sustained period but not necessarily permanently. In those circumstances I find that his earning capacity but for the accident should be treated as an amount representing 65% of average weekly earnings. For the purposes of s 126(1) of the MAC Act, I consider that the "most likely future circumstanc[e] but for the injur[ies]" is that Corey would have had an earning capacity of 65% of average weekly earnings.

The other issue is Corey's residual earning capacity. As noted, most of the experts accepted that he had a physical capacity to perform some form of work for a period of approximately twenty hours per week. The State asserted that he had a residual earning capacity of 50% of average weekly earnings on the basis that those hours represented approximately half the working week. What is noticeably absent from the reports (other than those of Ms Dinley and Ms Gill) addressing his residual earning capacity is any real detail concerning the type of work that Corey could perform. The State's submissions referred to the possibility of Corey "working in IT" on the basis of his interest in computers or him working as a labourer or as a spray painter. The suggestion that he might be employed as a spray painter appears to stem from the suggestion that he has completed a spray painter's course. I was not referred to any evidence to support that contention.

Otherwise the suggestion that someone who is said to be obsessed with computer games and has at some point undertaken some computer repairs could thereby obtain "employment in IT" seems to me far fetched. The concept of "employment in IT" is a broad one and being able to use a computer is a long way from having sufficient skills to program one or pursue some other line of employment which involves selling skills to an employer or the public. The form of IT work contemplated by the occupational therapists is at the very unskilled end of the scale ("minimal responsibilities") and in conditions that would make his employment unlikely (ie short hours, flexible pace, flexible deadlines, etc).

It is to be remembered that the assessment of Corey's earning capacity requires that consideration be given to market demand for his labour. As noted by Davies AJA in Visyboard Pty Ltd v Ranieri [1999] NSWCA 331 at [28]:

"Earning capacity involves an ability to engage in remunerative employment and this itself involves an ability to find an employer who is prepared to engage and remunerate the disabled person."

In this context Corey's position is very difficult. Leaving aside the suggestions of "employment in IT", the only available form of employment appears to be relatively unskilled manual labour. Given the hours he could possibly perform, this would be most likely casual labour. The difficulties I have identified at [179] make it unlikely that he could sustain the personal relations needed to pursue such work for any sustained period. On the demand side of the labour equation he would be competing with others for unskilled part-time casual labour positions in circumstances where he has a non-existent work record and a history of medical problems. Even if not at the outset, at least within a short period, his difficulties in dealing with fellow workers and his employer would become apparent. His limitations would, in my view, make his prospects of obtaining a position very poor. It would only be in the circumstance of a significant labour shortage that he could be expected to obtain this type of work. With IT work the limitations noted in the joint report of Ms Dinley and Ms Gill make him very unlikely to obtain work in that sector. In these circumstances I consider that his residual earning capacity can only be assessed as representing 15% of average weekly earnings.

In the end result I accept the State's submission that Corey suffered a loss of earning capacity representing 50% of average weekly earnings, although not for the same reasons it put forward. The State's figures for past and future economic loss calculated to age 67 on this basis were $87,375 and $348,804 respectively, which included a further 15% deduction for vicissitudes. I will adopt those figures, including that 15% deduction (MAC Act, s 126(2)), although the parties will have the opportunity to check and update those figures.

Past and future loss of superannuation

Both parties agreed that the appropriate figure for past and future loss of superannuation was 11% of the relevant figure (Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728). It follows that the figure for the past is $9,611 and the future is $38,368.

Past and future care

The reports that were tendered from the occupational therapists, Ms Gill and Ms Dinley, addressed this topic in some detail. It is unnecessary to summarise them because in their joint report they agreed on various components for the plaintiff's past and future care requirements. In oral submissions Mr Barry QC accepted their figures. The State's schedule of damages calculated those figures as $121,821 and $150,471 respectively.

Past medical expenses

These were agreed at $1,734.55.

Future medical expenses

On behalf of Corey there was claimed an allowance for eleven items, being (i) CT scans of his right elbow every ten years, (ii) three MRI scans during his lifetime, (iii) analgesia and glucosamine for pain management and to delay osteoarthritis, (iv) attendance on a specialist neurosurgeon to review the cranioplasty five times during the plaintiff's lifetime, (v) attendance on an orthopaedic surgeon to review his right elbow every ten years, (vi) attendance on his general practitioner four times per year, (vii) attendance on a psychologist for counselling twice per annum, (viii) review by a brain injury rehabilitation specialist unit twice per annum, (ix) physiotherapy four times per year, (x) gymnasium membership and (xi) three hours of occupational therapy assessment per annum. The total amount claimed for these items was $75,817.67.

The State contended that only items (ii), (iv) and (viii) relate to injuries actually suffered during the accident. It contended that the medical evidence proffered no support for any treatment of the plaintiff's elbow. It proposed $20,000 as an appropriate buffer to age eighty.

In relation to the contentious items, the expert in spinal and rehabilitative medicine called on behalf of the plaintiff, Dr Ling, stated that Corey may require an X-ray or CT scan of his elbow for degenerative change once every five to ten years. She also suggested that an orthopaedic surgeon review his right elbow every ten years. Dr Ling suggested he obtain review by a general practitioner every three to four months and that he pursue a cardiovascular regime to assist with his fatigue levels and weight. She added "[h]e may wish to trial attendance at a gymnasium and swimming pool for exercise".

Given Corey's age and the potential for degenerative change in the elbow I accept that it is appropriate for him to obtain a review of his elbow once every five to ten years. However, the picture that emerges from the various reports is that Corey's overall condition is very stable. Accordingly, review by a general practitioner every three to four months is not in my view necessary, although it is likely that there will be a need for some attendances. I have no doubt that a higher level of cardiovascular health on the part of Corey is desirable, but I am not satisfied that his accident in early 2001 has given rise to a need for him to attend a gym.

Overall I will allow a buffer of $35,000 for future medical costs.

Future disposition

It follows that there will be a judgment in favour of Corey. I will allow the parties a period to consider the calculations and address the outstanding questions of the costs of funds management and legal costs. They will have liberty to apply on one day's notice in the event that the outstanding matters can be resolved.

Accordingly the Court orders that:

(1) The proceedings stand over to 6 December 2013 at 9.30am for directions.

(2) There be liberty to apply on one day's notice.

**********

Decision last updated: 15 November 2013

Medium Neutral Citation:	Fuller-Lyons v State of New South Wales (No 3) [2013] NSWSC 1672
Hearing dates:	22, 23, 24, 26 and 29 April, 1 and 2 May 2013
Decision date:	15 November 2013
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) The proceedings stand over to 6 December 2013 at 9.30am for directions. (2) There be liberty to apply on one day's notice.
Catchwords:	NEGLIGENCE - plaintiff injured after being trapped by train door and falling from moving carriage - part of the body of the plaintiff protruding from door when train left station - duty owed - being trapped in door a danger likely to arise from the ordinary use of the train and which might reasonably be expected - risk of harm - breach of duty - failure of customer service attendant to observe plaintiff trapped by door before signalling to guard that train could leave - causation - contributory negligence - standard of care - position of unsupervised child with little experience of train doors or riding on trains - whether cognitive impairment of plaintiff before accident relevant - assessment of damages - eggshell skull rule - relevance of pre-accident developmental delays.
Legislation Cited:	- Civil Liability Act 2002 - Civil Liability Amendment (Personal Responsibility) Act 2002 - Motor Accidents Compensation Act 1999 - Road Transport (General) Act 1999 - Road Transport (General) Act 2005 - Transport Administration Act 1988
Cases Cited:	- Action Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128 - Benic v State of New South Wales [2010] NSWSC 1039 - Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 - Carey v Lake Macquarie City Council [2007] NSWCA 4 - Condos v Clycut Pty Ltd [2009] NSWCA 200 - Doubleday v Kelly [2005] NSWCA 151 - Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 - Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155 - Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 - Holloway v McFeeters [1956] HCA 25; 94 CLR 470 - Jackson v Lithgow City Council [2008] NSWCA 312 - Jones v Dunkel [1959] HCA 8; 101 CLR 298 - Kain v Mobbs [2008] NSWSC 383 - Kavanagh v Akhtar (1998) 45 NSWLR 588 - Langborne v State Rail Authority of NSW [2005] NSWSC 47 - Luxton v Vines [1952] HCA 19; 85 CLR 352 - Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 - Manly Council v Byrne [2004] NSWCA 123 - Millicent District Council v Altschwager (1983) 50 ALR 173 - Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501 - Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 - Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 - Richard Evans & Co Ltd v Astley [1911] AC 674 - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 - Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 - Rundle v State Rail Authority of New South Wales [2002] NSWCA 354 - Shaw v Thomas [2010] NSWCA 169 - Smith v Jenkins [1970] HCA 2; 119 CLR 397 - Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 - Tame v New South Wales [2002] HCA 35; 211 CLR 317 - Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 - Visyboard Pty Ltd v Ranieri [1999] NSWCA 331 - Wallace v Kam [2012] NSWCA 82 - Wallace v Kam [2013] HCA 19; 87 ALJR 648 - Waverley Council v Ferreira [2005] NSWCA 418 - West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 - Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Category:	Principal judgment
Parties:	Corey Travis Fuller-Lyons (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: C.T. Barry QC, G.J. Davidson (Plaintiff) R.J. Burbidge QC, A.C. Casselden (Defendant) Solicitors: AC Lawyers (Plaintiff) Hicksons (Defendant)
File Number(s):	2008/316134