Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure... [2007] NSWSC 402 | Case summary

What happened

A 21‑year‑old woman with a mild intellectual disability, Leigh Ann Russell, walked through a long‑standing gap in a chain‑link fence in McBurney Avenue, Mascot, which led directly to the Port Botany freight line. She went there with a group of youths, saw one of them hang onto the side of a very slowly moving goods train, imitated him, and was dragged along the rocky ballast when the train gained speed. She suffered catastrophic injuries to her right leg, ultimately requiring amputation below the knee [1], [6]–[15].

The Rail Infrastructure Corporation (RIC) owned and was responsible for maintaining the rail infrastructure and boundary fencing at the relevant time. The missing panel in the chain‑link fence adjacent to No 63 McBurney Avenue had been absent for months, and when repairs were made locals typically cut the mesh away again almost immediately. A well‑trod path led from the gap straight to the line; neighbours and the land‑owner gave evidence of frequent public use as a cut‑through, including children and factory workers (estimates given in evidence of up to c.50 people per day) [18]–[21], [24]–[27].

Police notified the defendant about the missing fence panel several times after the accident; the defendant accepted responsibility for fences and for maintaining the corridor but did not implement an effective, durable repair at the McBurney Avenue point before the plaintiff’s injury [28]–[30]. Post‑accident, more secure 'Palisade' fencing was installed [22].

Proceedings went to trial in the NSW Supreme Court before Bell J. The judge found that RIC owed a duty of care in negligence, breached it by failing to prevent access at a recurrent breach location, and that breach was a direct cause of the plaintiff’s injury. The plaintiff was found partly to blame: exercising an objective standard tailored to a reasonable adult with a mild intellectual handicap, the Court found contributory negligence of 50 percent. Volenti non fit injuria did not avail the defendant [71], [76]–[79], [96]–[101]. Judgment was entered for the plaintiff with damages reduced by 50% and directions to re‑list to resolve certain damages calculations and fund management.

Why the court decided this way

Duty: Bell J held that a statutory infrastructure owner who has care, control and management of fencing and boundary structures may owe a common law duty to take reasonable care to avoid foreseeable physical injury to persons, including trespassers, who gain access to the rail corridor [71]. The judge treated the defendant's statutory powers under the Transport Administration Act as permissive, not as excluding the common law: nothing in the statute was inconsistent with imposing a duty of care (paras 31–34, 68). He also relied on authorities establishing that an occupier or controller of premises can owe a duty to entrants even where there is not exclusive ownership (citing Wheat v E Lacon & Co Ltd by analogy and a line of cases on rail authorities) [60], [71].

Foreseeability and scope: The judge applied the standard foreseeability/risk assessment approach under Wyong Shire Council v Shirt, i.e. evaluate magnitude of risk, probability, and burden of precautions [72]. He identified several facts that made harm foreseeable: the missing panel that had been absent for years, a visible path to the line indicating regular access, contemporaneous and historical reports of trespass and vandalism on the line, and the heavy, potentially dangerous nature of goods trains which regularly traversed the corridor. The Court expressly held the risk of injury to be real notwithstanding the absence of prior severe incidents over the 80‑year life of the line: patterns of repeated access and the site’s characteristics made the risk foreseeable at McBurney Avenue [62]–[67], [74]–[76].

Breach: Given the particular circumstances, a permanent gap (no bottom rail), repeated breaches after repairs, a well‑used path, and the defendant’s awareness or constructive knowledge of access, Bell J concluded that reasonable measures would have required more secure treatment than periodic chain‑link repairs. In particular, he found failure to effect a durable repair or to install Palisade fencing at this hot spot amounted to want of reasonable care (paras 73–77).

Causation: The judge found that the absence of secure fencing and the existence of the path were direct causes of the plaintiff’s presence on the line at that location, and that but for the breach the accident would not have occurred; causation was therefore established (para 79).

Contributory negligence: On the defence allegation that the plaintiff's own risky conduct (climbing on the train) was the main cause, Bell J conducted a careful analysis. He rejected a wholly subjective test but accepted that the reasonable person standard could be formulated by reference to recognised disabilities. He concluded that contributory negligence is to be assessed objectively but that the hypothetical reasonable person should be modelled on someone with the plaintiff's mild intellectual handicap (paras 81–96). Applying that tailored objective standard, the Court found the plaintiff would have appreciated that hanging on to a moving goods train exposed her to serious risk and therefore apportioned responsibility equally (50% reduction) (paras 96–98).

Volenti: The defendant's volenti plea required proof that the plaintiff fully comprehended and freely accepted the risk. The judge found she did not have full appreciation of the specific risk of this activity when imitating the youth, so volenti failed (paras 99–101).

Quantification: The judgment includes a detailed assessment of heads of damage, adjustments under the Civil Liability Act 2002 (NSW) (Pt 2), and findings about past and future economic loss, attendant care, medical and equipment needs, and related items; the Court gave provisional figures and directed the parties to re‑list for final calculations and fund management orders (paras 102–206).

Before and after state of the law

Before: The general principles applied were well‑established: occupier or controller duties to entrants, foreseeability and risk balancing under Wyong/Shirt, and objective contributory negligence principles (including special standards for children under McHale). There had been authority dealing with rail authorities and trespassers (e.g. Ryan, State Rail Authority v Madden, Mawlodi), and debate about whether statutory powers displace common law duties (see Graham Barclay Oysters and commentary).

After (effect of this decision): Bell J affirmed that a statutory infrastructure owner having statutory functions to maintain rail infrastructure, including fences, can be subject to a common law duty to take reasonable care to avoid foreseeable injury to persons, including trespassers, where the owner has control and the risk is foreseeable. He clarified that the existence of statutory powers does not, without more, displace common law duties (para 68). The judgment also reinforced that contributory negligence may be assessed by tailoring the objective reasonable person standard to a plaintiff's recognised intellectual disability, not by adopting a purely subjective test; the decision explicitly applied this approach in the context of a mildly intellectually handicapped adult (paras 85–98). That treatment adds to authorities on how courts should assess contributory negligence where the plaintiff has cognitive impairments.

Caveat: the decision does not overturn any higher court authority; it applies and synthesises existing High Court and NSW authority. It therefore operates as a persuasive trial‑level statement of how these principles apply in the context of rail fencing and a disabled adult imitating risky conduct.

Key passages with plain-English translation

"I consider that the defendant was subject to a duty to take reasonable care to avoid physical injury to persons, including trespassers, coming into the railway corridor." [71]
- Plain English: Because the rail authority controlled the fence and corridor, it had to take sensible precautions to prevent people (even those who entered without permission) from getting hurt on the tracks.
"The panel had been missing for around six months ... failure to effect repairs ... or to install secure fencing ... amounted to a want of reasonable care ..." [77]
- Plain English: The fence had been missing for months and patch repairs were ineffective. Not making the fence secure at a location where people regularly got through was negligent.
"I should determine ... contributory negligence by considering whether the plaintiff failed to take the reasonable care ... expected of a reasonable adult having a mild degree of intellectual handicap." [96]
- Plain English: When deciding if the injured person was partly to blame, the Court used an objective test but compared her conduct to what a reasonably careful adult with similar cognitive limits would have done.
"Applying the test ... I have concluded that a reasonable person possessed of a mild degree of intellectual handicap ... would nonetheless have appreciated ... she was exposing herself to a risk of serious injury." [97]
- Plain English: Even allowing for her mild disability, a reasonable person like her would have known that hanging on a moving train was seriously dangerous, so she was partly at fault.
"For the defendant to succeed [on volenti] ... the plaintiff fully comprehended the risk ... The defence of volenti fails." [101]
- Plain English: The rail authority could not show that she knew and freely accepted the danger, so it cannot rely on voluntary assumption of risk.

What fact patterns trigger this precedent

A statutory or public authority has express responsibility for maintenance and control of boundary fencing or access structures adjacent to a dangerous facility like a rail corridor.
There is a persistent and obvious breach or defect in that fencing, for example, a missing panel or a bottom rail, that has existed for a prolonged period and invites access.
A well‑trod path or other objective evidence indicates regular and repeated unauthorised access to the corridor from the same point.
Reports of trespass, vandalism or incidents in the vicinity exist, and there is evidence that the authority knew or should have known about them (inspections, police reports, database entries).
An injury arises from conduct that was facilitated by the access point; causation can be shown by linking the defendant’s failure to prevent access to the plaintiff’s presence and injury at that location.
The injured person may be a vulnerable adult (intellectually disabled), in which case courts will assess contributory negligence by reference to a reasonable person with comparable disabilities rather than a fully subjective standard.

How later courts have treated it

(This section must be used cautiously. The decision under analysis is a 2007 NSW Supreme Court judgment. At trial level it will be cited as persuasive authority in later cases on issues of occupier statutory duties and contributory negligence with intellectual disability. Bell J’s statements on tailoring the objective standard for contributory negligence add a trial‑level articulation that may be relied upon by counsel when arguing proportional responsibility involving disabled plaintiffs. Any definitive statements about how appellate courts treated this decision would require subsequent case citations; users should check later NSWCA/HCA authorities for binding rulings on these specific points.)

Still-open questions

Appellate confirmation: The judgment is at first instance. Whether appellate courts accept Bell J’s precise formulation on tailoring the objective standard for contributory negligence in intellectual disability cases (as distinct from child plaintiffs or the elderly) remains an open question of higher judicial authority for binding precedent.
Degree of disability and calibration of the tailored objective standard: The judgment applies the concept to a mild intellectual handicap. How courts will calibrate the reasonable person standard across the spectrum of cognitive impairment (mild, moderate, severe) and what evidentiary standard suffices to place a hypothetical tailored person before the Court needs further development.
Statutory regimes vs common law duties: Bell J rejected the argument that the statutory scheme displaced common law duties in this factual matrix. But where a statute contains explicit allocation of risk, immunities, or detailed procedural schemes for risk management, the interplay between statutory regime and common law duty requires close look; boundaries may be fact‑sensitive.
Inspection regimes and record‑keeping: The Court criticised the practical inspection and repair arrangements, particularly lack of fencing-specific inspection records and poor responses to police reports. The decision suggests that public authorities should have coherent inspection and record systems for known problem locations; however, precise standards for sufficiency of such systems are not prescribed.
Remedying 'hot spots': While the judge endorsed the notion that higher‑security fencing is justified at recurring problem sites, the determination of when extra‑cost measures (like Palisade fencing) become obligatory involves weighty operational and resource considerations. Future litigation may test the threshold facts that convert a site into a 'hot spot' requiring upgraded, more expensive measures.

Practical note for litigators and compliance officers: evidence of repeated breaches, contemporaneous reports (police or staff), visible patterns of access (paths, graffiti), and lack of documented, timely remediation will be decisive on breach; conversely, precise expert evidence about reasonable preventive measures and cost/efficacy, together with clear inspection logs, can be crucial for authorities defending claims. Where injured plaintiffs have cognitive vulnerabilities, obtain contemporaneous neuropsychological and psychiatric evidence to define the appropriate tailored standard for contributory negligence.

Judgment (90 paragraphs)

[1]

CITATION : Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation [2007] NSWSC 402

[2]

HEARING DATE(S) : 27/11/06,28/11/06, 29/11/06, 30/11/06, 4/12/06

[3]

DECISION : Verdict for the plaintiff against the defendant. The plaintiff's damages will be reduced by 50 percent by reason of her contributory negligence. The proceedings may be re-listed by arrangement with my Associate on three days notice for submissions on the question of fund management. The parties may bring in a schedule with calculations, in conformity with these reasons, of the sums that require adjustment to the date of judgment together with interest.

[4]

CATCHWORDS : Negligence - statutory authority responsible for rail infrastructure - failure to maintain fence - contributory negligence - standard of care of intellectually handicapped plaintiff

[5]

Civil Liability Act 2002 (NSW) LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Act 1988 (NSW) Transport Administration Act 1988

[6]

Austrade & Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Cook v Cook (1986) 162 CLR 376 Daly v Liverpool Corporation [1939] 2 All ER 142 Edson v Roads & Traffic Authority [2006] NSWCA 68; 65 NSWLR 543 Gala v Preston (1991) 172 CLR 243 Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 Hackshaw v Shaw (1984) 155 CLR 614 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 CASES CITED : McHale v Watson (1966) 115 CLR 119 Mawlodi v State Rail Authority (NSW) [2001] NSWCA 415 Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; 205 CLR 254 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236 State Rail Authority v Madden [2001] NSWCA 252 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wheat v E Lacon & Co Ltd [1966] AC 552 Wyong Shire Council v Shirt (1979-1980) 146 CLR 40

[7]

PARTIES : Leigh Ann Russell by her tutor Julie Ann Russell (Plaintiff) Rail Infrastructure Corporation (Defendant)

[8]

COUNSEL : Dr A.S. Morrison SC / P. Perry (Plaintiff) G. Watson SC / N. Chen (Defendant)

[9]

SOLICITORS : Monaco Solicitors (Plaintiff) Sparke Helmore (Defendant)

[10]

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

[11]

20014/04 Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation

[12]

JUDGMENT Introduction 1 BELL J: The plaintiff is a mildly intellectually handicapped young woman. When she was 21 years old she walked through a missing panel in a chain link fence in a suburban street in Mascot that gives access to the Port Botany freight line (the line). She climbed onto the side of a slow moving goods train. The train gathered speed and the plaintiff let go of her hold and was dragged some distance over the rocky ballast adjacent to the track. She suffered severe injuries to her right leg which was later amputated below the knee.

[13]

2 The defendant, the Rail Infrastructure Corporation (RIC) is a statutory corporation established under the Transport Administration Act 1988 and at the time of the accident it owned the railway track and was responsible for the fence, which gave access to land leading to the line. The plaintiff claims that her injuries were caused by the defendant's negligence in failing to prevent her accessing the railway line. The defendant denies negligence and pleads by way of defence that the plaintiff's own negligence contributed to her injury.

[14]

3 The ownership and operation of railways in New South Wales has undergone a number of changes in recent years. On 1 January 2004 Rail Corporation Pty Ltd (Rail Corp) was established and took over the functions of the RIC. The parties were agreed that it was unnecessary to amend the pleadings to reflect this change. RIC remains a legal entity capable of being sued and Rail Corp accepts responsibility for any judgment against it (T 260.43-44).

[15]

4 The accident occurred on 25 February 2002. The proceedings were commenced by ordinary statement of claim filed in the District Court on 21 May 2002, and subsequently transferred to this Court. The plaintiff's claim is not subject to the provisions of Part 1A of the Civil Liability Act 2002 (NSW) (the Act) governing claims in negligence. Any award of damages made in respect of the claim is subject to the provisions of Pt 2 of the Act, which governs personal injury damages. The scene of the accident 5 The accident occurred on a section of the line that passes close to McBurney Avenue, Mascot, a residential cul-de-sac. Adjacent to premises at 63 McBurney Avenue (No 63) is a vacant lot which gives access to the line. At the time of the accident the lot was fenced off from the footpath by a chain link fence (depicted in photographs 2 - 6, exhibit "B"). One panel of the fence immediately next to the boundary with No 63 was missing. It had been missing for a number of months before the accident. There was a well-worn path leading from the missing fence to the line. Close to this point the line crosses over Southern Cross Drive, and it was used by members of the public as a shortcut to the Botany swimming pool, neighbouring factories and the wetlands behind the Eastlakes golf course.

[16]

The accident 6 At the time of the accident the plaintiff was working as an apprentice hairdresser at a salon in Eastlakes. She was living with her mother and her mother's friend, Kathy Deri, in Haigh Avenue, Daceyville. On the afternoon of 25 February she was walking home from work, when some youths in a car pulled up next to her and invited her to "come out and hang out" with them. She knew some of them from the Eastlakes area. The plaintiff told them that she was on her way home. They kept encouraging her to join them and, after a time, she got into the car with them. She thought there were about five young men. She was not able to say whether they were younger than her. It appears that they were. 7 Ali Ozgen was one of them. He later made a statement to the police about the incident. He was aged 18 at the time. He and his school friends Anthony, Danny and Ercan had been out driving around when they stopped the car and spoke with the plaintiff who he recognised from the hairdressing salon at Eastlakes. His friends asked the plaintiff if she wanted to "chill out" somewhere and she said, "yeah, no worries". They drove with her to McBurney Avenue. 8 When the group arrived at McBurney Avenue they all got out of the car and walked through the gap in the fence and along the path up to the line. The plaintiff had never been to McBurney Avenue before. When they got to the line the boys were mucking around writing graffiti on the cement walls by the side of the track. 9 The path meets the line about 480m east of the level crossing at General Holmes Drive. This is the approximate length of many goods trains travelling on the line (Cowling report, p 5 Exhibit D). Every train travelling west is required to slow down on approach to the General Holmes Drive level crossing and, if necessary, remain stopped until it is safe to continue.

[17]

10 After the plaintiff had been at the scene for a little time a goods train travelling west very slowly passed by the group and came to a halt. The boys amused themselves by throwing rocks over the top of it. The train started to move again, very slowly. One of the boys jumped onto a ladder attached to one of the wagons. The plaintiff thought that it looked very easy and she decided to copy him. She took hold of a ladder attached to one of the wagons. The train picked up speed and the plaintiff realised that she was in trouble. She decided that she would have to let go because the train was going too fast. 11 The plaintiff's second amended statement of claim (SASC) pleads that one or more wheels of the train severed her right leg. In evidence she said that the wheels of the train had not taken her leg, it was "the rocks that took my leg" (T 95.39-40). She had fallen backwards into a ditch and was dragged for a little distance over the rocks that abut the line and which cut her leg as though they were knives. The medical evidence suggests that the injury was sustained in the way the claim is pleaded. Nothing turns on this. The plaintiff remained conscious throughout her ordeal. She was wearing a tight spandex-style of top, which she removed and wrapped around her leg and ankle in an effort to staunch to the flow of blood. She crawled back over the bridge and one of the boys came over to her and telephoned for help. She was taken to hospital. 12 The plaintiff gave this account the circumstances in which she had taken hold of the train (T93.16 - 95.3): Q. And what happened next? A. Then the train started to move and then they started to move a little slow and then - yeah, no. Actually really, really slow. It was just sort of going really slow. Obviously I think the driver was making it slow. Then there was a perfect opportunity for Erjon (sic) to play on the train and then … Q. And what happened? A. He was making it look so easy. He was making it look so - you know, he was like a star athlete at it. Q. What was he actually doing? A. Hanging off and then I copied him after he'd done it and then … Q. And are you able to say how long in terms of distance he travelled along on the train? Was it far or just a short distance? A. Short distance. Very, very short. He knew what he was doing. It seemed like he'd done it millions of times. Q. Whereabouts was he on the train? What was he holding onto? A. A ladder. Q. To a ladder? A. A ladder, yeah. Q. And what did you think about that? A. I didn't have no thought. Q. What did you do? A. I sort of just went and copied as well. Q. Why did you do that? A. Because he made it look so easy. I go, "I could do this too". Q. And why did you want to do that? A. I didn't want - well, it wasn't a want. It was sort of a want, sort of not a want. But I was just sort of going along with the flow and just doing what he was doing and I didn't see anything wrong with it because he made it look so easy. Q. Did you think about whether it was a dangerous thing to do or not? A. No, cause he made it so easy. 13 In cross-examination the plaintiff agreed that Ercan had looked cool and that she had wanted to look cool too (T 127.25-27): Q. Nobody asked you to do it? A. Nobody asked me to do it. Q. You did it yourself? A. I did it myself because … Q. It was your own choice? A. Yes, it was my own choice, but it's - he did it and then I thought I could do it too. Q. It was your own choice because you wanted to look cool? A. Yes. (T 127.25-37). 14 In his statement Ali Ozgen said that he had seen the plaintiff jump up and grab hold of one of the handles on a carriage as the train continued along. He said that the train started picking up speed. He continued: I think she couldn't jump off and she started panicking and then the train got faster and when she was further down the tracks towards the overpass at Botany Road I lost sight of her. … From what I know of Leigh she seems to be a bit slow. No one told Leigh to jump on the train carriage, she just saw Ercan do it and I think she tried to copy him. 15 When the plaintiff first saw the freight train it was "going slow" (T 92.46). When it started to move again, it was going "really slow" (T 93.19). The train was still moving really slowly when she took hold of the ladder on the side of one of the wagons and commenced hanging off the train. 16 The plaintiff acknowledged in cross-examination that trains are machines and she knew that "machines can hurt" (T 118.39). She was aware that if you are hit by a train while standing on the railway track you may be seriously injured. There were things which she said she would not have done that day in company with the youths; she would not have taken drugs, or thrown rocks through the window of the driver's cabin; she would not have lain down on the track or put her hand on the track. The cross-examination continued (T125-126): Q. It was just an obvious risk of injury to put your hand on the track. Is that so? A. Well, if you put your hand on the track it would get hurt.

[18]

Q. And you wouldn't do it because of that? A. Yes. Q. Because trains can hurt you and you knew that at the time you had your accident, didn't you? A. I didn't know that at the time. Q. Really, I did ask you a moment ago. Do we have to go through it again. Would you have lain down on the tracks? A. Well, if you were laying down on the tracks you would get seriously hurt. Q. Because a train can hurt you? A. A train can hurt you. Q. A train can kill you? A. And kill you. Q. A train is a machine, you said before? A. Yes. Q. It's powerful? A. Yes. Q. It's hard to stop? A. Yes. Q. It can go fast? A. Well, yes. Q. And you knew when you were up there near the tracks that if a train came along and you were doing the wrong thing it could hurt you? A. Well, not at the time. Q. No, do we have to go through this again. If you'd laid down on the tracks -- A. Because I was copying the boy and he made it look so easy. Q. All right, but I'm just asking you about what you knew at the time. When you went up there and you knew the trains used the track, you knew that if you did something silly you could be hurt? A. Yeah, you could be hurt. Q. You could be killed? A. And killed, yes. Q. So you knew there was a safety issue? A. There is some safety issues, yes. Q. You had to stay as far away from the trains as possible. That was a safety issue for you, wasn't it? A. On that day I really - it was horrible. Like, on that day it was, you know, just copying. And I shouldn't have copied. Q. On that day you would have known as a safety issue, "I had better not stand on the tracks". You knew that? A. No, not on that day.

[19]

17 As the plaintiff's answers indicate, she had an awareness of some dangers associated with being present in the railway corridor. It was suggested to her in cross-examination that, on occasions, she was endeavouring not to answer questions. I accepted her when she said she was not. The plaintiff presented as a concrete thinker with little capacity for conceptual analysis. This was consistent with the contents of a number of the medical and psychological reports. At times, it seemed to me that she was genuinely puzzled by a question put to her (by way of example, T 111.56-112.13), I did not assess her as prevaricating. The plaintiff impressed me as an honest witness doing her best. I understood the plaintiff to say that she had not realised that in doing as Ercan had done and taking hold of the ladder attached to a wagon of the freight train she was exposing herself to danger.

[20]

The state of the fence 18 Franciscus Kerdijk, was living at No 63 in February 2002. He and his wife had resided there for almost five years. For most of this time the panel of fence was missing and members of the public regularly used the path leading to the railway corridor as a shortcut. Mr Kerdijk had planted native plants and shrubs on a section of the lot adjacent to his boundary fence. At the time of the plaintiff's accident the panel had been missing from the fence for at least six months. 19 The fence was repaired from time to time. When this happened the chain link mesh would be cut open again within a day or so by locals wanting to access the shortcut. Most of the time the mesh was completely cut away leaving open access to the path as it appears in photograph 2. Mr Kerdijk had not known the fence to remain intact for more than one or two days after it had been repaired. Repairs were carried out around twice a year. They involved attaching chain link mesh to the tubular frame. The frame of this panel did not have a bottom rail. 20 Mr Kerdijk's wife, Anna Nicholson, was working from home three days per week at the time. She recalled that the fence panel was missing for pretty much the entire time that she and her family lived at No 63. When it was repaired the chain link mesh would be clipped and peeled back within the space of a single day. She estimated that around 50 people per day would use the path to gain access to the golf course, the pool and for other activities, including dog walking and bicycle riding. Use was heavier in the summer months. The traffic began early in the morning with workers making their way to factories that give out onto the railway corridor. 21 Mr Kerdijk and his wife regularly walked their dog in the wetlands, which they accessed from the railway corridor. Their youngest son would take the shortcut to the pool with his friends. He was 11 when they moved into No 63. He made use of the shortcut throughout the time the family lived at No 63. Ms Nicholson warned him about the dangers of the railway corridor, but she did not stop him walking along it; it was common for children to use it. The goods trains came through irregularly and very slowly and you could hear them from a distance. She considered that it was "safe enough" for her son. Her concerns were more focussed on the risks created by some boys who threw rocks from the bridge onto Southern Cross Drive.

[21]

22 Some time after the accident the chain link fence was replaced by a high security metal fence, known as "Palisade" fencing. Around 120 metres of Palisade fence was installed from alongside No 63 to the abutments of the railway underbridge crossing Botany Road. The Palisade fencing is depicted in photographs 5 and 6. Mr Kerdijk has returned to McBurney Avenue on a number of occasions since moving out in May 2002. He has not seen any sign of the Palisade fence being breached. The path is now overgrown.

[22]

The expert evidence 23 The plaintiff relied on the report of Hugh Cowling, a civil engineer. Mr Cowling has long experience in railway engineering matters. He has prepared reviews of Australian and overseas railway practice on behalf of the Coroner, the State Rail Authority, Rail Services Australia, the defendant and other corporations associated with railway operations. He was not required for cross-examination. 24 Mr Cowling inspected the site on 9 July 2003. The vacant lot was securely fenced with Palisade high security fencing and locked gates. This form of fence is difficult to breach. Mr Cowling observed that Palisade fencing has been used by the defendant and its predecessors in high-risk locations where vandalism and, to a lesser extent, trespassing has proven to be a serious problem. 25 Mr Cowling commented on photographs of the chain link fencing as it appeared at the date of the accident. The fence was not constructed in accordance with standard railway practice in that it did not have a bottom rail. This made it more susceptible to vandalism since the chain link mesh did not have a secure all-round base. A six-foot high chain link mesh fence with top and bottom rails has been used by the defendant and its predecessors as the de facto standard boundary fencing throughout the Sydney metropolitan area. Mr Cowling commented on the difficulty faced by railway authorities in maintaining boundary fences. In his experience, regular vandalism involving cutting the chain link mesh and trespassing occurs in clearly defined locations like that at McBurney Avenue. 26 The defendant called Mr Gausden, who is its General Manager of Network Access. He has had long experience working in the administration of railways in New South Wales. Mr Gausden agreed that the maintenance of boundary fences along the rail corridor is one of the defendant's responsibilities. He described the railway corridor as "the point between the two boundary fences. It's generally a line to where the land is owned by State Rail and for which the rail lines are within that boundary (T 202)". Mr Gausden said that the purpose of the boundary fence was to stop people from inadvertently entering the rail corridor, which is unsafe, and in order to mark the boundaries of the rail corridor. He said that there is a standard for boundary fences and that if there is evidence of a high likelihood of deliberate trespass an assessment would be made to see whether "additional mitigation needs to be put in place to stop intentional trespass" (T 211.34-35). If the defendant received reports of people accessing the railway corridor through a broken fence steps would be taken to restore the fence to its standard. 27 Mr Gausden was shown a photograph depicting the missing fence panel adjacent to No. 63 and asked: Q. Of course if a section of fence at the end of a suburban street was missing like that, that's potentially a very serious matter in terms of public safety, isn't it? A. It would be a fence that would need to be repaired to stop inadvertent access (T 215.36-40).

[23]

The cross-examination continued: Q. If it were the case that for most of the five years before March 2002 that panel was missing, and the only exceptions were once or twice a year there would be a repair done and then the fence would be taken down again within a day or two, that wouldn't be a very satisfactory situation, would it? A. It wouldn't be a good situation. Q. It would call for something better to be done, wouldn't it? A. If - if there was knowledge that that was occurring and it's supported, it would be assessed in terms of the overall network as to whether additional mitigation needed to take place. Q. Now just have a look at photograph 3 if you'd be kind enough? Can you see a well-trodden path leading up onto the railway line? A. Yes, I can. Q. Self evidently, it's not just the occasional person who is walking up there; it's a lot of people, isn't it? A. One could form that view. Q. If the evidence was that something in the order of 50 people a day were walking up there and that included groups of up to 15 children and it included children using the railway line and the rail bridge to access the local swimming pool, it included factory workers going to and from work, it included people walking their dogs, it included children on bicycles and it included those riding motor bikes, off road motor bikes, that would be a matter of real concern, wouldn't it? A. If that knowledge had been passed on and had been observed, yes, it would be. Q. If that track leads all the way up to the railway line, the existence of the track would have been quite obvious to anyone walking along the line, wouldn't it? A. For the person that was walking along, yes (T 216). 28 Mr Gausden agreed that in areas where reports are received of a high level of deliberate access to the railway corridor Palisade style fencing may be installed. The defendant did not have a regime for the inspection of fencing alone. However, during inspections of the rail corridor a record would be made of any fencing defects.

[24]

The police investigation 29 Leading Senior Constable Dee assumed responsibility for the investigation of the plaintiff's accident on 10 March 2002. He went to the scene on that day and saw that the fence was missing a panel. He made contact with Mr Gausden on that afternoon and told him that the missing fence needed to be repaired immediately. Mr Gausden told him that he did not have a crew available on a Sunday, but that the matter would be given priority and attended to by the next available crew (T 146). Constable Dee inspected the site again on 13 March and saw that the panel was still missing. He spoke with Mr Gausden by telephone after this inspection and drew attention to the fact that the panel was still missing. Mr Gausden said that he would give it priority and arrange for a crew to attend as soon as he could. Constable Dee made a further inspection of the site on 19 March and saw that the panel was still missing. He telephoned the defendant and spoke with a person (he could not recall if he spoke with Mr Gausden on this occasion), and again reported that the panel was still missing and that it needed to be replaced immediately. When he next inspected the site a piece of Cyclone wire had been fitted to the frame. 30 Mr Gausden recalled having a number of conversations with Constable Dee. He accepted that he may have taken a call from Constable Dee when he was on-call on a Sunday. He had no recollection of making any note of it. He was not able to recall the detail of further discussions with Constable Dee, although he accepted that he had had a number of conversations with him. No records were produced concerning the action taken as the result of Constable Dee's repeated endeavours to have the missing fence panel attended to.

[25]

The defendant 31 At the date of the plaintiff's accident RIC had the functions conferred on it by the Transport Administration Act. Section 19E(2) of that Act provided: (2) The principal functions of Rail Infrastructure Corporation are: (a) To hold, manage, maintain and establish rail infrastructure facilities on behalf of the State, and

[26]

(b) to provide persons with access under the current NSW rail access undertaking to the part of the NSW rail network vested in or owned by Rail Infrastructure Corporation. Rail infrastructure facilities are defined in s 3 as follows: rail infrastructure facilities

[27]

(a) Includes railway track, associated track structures, over track structures, cuttings, drainage works, track support earth works and fences, tunnels, bridges, level crossings, service roads, signalling systems, train control systems, communication systems, overhead power supply systems, power and communication cables, and associated works, buildings, plant, machinery and equipment, but (b) does not include any stations, platforms, rolling stock, rolling stock maintenance facilities, office buildings or housing, freight centres or depots, private sidings or spur lines connected to premises not vested in or owned by or managed or controlled by a rail infrastructure owner.

[28]

32 The objectives of the defendant are set out in s 19D: 19D Objectives of RIC

[29]

(1) The principal objective of Rail Infrastructure Corporation is to ensure that the part of the NSW rail network vested in or owned by Rail Infrastructure Corporation enables safe and reliable passenger and freight services to be provided in an efficient, effective and financially responsible manner. (2) The other objectives of Rail Infrastructure Corporation are: (a) to promote and facilitate access to the part of the NSW rail network vested in or owned by Rail Infrastructure Corporation in accordance with the current NSW rail access undertaking, and (b) to be a successful business and, to that end: (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, and (c) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (d) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, and (e) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates, and

[30]

(f) to maintain reasonable priority and certainty of access for railway passenger services. (3) The other objectives of Rail Infrastructure Corporation are of equal importance, but are not as important as the principal objective of the Corporation. 33 Clause 2E(1) of Schedule 6A of the Transport Administration Act deals with powers relating to rail infrastructure facilities. It provides: An infrastructure owner … may, subject to this Act, inspect, operate, repair, replace, maintain, remove, extend, expand, alter, connect, disconnect, improve or do any other thing that is necessary or appropriate to any of its rail infrastructure facilities…to ensure that in the opinion of the owner, the rail infrastructure facilities … are established, held and managed in an efficient, safe and reliable manner. 34 The defendant had responsibility for around 3,000 kilometres of railway track in the Sydney metropolitan area at the date of the accident.

[31]

35 The Port Botany freight line was built around 1925. It is a dedicated freight line running from Marrickville to Port Botany. The line comprises some 3.7 to 4 kilometres of track. It runs through industrial and suburban areas. There is one pedestrian level crossing and one vehicle level crossing on the line. Container trains which service the Port Botany export/import terminals operate on the line. On average there are 28 to 30 train movements on the line per day. The maximum capacity of the line is 48 train movements per day. As at February 2002 the line was operating at near maximum capacity at times. 36 A maintenance inspection, known as a track walk, is carried out weekly on the line. Maintenance staff walk the length of the line, examining the components of the track to ensure that its integrity has not been compromised. Inspections of this kind are carried out over the whole 3,000 kilometres of track for which the defendant is responsible at least weekly. There are also mechanised track patrols which utilise a specialised vehicle to detect defects in the track. A detailed inspection of the rail corridor is carried out every three months. During these inspections attention is directed to the vegetation adjacent to the line and to the fencing in the vicinity of the line. Mr Gausden agreed that the path would have been visible to a person conducting an inspection of the rail corridor. 37 Mr Gausden was not aware of any incident in which an injury had been occasioned to a member of the public on the Port Botany Freight Line apart from the plaintiff's accident. If there had been such an incident it is likely that it would have come to Mr Gausden's attention.

[32]

38 The defendant monitors reports of unauthorised access to the railway corridor for which it is responsible. Reports made by track site workers, signalmen, train drivers and stationmasters of observations of this kind are fed into a database. Mr Gausden collated all the reports of intrusions into the rail corridor for the Port Botany freight line in the period 1997 to 2002. These reports record the following: 16.12.1997 "Crew of no.SB 3 came to a stand at 11,500 KM and removed obstructions from the line … obstructions placed on line by vandals." 31.10.1998 "A trough lid from signal cables and 20 to 30 pieces of ballast placed on the line at 12,020 km." 27.11.1998 "Five juveniles riding on wagons at Mascot". 30.10.2000 "Children were placing objects on the line between Botany and Cooks River near Banksia Street." 1.11.2000 "Kids reported by hanging off four SB3 X Botany". 7.12.2000 "Driver of DT110 reported objects placed on the line in the vicinity of pedestrian crossing at Banksia Street, Botany. Unknown persons placing objects on the line." 29.12.2000 " … damaged bond wires at 12,100 km. RSA called and attended finding that obsolete bond wires were placed over the line by vandals." 8.1.2001 "Kids placing stones on the line between Cooks River and Botany." 30.3.2001 "Reported kids throwing rocks at Mascot level crossing. RAC representative advised." 17.9.2001 "Motorcyclists holding onto rear wagon … while riding along … " 26.7.2002 "The fencing at McPherson Street was damaged by vandals." The plaintiff's intellectual disability 39 The plaintiff was born on 6 June 1980. She grew up in the family home at Haigh Avenue, Daceyville with her mother, brother and Kathy Deri, whom she views as her aunt. 40 The plaintiff's intellectual difficulties manifested themselves shortly after she started attending the local child care centre. A teacher told Ms Russell that Leigh had a learning problem: she was not of the standard of the other infants in talking, playing with toys or carrying out simple tasks. The plaintiff was referred for assessment to Dr Hutchins who was attached to the Child Development Unit at the Royal Alexandria Hospital for Children. 41 Throughout her schooling the plaintiff attended IM classes which are designed for children with an intellectual handicap. Her mother applied for and was granted the Handicapped Child's Allowance. The application was supported by Dr Hutchins. The plaintiff's handicap was described as being "inability to learn". In her final year of school the plaintiff undertook a course described as "life skills" in place of the Higher School Certificate.

[33]

42 After leaving school the plaintiff enrolled in a TAFE Hairdressing course. She was assessed as requiring specialist support, which she received from the TAFE Disabilities Unit. She had difficulty obtaining an apprenticeship. However, she was fortunate in finding a sympathetic employer at the local salon in Eastlakes and she commenced working as an apprentice hairdresser. She was very happy in this employment although she had difficulty carrying out some tasks, including taking telephone messages. 43 In a report dated 7 July 2005 Dr Hutchins said: From all the information available to me from our records so many years ago and the reports from other places, it is clear that Leigh Russell had significant intrinsic developmental problems. These included a specific language disorder, both in understanding and expressive language so that, when assessed by Debbie Olde at seven years' one month of age, her language scores were between the three and four year old level, except for some grammatical tasks. Not only were her language responses at a much younger level but they were also somewhat tangential and inappropriate. Her use of more complex language to tell a narrative was significantly impaired and her pragmatic skills (appropriate social use of language) were poor, with poor topic maintenance and rather superficial quality of speech. Cognitive assessment undertaken in her school around eight years of age showed a very significant scatter of cognitive ability with some non-verbal abilities close to age, though particular difficulty in more complex manipulation of visual information and written output. … The placement in a special school for children with behaviour disorders was not surprising given the mix of the intrinsic nature of her learning and cognitive disability and the complex environmental influences on her. As I understand it, she subsequently attended a Support Class for children with mild intellectual disability and this would have given her appropriate structure and a slower academic program. During the time I was involved with Leigh and her assessment, there were continuing concerns about the quality of the organisation of her behaviour and learning, her insight and self-regulation. She seemed to have a significant difficulty holding a great deal of information in her mind while working on it, even at the younger level at which her language was functioning. This was an intrinsic vulnerability, compounded no doubt by the demands on her, her learning disability, her language disorder and, possibly, environmental influences in her relationships. … From my knowledge of Leigh at around the age of seven or eight years, she would be likely to have permanent problems in functioning appropriately with the complex challenges of adolescent and adult life. She would be likely to continue to have poor understanding, poor appreciation of subtle instructions and situations, some difficulty in accurate and appropriate insight and some difficulty in inhibiting various behaviours. I have no knowledge of how these existed at the time of her accident and therefore cannot say how they would have contributed to her accident and the tragic loss of limb. Extrapolating from these intrinsic qualities in other children and the information available to me at the time I was involved in her management, Leigh would be much more likely to follow the example of others without understanding whether actions were appropriate or inappropriate. She would be much less efficient at controlling impulse. 44 The plaintiff was assessed by Ms Agnes Rappaport, a senior clinical psychologist, attached to the Prince Henry and Prince of Wales Hospitals on 17 October 2002. The plaintiff was aged 22 years at the date of assessment. Her reading age was assessed as equivalent to a person aged 8.4 years. Her WAIS III verbal IQ was assessed at the fifth percentile, which is in the borderline range and her performance IQ at the 10th percentile, in the low-average range of intellectual functioning. Her scores on individual subtests varied from average to the extremely low-average range. In general, she tended to do better on non-verbal, performance tasks. Ms Rappaport commented that the plaintiff tended to be very concrete in her interpretation and responses to tasks that were challenging for her. 45 Ms Rappaport described the plaintiff in this way: Whilst Ms Russell generally presents very well, she is child-like and immature in many ways - wanting to be liked and to "look pretty". 46 In a further report, which is dated 13 February 2003, Ms Rappaport commented that at a general level the plaintiff can present better than she performs on formal assessment of her cognitive and intellectual functioning and that: At a social level, she is susceptible to influence by people she would like to impress or whose social circle she wants to belong to. Her reasoning, in line with her intellectual functioning, can be very simplistic and "childlike". 47 The plaintiff was assessed by Dr Wendy Roberts, a clinical psychologist, retained by the defendant. Dr Roberts reported: Results of this assessment indicate that she is of mildly retarded to borderline verbal IQ and non-verbal IQ scores are generally low average to average. There is no indication that she ever functioned above these levels or that there has been any diminution of intellectual functioning attributable to this accident, to my knowledge. … The chief issue which arises in connection with this claim in terms of my area of expertise is whether she was capable of forming an assessment of the inherent risks associated with the activities she was undertaking. … Ms Rappaport also argues that Ms Russell was susceptible to influence from others and that her reasoning could be very simplistic and child-like. Whilst I agree that there is an element of simplicity and child-like behaviour and some difficulties comprehending concepts, her cognitive skills have not altered because of the accident which is the subject of this claim. … She does not understand complex concepts, has poor mathematical skills and cannot read at functional adult levels, but has demonstrated ability to do TAFE studies and pass albeit with some assistance. … In my opinion, she was capable of assessing the risks associated with the activity in which she was engaged at the time of the accident but is also likely to some extent to be led by others. 48 Dr Peter Morse, a psychiatrist, assessed the plaintiff on 8 February 2005. In his report, which is dated 10 February 2005, Dr Morse observed: In the manner and content of her speech and the use of words she did not present as intellectually handicapped. However in her understanding of various issues in her life and her judgment in regard to the incident and her description of her life since there was a lack of insight and of proper judgment and understanding in regard to the incident. …

[34]

You request that "you look at the question of the mental age of our client at the time of this conduct". In my opinion the question of the "mental age" of Ms Russell is not a relevant consideration. From the neuropsychological report they indicated that her reading, spelling and arithmetic ability indicate her at operating at a level of a very young child from six to ten years' of age. This is indicative of a very immature age related intellectual level. It also indicates along with other neuropsychological tests carried out that her IQ and other areas of intellectual functioning would make her have a lack of judgment no matter what age. I consider that her intellectual impairment as outlined, the past experience related to the effect of this and schooling, learning etc. And her concern at the impact of her "slowness" in her job play a very important part, in my opinion, to her going along with the foolish dangerous behaviour. It is not so much a question of her "mental age" but more how her lack of judgment due to intellectual impairment, her marked concern to hold her job in the face of her slowness and intellectual impairment caused her to be concerned at the opinion of these young people in that they were clients of the company and they may not return and therefore she will lose her job. She outlined that she was reluctant to go with them and this is confirmed in other reports outlined. In the end it was a combination of needing to please them due to her low self-esteem and self-confidence and her desire to demonstrate her "fitness" and athletic ability of which she was quite proud. In conclusion in regard to this matter it is my opinion that her intellectual disability has played a significant part in carrying out the foolish behaviour resulting in the injury. 49 Dr Morse was asked to comment on whether the plaintiff's intellectual deficiencies led to a diminution in her ability in a number of respects. He responded as follows: (i) To resist imitating the behaviour of others? Yes, her intellectual deficiencies for the reasons outlined above led to her imitating the behaviour of others and the wish to impress others. (ii) To refrain from dangerous conduct when she felt such conduct would lead to her being liked or accepted. Yes, her ability to refrain from dangerous conduct was diminished because of her need to be liked due to the effect of the intellectual disability (sic) and other factors as outlined above. (iii) To appreciate the risk? I am uncertain of whether or not having the intellectual deficiency has led to a lack of appreciation for the risks. Certainly due to her lack of knowledge of such matters, her lack of judgment would cause her to cover a lack of awareness of the risks of such behaviour. Further she thought she was physically fit with exercise and her job and thought she could handle these matters much better than the other people there. (iv) To check impulsive behaviour? I do not think there is any evidence that her intellectual deficiencies have caused her to engage in impulsive behaviour in the past, at that time or since. (v) To resist being led by others? Yes, for all the various factors impinging on self-esteem and self-confidence and her relationship with others and the question of her employment and her intellectual deficiency led to a diminution of her ability to resist being led by others as occurred on that occasion. 50 In a further report, which was dated 10 April 2006, Dr Morse was asked to express an opinion concerning the plaintiff's capacity to make decisions regarding the conduct of the proceedings. Dr Morse considered that she lacked the maturity of judgment and intellectual capacity sufficient to make decisions "regarding the running of her case without putting her interest at risk". He observed that: This opinion is given because of her borderline intellectual capacity and her childlike naïve attitude towards many aspects of her life and her attitude to the broader community in general. 51 Dr Brown, a psychiatrist, who assessed the plaintiff on 12 January 2006 at the request of the defendant, commented on the plaintiff's "pre-existing difficulties with self-esteem and confidence, and intellectual impairment affecting her daily functioning and an immature and vulnerable personality style …".

[35]

Liability in negligence 52 The plaintiff pleads her case in her SASC as follows: 2. At all material times the defendant by its servants and agents had the care, control and management of fences and gates therein bordering railway lines known as the Botany goods rail line which proceeded in the vicinity of McBurney Avenue, Mascot in the State of New South Wales (herein referred to as "the railway track". 3. At all material times the plaintiff was a developmentally delayed and mentally handicapped person, with restrictions and limitation in her ability to exercise reasonable care for her safety, and with childlike tendencies to imitate others, to be led by others and to seek approval. 4. At all material times there was a section of netting missing from a netting fence bordering the said railway line. 5. At all material times, the defendant knew that the railway line was used regularly by goods trains. 6. The said fence was at all material times in the control of the defendant. 7. At all material times the section of the netting missed allowed any person passing McBurney Avenue, Mascot to access the railway track. 8. At all material times the defendant knew or ought to have known that persons were in fact accessing the railway line. 9. At all material times, the combination of messing (scil. netting), a path beyond it and the access the path gave to the railway track ("the combination") the quality of an allurement. 10. The combination constituted a danger of personal injury to any person who gained access to the railway track. 11. On 25 February 2002 at approximately 7.30 pm, the plaintiff was enticed to and did gain access to the railway track by entering the area, under the defendant's control and management, where the netting was missing. 12. On 25 February 2002 the plaintiff, seeking the approval of those who had enticed her to the area, and following the example of one of those persons, climbed onto the side of a goods train on the railway track, fell from that position and was grievously injured. 53 Particulars of negligence include: (d) failure to provide a fence and/or gate that was secured; (e) failure to provide a fence and/or gate that was intact and (l) failure to put in place any or any adequate inspection system to ensure that breaches in the fence were noted and quickly rectified. 54 The plaintiff also particularises as negligent in (f) the failure to place a sign or signs near the point of entry, immediately west of No 63, forbidding entry to the land or warning a potential entrant of the grave danger of entry onto the land. The plaintiff gave no evidence of what if any effect a warning sign would have had on her conduct. The submissions made on the plaintiff's behalf were not directed to the failure to warn case that is particularised.

[36]

55 By its defence, the defendant admits that at all material times it had the care, control and management of fences and gates bordering railway lines known as the Botany goods rail line. I have referred to the line as the Port Botany Freight line because that is how Mr Gausden referred to it.

[37]

56 The defendant submitted that the plaintiff's case fails at the outset because it was not subject to a common law duty to take reasonable care to avoid foreseeable risk of injury to her. Since the defendant did not own the lot traversed by the path, leading to the line, it was said that the principles governing an occupier's liability to persons coming onto land (including trespassers) were of no application. 57 In the defendant's submission, the case falls outside the recognised categories of relationship by which the common law imposes a duty on one person for the benefit of another. Senior counsel for the defendant submitted that the Court would be slow to find that a public authority with powers conferred on it by statute, for the benefit of the general public, was subject to a duty of care to a member of the public requiring it to exercise its powers in a particular way. He relied on the decision of the High Court in Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 per McHugh J at 575-576 [81]; Gummow and Hayne JJ at 596-597 at [146]. 58 The defendant submitted that another reason against holding that it was subject to a duty of care to the plaintiff was that the circumstances of her injury were not foreseeable, or, at least, not foreseeable in a sense that would make it liable to compensate her. This is by reason of a number of factors: the absence of injury to any person in connection with the operation of the Port Botany freight line over its life; the evidence of Mr Kerdijk and his wife, who had perceived no risk to themselves or other members of the public including children in accessing the railway corridor; the absence of any evidence that the defendant was aware that a significant number of trespassers were entering the rail corridor from McBurney Avenue. The defendant had a system for identifying trespassers who came into the rail corridor and this revealed few reports of intrusions. It was submitted that this was not reflective of any deficiency in the reporting system but rather was explained by the tendency of trespassers to conceal themselves from railway personnel so as to maintain the right of way for their own benefit.

[38]

59 The defendant made the "formal" submission that the current, "undemanding" test for foreseeability, in determining the existence of a duty of care, is wrong. The test for which the defendant contends is framed in this way: that the outcome must be one which was not unlikely to happen.

[39]

60 Senior counsel for the plaintiff submitted that the defendant was subject to a duty as an occupier to take reasonable care to avoid risk of physical injury to persons as the result of coming into the railway corridor. The duty arose because the defendant exercised care, control and management over the railway corridor and the access to it. He submitted that ownership of the land was not the determinant: Wheat v E Lacon & Co Ltd [1966] AC 552 per Lord Denning at 578: This duty is simply a particular instance of the general duty of care which each man owes to his "neighbour". When Lord Esher first essayed a definition of this general duty, he used the occupiers' liability as an instance of it: see Heaven v Pender , and when Lord Atkin eventually formulated the general duty in acceptable terms, he, too, used occupiers' liability as an illustration: see Donoghue v Stevenson , and particularly his reference to Grote v Chester Railway Company . Translating this general principle into a particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier" and the person coming lawfully there is his "visitor": and the "occupier" is under a duty to his "visitor" to use reasonable care. In order to be an "occupier" it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be "occupiers". And whenever this happens, each is under a duty to use care towards persons coming lawfully onto the premises, dependent on his degree of control.

[40]

61 In the plaintiff's submission, the risk of physical injury to a person who strays into the railway corridor is foreseeable. Counsel pointed to the evidence that there had been three incidents of unauthorised access to the railway corridor reported to the defendant in the five years prior to the plaintiff's accident at the approximate position of the accident. On 31 October 1998 it was reported that a 1.3m water pipe and some other debris had been placed by vandals. The incident occurred near to the access point from McBurney Avenue. On 27 November 1998 the Botany Station Master reported that five juveniles were riding on one of the vehicles of 6SB3 as it passed the General Holmes Drive level crossing. On 28 December 2000 there was a further report of debris being placed on the line at a point which is near to the McBurney Avenue access point.

[41]

62 In addition to these three incidents (which although occurring in the vicinity of McBurney Avenue did not identify it as a point of access to the railway corridor), there was the path leading from the gap in the fence. The existence of the path was, or should have been, evident to any person carrying out an inspection of the railway corridor and to those who carried out repairs to the fence from time to time. It put the defendant on notice that there was regular access from McBurney Avenue to the railway corridor.

[42]

63 The circumstance that Ms Nicholson considered that the railway corridor was safe enough for her son to use because the rumbling sound of the goods trains could be heard at a distance does not assist in determining whether the defendant owed a duty to the plaintiff. There exists a risk of physical injury to a person who is present on the line regardless of the likelihood in normal circumstances that the sound of the train will be heard before the risk materialises. The defendant recognises this and has a system in place to provide a look out to protect the staff who carry out the track walk inspections. 64 In my opinion a reasonable public authority in the defendant's position would have foreseen that there was a risk of injury to members of the public who accessed the line from McBurney Avenue. The fact that the risk of injury may be obvious is not determinative of the absence of a duty of care: Vairy v Wyong Shire Council (2005) 223 CLR 422; Edson v Roads & Traffic Authority [2006] NSWCA 68; 65 NSWLR 453. 65 Senior counsel for the defendant submitted that it was necessary to formulate the duty to which his client was said to be subject with precision. He drew attention to the observations made by Hayne J in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at 627-628 [309] in this respect. His Honour in the passage cited noted that the steps which could have been taken by a defendant with hindsight may appear much more obvious than when viewed as a hypothetical future possibility. This observation was made in the context of a discussion of whether the factors tending against the imposition of liability are assessed at the level of breach rather than duty. His Honour had earlier discussed this question in Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; 205 CLR 254 at 289 - 290 [103]: Because the extent of a duty falls for decision in relation to "concrete facts arising from real life activities" it will always be useful to begin by examining the extent of a defendant's duty of care separately from the facts which give rise to a claim. That may be possible, and useful, in a simple case (like motorist and injured road user) where the duty of care and its content are well established. In other cases, however, it may lead to an insufficiently precise formulation of the duty which obscures the issues that require consideration. That lack of precision may lie in formulating the duty too narrowly: for example, by asking did the defendant owe a duty of care to fence the part of the cliffs in its reserve from which the plaintiff fell? It may also, as in this case, lie in formulating the duty too broadly: for example by asking did the defendant owe any duty of care to the plaintiff? (citations omitted.) 66 The fact that the risk had not eventuated over the 80 year lifetime of the Port Botany freight line was put as relevant both to the issue of whether a duty was owed and if so to whether the defendant was in breach of it. The absence of injury to members of the public over the life of the Port Botany Freight line may not say anything about the probability of injury arising as the result of members of the public accessing the line through a gap in the fence in McBurney Avenue. The evidence did not establish that unauthorised access to the Port Botany freight line had been occurring throughout the past 80 years. However, there had been a gap in the fence in McBurney Avenue for at least five years at the date of the plaintiff's accident (save for the brief intervals when the chain link mesh was replaced). Throughout this time large number of people accessed the railway corridor by walking through the gap and along the path. It is probable that there had been gaps in the fence for more than five years since the path was evident when Mr Kerdjik and his wife moved into McBurney Avenue around May 1997. However, the fact that this considerable volume of unauthorised access had not led to injury was no reason to conclude that the risk of injury was not a real one.

[43]

67 It was foreseeable that persons gaining access to the railway corridor through the gap in the fence in McBurney Avenue were likely to include children and others who may be vulnerable by reason of intellectual handicap or dementia. The risk of physical injury to persons coming onto the line include being hit by a train but are not confined to that. It was foreseeable that children who obtained access to the line were at risk of injury as the result of foolhardy conduct including riding on the outside of a goods train wagon. There had been reports of children riding on goods wagons. The defendant owned the railway track and the associated rail infrastructure and received payment from commercial users whose goods trains travelled on the track. Goods trains are heavy, potentially dangerous machines. The activity in which the defendant was engaged, the operation of a freight line on which goods trucks regularly travelled, created a foreseeable risk of injury to persons coming onto the line. The nature of the activity and the defendant's capacity to control access to the railway corridor are significant in assessing its submission that it was not subject to a duty of care. 68 The defendant submitted that the powers conferred on it by the Transport Administration Act are permissive. It was noted that there is no reference to duties or obligations owed to third parties. The assertion that it was subject to a common law duty of care, particularised as requiring it to securely fence the railway corridor from public access, is submitted to be inconsistent with the statutory regime to which it is subject. This is because the regime vests certain infrastructure in it and confers discretionary power on it to maintain, repair and replace infrastructure. In Edson the Court held that the Transport Administration Act did not evince an intention to exclude the common law from applying to the Roads and Traffic Authority. In my opinion the same conclusion applies to the defendant: No feature of the scheme of the Transport Administration Act is inconsistent with the imposition of a duty of care being imposed on the defendant for the benefit of the plaintiff.

[44]

69 In the course of submissions senior counsel for the plaintiff identified the content or extent of the duty for which he contended as being to provide adequate fencing to address the risk, of which the defendant knew or ought to have known, of deliberate or accidental access to the railway track (T 278.14-21). 70 The defendant led evidence that there is a pedestrian level crossing on the Port Botany Freight line at Banksia Street and that members of the public have access to the railway corridor at this point. The existence of a pedestrian level crossing is not a reason for concluding that the exercise of reasonable care does not require adequate fencing to prevent access to the railway corridor at locations which are not designated points at which provision is made for members of the public to safely cross a railway line.

[45]

71 I consider that the defendant was subject to a duty to take reasonable care to avoid physical injury to persons, including trespassers, coming into the railway corridor: Hackshaw v Shaw (1984) 155 CLR 614; Austrade & Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236; State Rail Authority v Madden [2001] NSWCA 252 and Edson. I do not understand the decision in Mawlodi v State Rail Authority (NSW) [2001] NSWCA 415 to be to the contrary. In that case the question posed by Meagher JA (with whose judgment the other members of the Court concurred) was, (at [6]): "whether things being what they were the SRA had any duty to take further measures to ensure the safety of trespassers on its property". His considered the primary judge was right to find that the SRA did not; it had erected a fence and put in place a system for regular inspection and repair of that fence.

[46]

72 In considering the response of a reasonable statutory authority to a foreseeable risk of injury to members of the public including the plaintiff it is necessary to take into account the magnitude of the risk, the probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities that the defendant may have: Wyong Shire Council v Shirt (1979 -1980) 146 CLR 40 per Mason J at 47. The magnitude of the risk was very great and while the probability of its occurrence may not have been high, as I have said, in my opinion, it was a real one. In written submissions the defendant asserted that there were several different types of demands placed on it and that it would be wrong to regard the damage to the McBurney Avenue fence as of any significance. Safety issues were submitted to arise in a number of areas much more acutely than those raised by boundary fencing; the tracks, overhead wiring and so forth (WS [36). The defendant did not lead evidence of competing demands upon it such as to make it reasonable that it not maintain boundary fences along the railway corridors in the metropolitan Sydney area. The evidence is that does fence the whole of the length of the railway corridors in this area and that it maintains the fences. 73 Mr Gausden was insistent that the purpose of fencing, apart from serving to delineate the boundary, is to prevent inadvertent access to the railway corridor. To the extent that he appeared to be suggesting that the defendant did not consider it necessary to prevent deliberate unauthorised access to the railway corridor his evidence seemed to me to be inconsistent. Thus in the passage that I have set out at [27] above Mr Gausden agreed that had the defendant been aware of a high level of access by members of the public it would have been a matter of concern. Mr Cowling's evidence is that 6 foot high chain link mesh fence with top and bottom rails was the requirement in the Sydney metropolitan area at the time of the plaintiff's accident. Mr Gausden did not take issue with this. I considered the assertion that the function of this fence was confined to the prevention of inadvertent access to the railway corridor strained credulity. 74 Mr Cowling commented on the difficulty faced by railway authorities in maintaining boundary fences. His experience has led him to the opinion that regular vandalism [cutting open of mesh] and trespassing as reported by neighbours occurs principally in defined places, such as the location in McBurney Avenue. While the cost of Palisade style fencing would not be justified throughout the metropolitan area, in Mr Cowling's opinion secure fencing of this type is called for at "hot spots". 75 In written submissions the defendant contended that McBurney Avenue was not a "hot spot" and noted that Mr Gausden had not been cross-examined to suggest that it was. The cross examiner did not use the expression "hot spot" but the cross-examination at paragraph [27] above was directed to this issue. Mr Gausden agreed that by looking at photograph 3 one could form the view that access through the missing fence panel along the path was not just the occasional person but was consistent with a lot of people [using it]. In light of the photograph the concession was unsurprising. 76 This is not a case of trespasser insinuating himself through a tear in a fence maintained by the defendant and thus getting access to the railway track. The gap in the fence in this case was an entire missing panel. The absence of a bottom rail meant that there was no obstacle at all to entry to the land. The path led straight up to the line, which served as a convenient short cut. Large numbers of members of the public were in the habit of accessing the railway corridor from McBurney Avenue. This had been happening for at least five years. Mr Gausden agreed that the path would have been evident to inspectors carrying out the three monthly rail corridor inspections. The existence of the path must have been evident to those who carried out repairs to the fence at approximately six monthly intervals. The defendant knew or ought to have known that the rail corridor near McBurney Avenue was being used as a right of way by the public and that the attachment of chain link mesh to the frame from time to time was an ineffective means of stopping it.

[47]

77 The panel had been missing for around six months at the date of the plaintiff's accident. I consider that the failure to effect repairs to make the existing fence more secure, or to install secure fencing such as the Palisade style of fencing, amounted to a want of reasonable care for members of the public including the plaintiff. 78 In the defendant's submission the missing fence panel was not causative of the plaintiff's injury: the plaintiff was in the company of a group of youths and subject to their influence. None of the youths had been called. In the defendant's submission the inference to be drawn was that the youths were intent on mucking around on the tracks and if McBurney Avenue had not been a point of entry they would have made their way onto the line at another point. It was not put the plaintiff that she would have accompanied the youths on any exploit. Her evidence was that she would not have engaged in a number of identified unlawful activities with them. The plaintiff followed the youths through the missing panel in the fence. She had not noticed the steel posts or the overhead rail, which were all that remained of the fence adjacent to No 63. As far as she was concerned anyone could walk up the path. That is what she did. This led her to the line. Before this day she had never been to McBurney Avenue. If the access to the line had been barred by a secure fence it is probable that the plaintiff would not have entered the railway corridor and jumped onto a train. 79 I am satisfied that the defendant's negligence in failing to prevent access to the railway corridor in McBurney Avenue was a direct cause of her injury. Contributory negligence 80 The defendant pleads that the plaintiff's injury was caused or contributed to by her own negligence. The onus is on the defendant to establish contributory negligence on the part of the plaintiff. In the event that it succeeds the damages recoverable by the plaintiff in respect of the defendant's wrong are reduced to such extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage: s9 (1) of the Law Reform (Miscellaneous Provisions) Act 1965. 81 Apportioning between the plaintiff and the defendant their respective shares in the responsibility for the injury involves a comparison both of the culpability; that is of the departure of each from the standard of care of the reasonable person and the relative importance of the acts of the parties in causing the injury: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494.

[48]

82 The defendant submits that the plaintiff was an adult aged 21 years at the date of the accident and that her negligence in jumping onto the outside of a moving train is both obvious and substantial and should result in a reduction in her damages by an amount of not less than 80 percent. In its submission the test for determining contributory negligence is an objective one, and the plaintiff's intellectual disability is irrelevant to the determination of whether she exposed herself to a risk of injury that might reasonably have been foreseen and avoided. 83 It is put that the plaintiff was aware of the risk of injury in jumping on to the train, but even if she were not aware of it, this would not determine the question of her contributory negligence. This is because while awareness of risk, and the decision to ignore it, serves to increase a plaintiff's own negligence, given the objective nature of the test lack of awareness does not operate to reduce or eliminate it. 84 Senior counsel for the plaintiff submitted that the standard of care is to be determined by reference to a reasonable person in the plaintiff's position with her degree of mental capacity, knowledge, insight and understanding. 85 I was not referred by either party to any authority that deals with the standard of care to be applied to an intellectually handicapped plaintiff. Some support is to be found among the text writers for the view that the mental incapacity of a plaintiff may have bearing on the standard of care in the context of contributory negligence. Thus, Fleming, The Law of Torts (LBC Information Services: Sydney, 9th ed, 1998) at 321 states: That the plaintiff is a child or subject to some mental or physical disability may have a bearing on the standard of care demanded from either party . A defendant is of course ordinarily free to act on the assumption that others will take normal precautions for their own safety and that he need not adjust his own conduct in deference to extra ordinary disabilities or shortcomings of substandard members of the community, unless he knows or ought to anticipate their presence within the range of his own activities. (emphasis added.)

[49]

This passage appears in the discussion of contributory negligence in the context of child plaintiffs and the cases cited all relate to children. To similar effect is the treatment of the topic of the contributory negligence of disabled persons in Clerk & Lindsell on Torts (London: Sweet & Maxwell, 18th ed, 2000) at 3-42 and Rogers, Winfield & Jolowicz Tort (London: Sweet & Maxwell, 17th ed, 2006) at 6-48. The learned authors of each cite Daly v Liverpool Corporation [1939] 2 All ER 142 in support of the proposition that the standard of reasonable care must have reference to a disabled plaintiff's infirmities. In Daly a 69-year-old woman who failed to get out of the path of a bus was not held to the standard of care of a reasonable person. Stable J said in that case (at 143), "I cannot believe that the law is quite so absurd as to say that, if a pedestrian happens to be old and slow and a little stupid, and does not possess the skill of the hypothetical pedestrian, he or she can only walk about his or her native country at his or her own risk". 86 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 raised consideration of contributory negligence under s 74 of the Motor Accidents Act 1988 (NSW). It was a motor accident case involving an intoxicated driver and an intoxicated injured passenger. McHugh J discussed the common law rules of contributory negligence (at 558 [15] - 567 [39]), giving particular consideration to the approach taken by Australian courts to cases in which a passenger had accepted a lift from an intoxicated driver. His Honour held that the injured passenger in that case was guilty of contributory negligence at common law and under the statute. 87 In Joslyn McHugh J said that the test of contributory negligence is objective and that like the test for negligence it is one that is independent of the idiosyncrasies of the person whose conduct is in consideration (at 564 (32]). His Honour acknowledged that an exception to the objective test arises in the case of child plaintiffs to the extent that the standard of care is tailored to the age of the child: McHale v Watson (1966) 115 CLR 119. His Honour also referred to Daly observing that it may be that the standard of care will be tailored in the case of an aged plaintiff. However, his Honour was critical of the reasoning of Stable J in Daly who had applied a subjective test saying (at 143), "One must take people as one finds them. There is no hypothetical standard of care. We must all do our reasonable best when we are walking about." McHugh J observed that in McHale Kitto J, while adopting a modified standard of care for children, nonetheless rejected a subjective standard. 88 In concluding his discussion of the common law McHugh J said (at 567 [39]): [39] In other areas of contributory negligence, a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight. Contributory negligence is independent of "the idiosyncrasies of the particular person whose conduct is in question." Glasgow Corporation v Muir [1943] AC 448 at 457 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. 89 Senior counsel for the plaintiff submitted that the statements made by McHugh J in Joslyn upon which the defendant relies are inconsistent with decisions of the High Court in Cook v Cook (1986) 162 CLR 376 and Gala v Preston (1991) 172 CLR 243.

[50]

90 The contention was developed in the written submissions prepared on the plaintiff's behalf in this way: The High Court has held in Cook v Cook that the duty of care owed by a defendant varies according to that person's background and experience. If it is proper to recognise inexperience on the part of a defendant as a basis for reducing the liability of that defendant, then it is proper to recognise inexperience or incapacity on the part of plaintiff as a basis for reducing any contribution by a plaintiff to the occurrence of an injury (WS [60]).

[51]

91 In Cook, which was a motor accident case, it was held that in special and exceptional circumstances the relationship between a particular driver and a particular passenger may be transformed into a special or different category of relationship such that the duty of care owed by the particular driver to the particular passenger will be either expanded or confined. In that case the driver of the vehicle was inexperienced and did not hold a drivers' licence or learners' permit. The injured passenger was a licensed driver and aware of the inexperience of the driver. The driver's known incompetence and inexperience was described in the joint reasons as being "a controlling element of the relationship of a proximity between the parties" (at 388). It was the special category of relationship which operated to confine the standard of skill or care in that case (per Mason, Wilson, Deane and Dawson JJ at 387). In Gala the Court again was concerned with the relationship between driver and passenger, which in the special and exceptional circumstances of that case was held to be such that no duty of care arose (per Mason CJ, Deane, Gaudron and McHugh JJ at 254). 92 This is not a case in which there exists a special or exceptional relationship between the parties. The significance of Cook to the plaintiff's argument is that it recognises that in certain cases there is what was described by counsel as a "differential duty of care". 93 The standard of care that applies to the liability of children in negligence is an objective one, which takes into account the limitations of childhood development: McHale v Watson (1965 - 1966) 115 CLR 199. The approach that Kitto J explained (at 213) is that one judges the gifted and mature 12 year old child and the dull and immature 12 year old equally by the standard of the hypothetical ordinary 12 year old. In the same case Owen J (at 231) commented that it had been held that a special standard is to be applied to persons at the other extreme of life whose mental faculties have been impaired by age. 94 The reasons that inform the adoption of an objective standard that is tailored to the recognised limitations of childhood (or, it may be, great age), may be thought equally applicable to the limitations of intellectual incapacity. It is true that childhood is not an idiosyncrasy; all adults have experienced it. Intellectual disability may be idiosyncratic but it is a condition that is capable of assessment by standardised measures. One can posit an objective standard to which a person possessed of mild or moderate or profound intellectual handicap, as the case may be, is to be held as much as one can posit the objective standard to which a child of four or nine or 13 is to be held. If it is against the policy of the law to hold a child with his or her limited understanding to the standard of care of the reasonable person there may be thought equally strong reasons for not applying the standard of the reasonable person to a plaintiff with a recognised degree of intellectual incapacity. (Lord Hoffman considered that the reason for holding children who lack a full understanding of the danger of an activity to a different standard in dealing with contributory negligence is because it would not be just and equitable to do so and that the same consideration may apply to a person of unsound mind: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 371-372). 95 In the joint judgment in Cook their Honours in passing commented (at 383): "It would, to take an extreme example, affront the standards of the reasonable man of the law of negligence to define the duty of care which a mentally retarded and completely unqualified and inexperienced person owed to a professional pilot who had persuaded him or her to attempt to pilot an aircraft in which they were both travelling as being the skill and care that are reasonably to be expected of a qualified and experienced pilot".

[52]

96 I have decided that I should determine the defence of contributory negligence by considering whether the plaintiff failed to take the reasonable care for her own safety that is to be expected of a reasonable adult having a mild degree of intellectual handicap. The test remains objective and I do not take into account considerations peculiar to the plaintiff, albeit that they may be related to her disability, such as her childlike personality and tendency to be easily led. 97 Applying the test that I have set out above, I have concluded that a reasonable person possessed of a mild degree of intellectual handicap - with the plaintiff's IQ and level of intellectual functioning reported in Dr Morse's report - would nonetheless have appreciated that in jumping onto a slow moving goods train she was exposing herself to a risk of serious injury. The defendant has established that the plaintiff's injury was in part caused by her failure to take the care for her own safety that a reasonable person possessed of her degree of mild intellectual handicap would take. 98 The plaintiff's want of care for her own safety was considerable albeit not as considerable as the want of care of a reasonable person without intellectual disability who jumped onto a slow moving goods train. This is because persons with a mild degree of intellectual impairment have a lesser capacity to reason and to exercise judgment based upon reason than those who are not impaired. The plaintiff's conduct was a direct cause of her injury. The defendant's conduct in not preventing members of the public including the plaintiff from gaining access to the line was a significant departure from the standard of care that it owed to her. The defendant's conduct, too, was a direct cause of her injury in that but for the gap in the fence and the path leading to the line, the accident would not have occurred. I consider that it is just and equitable to reduce the damages recoverable by the plaintiff by 50 percent to take account of her contributory negligence. Voluntary assumption of risk 99 The defendant pleads as a complete defence that the plaintiff with full knowledge and understanding of the dangers arising from the risk referred to in the SASC voluntarily accepted the risk resulting from each and every one of the acts and omissions of which she complains. In consequence of this she is not entitled to maintain her claim against the defendant by reason of the defence of volenti non fit injuria. 100 No submissions were directed to this defence. In order to succeed it is necessary for the defendant to establish that the plaintiff fully comprehended the extent of the risk. At the point the plaintiff jumped onto the train she did not appreciate that she was exposing herself to risk of serious injury. She had seen Ercan jump onto the train in an athletic style, which made the manoeuvre seem easy. While it was apparent to the plaintiff that she could be hurt by being hit by a train if, for example, she was standing on the tracks, she did not think about whether it was dangerous to follow Ercan's example and take hold of the side of the wagon when the train was moving very slowly. 101 The plaintiff passed through the gap in the fence without realising that she was walking up to the railway line. As she stood by the side of the track watching Ercan take hold of the ladder on the slowly moving freight train she did not appreciate the danger of the activity. For the defendant to succeed on this defence it is necessary to establish that she fully comprehended the risk and freely and voluntarily accepted it. The defence of volenti fails.

[53]

The plaintiff's injuries 102 The plaintiff was admitted to the Prince of Wales Hospital following the accident on 25 February 2002. She sustained a complete severe de-gloving of the right foot, with partial amputation and the loss of her heel pad. She also suffered multiple lacerations to her left foot. Initially she underwent amputation of the right leg, above the ankle. She was transferred to the Prince Henry Hospital on 15 March 2002 for rehabilitation. She developed stump infection and abscesses and was transferred back to the Prince of Wales Hospital where she underwent two stump debridements. Ultimately, a surgical revision of the amputation was necessary. She was discharged from Prince of Wales Hospital on 9 April and she returned to the Prince Henry Hospital for further rehabilitation. In all she spent 80 days in hospital before being discharged home. 103 The plaintiff experienced nightmares, phantom limb pain and psychological sequelae. 104 The plaintiff returned home on 16 May 2002. At this time she was walking with the aid of two quad sticks. She progressed to crutches and then to being mobile with the use of a prosthetic lower right limb. 105 The parties were agreed about a number of the components of any award of damages. Among the claims a sum is sought for fund management. This is in issue and the parties were agreed that it would be convenient to deal with this question after the delivery of these reasons. I address the various heads of damages below. In a number of instances the figure nominated will require adjustment to the date of judgment. The parties can attend to this and provide an updated schedule in conformity with these reasons in due course. Non-economic loss 106 The parties were agreed that an assessment of the plaintiff's non-economic loss is $320,250.00.

[54]

Economic loss - (i) past loss 107 The plaintiff was in the third year of her four year hairdressing apprenticeship at the date of her accident. The claim made for past economic loss is for the sum of $114,083.00. This figure allows 70% of the adult wage for a hairdresser for six months nett of tax ($9,204.00) and 85% of the adult wage nett of tax for one year ($21,996.00). The balance, ($82,883.00) is the adult wage for a qualified hairdresser nett of tax for 3.3 years. 108 The defendant submits that the sum should be discounted to reflect the chance that the plaintiff would not have maintained her employment in any event. She had difficulty in performing a number of simple tasks associated with it. 109 The plaintiff was fortunate in finding a sympathetic employer. She was not able to carry out some tasks that one would expect an apprentice who was not disabled to be able to do. Against this are a number of factors that in my opinion made it likely that, but for her accident, she would have completed her apprenticeship and maintained her job, at least for the period to-date. The plaintiff has a pleasing manner, a feature that is noted in a number of the reports and which was apparent in the course of her evidence. She placed a great deal of emphasis on her personal appearance and she is an attractive young woman. These attributes are all likely to be valued in a junior hairdresser. The plaintiff enjoyed her work and her TAFE studies. She was understandably proud of her achievements and motivated to complete her course. She worked hard at the salon in an effort to do her work "perfectly" although she acknowledged that she had difficulties with some tasks. She was a loyal employee; one of the reasons that she accompanied the youths was that they knew her from the salon and she did not want to give offence (Dr Morse's report). She had held her job for over two years at the time of her accident. 110 I do not consider that her damages in respect of past economic loss should be discounted to reflect the asserted precariousness of her employment in the period to-date. 111 The sum for past economic loss will require adjustment to reflect the loss to the date of judgment. 112 The defendant did not dispute the plaintiff's entitlement to an assessment to reflect the loss of superannuation to the date of judgment. The figure claimed in this respect is $12,173.00. This, too, will require adjustment.

[55]

Economic loss - (ii) future loss 113 The plaintiff claims the sum of $328,199.00 for future economic loss. This claim is calculated by reference to the award gross weekly wage for a hairdresser, nett of tax ($483.00 per week) to 65 years. The resulting sum has been discounted by 25 per cent for ordinary and special vicissitudes.

[56]

114 An award of damages for future economic loss cannot be made until the plaintiff first satisfies the court that the assumptions about future earning capacity or other events on which it is to be based accord with the plaintiff's most likely future circumstances but for the injury (s 13(1) of the Act). 115 The plaintiff's pre-injury prospects of employment as a hairdresser were assessed as sound in the joint report prepared by Lyn Gosling and Katherine Wagner of the Occupational Health Assessment Centre (Exhibit C p98; report of 11 August 2005). I am satisfied that the plaintiff's most likely future circumstances but for the injury are that she would have completed her apprenticeship as a hairdresser by 2004 and continued her employment in the Eastlakes hairdressing salon for some years as a qualified hairdresser. It is probable that she would have continued in employment as a hairdresser without progressing to any position that required any clerical or supervisory/management skills throughout her working life. She would always have found it necessary to work for a sympathetic employer and this is a pre-injury factor that limited her earning capacity because she was likely to have more interruptions to her working life. 116 Dr Lorraine Jones, the Director of Rehabilitation Services at the Prince of Wales Hospital Rehabilitation & Spinal Medicine Unit has been looking after the plaintiff's care since 2002. The plaintiff has had difficulties in prosthetic adjustment: she has sensitive skin and the prostheses have rubbed at areas of her stump, frequently causing blisters. She is able to walk a moderate amount but she is limited by her sensitive stump. Dr Jones considers that the plaintiff is unfit for any job which involves prolonged standing and, hence, that she is unfit to ever return to work as a hairdresser's apprentice or as a hairdresser. She is not fit to work in any job that requires standing. 117 The plaintiff is presently attending TAFE doing a beauticians' course, the Beauty Services Certificate III. There are a number of components to this course including waxing and tinting and working on fingernails and toenails. The plaintiff failed the nail technician's examination on her first attempt and she has also failed the waxing examination. She remains motivated to complete the course. 118 Dr Jones considers that the plaintiff would be able to work as a manicurist or beauty therapist. As a beautician the plaintiff would be expected to perform various tasks apart from doing manicures. These would include waxing, which requires the beautician to work while standing.

[57]

119 Lyn Gosling, who is an occupational physiotherapist, commented that the plaintiff presented for assessment as "a very pretty, friendly and co-operative young lady". Ms Gosling concluded that the plaintiff is unable to return to work as a hairdresser. She states that the plaintiff was interested in sales work in a fashion boutique, or working as a beautician or cashier. In Ms Gosling's opinion, all of these occupations require standing. This is particularly so in the case of a beautician or beauty therapist. Ms Gosling considers that work as a nail technician would be suitable for the plaintiff because it is sedentary in nature. She commented that the plaintiff would need to be employed in a supportive environment, where she is not attempting to work under pressure. In this respect she noted the reservations expressed by her colleague, Kathryn Wagner, a psychologist. 120 Ms Wagner assessed the plaintiff as having the following transferable skills:

[58]

· Well groomed and pleasant interpersonal manner · Knowledge of beauty and grooming principles · Ability to work on routine tasks in a self-paced setting 121 Ms Wagner considers that the plaintiff would not be suited to any clerical or cash handling tasks. She observed: Whilst Ms Russell plans to follow a career as a Nail Technologist and is currently studying this profession at TAFE, it is acknowledged that she recently failed most subjects of the first component of the course and will be required to repeat the whole first semester. Ms Russell mentioned that she is obtaining assistance from a tutor at the TAFE, yet said she is having difficulty concentrating and grasping concepts and procedures. Although it is acknowledged that Ms Russell's pre-existing intellectual limitations are likely to be contributing to her learning difficulties, it also seems likely that her significantly reduced level of confidence as a result of the injuries has exacerbated her learning problems to a more severe level. 122 Ms Wagner considers, given the plaintiff's significant functional limitations and her psychological barriers, that it is difficult to identify any suitable role for her as a present day and future option. The psychological barriers to which Ms Wagner refers include a reduced level of confidence and self-esteem following the injury and a loss of patience and increased irritability, again, as the result of the injury. 123 In a further report, which is dated 11 August 2005, Kathryn Wagner summarised the position thus: The overall assessment concluded that whilst Ms Russell had been employed as an apprentice hairdresser at the time of the accident in 2002 and was planning to complete her apprenticeship, she is now unable to undertake this or any of her pre-injury jobs, or aspired roles due to her functional limitations. At the present time Ms Russell is studying to become a nail technologist however it is considered that from a psychological perspective this role is not suitable as a career option. Ms Russell presented as being motivated to work, however her options in the future will remain very limited because of the significant ongoing physical disabilities with which she suffers as a result of the accident. Further, her reduced confidence and sociability are additional barriers for her. 124 Ms Wagner assesses the plaintiff as physically and psychologically unable to perform any of the occupations for which she was equipped prior to her injury. In a report that Ms Wagner jointly authored with Ms Gosling, the conclusion is stated thus: Overall it is conceived that Ms Russell's future employment prospects will remain significantly limited. We believe she will have difficulty gaining and maintaining employment in the open labour market. 125 Dr Wendy Roberts considers that the plaintiff is cognitively and emotionally capable of employment as a nail technician in a salon operated by another. She notes that the plaintiff would need to be employed in a capacity in which she is not required to do books. Dr Roberts considers that she could work at least part-time and build up her hours, but that she is likely to need support to do this, preferably through a job support scheme.

[59]

126 For about four months prior to the accident, the plaintiff worked at night from home on a telephone sex line. She was introduced to this work by a female friend. She said her friend had not asked her to do it, but that she, the plaintiff, "went to myself 'I could do this as well'" (T 87). The plaintiff's mother did not approve of this employment, but, since the plaintiff was an adult at the time, she considered herself powerless to stop it. 127 Dr Roberts commented that there is no reason why the plaintiff could not work as a phone sex operator. Dr Brown was also of this opinion. This employment option was not pressed in the course of submissions. The prospects of the plaintiff maintaining employment of this description are, in my opinion, not sound in any event. The plaintiff impressed me as a naïve and unworldly young woman, and while her vulnerability may be exploited by an operator in a telephone sex business for a time, I consider it is unlikely that it is a realistic employment option for her.

[60]

128 The plaintiff is unlikely to obtain employment working in a reputable call centre, given her inability to record messages and carry out basic clerical tasks.

[61]

129 I am satisfied that the plaintiff's prospects of obtaining employment on the open market are very low. Her pre-injury employment skills included her pleasing manner, her confidence based on her ability to present well, and her ability to do work that required standing. 130 Section 13(2) requires the court to adjust the amount of damages for future economic loss (on the assumptions made for the purposes of subsection (1)) by reference to the percentage possibility that the events might have occurred but for the injury. In Macarthur District Motorcycle Sportsman v Ardizzone [2004] NSWCA 145 Hodgson JA at [13] concluded that despite the problems with the literal wording of subsection (2) it should be read as providing an allowance for vicissitudes that take into account the myriad of possibilities each of which could have meant that the plaintiff fell short of his or her most likely future circumstances. The plaintiff accepts that an allowance for special vicissitudes is appropriate in her case in light of her pre-injury intellectual handicap. The 25 percent proposed by her counsel is in my opinion an inadequate reflection of the many possibilities in her case including that because of her intellectual limitations she would have experienced significant interruptions to her employment over the course of her working life. 131 I propose to award damages for future economic loss on the assumptions identified at [115] and [129] above allowing the award code wage for a hairdresser to 65 years reduced by 35 percent pursuant to s 13(2) of the Act to reflect the usual and special vicissitudes in her case. The weekly figure less tax is $483.00. Appling the multiplier for 38.5 years of 906 this produces the sum of $437,598.00, which after the 35 percent discount yields the sum of $284,439.00. 132 The award will include the loss of future superannuation which on the assumptions set out above amounts to $30,645.00, a sum which again will require some adjustment to the date of judgment. Attendant care services 133 Section 15 of the Civil Liability Act 2002 deals with this head of damages. Attendant care services include services of a domestic nature, services relating to nursing and services that aim to alleviate the consequences of an injury. 134 Gratuitous attendant care services means attendant care services that have been or are to be provided by another person to a claimant for which the claimant has not paid or is not liable to pay. 135 The Court may not award damages to a plaintiff in respect of gratuitous attendant care unless it is satisfied that there is (or was) a reasonable need for the services to be provided and the need has arisen (or arose) solely because of the injury to which the damages relate and that the services would not be (or would not have been) provided to the claimant but for the injury (s 15(2)). 136 Section 15(3) provides: (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. 137 Subsections (4) and (5) impose a ceiling on the rate for which gratuitous attendant care services may be calculated in an award of damages. 138 The defendant acknowledges that the plaintiff's injury causes her to have a reasonable need for attendant care services. There is an issue as to the extent of her needs both past and future in this respect.

[62]

The lay evidence of past and future needs 139 The plaintiff's mother, said that prior to the accident the plaintiff had been able to do everything around the house. Generally, household chores were shared between Ms Russell, Ms Deri and the plaintiff. 140 After the plaintiff's discharge from hospital she was not able to do much for herself at all. She was walking with the aid of quad sticks. Ms Russell and Ms Deri were both responsible for looking after her during this period. About one or two months after her discharge the plaintiff had settled into her own routine. 141 Ms Russell said that the plaintiff is able to do a number of things for herself as she used to, but that she has difficulty with some household tasks. She is no longer able to stand in the kitchen and cook as she used to do. She is not able to carry heavy pots. Generally she cannot carry heavy loads; baskets of wet washing and the like. The plaintiff assists with household cleaning, but Kathy Deri and Ms Russell do the bulk of it now. 142 The plaintiff is able to attend to her own personal hygiene needs, to dress herself, prepare her own meals and make her way by public transport to her lectures at TAFE. She is able to do her own shopping, although the major grocery shopping is done by Ms Deri and Ms Russell. She can do her own washing and hang it out on the line. She does not do her own ironing, but I understood this to be because she does not like ironing and is not good at it. Ms Russell agreed that the plaintiff participates in minor cleaning activities around the house, but says that she finds it too hard to do the vacuuming. She is able to use a broom and to do the dusting. 143 The plaintiff takes off her prosthetic leg as soon as she gets home from TAFE because she finds wearing it all day is painful.

[63]

144 Kathy Deri gave evidence of the plaintiff's difficulties with blistering to her stump and her tendency to remove her prosthesis as soon as she returns home. Ms Deri usually takes the plaintiff shopping. After a little time she has to take over for her. The plaintiff tires and cannot carry heavy loads.

[64]

145 The plaintiff is able to manage in the shower by herself with the use of a bath board, but in the event she forgets something she has to call out to her mother or aunt to fetch it for her.

[65]

146 The plaintiff's evidence confirmed her ability to carry out the tasks to which I have referred. She said that she does not spend much time on her feet but that she is able to ride a bicycle without difficulty. 147 The plaintiff does not attend social events since the accident. She has made one friend through her attendance at the TAFE course. She and this friend, Christine, have been out together on one occasion. The plaintiff feels as though she has been left on the shelf. She sees no chance of marrying. She is self-conscious about her appearance since the loss of her leg. When asked how this affected her she said, "well, it's not great. It's not thrilling and, yeah, they're looking and they're probably going, 'what happened to that poor girl, her leg's gone' and it's quite upsetting" (T 107.11-14). The medical evidence relating to care needs

[66]

148 The plaintiff regularly attends Dr Salem, her general practitioner. He says that she suffered from depression after her accident. He prescribed antidepressant medication for her. She has been taking antidepressant medication off and on since the accident. At the date of giving evidence she was taking Endep. She had previously been prescribed Tryptanol. Early in 2006 she accidentally overdosed on the antidepressant medication.

[67]

149 Dr Peter Morse, in his report prepared in February 2005, concluded that the plaintiff suffered from a depressive condition. He diagnosed adjustment disorder with moderate to severe depression.

[68]

150 The defendant qualified Dr Millons, an orthopaedic surgeon, who reviewed the plaintiff on a number of occasions. In his report dated 13 December 2005 Dr Millons comments that the plaintiff's complaints are all quite consistent and not over stated. He observed that the plaintiff is unable to kneel, squat or run. He noted her stump problems and her difficulty in walking distances. He recorded that she can perhaps only walk as far as two blocks and would then require a spell because of aching through the stump. He recorded a history of a lot of aching and occasional swelling around the left ankle. Dr Millons noted that the plaintiff is independent in her personal activities of daily living. He commented that she has difficulty with carrying heavy items, or cleaning high and low cupboards. Dr Millons considered that the plaintiff would need help with some of the heavier cleaning activities and, if it were appropriate at some stage in the future, with gardening. Dr Millons considered she might need help in the order of three to four hours a week. He also considered that she would need certain home improvements, a ramp access to dwellings, rails around the bath, shower or toilet and a shower chair and long-handled cleaning appliances. 151 Dr Bowers, a specialist rehabilitation physician qualified by the defendant, noted that the plaintiff received assistance from her family with heavy domestic tasks. Dr Bowers found no exaggeration in the plaintiff's account. She gave a history that she was independent with self-care and simple tasks, but that it was necessary to modify her method with activities such as dressing and undressing and that she was slow in carrying out various tasks. She was able to pick up items from the floor in a modified fashion. 152 Dr Bowers considered that following her discharge from hospital the plaintiff would have needed one hour per day personal care assistance for the first 12 weeks and that after that time she would be independent with personal care tasks. She would have needed seven hours per week domestic assistance for heavy and awkward tasks from the date of her discharge from hospital until approximately December 2003. By that time Dr Bowers considered that the plaintiff would be more accustomed to using her prostheses and that her requirement for domestic assistance would decrease to three hours per week. In the future should the plaintiff live with another adult, Dr Bowers assessed her ongoing domestic assistance requirements would be reduced to one and a half hours a week. The occupational therapy assessments of care needs 153 Margaret Kennedy-Gould, an occupational therapist, assessed the plaintiff at the request of the plaintiff's solicitors. The assessment was carried out at the plaintiff's home on 19 July 2005. It comprised an interview with the plaintiff and observation of her in the home environment over a three hour period. Also present during the assessment were Ms Russell and Ms Deri. Ms Kennedy-Gould obtained a detailed history from the plaintiff of her care needs in the period following discharge from hospital. She records that Ms Russell and Ms Deri stated that for at least four months following discharge the plaintiff had required a high level of assistance. Thereafter the assistance was reduced as the plaintiff was able to undertake more tasks unaided. The history that is obtained and set out on page 2 under the heading "Care required after hospital discharge" and is generally consistent with the evidence at the trial. 154 Based on this history, Ms Kennedy-Gould expressed the opinion that for the first four months the plaintiff's need for attendant care services was 23 hours per week. This estimate assumed 20 to 30 minutes assistance per day with personal care, showering, drying and dressing (three hours per week). Domestic assistance which comprised: Household cleaning, including bed-making (two hours per week), laundry, including changing bed linen (one hour per week), shopping (two hours per week), preparation of all meals and washing up (ten hours per week). The domestic assistance was in total 15 hours per week. In addition, Ms Kennedy-Gould assessed the plaintiff as having required five hours per week of "companion care". This comprised assistance with transport to appointments (at least two hours per week) and assistance with respect to social and leisure activities (at least three hours per week). 155 Ms Kennedy-Gould assessed that the plaintiff required 18 hours attendant care services in the period between four and seven months after her discharge from hospital. She arrived at this figure, taking into account the plaintiff's report of continued difficulties associated with her stump and her limited mobility. Nonetheless, Ms Kennedy-Gould assessed her as having been able to undertake more personal care tasks and, with encouragement, lighter domestic duties, including some meal preparation. She considered that in this period the plaintiff had received personal care assistance of 10 to 15 minutes per day (one and a half hours per week). Domestic assistance involved assistance with most meal preparation and washing up (seven hours per week), heavier cleaning (one and a half hours per week), laundry (one hour per week) and shopping (two hours per week), amounting to a total of 11.5 hours per week. Ms Kennedy-Gould assessed the plaintiff's requirement for companion care as remaining at five hours per week, comprising two hours of assistance with attendance at appointments and three hours with assistance in social and leisure activities.

[69]

156 From seven months following discharge from hospital until the present Ms Kennedy-Gould assessed the plaintiff as being generally capable of attending to personal care tasks and as requiring 10 hours per week of attendant care. Ms Kennedy-Gould estimated that the plaintiff continued to require companion care comprising two hours per week assistance with attending at appointments and three hours per week assistance with social and leisure activities. She assessed domestic assistance as being assistance with heavier cleaning (two hours per week), assistance with heavier laundry (one hour per week) and supermarket and other shopping (two hours per week) amounting to a total of five hours per week.

[70]

157 Ms Kennedy-Gould considers that for the future the plaintiff requires attendant care of 10 hours per week. This provides for five hours of domestic assistance, which covers assistance with heavier tasks and five hours per week of the services of a companion carer.

[71]

158 The defendant qualified Ms Sanja Zeman, an occupational therapist. Ms Zeman was required for cross-examination. Ms Zeman assessed the plaintiff as independent in relation to all household maintenance activities with the provision of appropriate aids and appliances as recommended. She noted that the plaintiff's ability to engage in these tasks is hampered, at times, when stump and skin breakdown occur. She said that it was difficult to estimate the plaintiff's assistance requirements at these times, given that it is largely dependent on exposure to weight bearing and general physical health. 159 Ms Zeman assessed the plaintiff's past care needs for the period 16 May 2002 to 30 August 2002 - the first three and a half months after her discharge from hospital as in total amounting to 17 hours and 20 minutes. She explained her assessment as follows:

[72]

· Bathing and showering 10 minutes per day · Dressing 10 minutes per day · Meal preparation 30 minutes per day · Kitchen & dishwashing 30 minutes per day · Household cleaning 1 hour per week · Laundry 1 hour per week · Bedroom maintenance 10 minutes per day · Yard maintenance 1 hour per fortnight · Transport 2 hours per week

[73]

160 Ms Zeman explained in cross-examination that over this initial period the plaintiff's care needs would have decreased. She had not calculated out the way in which the decrease would have taken place, but she approached the matter on the basis that by the end of the period, on 30 August, the plaintiff was independent in relation to the majority of activities of general daily living (T 235). 161 From 30 August 2002 Ms Zeman assessed the plaintiff's care needs as one hour per fortnight. 162 Ms Zeman agreed that the plaintiff had not obtained her prosthesis until the end of August 2002. I considered there was force to the criticism made of Ms Zeman's assessment that from the time the plaintiff first obtained her prosthesis her care needs had been half an hour per week. Ms Zeman said that this was the account she had obtained from the plaintiff: she had told her that from when she got her prosthesis she was able to do things for herself. I accept the plaintiff gave such an account, I have some difficulty in light of the evidence of the mother, the aunt and looking at the probability of events in concluding that the transfer to full functional use of the prosthesis was quite as seamless as Ms Zeman appeared to accept. Ms Zeman's assessment of the plaintiff's past and future needs was out of keeping with all of the other evidence and I do not accept it. Past attendant care 163 I am satisfied that the plaintiff has passed the threshold of s 15(3) of the Act with respect to her claim for damages for past gratuitous attendant care services. There remains a considerable discrepancy between the estimated hours of attendant care services provided by Ms Russell and Ms Deri to-date between Ms Kennedy-Gould and Dr Bowers and Dr Millons. None were required for cross-examination.

[74]

164 There was no attempt to quantify the number of hours of domestic assistance provided by Ms Russell or Ms Deri. Their evidence in this respect was very general. Ms Deri, when asked what she had done to assist the plaintiff in the initial period following her discharge from hospital, said "Everything. Got her clothes for the shower. Made her bed of a morning. Just everything. Cooked her meals for her all the time. Took her to all her appointments. Took her to the doctors. Everywhere. All the time I went with her" (T 188.13-17).

[75]

165 The plaintiff has had a great deal of trouble with her stump. She often suffers from blisters and skin disorders. These make it difficult for her to use her prosthesis. Ms Deri estimated that the plaintiff developed blistering on the stump perhaps eight or nine times a year (T 188.26). On these occasions the plaintiff has difficulty walking. She does not use the prosthetic device. She may use crutches or get around the house by crawling. It seems to me that taking the frequency of these bouts into account the estimates made by Dr Millons and Dr Bowers of the domestic care services provided to-date were inadequate. I do not understand that Dr Bower's or Dr Millons have included in their respective estimates the hours spent on taking the plaintiff to medical appointments and shopping. These are attendant care services as much as services of a domestic nature or services relating to nursing in that they are services that aim to alleviate the consequences of an injury. 166 The plaintiff's claim in respect of past gratuitous services is for the sum of $53,180.00. It is based on the assumptions contained in Ms Kennedy-Gould's report and it provides for the services to be costed at $20.00 per hour. The award of damages to cover gratuitous attendant care services provided for less than 40 hours per week must not exceed the cap provided by s 15(5). The defendant did not submit that the sum of $20.00 per hour exceeds the cap. I proceed upon the assumption that it does not.

[76]

167 Ms Kennedy-Gould's report is a careful analysis based on a detailed history. I accept the estimate of 23 hours per week as a proper basis for the allowance of gratuitous attendant care services for the 15 weeks commencing on 16 May 2002 to 29 August 2002, when the plaintiff's prosthesis was fitted. Accepting the rate of $20.00 per hour, this produces a sum of $6,900.00. 168 I accept that in the three months following the fitting of the prosthesis gratuitous attendant care services were provided for 18 hours per week. This produces a sum of $4,680.00. 169 From December 2002 and continuing Ms Kennedy-Gould assesses the attendant care needs at 10 hours per week. By that time the plaintiff had had time to adjust to her prosthesis and was functioning largely independently. Making allowance for the frequent occasions when she needed extra assistance because of her stump problems, and acknowledging the need to reflect the services provided in taking the plaintiff to medical appointments and the like, I consider that an allowance of seven hours per week at the rate of $20.00 per hour is appropriate for the past gratuitous care from 1 December 2002. This yields a sum of $32,060.00 which will require adjustment to the date of judgment.

[77]

Future attendant care services 170 The plaintiff claims the sum of $345,639.00 for future paid care. The claim is based upon 10 hours of paid care per week at the rate of $34.65 per hour. This is a rate quoted by Ms Kennedy-Gould in a supplementary report dated 23 October 2006 as the current hourly rate of an agency, Calvary Silver Circle for Home Care (Domestic Assistance). 171 The plaintiff did not give evidence of any intention to change her living arrangements in the future, such that she would require paid domestic assistance. I accept the defendant's submission that in the absence of evidence of any proposed change from gratuitous to commercial assistance and in light of the evidence of the stable household arrangements, the probability is that the status quo will remain for some years. 172 It is necessary for the plaintiff to establish that she passes the threshold of s 15(3) in relation to her claim for future attendant care services, which are likely to be gratuitous attendant care services. 173 Dr Bowers and Dr Millons put the plaintiff's future care needs well below the estimate provided by Ms Kennedy-Gould. As I read both their reports, neither directs attention to Ms Kennedy-Gould's assessment of the plaintiff's needs for assistance with outings to her various appointments and with social activities. In this respect, Ms Kennedy-Gould commented that the plaintiff's intellectual disability and emotional immaturity render her at a distinct disadvantage in dealing with the realities of her situation. It was upon this basis that Ms Kennedy-Gould assessed the need for ongoing emotional support and encouragement. She returned to this topic at p 9.6 of her report, observing that the plaintiff is reliant upon her mother and aunt for encouragement and support in her adaptation to her disabilities and her performance of her daily activities within her capacity, as well as the social interaction and leisure activities. Were this not available, for whatever reason, Ms Kennedy-Gould assessed that the plaintiff would require both domestic assistance and a paid companion carer. The requirements for the services of the carer would include assistance with attending various appointments (visits to general practitioner as necessary, appointments with Ms Rappaport each fortnight, appointments with Dr Jones and other staff at the hospital) amounting to an average of two hours per week. 174 The defendant acknowledged that the plaintiff will require some level of attendant care services of the remainder of her life. In oral submissions it was submitted that her needs were in the range of three to four hours a week (T 255.39). Senior counsel submitted that while she did not pass the threshold of s 15(3) in relation to future gratuitous attendant care, it would be appropriate to make an allowance for, say, three hours per week of paid care at the rate of $35.00 per hour, which would produce a sum of a little over $100,000.00 (T 258.48-54). 175 The defendant pointed to the most recent report of Dr Jones, which did not refer to the need for any attendant care. It was submitted that Dr Jones is a most experienced rehabilitation physician who has been responsible for the care of the plaintiff since not long after the accident. The defendant's concession that some level of domestic assistance was needed was based on the reports of Dr Millons and Dr Bowers and an acceptance of the evidence of Ms Russell and Ms Deri. 176 In the defendant's submission, Ms Kennedy-Gould's assessment was overly generous. Counsel pointed to her allowance for assistance with heavy loads of washing and shopping. It is acknowledged that the plaintiff cannot deal with heavy loads, but it is suggested that, accepting the likelihood that she will remain unemployed, there is no reason that she cannot adapt and shop daily. In similar vein, it is submitted she could attend to her own clothes washing needs on a regular basis, avoiding the necessity for heavy loads. I accept there is some merit to these submissions. However, neither Dr Millons, nor Dr Bowers, appear to have taken into account the plaintiff's need for assistance in attending medical appointments and the like. Neither appear to have taken into account her need, assuming that she is likely to be unemployed, for stimulation to ensure that she participates in social and recreational activities. Ms Kennedy-Gould's assessment is based upon her observations of the plaintiff in the home environment. Ms Kennedy-Gould takes into account the plaintiff's ongoing stump difficulties and problems in continuous use of the prosthesis. I accept that there should be some moderation in the proposed care regime, but I do not consider three or four hours a week to be sufficient. 177 In my opinion, the plaintiff's future care needs require provision for seven hours attendant care per week, comprising both domestic assistance and the carer/companion assistance identified in Ms Kennedy-Gould's report. It is reasonable to consider that these services will be provided gratuitously by Ms Russell and Ms Deri for a number of years. It may be that the plaintiff will form a relationship and live with a partner independently of her mother and aunt, but that is by no means certain. There exists the likelihood that at some time in the future the plaintiff will live independently and require paid attendant care. 178 I intend to make provision for future attendant care on the basis that the services are provided gratuitously at the rate of $20.00 per hour for 15 years and on a paid basis at the rate of $34.65 per hour thereafter.

[78]

Future out-of-pocket expenses 179 Ms Kennedy-Gould recommended that, if in the future the plaintiff is living in her own accommodation, she would require paid property maintenance assistance estimated at one hour per week. Dr Millons also considered that there may be a need for assistance of this type in the future. 180 The cost of property maintenance assistance at commercial rates is given as $35.00 per hour. The plaintiff claims $31,710.00 for this item in the schedule of damages. There is no present need for property maintenance and it does not appear that need will arise while the plaintiff continues to reside with her mother and aunt. My assessment assumes that the current position is likely to obtain for the next 15 years. I propose to allow 1 hour per week property maintenance assistance at the rate of $35.00 per hour for 41 years.

[79]

Out of pocket expenses 181 The parties were agreed that the plaintiff's out of pocket expenses are $66,386.00. Future expenses 182 A number of future out of pocket expenses were agreed:

[80]

● One limb for everyday use with silicon suspension at the cost of $10,042.00 to be replaced every three years, $3,347.00 per annum amounting to a total of $64.35 per week.

[81]

● One waterproof limb for showers and recreation purposes at the cost of $6,050.00, to be replaced every two years $3,025.00 per annum amounting to $58.15 per week.

[82]

● One limb with high heel foot for social events, at the cost of $6,847.00 to be replaced every three years, $2,282.00 per annum amounting to $43.90 per week.

[83]

● Socket replacement to existing modular limbs, to be replaced every 18 months amounting to $85.90 per week.

[84]

● Stump, sock and other requirements at the cost of $237.95 for 30 days only at an amount of $59.50 per week.

[85]

● Attendance upon prosthetist twice per annum at $150.00 per consultation amounting to $5.75 per week.

[86]

183 I will deal with the claims for future expenses that are in issue in turn. 184 The plaintiff claims $60.00 per week for attendance on a psychologist fortnightly at $120.00 per consultation over the next ten years. The defendant queried the basis of this claim by pointing to the evidence of Dr Jones, who in her report of 5 July 2005 observed (at p 2 Q. 8): Regarding Leigh's psyche, she is a very pleasant young woman. We have not discussed her emotional reaction to her amputation in the last few years. She certainly is trying to get on with her life and work out some career. I note the report from the psychologist who described her emotional distress to her amputation. At this stage she is just keen to re-establish a career for herself. 185 A number of reports by Agnes Rappaport were tendered on the plaintiff's behalf. Ms Rappaport commenced seeing the plaintiff for neuropsychological assessment in September and October 2002. She has continued seeing the plaintiff on a regular basis for much of the time since then. In a report dated 11 October 2005 Ms Rappaport said that she had been seeing the plaintiff every two to three weeks as an outpatient. The contact was for disability adjustment relating to the loss of the lower right limb. The issues she identified the plaintiff as dealing with included poor body image, loss of confidence, avoidance of people and places associated with the accident. Ms Rappaport said that the plaintiff has difficulties associated with the fact of the prosthesis, these include feelings of grief over her inability to wear high-heeled shoes or mini skirts and sadness over not being able to, "dance the way I used to". 186 The plaintiff's appearance had been important to her self-confidence and self-esteem. She reports anxieties about her future in finding and maintaining employment and in meeting and keeping a boyfriend, marrying and having children and being able to live independently. Ms Rappaport said that the plaintiff's nightmares experienced since the amputation, had decreased in frequency, but were still occurring. She considered that the plaintiff had made progress in a number of areas and that psychologically she had stabilised. However, in her view, the plaintiff needs ongoing psychological intervention to ensure that her progress is maintained. 187 Ms Rappaport says that the plaintiff's' need for psychological support will increase at the time she is ready to seek employment or work training. She also considered that the plaintiff may find it difficult to start an intimate relationship because of her self-consciousness about her amputated limb. The plaintiff had not been in a relationship with anyone since the amputation. In Ms Rappaport's opinion, the plaintiff needs ongoing psychological intervention to work through these problems. Ms Rappaport anticipated the need for fortnightly, one hourly treatment until such time as the plaintiff has suitable employment and, ideally, is in a stable relationship. 188 Ms Rappaport provided a supplementary report on 24 March 2006. In this report she recorded that she had seen the plaintiff regularly as an outpatient for a total of 26 sessions, until March 2003. Treatment resumed in April 2004 and since that time and the date of the report on March 2006 she had seen the plaintiff every two to three weeks, but sometimes every three to four weeks depending on her availability. As at March 2006, she was seeing the plaintiff approximately every four weeks. She considered that more frequent contact was desirable, but the plaintiff was being seen as a public patient and Ms Rappaport's workload did not permit the additional contact. 189 Ms Rappaport confirmed that the plaintiff has made psychological progress since her amputation, but that she continues to experience high levels of stress and anxiety and, at times, a depressed mood. The plaintiff needed regular contact, ideally every two to three weeks, for the next two years or until her TAFE course is completed and she has been in suitable employment for at least six months. 190 Dr Morse, in his report of 10 February 2005, commented that the plaintiff was continuing to see a psychiatrist (scil. psychologist) once a fortnight and that she appreciated the assistance that this counselling had given her. In Dr Morse's opinion, given the plaintiff's vulnerable state, on-going counselling should continue indefinitely. 191 In a further report, dated 4 April 2006, Dr Morse was asked whether the plaintiff was likely to require regular psychiatric supervision. He commented as follows: I do not consider there is any indication that Ms Russell is suffering from any psychiatric condition that needs psychiatric treatment. She has been attending a psychologist, Ms Rappaport, to talk over her thoughts and feelings, to get some assistance in various areas of her life such as study, activities etc. Given the particular problems are very much related to intellectual handicap, her prosthesis and all the other social and factors in her life I do not consider any particular psychiatric or psychological therapy would be of help. 192 I do not understand Dr Morse to be departing from the view earlier expressed that the regular psychological sessions with Ms Rappaport were of help to the plaintiff and that it was desirable that she continue with them in the indefinite future. 193 Dr Brown, a consultant psychiatrist, assessed the plaintiff on behalf of the defendant. In her report dated 17 January 2006 she recorded that the plaintiff had described a reduced level of self-esteem and confidence. In Brown's opinion, individuals with amputated limbs and those with intellectual disabilities can and do marry. The reported level of the plaintiff's reduced self-esteem did not impress Dr Brown as being contradictory to her long-term goals. Dr Brown noted that the plaintiff had required psychological treatment of a counselling type to assist with the adjustment process. Dr Brown commented that some individuals do require at least several years to undergo a full level of adjustment to their amputee status. In Dr Brown's opinion, the plaintiff is more likely to undergo a slow and gradual improvement and better adjustment to her predicament. 194 Dr Brown concluded her report, stating: In terms of treatment to date, the psychological counselling she has received sounds to have been of an appropriate nature. At this stage of events, very intensive or long-term psychological counselling is likely to be of less benefit and the plaintiff may require a total of a further eight to ten sessions of such treatment over a further several year period. Her pre-existing intellectual disability may limit her from making benefit from more intensive treatment. 195 I consider that it is appropriate to make an allowance for attendance upon a psychologist at fortnightly intervals for a considerable period. Ms Rappaport considered the need would continue until after the completion of the TAFE course and after the plaintiff had settled into employment. She considered the plaintiff would suffer increased anxiety at the completion of the TAFE course in association with her endeavours to obtain and maintain employment. I consider it likely that the plaintiff will not obtain employment and that there will be distress associated with this for a considerable period. In all the circumstances, I consider that the claim for continued psychological assistance for the next ten years is reasonable. I propose to allow the sum of $24,774.00, being $60.00 per week over ten years using the five per cent multiplier. 196 The plaintiff claims $15.00 per week for attendance upon a general practitioner monthly at $60.00 per consultation. The defendant queried the justification for attendances arising out of the plaintiff's injury with this level of frequency, given the contents of Dr Jones' report. 197 Dr Salem, in a report dated 14 July 2005, set out the details of 31 attendances on the plaintiff in the period since 16 September 2002. The problems that Dr Salem identified were stump problems, which it appears had led to a number of consultations. Doctor Salem recorded that the plaintiff had an episode of major depression, the factors accounting for this were identified as phantom limb pains, dependency on strong analgesics, thoughts of hopelessness and despair, concerns about employment and the future. Dr Salem also noted the plaintiff's concerns over her inability to have a relationship with a member of the opposite sex, her isolation, loneliness, boredom and miserable lifestyle. She had been prescribed Zoloft and had responded well to this medication. Dr Salem commented that the plaintiff had "severe and major issues of limb loss for a very conscious female - who has always had high self-pride". In Dr Salem's opinion, the plaintiff's depression will surface intermittently throughout her life for years ahead, and her phantom pain will continue. This is constant, nightly and very distressing, requiring constant Endep 50 mg, Tramal SR 100 mg twice, three times a month. In Dr Salem's opinion, the plaintiff will always need supervision by a medical practitioner and appropriate supportive counselling. 198 I accept that the plaintiff will have a continued need for frequent attendance upon her general practitioner in connection with her physical and psychological state arising out of the injury. Dr Jones has seen the plaintiff on average once every three months in connection with her prosthetic adjustment. The claim made is for attendance upon a prosthetist only twice per year. In the intervals it is reasonable to expect the plaintiff would continue frequent attendances on her treating family doctor in connection with stump problems and associated difficulties. I propose to allow the claim for monthly attendances upon the general practitioner at $60.00 per consultation for the remainder of the plaintiff's life. 199 The plaintiff claims $30.00 per week for painkilling and analgesic medication. The defendant acknowledges some allowance should be made, but submits that this is excessive. I have already referred to Dr Salem's evidence concerning current antidepressant medications. The evidence does not establish the cost of the medications or the frequency with which new prescriptions are required. There is need for painkilling medication, having regard to the phantom limb pains. As I read Dr Salem's report, this will be a problem for the plaintiff throughout her life. It is not clear that she will require ongoing antidepressant medication for the remainder of her life. I consider an appropriate allowance to make is provision for $20.00 per week to cover medications for the remainder of the plaintiff's life. 200 The plaintiff claims for attendance upon a specialist once per month at $150.00 per consultation. Allowance has already been agreed for attendance upon a prosthetist twice per annum. It is not clear that the plaintiff's future needs require specialist supervision once per month. In submissions it was put that: "sores of the stump are going to be dealt with some of the time by seeing a GP and some of the time by seeing a specialist, but on the history to date, which appears at pages 55-56 in exhibit C, Dr Jones says she has been seeing the plaintiff, on average, once every three months. We are only claiming half that, but what that does, in turn, is support other medical practitioners supplementing Dr Jones' assistance" (T 275.8-19).

[87]

I infer from this that the agreed figure of attendance upon the prosthetist twice per annum is to Dr Jones or her successor. The evidence does not demonstrate the need for specialist attention in addition to these attendances. I do not propose to make any allowance for attendances upon a specialist beyond the allowance on which the parties have agreed for twice yearly attendance on the prosthetist. 201 The plaintiff claims for weekly physiotherapy and hydrotherapy sessions. The defendant submitted there was no evidence of the need for this item. Counsel for the plaintiff pointed to the report of Dr Salem dated 16 September 2002. In that report, Dr Salem observed "physio rehab always been official". Reliance was also placed on Dr Jones report of 25 September 2002, in which she stated that the plaintiff would require physiotherapy if she received her flex foot and the iceross socket. This would be three times a week for a month. Both these expressions of opinion related to the plaintiff's need for physiotherapy in late 2002. I was not directed to any evidence concerning ongoing need for physiotherapy or hydrotherapy. I do not propose to make an allowance for this item. 202 The plaintiff claims $22,356.00 being $22.00 per week for the remainder of her life to cover travel to medical appointments. The defendant submitted this figure was too high. As I have indicated, I accept that the plaintiff will require ongoing treatment by a general practitioner throughout her life as the result of her injury and that for a lengthy period she will require to attend on a psychologist for counselling. Nonetheless, the figure of $22.00 per week to cover travel expenses for the remainder of her life is, in my view, excessive. I propose to allow a figure of $10,000 on this account. 203 A number of claims for equipment are made based on the report of Ms Kennedy-Gould: · Shower stool with arms and adjustable height legs at the cost of $99.90 to be replaced every five years. · Folding shower chair for use when the plaintiff is away from home at the cost of $148.50 to be replaced every ten years. · Kitchen stool with arms at the cost of $253.00 to be replaced every ten years. · Upright vacuum cleaner at the cost of $799 to be replaced every ten years. · Long-handled cleaning equipment at the cost of $100.00 to be replaced every two years. 204 The defendant submitted that the proper approach was either to allow the plaintiff the equipment costs or her claim in relation to future attendant care, but not both. In my view it is appropriate to allow for the equipment costs as claimed. The need for the shower stools and kitchen stool are self evident. It is true that the attendant care will provide for the bulk of her vacuuming needs and the need to access high cupboards. However, she should have equipment that enables her to do as much as she can. Dr Millons, the defendant's expert, recommended the long-handled equipment.

[88]

205 The final disputed item of future out-of-pocket expenses was for home modification. Ms Kennedy-Gould recommended that the bathroom at the plaintiff's home be modified to provide a hob less shower area with space for a shower chair, a rail for a weighted shower curtain, grab rails, non-slip floor tiles and a hand shower on an adjustable rail. The cost of such work is put at $15,000. I propose to make an allowance in that amount for modifications to the bathroom at the plaintiff's home.

[89]

206 For these reasons there will be a verdict for the plaintiff against the defendant. The plaintiff's damages will be reduced by 50 percent by reason of her contributory negligence. The proceedings may be re-listed by arrangement with my Associate on three days notice for submissions on the question of fund management. The parties may bring in a schedule with calculations, in conformity with these reasons, of the sums that require adjustment to the date of judgment together with interest.

[90]

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

Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation

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