Manthe v BHP Billiton Iron Ore Pty Ltd
[2011] WADC 160
•29 SEPTEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MANTHE -v- BHP BILLITON IRON ORE PTY LTD [2011] WADC 160
CORAM: CURTHOYS DCJ
HEARD: 8-9 & 12-16 SEPTEMBER 2011
DELIVERED : 29 SEPTEMBER 2011
FILE NO/S: CIV 3063 of 2010
BETWEEN: FREDERICK WILLIAM OTTO MANTHE
Plaintiff
AND
BHP BILLITON IRON ORE PTY LTD
Defendant
Catchwords:
Personal injury - Person of 'normal fortitude' - Foreseeability of psychiatric injury from train derailment
Legislation:
Civil Liability Act 2002
Result:
Plaintiff awarded damages of $195,919.80
Representation:
Counsel:
Plaintiff: Mr K Bradford
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Bradford & Co
Defendant: SRB Legal
Case(s) referred to in judgment(s):
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
Hatcher v Cohn (2004) 139 FCR 425
Li v Minister for Immigration and Citizenship [2010] FMCA 583
Shorey v PT Limited [2003] 77 ALJR 1104
Tame v New South Wales (2002) 211 CLR 317
Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22
CURTHOYS DCJ: Frederick Manthe was born on 27 June 1957. He claims damages from BHP Billiton Iron Ore Pty Ltd (BHP) for injuries that he alleges he suffered as a result of an iron ore train derailment at North Coonarie Siding on 1 November 2009. At that time, he was employed by United Group Infrastructure Pty Ltd (United).
Mr Manthe's claim relates, in part, to physical injuries. He asserts that those physical injuries have now resolved. His major claim is for psychiatric/psychological harm, specifically post-traumatic stress disorder and depression arising from the train derailment.
Mr Manthe's employment history prior to commencing with United
Mr Manthe began an apprenticeship as a signal technician with South African Railways in 1976. In 1977, he started two years of national service in the South African army, during which time he was on active duty. After completing his national service in 1979 he returned to complete his apprenticeship with South African Railways. He finished that apprenticeship in 1980.
Mr Manthe was recruited by United from South Africa to work as a signal technician in 2008. He moved to Australia at that time.
Mr Manthe's evidence-in-chief was that, apart from one year when he ran a bed and breakfast in South Africa with his wife, he worked continuously as a signal technician until he left for Australia in 2008. A somewhat different story emerged in cross-examination (ts 176 ‑ 180). Whilst that might arguably go to credit the difference is otherwise irrelevant. I do not regard the difference as sufficient to draw any adverse inference as to Mr Manthe's credit. What can be concluded is that Mr Manthe was an experienced signal technician who was competent to take up employment with United.
Mr Manthe's pre-employment health assessment form
On 10 March 2008 Mr Manthe signed a pre‑employment health assessment form. He was required to do so prior to being employed by United (exhibit 9 pages 1 ‑ 3).
The form asked various questions about Mr Manthe's medical history and required an examination by a doctor.
Nervous disorders
Relevantly, the form asked, 'Have you suffered from any of the following: Nervous disorders (including phobias, anxiety, depression)?'. Mr Manthe answered 'No' to this question.
The stabbing incident during military service
Mr Manthe was seen by Dr Edwards‑Smith, a psychiatrist in Australia. He gave a history to Dr Edwards‑Smith (exhibit 9 page 24) in relation to his military service which was summarised by Dr Edwards‑Smith as follows:
[During] his compulsory military service, Mr Manthe had been exposed to combat-type experiences during his service and had also experienced an extremely traumatic incident when he and his colleagues were imprisoned by local terrorists, tortured and Mr Manthe was severely physically injured, stabbed and left for dead.
Mr Manthe also gave Dr Peter McCarthy, another psychiatrist, a history of being badly injured and bayoneted in the stomach in an ambush during his military service (exhibit 9 page 68).
In Mr Manthe's oral evidence he described a vertical cut in his stomach that allowed his intestines to protrude, which he claims resulted from being stabbed while on military service.
The health assessment form that Mr Manthe was required to complete prior to being employed by United included a general heading 'Physical Examination'. That was followed by a subsection that reads 'abdomen: Scars'. These headings required the doctor examining Mr Manthe to detail any scarring. Mr Manthe's form included an answer that read: 'Yes, laparotomy after injury in army' (exhibit 9 page 5).
Mr Manthe gave a reasonably consistent history of being stabbed and left for dead (exhibit 39 page 169, ts 514). There were some slight discrepancies but I do not regard them as significant given how long ago they occurred. I do not regard the inconsistencies as impacting on Mr Manthe's credibility. The existence of the scar on Mr Manthe's abdomen supports Mr Manthe's evidence that he was stabbed during an incident while on military service.
I accept Mr Manthe's evidence that he underwent a traumatic incident during his military service which involved his being stabbed and left for dead.
Was the stabbing incident likely to lead to post-traumatic stress disorder?
Dr McCarthy's opinion was that Mr Manthe was highly likely to have developed a diagnosable psychiatric disorder after such an incident (exhibit 9 page 103). Dr Edwards-Smith (ts 503) and Dr Oleh Kay, also a psychiatrist, (ts 280) expressed similar opinions. I accept those opinions.
Did Mr Manthe state in his histories to his doctors that he underwent some form of psychological/psychiatric treatment as a result of the stabbing?
Dr McCarthy's report states:
[Mr Manthe] has a history of Post-Traumatic Stress Disorder dating from his military and other experiences in South Africa. He says that at the time he was seen by army doctors, diagnosed with Post-Traumatic Stress Disorder and received treatment. It is not clear that he has received any specialist psychiatric or psychological treatment for this condition. (exhibit 9 page 74)
Dr Edwards-Smith's report states that:
35 years ago he had undergone a period of counselling in the process of his discharge from the special forces in the South African Army. (exhibit 9 page 24)
Mr Manthe was seen by Lloyd D'Castro, a psychologist. Mr D'Castro's notes record that Mr Manthe gave a history of having some treatment by the army psychologists. He notes that Mr Manthe spoke of about five years of part‑time treatments and 12 sessions of electroconvulsive therapy (ECT) (exhibit 39 page 175, ts 516).
Dr Kay's evidence was that Mr Manthe would not ordinarily have had ECT in the late 70s unless he was suffering from a severe depressive disorder (ts 285).
Mr Manthe also acknowledged 'previous psychological/psychiatric events' to Dr Joel Silbert, an occupational physician (exhibit 9 page 31).
I accept the evidence of Dr McCarthy, Dr Edwards-Smith, Mr D'Castro and Dr Silbert that Mr Manthe told them he underwent some form of psychological/psychiatric treatment as a result of the stabbing incident, on or shortly following his discharge from the army.
Did Mr Manthe suffer from a nervous disorder as a result of the stabbing?
I find that, contrary to what he claimed on his pre‑employment health assessment form, Mr Manthe did suffer from a nervous disorder - either post‑traumatic stress disorder or a severe depressive disorder, as a result of the stabbing, for the following reasons:
a)Mr Manthe was stabbed during his military service;
b)the nature of the stabbing is such that it is likely that he would have developed a diagnosable psychiatric disorder;
c)he gave a history to various persons of having undergone counselling and/or ECT treatment.
Mr Manthe should have answered yes to 'nervous disorder'
The consequence of the finding that Mr Manthe suffered from a diagnosable psychiatric disorder as a result of the stabbing is that he should have answered yes to the question 'Have you suffered from any of the following: 'Nervous disorders (including phobias, anxiety, depression)?'. His answer was, in the circumstances, misleading.
Did Mr Manthe simply forget?
The form makes reference to the laparotomy (exhibit 9 page 5) which occurred as a result of the stabbing (ts 95). This incident was central to Mr Manthe's psychiatric disorder. I do not accept that Mr Manthe simply forgot the incident at the time he completed the form, given that the form makes specific reference to the laparotomy.
Mr Manthe's attempt to downplay his history of ECT treatment
A further matter can conveniently be dealt with at this point. ECT treatment is a serious form of medical treatment. In his examination‑in‑chief Mr Manthe was asked if he received any psychological or psychiatric treatment. He stated in response:
We used to shock each other and play the fool, but otherwise I had nothing. (ts 97)
Mr Clyne cross-examined Mr Manthe concerning some notes made by Mr D'Castro. When Mr Clyne asked Mr Manthe about Mr D'Castro's notes, which indicated that Mr Manthe had undergone 12 sessions of ECT treatment, Mr Manthe responded (ts 192, see also ts 196):
... a week after we finished the military service, a couple of us went up to Bloemfontein and we played around with it.
CLYNE, MR: Played around with what - - - Shocking each other, just like kids normally do.
ECT times 12 - - - Yeah. We used to shock each other.
Electro convulsive treatment - - - Yes. But it wasn't that. It was just a normal steel - like I said to you, the D'Castro was tell me what it was. I told him what it was. It was just a normal style like a steel helmet with some netting over it and we wet it and we shocked each other, the hand thing.
Mr Manthe's explanation of this as the ECT treatment he underwent is simply not believable. I find that Mr Manthe understood that he had not provided an accurate answer as to whether he suffered from any 'Nervous disorders (including phobias, anxiety, depression)' and that he attempted to play down the significance of the treatment so as to suggest that he had answered the question relating to nervous disorders correctly.
High blood pressure and diabetes
That pre-employment health assessment form also asked 'Have you had any of the following problems (please tick)'. The list included 'High Blood Pressure' and 'Diabetes'. Mr Manthe circled 'No' in each case.
Mr Manthe's history of high blood pressure and diabetes
Between 1995 and 2008 Mr Manthe was a patient of Dr Andre Loots in South Africa. On 8 February 2011 Dr Loots wrote a letter (exhibit 9 pages 116 ‑ 117) advising that 'during this time [Mr Manthe] was seen for the following conditions: … raised blood pressure; raised blood sugar …'.
Dr Loots' letter continued:
I have last examined [Mr Manthe] on 23-03-08 at my current practice with the following findings: treatment for hypertension and non‑insulin dependant diabetes.
Mr Manthe understood that hypertension referred to high blood pressure (ts 229).
Although Mr Manthe's pre-employment health assessment form is dated 10 March 2008 (13 days prior to 23 March 2008 – Dr Loots' last examination), I do not believe that his high blood pressure and diabetes had come on in the intervening 13 days. It is evident from the first page of Dr Loots' letter that Mr Manthe's conditions were longstanding.
Mr Manthe also gave Dr Edwards-Smith a past medical history of type II diabetes mellitus (exhibit 9 page 24).
Mr Manthe also gave Dr Joel Silbert a past medical history of 'diabetes controlled on Glucophage medication' (exhibit 9 page 31).
Finally, Mr Manthe gave Dr Stuart Ross a history of 'diabetes for several years as well as hypertension and depression' (exhibit 30 page 70).
Did Mr Manthe suffer from high blood pressure and diabetes?
Based on the history given to, or provided by, the doctors above, I find that it is probable that Mr Manthe suffered from high blood pressure and diabetes, or at least that he believed that he suffered from high blood pressure and diabetes.
Mr Manthe should have answered yes to 'High Blood Pressure' and 'Diabetes'
It follows that Mr Manthe should have answered yes to the questions 'Have you had any of the following problems (please tick)' 'High Blood Pressure' and 'Diabetes'. His answer was misleading.
Mr Manthe's answers prior to undergoing his hernia surgery
Prior to Mr Manthe's hernia operation (referred to below), he informed Dr Smith that he suffered from high blood pressure and diabetes (ts 382, exhibit 21 page 78). One might argue that by April 2009 Mr Manthe was suffering from stress as a result of the incident on 1 November 2009 and that it was after that that he suffered from high blood pressure. However, to draw that conclusion requires me to ignore the previous history that he had given and the evidence of Dr Loots. Also it does not explain his answer in relation to diabetes.
What do I draw from Mr Manthe's pre-employment health assessment form?
The answers Mr Manthe gave in his pre-employment health assessment form were intended to persuade United that he was fit to work for them. The answers that he gave to Dr Smith were given in the light of the risks that having high blood pressure and diabetes posed for a person undergoing surgery. He answered the latter questions accurately.
The matters I have set out above establish that Mr Manthe was prepared to give inaccurate answers to questions when he considered it in his best interests to do so. This has contributed in part to my findings as to his credibility as set out below.
Mr Manthe's arrival in Australia and his subsequent employment at Redmont
I return to the facts leading up to the incident of 1 November 2009.
United, or one of its associated companies, had a maintenance contract with BHP to maintain railway tracks and associated equipment.
Mr Manthe was employed by United in Australia as a signal technician. He obtained his Australian Trade Certificate shortly after arriving in Australia. BHP did not raise any issue at trial about his qualifications or competence as a signal technician (ts 104).
Mr Manthe pleads that his services were employed for the benefit of BHP pursuant to a contract or agreement with United (statement of claim 2, not admitted defence 2). The evidence supports that plea.
Mr Manthe had a 457 visa which permitted him to work in Australia for four years. He anticipated that he would be able to obtain permanent residence in Australia, both for himself and his wife and two sons. Whether or not he would have been able to obtain permanent residence in Australia is a significant issue in this case.
Mr Manthe arrived in Australia on 18 June 2008. Shortly thereafter he commenced work for United. His commencing salary was $81,750, including superannuation of $6,750 (exhibit 52 page 8, page 22). Mr Manthe was originally employed to work as a signalling technician at Belmont (ts 416).
On 8 December 2008 Mr Manthe commenced working on the Newman‑Port Hedland railway track. He was on a two weeks on, two weeks off roster. He was earning $131,000 per annum, including superannuation of $10,816 (exhibit 52 page 26, page 29).
The United employees who worked on the BHP contract lived at camps alongside the track. One of these camps is at Redmont, which is on the Newman side of the North Coonarie siding. Mr Manthe was based at Redmont.
BHP's ore train operations
BHP operates ore trains to haul its iron ore from mine sites to port for export.
The train tracks
A main railway track runs between Newman and Port Hedland. The main track is sometimes referred to as the west track. To allow ore trains to pass each other there are loops, which allow one train to pull off the main track onto the loop (statement of claim 6, defence 6). The loops are sometimes referred to as the east track, or as the passing track. Sidings come off the loops to allow carriages to be shunted into the sidings – for example, if a carriage is defective and needs to be removed from the line of carriages. The sidings are sometimes referred to as the backtracks.
Diversion of the trains from the main track to the passing track and to the sidings is controlled by a series of points and frogs. The sidings also have a derailer which is designed to prevent carriages moving inadvertently from the sidings onto the passing track. The points, frogs and derailer can be electrically set from control boxes near the track. They can also be operated manually.
The trains
The principal evidence about the ore trains was given by Mr Sullivan (taken on 24 August 2011 before Senior Associate Howard). He was employed by BHP as a rail transport technician. He drives iron ore trains. At the time of the accident the subject of this case, he had driven iron ore trains for BHP for 14 1/2 years. Prior to that, he had driven for Queensland Rail as an instructor. He was a very experienced train driver. Mr Sullivan drove the train that derailed on 1 November 2009. I accept Mr Sullivan's evidence.
The ore trains are set up in rakes. A rake comprises two locomotives and a set of carriages. Each rake is about 112 carriages. Each locomotive weighs approximately 200 tonnes. A carriage fully loaded with iron ore weighs approximately 145 tonnes. The carriages are not covered. Mr Sullivan gave evidence that a two-rake iron ore train is approximately 2.4 km long.
The train brakes
Mr Sullivan's evidence was that throughout the train there is a 5 cm flexible hose or coupler. If there is a sudden flow within the hose, or loss of air, this causes an emergency brake application. It takes a matter of seconds to apply the emergency brakes.
The track construction
The track consists of steel rails and concrete sleepers. The rails are secured to the sleepers by clips. A clip is a 25 or 20 mm round bar that is twisted like a pig's tail. The clips are secured into the sleepers on each side of each rail. The sleepers are set in crushed rock ballast (exhibit 4).
The events of 1 November 2009
The pleadings
BHP admits that Mr Manthe was instructed by Mr Page, a servant or agent of BHP, that the points and the frog were in position effectively, and that Mr Manthe used his key to set the derailer which in turn would successfully complete those matters which needed to be in position for the train travelling from Port Hedland to Newman to enter the passing track off the main line (statement of claim 8, defence 8). In fact, Mr Manthe used his key to unlock the derailer to enable the train to move from the passing track into the siding – not from the main track to the passing track.
BHP admits that Mr Manthe duly located himself between the points and the frog to ensure the proper change in direction of the train (statement of claim 9, defence 9). I note that a plea of 'duly located' is not helpful in the context of this case. 'Duly located' does not provide a reference point. In the parties' closing submissions nothing is made of this plea as to Mr Manthe's position in relation to the derailment. No objection was made by Mr Bradford that the evidence led by BHP was inconsistent with its admission of this plea.
On the essential facts of the derailment the case proceeded without regard to the actual pleadings and I have made my findings based on the issues as joined by the parties at trial.
Mr Manthe pleads that that Mr Page had not set the frog in position (statement of claim 10). BHP does not admit this (defence 10) but no other explanation is offered for the derailment. In fact, BHP effectively admits that the frog had not been set in position in par 11 of the defence.
Mr Manthe pleads that by reason of the frog not having been set in position a derailment occurred causing carriages to jack-knife, leave the railway line, throw and spill iron ore and cause substantial damage to the railway track (statement of claim 11). BHP admits that by reason of the frog not having been set in position, a derailment occurred, but otherwise does not admit the allegations therein (defence 11).
Mr Manthe pleads that at the same time, because of Mr Manthe's position, he was required to take evasive action - in the course of which he was struck by iron ore and nearly struck by railway carriages and clips from the railway line. BHP denies the allegations in par 12 of the statement of claim and specifically denies that Mr Manthe was struck by iron ore or any other item or object (statement of claim 12, defence 12).
The pleadings continue that in the course of taking evasive action Mr Manthe attempted to protect himself in his own utility vehicle and was struck by the door of his utility vehicle on the right side of his head. BHP denies the allegations in par 13 of the statement of claim (statement of claim 13, defence 13).
Facts not in dispute
On 1 November 2009 Mr Manthe was doing maintenance work at Abydos, which is a station on the railway line. Adydos is not far from North Coonarie siding.
At that time Mr Sullivan was driving a loaded two-rake ore train travelling towards Port Hedland on the main, or west, track. He had passed Redmont.
There are fault detectors on the track. As the train was travelling to Port Hedland one of the detectors alerted Mr Sullivan to a fault. Mr Sullivan halted the train and carried out an inspection. He located a fault about 160 or 170 carriages back from the head of the train - a distance of about 1.6 km. The fault was in the second rake.
The defect was a hot bearing in a carriage. A hot bearing with that sort of weight on it can collapse quickly, causing a major derailment. Mr Sullivan decided to remove the carriage from the train. This involved a major shunting procedure.
The train was on the main, or west, track. In order to remove the defective carriage Mr Sullivan had to:
a)reverse the entire train back to come through a set of switches onto the east track or loop;
b)stop, detach, or uncouple, the train behind the defective carriage;
c)pull the rest of the train forward so that the defective carriage was now at the end of the moving train;
d)reverse the train, towards Redmont, from the passing track onto the siding so that the defective carriage would be the first carriage to reverse back into the siding;
e)uncouple the defective carriage;
f)pull the train forward onto the passing track leaving the defective carriage behind;
g)reverse the train back on the passing track to connect with that portion of the train left on passing track;
h)pull forward onto the main track and continue to Port Hedland.
Mr Sullivan advised Port Hedland control of his intention to remove the defective carriage and requested assistance for a shunt in order to move the defective carriage onto the North Coonarie siding where it could be uncoupled and left.
In response to Mr Sullivan's request for assistance, a Mr Ian Page, (who was then at Redmont) drove to North Coonarie siding to assist with the shunt. Mr Page gave instructions to Mr Sullivan as to when to shunt.
In order to reverse the train into the North Coonarie siding the points, a frog and a derailer needed to be set in sequence. The points through which the train had to reverse in order to enter the siding are shown in a photograph, which is exhibit 3. The main track is to the right of the photograph. The passing track essentially runs through the centre of the photograph, and the siding comes off the passing track to the left of the photograph. The points have two large white letters: N for normal, and R for reverse. The photograph also shows a series of electrical boxes to the left; a white mark inside the left rail of the siding identified by Mr Manthe as the derailer; and a white mark outside the left rail of the siding identified by Mr Manthe as the points machine for the frog. The frog itself is at the X formed by the lines crossing near the frog points machine.
The points, frog and derailer are normally locked. Mr Page had trouble opening the lock on the derailer. He could not open it with his key. Mr Manthe was on his way back to Redmont, from Adydos, when he heard over the radio that there was a problem at North Coonarie siding opening the derailer. Mr Manthe radioed back to Port Hedland and said that he could assist because he had a key and he was going past in a couple of minutes.
Mr Manthe pleads that he was instructed by BHP to attend the North Coonarrie line to assist in unlocking a derailer with his own key issued to him by BHP (statement of claim 4). BHP pleads that Mr Manthe assisted in unlocking a derailer with his key at North Coonarrie line; but denies that Mr Manthe was instructed to do so by BHP and says that, rather, Manthe volunteered to do so (defence 4). In my view it is irrelevant that Mr Manthe volunteered. Assisting in such a situation is plainly something that Mr Manthe might be expected to do as part of his duties, particularly as he had a key. BHP needed the key to unlock the derailer to remove the defective carriage. Whether the instruction to do so came from BHP, or via United, or on Mr Manthe's own initiative, is irrelevant.
When Mr Manthe arrived at North Coonarie siding Mr Sullivan must have had the train with the defective carriage in the passing track ready to reverse into the siding once the points etc were set. The detached part of the train must have been on the passing track.
Facts in dispute
The events that followed once the train was ready to reverse shunt into the siding are in dispute. Contemporary documents and statements are likely to provide the best account of such incidents. The further the account is from the event the more likely it is that recollections will be flawed or influenced by subsequent events.
Mr Manthe's credibility
During the course of the trial it became apparent that there were significant inconsistencies in Mr Manthe's evidence.
I note that there is a certain intertwining of the physical symptoms and the report of the incident in the discussion below because the objective emergence of the symptoms is relevant to an assessment of Mr Manthe's credibility and to what actually happened during the derailment.
Dr McCarthy gave evidence (ts 31) that his experience with taking a history of an accident from people suffering from post-traumatic stress disorder, or anxiety disorders, is that people do not necessarily give the same history each time. He does not:
Expect their history to be accurate in any case, because our memory is a recollection, we're not video-recorders. It's a recollection of how we interpret events, which may or may not be accurate, and it may vary somewhat from time to time.
Dr McCarthy accepted that in forming a diagnosis of a psychiatric condition, including post-traumatic stress disorder, he was heavily reliant on the history provided. He stated that he seeks corroboration of the history. He accepted that in Mr Manthe's case he did not have any corroboration of the factual circumstances of the alleged trauma and that he was reliant upon Mr Manthe's description of whether or not it was a life threatening event (ts 41).
Dr McCarthy stated that if the circumstances indicated that it was not a life threatening event, then his diagnosis of post‑traumatic stress disorder would not necessarily fall away, because it depended on Mr Manthe's interpretation of the event (ts 41 - 42).
Dr McCarthy was asked in effect what conclusions he would draw if in fact Mr Manthe's interpretation, or his history, was unreliable. Dr McCarthy answered that if Mr Manthe's history was unreliable he would give it less credit depending on how reliable the memory was. He stated that memory was:
Intrinsically, of its very nature, a recollection, a reconstitution and an interpretation, so it's quite common for the actual, let's say, objective description of events perhaps via a video, it's quite common for that to be quite different from the perception of the individual. (ts 42)
There is a certain degree of circularity in Dr McCarthy's evidence on this point. As I understand Dr McCarthy he is reliant on Mr Manthe's history to make a finding of post‑traumatic stress disorder, but notes that a person who has post‑traumatic stress disorder will not give a reliable history. Once a diagnosis of post‑traumatic stress disorder is made then inconsistencies can be explained by reference to that diagnosis.
The problems that arise from the differing functions of psychiatrists and lawyers are commented upon by Hayne J in Tame v New South Wales (2002) 211 CLR 317 [294]:
Once it is recognised that capacity to participate in ordinary activities is, not surprisingly, an important consideration for a psychiatrist treating a patient, and that the psychiatrist, again not surprisingly, is concerned to deal with the patient according to that patient's history and presentation rather than by reference to some objective inquiry into the truth of that history and presentation, it is clear that there truly is an 'imperfect fit' between the questions of ultimate concern to the law and those of concern to the clinician. The psychiatrist treating a patient is concerned to look backwards only for the purpose of identifying present and future treatment. In particular, determining the cause of an existing condition is important to the discipline of psychiatry only for the light it sheds on future treatment. But for a legal system which assigns responsibility only if there is fault, the focus on cause is critical to that task of assigning responsibility.
The mere fact that there is a delay between a traumatic incident and the emergence of symptoms is not of itself a reason for disbelieving a plaintiff. Dr Kay gave evidence that symptoms of post‑traumatic stress disorder can emerge from seconds to decades after the traumatic event (ts 279). I do not draw any adverse inference from the fact that Mr Manthe's expression of his psychological symptoms did not emerge immediately after the derailment.
In assessing the reliability of Mr Manthe's evidence I have taken into account Dr McCarthy's evidence about discrepancies in Mr Manthe's accounts being explicable by his psychological/psychiatric condition. In forming a view as to Mr Manthe's veracity I am aided by the contemporaneous documents and photographs, which were not available to Dr McCarthy, by various reports, which again were not available in their entirety to Dr McCarthy, by the oral evidence of other parties and by my observation of Mr Manthe giving evidence.
In assessing Mr Manthe's credibility I can properly have regard to his truthfulness before the derailment. If I find that he was untruthful before the derailment then I can more readily accept that his account of the derailment is a result of a lack of truthfulness, rather than a flawed recollection.
The first documents and statements
Following the derailment Mr Manthe saw a nurse, Jemia Flanigan, for a blood and alcohol test. Ms Flanigan gave evidence that Mr Manthe told her on 1 November 2009 that he was parallel to the train track and that he hid behind the vehicle (ts 613). Mr Manthe did not report any injuries or other symptoms as a result of the derailment (ts 614).
I found Ms Flanigan to be a credible witness. I accept her evidence. Mr Manthe did not report any adverse physical, or psychological, effects from the derailment to her on 1 November 2009. Had Mr Manthe reported any physical effects then Ms Flanigan would have investigated them and made a note (ts 614).
The document prepared by Mr Manthe that is most contemporary to the event is an e-mail from him entitled 'Re: Derailment at Coonarie Back Track' on 2 November 2009 (exhibit 19 pages 47 - 48). It stated:
On the 01/11/2009 at about 1550 hrs, I had finished my maintenance at Spring North. While getting into the vehicle I over heard the conversation between the driver (who was doing the movement on the ground) and control at Port Hedland.
It appeared the driver on the ground could not open the B lock on the derailer; or the control panel with his keys. (at Coonarrie Back Tack).
When I arrived at Connarrie Back track the driver had already cranked the switch to take the train into the back track.
On arrival I unlocked the B lock on the derailer and took the derailer OFF the rail. I asked the driver if the route was set correct he said yes and left to the back track. The driver on the ground authorised the driver of the train (Train NO. 1475) to proceed with his movement towards the back track.
While on my way to the vehicle I heard a noise at the frog. I then called train control on ch 1 to stop the train. The frog was never set for the back track.
I was at no time asked to move the switch or the frog, but just to unlock the B lock on the derailer. On arrival at Redmont I was escorted to the medics for a drug and alcohol test which proved to be negative.
If you need more than this statement please let me know.
There was no reason for Mr Manthe not to give a full account of the events concerning the derailment on 2 November 2009 (other than in relation to the emergence of psychological/psychiatric symptoms). His e‑mail of 2 November 2009 gave no hint of any injuries or medical problems or concerns. The essence of Mr Manthe's claim in this action is that he was so close to the derailing carriages that he feared for his life. The e-mail paints a completely innocuous event. There is no mention of any physical injuries. In particular, there is no mention of hitting himself with the utility door, nor of injuring his face and abdomen.
I do not accept Mr Bradford's argument that the e-mail was part of an investigation into the circumstances of the incident and not the injuries. The physical injuries, if any, were part of the investigation into the circumstances. The risks posed by the derailment were relevant to the investigation.
I do not read Mr Manthe's concluding line in the e-mail as more than a polite end to the e-mail. I do not accept that I should conclude from that line that there must have been more to tell, as Mr Bradford submits.
Mr Manthe completed and signed a worker's compensation claim form on 1 December 2009 – about a month after the derailment (exhibit 17 page 147, ts 295). In answer to the question '(i) what action was involved (e.g. – fall, caught between, struck by moving object)' Mr Manthe answered: 'the train derailed was between the train & ute'. In answer to the question 'Describe i) the most serious injury or disease which was caused by the occurrence' Mr Manthe answered: 'Anxiety, Stress, worry'.
Mr Manthe's answer to question (i) is not illuminating other than to raise some issue of proximity between the ute and the derailment. One cannot be critical of Mr Manthe for this because the space provided in the form is very limited. Ms Flanigan's evidence confirms an association in Mr Manthe's mind between the derailment and the ute. This is reflected in his answer in the worker's compensation form.
I note that Mr Manthe's statement of his position in relation to the ute contradicts what he told Ms Flanigan on 1 November. However, in my opinion, his statement to Ms Flanigan is more important in establishing Mr Manthe's proximity to the ute and I do not draw any adverse inference from a discrepancy between what he told Ms Flanigan and what he stated in his worker's compensation form.
Mr Manthe's accounts to health professionals
Over time Mr Manthe gave various accounts of the derailment in the history he gave to his doctors and allied health professionals. I accept that an account provided to a health professional may not be detailed and that what the doctor concludes depends to some extent on their interpretation of what the patient tells them. I accept that we are not video recorders. Nevertheless, after making due allowance for the fact that Mr Manthe's interpretation of events might have varied somewhat from time to time, I would expect some degree of consistency in the various accounts of the derailment and its consequences.
Mr Manthe's account of the derailment as given to Mr D'Castro on 30 November 2009 (exhibit 39 page 169, ts 513) was:
He was doing his normal maintenance work and he was asked to unlock the trains for the driver. He unlocked the train, stood, waited. He left and told the other driver to come back. He said all seven carriages came off fully laden with iron ore. One stopped approximately one metre away from him. He said he had been trapped between the carriage and the ute, and he froze. He told the driver on the radio.
There is no evidence that Mr Manthe was ever trapped between the carriage and the ute. That part of his history is on the face of it entirely inconsistent with the objective events. However, it seems to me that the reference to 'trapped' is more likely to refer to something akin to 'frozen' and reflects his position between the carriage and the ute.
Page 177 of exhibit 39 is a handwritten note by Mr Manthe. It states:
The train falling on to me and the load fell on me; the ripping of the sleepers; the points; the sound of the bollace [ballast?]; the rails bending; the clips shooting in the air missing my head.
Mr Manthe made that note on 30 November or 4 December 2009 (ts 536). Given its position in the bundle of documents it was probably made on 4 December. Obviously the train did not fall on Mr Manthe. I suspect the reference 'to falling on to me' is a statement of the threat he felt rather than that the train actually falling on him. There is no mention of the utility door or any physical injuries.
On 5 January 2010 Mr Manthe saw Dr Ang because of tenderness of the left side of his face. He reported to Dr Ang that 'he was struck on the left face by a piece of metal which he pulled out'. It is apparent from exhibit 4 that some of the load was displaced during the derailment.
Although Dr Ang noted that Mr Manthe's facial symptoms were consistent with being struck by a piece of metal, no symptoms emerged until 5 January 2010 – two months after the derailment (exhibit 9 page 57). The closest that Mr Manthe comes to a report of a injury to his face, in the period prior to seeing Dr Ang, is found in Mr Manthe's note 'The train falling on to me and the load fell on me' (exhibit 39 page 177). That is a general statement and makes no specific reference to the load hitting his face or to any injury to his face. If metal had hit Mr Manthe's face during the derailment and was causing him pain I would have expected him to make a specific reference to that pain in his face in one of his earlier accounts.
In Mr Manthe's signed witness statement of 10 February 2010 (exhibit 33) he states:
12.At approximately 4.40pm I heard a conversation between a train driver and Port Hedland control. The driver was complaining he was unable to open the 'B' lock on the derailer and he was unable to unlock the control panel.
13.I drove my work utility to the points and parked approximately 6 metres from the points. I then alighted from the vehicle and used my keys to unlock the derailer. I then physically removed the derailer from the lines and I asked the driver on the ground, 'Is the route set up correctly?' and he replied, 'Yes'. The driver on the ground then radioed the train driver to 'Push Back'.
14.At that point I was walking back to my vehicle and I heard a screeching/grinding sound and I knew immediately the frog had not switched, which is the train driver's job.
15.By the time I reached the ute a loaded carriage had derailed and was falling towards me. The carriage weighs approximately 100 ton and I was pinned between the carriage and the utility.
16.I reached into the utility and grabbed the radio. I yelled at train control to stop the train because it had derailed. The train stopped immediately and by that time 11 carriages had derailed. When the train stopped I managed to free myself. I radioed my supervisor (Andrew EMMETT) and he advised me to drive to the medical centre for a drug and alcohol test. I then checked that no one was injured before I left and drove straight to the site medics. I underwent the tests and my readings were clear.
There is no mention here of the ute door or of any physical injuries. Again, there is no evidence that Mr Manthe was ever pinned between the carriage and the ute. That part of Mr Manthe's history is, on the face of it, entirely inconsistent with the objective events. However, as I have stated above, it seems to me that the reference to 'pinned' is more likely to refer to something akin to 'frozen' and does reflect his position between the carriage and the ute. Indeed, Mr Manthe subsequently told Dr Edwards‑Smith that he 'couldn't move'.
On 5 March 2010 Mr Manthe saw Dr Edwards-Smith (exhibit 9 page 23) who recorded the following history:
In essence, he said that he was driving a utility vehicle and he was called to open a derailer. He said that he had done so. He had spoken with the driver of the train to confirm and asked the driver if the route was set up correctly. He said the driver responded in the positive and proceeded to move the train which subsequently derailed. Mr Manthe said that he heard a loud noise, looked up and saw a carriage filled with iron ore falling towards him. He said 'I couldn't move' (I note from the statement that Mr Manthe said that he reached into the utility, grabbed a radio and yelled to stop the train). Apparently the train stopped immediately although by this time Mr Manthe said that 11 train carriages loaded with iron ore had derailed. Mr Manthe said that he had been injured by falling metal fragments which injured his face.
There is no mention of the ute door or of any physical injury other than the falling metal fragments in the history recorded by Dr Edwards‑Smith. This history of a facial injury is made after his report to Dr Ang on 5 January 2010.
Dr Silbert's report of 10 March 2010 (exhibit 9 page 30) contains the following history:
Whilst undertaking his employed duties, he recalls driving down the mainline when asked to assist other persons to unlock a derailer. At the instant, he recalls looking out when some loaded ore cars came up and fell towards himself. He recalls standing next to his vehicle at the time and being shocked by the incident and with a feeling that he was going to die. Mr Manthe denies any physical injury arising from incident.
Mr Manthe's failure to mention the facial injury to Dr Silbert is rather odd given that physical symptoms consistent with an injury had emerged. It may be that it reflects an acceptance by Mr Manthe that the facial symptoms were in fact unrelated to the derailment.
On 16 March 2010 Mr Manthe mentions epigastric burning pain to Dr Ozanne (exhibit 9 page 51). The symptoms of epigastric pain are not related to Mr Manthe's spigelian hernia (ts 264). On 29 March 2010 Mr Manthe mentioned symptoms of persistent pain, tenderness and variable swelling in his abdomen, relevant to his spigelian hernia, for the first time.
Dr Peter Smith saw Mr Manthe on 9 April 2010. Dr Smith's notes record the following (exhibit 21 page 82):
[Mr Manthe] works as a signal engineer for United Group. Looking @ a train going over some points that were not thrown properly the train derailed and nearly fell on him, he threw himself out of the way and felt lower abdominal pain.
This is the first record of Mr Manthe having thrown himself out of the way. It contrasts with his statement to Mr D'Castro on 30 November 2009 that he froze and his subsequent statement that he was trapped, or pinned, between the carriage and the ute and that he 'couldn't move'.
Dr Neil Ozanne, a general practitioner, saw Mr Manthe on 23 April 2010 (exhibit 9 page 51). Mr Manthe told Dr Ozanne:
The incident occurred on 01/11/2009 while he was working as a signal technician at Redmont mine site - he was standing beside a railway track, when a train was driven through the points - against the lighted signals (two green lights and one red light - need three green lights to be allowed to proceed). The train derailed and he thought he was going to be hit by the derailed carriage that he estimated to be travelling at 35 km per hour. The carriage stopped just in front of him.
Dr McCarthy's report, dated 11 August 2010 (exhibit 9 page 69), from an appointment on 2 August 2011, records the following history:
'Mr Manthe says there was a problem with the coordination of the …… derailer and points and that the Port Hedland Railway Control should have had an electronic indication of the problems. He said that 14 loaded carriages each carrying 80 tonnes of iron ore were spilt off the train however they left the tracks and came towards him. He said he shouted on the radio and jumped out of the way gaining an abdominal hernia with the effort. He says that he was also hit on the right side of his forehead without losing consciousness, apparently from iron ore rocks falling off the carriages.
Dr Silbert's letter of 6 October 2010 (exhibit 9 page 34) records the following history of the derailment:
At that consultation (10 March 2010) and again today, Mr Manthe recalls undertaking his employed duties and driving down the main‑line for BHP Billiton Iron Ore when asked to assist other persons to unlock a derailer. At that instant, Mr Manthe recalls looking up when some loaded ore cars came up and fell towards himself. Mr Manthe recalls the ore tray or cars being set to the main‑line, but the clamp being removed and no rail notice issued. With this, he reports the rail points and derailer set for the loop and the subsequent derailing of the ore cars. Mr Manthe recalls turning to his right and seeing the last of approximately 12 derailed ore cars coming towards him still. He recalls pulling on the door of his utility and turning to the left away from the ore cars. With this, he recalls being struck on the right forehead and face by the utility door and being struck on the left face by iron filings or other debris. Mr Manthe recalls being shocked by the incident and with a feeling that he was going to die. He recalls noticing floaters, stars or flashing lights within his eyes for a period of 3 or 4 seconds at the time of the incident. Mr Manthe denies any other symptoms or physical injury arising from the incident.
Mr Manthe mentions his hernia, seeing floaters and being hit by falling iron filings but again only after physical symptoms had emerged.
A report of Dr Boon Loke, a psychiatrist, dated 1 March 2011 addressed to Dr Eben Coetzee, a general practitioner, dated 1 March 2011 (exhibit 9 page 118) gives the following history of the incident:
On 1 November 2009, a train derailed. Fred pulled a door of his utility truck forcefully towards him. The door hit the right side of his head and threw him over to the other side of his vehicle. Fred believes that if he had remained where he was standing he would have been crushed to death. Nonetheless, Fred sustained an injury to his right eye and developed a hernia in his left groin.
Mr Manthe mentions his hernia and an injury to his right eye but again only after the physical symptoms had emerged.
Dr Graeme Raad, an ophthalmic surgeon, in his report dated 23 March 2011, states the following history of the incident (exhibit 9 page 122):
[Mr Manthe] states that on the day of the accident while driving his utility, he received a phone call to go and unblock a derailer. As the fob [frog] was never returned to reverse position 14 carriages were derailed. He states he was standing approximately eight metres from the railway line and the utility was between him and the derailment. With the shock of the derailment he grabbed the door of the utility which was open whilst speaking on his two‑way radio and the door struck his right temple. He states he saw snowflakes which lasted only a few seconds. He states he twisted violently to the left causing pain in the left side of his stomach. He then drove back to the camp and was examined and told everything was 'okay' but he was placed off work for one day.
Mr Manthe mentions the physical symptoms of a hernia and an injury to his right eye but again only after the physical symptoms had emerged and been reported to a third party.
It is plain from the matters set out above that Mr Manthe is an unreliable historian. In reaching conclusions as to what happened I have relied primarily on the photographs of the derailment, exhibit 4, the evidence of other persons and what seems objectively probable.
The evidence at trial
Mr Manthe's evidence would have been much easier to understand if a plan of the area had been available and put to him at trial. Exhibit 3 was taken to illustrate the points at N-R but not to illustrate the relative position of the points, the frog and the derailer. Trying to identify relative positions from exhibit 3, a photograph which inevitably distorted distances, can only give a rough and unsatisfactory guide. A photograph taken from the side of the track showing the relative positions of the points, frog and derailer with a relevant perspective, or an appropriate plan would have made everyone's task much easier.
The book of photographs - exhibit 4
Exhibit 4 is a book of photographs taken after the derailment. I will identify the photographs by the exhibit number and the page number of the book.
Exhibit 4.1 shows three carriages that have derailed on the siding. The carriages are at various angles, the rails are twisted and concrete sleepers have been dislodged – one sleeper had been dislodged completely and is at an angle of about 30 degrees lying on a grey-coloured 'points' machine. There are electrical cables strewn about.
There is a sign at the side of the track that shows a black triangle on a white background with a black line pointing at 45 degrees from the top of the triangle. Mr Manthe gave evidence that this is a permanent sign indicating the presence of a derailer on the track.
The photographs are useful in determining what happened. However, they are not presented in a sequence that enables me to determine the exact position of the carriages that derailed.
Where did Mr Manthe park when he arrived to unlock the derailer?
Where Mr Manthe parked when he arrived to unlock the derailer is significant because it provides a reference point to establish where Mr Manthe was situated when the carriages derailed.
Mr Manthe's oral evidence was that when he arrived he parked his ute facing towards Redmont - that is, facing in the direction in which the train was to reverse into the siding. The approximate distance between the points and the frog was 30 – 35 m. He parked the ute approximately 5 – 10 m from the control box. The control box is between the points marked N-R and the frog, although it is further from the line. The ute was parked approximately 3 – 4 m from the left rail of the siding. During the course of his evidence Mr Manthe marked his position on exhibit 3.
Mr Manthe went to the siding because there was a problem with the derailer. Mr Page's evidence is that when he drove off after the derailer had been moved off the line, Mr Manthe's ute was near the derailer (ts 571 ‑ 572). Mr Page also stated that Mr Manthe was near his ute (ts 572, ts 573).
The derailer was marked by the white sign with a black background (ts 341, ts 351). Given that Mr Manthe went to the siding to unlock the derailer it is probable that he parked near the derailer. There was no reason for him to park anywhere else. There do not appear to be any space restrictions near the derailer that would have led him to park anywhere else. I accept Mr Page's evidence that Mr Manthe's ute was parked near the derailer prior to the derailment.
Mr Page gave evidence that when he returned after the derailment he parked his vehicle between the derailed carriages and Mr Manthe's ute (ts 576). Mr Manthe gave evidence that he moved his ute after the derailment. There was no apparent reason for Mr Manthe to move his ute. The carriages must have settled into the position shown in exhibit 4 within seconds of the emergency brakes engaging. I accept Mr Page's evidence that Mr Manthe's ute had not been moved. I note that Mr Manthe told Dr Raad that he was parked approximately 8 m from the railway line (exhibit 9 page 122). I find that Mr Manthe's ute was parked between 8 and 10 m from the rails at the time of the derailment and that he was close to, or at, the ute.
What did Mr Manthe do after he arrived and parked his ute?
What Mr Manthe did after he parked is significant because it is relevant to his position when the carriages derailed.
Mr Manthe gave evidence that after he parked he got out of the ute.
He further gave evidence that he used the crank handle to crank the derailer off the track. This is consistent with Mr Manthe's e‑mail of 2 November. Mr Page's evidence is that Mr Manthe unlocked the derailer and that he (Mr Page) took the derailer off the line (ts 574, ts 580). I accept Mr Page's evidence because his evidence (for example, where Mr Manthe's ute was parked) is more consistent with the objective facts. It also goes to Mr Page's credit that when he completed his statement on 1 November 2009 he frankly acknowledged his error in not setting the frog properly (exhibit 53). Who in fact took the derailer off is irrelevant to the matters in issue – the conflict of evidence on this point is explicable by the fact that it is irrelevant.
I find that Mr Manthe went to the derailer points and used his key to unlock the derailer lock. Mr Page then took the derailer off the line.
Mr Manthe asked Mr Page if the points and the frog were set for the train to reverse into the siding. Mr Page said yes.
The position of the frog immediately prior to the shunt commencing
It is common ground that immediately prior to the train reversing towards Redmont to shunt the defective carriage into the siding the frog was not properly set. There is no issue that the failure to properly set the frog caused the derailment.
Were there any signal lights showing?
Mr Manthe gave evidence that the switch points (at N-R), the frog and the derailer can be operated electrically from a panel in the control box. A push button sets the position of the points, frog and derailer to normal and reverse. A reverse position is indicated by a red light. A normal position is indicated by a green light. His evidence was that you need all three lights to show the same colour before a train commences its shunt. Mr Page gave evidence that he was unable to open the control box because his key would not fit (ts 570, ts 581). Mr Manthe did not give any evidence that he attempted to open, or opened, the control box.
Mr Manthe told Dr Ozanne that 'he was standing beside a railway track when a train was driven through the points - against the lighted signals' (exhibit 9 page 55).
Mr Manthe could not have seen which signal lights were on. There is no evidence that there were any standing lights at or near the track and the only lights were in the control box. There is no evidence that the control box was ever opened. Hence, it cannot be the case that Mr Manthe saw the train being driven against the lighted signals. In my opinion, Mr Manthe's evidence on this point is further evidence of his tendency to reconstruct events.
Mr Page gives an instruction to commence the shunt and drives off
It was Mr Page's duty to communicate with Mr Sullivan to initiate the shunt. Mr Page gave evidence that he gave an instruction to Mr Sullivan that he could commence the shunt and then drove off (ts 570).
Mr Manthe's evidence is that Mr Page got in his ute and headed off down the siding, towards, Redmont, about 500 – 700 m. There is some consistency between this and Mr Manthe's e-mail of 2 November. Mr Page gave evidence that he drove off about 300 metres (ts 582). The difference is immaterial.
I find that Mr Page instructed Mr Sullivan to commence the shunt and then got in his ute and drove towards Redmont.
Mr Sullivan commences the shunt
After receiving an instruction from Mr Page, Mr Sullivan commenced the reverse shunt into the siding. At this point, Mr Sullivan was operating the train from the front locomotive about 1.7 km away.
Mr Sullivan's evidence is that he had to push back 17 carriages. The train had to travel about 170 m.
Mr Sullivan's evidence is that he applied power to the train. The train was pushing backwards up a gradient. Mr Sullivan's evidence is that the trains would have moved 'say, 100 metres or so before I got to the five, six kilometres an hour'. The train got to approximately 6, 7 km per hour. Mr Sullivan gave evidence that he knew what speed he was going at because he is an experienced train driver. He knew from the speedo that he was travelling at 6 ‑ 7 km per hour. He then eased the power back because the maximum speed going into a siding is 10 km an hour. He checked the speedo as he was reversing to ensure that he did not exceed 10 km an hour. He thought that his speed would be within 1 or 2 km of 6 ‑ 7 km per hour. Mr Sullivan's evidence about the speed and gradient is confirmed by the records (exhibit 31). Mr Sullivan's evidence accords with his statement of 11 November 2009 (exhibit 32). It was agreed between the parties that the train was travelling at approximately 6 ‑ 8 km per hour as it reverse shunted into the siding and the derailment commenced.
Dr Ozanne recorded that Mr Manthe estimated that the train was travelling at 35 km per hour at the time of the derailment (exhibit 9 page 55, ts 260). Mr Manthe accepted that he gave Dr Ozanne an estimated speed of 35 km per hour (ts 240). He explained it by reference to his differing flashbacks (ts 240 ‑ 241). I do not accept that explanation. Mr Manthe was giving a history of the derailment, not of his flashbacks about the derailment. The difference between 6 ‑ 8 km per hour and 35 km per hour is too significant to be explained by an account varying from time to time.
It appears from exhibit 4 that no more than six or seven carriages derailed. Mr Manthe's history of how many carriages derailed varies. He told Dr Edwards-Smith that 11 carriages derailed (exhibit 9 page 23). He told Dr Raad that 14 carriages derailed (exhibit 9 page 122). Mr Manthe's estimate of the number of carriages further illustrates his unreliability as a historian.
The derailment
Since the points at N-R were properly set, one can assume that the first carriage, or carriages, reversed through those points without any problem.
Mr Manthe's oral evidence is that he saw the first carriage go over the first set of points (N-R). About 4 - 5 seconds later he started walking towards his ute (ts 122). In his e-mail of 2 November 2009 (exhibit 19) Mr Manthe states that he was walking back to his ute after unlocking the derailer and while on his way to the vehicle he heard a noise at the frog. He then called train control on ch 1 to stop the train.
Mr Page's evidence is that Mr Manthe was near the derailer when he left (ts 573). I find that Mr Manthe was near the derailer, and therefore near his ute, when the reverse shunt commenced. There was no reason for him to be, or to have gone, anywhere else.
Mr Manthe's oral evidence is that when the carriages went past him and when he was about 6 m from the front of his ute he heard a screeching sound at the frog (ts 122).
Mr Manthe's oral evidence is that he knew that the frog was not set. He ran to his ute, opened the door, got hold of his radio in his left hand and said, 'Stop the train. Stop the train' (ts 122).
On the radio on the non-shunt channel Mr Sullivan heard, very faintly, 'Stop the train. Stop the train'. He went to make a brake application, but before he could do so the emergency brakes engaged.
The train had started to derail so, depending on where he was in relation to his ute, Mr Manthe may have run to his ute.
I note that in his e-mail of 2 November 2009 (exhibit 19) Mr Manthe makes no mention of running back to his ute. At one point in his cross‑examination Mr Manthe said that he was 'in the ute when it happened' (ts 242). He qualified that answer somewhat in his next answer (ts 243).
It is not entirely clear to me whether the reference to outpatient care and medication is a reference to the hospital day care program or to Mr Manthe's overall treatment. I take it that it is the latter in the absence of any other evidence. I have not separately allowed for medication on the basis that it subsumed within Dr McCarthy's overall allowance. I am not sure how long a 'brief' hospital admission is and no evidence was led in that regard. I shall assume that it is a week.
Having regard to the risks of Mr Manthe's symptoms not resolving that Dr McCarthy refers to in his reports I should err on the side of caution in allowing for future medical expenses.
Dr McCarthy suggests that Mr Manthe will need at least six months treatment. I would allow for 12 months at $2,000 per month psychiatric and psychological care and medication. I would allow for two hospital admissions of one week each at $4,000 a week. This totals $32,000. I think it prudent to allow a further amount of $3,000 for contingencies.
The total amount for future medical expenses is therefore $35,000. I also note that this is close to the agreed amount of past medical expenses for the past two years.
I note that some of the treatment will need to take place in South Africa. I do not have evidence as to the costs in South Africa. I have simply assumed that the costs will be the same.
Summary
1.
General Damages
$ 32,500.00
2.
LOSS OF EARNING CAPACITY
2.1 Past loss
$ 40,000.00
2.2 Future loss in Australia
$ 40,000.00
2.3 Future loss in South Africa
Nil
3.
MEDICAL EXPENSES
3.1 Past expenses
$ 39,379.80
3.2 Future expenses
$ 35,000.00
4.
SUPERANNUATION BENEFITS
4.1 Past loss
$ 4,520.00
4.2 Future loss
$ 4,520.00
TOTAL:
$195,919.80
I award Mr Manthe $195,919.80. I will hear counsel as to costs.
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