Vance v State Rail Authority - [2004] FMCA 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VANCE v STATE RAIL AUTHORITY

[2004] FMCA 240

HUMAN RIGHTS – Disability discrimination – provision of public transportation services to sight-impaired applicant – where applicant claims she was attempting to board train when doors were closed upon her without warning – whether applicant suffered indirect discrimination – whether the respondent imposed a condition that passengers board trains within 5-10 seconds – whether respondent vicariously liable under DDA for actions of employee – whether respondent took reasonable precautions and exercised due diligence to avoid such conduct by employees – whether Court has jurisdiction to hear common law claim relating to negligence – whether there was negligence on part of employee – whether respondent vicariously liable for negligence of employee – whether applicant should be awarded damages under CLA – whether psychiatric injury reasonably foreseeable – whether applicant meets 15% most extreme case threshold.

Disability Discrimination Act 1992, ss.4, 6, 12, 24(1)(c), 123(2)
Civil Liability Act 2002 (NSW)

Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations in Resolution 3447(XXX) (1975)
PH Lane, Lanes Commentary on the Australian Constitution (1986)

Souliotopoulos v Latrobe University Liberal Club [2002] FCA 1316
McKenna v State of Victoria (1998) EOC 92-927
Hopper v Mt Isa Mines [1999] 2 Qd R 496
Gray v State of Victoria and Pettiman (1999) EOC 92-996
Evans v Lee & Anor [1996] HREOCA 8
Korczak v Commonwealth of Australia (2000) EOC 93-056
Styles v The Secretary of Department of Foreign Affairs and Trade (1998) 84 ALR 408
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Waters v Public Transport Corporation (1991) 173 CLR 359
Moorgate Tobacco v Philip Morris (1981) 45 CLR 457
Burgundy RoyaleInvestments Pty Limited and Others v Westpac Banking Corporation and Others (1987) 18 FCR 212
Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82
Jones v Commonwealth of Australia [2000] NSWSC 293
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509
Wales v Lepore (2003) 77 ALJR 558
Scott v Davis (2000) 204 CLR 333
Elna Australia Pty Limited v International Computers (Australia) Pty Limited (1987) ATPR 40-795
Dortea Pty Limited v Vancleve Pty Limited (1987) ATPR 40-807
CFR v Cook; Ex parte Twigg (1980) 145 CLR 15
Glass v State of New South Wales (1994) 52 FCR 336
Uniland Holdings Pty Limited v Kerrin (1993) 44 FCR 481
Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121
Ah Tong v Wingecarribee Council [2003] NSWCA 381
Wyong Shire Council v Shirt (1980) 146 CLR 40
Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Jaensch v Coffey (1984) 155 CLR 459

Applicant:

ALICE VANCE

Respondent:

STATE RAIL AUTHORITY

File No:

SZ 1723 of 2003

Delivered on:

3 May 2004

Delivered at:

Sydney

Hearing dates:

9 & 10 February 2004
5 April 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr S Beckett

Solicitors for the Applicant:

Macarthur Legal Centre

Counsel for the Respondent:

Ms K Eastman

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application, in so far as it consists of a claim under the Disability Discrimination Act for declarations and damages, is dismissed.
The respondent pay to the applicant the sum of $5,000.00 by way of damages for the economic loss suffered by the applicant as a result of the respondent’s negligence.
The Court will hear the parties as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1723 of 2003

ALICE VANCE

Applicant

And

STATE RAIL AUTHORITY

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant seeks a declaration from the court that the respondent indirectly discriminated against her on the grounds of her disability in the manner in which it provided her with transport services contrary to ss.24(1)(c) of the Disability Discrimination Act 1992 (the “DDA”). Section 24(1)(c) is in the following form:
“24(1)(c)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.”
The form of discrimination which is alleged is that form described in s.6 of the DDA which is in the following terms.
“[6] For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”
Particulars of the requirement or condition are contained in paragraph 12 of the Amended Points of Claim filed in court on 10 February 2004 and are in the following form:
“[12]The respondent required the Applicant to comply with a requirement or condition on 8 August 2002.
Particulars
(a)That in order to travel on the 11.50a.m. train on 8 August 2002 operated by the Respondent any intending passenger at Leumeah Station had to board the train within the short period of time provided by the Guard on the said train.
(b)That in order to travel safely on the 11.50a.m. train on 8 August 2002 operated by the Respondent any intending passenger at Leumeah Station had to enter the train doors promptly which may close without warning.”
In her written submissions the applicant concentrated on particular (b) although she did not abandon particular (a).
As an alternative to the claim pleaded above the applicant sought to invoke the accrued jurisdiction of this court to make a claim in negligence that the respondent owed the applicant a duty of care which it breached when the applicant, a woman with impaired vision, was attempting to board the train and was prevented from doing so because the guard allowed her insufficient time to board and closed the doors and took the train out of the station without warning. The action of the guard required the applicant’s carer to pull her back from the train door causing her shock which has led to the more serious psychological impairment described in these reasons.
The factual matrix surrounding these allegations is described below in the evidence of the witnesses. The proceedings raise complex issues concerning the definition of disability discrimination, the jurisdiction of this court in relation to accrued matters, the relationship of the claim with the Civil Liability Act 2002 (NSW) (the “CLA”) and the assessment of the applicant’s damages.

Evidence

The applicant

Mrs Vance gave evidence as from an affidavit sworn on the 22 August 2003 to which there was attached a statutory declaration sworn by her on the 21 October 2002. She is a 59 year old woman who has impaired vision due to diabetic retinopathy. She has been slowly losing her sight since 1996 and can now only see about 3 metres in front of her. She is unable to see very much from the side and has little depth of vision due to what is popularly known as ‘tunnel vision’. She uses a white cane and has had training for unsighted people from the Guide Dogs Association and the Royal Blind Society. Her husband, Stan, is her carer. He travels with her on her almost weekly train journeys.
On Thursday 8 August 2002 Mrs Vance and her husband sought to travel from their home to Liverpool to make a hospital booking for an upcoming knee operation. They proposed to depart from Leumeah Station which is the station nearest their home. They usually utilise Leumeah Station and were familiar with it. The applicant stated that they parked in the car park and proceeded in the rather convoluted way required to the appropriate platform. This involved going into 2 lifts and in respect of the applicant walking on a ramp onto the station. Her husband took stairs onto the station and arrived very shortly before her.
Some photographs of the station were provided by the respondent and are Exhibit 1 in these proceedings. The applicant identified the area at which she stopped waiting for the train as being almost outside the toilet facilities adjacent to the station manager’s office and ticket office. The applicant did not have to buy a ticket as she had a pass. Her husband held a carer’s pass.
The station was not crowded. Mr Vance joined his wife and stood behind her. A train came in very shortly after they arrived and they moved towards the door. The position at which they boarded the train was one which they had been advised to take up by the Royal Blind Society as being near the guard’s carriage. In her affidavit the applicant stated that she waited for about 2 people to alight from the train and then began to measure the distance between the station platform and the entrance with her white cane in order to step into the train. She said that very suddenly the door closed as she was touching the tip of the entrance to the train with her cane. She said there was no warning and no whistle blowing. Her husband pulled her back and the train sped off. The applicant held a bag in her left hand and her cane in her right. She said she had her left hand on the door to steady herself. The distance between the part of the station where she was standing and the train doors was described by the applicant as being only a few paces. She thought that her husband was on her left but slightly behind her. She was nearer the train than he was.
The respondent put to Mrs Vance that the train which she boarded was a Tangara. Mrs Vance did not believe it was. There are several photographs in exhibit 1 of a train in a station. This is one of the familiar anodised aluminium cladded trains called ‘silver cars’. Mrs Vance thought that this was the type of train she got on. She thought she got on to the second carriage from the back. She did not see the guard or the guard’s blue light. She recollected a fully open door and said that she was looking straight through the door to the carriage. She did not recall hearing any beeps or the guard saying “stand clear”. When the door began to close suddenly upon her, her husband grabbed her by her shoulder. At that time she was not in the carriage, nor was she caught between the doors.
Mrs Vance deposed to having received a very severe shock from this incident. Her husband went off to complain whilst they waited for the next train. She did not want to get on the next train but her husband insisted. She eventually did so. Since that time getting on a train has become a nightmare for her. Indeed she suffered from nightmares for quite a period of time and sought medical advice. The nightmares always involved getting on a train, often with her grandchild.
At the time her affidavit was sworn, the applicant was still suffering seriously from the effects of the incident. However, under cross-examination she readily agreed that things had improved. She was cross-examined in some detail about her symptoms after the incident. In particular her consultations with various doctors at Macarthur Health Centre. I found all of the applicant’s evidence credible and convincing. She did not try to resile from statements made about her condition that were put to her but she did dispute that she had told Dr Wong or Dr Edwards that she was caught between the doors. This may have been misunderstood by Dr Wong and then reported by him to Dr Edwards. I most certainly do not believe that the applicant has attempted to mislead the doctors or exaggerate her problems or their cause. The applicant is on medication for depression which she says is of considerable assistance. She is still anxious about getting on to trains but very much less so than she was.

Mr Vance

Mr Vance also gave evidence based upon a statutory declaration sworn by him on 21 October 2002. On 5 January 2004 he swore an additional affidavit in which he stated that the applicant and himself were the only two people attempting to board the train at the time and that there were no passengers alighting from the train or present on the platform who would have obstructed the guard’s view of the applicant and himself when they were attempting to board the train. He also stated that the applicant and himself were not taking any additional time to board the train than on other occasions when they had successfully boarded the train.
Mr Vance generally corroborated the evidence of his wife although it is fair to say that there was some confusion about which side of her he was standing on and whether or not his wife was holding on to the door of the train or a rail which is positioned next to the door. Mr Vance, 69 years of age, admitted that he had not received very much education. He had difficulty telling his left from his right. I am satisfied that the discrepancies between his evidence and that of his wife are not such as to indicate any collusion on either of their part. Indeed, it would be of greater concern if their stories dovetailed exactly.
Mr Vance, as his wife’s carer, considered it his duty to ensure that she got on to the train safely. For that reason he guided her to a carriage which was near that of the guard. He said that he looked towards the guard and he believed that the guard was looking in his direction. He did not think that the guard noticed them. He adduced this from the fact that the doors closed so quickly after they had been opened. Like his wife, Mr Vance did not hear any warning given mechanically or orally.
Mr Vance deposed to the fact that after the incident, which severely upset his wife, he went off to the station manager’s office to make a complaint. He later wrote to State Rail and a copy of his letter and a copy of State Rail’s reply were exhibited to his wife’s affidavit and identified by him. Mr Vance submitted that he considered it was very important that he made his wife get on the next train after the incident. He believed that if he did not make her get on the train she would never get on another train. She was reluctant to do so but eventually did. Under cross-examination Mr Vance explained how he got onto the platform shortly after his wife, how he looked up to see what time the train was coming in and as he did so noticed the train some distance away along the line. He then went back to his wife and told her that the train was coming. He guided her towards the train after it had entered the platform in the near vicinity to the place at which they had been standing.
Mr Vance was asked about whether he spoke to possible witnesses or tried to get hold of the CCTV tape of the incident. He did not. But this is not unexpected. On the day of the incident the applicant and her husband did not necessarily anticipate proceedings being brought. Mr Vance seemed more concerned at comforting his wife and ensuring that she caught the next train. Mr Vance was also questioned about his wife’s condition. Like her, he agreed that the condition had improved but stated that it was no where near as good as it had been prior to the incident. He noted that she was not frightened of travelling on trains but was frightened of getting onto trains.

Dr Dinnen

Dr Dinnen is a consultant psychiatrist who provided a report upon the applicant at the request of her solicitors. Dr Dinnen obtained a history that the applicant was in the process of using her stick to measure the gap and the height of the train relevant to the train platform prior to boarding the train when the doors started to shut without warning. Her husband pulled her back and she experienced a fright. The applicant told him that as the train pulled out her husband called out to the guard on the train “Didn’t you want us on the train?” and he replied fading into the distance “Sorry”. The applicant told Dr Dinnen that about two weeks later she went to her general practitioner, Dr Wong, for sleeping tablets because she was having nightmares. Dr Wong had referred her to the Macarthur Health Service but although she went there she was concerned that every time she went there she saw somebody different. The Macarthur Health Service had provided her with a diagnosis of post traumatic stress disorder and later with depression. She had been placed on the anti-depressant drug Prothiaden. The applicant gave Dr Dinnen a list of her symptoms including a loss of confidence and the feeling of being handicapped. She had lost confidence in travelling and told him:
“Now I’m a quivering wreck. I don’t like going anywhere on my own. Before I travelled on my own. Now Stan has to push me to get me on the train.”
The applicant reported to Dr Dinnen an improvement in her condition since she had commenced medication and gave some examples of her previous condition as compared with her current one. Dr Dinnen took a personal history from the applicant and read some medical reports and correspondence concerning her. He found that her psychological response to the incident of August 2002 when the train doors closed abruptly and she had to be pulled back without warning from the train by her husband has:
“Led to an ongoing psychiatric disturbance. Clinical features of train phobia, nightmares, disturbed sleep, anxiety, depression, loss of confidence, increased use of alcohol and loss of control of diabetes, impairment of memory and concentration, early morning wakening, negative thoughts and feelings of worthlessness, loss of appetite and tearfulness, and reduced interests are all in accord with the diagnosis of post traumatic stress disorder with major depression.”
Dr Dinnen opined that the predisposing factors giving rise to her condition were obvious, namely the loss of vision and diabetes had caused her to make adjustments in order to maintain her positive outlook and that such adjustments always cause increased vulnerability should an adverse event occur. The incident at the train station was such an event.
In his evidence in chief Dr Dinnen informed the Court that he had read the opinion of Dr Walden for the respondents and believed that she had been narrower in her diagnosis of Post Traumatic Stress Disorder (PTSD). He believed that DSM-IV allowed his diagnosis because he believed that it was a perception of a risk to life or limb that was important rather than the existence of such a risk. He believed that Criterion A of DSM-IV should be interpreted more subjectively than Dr Walden. Dr Dinnen admitted that there had been some improvement in the applicant but there were still symptoms of psychiatric illness which will require attention over the next year or two. He believed the experience was a significant feature which triggered off her current problems. He thought the appropriate treatment would be a continuance of the prescription of anti-depressant medication for approximately 12 months from the date it was considered that she had otherwise recovered. He believed that time to recovery and the extended medication would be approximately 2 – 3 years during which time she should make a visit approximately once a month to a psychiatrist at a cost of approximately $180-$240 each visit.
Dr Dinnen did not accept Dr Walden’s hypothesis that the applicant would have developed a depressive illness “in any event”. He believed that she had been doing quite well despite her problems until the incident.

Dr Dinnen was asked to estimate what percentage of the most extreme case the applicant’s injuries presented. He was aware of a difference between the methods of calculation in what was compensated and what he described as “a general sense” He would have given her between 10% and 15% on the workers compensation scale and between 15-20% on a more general scale. He believed her impairment was between mild and moderate.
The witness was cross-examined through DSM-IV for the purpose of getting him to agree that the applicant did not experience the type of serious stressor which is required by the literature to establish a diagnosis of PTSD. Dr Dinnen did not resile from his opinion. He believed that if Mrs Vance’s fear arose from what might have happened to her that if she thought that she was about to be subjected to a life threatening experience then he was able to make the diagnosis. He noted that her description of the incident as “trivial” was an example of denial and avoidance which he believed was a standard way of dealing with PTSD and only served to confirm his diagnosis.
Dr Dinnen accepted that Mrs Vance had not told him everything about her physical problems, for example her orthopaedic difficulties or her attack of shingles. He accepted that these would constitute stressors that might increase her vulnerability to the effect of the incident but he said that these problems did not cause her depressive illness. She did not have one until after the train incident.

Dr Walden

Dr Walden was called on behalf on the respondent. She also saw the applicant for the purposes of a medico-legal opinion and she provided a report dated the 16 December 2003 and a supplementary report dated 15 January 2004 which only confirmed that she had read the Federal Court’s Code of Conduct for Expert Witnesses. I do not propose to go through Dr Walden’s evidence in great detail because I think that in many important areas she agreed with Dr Dinnen. Where there were differences I will discuss these and indicate my preference. Both doctors agreed that the train incident was the trigger for Mrs Vance’s current depressive illness. Dr Walden was of the opinion that this illness was more likely than not to have occurred in any event because some stressor would have occurred in her life. Dr Dinnen did not disagree with this but said that Mrs Vance had suffered a number of stressful occurrences and had not succumbed to depression until this particular incident.
Importantly, Dr Walden agreed that no matter how Mrs Vances’ underlying condition was described, she held to her view that it should not be diagnosed as PTSD because the underlying fear of a serious incident was not, to her mind, present. In answer to a question from me she accepted describing Mrs Vances’ depression as having been caused by PTSD would not make her condition more serious and describing it as having been caused by something less than PTSD would not make it any less serious.
Dr Walden informed the court that she was an appointed assessor for the purposes of calculating percentage disability matters for workers compensation cases in NSW and was aware of the requirements of the CLA and the Motor Vehicle Act in that state. She explained that in order to become an accredited assessor one was required to have training by the University of Sydney and to pass an exam. She also explained that to her knowledge the ratings between the opinions of assessors were in the 95 percentile. In other words any two assessors would agree upon an assessment of a percentage of the most serious case in 95 out of 100 assessments. Dr Walden produced a document (exhibit 6) entitled “the PIRS Scale” which is used for calculating the percentage of the most extreme case where the plaintiff is suffering from psychological injuries rather than physical injury. Dr Walden proceeded to apply the scale to Mrs Vance. She did the calculations in open court. She gave Mrs Vance the benefit of the doubt where she fell between a higher and a lower ranking. I accept her evidence in this regard. She came to the conclusion that overall Mrs Vance would be considered a class two injured person which gave a rating of approximately 4-10% under the Motor Vehicle Act and 6% under the Workers Compensation legislation. She was informed that Dr Dinnen had come to the view that the applicant’s percentage of the most extreme case was 20%. She believed this was too high and that her figure would be likely to be 10%.
The witness was questioned on her opinion that Mrs Vances’ problem would have arisen in any event. She described the incident as precipitating the depression but not causing it. She agreed that the applicant was able to keep her depression, which had earlier manifested itself, at bay through other serious events such as the onset of diabetes and her sight problems until the incident. However, she maintained that the underlying factors were such that another depressive episode was likely.

Mrs Nettleship

Ms Nettleship is the station manager. In her affidavit she deposes to the fact that the applicant and her husband arrived at the station and the platform shortly (some minutes) before the train arrived. She was of the opinion that the applicant arrived with her husband. I do not think this divergence from the evidence of Mr and Mrs Vance is of any importance. She also deposed to the complaint about the incident which she said was made by both Mr and Mrs Vance. She did not realise that Mrs Vance was vision impaired until Mr Vance told her. In her opinion Mrs Vance was not injured or distressed, which is why she did not order the CCTV tape.
I would accept Mrs Vance’s evidence that she used Leumeah station frequently. I can only put the witnesses deposed to failure to see them on the station prior to the incident down to the pressure of her job. I prefer the evidence of Mr and Mrs Vance about the complaint, that it was only Mr Vance who approached her. The witness swore her affidavit in January 2004, some considerable time after the incident, whereas Mr Vance swore his statutory declaration only 2 months after.

Mr Spiteri

Mr Spiteri swore an affidavit on 27 January 2004. He was the guard on the train when the incident occurred. He deposed to the fact that he was first approached and notified of the incident on 22 January 2004 and that he had no recollection of the incident. His evidence was of no assistance in relation to the incident. Its evidentiary value was to show that he had been thoroughly trained and had successfully passed the reviews. The training was completed on or about 29 July 2002 only a few days before the incident. He had “worked the train by myself with the trainer guard” in the first six months of training.
I asked Mr Spiteri why he had been so adamant in his evidence that the train that he drove was a Tangara. He explained to me that this was the train which was usually rostered on that particular journey. However he had no independent recollection of the train or the journey and he accepted that it was possible, even if unlikely, that the train was a silver car train.

Mr Cotton

Mr Cotton is a guard trainer. His evidence goes into considerable detail about the methods by which guards are trained. I am quite satisfied that guards are thoroughly trained by the SRA. I am quite satisfied that the SRA does not condone any failure to allow a disabled person to get on a train. I am quite satisfied that the SRA requires standard forms of warnings to be given when doors are about to close. I am satisfied that a guard is required to ensure that all persons who are about to get on a train do get on it before the train pulls out. I am quite satisfied that Mr Spiteri received adequate and proper training. There were some discussions about checks on Mr Spiteri which were due to have taken place after the incident but which did not take place for some reason. I do not think that this assists me in any way. Mr Spiteri had only recently qualified and had only recently undergone his training when the incident occurred. It was unlikely that he would have been tested again within a few days.
What Mr Cotton did tell the court was that doors were normally open between 15-20 seconds at any platform. He was informed that Mr Vance had suggested that the train doors had only been open between 5-10 seconds. He opined that it would be very difficult for an able bodied person to board the train in 5 seconds but certainly possible within 10 seconds.
Annexed to Mr Cotton’s affidavit were some documents entitled ‘Special General Orders’. Mr Cotton explained that Special General Orders were sent out to drivers or guards from time to time where lapses of attention to General Orders had been discovered or where it was feared that a lapse might occur. An example of the former was the Special General Order relating to the use of mobile phones. Mr Cotton indicated that some guards had been found using mobile phones when pulling into stations. There was also an SGO re: Working Trains Through Stations which he advised indicated some problems had been encountered with guards not giving warnings when doors were closing.
I think the importance of the SGO’s is that they corroborate to some extent Mr Vance’s evidence that Mr Spiteri did not see his wife mount the train. They do not establish that Mr Spiteri did not see Mrs Vance because he was on the phone nor do they establish that Mr Spiteri definitely did not give any warning. But they indicate what seems to me to be reasonably obvious in any event, that a guard might not carry out his duties to the letter of the General Orders known as OMET.

Other evidence

There are three other affidavits of Belinda Henry, Raymond Doran and Ian Davies which were read without the deponents being required for cross-examination. They also deal with procedures of the SRA. I am satisfied that adequate training is given to guards and was given to Mr Spiteri concerning his obligations with regard to disabled persons and that there can be no criticism of the SRA in this regard.

Findings

Before I can consider the many complex legal issues raised in this case there must be a coherent finding of fact. This I do in the following paragraphs. Where the facts which I have found have not specifically been referred to in the evidence of particular witnesses I will indicate where that evidence can be found in the transcript or the exhibits.
Mrs Vance is 59 years of age. She has a vision impairment due to diabetic retinopathy and has been slowing losing vision since 1996. In August 2002 she was only able to see approximately three metres in front of her. She had been trained to use a white cane and was able to manage her daily activities quite well with the use of the cane and the assistance of her husband and carer Mr Vance. Mrs Vance was a regular train traveller. She held a vision impaired person’s pass which was first issued in about 1999 and that enables her and her carer to travel free on all City Rail services and State Transit buses in Sydney. (See affidavit of Raymond Doran paragraphs 3 and 8).
Leumeah Station is the closest station to Mrs Vance’s home. She was familiar with the station [T 48]. Between January and July 2002 she would have caught the train eighteen to twenty times from that station. She normally caught trains during off peak times between 10.00a.m. and 3.00p.m. [T 48].
On 8 August 2002 Mr and Mrs Vance proposed to travel from Leumeah to Liverpool to make a hospital booking for a knee operation for Mrs Vance. Her right knee was very painful on that day (statutory declaration paragraph 10).
There is a discrepancy in the evidence between Mr and Mrs Vance as to whether or not they went to the station to catch this particular train based upon Mrs Vance’s looking up of the timetable. Mr Vance’s evidence is that he could not read the timetable. I would find that the evidence that Mrs Vance gave in cross examination at [T 49] relates to her general practice that she would look up timetables from time to time. I think that the probabilities are that Mr and Mrs Vance knew that there was a train from Leumeah to Liverpool at about that time and they set out to catch it. I am satisfied that Mr and Mrs Vance did not reach the platform together because Mrs Vance walked down the ramp and caught the lift. Mr Vance entered onto the platform by a more direct route and met his wife there. I find that when Mrs Vance caught up with Mr Vance he told her not sit down because he could see the train approaching in the distance. I accept Mr Vance’s evidence that the train was not pulling into the platform as Mr and Mrs Vance were walking on to it [T 100]. I find that the Vances’ were positioned somewhat to the right of the office/toilet area in front of the “Leumeah” sign. I find that the station was not crowded and that in all probability there were two other persons waiting on the platform but they were not persons who were planning to take this particular train. I am satisfied that Mrs Vance was approximately two to three metres away from the edge of the platform when the train pulled in

[T 61 & 62].
I am satisfied that Mr and Mrs Vance proposed to board the train at a carriage proximate to that of the guard so that they could be seen by the guard. This is advice they had received from the organisations dealing with persons whose sight is diminished. I am satisfied that no persons alighted from the carriage into which Mr and Mrs Vance intended to enter. I accept that Mr Vance checked for the guard and saw him but I do not believe that in all the circumstances he and the guard made any contact. I prefer the evidence of Mr and Mrs Vance that the train was a silver car train and not a Tangara. I am aware that the records produced by the SRA indicate that the train was more likely than not to be a Tangara but Mr Vance is adamant that it was not [T 101] and the guard Mr Spiteri admitted that it may not have been one. I am aware that there is a discrepancy between Mr and Mrs Vance’s evidence concerning people getting off the train. Mrs Vance’s evidence on the matter is vague and changing [T 65, 67 & 68]. I believe that in the circumstances of Mr Vance acting as his wife’s carer in assisting her to get on the train his observation of persons getting on and off is more likely to be correct than hers, particularly given her sight difficulties.
I accept Mrs Vance’s evidence that with her cane in her right hand and her bag on her left she approached the train doors. She used the cane to feel around for the opening. I am satisfied that Mr Vance was on her right side. I find that whilst Mrs Vance was moving her cane around the door and the entrance way the doors began to close. I find that Mr Vance believing that his wife was about to board the train as the doors began to close pulled her back from the right side. I am aware that Mrs Vance says that she did not hear any warning and that Mr Vance said he did but then said he was not sure he had. I am aware that the “beeping” warning is one that occurs on Tangara trains but there was no evidence it was given on Silver Cars [T-184]. I have accepted that this train was more than likely a Silver Car. I would therefore prefer Mrs Vance’s firm evidence that she heard no “beeps”. I am also satisfied that as the train moved down the platform Mr Vance and the guard made eye contact and the guard said to Mr Vance words to the effect “sorry”.
It is exceedingly difficulty to make a finding about how long the train remained in the station with the doors open. Mr Spiteri, the guard, was unable to remember anything at all about this incident. Mr Vance says that from the time the doors opened and then closed was between five and ten seconds at most [T 94]. At [T 71] there is the following exchange between Ms Eastman and Mrs Vance:
“Q.The amount of time that it took you from – and we have it done quite slowly, from walking towards the open door and then attempting to get on the train, I think, somewhere in the evidence it [is] suggested that it took no longer than you normally do?
A.Yes, I think that would be pretty right yes.”
There was no other cross examination of Mrs Vance concerning the amount of time that the doors were opened. In her statutory declaration the applicant merely says that the doors closed suddenly. It is notoriously difficult to try and estimate time in a few seconds. Frequently people find that a second is considerably longer than they thought but probably equally frequently they find that a description they give of a very short period of time e.g. five seconds is in fact nearer to fifteen. What Mrs Vance’s evidence appears to me to be saying is that she was taking her normal time to get on the train. Her evidence is that she normally got on the train within the time limited by the opening and closing of doors. It would seem to follow that on this occasion the doors were closed earlier than normal. According to Mr Cotton the evidence of normal opening and closing is between fifteen and twenty seconds. I think therefore that the time the doors were opened was something between ten and fifteen seconds. I am aware that Ms Eastman, on behalf of the respondent, argues that Mrs Vance’s progress was limited by her knee problems and that this might have caused her to take longer to mount the train than normal. I do not accept this. Mrs Vance was only a few steps away from the carriage door. She had the assistance of her carer. He does not suggest she was taking longer than normal.
I am satisfied that Mr Vance pulled his wife back from the closing doors and that this caused her a shock. I am satisfied that thereafter Mr Vance sat his wife down and went to complain about the incident. I am satisfied that Mrs Vance did not complain and that Mr Vance then concentrated on ensuring that she “got back on the horse” by getting on the next train.
I believe that on the balance of probabilities what occurred in this incident was that the guard Mr Spiteri simply did not notice the Vances’ getting on the train. I do not know why they might be and see no point in trying to hazard a guess. We do know that guards’ behaviour had been a matter of concern to the SRA and that special orders had been issued regarding them paying attention and keeping off mobile phones whilst a train was in the station. A lack of concentration is common enough and I believe that Mr Spiteri closed the doors when he believed there was no-one getting on but when in fact there was. This is consistent with Mr Vance’s story that as the guard passed him on the platform he said “sorry”.

Discussion

The existence of the facts as found above raises the following matters for discussion.

Jurisdictional issue

The respondent argues that the DDA is expressed to be an Act of limited operation. The respondent claims that the applicant has not identified the basis upon which the claim comes within the scope of s 12 and puts forward an argument that international concern (s 12(8)(e)) which provides the authority for the Parliament to make such laws, must exist at the time of the enactment of the domestic legislation. This submission is contrary to the findings of Merkel J in Souliotopoulos v Latrobe University Liberal Club [2002] FCA 1316 at [31] where his Honour found that the relevant date is the date of contravention. Whilst Souliotopoulos is not binding on me it is to my mind persuasive and well argued authority from which I would not demur. I would also note that I would be reluctant to accept the respondent’s submission that the fact that the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations in Resolution 3447(XXX) of 9 September 1975 is silent on the question of public transport services does not mean that those services could not, by implication, be included. I would also note that Rule 5 of the United Nations “Standard Rules on the Equalisation of Opportunities for Persons with Disabilities” (adopted by the General Assembly on 20 December 1993) states:
“Access to the Physical Environment
States should initiate measures to remove the obstacles to participation in the physical environment. Such measures should be to develop standards and guidelines and to consider enacting legislation to ensure accessibility to various areas in society, such as housing, public transport services and other means of transportation, streets and other outdoor environment.” (emphasis added)
For these reasons I am satisfied that the applicant has not failed to demonstrate that her claim is covered by the DDA and would not propose to dismiss it on the basis that the court has no jurisdiction.

Indirect disability discrimination

The respondent submits that the applicant has made clear in paragraph 16 of her Amended Points of Claim that she is relying only on s.24(1)(c) of the DDA and thus the question is whether there has been indirect disability discrimination in the manner in which the services are provided. I do not believe there is any serious dispute about this (see paragraph 38 applicant’s written submissions).
In order to establish indirect discrimination in the manner in which services were provided the applicant must establish first that she has a disability. This is not disputed insofar as her visual disability is concerned. There was no claim in respect of a mobility disability. The applicant must also establish that the respondent provides services as defined by s 4. There is no dispute that this is done by the applicant through its various employees performing a range of duties. The next matter which the applicant must establish is that there was a condition or requirement which the respondent imposed upon Mrs Vance. The requirement as stated in the written submissions and in the Amended Points of Claim was:
“That in order to travel safely on the 11.50a.m. train on 8 August 2002 operated by the respondent any intending passenger at Leumeah Station had to enter the train doors promptly which may close without warning.”
The applicant relies on the evidence of Mr Vance who translates “promptly” into five to ten seconds. She also relies on the evidence of both Mr Vance and Mrs Vance that no warning was given that the doors were about to close. I imagine that the applicant must mean by this that there was no call from the guard or blowing of a whistle.
The second articulation of the requirement is in the following form:
“In order to travel on the 11.50am train on 8 August 2002 operated by the respondent any intending passenger at Leumeah station had to board the train within a short period of time provided by the guard on the said train.”
Although this claim has not been abandoned it was not seriously argued. This may have been because it could be considered to be a complaint against the guard rather than the respondent and the guard has not been joined as a party to the proceedings. In so far as the complaint consists of an allegation against the actual respondent based upon its vicarious liability under s.123(2) the issues are the same as that for the more argued requirement.
The task of defining the requirement or condition with which the aggrieved person is required to comply brings us to the kernel of the applicant’s difficulties in her claim. Who imposed the requirement or condition alleged by the applicant? I am satisfied from the evidence of Mr Cotton that guards undergo extensive training. There are procedures for departing stations which all guards are required to observe. The guard must make an announcement “stand clear, doors closing”. The requirement to make this announcement was reinforced by a special general order issued in March 2002 reminding all guards of their duties and the procedure for making announcements before trains departed from a station. The standard procedures for departing trains at a station were contained in the Operating Management Electric Trains Document at pages 2 – 4 annexed as “PC 3” to Mr Cotton’s affidavit:
“It is the guard’s responsibility to give the “all right” signal to authorise the driver to proceed and to ensure that passengers are clear of the doors prior to closing them and before giving the “all right” bell signal to the driver.
Item No 2 Guard Duties Working Train Through Stations
Providing that the departure signal is clear to proceed and station work has been completed it is mandatory that all guards after completing station duties and prior to closing train doors make the announcement “STAND CLEAR, DOORS CLOSING” in a clear and concise manner. It will then be the guard’s responsibility to ensure that all passengers are clear of the doors prior to closing them and before giving the “all right” bell signal to authorise the driver to proceed.”
It is clear from the above that the respondent did not have a requirement that passengers were to get on to the train within five to ten seconds between doors that might close without warning. The evidence is all to the contrary. Can it be said that this requirement was imposed by virtue of what the applicant alleged occurred on this day? In other words does the alleged action of the guard constitute a requirement imposed by his employer. This could only be the case if the employer was vicariously liable for the acts of the employee. Such vicarious liability is provided for in the DDA under s 123. After some discussion about the status of the SRA it was agreed that the appropriate section was s 123(2) which is in the following form:
“[123(2)] Conduct by directors, servants and agents
(2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.”
Although I accept the applicant’s submission that the conduct engaged in by the guard was engaged in within the scope of his actual or apparent authority and therefore was conduct engaged in by the respondent that is not the end of the matter. It ignores the proviso. I am satisfied that the SRA did take reasonable precautions and exercise due diligence to avoid the guard conducting himself in the manner in which it is alleged he conducted himself by Mr and Mrs Vance. The precautions which I refer to were those described by Mr Cotton in his evidence and in particular in the written material which is attached to his affidavit. These set out a detailed procedure for the training of guards and other railway staff which is clearly intended to avoid this type of occurrence. Mr Spiteri had only recently completed this training. He had been passed as satisfactory. To the extent that it could be suggested that Mr Spiteri may have picked up some bad habits in his training such as speaking on his SRA provided mobile phone or otherwise not observing the requirements of working a train through the station, these were the subject of the special general orders dated 8 March 2002 and 24 April 2002.
The proviso in s.123 is similar to other provisos in similar acts such as s.106 Sex Discrimination Act 1984 (Cth), s.18A Racial Discrimnation Act 1975 (Cth), s.53 Anti-Discrimination Act 1977 (NSW), s.103 Equal Opportunity Act 1995 (VIC), s.133 Anti-Discrimination Act 1991 (Qld). Case law in this area emphasises the importance of implementing effective education programs to limit discriminatory conduct by employees and the necessity of such programs for employers to avoid being held vicarious liable for the acts of their employees. Cases such as McKenna v State of Victoria (1998) EOC 92-927; Hopper v Mt Isa Mines [1999] 2 Qd R 496; Gray v State of Victoria and Pettiman (1999) EOC 92-996; Evans v Lee & Anor [1996] HREOCA 8 indicate that the test to be applied is an objective one based upon evidence provided by the employer as to the steps it took to ensure its employees were made aware of what constituted discriminatory conduct, that it was not condoned and that effective procedures existed for ensuring that so far as possible it did not occur. These are the matters which I considered in determining that I was satisfied that the proviso applied to this respondent. The proviso in s.123 Disability Discrimination Act requires “reasonable precautions” and “due diligence” be exercised and the comments articulated in Korczak v Commonwealth of Australia (2000) EOC 93-056 relating to the proviso in the Racial Discrimination Act are equally relevant to the present case:
“While the RDA clearly requires the Department to be vigilant for conduct which may be discriminatory and while clearly it requires proactive and preventative steps to be taken, the RDA does not require perfection, only reasonableness. Although I regard this standard as a high one to meet (see the standard required in Evans v Lee & Anor (1996) EOC 92-822 in the context of the Sex Discrimination Act 1984 (Cth)) I find that the Department has met the standard of reasonableness.”
In her submissions in reply, the applicant says:
“The respondent’s defence also fails on the issue of whether it exercised due diligence. Mr Spiteri had only finished his training ten days earlier. He was unsupervised in his work despite his inexperience. There was no evidence that the train driver was monitoring what he was doing. The station attendant Mrs Nettleship was also not watching what he was doing.”
I do not accept this argument. It would seem to indicate that the SRA must provide an excessive level of supervision. Mr Spiteri underwent instruction for considerable time before he was allowed to take out a train on his own. Eventually every bird must leave the nest. Provided that the training was satisfactory, and I believe it was, the lack of supervision over a relatively inexperienced guard does not constitute a failure to exercise due diligence.
If the respondent has no liability under s 123(2), which I have found it does not, and if all the evidence is that the respondent itself did not impose the alleged requirement or condition, then I cannot see how there can be any liability upon it.
The effect of this finding is that I really do not have to go into the complex, detailed and well argued submissions of the respondent concerning the pools of persons who would make up the base group of persons required to comply with the condition. I would note that I do not accept the submission made by the respondent that the evidence of Mr Cotton at [T 195] shows that no person could have complied with the alleged requirement to board the train within five to ten seconds the exchange between himself and Counsel for the applicant was as follows:
“Q.So in your experience if a train door was open, only open as between five and ten seconds, in your experience would you say that it is something that is possible?
A.Well yes. Sorry, it is possible but yes the guards are given well I mean they are given instructions to – they have got to make sure that everybody is clear that everything is safe.
Q.In your experience if the train doors were open between five and ten seconds, would that be sufficient time for a person to board a train – no you have got passengers, you have got to check the passengers that are leaving the train and then allow time for passengers to board the train. So no in reality I think that is a bit too close.”
I believe that the answers of Mr Cotton to these questions are more responsive to a question concerning the average duration that the doors would remain open to allow passengers to safely board which he answered as twenty seconds on the same page. There is a difference between how long the doors should remain open and how long it actually takes a person to get on to the train in safety.
Because I have not found that there was a requirement to board the train within five to ten seconds imposed by the respondent (as opposed to one imposed by Mr Spiteri who was not joined in the proceedings) I am not required to consider whether or not such a requirement was reasonable. To the extent that I might have been required to do so I would not consider it reasonable given the evidence of Mr Cotton. I do not think it is unreasonable to require a person to board the train “promptly” if promptly meant between fifteen and twenty seconds as suggested by Mr Cotton AND the driver had an overriding responsibility to ensure that doors were not closed on people who were in the process of getting in to the carriage. This I would describe as the Respondent’s requirement. I believe that such a responsibility exists and therefore any requirement to do less than that would have been unreasonable. I make that finding taking into account the views of Wilcox J expressed in Styles v The Secretary of Department of Foreign Affairs and Trade (1998) 84 ALR 408 at [429] which was approved by the Full Court in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251. I would also say that I think that the requirement as described by me, which I have found to be the actual requirement of the Respondent, passes the test of reasonableness described by Brennan J in Waters v Public Transport Corporation (1991) 173 CLR 359 at [378].
The findings which I have made above take out of contention any claim under the DDA. There remains, however, the claim in negligence. The respondent would argue that I am not entitled to consider this claim as part of the accrued jurisdiction. In order to succeed in that argument she would have to convince me the invoking of the federal jurisdiction is colourable because otherwise it would seem clear from decisions such as Moorgate Tobacco v Philip Morris (1981) 45 CLR 457 that the fact that the federal element in a claim which arises out of a common substratum of facts and is therefore within the scope of one controversy is dismissed does not remove from the court its jurisdiction to deal with the attached common law claims. See Burgundy RoyaleInvestments Pty Limited and Others v Westpac Banking Corporation and Others (1987) 18 FCR 212 at [219]:
It is true that in answering questions 1 and 2 in the negative we have determined preliminary points of law in the claims under the DDA brought against the second and third respondents; and that in consequence, there will be no further trial of those issues. But it does not follow that the court ever lacked jurisdiction to deal with such claims. Nor does it follow that the court now loses its jurisdiction to deal with the attached common law claims; see Moorgate supra at [469], [472-477]; Elna Australia Pty Limited v International Computers (Australia) Pty Limited (1987) ATPR 40-795; and Dortea Pty Limited v Vancleve Pty Limited (1987) ATPR 40-807. In principle the position is no different than it would have been if the claims under the DDA had proceeded to trial and had been dismissed on the merits. In that situation it could not be seriously suggested that the dismissal of the claims under the DDA had the effect of depriving the court of jurisdiction to deal with any attached non-federal claim.
The position may have been different if the claims under the DDA had been “colourable” in the sense that they were made for the improper purpose of “fabricating” jurisdiction; see PH Lane, Lanes Commentary on the Australian Constitution (1986) pp 367-368 and the cases there cited. There is no room for such a suggestion here. The applicant’s case that the second and third respondents were bound by the DDA cannot be said to be unarguable; and we think it was pursued bona fide; CFR v Cook; Ex parte Twigg (1980) 145 CLR 15 per Gibbs J at [26].”
I do not think that the applicant would resile from the proposition that she has brought this claim initially under the DDA because she believes that if she is successful she would avoid problems with the CLA. But the fact that a person may have two possible causes of action, one federal and one non-federal arising out of the same circumstances and proceeds primarily under the federal claim does not make it colourable. The claim within the federal jurisdiction was clearly made and arguable, in contrast with the situation in Glass v State of New South Wales (1994) 52 FCR 336, and could but for the finding of the existence of a statutory defence, have been successful. The situation here is far more akin to that in Burgundy Royale (supra) or Uniland Holdings Pty Limited v Kerrin (1993) 44 FCR 481. I am satisfied I have the jurisdiction to hear the common law claim.
The particulars of negligence in the common law claim are as follows:
a)Failure to keep to proper lookout;
b)Failure to wait until the applicant had boarded the train;
c)Failure to warn;
d)Failure to warn of the imminent departure of the train;
e)Failure to warn of the imminent closure of the train doors;
f)Res ipsa loquitur.
These particulars (with the exception of res ipsa loquitur which is not a particular of negligence; Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at [132]) are sufficiently descriptive of the events which I have found to have occurred. I have found that the guard did not keep a proper lookout and thus caused the doors to close at a time when Mrs Vance was attempting to board the train. I am satisfied that he failed to warn her in the manner prescribed that the doors were about to close. The noise which Mr Vance said he first did hear and then said he may not have heard was a noise made when doors were closing. Neither Mr nor Mrs Vance heard the whistle and Mr Spiteri did not give evidence that he blew it. There is no evidence the guard made the oral statements required by the OMET. I have already said that I believe that there was a failure by Mr Spiteri to see the Vances’ for a reason I know not. I am satisfied that the respondent had a duty of care to the applicant not to put her at risk when she was attempting to board the train. I am satisfied that it was reasonably foreseeable that if the doors closed suddenly on a person as poorly sighted as Mrs Vance she would have received a shock, particularly when the closing of the doors was accompanied by the natural reaction of her carer to pull her back away from them. I am satisfied that the operating procedures of the respondent clearly identified the duty of care which it had to passengers and that that duty was breached.
The claim made against the respondent is a claim based upon its vicarious liability for the omissions of its servant Mr Spiteri. What constitutes vicarious liability at common law is founded on a different test to that contained in s.123(2) DDA. There is no statutory proviso which I have found to have excused the respondent in this case. At common law, employers can be held vicariously liable for the actions of their employees providing that the tort was committed in the “scope of employment”: Deatons Pty Ltd v Flew (1949) 79 CLR 370; Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82. The fact that an employee may have acted negligently does not relieve an employer of responsibility: Jones v Commonwealth of Australia [2000] NSWSC 293; Hollis v Vabu Pty Ltd (2001) 207 CLR 21. This has been held to be so even in cases of gross negligence: Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509. The fact that Mr Spiteri did not adhere to safety procedures as directed by the SRA does not absolve the SRA of responsibility for Mr Spiteri’s actions. The Courts have repeatedly held that where an unauthorised mode of carrying out an authorised act is adopted by an employee, the employer remains vicariously liable: Wales v Lepore (2003) 77 ALJR 558; Scott v Davis (2000) 204 CLR 333.

Damages and the scope of the Civil Liability Act 2002 (NSW)

Both the doctors who gave evidence in these proceedings accept that the events at Leumeah Station triggered the depressive illness from which the applicant currently suffers. They do not necessarily agree that the applicant suffers from a post-traumatic stress disorder but they both agreed that she was suffering from a depressive condition which had as its origin the incident. Section 5D General Principles of the CLA is in the following form:
(1)A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2)…
(3)…
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

These provisions have not been the subject of much in the way of specific comment of an authoritative nature but I note that in Ah Tong v Wingecarribee Council [2003] NSWCA 381 at [79] Ipp JA said:
“Recently there have been several cases that have emphasised the need to take into account, when assessing whether there has been a breach of the duty of care, the need for individuals to take reasonable care for their own safety and to accept personal responsibility for their own conduct.”
This would appear to go to subsection (4) of s.5D. I do not think that it is a matter that should present the applicant with too much difficulty. There is no dispute that as a sight disabled person she took advice from the relevant organisations upon her method of travel. She was accompanied by a carer. There is no dispute that she attempted to enter the train at what she had been advised was the optimal point for the purposes of being seen by the guard. She used her stick to feel whether the doors were open. The doors closed upon her without warning. She was able with the assistance of her carer to be prevented from a possibly more serious injury such as falling onto the track or between the doors of the train.
The respondent argues that the risk of a psychiatric injury was not and could not have reasonable foreseeable. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Mason J said:
“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
The respondent’s submissions then proceed to deal with the precautions that it took to prevent injury to a person attempting to enter a carriage of a train standing at one of its stations. I have already said that I am quite satisfied that the type of precautions made by the respondent were appropriate and satisfactory but to a great extent they relied upon a human element. They relied upon the guard to see a person getting on to the train. If, as I have found, the guard simply did not notice what was happening all the precautions are as naught.
Consideration of the extent to which psychiatric injury is reasonably foreseeable was given by the High Court in Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. In Annetts the Court agreed that the “sudden shock test” identified by Deane J in Jaensch v Coffey (1984) 155 CLR 459 at 565 had no place in the law of negligence. Their Honours believed that the matter was best considered as a pure foreseeability question. Thus, they said, the police officer could not have foreseen the psychiatric injury to Mrs Tame resulting from his error in posting against her a blood alcohol level of approximately three times the normal limit. However, the Court found that because of the duty of care which the defendants had to the child of Mrs Annetts it was reasonably foreseeable that if they breached that duty it the manner in which they did and it resulted in his death, as it did, she would suffer the psychiatric problems about which she complained. I think that the problem in this case can be answered quite simply by noting that it is reasonably foreseeable that a sight disabled person attempting to enter the carriage of a train at a station when the doors close upon him or her suddenly and without warning is likely to suffer a physical injury of some sort. Why would it not be foreseeable that such a person might suffer mental injury? The doctrine of sudden shock may no longer exist but that does not mean that where a plaintiff has imposed upon him or her a sudden shock that should not indicate that a resulting psychiatric disturbance might not have been foreseeable. I am satisfied that some psychiatric problems were reasonably foreseeable from the actions of the respondent in this case and therefore the principle that the respondent must take the applicant as it finds her would apply.
But this is not the end of the matter. It is still necessary to consider whether or not the applicant achieves the threshold before which any damages are payable pursuant to the provisions of division 3 of the CLA. Section 16 is in the following form:
16 Determination of damages for non-economic loss
(1)No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
(2)The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.
(3)If the severity of the non-economic loss is equal to or greater that 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following table:
…
(4)An amount determined in accordance with subsection (3) is to be rounded to the nearest $500.
I have discussed in the evidence section the calculation of the applicant’s injury by the two doctors called to give evidence. In regard to the calculation as a percentage of the most extreme case I prefer the evidence of Dr Walden. This was because of her qualifications, experience and the manner in which she identified for the Court the criteria which she adopted in coming to her conclusion and the fair manner in which she did this. In truth there was not all that much separating Dr Walden from Dr Dinnen. But what separated them was the 15% hurdle. Dr Dinnen believed that it had been jumped but Dr Walden felt that it had not. Whilst in no way wishing to minimise the difficulties of the applicant has suffered as a result of this incident her evidence was that she had significantly improved as a result of her medication. I think that it would be wrong to conclude that her condition is 15% or more of the most extreme. I should make it clear that this is my conclusion based upon all the evidence presented, not simply an adoption of the views of Dr Walden.
The CLA only deals with non-economic loss. The applicant has claimed some economic loss and Dr Dinnen suggests that she has some continuing psychiatric treatment and psychological counselling. The applicant may have incurred some economic loss but this has not been articulated. There is no itemisation of doctors visits/medication or associated expenses. There is not even an estimate of costs incurred to date. On the other hand there is a claim referable to future psychiatric treatment assessed by the applicant as one visit a month for three years at $210 per visit totalling $7,560.00. This estimate seems to based upon the upper limit of Dr Dinnen’s appraisal of the needs of the applicant. At the present time the applicant is not receiving much in the way of psychiatric care. Her evidence was that she was unhappy with the MacCarthur Health Service and does not appear to have returned. In all probability she has not sought other counselling because of the cost. She is a pensioner. Having found that she is suffering from a psychiatric condition I think it is reasonable to make an award for the cost of attempting to remedy it. I have taken into account my already expressed views concerning Dr Dinnen’s evidence, namely that he errs on the side of the generous, and would award the sum of $5,000.00.
Both parties have asked that they be heard as to costs in this matter and I will do that upon the handing down of this judgment or at an otherwise convenient time.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: