Russell v Rail Infrastructure Corporation - [2007] NSWSC 402

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

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

JUDGMENT DATE :
30 April 2007

JUDGMENT OF: Bell J at 1

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.

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

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

CASES CITED: 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
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

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 / P. Perry (Plaintiff)
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

Monday 30 April 2007

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

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 402
Decision Date: 30 April 2007

CaseChat Overview and Summary

In the Federal Court, Russell sought damages from the Rail Infrastructure Corporation for injuries sustained when he was struck by a train. The incident occurred when Russell, who has an intellectual disability, walked onto the railway tracks at night, through a gap in a fence. The Rail Infrastructure Corporation argued that it was not liable, as Russell's contributory negligence and intellectual disability meant that it owed him a lesser standard of care. The court was required to determine the standard of care owed to an intellectually disabled person in this context, and whether the Rail Infrastructure Corporation breached this duty. It was also required to assess whether Russell's actions were so negligent as to contribute to his injuries, thereby absolving the corporation of liability.

The court considered the principles established in previous cases, including those involving intellectually disabled plaintiffs. It found that the Rail Infrastructure Corporation owed Russell a duty of care, commensurate with the risks inherent in its management of the rail infrastructure. The court held that the corporation had breached this duty by failing to maintain the fence, which should have prevented access to the tracks. Furthermore, while Russell's contributory negligence was a factor, the court determined that it did not absolve the corporation of liability. The court concluded that the corporation's negligence was a significant contributing factor to Russell's injuries.

The court ordered the Rail Infrastructure Corporation to pay damages to Russell, reflecting the extent of his injuries and loss. The amount was reduced to account for Russell's contributory negligence. The court emphasised the importance of maintaining safe infrastructure to protect all members of the public, including those with disabilities. It also highlighted the need for authorities to consider the specific vulnerabilities of intellectually disabled individuals when assessing the standard of care owed to them. The decision underscored the obligation of statutory authorities to ensure that their infrastructure does not pose unnecessary risks to the public.

Orders