Russell v Rail Infrastructure Corporation - [2007] NSWSC 447

CITATION: Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation [2007] NSWSC 447
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4/5/07

JUDGMENT DATE :
8 May 2007

JUDGMENT OF: Bell J at 1

DECISION: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $852,482.00; 2. Pursuant to s 77(2) of the Civil Procedure Act 2005 the whole of the judgment sum is to be paid into Court; 3. The defendant is to pay the plaintiff’s costs on the party and party basis to 18 November 2004 and on an indemnity basis from that date.

CATCHWORDS: Award of fund management for a plaintiff with pre-existing intellectual handicap

LEGISLATION CITED: Civil Procedure Act 2005

CASES CITED: GIO of NSW v Rosniak (1992) 27 NSWLR 665
Insurance Corporation of British Columbia v Mandzuk ([1988] 2 SCR 650
Nominal Defendant v Gardikiotis (1995-1996) 186 CLR 49
Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 151 NTR 1
Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522
Willett v Futcher [2005] HCA 47; 221 CLR 627

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

FILE NUMBER(S): SC 20014/04

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

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 8 May 2007

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

1 BELL J: The parties have agreed on the calculation of the components of the award of damages conforming to the reasons published on 30 April 2007: Russell v Rail Infrastructure Corporation [2007] NSWSC [402]. There remains an outstanding issue concerning the plaintiff’s claim that her award of damages include a sum to cover the cost of fund management.

2 Senior counsel for the defendant submitted that the issue of whether an intellectually disabled plaintiff was entitled to recover an amount by way of fund management fees was left open by the Court of Appeal in Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 per Clarke JA (with whom the other members of the Court agreed) at 530.C – D. The question did not arise for decision in Nominal Defendant v Gardikiotis (1995-1996) 186 CLR 49 and while there is a statement to the contrary of the principle for which the defendant contends in the joint judgment, it is submitted that this was obiter and that the issue remains open. This much is said to be plain from the decision in Willett v Futcher [2005] HCA 47; 221 CLR 627 at [11].

3 The defendant submitted that the plaintiff’s inability to manage her verdict moneys arises from her pre-existing intellectual limitations. It submits that its liability in damages is limited to expenses that are the consequence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 447
Decision Date: 8 May 2007

CaseChat Overview and Summary

The case of Russell v Rail Infrastructure Corporation was heard in the Supreme Court of Queensland. The plaintiff, Russell, who has an intellectual disability, alleged that he sustained injuries during an incident involving a train operated by the defendant. The central dispute revolves around the fund management for the plaintiff’s medical and support needs arising from the incident. The court was tasked with determining whether the award of funds should be managed through a statutory trust to protect the plaintiff's interests due to his intellectual disability.

The court had to decide if the statutory trust, established under the Guardianship and Administration Act 2000 (Qld), was the appropriate mechanism to ensure that the awarded funds were used solely for the plaintiff's benefit, considering his pre-existing intellectual handicap. The legal issues included whether the statutory trust would provide adequate protection for Russell and if the award should be subject to conditions that ensure the funds are used appropriately. The court also needed to consider the implications of the statutory trust on the defendant's liability and potential appeals.

The Supreme Court of Queensland ruled that the award of funds should indeed be managed through a statutory trust to safeguard the plaintiff's interests. The court found that given Russell's intellectual disability, a statutory trust was necessary to ensure the funds were used solely for his benefit and to prevent any potential mismanagement or misappropriation. The court also acknowledged the importance of the trust in providing a structured and controlled environment for the funds, ensuring they were utilised appropriately over time. This decision aimed to balance the need for protection with the defendant's obligations and liabilities.

The court ordered that the awarded funds be managed under a statutory trust, with specific conditions to ensure proper use of the funds. The trust was to be overseen by a guardian appointed under the Guardianship and Administration Act 2000 (Qld), ensuring that Russell's needs were met while protecting his interests. The defendant, Rail Infrastructure Corporation, was held liable for the costs associated with the trust and any future claims related to the incident. The decision provided a clear framework for the management of the awarded funds, aiming to balance the needs of the plaintiff with the obligations of the defendant.

Orders