Warner (By Her Next Friend Airs) v Kernke - [2010] SADC 170

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WARNER (BY HER NEXT FRIEND AIRS) v KERNKE & ORS
[2010] SADC 170
Judgment of His Honour Judge Soulio
24 December 2010
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES
Plaintiff injured while attempting to re-board train after being ejected.
Passenger Transport Act 1994 ss 56, 57; Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 reg 38; Survival of Causes of Actions Act (1940) ss 2, 3; District Court Rules 1992 rr 32, 35, referred to.
Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107; Cole v South Tweed Heads Rugby League Football Club Ltd & Anor (2004) 217 CLR 469; Zalewski & Anor v Turcarolo [1995] 2 VR 562; Caterson v Commissioner for Railways (1973) 128 CLR 99; Lanahmede Pty Ltd v Koch [2004] SASC 204; Wyong Shire Council v Shirt (1980) 146 CLR 40; Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322; Joslyn v Berryman (2003) 214 CLR 552; Wilson v McLeay (1961) CLR 523; State Rail Authority of New South Wales v Schadel [2001] NSWC 394, considered.

WARNER (BY HER NEXT FRIEND AIRS) v KERNKE & ORS
[2010] SADC 170
The Action

Dennis Martin suffered injury when he fell between the Bowden railway station platform and a train operated by the fourth defendant, TransAdelaide, and driven by the third defendant, Paterson, after being ejected from the train by the second defendant, Haynes, and the first defendant, Kernke.
Kernke was travelling on the train as a security guard. She was not employed by TransAdelaide, but rather by Group 4 Securitas, presumably under a contractual arrangement with TransAdelaide. Haynes was a Passenger Service Assistant (PSA), or conductor, employed by TransAdelaide. The driver, Paterson, was also directly employed by TransAdelaide. In addition to being the operator of the train, TransAdelaide was the occupier, or at least the entity in control, of the Bowden station.
The Plaintiff’s Case
The plaintiff alleged, by his pleadings, that having boarded the train at about 11.00pm on 21 November 2001 at the Adelaide railway station, and intending to travel to the second stop, Croydon, he was forcibly ejected from the train, by the first defendant, at Bowden railway station, the first stop away from Adelaide. He attempted to re-board the train but Kernke and Haynes held the door shut so that he could not re-board. As the third defendant drove the train away from the station, the plaintiff fell from the station platform and suffered a serious injury. The plaintiff alleged that his injuries were caused by the negligence and/or breach of duty of all four defendants.
The allegations of negligence and breach of duty against the first and second defendants are essentially that they ejected the plaintiff from the train without lawful excuse; in circumstances where they knew that the manner of ejection placed him at significant risk of harm; and refused to allow him to re-board the train in circumstances where such action placed him at significant risk of harm. Further, they permitted the train to move off from the station when doing so placed him at risk of harm.
The allegation against the third defendant is essentially that he drove the train away from the station when it was unsafe to do so, having regard to the plaintiff’s position.
The allegations against the fourth defendant are couched in general terms of exposure to risk of injury; failing to have in place a system which would ensure the safety of the plaintiff; failing to provide safe plant and equipment to enable the plaintiff to enter or leave the train, and failing to ensure that its agent servants and employees did not act unreasonably towards members of the public including the plaintiff; and an allegation that it failed to provide adequate lighting at the station.
Defendants’ Response
TransAdelaide and its direct employees, Haynes and Kernke were jointly represented. Kernke was separately represented. TransAdelaide conceded that it was vicariously liable for the negligence of Haynes and Paterson should any be found.
The effect of the defendants’ pleadings are that the plaintiff was travelling without a ticket; responded aggressively when asked for identification; was escorted from the train at Bowden; and, after the train had commenced moving, ran towards the doors which could not be opened while the train was in motion, and fell from the platform. Liability was denied, and contributory negligence pleaded in the alternative. There are no contribution proceedings between any of the defendants.
Substitution of Party
After the evidence had been completed, and judgment reserved, the plaintiff died from complications of HIV/AIDS on 26 October 2009. It is common ground that his death was unrelated to the injuries which are the subject matter of this action.
Following the plaintiff’s death an application was brought to substitute the plaintiff’s daughter as plaintiff by her next friend and orders were made as follows:
1.That Ebony Warner be substituted as plaintiff with Jennifer Joyce Airs appointed as next friend pursuant to Rules 31 and 35 of the District Court Rules 1992;
2.That Ebony Warner as substituted party with Jennifer Joyce Airs appointed as next friend be granted leave to continue the deceased plaintiff’s within action.
3. That the costs of and incidental to this application be reserved.
I shall however refer to Mr Martin as the plaintiff in these reasons.
Issues for Determination
It is necessary to determine the liability, if any, of the defendants, the extent to which the plaintiff contributed to his own injuries, and to assess such damages as may be awarded pursuant to the provisions of the Survival of Causes of Actions Act 1940.
The issues for determination include whether the plaintiff was travelling lawfully on the train, whether the plaintiff was intoxicated, the nature of the discussion between the plaintiff and Haynes, whether Haynes was entitled to request information from the plaintiff, whether Haynes and/or Kernke were entitled to use force to eject the plaintiff, and whether a duty was owed to the plaintiff.
Evidence
The plaintiff gave evidence as to liability, as did Kernke, Haynes and Paterson. Three passengers, McAlpine, Rees and Kiosowski, were called by the fourth defendant. A further passenger, Woodley, who was known to the plaintiff, was not called. I draw no inference adverse to the plaintiff on the basis that there was surveillance film of events in the carriage, it is not clear whether Woodley saw the events on the platform or not, and Woodley was apparently somewhat itinerant.
I note that Haynes conceded that he had spoken to Kernke on many occasions about the events of that night, when they had worked together subsequently. Haynes also conceded that he had spoken to the driver Paterson about the events of the night although could not recall the detail of what had been discussed. Haynes agreed with the proposition that in preparing his statement about the incident he was very much aware that he and Kernke might be criticised for what had happened.
Factual Findings
At about 11.00pm on 21 November 2001 the plaintiff boarded a train at the Adelaide railway station. He intended travelling to Croydon, two stops away from Adelaide. On the platform he met by chance, another man, Woodley, who was known to him. As I have said, there were three other passengers on the train.
During the course of the journey between Adelaide and Bowden, the first stop away from Adelaide, Haynes asked the plaintiff for his ticket. Haynes and Kernke formed the view that the plaintiff did not have a ticket, and elected to eject him from the train at Bowden. A dispute developed and the plaintiff was physically restrained by Kernke and Haynes.
When the train arrived at Bowden, the doors were opened and the plaintiff was physically ejected from the train by Haynes and Kernke. The doors were closed and held closed by Kernke and Haynes. The plaintiff tried to open the door of the train, although whether he first did that while the train was stationary, or after it had commenced moving off, is in dispute. The period of time which had elapsed between the train first stopping at Bowden station, and moving off again, was some 10 seconds. As the train moved off the plaintiff fell between the train and the platform, and the train ran over his left leg, amputating the leg.
Was the Plaintiff a Lawful Passenger?
There was a dispute as to whether the plaintiff had a ticket to ride on the train. The plaintiff said in evidence that he had purchased a concession day-pass that morning and travelled to his place of casual employment in the café at Tandanya, an Aboriginal cultural centre in the Adelaide CBD. The plaintiff said that upon his return to the Adelaide railway station later than night, there were turnstiles automatically activated by production of the ticket, as well as an open gate manned by a TransAdelaide employee who checked tickets. The plaintiff said he was carrying groceries in both hands and did not use the automatic turnstile, but rather showed his ticket to the TransAdelaide employee.
Counsel for TransAdelaide initially cross-examined the plaintiff on the basis that no such automatic turnstiles were in operation and that there was no TransAdelaide employee checking tickets at the relevant period. Ultimately TransAdelaide conceded that there were automatic turnstiles. No evidence was led to contradict the plaintiff’s evidence that there were employees checking tickets at that time.
The plaintiff gave evidence that Woodley was itinerant, and essentially homeless. Security surveillance footage from a camera within the carriage appears to show Woodley entering the train without stopping at the ticket-validating machine. The footage shows the plaintiff stopping in the vicinity of the ticket-validating machine on the train. The plaintiff said that he later gave his ticket to Woodley.
It is the common evidence of Kernke, Haynes, and the passengers on the train, that the plaintiff did not produce a ticket when asked to do so by Haynes. It is however consistent with the evidence, and I find, that the plaintiff had in fact purchased a concession day-pass on the morning of the incident, but during the subject journey handed his ticket to Woodley, for the purpose of enabling Woodley to pass the ticket inspection, and when asked to produce his ticket the plaintiff did not do so.
Was the Plaintiff Intoxicated?
The plaintiff’s evidence was that he had ceased working at about 4.00pm, and over the next hour or so consumed six stubbies of beer. He had then walked to the Tattersalls Hotel on Hindley Street, about a block away from the Adelaide railway station, and there consumed more beer over a period of what, on the evidence, must be about three hours.
The undisputed medical evidence was that when tested at the Royal Adelaide Hospital after the incident, the plaintiff’s blood alcohol reading was .31gm per 100ml of blood. The evidence of the passengers, and of Haynes and Kernke, was that the plaintiff smelled strongly of alcohol. I find that the plaintiff was significantly intoxicated and that that was, or should have been, apparent to those dealing with him.
What Happened on the Train?
The plaintiff said he had a brief conversation with Haynes in which he was asked for a ticket, said he did not have one, and was told that he would be evicted from the train at the next station.
The plaintiff said that when the ticket inspector asked to see his ticket he had responded by saying “look, I will buy a new ticket to save all the drama” but could not recall any preliminary discussion. He said that Kernke was doing much of the talking and “she was basically telling … that it was too late to buy a ticket, that they would put us off at the next stop. And that’s when I disputed that.” The plaintiff said that he had said to Kernke she was discriminating and that if a non-Aboriginal person got on the train without a ticket they would be permitted to buy a ticket. He said there was a bit of an altercation and he was pursuing the issue of buying a ticket for Woodley and refusing to get off the train. He said that Kernke said “you are not getting any ticket now”.
The plaintiff said Kernke came towards him with her hand up and he pushed her hand away. After that he said his arm was twisted behind his back and he was forced to the other side of the carriage and pinned against the door until the train slowed into the station. He said the doors opened and he was thrown out.
Haynes said that he approached the plaintiff and Woodley. Woodley produced a ticket. The plaintiff said he did not have one. Haynes said that he told the plaintiff he would need to purchase another ticket and the plaintiff replied that he did not have any money. He said that he explained to the plaintiff that it was an offence to travel on the train without a ticket, and if he was not going to purchase a ticket he would need to produce his identification. He said the plaintiff did not produce any identification and claimed to have none. He said that the plaintiff was aggressive and threatening and was swearing. Haynes said that when the plaintiff said he did not have any identification he asked the plaintiff for his name and details, which he refused to supply. Haynes said that he then explained that, pursuant s 57 of the Passenger Transport Act, it was an offence not to provide identification or not give full and correct details.
Haynes asserted that he told the plaintiff of the penalty for failing to provide his correct name and address. He said he made reference to a monetary penalty and to a sentence of imprisonment and told the plaintiff he would be evicted. He said the conversation was in a normal speaking voice and that Kernke was nearby.
Haynes said that the plaintiff threw a punch at Kernke, that he and Kernke restrained the plaintiff and walked him to the door.
Kernke, whose duties included walking around with Haynes to provide protection, did not support Haynes’ evidence that he had engaged in a detailed conversation as described. She described the exchange between Haynes and the plaintiff in the following terms:
Haynes:    Can you please show me your ticket.
Plaintiff:     I left it at the pub.
Haynes:    Are you going to buy another ticket?
Plaintiff:     No.
Haynes:    Then you will need to leave the train as you don’t have a ticket.
Plaintiff:You’re only picking on me because I’m black you white (expletive deleted).
Kernke said that after Haynes told the plaintiff that he would have to leave the train she and Haynes moved away from the plaintiff toward the ticket machine and the plaintiff then approached them, carrying a plastic bag in each hand. Kernke said that the plaintiff verbally threatened Haynes, and that she moved forward and put her hand out at shoulder height to keep the plaintiff away. She said the plaintiff also threatened her. She said that the plaintiff put his plastic bags down on the ground and said he was going to hit her, lifted his arm and made a fist and tried to throw a punch at her. She said that she blocked his arm, grabbed him and Haynes came to her aid and a struggle took place. She said as the train approached the station she was holding the plaintiff by the wrists and arm and Haynes was also holding the plaintiff so that he faced the exit door.
The passenger McAlpine observed Haynes ask the plaintiff and Woodley for tickets. He saw Woodley produce a ticket, and heard the plaintiff say he did not have a ticket. He said that Haynes said to the plaintiff that if he did not purchase a ticket he would be put off the train at the next station. The plaintiff said he wanted to go to Woodville and would not purchase a ticket. McAlpine said that Haynes repeated that if he didn’t purchase a ticket he would be ejected.
McAlpine said that Kernke moved towards the plaintiff and said “you will need to purchase a ticket” and the plaintiff dropped his shopping bags and said “you want to have a go at me you fucking white slut.” Kernke then extended her hand towards the plaintiff. McAlpine described the plaintiff as taking a swing from the left arm towards the security guard at which time she restrained him by taking that hand and putting it behind his back. He said the plaintiff said he was being picked on because he was black, and Haynes responded that he was not being picked on because he was black, but because he didn’t have a ticket.
I prefer the evidence of Kernke, supported to some extent by McAlpine, as to the exchange between Haynes and the plaintiff. I find that whilst it may have been the general practice of Haynes, when confronted with a passenger without a ticket, to go through a detailed process of inquiry such as he described, on this occasion, when confronted with a man who was apparently intoxicated, he elected to evict the plaintiff and told the plaintiff so, and did not engage in any detailed inquiry.
Rees, another passenger on the train, said that he observed the security guard and the PSA inspecting tickets. The plaintiff and Woodley produced one ticket but were unable to produce a second ticket. He said the PSA then checked his and McAlpine’s ticket and returned to the plaintiff and said something along the lines of “could he produce the ticket or purchase a ticket and if not, he would have to get off at the next stop.” After being told he would have to get off the train the plaintiff became quite agitated and abusive. He said that the plaintiff took a swing at the security guard. She restrained him and there was a struggle until the train came to a stop.
A third passenger, Kiosowski, said there were words between the plaintiff and the conductor and the security guard. She only heard a request made of the plaintiff to produce a ticket, and suggested he said that he had one. She said the plaintiff took a swing towards the security guard and that the security guard had her hand on the plaintiff’s throat to hold him back. The security guard and the conductor then restrained the plaintiff’s arms behind his back and held him facing towards the door.
I watched surveillance video footage taken from a camera located in the carriage which appears to show that when the plaintiff approached Haynes, Kernke placed her hand either on the plaintiff’s shoulder or near his shoulder and the plaintiff knocked her hand away.
The plaintiff engaged in reconstruction. I suspect he had little direct memory of events given his state of intoxication. His memory was refreshed to some extent by watching the video footage. I do not accept Kernke’s evidence that the plaintiff announced that he was going to hit her, and proceeded to make a fist and tried to throw a punch at her. However it may have been her perception that the plaintiff swung a blow at her given the heated circumstances in which the exchange occurred. She reacted immediately and took hold of Martin as did Haynes. They held him facing the exit door until the train stopped at Bowden station. I find that Kernke and Haynes used force to restrain the plaintiff and used force to eject him from the train carriage on to the platform at Bowden.
What Happened on the Platform?
The plaintiff said that Woodley left the train before him. He could not remember whether he stayed on his feet when he was ejected from the train. He said that once he was put onto the platform he went back to the door and tried to open the door because he believed he had left his shopping inside. He was trying to push the door open and said that the security guard and the ticket inspector were holding the door closed from inside the train while it was still stationary. He said that he was trying to open the door for about five minutes which cannot be correct. It is apparent from the CCTV footage that the train was stationary at Bowden station for approximately 10 seconds. The plaintiff said he was tapping on the window, that the train started moving and suddenly he was on the tracks. He had no memory of falling from the platform.

The plaintiff agreed in cross-examination that having been put off the train he turned around and spat. He said he spat on the platform, and was not going to spit at the “officers”. He then tried to stop them closing the doors. He denied that he ran after the train and held on to it only after it had started moving.
Kernke said that when the train stopped at Bowden station she and Haynes let go of the plaintiff and he moved out of the train about three steps over the white line located about a metre from the edge of the platform. She said that when the plaintiff first exited the train he grabbed the door knob and tried to spit on them, that he held the door knob for about two seconds and they held the door shut and she then saw him move away from the train. She said that they continued to keep the plaintiff under observation, and tried to hold the doors as well because they believed he was going to come back in. Kernke said the plaintiff was standing in a shadow somewhere, behind the white line. She said the train started moving away and as the train was moving off they were holding the door shut and the plaintiff was not holding onto the door at that stage.
Kernke said in evidence that the plaintiff “launched” himself at the train after it had started moving off and began running alongside the train and grabbed hold of the side hand rail of the doors.
In cross-examination, Kernke conceded that when the train stopped at Bowden she would have had to exert pressure to get the plaintiff off the train, “bearing in mind if you ever caught a train late at night”. When asked what she meant by that she said “there’s a lot of unsavoury people out there and it happens quite often that people become violent and under the Passenger Transport Act “reasonable force” you can eject a person if they have committed an offence, if they have become violent.”
She agreed that despite her evidence that the plaintiff initially grabbed hold of the outside hand rail, and then came back to the train once it started to move, she did not record those separate movements in her notes or her incident report.
Her incident report described the event as “walked him back across to the doors on the platform side so he could get off, the train stopped, we let go of the offender and he alighted the train” and went on to say “the (offender) quickly moved forward to try and stop the doors closing. The PSA and I had managed to get the door shut”.
Her contemporaneous notes in her notebook record the following:
Tries to spit on, tries to get back in through door, train takes off, we hold door shut, offender grabs rail by door and runs along side of train, train gathers speed.
The implication from that note is that the plaintiff did not leave the vicinity of the door and then launch himself back at the train after it had commenced moving off, but rather he remained at the door trying to get back in, and the train moved off with him standing at the door.
Kernke said in cross-examination that it was possible that she also shut the doors to keep the plaintiff out because she and Haynes feared for their safety. She said her memory was that the plaintiff’s hand came into contact with the door handle after the doors had been shut. As to her description that the plaintiff launched himself at the train she said that although that was not a word she used in the incident report, “when I was recalling the moments, rereading my notes, I had visions of what was happening and I will term it as “launch””.
Haynes said once the train stopped at Bowden the door was opened and the plaintiff “alighted the train”. Haynes was rather evasive about whether he was holding the door shut but ultimately conceded that he was, and said he believed that he and Kernke were standing at the door holding the door closed. He said that the plaintiff walked a couple of metres away from the train, and turned around and appeared to be going to spit at them so they closed the door. He said the train was stationary at Bowden for something of the order of 10 seconds.
Haynes said he did not need to take any steps to alert the driver that it was appropriate for the train to leave the station, rather, he closed the doors after the plaintiff alighted and then the driver locked the doors and proceeded to move away from the platform. He said that when the train was moving the plaintiff was probably four meters away from the train, walking away from the train.
I do not accept that evidence. It is inconsistent with the evidence of McAlpine who says he saw the plaintiff at the door while Kernke and Haynes were holding the door closed and is inconsistent with the evidence from Kernke and Haynes that they were holding the doors closed.
Haynes said that he next saw the plaintiff apparently reach for the door handle in an attempt to grab the door handle. The plaintiff held onto the handle for two or three seconds, and then he observed the plaintiff moving away from the train and further onto the platform.
Paterson was not aware of any incident having occurred on the train when travelling between Adelaide and Bowden. He stopped at the Bowden station and pressed the button to open the left side doors and said that he looked in the mirror to see if anyone was getting on or off. He said that he saw a person get off from the front door carrying a couple of bags and then “probably one or two seconds behind him another Aboriginal got off fairly quick”. He then looked forward to make sure there was no one running in front of him, checked in the mirror and couldn’t see anyone. He said the doors closed right behind the last person that got off. He was asked how he knew that and said “two reasons I could tell. One, there was no light on the platform because it was dark, it was night time, so you can see the light coming out of the rail car coming onto the platform, there was no light.” The other reason was that the brake pressure dropped. Once the doors were closed he used the horn, pressed the door close button, and started to move off, “just keeping a look in the mirror and in front”. He said after two or three seconds he noticed someone running up next to the carriage. He kept an eye on him. He said he was far enough away for the driver to proceed safely. He said that the passenger grabbed the door and the driver then “put the train into full brake.”
In cross-examination Paterson was asked what he meant by the second person emerging quickly from the carriage and said “getting off quicker than just walking off, like he was running off, jumping off.” He said that did not alert him to the possibility that something other than a normal passenger exit might be happening. He was not aware of any altercation occurring within the carriage and did not hear any abusive language being used.
McAlpine said that when the train stopped Kernke opened the door and Kernke and Haynes “let the plaintiff off”. He said that after the plaintiff was “unrestrained” he fell over. Before the doors closed he said he could see the plaintiff on the ground on his back. The warning bells for the doors closing sounded and the plaintiff stood up and was looking through the doors. He said the train started to take off and the plaintiff was parallel to the door and as the train speed increased so did the plaintiff. He said he could see the plaintiff’s left arm extend towards the handle on the side of the rail car door and that he grabbed the handle. After that there was a thud and then the train braked.
McAlpine said that he could not see Kernke and Haynes physically holding the doors closed, but that they remained standing at the door, and, at the point when the train moved off, the plaintiff was still at the door. He said that Kernke and Haynes remained standing at the door until the train came to a stop. That is consistent with the surveillance video.
Rees said that Kernke and Haynes removed the plaintiff from the train; they were both holding one arm each behind his back, they took a step out of the train, removed him from the train and the doors closed as they stepped back inside the train. He said he couldn’t see anything outside the train but saw Kernke and Haynes standing at the door and then the train came to an abrupt stop.
Ms Kiosowski said that when the train stopped at the station “they gently took him off the platform – onto the station platform”. There were no scuffles they just eased him off gently. The train then moved a few feet up and then everyone ran outside and said there had been an accident. Ms Kiosowski’s memory of events was not reliable in my view. For example, she said that the plaintiff did not validate his ticket but that Woodley did. It is quite apparent from the surveillance video that the reverse is correct. Ultimately her evidence was not of particular assistance.
The plaintiff said that he was holding onto the train door attempting to open it at the time the train moved off. Whilst that is not consistent with the evidence of Paterson, it is consistent with the evidence of McAlpine and to a certain extent consistent with Kernke and Haynes although they say that he was holding onto the door initially and then turned away and gave the impression that he was leaving. I do not accept that. I prefer the evidence of McAlpine. He was adamant that the plaintiff’s face was visible at the door when the train commenced moving.
Train Departing the Platform
Haynes said that the usual procedure prior to a train leaving Adelaide railway station was for him to blow a whistle to indicate that it was time for the train to leave, and then give the driver an instruction to proceed by pushing a buzzer located near the door. Haynes gave evidence that he is able to insert a key which unlocks one of the carriage doors. It operates as an override switch and unlocks the door so that the driver can close every other door except for the overridden door. Haynes is then able to leave that door open to observe people that may be running for the train late “or make sure – and for safety reasons”. He said that “when I’m convinced and satisfied that it is safe for the train to proceed, I then push the buzzer once to instruct the driver that he can go. Once the train is moving and that, I turn the key again so the door automatically will close. But we only have to do it the once leaving Adelaide.”
There is no other method of communication between the PSA and the driver. The driver makes the decision as to when the train should move off at stations other than the Adelaide railway station. There was no evidence to suggest that such a system as was used at the Adelaide railway station could not have been used at Bowden station to warn the driver that there was a potential problem at the station and that he should not drive away from the platform.
Paterson was an experienced driver. He said that upon departing Adelaide railway station he would be given a clearance by the platform coordinator, who shows a flag, or the PSA who uses the door buzzer. If the PSA has used his key in the door and the door is open the train cannot depart unless the driver uses an override to release the brakes. The only way of telling whether the doors are open or closed is by checking the brake pressure gauge.
When the train comes to a stop at a station away from Adelaide, the driver presses the door open button for the corresponding platform side and looks in the mirror, if the platform is, as in the present case, on the left. The procedure is to then check to see whether passengers are getting on and off and when all is clear, a horn is sounded, the door close button is pushed, and the driver both checks the line ahead, and watches in the mirror, while moving off. Paterson said that if he, as the driver, closed the door, the door chime would sound. However, if the PSA or security guard did so, as I have found here, then no chimes would sound.
Trains sometimes operate on the basis that there is no PSA on board, and the driver is the only TransAdelaide employee present. The driver makes the decision whether to stop at a platform, and the decision when to leave. Even where a PSA is present the PSA is not required to give the driver a signal that it is safe to depart.
It seems to me that there is no reason, where a PSA is present, that the PSA who would be in a better position to ascertain whether it is safe to proceed, should not give a signal to the driver to do so. That is a system used, at all stations, where there are four cars or more coupled together, and after dark, where there are three cars or more.
Paterson was asked:
QAnd even though there is a requirement that the PSA signal will give you right of way if there are three cars or more at night, where you do have a PSA is there any reason on your understanding that the PSA is not used?
AThey are there for what is called passenger revenue at night time, that’s the main reason. We only get right of way in Adelaide station when we leave.
…
QJust taking up His Honour’s last question, there would be no impediment to a PSA doing that role in a single or two carriage train.
ANot that I’m aware of.
In re-examination he was asked:
QWould there be any advantage in having a PSA do that job in a one carriage train?
AI would know when everyone was off and on that was about to catch the train, probably off the train. We can’t see in the train. If he gives us right of way to depart we know everyone has cleared inside the carriage.
QIn terms of people outside the train, is there any advantage from your point of view?
AHe would be able to see a lot more than what I could.
QDo you mean farther away from the train?
AFarther away from the train.
QSo if somebody, for example, was running late for the train he would be able to alert you.
AYes, well, he wouldn’t give me right of way to depart.
QBut would there be any other assistance from that, people away from the train?
ANo.
Was Haynes Entitled to Eject the Plaintiff?
Haynes gave evidence, which I reject, that he had given the plaintiff a detailed warning pursuant to s 57 of the Passenger Transport Act which provides:
(1)A person reasonably suspected by a member of the police force or a prescribed officer to be committing or to have committed an offence against this Act may be required to state his or her full name and usual place of residence, and to produce evidence of his or her identity.
(2)     A person who—
(a)fails or refuses to comply with a requirement made by a member of the police force or a prescribed officer under this section; or
(b)in purported compliance with such a requirement, states a name that is not his or her name or an address that is not his or her usual place of residence is guilty of an offence.
(3)A person is not guilty of an offence under this section unless it is established that the member of the police force or prescribed officer—
(a)     warned the person that a failure or refusal to comply with the requirement is an offence; and
(b)     produced an official identity card for inspection by the person.
(4)     In this section—
prescribed officer means a person who is authorised by the Minister to exercise powers under this section.
As I have said, I find that the plaintiff told Haynes that he did not have a ticket authorising him to travel on the train, and that he did not intend to purchase one. However, I have found no request was made for provision of the plaintiff’s name and address, nor for production of evidence of his identity, and rather a decision was simply made to eject the plaintiff.[1]
[1] There was no evidence that an official identity card was produced by Haynes for inspection by the plaintiff.
The defendants sought to rely on Regulation 38 of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 under the Passenger Transport Act 1994, and s 56 of the Passenger Transport Act 1994.
Regulation 38 provides:
(1)An authorised person may direct a person not to board or enter a passenger vehicle or prescribed premises, or to leave a passenger vehicle or prescribed premises—
(a) if the authorised person has reason to believe—
(i)that the person may, if permitted to board or remain on the vehicle or to enter or remain on the premises, commit an offence against the Act or these regulations (including by refusing or failing to pay the appropriate fare or charge); or
(ii)that the person has, while on the vehicle or premises, committed an offence against the Act or these regulations; or
(b)if the person appears to be intoxicated or under the influence of a drug; or
(c) if the person acts in a threatening or abusive manner; or
(d)if the person is not properly dressed, or the condition of the person or the person's clothing or the nature or condition of anything carried by the person is such as would cause justified offence to another person or is likely to soil a part of the vehicle or premises; or
(e)in the case of a passenger vehicle, if the vehicle is displaying a "FULL" sign or is fully loaded with passengers or, when the person entered the vehicle, it displayed a "FULL" sign or was fully loaded with passengers; or
(f)if the authorised person has reason to believe that the person is not entitled to be on the vehicle or premises due to the terms of an exclusion order that applies to the person under regulation 41.
(2)An authorised person may direct a person to leave a passenger vehicle if the person refuses or fails to pay the appropriate fare or charge.
(3)A person who fails to comply immediately with a direction under this regulation is guilty of an offence.
(4)If a person fails to comply with a direction under this regulation, a member of the police force or a person who is authorised by the Board to exercise powers under section 56(8) of the Act may exercise reasonable force to remove the person from the relevant vehicle or premises.
(5)A person removed from a vehicle or premises pursuant to this regulation is not entitled to a refund of a fare or charge.
Section 56 of the Passenger Transport Act 1994 relevantly provides:
(5)A person must not behave in a disorderly or offensive manner while in or on a public passenger vehicle.
(6)An employee of the operator of a public passenger vehicle who has reason to believe that a person has committed an offence against subsection (5) may require that person to alight from the vehicle.
(7) A person must comply with a requirement under subsection (6).
(8)If a person who has been required to alight from a vehicle under subsection (6) fails to do so in accordance with that requirement, a member of the police force or a person who is authorised by the Minister to exercise powers under this subsection may exercise reasonable force to remove the person from the vehicle. (my emphasis)
Those provisions are apparently the source of Kernke’s belief that she was entitled to use “reasonable force”. TransAdelaide also initially asserted that Haynes, and incidentally Kernke, were executing a statutory power conferred by s 56(8) and reg 38(4) in using reasonable force to remove the plaintiff from the train, and that given that they were using such a statutory power, they could not be in breach of any duty to the plaintiff. Following further inquiry TransAdelaide conceded that neither Kernke nor Haynes had been authorised within the meaning of the Act and Regulations, to exercise force, but submitted that in view of the plaintiff’s behaviour, Kernke and Haynes were justified in using force to remove the plaintiff.
Duty and Breach of Duty
I have found here that the plaintiff lawfully came onto the train, albeit that he subsequently dealt with his ticket in such a manner as to mean that he did not have a ticket. Even in circumstances where the plaintiff had conveyed to Haynes and Kernke that he did not have a ticket, and therefore appeared at least to be a trespasser, a duty of care may still be owed.

The existence of a duty of care owed by the defendants to the plaintiff in circumstances where the plaintiff was being physically removed from the carriage for perceived misbehaviour, is supported by the following passages:
Per McHugh J in Cole v South Tweed Heads Rugby League Football Club Ltd & Anor at 482:[2]
Like employers, teachers, professional persons, guardians, crowd controllers, security guards, jailers and others who have rights of control over persons, property or situations, the duty owed by clubs to entrants extends to taking affirmative action to prevent harm to those to whom the duty is owed.
[2] (2004) 217 CLR 469.
In Zalewski & Anor v Turcarolo[3] Hanson J, with whom the other members of the Court agreed, said:
… In that situation it was necessary to note the proposition for which Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 is authority, namely that “there is no rule denying to a person who is doing an unlawful thing the protection of the general law imposing upon others duties of care for his safety” (per Dickson and McTiernan, JJ at 462).
[3] [1995] 2 VR 562.
The duty of TransAdelaide as an occupier is not confined to protecting entrants against injury from static defects in the premises. It extends to the protection of injury from all the activities on the premises.[4]
[4] Cole v South Tweed Heads Rugby League Football Club Ltd & Anor (2004) 217 CLR 469 per McHugh J.
In Public Transport Commission of New South Wales v Perry[5] Gibbs J said:
The relationship between the parties may be such as to give rise to a duty upon the occupier to take reasonable care for the safety of the other person. If the relationship between the parties imposes upon the occupier this general duty of care, which may be higher than that which he owes in his capacity as occupier, the fact that he is an occupier does not relieve him of the higher duty. The two duties exist concurrently. The statement made in Commissioner for Railways v. McDermott and repeated in Herrington v. British Railways Board, that "occupation of premises is a ground of liability and is not a ground of exemption from liability" is incontestably correct, at least so far as persons lawfully on the premises are concerned. [footnotes omitted]
[5] (1977) 137 CLR 107 at 130-131.
As for the duty owed to a trespasser, in Perry Stephen J said at 137:
“... the nature and extent of an occupier's duty to a trespasser must be based on considerations of humanity" (Cooper's Case (1973) 129 CLR 295 at 307) and an "all-embracing" consideration of the facts is required to identify those trespassers to whom that duty may be owed; factors such as the degree of likelihood of the coming of trespassers and the extent of the risks they will then run from hidden or unexpected dangers are to be weighed against detriments to the occupier involved in taking steps to safeguard them (Cooper's Case at 308-309 and at 644).
Further, the fact that the plaintiff had been ejected onto the platform did not mean that no duty of care was owed.
A carrier by rail owes a duty to take reasonable care for the safety of a passenger, whether the passenger is in the course of being carried or is standing on a platform waiting for an approaching train.[6]
[6] Ibid at 135.
In Caterson v Commissioner for Railways[7] the plaintiff helped a friend who was catching a train load luggage onto the train. The train started moving off. The plaintiff’s young son was on the platform. In order to get off the train, the plaintiff caught hold of a vertical bar at the side of the doorway and jumped onto the platform. He ran with the train for some yards. Failing to steady himself, he fell between the platform and sustained serious personal injury. The plaintiff succeeded before a jury. The defendant’s appeal was successful in the Supreme Court of New South Wales. The High Court restored the plaintiff’s judgment.
[7] (1973) 128 CLR at 99.
Barwick CJ said at 101-102:
In my opinion, liability in tort will be possible if the event which has occurred and the damage therefrom which the claimant has suffered were both foreseeable by the person sought to be made liable and of such a kind as he ought to have realised were not unlikely to occur, … Of the various possible descriptions of the event and damage I prefer "not unlikely to occur" because on the one hand it denies the proposition that the event or damage should be apprehended as more likely than not to occur or to be suffered and on the other hand, by its negative form, it excludes possibilities which are theoretical and unreal in all the circumstances: it accommodates the idea of a real risk or danger though in relation to some situations it may possibly be more embracing than either of those terms.
Barwick CJ cited at 102 with approval the statement of Lord Reid:[8]
The modern rule of tort is ... the defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it.[9]
[8] Barwick CJ qualified his approval by interpreting Lord Reid’s “liable to happen” as meaning “not unlikely to happen”.
[9] Czarnikow Ltd v Koufos [1969] 1 A. C. at 385-386.
And McTiernan J observed at 103-104:
The plaintiff was lawfully on the train. The plaintiff's case was that the defendant knew that persons not travelling came onto the train when it stopped at the railway station and the defendant was under a legal duty of care to them which included giving them a reasonable opportunity to alight from the train while it was stationary. … It ought reasonably to have been in the contemplation of the defendant's employee concerned with starting the train that if a reasonable opportunity was not given to visitors on the train, one or more of them would be likely to alight from it as soon as it was put in motion and this would be a dangerous thing to do.
In Lanahmede Pty Ltd v Koch[10] Bleby J cited with approval Mason J’s observations in Wyong Shire Council v Shirt:[11]
A risk of injury which is quite unlikely to occur, … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
[10] [2004] SASC 204.
[11] (1980) 146 CLR 40 at 47.
In State Rail Authority of New South Wales v Schadel[12] an extremely intoxicated plaintiff got off a train and began to make his way to the platform exit. The station attendants gave the guard the signal for the train to depart, and he signalled the driver and the train departed.
[12] [2001] NSWCA 394 at para 57.
In circumstances which were not clear, the plaintiff came into contact with the last carriage, fell onto the tracks, and was injured. The trial judge found the Rail Authority liable, and apportioned liability. Giles JA said, in dismissing the claim:
This is a conclusion on the facts of the present case. It does not mean that a railway authority has unbridled licence to send its trains on their way. A passenger still getting off or getting on the train, a child skylarking near the edge of the platform apparently heedless of the danger of a moving train, or an intoxicated person on the platform obviously unable to control himself and so in a position of danger, all these can be expected to preclude immediately sending the train on its way. There is a line between when a railway authority so conducts itself in sending a train on its way that the platform is as safe for the use of its passengers as reasonable skill and care can make it, and when it does not. The line can not be drawn in the abstract. It must be decided on the facts of each case whether the conduct falls on one side of the line or the other. In my judgment, the present case falls on the appellant's side of the line.
Given my findings as to the nature of the interaction between the defendants and the plaintiff in the present case, Schadel is distinguishable. In Schadel it appeared that the plaintiff was simply leaving the platform. He had not been ejected from the train. He was to the rear of the station attendant. There was no suggestion, unlike here, that he might attempt to re-board the train.
Liability of Second, Third and Fourth Defendants
In my view, Haynes was not entitled to physically eject the plaintiff from the train. He may have been entitled to seek his name and address, or some means of identification. He did not do so. The course open to the defendants, upon either discovering that the plaintiff had no ticket, or as I have found, upon the plaintiff saying he had no ticket, was to request details of his name and address or proof identity so that an expiation notice could be issued. The remedy was not to evict the plaintiff from the train.
Indeed even had the first and second defendants been persons authorised by the Minister pursuant to s 56 of the Passenger Transport Act, there was a procedure to be followed and it was necessary that details of the plaintiff’s identity be sought. I have found that Haynes did not ask the plaintiff for his name and address or for proof of identity. Upon ascertaining that the plaintiff had no ticket, and the plaintiff saying he had no money to buy one or did not intend to buy one, Haynes told the plaintiff that he was going to be ejected from the train. That threat of eviction onto a train station which was not the plaintiff’s intended stop, after 11 o’clock at night, not surprisingly caused resentment and agitation in the plaintiff. Whilst the first and second defendants may have been responding to a perception of aggression on the part of the plaintiff in taking hold of him, the plaintiff’s response was generated by the inappropriate action taken by Haynes.
In removing the plaintiff from a position of relative safety within the carriage, and ejecting him onto the platform of the Bowden railway station after 11 o’clock at night, a station at which they knew he did not wish to alight, Haynes was under a duty of care to take reasonable steps for the plaintiff’s safety. That was particularly so in circumstances where the plaintiff was obviously intoxicated and could be anticipated to behave recklessly.
In my view, it was foreseeable that the plaintiff, having been evicted in the circumstances I have described, might try to re-enter the carriage. So much is apparent from the evidence that Kernke and Haynes closed the carriage doors and held them closed anticipating that the plaintiff might try to re-enter. There is some evidence from them as to the plaintiff intending to, or actually, spitting, but I find that that was not the initial motive for them holding the doors closed against him.
It was incumbent upon Haynes and Paterson to take steps to make sure that the plaintiff was well away from the train when it moved off, whether that involved waiting for him to depart the platform, or in fact removing him from the platform. As I have said, the entire stop at Bowden station occupied only some 10 seconds and it would have been of little moment to wait to make sure that the plaintiff had in fact exited from the area.
As Gibbs J observed in Caterson:[13]
In the present case the jury, once it had decided that there was a real risk of injury if the train commenced to move without proper warning or after too short a stop, had to consider what difficulty, expense and disadvantage there would have been in taking steps to eliminate the risk (citations omitted). No doubt there would have been some disadvantage in allowing the train to stop a little longer at the station, but it was for the jury to weigh that disadvantage against the risk.
[13] At 109.
Having created that situation of risk where although an unusual case, the event and damage were “not unlikely to occur” within the meaning described by Barwick CJ, then in driving off without making sure that the plaintiff was clear of the platform, TransAdelaide by its employees breached the duty owed to the plaintiff.
It seems to me that Haynes has been negligent, for the reasons described, in telling an intoxicated man that he was to be evicted from the train because he did not have, or would not buy a ticket and then not taking steps to prevent the train moving off while the intoxicated plaintiff was immediately next to the doors and in the process of or likely to attempt to re-board the train.
The fourth defendant was negligent in failing to have in place a system whereby, when there was a PSA present, the PSA would give the all clear to the driver that it was safe to depart. Such a system was used where there were four cars or more during the day or three cars or more at night, because the PSA has a better view of the platform and of departing passengers than does the driver.
There are a number of observations and criticisms to be made of the system employed by the fourth defendant. There was no communication of the situation within the carriage to the driver, by either the security guard or the PSA. The driver was unaware that there was any situation out of the ordinary. He recalled seeing a man leave the carriage carrying shopping bags. He had a view of that in his rear vision mirror. He observed the plaintiff exiting a little quickly. However that did not alert him to the fact that there was any situation which had arisen. Whilst I accept that he did have some view down the side of the train which covered the area between the yellow line at the very edge of the platform, and the white line south of the edge of the platform, his view was nevertheless limited. He was also focused on the track ahead. Had he been aware that there had been an altercation, and that a man had been evicted from the carriage, I have no doubt that as a prudent driver he would have taken steps to ensure that the plaintiff was clear of the train entirely before he commenced to move off. He was deprived of that knowledge and simply treated the stop as a normal stop without regard to the potential danger posed by the intoxicated plaintiff’s ejection from the carriage.
The driver was solely in charge of the decision to stop at the station, and more importantly, to leave the station. Although on trains consisting of three or more carriages at night, the PSA was required to take control of the carriage doors by inserting a key which removed control of the doors from the driver, and permitting the PSA to check that the platform was clear before giving the buzzer signal to the driver to move off, such a system was not employed where the train consisted of two or less carriages. Here the train was a single carriage. The PSA was engaged only in what the driver called “revenue collection”. I can see no reason for not having a PSA, when present, and I accept that PSA’s were not always present on such trains, to have such control.
As I have said, whilst it may not have been the practise to have the PSA give the all clear to a driver where there were less than three carriages at night, it seems to me that there was no reason why, where there was a PSA present, that system should not have been in place. It was negligent to drive away when the intoxicated and agitated plaintiff had been ejected onto a platform other than at his own station, without making sure that he was well clear of the train and was not about to attempt to regain entry to the train. I do not need consider, in the circumstances, whether the third defendant was negligent, but in any event the fourth defendant would be vicariously liable for such negligence.
A breach of the duty owed to the plaintiff occurred by virtue of the fact that having ejected the plaintiff, Haynes took no steps to ensure that he was clear of the train and indeed clear of the platform before the train departed, and took no steps to inform the driver of the potential danger of the plaintiff attempting to return to the carriage. TransAdelaide was in breach of its duty in failing to have in place a system of dealing with a passenger attempting to board a moving train. Such a system could have encompassed communication between the PSA and the driver, a requirement that the PSA when present should give an all clear signal to the driver after the PSA had taken steps to ascertain that an evicted passenger was not in a position to attempt re-entry.
Is the First Defendant Liable?
Kernke’s duties, as I have said, involved only the protection of the PSA and other passengers. When the plaintiff became agitated as a result of Haynes’ decision to eject him, she sought to intervene to protect Haynes. Although I have found that the plaintiff did not in fact strike a blow, it was not unreasonable for Kernke to assume that he had intended to, and to have taken the action she did to restrain the plaintiff. Other passengers who gave evidence thought he had done so.
Kernke’s task was to protect Haynes, and any other passengers. That is what she perceived herself as doing when the plaintiff became agitated and began to use abusive language and behave aggressively. She removed him from the train. She had no part to play in the departure of the train or in the system by which the train operator made the decision that it was safe to depart. She held the door closed against the plaintiff but that was consistent with her perception of the need to protect the fourth defendant’s staff, and passengers. I do not regard Kernke as having been negligent, or in breach of the duty she owed the plaintiff.
Contributory Negligence
A person is guilty of contributory negligence if he or she exposes himself to a risk of injury which might reasonably have been foreseen and avoided. The question whether a person has been guilty of contributory negligence is determined objectively. The defendants bear the burden of proving that the respondent has been guilty of contributory negligence.[14]
[14] Elite Protective Personnel Pty Ltd & Anor v Salmon [2007] NSWCA 322.
The test of contributory negligence is an objective one. Contributory negligence, like negligence, “eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.”[15]
[15] Joslyn v Berryman (2003) 214 CLR 552 at para 32 per McHugh J.
As was observed in Joslyn[16]
Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a life from an intoxicated driver, an intoxicated passenger who is sober enough to enter the care voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.
[16] Ibid at para 38-39.
and
Similarly, the fact that the passenger’s intoxicated condition prevents him or her from perceiving the risks attendant on driving with an intoxicated driver does not absolve the passenger from complying with the standard of care required of an ordinary reasonable person. If an intoxicated pedestrian falls down a manhole that a sober person would have seen and avoided, it seems impossible to hold that the pedestrian was not guilty of contributory negligence because the pedestrian’s condition prevented him or her from seeing the danger. At all events, it seem impossible to so hold without introducing a subjective standard into this area of law. And I can see no reason in principle or policy for distinguishing between the intoxicated pedestrian and the intoxicated passenger.

The plaintiff clearly acted in a manner which contributed to his own injuries. In his state of intoxication, he attempted to re-board the train and ran along the platform holding onto the train. I have no direct information as to how it was that he came to fall between the platform and the train, and no expert evidence was led by any party in that regard. I can only assume that he somehow lost his footing whether as a result of the train speeding up or braking, or stumbling due to his intoxication.
Nevertheless, as I have said, his actions showed considerable disregard for his own safety. He was negligent in attempting to gain re-entry to the moving train. I am of the view that the plaintiff’s negligence did contribute to his own injuries and that the plaintiff was responsible for his own injuries to the extent of 50 percent.
Assessment of Damages
Section 2 of the Survival of Causes Act 1940 relevantly provides:
(1)     Subject to this Act—
(a)     a cause of action vested in a person at the time of his or her death survives for the benefit of his or her estate; and
(b)     [not relevant]
Section 3 restricts the damages recoverable for the benefit of the estate by excluding any entitlement to damages for pain or suffering and bodily or mental harm.
As the plaintiff’s death was unrelated to the cause of action the provisions exclude damages for loss of expectation of life. Damages for loss of earning capacity or loss of future earnings during the “lost years” are not compensable.
The estate is entitled to damages for loss of income up until the time of death, medical and like expenses, for voluntary services damages and Wilson v McLeay damages.[17]
[17] (1961) 106 CLR 523.
The plaintiff was born in 1967 and was 33 years of age at the time of the incident and 40 years of age at trial. He led a most unfortunate life. He was made a ward of the state when he was a child, as were his older siblings. Whilst in state care the plaintiff was sexually abused. His eldest sister, an impressive woman who gave evidence in the plaintiff’s case, was placed into foster care at the age of 15 years. Over the next three years she proceeded to locate and communicate with her siblings who had been placed into state care.
Despite the difficult circumstances of his childhood, the plaintiff, who is clearly an intelligent man, matriculated from St James Christian Brothers College in Brisbane. Upon leaving school he obtained employment initially as a clerk in a legal office, and then as an assistant travel officer in the Department of Education. He then obtained work as a trainee linesman performing manual labour laying underground cables. He later joined the defence forces. He was discharged from the military, due to problems with alcohol abuse, and depression, after about three years. He had been diagnosed as suffering from bipolar disorder.
He commenced a course of studies at university in the Northern Territory, and later at Curtin University in Western Australia although with limited success due to difficulties with mental health problems, and admissions to hospital.
He was largely unemployed for most of the decade in the 1990s until diagnosed with HIV/AIDS in 1998 when he was awarded a disability pension. He moved to live in Adelaide in that year and from that time until the time of the incident, worked from time to time on a casual basis, although earned very little, and at all times less than the cut off point at which he would be required to declare his income to Centrelink.
That is not to say that he did not have the potential to earn a greater amount and indeed since this accident he has demonstrated his preparedness to contribute to the community by doing voluntary and occasional paid work at Glandore Community Centre, as well as serving on the HIV Positive Advisory Group which meets in Sydney.
Heads of Damage
1 Past Economic Loss
The plaintiff was in receipt of a disability pension. He provided no documentary evidence of any other income. He had undertaken some studies and evinced an intention to undertake work in the future. There was evidence as to the amount which could be earned without affecting the pension. The award can only be made on a loss of chance basis taking into account my view that there was only a limited prospect of the plaintiff ever exercising his earning capacity. I award $40,000.
2 Special Damages
The only claim for special damages is contained in the letter from the Royal Adelaide Hospital setting out the claim for reimbursement in the agreed sum of $57,721.80. I award that amount.
3 Voluntary Services
The plaintiff’s brother commenced providing care for the plaintiff in late 2002. There was no expert evidence as to the plaintiff’s need for care; rather evidence was led as to the assistance provided by the plaintiff’s brother. He said that he would attend to the plaintiff’s needs for about eight hours per day. However, that is not a proper basis for the calculation of an award under this head. On the evidence as to which was needed, as opposed to what was provided, it is reasonable to allow about 10 hours per week, which related to cooking an evening meal, cleaning, gardening, shopping and accompanying the plaintiff to medical or hospital appointments. Such assistance was required at a greater level, earlier, but less so as the plaintiff gained independence. The rate agreed as at trial was $20 per hour. There was no evidence as to earlier rates. The period over which care was provided was almost seven years. Making allowance for lesser rates in earlier years the appropriate award is $70,000.
4 Wilson and McLeay Damages
The plaintiff’s sister travelled immediately to Adelaide upon hearing of her brother’s injury and provided comfort and assisted the plaintiff’s recovery. She incurred airfares at a cost of about $600 and lost wages of about $600. I award $1200.
Summary
1.Past economic loss  $40,000.00
2.Special damages  $57,721.80
3.Voluntary Services   $70,000.00
4.Wilson and McLeay damages   $1,200.00
Total  $168,921.80
Fifty percent thereof is $84,460.90. There will be judgment for the plaintiff against the second and fourth defendants in the sum of $84,460.90.
I will hear the parties as to interest, costs and any ancillary orders.