[10] Before turning to decide any of the issues relating to liability, it is necessary to make some factual findings relevant to questions of both liability and quantum which form the background to a number of the issues in this case.
[11] The plaintiff was born on 4 August 1966 at the Royal Northshore Hospital, Sydney. According to the plaintiff's mother, Geraldine Renehan, it was a difficult birth with a forceps delivery. A neuropsychologist, Mr Mark Reid, concluded in 2002 that the plaintiff had been "intellectually handicapped" since birth. The level of her handicap was described by Mr Reid as "below average intellectual ability, at the bottom of the 'borderline' range". Ms J Delahunty, a psychologist, reached a similar conclusion in March 2000.
[12] The plaintiff's father died when she was only two years of age. For a period, Mrs Renehan raised the plaintiff and her younger brother on her own. She eventually married again, but this marriage was short lived and resulted in divorce. At this time, Mrs Renehan and her second husband were living in Mandurah, Western Australia. After her divorce, Mrs Renehan met her present husband, Brian Renehan. After living together for a number of years, they became married in 1988. They lived in Western Australia at Mandurah until they moved to Alice Springs in December 1985. By this time, the plaintiff had met her future husband, Gordon Ronald Barndon. The plaintiff and Mr Barndon married in October 1987. By this time, the plaintiff and her husband had moved to Lockridge, Western Australia.
[13] On 12 April 1990, the plaintiff gave birth to her son, Gordon Jnr, at Swan District Hospital. On 19 April 1990, the plaintiff was transferred to Heathcote Hospital where she was admitted to the Psychiatric Unit. She was diagnosed as having a bi-polar affective disorder with psychotic features. She received anti-depressants, major tranquillisers and lithium, but did not respond well until she had a course of electro-convulsive therapy (ECT). She was discharged on 16 June 1990, but relapsed and was re-admitted on 26 June 1990. She received further ECT and was discharged on 15 August 1990. Shortly thereafter, the plaintiff told her husband that she wanted to go to Alice Springs for a holiday and stay with her parents. It was arranged that she would be collected by her mother. The baby remained with Gordon Barndon who had the support of his parents.
[14] The plaintiff did not return to live with her husband. In 1990 or 1991, proceedings were commenced between the plaintiff and her husband, which resulted in divorce in October 1991. Custody of the child was granted to Mr Barndon. There were no immediate arrangements made for access, although consent orders for access were made by the Family Court of Western Australia on 5 May 1994.
[15] According to Geraldine Renehan, when the plaintiff arrived in Alice Springs in August 1990, she was in a trance-like state where she needed constant direction and reminding in order to do things for herself and during the plaintiff's "recovery period" which lasted for about two years, it was necessary to re-teach the plaintiff many of her life-skills, such as how to use money and how to cook and prepare a simple meal. During this period she was taking certain prescribed drugs under the care of her general practitioner, Dr Mark Young, to control her condition, but she kept getting relapses and was referred to a psychiatrist, Dr Kyaw, who changed her medication to Fluphenazine 3 milligrams at night. She saw Dr Kyaw on a number of occasions between 5 December 1990 and 5 May 1992. In May 1992, she returned to the care of Dr Young who thereafter maintained her condition on a low dose of Fluphenazine. She also saw Dr Kyaw again on three occasions between September and November 1992, who noted that she was stable. There were no further relapses in her condition prior to her accident on 12 June 1996.
[16] So far as the plaintiff's schooling is concerned, the plaintiff had learning difficulties which her mother noticed at the time she was attending primary school. After she left primary school, she attended a special class at Pinjarra High School because she had difficulty with learning. Subsequently her parents moved her to Mandurah High School.
[17] When she was about 14, the plaintiff became interested in horses and worked with a friend cleaning stables for a few weeks.
[18] The plaintiff left school about half way through Year 10 or towards the end of Year 10 when she was about 15 years old to go to Alice Springs with a friend, Leanne Miller, whose parents had a cleaning business in Alice Springs. She was employed by the Millers for a short period cleaning offices and public buildings. After that, she returned to Mandurah to live with her parents. This I find was in about 1982. Thereafter she was in receipt of unemployment benefits and had irregular work as a kitchen hand at the Atrium Hotel in Mandurah and as a stable hand. It was whilst working as a stable hand for Pateman's at Mandurah that she met Gordon Barndon. After she started living with Gordon, she gave up her work as it was too far to travel each day, although she did do volunteer work at a centre for disabled children in Coolbinia, just north of Perth, for a day or so each week. This lasted for about three months. Apart from volunteer work, the plaintiff was not employed during the period of her relationship with and marriage to Mr Barndon. She did, however, do a 17 week course conducted by the Education Department of Western Australia resulting in a Childcare and Development Certificate which she obtained in November 1986. On 26 September 1994, after she returned to Alice Springs, she also obtained a Senior First Aid Certificate from St John Ambulance Australia.
[19] After returning to Alice Springs in 1990 to live with her parents, the plaintiff was in receipt of benefits under the Social Security Act 1991 (Cth). After she recovered from her psychiatric illness, she began casual employment, childminding and doing some ironing work. The plaintiff's evidence on this subject relating to the period during which she did this work is very confusing. It was over a period of some months, probably at least seven months: Ext P9, pp 31-33. She received between $5.00 and $10.00 an hour for childminding and she charged $20.00 to $30.00 a basket for ironing. Apart from that, the plaintiff worked as a volunteer at the Gap Neighbourhood Centre doing childcare work for a couple of mornings a week.
[20] In late 1994, the plaintiff, and Mr and Mrs Renehan moved back to Mandurah. One of the reasons why the plaintiff wanted to return to Mandurah was to exercise her access rights to her son. Apart from assisting in some cleaning work at a caravan park in exchange for free rent, she was unemployed during this time. In 1995, she undertook some courses at the Metropolitan College of TAFE at Mandurah and obtained some certificates in a course "General Education for Adults (Foundation)" in Oral Communications Level 1, Reading and Writing Level 1, General Curriculum Options Level 1 and Numerical and Mathematical Concepts Level 1 in December 1995. Mr and Mrs Renehan returned to Alice Springs to live in mid 1995. The plaintiff lived with Brian Renehan's mother until the latter half of 1995 when she also returned to Alice Springs.
[21] In December 1995 the plaintiff secured some work with St Mary's Family Services. She was employed on a casual basis mainly working with disabled children following an interview with Ms June Clothier on 30 November 1995. Ms Clothier was the Programme Manager of Adult Services of St Mary's, now known as Anglicare. During the period thereafter until she went to Darwin in June 1996 to join the Leeuwin, the plaintiff continued to work on a casual basis for St Mary's. An analysis of St Mary's records indicates that, during the period between December 1995 and June 1996, the plaintiff worked a total of 216.5 hours at an hourly rate of $14.33 plus extra allowances for occasional broken shifts and sleepovers.
[22] St Mary's Family Services had accommodation at three houses located in the community as well as houses for children located on campus and known as Blue House and Grey House. Most of the plaintiff's employment was at Blue House, which was a home for children with high-level needs. Most of these children were wheelchair bound and non-vocal with multiple physical and intellectual disabilities. There were five or six children at Blue House. Each morning the children had to be gotten out of bed, dressed, breakfasted and made ready for school. This involved helping them to brush their teeth, comb their hair, giving medication as directed and assisting them onto the school bus. Sometimes the plaintiff rode with them on the bus to help them off the bus when it arrived at school. The plaintiff would then clean the house and attend to cleaning, washing and food preparation duties. When the children returned in the afternoon she would assist the children off the bus, get afternoon tea, prepare and serve the evening meal and assist getting them ready for bed. The plaintiff usually worked from 6:30 to 9:00 am and from 3:30 to 8:00 pm. The plaintiff worked with another worker on each shift. There was a fair amount of heavy lifting involved.
[23] The plaintiff did not have a driver's licence and had never learned how to drive a motor vehicle. Her evidence was that she was told that she needed a licence to obtain permanent work at St Mary's and so she obtained her Learner's Permit and, through the Commonwealth Employment Service (CES), undertook driving lessons. She had not finished the driving course by the time of her accident and still does not have a driver's licence.
[24] Because her work with St Mary's was casual, she was still receiving Social Security benefits, particularly during the weeks she was not earning any income. Shortly after arriving in Alice Springs, the plaintiff attended at the offices of the CES where she was interviewed by Ms Tracey Nuske, who was then the case management liaison officer for Alice Springs. The plaintiff filled out a "Questionnaire for Client Classification Level Seminar" as part of what was called a "case management referral interview". The plaintiff was then referred to a private company, Central Australian Group Training Company, for case management. However, that company ceased operations in Alice Springs and in March 1996, Ms Nuske became the plaintiff's case manager. By this time Ms Nuske had been transferred to Employment Assistance Australia (EAA) which was part of DEET.
[25] Case management was intended to provide intensive assistance to long term and specially disadvantaged unemployed job seekers to find employment. The plaintiff qualified for case management as she had been unemployed and in receipt of unemployment benefits for longer than 12 months.
[26] On 20 February 1996, LOAF entered into an agreement in writing with the Commonwealth acting through DEET to provide "assistance" to persons referred to LOAF by the CES (i.e. DEET) and who were eligible for assistance under a Special Intervention Program administered by DEET. The agreement was varied by a further agreement in writing dated 18 April 1996. The Agreement as varied will be referred to as "the One Off Agreement". Under the terms of that agreement the Department agreed to, in effect, charter the Leeuwin for two voyages, for what is described as a "set fee". One of those voyages was to be a voyage departing Darwin on 10 June 1996 and arriving back in Darwin on 20 June 1996 (the voyage). It is not easy to find a clear statement in simple English of exactly what the parties contemplated, as the One Off Agreement does not appear to have been drawn up by a person with legal training, but rather has been cobbled together with various attachments all of which form part of the contract. However, it appears that the parties contemplated that persons referred to LOAF to join the voyage would act as volunteer trainee crew on the vessel and undergo sail training sufficient to enable them to sail the vessel themselves albeit under the supervision of the Leeuwin's officers and crew members. The purpose of this was to help the trainees "mature and develop in areas of self-esteem, discipline, teamwork and good citizenship". The Commonwealth saw this form of training as a means whereby long-term unemployed could gain self-esteem and self-confidence and experience team-building which it was hoped would better equip them to find employment. Information concerning the availability of the voyage was distributed to case managers, including Ms Nuske through her supervisor, Ms Tahnee Turner.
[27] On 26 March 1996, Ms Nuske sent to the plaintiff a letter and a brochure through the mail. Neither the original letter nor a copy of it can now be found. The substance of the letter was that it told the plaintiff that the voyage was coming up and that if she was interested, she should attend an information session to be presented in the Alice Springs DEET office. In late March 1996, the plaintiff had an appointment with Ms Nuske to attend a case management assessment interview. The plaintiff missed her appointment and a new appointment was arranged for 3 April 1996 which she did attend. The interview lasted about 50 minutes. An Assessment Form was completed and a "Case Management Activity Agreement" was signed by the plaintiff. These documents have not been located.
[28] The "information session" was held at DEET's office in Alice Springs on 13 May 1996. It was attended by the plaintiff as well as a number of job seekers, by Ms Tahnee Turner and, at the commencement, by Mr Anthony Yoffa, who gave a brief introduction but then left. Mr Yoffa was DEET's Alice Springs manager. He informed the job-seekers present that it was not compulsory for any of them to go on the voyage; it was being offered for those who were interested and anyone who was not interested was free to leave. He then introduced Mr Neil Burr, LOAF's business manager who made a presentation to those assembled, including the playing of a video "Lure of the Leeuwin", but with the volume down so that all could see the vision and listen to his explanation of it. At the end of the session the evidence of Mr Burr is that he conducted individual one-on-one meetings with each of the potential participants to enable them to ask questions. According to the plaintiff, there were two information sessions with Mr Burr, but I consider that she is mistaken and find that there was only one. The plaintiff was given a Participant Manual which contained information about the ship, the voyage, what to bring, basic nautical terms and information concerning knots and rope work.
[29] The plaintiff also completed and signed two other documents which were provided by LOAF: (1) a Medical Information Form dated 13 May 1996; and (2) a Reservation Form also dated 13 May 1996. It will be necessary to discuss these forms and the circumstances under which they were filled out in more detail later. Both forms were sent to LOAF and ultimately both forms were sent to the vessel and read by the Chief Officer (First Mate), Nicolas Cole.
[30] On 30 May 1996, the plaintiff signed a further Case Management Activity Agreement prepared by Ms Nuske, which related to her participation on the voyage. This is the "agreement" which, it is alleged, formed the contract between the plaintiff and the Commonwealth and upon which the plaintiff has sued. The plaintiff undertook to "attend, fully participate and complete the Leeuwin Ocean Adventure Foundation Ltd" from 8 June to 21 June 1996.
[31] The plaintiff travelled from Alice Springs to Darwin by bus, arriving on the afternoon of Sunday 9 June 1996. She embarked on the Leeuwin that evening. The cost of the bus fare and of the voyage was met by the Commonwealth.
[32] At the time of joining the Leeuwin the plaintiff was 29 years and 10 months old. She weighed 98 kilograms, more than about 35 kilograms above her ideal weight. She presented to most people as pleasant and easy-going. She had no previous experience on a sailing ship. She had never worked at heights. She had no experience of any kind with gymnastics or adventure activities. Ms Nuske described her as a "lovely person, overweight, easy to talk to". Nothing in the interviews with her gave her any indication that the plaintiff was abnormally below average intellectual capacity. The plaintiff's supervisor at St Mary's, Ms Broadbent, described her as a "mild mannered person on the quieter side, but that she was not shy or unfriendly... she seemed very willing to please... she was very gentle natured... [She was]... good, competent, hardworking and genuine..." She agreed that the plaintiff was not usually her first choice when she needed a casual because she needed more direction and supervision than other casuals although, not a lot more. Ms Clothier, also from St Mary's, noticed that the plaintiff did not have much education and required a lot of input from her supervisors "as she seemed to have some difficulty in learning new procedures". Her former husband, Mr Barndon, was unaware that the plaintiff had "any brain impairments" and was shocked when told about this by the plaintiff's mother. His evidence was: "I would not have known that Tracey had some intellectual impairment had Gerry (Mrs Renehan) not told me". In the short time the plaintiff was on the vessel, her watch leader, Ms Bale said that the plaintiff did not appear to her to have an intellectual disability, although she was "quite heavy", "a little unfit" and "did things slowly" and appeared to be "quite reserved and introverted" and "insecure" and lacking in confidence. The mate, Mr Cole, was told that the plaintiff was "not quite right" and "a bit slow", as a result of which he spoke to the plaintiff. His impression of the plaintiff was that she appeared "quite immature, possibly a bit childlike... she came across as someone of about 13 or 14 years of age..." yet he thought her capable of coping with the program. Ms Ruth Sandow, an employee of DEET who went on board the vessel as a sail trainee as part of her duties with DEET, said that she had several conversations with the plaintiff on the voyage and that she did not think that the plaintiff was mentally slower than the other trainees - she appeared to be about average. She said that the plaintiff was "capable of holding a conversation at a reasonable level and she was quite talkative". She was not cross examined on this part of her evidence. The second mate, Kristi McMullan, claims not to have spoken to the plaintiff before the accident, but remembers her as "standing back a bit" and "perhaps, shy or reserved and self-conscious". Michael Baker, then an unemployed 16 year old from Tennant Creek, spoke to the plaintiff on a few occasions prior to the accident. He said that the plaintiff did not appear to be intellectually disabled or "slow" - she just seemed shy. On the basis of this evidence, I am unable to find that the plaintiff was obviously intellectually handicapped or of low intelligence to an observer who did not get to speak to her on more than a few occasions (nor did she give me that impression when giving her evidence), although some persons might have reached that, or a similar conclusion, as in the case of Mr Cole.
[33] On the first day on board the Leeuwin, the plaintiff's evidence is that she went to see the nurse to give to her the plaintiff's Fluphenazine tablets. She did this because, on one of the forms, it said that any medication should be given to the nurse. The Participant's Manual States: