BARRY.NILSSON. Lawyers

Russell v Rail Infrastructure Corporation NSWSC

THE FACTS

The plaintiff is a mildly intellectually handicapped woman working as an apprentice hairdresser who, on the evening of 25 February 2002, when 21 years of age, accompanied some young men down McBurney Avenue in Mascot, through a missing panel in a chain link fence, and onto the Port Botany freight line. At about 7.30pm the plaintiff observed one of the young men climb onto a slowly moving train which she also then proceeded to do. The train gathered speed and the plaintiff let go of her hold, and as a result was dragged some distance over the rocky ballast adjacent to the tracks. She suffered severe injuries to her right leg which was later amputated below the knee.

The defendant, Rail Infrastructure Corporation (RIC), is a statutory corporation which at the time of the accident, owned the railway track and was responsible for the fence. The gap in the fence had been there for a number of months before the accident. There was a well worn path leading from the missing fence to the rail line, which members of the community used as a short cut to access the Botany swimming pool, neighbouring factories, and wetlands behind the local golf course. When the fence was repaired (generally 2 times per year) it would soon be cut open again (within a day or so) by locals wanting to access the shortcut. After the incident the chain-link fence was replaced by a high security metal fence which has not since been breached.

The RIC was responsible for around 3,000 kilometres of railway track in the Sydney metropolitan area at the date of the accident. The Port Botany line was 4km long running through both industrial and suburban areas. A detailed inspection of the rail corridor was carried out by the RIC every 3 months, with attention directed to vegetation adjacent to the line and fencing in the vicinity of the line. There had been no other incidents on the Port Botany freight line prior to the plaintiff?s accident.

The plaintiff acknowledged in cross-examination that she understood that if you were hit by a train while standing on a railway track you may be seriously injured. She attributed her actions to ?copying the boy who made it look so easy?. The plaintiff was assessed by a senior clinical psychologist on 17 October 2002 who considered the plaintiff to have a reading age equivalent to a person aged 8.4 years, a verbal IQ in the borderline range, a performance IQ in the low-average range of intellectual functioning and to be child-like and immature. A second clinical psychologist provided an opinion that the plaintiff was capable of assessing the risks associated with the activity which she was engaged in at the time of the accident, but was also likely to be easily led by others. A psychiatrist was also called who gave evidence that it was a combination of the plaintiff needing to please those around her due to low self-esteem and self-confidence, and her desire to demonstrate her athletic ability which lead her to do what she did. He concluded that her intellectual disability had played a significant part in carrying out the foolish behaviour resulting in the injury.

THE LITIGATION

The plaintiff alleged that the combination of the missing fence, the path beyond it and the access that it gave to the railway track, was an allurement which posed a risk of personal injury to persons gaining access to the railway tracks. Particulars of negligence included a failure to provide a fence and/or gate that was secure, a failure to provide a fence and/or gate that was intact, and a failure to put in place any or any adequate inspection system to ensure that breaches in the fence were noted and quickly rectified. The defendant denied any breach and pleaded that the accident was in any event a consequence of the plaintiff?s foolish behaviour for which she ought to be held responsible.

THE DECISION

Justice Virginia Bell held that a reasonable public authority in the position of the RIC would have foreseen that there was a risk of injury to members of the public who accessed the line from McBurney Avenue. Her Honour went on to hold that it was foreseeable that persons gaining access to the railway corridor through the gap in the fence were likely to include children and others who may be vulnerable by reason of intellectual handicap, and that it was foreseeable that they were at risk of injury as a result of fool-hardy conduct, including riding on the outside of a goods train wagon.

Her Honour held that the failure to effect repairs and to make the existing fence more secure amounted to a want of reasonable care for members of the public including the plaintiff. Notwithstanding evidence of other nearby alternate points of entry, Her Honour held that if access to the line at McBurney Avenue had been barred by a secure fence, it is probable that the plaintiff would not have entered the railway corridor and jumped onto the train. She concluded that the defendant?s negligence and failure to prevent access to the railway corridor was a direct cause of the plaintiff?s injury.

The defendant pleaded that the plaintiff?s injuries were caused or contributed to by her own negligence. The defendant submitted that the plaintiff was an adult, aged 21 years at the date of the accident, and that her negligence in jumping onto the outside of a moving train was both obvious and substantial. Her Honour decided that she should determine the defence of contributory negligence in this case by considering whether the plaintiff had failed to take reasonable care for her own safety to the standard expected of a reasonable adult having a mild degree of intellectual handicap. Applying this test, Her Honour held that a person with the plaintiff?s mild degree of intellectual handicap would have appreciated that jumping onto a slow moving goods train was exposing herself to a risk of serious injury. Her Honour saw the plaintiff?s want of care for her own safety to have been considerable, but not as considerable as the want of care of a reasonable person without intellectual disability, who may have also jumped onto a slow moving goods train. In the end result, Her Honour reduced damages by 50% to take into account the plaintiff?s contributory negligence.

The defendant also pleaded a voluntary assumption of risk defence ie. that the plaintiff with full knowledge and understanding of the dangers arising from the risk, voluntarily accepted the risk when she stepped onto the train, and as a consequence she is not entitled to maintain a claim for damages against the defendant. Her Honour observed that in order to succeed with this defence, the defendant must establish that the plaintiff fully comprehended the extent of the risk at the time. She was of the opinion that the plaintiff did not fully appreciate that she was exposing herself to a risk of serious injury.

COMMENT

We believe that the defendant is appealing the decision.

Whilst Her Honour had the benefit of observing the plaintiff give evidence, and formed a view on the extent of her mental development, the end result is still a little surprising when one considers that:-

• The plaintiff?s impairment seemed to manifest itself in displays of immaturity, and while her reading ability may have been equivalent to that of an eight year old, her other functioning was at a higher level. Intuitively one would think that, for example, even a 13 year old girl would know that to jump onto the side of a moving train could involve a risk of serious injury.
• The plaintiff was considered mature enough to hold down a job, cut people?s hair and pay tax, but not mature enough to fully appreciate that she may injure herself jumping onto a moving train.
• If the plaintiff didn?t access the line through the gap in the fence, there were other nearby entry points. The boys she was with were spraying graffiti on walls beside the track. It would seem arguable that if they didn?t get in where they did, they would have accessed the line elsewhere. Is an authority in the position of the RIC required to make suburban train lines entirely inaccessible?

For further information on this topic, please contact:

•  Robert Samut