Gordon Martin Pty Limited v State Rail Authority of New South Wales

[2008] NSWSC 343

CITATION:	GORDON MARTIN PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR [2008] NSWSC 343 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 to 10 August, 13 to 16 August 2007
JUDGMENT DATE :	21 April 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(1) Judgment for the defendants on the Amended Statement of Claim. (2) Judgment for the cross-claimant (State Rail) against the plaintiff on the cross-claim in respect of the following amounts: (a) An amount of $25,437.21 in respect of the cross-claimant’s “bussing claim”; (b) An amount of $949,974.08 in respect of the repairs to the Xplorer rail car EA2504; (c) Interest in accordance with the provisions of the Uniform Civil Procedure Rules; (3) I direct the parties to lodge short minutes of orders to give effect to the judgment in accordance with paragraph (2) above; (4) I will re-list the proceedings on a date to be fixed for the purpose of hearing submissions on costs in the event that the parties are unable to agree upon the appropriate orders as to costs.
CATCHWORDS:	NEGLIGENCE - train/motor vehicle accident at railway crossing - breach of duty by train driver alleged - breach of duty with respect to design and construction of railway crossing alleged - whether truck driver breached Australian Road Rules - Rule 123(d) - and entered the railway crossing without stopping as required - finding that the truck driver in breach of duty entered the crossing without stopping - no breach of duty by train driver or defendants - on cross-claim by first defendant (State Rail) no contributory negligence - no apportionment of liability - DAMAGES - defendant disputing actual repair costs were reasonable - actual costs paid prima facie evidence of reasonableness of costs - evidentiary onus on a defendant - requirement to establish by evidence that costs paid were not within what is a reasonable range for such repairs - nature of the evidence required to establish costs paid were not reasonable costs - claimed benefit to State Rail of deferred expenditure not established
CATEGORY:	Principal judgment
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512 Commissioner for Railways v Dowle (1958) 99 CLR 353 at 358 Commissioner for Railways v Murphy (1967) 41 ALJR 77 Ferrcom Pty Limited v Commercial Union Assurance Co of Australia (1991) 22 NSWLR 389 Fung v Stocovaz [2006] NSWSC 1345 Lodge Holes Colliery Co Limited v Wednesbury Corporation [1908] AC 323 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 South Australian Railways Commissioner v Thomas (1951) 84 CLR 84 at 89 Stocovaz v Fung [2007] NSWCA 199 The Pactolus (1856) Swab 173 Wade v Australian Railway Historical Society (South Australian Division) (t/as Steamranger) (2000) 77 SASR 221
PARTIES:	GORDON MARTIN PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR
FILE NUMBER(S):	SC No 20550 of 2002
COUNSEL:	P: M Neil QC/I J McGillicuddy D: M Orlov
SOLICITORS:	P: Fraser Clancy Lawyers D: Sparke Helmore

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

MONDAY 21 APRIL 2008

20550 of 2002

GORDON MARTIN PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR

JUDGMENT

HIS HONOUR:

(1) THE PROCEEDINGS

1 The proceedings involve property damage claims arising from a collision between a truck and a train at a level crossing. Both the plaintiff and the first defendant (as cross-claimant) allege against each other that the accident was caused through the fault of the respective drivers of the train and the truck.

2 The plaintiff’s case was that its driver at all times proceeded with the necessary caution. That has two aspects. Firstly, it claimed that its driver stopped the vehicle at a stop line before the crossing. Secondly, that before proceeding forward, the driver looked both ways and did not see any train coming and proceeded to cross the rail crossing. It alleged, amongst other things, that there was an inadequate sighting distance to detect oncoming trains.

3 The defendants’ case was quite to the contrary. Their case was that the plaintiff’s driver turned off the highway, proceeded down the road leading to the crossing and travelled across it, until struck by the train, without stopping contrary to a “stop” sign.

(2) THE CLAIMS

(a) The plaintiff’s claim

4 The plaintiff, Gordon Martin Pty Limited, in an amended statement of claim filed on 30 July 2007, claims damages from the State Rail Authority of New South Wales (first defendant) and Rail Infrastructure Corporation (second defendant) in respect of damage to its Mack Fleetliner prime mover, registered No. WRS-543 and trailer attached, registered no 413-QEN, in a rail crossing accident. The accident occurred on 19 March 2001 when an Xplorer train collided with the plaintiff’s vehicle at what is known as the Breeza Crossing in New South Wales.

5 The plaintiff company operated a hauling contracting business and used its Mack truck and trailer in the course of its business.

6 The first defendant owned and operated the Xplorer train. The second defendant is a statutory corporation that has statutory functions in relation to rail infrastructure.

(b) The cross-claim

7 The first and second defendants denied negligence as alleged against each of them or at all.

8 The first defendant (State Rail) instituted proceedings against the plaintiff by way of a cross-claim filed on 28 January 2003. State Rail alleged in the cross-claim that the rail crossing collision occurred as a consequence of the negligence of the driver of the plaintiff’s prime mover, Mr Andrew Stackman. Mr Stackman then aged 62 years, had been driving for 33 years. The prime mover had a trailer attached and which was loaded with 26 tonnes of urea fertiliser.

9 The cross-claimant alleged that Mr Stackman failed to stop his truck before entering the south-western side of the level crossing, did not give way to the cross-claimant’s Xplorer train and, contrary to Rule 123(d) of the Australian Road Rules, entered the level crossing at a time the Xplorer train was approaching the crossing when it could or should have been seen by him.

10 The cross-claimant also alleged that the plaintiff’s truck was travelling too quickly on its approach to the level crossing, and that Mr Stackman failed to make appropriate observations and respond to the approaching train so as to avoid the collision.

11 A statement of Agreed Facts and Issues on Quantum (Exhibit 13) recorded an admission by the defendants that the sum of $136,484.21 exclusive of GST was a fair and reasonable amount in respect of the plaintiff’s claim and that expenditure in that amount had been incurred by the plaintiff. The claim was principally made up of the repair costs, other associated expenses and the write-off value of the trailer. If the plaintiff was fully successful on liability, then the defendants agreed that they would be liable to pay that amount.

12 In relation to the cross-claim, the plaintiff/cross-defendant admitted that an amount of $25,437.21 exclusive of GST was a fair and reasonable amount for the cross-claimant’s “bussing” claim and that $949,974.08 exclusive of GST was an amount which the cross-claimant incurred by way of repair costs to restore the lead car of the Xplorer train. It, however, did not admit that that amount was fair and reasonable. In this respect, the plaintiff/cross-defendant relied on the assessment made by Booz Allen Hamilton, whereby the costs for the repair of the Xplorer train were estimated at $602,315. Accordingly, there is a dispute or discrepancy in the amount claimed by the cross-claimant for repair costs of $347,659.

(3) UNCONTROVERSIAL FACTS

13 The relevant railway track was the north-western rail line being a single track linking Gunnedah with Sydney via Werris Creek. The line passes through the township of Breeza in a generally north-westerly direction, as depicted in Exhibit 1.

14 Trains travelling along the north-western rail line from Sydney are described as travelling in the “down” direction. Trains travelling towards Sydney are described as travelling in the “up” direction. The train involved in the subject accident was travelling in the “down” direction before the collision.

15 The Kamilaroi Highway, which passes through the township of Breeza. is aligned approximately parallel with the railway as also depicted in Exhibit 1. Several hundred metres to the south-east of Breeza, there is an intersection to the right with Carroll Road. That road leads to the level crossing where the collision occurred and is identified on the plan as being at track location 433.416 kilometres, that point representing the track distance from Sydney to the level crossing. According to expert evidence, the level crossing is constructed on an 800 metres radius left-hand curve in the down direction. At a distance of approximately 500 to 600 metres from the level crossing, the rail line passes through a cutting. Mr Neil QC, who appeared with Mr I J McGillicuddy on behalf of the plaintiff, made a number of submissions concerning the significance of the cutting and the effect it had on a train driver’s visibility looking towards the crossing. The Kamilaroi Highway curves to the left on the approach to Carroll Road and into Breeza.

16 The evidence describing the viewpoint of a driver sitting in a semi trailer similar to that driven by Mr Stackman, consisted, in part, of a diagram showing the specification of a Mack truck (Exhibit 11) and Mr Stackman’s evidence that he is 1.87 metres tall. The viewpoint from the Mack truck accordingly was approximately 2.6 metres from the road surface.

17 Carroll Road, after the turn-off at the Kamilaroi Highway, has a gradient of approximately 12 degrees in a downhill direction leading to the level crossing. The gradient is then followed with a transition to a six degrees uphill gradient over the tracks and for a short distance in the direction of the township Carroll. Exhibit 9 depicts the topography from Carroll Road towards the highway.

18 As at the date of the accident, the road surface over the level crossing was uneven and its condition is revealed in photographs, Exhibit K (numbers 4, 5 and 6).

19 On 19 March 2001 at the approach to the crossing and on the left side of Carroll Road, there were signs erected which read “RAILWAY CROSSING”, “STOP” and “LOOK FOR TRAINS”.

20 The evidence to which I will refer later indicates, and I accept, that there was no stop-line on Carroll Road evident at or near the level crossing on 19 March 2001. Photograph 4 in Exhibit A and photographs 2 and 4 in Exhibit K illustrate the relevant roadway without any sign of a stop-line.

21 Survey evidence established that the stop sign was located approximately 59 metres from the middle of the intersection of the Kamilaroi Highway and Carroll Road. It was located 3.2 metres forward of the present position of the stop-line. The stop sign was approximately 3 metres from the nearest rail. The nearest rail was measured at approximately 62 metres from the middle of the intersection of the highway and Carroll Road.

22 Other structures in place on the day of the accident included two control/signal boxes and a home signal (being a white post) adjacent to the rail line approximately 50 to 60 metres from the level crossing looking in the “up” direction. These structures, their size and position are depicted in Exhibit A, photo 7.

23 The recorded time of the accident on 19 March 2001 was established in evidence as 3.29 pm. On the day of the accident, the train comprised two carriages, being car numbers 2501 and 2507. Each carriage was 25.25 metres in length, giving a total train length of 50.50 metres. The train was 4.1 metres high and 2.9 metres in width.

24 On the day and time in question, the Xplorer train was driven by Mr Bruce Mathews. Mr Mathews had been a train driver for 23 years.

25 The rail track, as earlier noted, runs in a generally north-westerly direction and is east of, but roughly parallel, to the Kamilaroi Highway. The crossing is located at the point where the rail track crosses the Breeze - Carroll Road at an angle of slightly less than 90 degrees.

26 In June 1994, a new crossing was built at kilometrage 433.416 replacing the old crossing at 433.424. Dr Eric C Wigglesworth, for the plaintiff, in his supplementary report (Exhibit U) based on an introductory statement appearing in standard TS 3901, criticised the location of the crossing on a curve.

27 The evidence revealed that high speed Xplorer trains had used the railway line in question, travelling through the township of Breeza, since 1994 providing a daily rail service for passengers travelling to and from Sydney to the north-west parts of the State. There was no evidence of any previous collision between a train and a motor vehicle at the crossing.

28 The maximum permissible speed for Xplorer trains on the approach to Breeza from Werris Creek, including the line over the level crossing over Breeza, was 125 kilometres per hour. Breeza was a scheduled stop for the Xplorer trains and was a scheduled stop for the train in question on the date of the accident.

29 The Xplorer train was fitted with a data logger designed and manufactured by Fisher Industries Pty Limited. A data logger collects information from certain digital and analogue inputs and transfers the data. A record known as a data logger print out, records the information. This includes the speed of the train at the time the train horn is sounded along with other information detailed in the statement of Mr Fisher made on 9 November 2006 (Exhibit 17).

30 There were, in fact, two data loggers, one for each carriage, but, for the purposes of the present proceedings, the relevant data was that obtained from the first carriage. The data logger instrument is capable of producing information output that involves fairly precise measurements and recordings.

31 The data logger recorded the speed of the Xplorer train in question when it came out of the cutting on the approach to Breeza at speeds of between 88 and 90 kilometres per hour.

32 The experts retained by the plaintiff and the defendants agreed on appropriate adjustments (adjusting for any difference between the pre-set and actual level of wheel wear) to arrive at the speed that the train was travelling at the point of collision. On that basis, calculations established that two seconds before the collision, the train was travelling between 90 and 92 kilometres per hour, well within the permitted maximum range of 125 kilometres per hour. The slightly increased speed of the train after it had left the cutting was due to the fact that the train was proceeding on a slowly inclining downward run.

33 The joint report of the experts (Exhibit X, paragraphs 2.1, 2.2, 3.1 and 3.2) established the following sequence in the actions of the train driver prior to and leading up to the point of collision:-

(a) The train driver moved the throttle of the train from the 1/3 position to idle between 13.25 and 14 seconds before the collision, at a distance of 337 to 363 metres from the point of impact.

(b) The train driver commenced to sound the horn between 11.25 and 12 seconds before the collision, being a distance of between 285 to 310 metres.

(c) The horn sounded continuously for a period of between 9.25 and 10.75 seconds.

(d) The train driver applied the emergency brake at four seconds before the collision at a distance of between 99 and 102 metres from the point of collision.

(e) The train’s horn was sounding at the commencement of the application of the emergency brake.

(f) The train driver stopped the horn from sounding at between 1.25 and 2 seconds before the collision, being a distance of 30 to 50 metres from the point of collision.

34 The overall length of the truck and trailer driven by Mr Stackman was agreed in the joint report of Mr Booth and Dr Dwight as being 16.3 metres. The position of the front of the truck at impact was agreed as 16.5 metres past the central line of the track.

35 Additional primary facts agreed between the parties included the following:-

• The distance from the intersection of the Kamilaroi Highway and Carroll Road to the nearest rail is 62 to 62.4 metres.

• The rails were approximately 1.5 metres apart.

• The driver of a Mack truck is positioned three metres back from the front of the truck.

• The train car was a little over 25 metres in length.

• The overall height of the train car was 4.2 metres including a strobe light on the top of the first car (or 4.1 metres high not including the strobe light).

• The overall width of a train car was a little over 2.9 metres.

(4) CONFLICTING VERSIONS OF PRE-ACCIDENT EVENTS

36 The plaintiff relied upon the evidence given by the truck driver as to his actions and observations prior to the collision. There was a major conflict between his evidence and that of the train driver. The defendants relied upon the evidence of a passenger travelling on the train, Mr Shane Ryall and a resident, Mrs Lawlor as corroborating the train driver.

37 Mr Stackman, who was an employee of the plaintiff company, stated that he had picked up the load from Kooragang Island in Newcastle earlier in the day. He was due to deliver it to a farm at Carroll which was located approximately five kilometres past the Breeza railway crossing. The gross weight of the plaintiff’s truck at the time of the accident was 42.3 tonne.

38 In essence, Mr Stackman stated that after turning into Carroll Road from the Kamilaroi Highway, he stopped the truck at the stop line. He said that he changed into low second gear in doing so. In evidence in chief he said after stopping he looked to his right and to his left. He stated that nothing was coming and that he then started to proceed across the crossing.

39 Mr Stackman said that he then looked again, he heard the horn of the train blowing and “… I looked to my right and here is the train coming up the line”. He said that the only thing he could do was to go forward, which he did, planting his foot on the accelerator to clear the line. He said the next thing that happened was that he heard and felt the impact of the collision which caused the truck to start “rocking and rolling” and soon after the truck laid over on its left-hand side.

40 Mr Mathews stated that when he saw the truck turning into Carroll Road, or just after it had completed its turn, he commenced and continued to sound the train horn “… until shortly before impact with the truck”.

41 Mr Mathews said in evidence that he observed the truck coming down the grade towards the crossing “and I also observed that he did not stop at the stop sign there but continued through the crossing”.

42 On the timing of events, Mr Mathews stated that “the truck would have entered the crossing at the time I first applied the brakes …”. He stated that shortly after applying the brakes, the train collided with the rear of the semi-trailer in the vicinity of its rear wheels.

43 Both parties accepted that the liability issues arising on the amended statement of claim and on the cross-claim fall to be determined to a significant extent upon whether the version of events as recounted by Mr Stackman or that given by Mr Mathews is accepted. The objective evidence recorded in the data logger was said to provide guidance insofar as the events recorded reflected or assisted in determining the likely events as given by the various witnesses, in particular, the drivers of the two vehicles.

(5) AGREEMENT ON TRAIN EVENTS

44 The parties set out in Exhibit D their agreement as to information derived from the data logger on train events and times. As discussed below, the agreed data was relied upon as providing an objective analysis for determining the most likely sequence of events. The following matters in relation to the movement of the train throttle, the sounding of the train horn, the application of the braking system on the train and the point of collision were agreed.

Time range	Event
15:29:35 to 15:29:35,75	Throttle moves from one-third to idle
15:29:37 to 15:29:37,75	Horn begins to sound
15:29:45	Brake cylinder pressure begins to rise
15:29:47 to 15:29:47,75	Horn ceases to sound
15:29:49	Close to collision occurring

45 As noted above, the parties also agreed that the horn sounded at 11.25 to 12 seconds prior to the collision, and that the brake cylinder pressure began to rise 4 seconds prior to the time of collision. The evidence of the train driver established that on sounding the horn, strobe lights on the roof of the train would activate. Dr Wigglesworth stated that the chief ”attention getters” were the roof-mounted strobe lights activated in conjunction with the horn.

46 The agreement between the parties also recorded the following distances relevant to events:-

Range of distances	Event
30 – 50 metres	Horn ceases to sound
99 – 102 metres	Brake cylinder pressure beings to rise, with actuation occurring 0.2 seconds prior to this
285 – 310 metres	Horn begins to sound
337 – 363 metres	Throttle moves from 1/3 to idle

47 In the Addendum to Joint Report (Exhibit Y), Mr Booth and Dr Dwight stated that the train driver’s reaction time in applying the brakes would have been in the range of 1.0 to 1.5 seconds.

48 The parties additionally agreed upon the following facts:-

(a) At 20 seconds before the collision, the train was travelling between 92 to 93 kilometres per hour.

(b) At 14 seconds before the collision, the train was travelling between 93 to 94 kilometres per hour.

(c) At four seconds before the collision, the train was travelling between 92 to 93 kilometres per hour.

(d) At two seconds before the collision, the train was travelling at 90 to 92 kilometres per hour.

(e) At the moment of impact, the train was travelling in the range of 83 to 88 kilometres per hour.

49 In the collision, the train impacted the last 1.26 metres of the trailer attached to the truck. Extensive damage was occasioned to the front of the train, although it was not derailed. In consequence of the collision, the truck came to a position resting on its left side some distance from the level crossing.

50 In accordance with the evidence in Exhibit K, the rear of the train came to rest at 216.5 metres measured from the northern road alignment of the level crossing and the front of the train was 266.5 metres from the level crossing.

(6) CROSSING CLEARANCE TIMES AND MINIMUM SIGHTING TIME AND SIGHTING DISTANCE

51 In the analysis of movement of trains and trucks, reference was made in evidence to crossing or clearance time for semi-trailer vehicles and to minimum sighting time with respect to railway crossings.

52 A 1994 RTA Draft Standard was a frequent point of reference. The Draft RTA Standard provided a figure of 12.6 seconds clearance time for a semi-trailer vehicle to cross a railway crossing from a stationary position (this allows five metres on the approach side and five metres clearance on the departure side).

53 The minimum sighting time in the Draft Standard is 17.6 seconds made up of the above 12.6 second clearance time plus a five second safety margin.

54 The minimum sighting time equates to a distance relative to train speed: Mr Booth’s report, Exhibit W, states at paragraph 6.5 that calculation enables required sighting distances to be derived for a train travelling at a particular speed.

55 In terms of “train visibility”, a standard, TS 3901, prescribed that the portion of a train to be sighted is that which projects more than 2.3 metres above the running rails. The Xplorer train was 4.208 metres high. The portion required to be visible therefore was the upper 1.908 metre portion.

56 The base data identified by the plaintiff’s expert, Mr Booth, included the following:-

(a) The clearance time of 12.6 seconds.

(b) Line of sight from the crossing: 400 metres.

(c) Distance from the centreline of Kamillaroi Highway to the level crossing stop line – 56 metres.

(d) Distance from level crossing stop sign to nearest rail track – 3.2 metres.

(e) Distance of stop line to the nearest running rail – 6.4 metres.

(f) Length of truck – 16.3 metres.

(g) Width of track – 1.4 metres.

(h) The last 1.26 metres of the truck was hit by the train.

(7) THE BREEZA LEVEL CROSSING

57 A 1994 level crossing survey report (Exhibit F, tab 3), include references to “observability of trains by motorists”. The report contained a table of “Distances of Trains from Crossing when observable by motorists …”. At a point five metres distance from a crossing in respect of “Down Trains” an observability distance in respect of “down side from Sydney” of 400 metres was specified. The survey report contained a note in the following terms:-

“Observability distances for motorists are measured at (3) locations on each approach to trains travelling in the two directions … The observability distance is the maximum distance of a train from the crossing so that at any point between there and the crossing a train would be visible from the stated location of the motorist; for the purpose of making measurements, the motorist’s eye is 1.2 m above the road surface and the train is 2.3 m above the rail level …”

58 On 11 February 1994, the Breeza crossing was noted as “register for flashing lights” (Exhibit F, tab 12).

59 On 22 February 1994, Mr Alvarez, Division Engineer, wrote observing that a 10 kilometre track speed restriction over the crossing should be imposed due to the acute angle of the road crossing. The issue of angles of rail crossings was the subject of a standard for crossing design in T.S 3901.

60 On 3 March 1994, Mr Alvarez wrote to Gunnedah Shire Council in relation to the crossing and recommended that there be a re-alignment of the southern (downside) road approach of Carroll Street, Breeza “… to provide a road approach to the crossing at 90 degrees to the rail alignment” (Exhibit F, tab 6).

61 On 29 March 1994, a memorandum confirmed that funds had been approved for the 1993/1994 financial year for the purposes of carrying out design and construction work on the Carroll Street level crossing. The memorandum also recorded that in spite of the speed restriction, the redesigned work was considered necessary in the interests of safety (Exhibit F, tab 8).

62 Departmental records from time to time noted issues concerning the adequacy of sighting distances at many level crossings and the speed and the nature of vehicles using rail crossings. In a memorandum dated 27 April 1994 on the question of speed restrictions at railway level crossings, it was observed:-

“… the available sighting distance at many of the level crossings was based on a lower maximum train speed than the Xplorers operate at. Hence, when individual level crossings were assessed for compliance with guidelines issued by the Roads and Traffic Authority, based on the higher train speeds, they did not comply.” (Exhibit F, Tab 14)

63 The memorandum recorded that where the sighting distance did not meet the recommended distance shown in the guidelines, a speed restriction would be applied to reduce the train speed pending implementation of civil engineering programmes (eg the removal of trees and shrubs and the provision of flashing lights/warning bell systems).

64 On 2 May 1994, Gunnedah Shire Council confirmed that the Council would construct the new approach roads to the level crossing at chainage approximately 433.4 kilometres (Exhibit F, Tab 16).

65 On 10 May 1994, Freight Rail wrote to the Roads and Traffic Authority on the question of standards applicable at railway level crossings stating that railway engineers were not prepared to adopt the Roads and Traffic Authority standards at that stage (Exhibit F, Tab 19).

66 As noted above, in June 1994, the crossing was reconstructed.

67 In August 1994, a Sight Distance Assessment in relation to Breeza Crossing was conducted. In relation to the four quadrants referred to in the assessment, the “Sight Distances” were indicated as “okay” (Exhibit F, Tab 21).

68 In relation to the relevant quadrant (a1), the “measured available train sight distance for comparison, S3 was indicated as 481 metres”.

69 Internal departmental records reflect discussion in 1999 concerning the development of level crossing standards. At that time, the level crossing standard was TS 3901 which was based on sighting distance requirements in the 1987 guidelines of the then Department of Main Roads.

70 In an overview report of proposed changes, it was stated that existing standards were based on “one road motor vehicle type”. Changes introduced by the Roads and Traffic Authority (RTA) brought into account an additional five second safety margin and the use of crossings by particular types of vehicles, in particular, trucks such as semi-trailers, road trains and B-doubles were brought into account.

71 The overview report stated that the new approach was to adopt a modified version of 1994 RTA guidelines for existing level crossings (Exhibit F, tab 30).

72 In a further “impact statement” which appears to have come into existence in about 1999, it was stated that the 1994 RTA guidelines provided for the assessment of five vehicle types – car, rigid truck, semi-trailer, B-double and road train. It recorded that in “current standards” the design vehicle for assessment of position signs was a car and for stop signs the design vehicle was a large loaded truck.

73 The plaintiff’s case was that the more appropriate standards concerning safe sight distances were included in the manual entitled “Traffic Engineering Manual, s.6, Railway Level Crossing (Draft)” produced by the Roads and Traffic Authority. A copy was included in Exhibit E at Tab 6.

74 The plaintiff also relied upon Appendix 6C of the RTA traffic engineering manual. Appendix 6C entitled “Assessment for the Adequacy of Stop Signs” is cross-referenced to paragraph 6.4.2 of the manual. This was concerned with the subject of “warrants for position signs and stop signs”, both of which are described as “signs used for passive control at level crossings in NSW …” (pp. 6 to 7).

75 The plaintiff referred to the statement within Appendix 6C as follows:-

“The driver of a vehicle stopped at the stop line needs a clear view for a distance (S3) along the rail sufficient to see there is no approaching train travelling at the permissible track speed before the driver starts to drive across the crossing. The distance, S3, is the distance along the track that the fastest train travels in the minimum sighting time. The minimum sighting time is the time it takes a road vehicle to clear the crossing plus a five second safety margin.”

76 In reliance upon Appendix 6C, the plaintiff referred to the “values of Measured Vehicle Clearance Times for Sealed Level Surfaces (single track)” and based thereon the minimum sighting time for semi-trailer vehicles was stated as being a measured value of 12.6 seconds which, together with a five second safety margin, resulted in a specified minimum sighting time of 17.6 seconds (the clearance for a B-double vehicle was specified as 18.6 seconds).

77 It was contended in the Outline of plaintiff’s submissions on system, paragraph 7, that the evidence revealed that the sight distance at the crossing on 19 March 2001 was, at best, approximately 400 metres relying on the evidence given by Mr Hazel and Constable Wheelhouse.

78 Having regard to obstructions to vision claimed to have existed, in particular, a pepper tree, the curve of the track, the height of the grass and undulating ground, it was submitted that the effective sight line along the rails was only 200 to 300 metres. Reliance, in this respect, was placed on the evidence of Mr Stackman and Mr Love. The defendants disputed the contention. The evidence on the matter will be examined below.

(8) THE FACTUAL EVIDENCE

(a) The issues

79 Central to the plaintiff’s case and dependent upon the truck driver’s credibility, is the issue as to whether the truck driver, as he claimed, stopped at the crossing before proceeding to cross over it. If that is determined favourably to the plaintiff, the further issue is whether the vehicle stopped at the stop line, as the truck driver maintained, that is, some six metres from the nearest rail, or at the stop sign, 3.2 metres from the nearest rail. The determination of that issue is relevant to travel distances of the truck and train and sight lines available to the drivers of the vehicles.

80 The defendants’ primary case was that the truck driver failed to stop. Were it to be found that he stopped the vehicle prior to the crossing, the defendant asserted that his evidence in the present proceedings was inconsistent with both his evidence in Local Court proceedings and in his account to police (Exhibit 2). On previous occasions he said he stopped at the stop sign, not the stop line. The defendants’ case was that there was no visible white line on the roadway on the day of the accident. In this respect, they relied upon the evidence of Mr Sheehan in Exhibit 6 and the photograph attached to Detective Sergeant Carnell’s statement, Exhibit K, photo 2.

(b) The evidence of the truck driver: Mr Stackman

81 Mr Stackman in his work as a truck driver over 33 years, had driven a variety of vehicles including semi-trailer trucks.

82 He lived at Scone as at the date of the accident and, as earlier stated, he had taken the truck in question to Newcastle to be loaded. He was then to drive the truck with its load of fertiliser to a property near the township of Carroll.

83 He left Newcastle at midday, the accident, as noted earlier, occurring at approximately 3.29 pm on 19 March 2001.

84 Mr Stackman said that when he drove from the Highway into Carroll Road he used the Jacob brake as he went down that road. The brake cut the power off the engine and “worked as a second brake”. He said it made a quiet rumbling sound, but the sound was not a loud one. He said the Jacob brake was activated when he took his foot off the accelerator.

85 He stated that he went down to the crossing in fourth gear. The turn made by the truck into Carroll Road, he said, was a shallow turn as indicated by a line drawn on Exhibit 1.

86 The angle of the turn into Carroll Road was 65 degrees. He said that was a natural turning circle. He drove at an estimated speed of 20 kilometres per hour in making the turn.

87 Having made the turn, Mr Stackman said in cross-examination that he did not look to his right but was looking to traffic “coming towards me”. However, he said that there was, in fact, no oncoming traffic. He said he did not look for a train until he got to the stop sign. The pepper tree to which reference will be made below, was located at a point further up and parallel to Carroll Road. It, accordingly, would not obstruct the line of sight at the point of the stop line or at the stop sign.

88 He said he changed down into low second gear and stopped at the stop line. He then drove forward and, after the vehicle entered onto the crossing, Mr Stackman said he heard the loud horn of a train. He had previously looked right and left or left and right and did not see the train. He thought the former because he said one naturally first looks to the right. When he heard the horn he decided to keep going. He said he had reached five kilometres per hour when he heard the horn. He then accelerated to nine or 10 kilometres per hour, the most one could achieve in second gear. His evidence was that he had a view of 200 to 300 metres down the railway line from the crossing.

89 Mr Stackman stated that the truck was only partly on the line when he heard the train horn about 300 metres away although he then qualified that and said it could have been closer than that.

90 He said that “the steer wheels would have been between the two lines of the crossing” when he heard the horn.

91 In cross-examination he said that he had his window partly open and the radio was not on. He said he would, accordingly, have been able to hear the train horn if it was sounding as he turned into Carroll Road. He insisted that he only heard the horn when “I was on the crossing itself”.

92 The control box, to which reference has been made above, was located to his right. He said the grass/vegetation to his right was six to eight feet high. The pepper tree, as noted above, was located in the general area to his right further up Carroll Road.

93 Mr Stackman received minor injury to his arm in the accident. He was interviewed by police at the accident site.

94 He said he returned to the collision site the day after the accident with a bobcat and front-end loader to recover the fertiliser. That morning, he noticed the prime mover diesel tanks and steps on the left hand side were “dented and screwed around”. The sleeper cab was “split down the side”. The left hand mirror was damaged as was the left hand front of the bumper bar.

95 Whilst there that day, he said he noticed the vegetation to his right, “the vegetation was probably higher than me, and I’m six foot and a half”. He estimated it was “somewhere between six and eight feet high”. He said photo 7 in Exhibit A depicted the signal box. He said there was grass growing right up to the signal box a height of six to eight feet. He made these observations, having walked back up the line about 150 metres in the direction from which the train had come from. He said, sitting in his cabin, his “actual view” down the line to the south “would probably be 200 to 300 metres, that’s all I had, a view from sitting in the cab”.

96 When asked what prevented him from viewing further than that, he replied, “possibly only the vegetation that was on the line, along the edge of the line”.

97 In cross-examination, he said as he approached the corner of Carroll Road he got a better view to Breeza village. Approaching, turning right into Carroll Road, he could see 100 metres ahead along the road.

98 Mr Stackman said the crossing was “rough”, adding “… you cannot just drive across, you have got to take your time to get across it, it is too rough”. He said after he put the vehicle in second gear, he stayed in second gear until the collision. He said his only action was to put his foot on the accelerator whilst in second gear, hoping to clear the line.

99 Mr Stackman said that since the accident the vegetation had been “mowed back down” and “the old tree has been taken, it is gone”. The “old tree”, he said, was there at the time of the accident.

100 He said that when he stopped at the stop line, his view was obstructed partly by a tree, since removed, and some long grass. At the stop line, it was difficult to see very far down the line. He said although his view was obstructed by vegetation and a tree, he did not move forward because he said he would have been on the line. As discussed below, the evidence established that there had not been a tree as Mr Stackman asserted (apart from the pepper tree further up the hill).

101 Mr Stackman estimated there was a distance of between three to four metres between the stop line and the stop sign.

102 He admitted to having crossed the Breeza crossing many times before the accident. He said he always stopped at the stop line. He said he always stopped both sides of the crossing going both ways. He said that he had never failed to stop at this crossing.

103 He said he was travelling nine to 10 kilometres per hour when he was hit. He said it would be wrong to say the speed of the truck was 15 kilometres per hour when it entered the crossing. He re-affirmed that he stopped and his maximum speed thereafter would have been 10 kilometres per hour.

104 Mr Stackman agreed that after he was charged by police with failure to stop, he again attended the crossing on 17 December 2001 with an expert, Mr Hazel to reconstruct the events of the accident. The repaired vehicle that he was driving when the collision occurred with a similar trailer attached was used on 17 December 2001. The truck was loaded with a similar load to that being carried on the date of the accident (42.3 ton). He agreed that he told Mr Hazel he had stopped on the stop line. He told police he had stopped at the stop sign. He said he did not stop at the stop sign, but at the stop line when re-enacting the circumstances of his driving of the vehicle on the day of the collision. He did two “runs” in the same direction as on the date of the accident during the re-enactment on 17 December 2001.

105 On the day of the accident, the trailer had a frame and a tarpaulin in place. Photo 9 (second series) in Exhibit A taken on 12 March 2002 depicted a vehicle which Mr Stackman agreed appeared to be a photograph of a similar vehicle to the one he drove on 19 March 2001.

106 Mr Stackman said that on 12 March 2002, he drove the vehicle once by way of re-enactment making, in all, four re-enactments on the two occasions he went there with Mr Hazel.

107 The issue as to whether the vegetation was at a level that interfered with or obstructed the truck driver’s line of sight requires consideration even if it were to be found that the truck driver failed to stop before the crossing.

108 Mr Stackman was shown Exhibit G, a copy of his statement to police. Paragraph 3 of the statement referred to him stopping at the stop sign, not the stop line. He said that he had made a mistake in that respect when giving his version of the accident to Constable Wheelhouse. He maintained the position that he had actually stopped at the stop line.

109 It was put to Mr Stackman that he told Mr Hazel that he looked to the south in the direction of the train as he turned off the highway. He said he could not now recall whether he did say that. He said he could not recall if Mr Hazel had been told by him that he stopped at the stop sign. He would not agree that when re-enacting the accident with Mr Hazel he started at the stop sign from the stationary position. He said he started from the stop line. It was put to him from the transcript of the Local Court proceedings (p.68, line 45) that he stopped at the stop sign.

110 He said he had intended to tell the magistrate he had stopped at the stop line, not the stop sign, as recorded in the transcript of the police proceedings. He said he must have made a mistake in saying he had stopped at the stop sign.

111 He told the police the vehicle went over on its side and then “skid” forward (paragraph 4 of Exhibit G). He had said in evidence in chief it had not moved forward. He said he may have made a mistake in telling Constable Wheelhouse that after the vehicle laid over on its side it skidded forwarded. He maintained the truck did not skid forward after going over onto its side.

112 He was shown Exhibit 2, a motor vehicle claim form. His evidence in the present proceedings that the truck was not travelling at 15 kilometres per hour at the time of the accident was contradicted by an entry in the claim form, which recorded (at p.2) that the speed of the vehicle as at the time of the accident was 15 kilometres per hour. He agreed he had given his supervisor that speed as recorded in the signed claim form. He also agreed that entry was inconsistent with his evidence in these proceedings.

113 In the present proceedings, he said that whilst going down Carroll Road he did not look left and right. It was put to him that he had given inconsistent evidence in that respect in these proceedings. It was put to him, in fact, he had seen the train at a distance and decided he could beat the train and went straight through the crossing without stopping. He denied that that had been the case.

114 As noted above, his estimate in evidence was that the train was 300 metres away when he heard the horn. In the Local Court proceedings (transcript, p.67), he said he was not able to say for sure how far away the train was and did not provide any estimate of that distance. It was put to him in the present proceedings that the train was 100 metres away, not 300 metres, when he first saw it. He denied that. It was put that his evidence with regard to the 300 metres was untrue. He also denied that proposition.

115 It was put to him that evidence in these proceedings as to the tree and vegetation being present and obstructing his view was false. It was also put to him that he approached Carroll Road from the highway following a line approximately by the red line on Exhibit 1 and that, as he came around the corner, he travelled at a speed in excess of 15 kilometres per hour, that he could hear a horn as he travelled down Carroll Road, that he did not use the Jacob brake, did not stop at all and drove straight through the crossing and his evidence to the contrary in these proceedings was untrue. He denied all of those matters.

116 In summary, the matters relevant to an assessment of Mr Stackman’s reliability include:-

(a) His evidence of the presence of a stop line on Carroll Road on the day of the accident which was contrary to other evidence that no such line existed.

(b) His evidence that he brought the vehicle to a stop at the stop line is contrary to his earlier accounts he had given that he stopped the vehicle at the stop sign .

(c) The evidence that there was a second tree which partly or momentarily obstructed his line of sight was factually incorrect. The evidence plainly established that there was no second tree in the relevant area.

(d) The evidence given by him that vegetation could have “possibly” obstructed his line of sight was an issue raised in these proceedings but had not raised by him previously when interviewed by either the police or by Mr Hazel or on any other occasion. Other evidence on this aspect, which I accept (see below), conflicts with Mr Stackman’s evidence.

(e) Mr Stackman’s evidence that the line of sight in a southerly direction was limited to 300 metres was established as being factually incorrect.

(f) Mr Stackman’s evidence as to his distance from the train when first seen was inconsistent with his evidence in the Local Court.

117 The determination of liability, of course, turns upon resolution of the central conflict in the evidence of the truck driver and the train driver. If the conflict was resolved by an acceptance of the truck driver’s version of events, then issues concerning the design and construction of the crossing would arise for determination as possible contributors to the collision. Additionally, in that event, the failure by the first defendant to reduce the permitted maximum train speed and the alleged failures by the train driver, if proved, would also be causally relevant factors.

118 In making findings, it has also been necessary to give consideration to the objective evidence of train events as recorded by the data logger. Certain of those events potentially assist in determining which of the conflicting accounts is more probably the correct account. I will analyse in further detail the matters concerning Mr Stackman’s evidence to which I have adverted above.

(a) Inconsistent evidence on place of stopping

119 Mr Stackman, in the Local Court proceedings, said on more than one occasion that he stopped at the stop sign and that he stopped because of the stop sign. In his statement to police on 22 March 2001 (Exhibit G) he said “… I stopped at a stop sign at a train level crossing” (paragraph 3).

120 There was no attempt in the present proceedings to explain his earlier statements of having stopped at the stop sign. There was no attempt to suggest that, if he had earlier been in error, how an error of that kind could have been repeatedly made. Late in his cross-examination, he acknowledged that his police statement recorded that he said he stopped at the stop sign and that that was a “mistake”.

121 Mr Hazel was engaged for the purposes of the defence of the police proceedings brought against Mr Stackman. Mr Hazel attended the site with Mr Stackman on 28 March 2001 and took the first series of photographs in Exhibit A.

122 Mr Hazel prepared a report dated 19 December 2001 for the purpose of giving evidence in the Local Court proceedings. He was asked in cross-examination about the history obtained from Mr Stackman recorded in his report.

“Q. You said, "The driver of V2 has told this writer that he looked to the south as he turned off the highway and saw no train, that he stopped V2 at the stop sign and looked both ways and saw no train."
A. Yes.

Q. That reflects what Mr Stackman told you?
A. If I wrote it he did, yes.” (emphasis added)

(b) Incorrect evidence as to a second tree

123 Mr Stackman’s evidence was that there had been a tree, a second tree, in the area at the time of the accident. He referred to a tree located closer to the line than the pepper tree, described earlier. He stated that upon returning to the area of the crossing subsequently he noted that the tree had been taken away. Although he persisted in maintaining his account of a second tree, the evidence firmly established that he was incorrect. There was no second tree in existence on the day of the accident.

(c) The absence of earlier accounts on the state of the vegetation

124 In relation to the height of the grass, Mr Stackman said in evidence in these proceedings, the day after the accident he walked along the track and observed that the grass was over his head being between six and eight feet in height. He said in cross-examination there was “a lot of it around the signal box at the time”. He was shown photograph 7 in Exhibit A (taken on 28 March 2001). That photograph does not depict grass to the height stated by Mr Stackman. He, however, said the grass was six to eight feet right up to the signal box shown in the photograph. There was no evidence that the grass had been slashed or cut between 19 March 2001 and 28 March 2001. This, along with contradictory evidence from Senior Constable Wheelhouse and Mr Sheehan, revealed Mr Stackman’s evidence to be unreliable on the height of the grass.

125 His evidence in these proceedings, in that regard, is to be assessed in the light of his earlier accounts. He neither referred nor suggested in his police statement that the vegetation or any other object had obscured or interfered with his vision. Nor did Mr Stackman refer to vegetation or the possibility of obstruction by vegetation in his account to Mr Hazel, the expert he or the plaintiff had engaged. Similarly, in giving evidence before the Local Court, he did not refer to the vegetation as having possibly obstructed his line of sight. I accept Senior Constable Wheelhouse’s evidence that he walked 300 metres south of the crossing and kept looking backwards towards the stop sign and that it was not until he had walked 400 metres that he could no longer see the stop sign.

(d) Inconsistent evidence as to when the train was initially seen

126 Mr Stackman’s unreliability as a witness was further evident from his evidence as to the distance between the crossing and the train when he first saw it. In these proceedings, he estimated the train was 300 metres away when he first heard the train horn, his vehicle at that point he said having entered the crossing. It was put to him in cross-examination that the train was no more than 100 metres away at that point. In the Local Court proceedings, he was unable to say at what distance he saw the train. In cross-examination his evidence on the matter was put to him:-

“Q. You were asked in the police proceedings at T77 line 25:-

‘Q. When you say you looked right, how far could you see?
A. When I pulled up and stopped I looked to the left, I looked back to the right, and as I was going off I couldn't see no train coming so I proceeded across that line, and by the time I got the prime mover on the line, next thing I hear the horn coming.
Q. Are you able to say how far you could see along the line at that time?
A. Oh, I couldn't say approximately, no, I couldn't. I wouldn't be able to say approximately.’”

127 In the present proceedings, it was put to him in cross-examination:-

“Q. I suggest to you, Mr Stackman, that the evidence that you have given about how far you could see down the line in this court is a reconstruction, it is simply untrue.
A. No, it's not untrue what I told you yesterday. I give you the estimation. An estimation it could be 200, it could be 300, it could be 400. The estimation which I'd given in the first evidence and the estimation I give yesterday, an estimation, not a true answer, an estimation. I didn't go and step it out.

Q. You say to his Honour that giving evidence yesterday you were able to give an estimate although you weren't able to give that estimate in the police proceedings?
A. No, that's correct. I didn't give an estimation of the distance.”

128 Mr Stackman’s evidence on the line of sight available to him from the crossing varied considerably. In his statement, Exhibit AJ, paragraph 27, he stated that he could not see along the rail tracks for more than 150 metres. In evidence, he stated that his actual view south down the line “would probably be 200 to 300 metres”.

129 Having considered the whole of Mr Stackman’s evidence including, in particular, the matters referred to above and, having closely observed him as he gave his evidence, I have concluded that his account of events was affected by inconsistencies and was inaccurate and unreliable on material aspects.

(e) The evidence of the train driver: Mr Mathews

130 Mr Bruce Mathews has been a train driver since 1978. He has driven Xplorer trains since 1988.

131 On 19 March 2001, he drove the Xplorer from Werris Creek to Moree. The train proceeded off Mooki Bridge to the site over a rise. He stated that “…you’re letting the rise as you are approaching Breeza run some of the speed out of your train so you might only be in idle or one-third throttle, just to keep it sort of running up over the rise. Depending whether you’re running on time you either let it run … into Breeza or, if you’re running late, you might give it another little bit more throttle just to keep the speed up a bit.”

132 He said Breeza was a scheduled stop. In 2001, he did the run about twice a fortnight. He said had been involved in a level crossing accident six weeks before the subject accident at Kelly’s Plains.

133 There was no suggestion in the evidence that the train in question was running behind time. As it approached Breeza Creek, Mr Mathews said he noticed a truck turning off the highway, approaching the crossing. He started to sound the horn after he saw the truck turn until just shortly before impact. “Sounding the whistle” is activated by a lever for the “country whistle” which he said is louder than the city whistle. It also activates a strobe light on top of the train.

134 He observed the truck either when it turned off the highway or just after it had turned and he saw it proceeding down Carroll Road. He said that it did not stop at the crossing. He said that the truck entered the crossing at the time he first applied the brakes. He said he was “watching the truck the whole time”.

135 In cross-examination, he said he was travelling at approximately 80 kilometres per hour when he first sounded the horn. However, he accepted that the data logger recorded his speed at that point as having been between 90 and 93 kilometres per hour.

136 He said that the truck was actually on the crossing when he applied the brakes but that he did not see how much of it was on the crossing.

137 He said he had previously given an estimate of 400 metres from the crossing and when the horn was activated. He had also previously given an estimate of 200 metres and an estimate to police of “200 yards” away when he blew the horn. He said he could not provide a better estimate of how far away he was when he first applied the brakes. He accepted he may have told the police he was 20 to 30 metres away when he applied the brakes.

138 He said the truck was not speeding. It “wasn’t going fast” in going through the crossing. In the Local Court proceedings, he was asked whether the truck passed slowly through the crossing. He replied that it did. Exhibit O in these proceedings is the transcript of evidence given by Mr Mathews to the Local Court on 18 January 2002.

139 He was asked whether there was a speed board prior to the crossing. He was shown the photographs in Exhibit A (second series, No. 6). That showed two signs with numbers. The lower sign was 125 kilometres per hour. He thought it was there on the day of the accident and such signs appeared at locations on the track.

140 He stated that when he first saw the truck turn off the highway, he was “probably just coming out of the cutting.” He could not give an estimate of the distance from the cutting to the crossing.

141 There is a home signal near the crossing. It is a tall object with a signal light on the top. If the light is red, the train must stop at the signal. If the light is amber, the train may proceed.

142 Mr Mathews stated that as he emerged from the cutting he would have seen the home signal at some point, but he could not say how far away it was when he first saw it. He said he was watching to see what colour the signal was. He saw it was amber, but he disputed that at that time he saw the truck for the first time it was just getting onto the track.

143 Mr Mathews acknowledged that he had previously given varying accounts of the distance from the crossing when he sounded the horn (400 metres, 500 metres and 200 metres). He said he was not good at judging distances. However, he said he was very sure about other matters.

144 In summary, Mr Mathews’ evidence was:-

(a) That he saw the truck well prior to it reaching the crossing after it turned off the highway.

(b) He decided that he would give the truck driver plenty of warning and sounded the horn as recorded by the data logger (the evidence of witnesses on the train and others nearby also established that the horn sounded for a longer period than a normal signal on approach).

(c) The truck did not stop. It continued through the crossing.

(d) He first applied the brakes when the truck entered the crossing.

145 Each of the points (a) to (d) were made by Mr Mathews in his statement to police on 21 March 2001 (Exhibit P).

146 Mr Mathews impressed as a witness. He did not appear to be given to overstatement or exaggeration. He, in fact, conveyed an impression of being unemotionally involved and of being detached and objective. I am mindful of the variations and inconsistencies in his accounts as to distances and I have taken them into account in my assessment of him as a witness. Mr Mathews readily conceded that he did not consider himself good on judging distances and, given that I consider him otherwise to have been consistent on material matters, I do not consider that his variations/inconsistencies on distances undermine or detract from my assessment of him as an essentially reliable witness.

(f) The evidence of resident: Mrs Lawlor

147 Mrs Beverley Faith Lawlor said that she has been a resident of the township of Breeza for many years. Her home at that time was almost directly in line with the Breeza railway crossing about 200 metres south west of the crossing.

148 On the afternoon of 19 March 2001, she had visited her daughter-in-law, who lived two houses to the west of her home. She said in her statement made on 25 January 2003, that she and her daughter-in-law went onto the verandah of her sister in law’s home. They were waiting for her grandson to arrive home by bus, due at 3.35 pm.

149 Exhibit 3, a photograph taken in 2005, was tendered solely for the purpose of identifying her house.

150 Mrs Lawlor said she had a clear view down Carroll Road to the crossing from the corner. However, she said she could only see east of the line as far as the signal boxes.

151 On the day in question, she said she heard the horn of the train sound. She later said it was a longer sounding train horn than the usual train horn. She went to the railing to see what was going on. She saw Mr Stackman’s truck (red in colour) come around the corner into Carroll Road. She recognised it was “Martin’s truck”. Her husband had done business with the plaintiff company before that day.

152 She said she did not hear the Jacobs brakes or the air brakes. She said, notwithstanding the train horn sound, she still would have been able to hear the brakes if they had activated. In cross-examination, she said she could hear it change gears. She could still hear the horn when the truck got to the crossing. The train horn was still blowing and then stopped. In relation to the truck, she stated:-

488 Such refurbishment, Mr Olsen stated, is typically a major undertaking performed on a contractual basis. He stated that each car would be taken out of service for a considerable period for such major works to be performed. He stated:-

“… the half-life refurbishment has sometimes been referred to as a ‘half-life, half-cost’ alternative to procurement of new or replaced vehicles and for an Xplorer car could reasonably be expected to cost of the order of $1,500,000 per car on a fleet wide basis.”

489 In footnote 20 to his report, Mr Olsen stated, in relation to the amount of $1,500,000, “ie., new car cost (at time of refurbishment) or approximately $3 million. Fifty percent equals $1,500,000”.

490 Mr Olsen, in his March 2006 report (Exhibit AD), referred to further material including, in particular, the statements of Mr Clarke and Mr Mair. Exhibit AD incorporates Table 7: Analysis Summary. Item 13 relates to the “Deferred Expenditure Benefit”. Mr Olsen discounted what he termed the $150,000 benefit to the amount of $29,300 in 2001 dollars. Mr Olsen stated in Exhibit AD:-

“The reasoning behind EA2504’s planned half-life refurbishment being scheduled near the commencement of the refurbishment programme in 2006 rather than towards the end (2008) is not stated. The plausibility of deferring EA2504’s half-life refurbishment, given the relatively recent engine and bogie works, and the general attention to specific items during the repair works, remains a valid consideration, offering potential commercial advantages. No argument against such considerations have been sighted.
The information provided regarding the half-life refurbishment programme as planned, enables the deferred benefit calculation to be revised as follows:-
Assumptions:-
• Cost of half-life refurbishment: $1,500,000 (half-cost as per original report).
• Plausible deferral of 18 months (assumed deferral from late 2006 to early 2008).
• Interest rate: five percent.
• Benefit: $1,500,000, 1.5 years, 5% equals $112,500 (in 2006 $).”

491 The result of the final analysis undertaken by Mr Olsen is that he originally estimated the off-set claimed by the cross-defendant at $150,000 based on two years’ deferral and subsequently reduced it to $112,500 based upon a one and a half year deferral in the light of the statements of Mr Clarke and Mr Mair as to the actual refurbishment programme.

492 Mr Olsen then went on to state in his report (p.7) “the repairs to EA2504 included a number of aspects (but not all) which would be expected in a half-life refurbishment programme, such as cab fixture renewal, major re-wiring, etc. It is plausible that this work may enable half-life refurbishment of EA2504 to be somewhat deferred (perhaps to be the last of the fleet refurbished) with the accrual of financial benefits to SRA”.

493 He then went on to calculate the value of the deferred expenditure. In this respect, he stated (at pp.7 to 8):-

“Assuming an interest rate of 5% and a mid-life refurbishment programme completed in two years, commencing and ending one month later than would otherwise be the case, the deferred expenditure would result in approximately $150,000 ($1,500,000 @ 5% for 2 years) benefit of the time of the overhaul programme (notionally due in 2008).
To adjust this future saving to 2001 dollars, consistent with the amounts discussed throughout this report, assuming a discount rate of 6%, an amount of approximately $29,300 is indicated as the benefit to SRA.”

494 In footnote 21 to his report, Mr Olsen stated that two years “is assumed for the purposes of this calculation to be a reasonable minimum estimate of the period by which expenditure on mid-life overhaul of EA2504 could plausibly be deferred with a fleet of 21 Xplorers. A mid-life refurbishment programme could reasonably be expected to be undertaken with one or two cars out of service at any one time, due to operational demands on the fleet, each car being out of service for a minimum of several weeks, reasonably up to 16 weeks or so, depending upon the exact scope of works, resulting in at least 24 months for programme duration”.

495 Mr Olsen also acknowledged (footnote 22) that the discount rate chosen of six percent was “somewhat arbitrary”. However, he stated it was intended to include any necessary allowance for inflation. He provided an example of the “sensitivity” of the calculation.

496 The cross-claimant challenged the analysis of deferred expenditure. In this respect, reliance was placed upon the absence of evidence as to the following:-

(a) The items repaired by Bombardier that would be included in a half-life refurbishment programme.

(b) That Mr Olsen spoke in terms that the “work” undertaken by repair but did not establish it as necessarily affecting the half-life refurbishment of EA2504. Mr Olsen’s opinion was that “It is plausible that this work may enable half-life refurbishment … to be somewhat deferred” .

(c) Mr Olsen proceeded upon an assumption that the half-life refurbishment of an Xplorer car “could reasonably be expected” to be of the order of $1,500,000 per car based upon an assumed cost of $3 million.

497 In relation to the above matters, the cross-claimant referred to Mr Clarke’s evidence (Exhibit 19, paragraph 7) as establishing that car EA2504 cost approximately $3.2 million to purchase new in 1993 and that in 2001 it had a depreciated value of approximately $2 million. It was contended that there was no evidence of the current new cost of an Xplorer rail car or the likely new cost in 2008.

498 It was further contended that there was no evidence upon which any assessment could be made of the reliability of the estimate of $1.5 million for the cost of the half-life refurbishment.

499 The cross-defendant relied upon the evidence of Mr Clarke (Exhibit 20, paragraph 13) and the evidence of Mr Mair (Exhibit 22) which was said to be “unchallenged”. A matter of importance raised by Mr Mair in his statement was that a very large percentage of the work involved in the planned half-life refurbishment programme for the Xplorer fleet (as detailed in his statement) was not, in fact, the subject of work carried out by way of repairs in 2001. In a limited number of aspects, there was some overlap, but that some of the work he said would be the subject of routine maintenance or repair when damage or defects were the result of normal wear and tear. Accordingly, it was said there would be no necessity for such items to be the subject of a half-life refurbishment. Thus, it was contended that there was no savings to the cross-claimant in those respects.

500 In his statement dated 13 February 2006 (Exhibit 22), Mr Mair discussed in some detail the refurbishment programme for the Xplorer fleet. He stated that there are 23 Xplorer rail cars and 28 Endeavour cars and that the refurbishment for the two fleets would be expected to take place between July 2006 and June 2008.

501 In response to paragraph 3.1.5 of Mr Olsen’s report, Mr Mair stated that a scope of works for the refurbishment programme in 2006 had been prepared. A copy of it was exhibited to his statement (TAB 1).

502 By reference to TAB 1 (the scope of work having reached the stage of being substantially settled but not yet finalised) Mr Mair compared each item of work with Bombardier’s pre-repair report (TAB 2) and Bombardier’s post-repair works log (TAB 3).

503 Mr Mair, in paragraph 16 of his statement, set out his comparison of what he termed “Bombardier’s repair work in 2001” against each of the items proposed for the 2006 refurbishment programme set out in TAB 1. It is unnecessary here to set out the full detail of Mr Mair’s analysis in respect of items no. 1 to 42. It is sufficient to state that paragraph 16 of his statement provides the factual substratum for his conclusion in paragraph 17 which is in the following terms:-

“17. For these reasons, there will not be any savings to SRA/RailCorp arising from the repairs to EA2504 in 2001 when the car undergoes its half-life refurbishment during the programme to commence in 2006.”

504 In paragraph 18 of his statement, Mr Mair stated that there would not be a deferral of any aspect of car EA2504’s half-life refurbishment as a consequence of the repair work done in 2001. He added that there were no technological developments incorporated into the rail car during the 2001 repairs.

505 There was no evidence in reply to Mr Mair’s statement and his detailed account remains uncontradicted. There is no reason why I ought not to accept Mr Mair as having presented an accurate and detailed account and I do so. On that basis, the foundation for Mr Olsen’s deferred expenditure analysis was not established and, accordingly, his conclusion as to deferred expenditure cannot be accepted. On that basis, I do not consider that the cross-defendant has established the deferred expenditure contended for.

Orders

506 On the basis of the conclusions expressed above, there will be orders as follows:-

(a) Judgment for the defendants on the Amended Statement of Claim.

(b) Judgment for the cross-claimant (State Rail) against the plaintiff on the cross-claim in respect of the following amounts:-

(i) An amount of $25,437.21 in respect of the cross-claimant’s “bussing claim”.
(ii) An amount of $949,974.08 in respect of the repairs to the Xplorer rail car EA2504.
(iii) Interest in accordance with the provisions of the Uniform Civil Procedure Rules.


(c) I direct the parties to lodge short minutes of orders to give effect to the judgment in accordance with paragraph (b) above,

(d) I will re-list the proceedings on a date to be fixed for the purpose of hearing submissions on costs in the event that the parties are unable to agree upon the appropriate orders as to costs.

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19/05/2008 - . - Paragraph(s) 213, 471, 499