Pacific National Victoria Limited v Woods Pty Ltd

[2008] NSWSC 1157

CITATION:	Pacific National Victoria Limited v Woods Pty Ltd [2008] NSWSC 1157
HEARING DATE(S):	29/07/08-31/07/08, 01/08/08-14/08/08
JUDGMENT DATE :	30 October 2008
JUDGMENT OF:	James J
DECISION:	Proceedings 20061/07 On the claim by Pacific National, verdicts for Pacific National against Woods and Mr Kuschert and a verdict for the RTA against Pacific National. On the cross-claim by Woods, verdicts for Pacific National and the RTA. Proceedings 20065/07 On the claims by Mr Kuschert, verdicts for Pacific National and the RTA. Dismiss the cross-claim by Pacific National against the RTA.
CATCHWORDS:	Level crossing collision between vehicle and train - no question of principle
LEGISLATION CITED:	Civil Liability Act Evidence Act Roads Act 1993
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512 Liverpool City Council v Millett (2004) 43 MVR 193 Petropolous v Commissioner for Railways (No 1) (1962) 80 WN 659 Vairy v Wyong Shire Counsel (2005) 223 CLR 422
PARTIES:	Pacific National (Victoria) Limited v RL & CA Woods Pty Ltd and Wayne Bruce Kuschert Wayne Bruce Kuschert v Pacific National (Victoria) Limited and Roads & Traffic Authority of New South Wales
FILE NUMBER(S):	SC 20061/07 ; 20065/07
COUNSEL:	GM Watson SC / J Sheller (for Pacific National) GA Laughton SC / C Hodgson (for Woods/Kuschert) RW Seton SC / TH Barrett (for RTA)
SOLICITORS:	Turks Legal (for Pacific National) Fraser Clancy Lawyers (for Woods Pty Ltd and Kuschert) McCabe Terrill Lawyers (for RTA)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY 30 OCTOBER 2008

20061/07 PACIFIC NATIONAL (VICTORIA) LIMITED v RL & CA WOODS PTY LTD & ORS
20065/07 WAYNE BRUCE KUSCHERT v PACIFIC NATIONAL (VICTORIA) LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: Shortly before 4 o’clock in the afternoon of 10 November 2000 a collision occurred at a level crossing near Savernake in southern New South Wales between a truck consisting of a prime mover and a tipper trailer which was owned and operated by RL & CA Woods Pty Limited (“Woods”) and which was being driven along the Riverina Highway by Wayne Bruce Kuschert an employee of Woods in the course of his employment by Woods; and a locomotive drawing nine carriages or wagons which was owned and operated by Pacific National (Victoria) Pty Limited (“Pacific National”), which was formerly known as Freight Victoria Ltd trading as Freight Australia, and was being driven along a railway line from Oaklands in New South Wales to Yarrawonga in Victoria by Baldarsarrae Gangemi, the co-driver being David John Jones. In consequence of the collision Mr Kuschert was seriously injured, the truck caught fire and both the prime mover and the trailer of the truck were damaged beyond repair and the locomotive and some of the wagons of the train were damaged.

2 The collision gave rise to two court proceedings, both of which were commenced in the District Court at Albury but later transferred to the Supreme Court. The plaintiff in each proceeding claimed that the collision had been caused by the negligence of the defendants.

3 In proceedings numbered 20061/07 in this court the plaintiff was Pacific National and the defendants were Woods, Mr Kuschert and the Roads and Traffic Authority of New South Wales (“the RTA”). In these proceedings Pacific National claimed damages for the cost of the repairs to the locomotive and the wagons. In these proceedings Woods brought a cross-claim against Pacific National and the RTA, alleging that the collision had been caused by the negligence of the cross-defendants and claiming damages for the loss of the prime mover and the trailer and for financial loss.

4 In proceedings numbered 20065/07 in this court the plaintiff was Mr Kuschert and the defendants were Pacific National and the RTA. In these proceedings Mr Kuschert claimed damages for personal injury suffered by him as a result of the collision. In these proceedings a cross-claim was brought by Pacific National against the RTA claiming contribution or indemnity in the event of Mr Kuschert succeeding against Pacific National. No cross-claim was brought by the RTA against Pacific National but it was common ground between Pacific National and the RTA that the cross-claim brought by Pacific National sufficiently raised all questions of apportionment of damages as between Pacific National and the RTA.

5 It was common ground at the hearing that the interests of Woods in defending the proceedings brought by Pacific National and in cross claiming in those proceedings and the interests of Mr Kuschert in bringing his proceedings were identical. At times during the hearing Woods and Mr Kuschert were referred to as “the trucking interests” and I will sometimes use that expression in this judgment.

6 The legal representatives of the parties were able to agree on the amount of damages which would be recoverable, if Pacific National obtained a verdict in its favour in proceedings 20061/07, if Woods obtained a verdict in its favour on its cross-claim in proceedings 20061/07 and if Mr Kuschert obtained a verdict in his favour in proceedings 20065/07. It was also agreed by the parties that the present judgment should be confined to determining whether the defendants and the cross-defendants in proceedings 20061/07 were liable and whether the defendants in proceedings 20065/07 were liable, deferring to a later judgment any questions of contributory negligence or apportionment between tort- feasors.

7 The trial lasted over a period of approximately three weeks and was conducted partly in Albury and partly in Sydney.

8 In the first week of the hearing evidence was given in Albury by a number of witnesses who can be described as lay witnesses (although some of them had some kind of expertise). Witnesses who were called by Pacific National were Mr Gangemi, Mr Jones, Mr Lloyd Green, Mr Kevin Charles Penny and Mr Bruce Graeme Sismey. Witnesses for the trucking interests were Mr Kuschert and Mr Kevin Francis Gabriel. The RTA called as a witness Alan John Adkins.

9 A number of engineering experts who had been retained by one or other of the parties made reports and gave oral evidence in the second week of the hearing which took place in Sydney. These engineering experts were:

For Pacific National — Dr George Rechnitzer, who made reports dated 22 June 2005, 23 May 2006 and 12 June 2008, which became respectively exhibits PN6, PN7 and PN8.

For Woods — Mr Trevor Booth, who made reports dated 12 December 2007, 11 February 2008, 20 May 2008, 28 May 2008 and 15 July 2008, which became respectively exhibits W6, W7, W8, W9 and W10.

Mr Bruce Hazel, who made reports dated 4 February 2008, 14 May 2008 and 16 May 2008, which became respectively exhibits W11, W12, and W13.

Mr John Jamieson, who made a report dated 3 October 2007, which became exhibit W14.

For the RTA — Mr Hugh Cowling, who made reports dated 20 July 2006, 20 June 2008 and 23 August 2006, which became respectively exhibits RTA10, RTA11 and RTA13.

10 The reports of the engineering experts, whether considered individually or in toto, can truly be described as voluminous. The procedure was adopted of directing the engineering experts (except for Mr Jamieson, whose evidence was on a discrete issue and was not contested) to confer with each other at a joint meeting and to endeavour to answer 11 questions which had been framed. This conference took place over several hours on Tuesday 5 August 2008. On the basis of a set of factual assumptions, which became exhibit PN9, the experts were able to reach a very high measure of agreement on the answers which should be given to the questions.

11 A document setting out in separate columns the questions, “the experts’ agreed response” and any comments was prepared and became exhibit PN10. Mr Cowling prepared six handwritten sheets forming an agreed response to question 2 and these sheets became exhibit PN11.

12 That the experts were able to reach such a high measure of agreement as is demonstrated in exhibit PN10 is a tribute to the fair mindedness of the experts and to the usefulness of the procedure of requiring expert witnesses retained by opposing parties to confer with each other. A consequence of the high measure of agreement reached by the experts is that there is less need to refer to the reports of the individual experts.

13 When the engineering experts came to give oral evidence, a procedure colloquially known as “hot tubbing” was used; that is, instead of the experts giving evidence individually and being limited to answering such questions as counsel asked, the experts were sworn simultaneously and gave evidence concurrently, being free to comment on or add to an answer given by another expert and to ask questions of another expert. As would seem almost inevitable in such a procedure, the experts often volunteered information or opinions which they considered might be helpful.

14 In addition to the engineering experts, there were two expert witnesses Professor Stephen Dain of the School of Optometry and Vision Science at the University of New South Wales who was retained by Woods and Associate Professor Cyril Latimer of the School of Psychology at the University of Sydney who was retained by the RTA. Professor Dain and Associate Professor Latimer were referred to at the hearing as the “sight” or “vision” experts. Separate reports by Professor Dain and Associate Professor Latimer were admitted as exhibits W15 and RTA12 respectively.

15 Professor Dain and Associate Professor Latimer held their own joint conference on 5 August 2008. Unlike the engineering experts, they were not furnished with any set of assumptions and were not directed to answer any particular questions.

16 As a result of the conference Professor Dain and Associate Professor Latimer produced a joint document which became exhibit W16. This document was headed “matters upon which agreement has been reached and disagreement has been agreed”. Perhaps partly as a result of their different specialties and backgrounds, there were a number of matters on which they were unable to reach agreement, the only agreement on those matters being an agreement to disagree.

17 Professor Dain and Associate Professor Latimer also gave evidence by way of “hot tubbing”.

18 I have already mentioned the set of factual assumptions used by the engineering experts, which became exhibit PN9. Almost all of the factual assumptions in exhibit PN9 were later accepted by the parties as agreed facts and the agreed facts became exhibit PN13. It was common ground that the few, minor differences between the agreed facts (exhibit PN13) and the factual assumptions (exhibit PN9) did not invalidate or significantly affect the experts’ responses in exhibit PN10.

19 The agreement by the parties that the factual assumptions (with minor exceptions) could be taken to be agreed facts simplifies, to some extent, my fact-finding task. I will now state the agreed facts, omitting a couple which appear to me have little significance and arranging the agreed facts under what appear to me to be convenient headings (while retaining the numbering in exhibit PN13).

“ Collision
1. The plaintiff, Mr Wayne Kuschert was the driver of an unladen truck/trailer combination which ran into and collided with the side of a moving train at a railway level crossing on the Riverina Highway between Rennie and Savernake in Corowa Shire within New South Wales.
2. The collision occurred at about 16:00hrs on 10 November 2000.
12. At the crossing, the railway line runs roughly north-south and the road runs roughly west to east.
The Highway
15. The Riverina Highway (the highway) is about 6 metre wide bitumen road consisting of two lanes, one eastbound and one westbound without any median separation.
16. About 400 metres west of the crossing, the highway commences a wide sweeping left-hand bend, resulting in it crossing the railway track at close to 90o at an orientation of almost west to east.
17. The speed limit on the highway on the approach from the west towards the crossing was 100 km/hr.
18. At 325 metres west of the crossing, two yellow W7-8 warning signs were installed, one on each side of the highway.
19. Centred at 295 metres west of the crossing, an X-RAIL pavement marking was placed in the centre of the left hand lane of the highway.
20. At 253 metres west of the crossing, one G9-48 “LOOK FOR TRAINS” sign surmounted by a yellow W7-7L warning sign was installed on the left side of the highway.
9. As at 10.11.2000 the crossing was denoted immediately in front of the railway line for road users by two sets of railway crossing position signage.
10. Each set was mounted on the near left side of the roadway. Each set comprised a give-way sign surmounted by a railway crossing marker. The set is known as a Type RX-3.
11. In addition railway crossing width markers, known as Type RX-9 width marker assemblies, were positioned on each side of the approach road on both sides of the railway line.
Railway Line
3. The railway is a single-track broad gauge line laid on timber sleepers.
13. The speed limit on the railway line was 50 km/hr.
14. A railway whistle-board was installed at a track distance of about 370 metres north of the crossing.
The trees
21. Between 56 metres and 76 metres from the near rail, a line of vegetation (the roadside stand) comprising trees or bushes was located on and parallel to the left hand side of the highway, centred at about 5 metres from the left side of the highway. Between 70 metres and 85 metres from the near rail a line of vegetation (the fenceline stand) was located on or about 20 metres from the left side of the highway.
22. The roadside vegetation was subsequently cleared and removed after the collision.
23. From about 320 metres up until about 110 metres west of the crossing, apart from a few isolated trees, the view from the highway through that section over towards the railway line on the left is largely unobstructed.
24. Apart from the trees/bushes removed after the collision (refer para 21 and 22 above), the trees between the left of the Highway and the railway within a triangle formed by 400 metres measured from the crossing along the road and 400 metres measured along the railway track are little changed from when the collision occurred.
The truck
25. The truck/trailer combination comprised a Kenworth T600 prime-mover (Vic Reg. QCP.088) hauling an empty Jamor tipper-trailer (reg. 13341-S) for an all-up unladen mass of 15.95 tonnes (hereafter Vehicle 1).
26. Vehicle 1 approached the crossing travelling from west to east.
27. The speed of Vehicle 1 is not known directly, because either no data recorder was fitted, or, if fitted, it was destroyed in the collision and subsequent fire.
40. A skid distance of 43.5 metres along the road and terminating 3-4 metres from the nearside running rail attributed to Vehicle 1 was reported by NSW Police.
41. The Kenworth prime-mover of the road vehicle burst into flames and was destroyed. The driver was trapped, but was rescued by the prompt action of the train crew.
42. The driver of vehicle 1 has stated he has no recollection of the collision circumstances.
The train
28. The train No. 9392 was operated by Freight Australia and was travelling on a VicTrack railway line which extended into New South Wales.
29. Train 9392 consisted of 9 fully laden grain hopper wagons, each weighing 76 tonnes, hauled by Locomotive A81 having a mass of 121 tonnes, for an all-up train mass of 805 tonnes (hereafter the train).
30. The train had an overall length of 152.7 metres. This is calculated on the basis of 9 wagons at 14.903 metres plus locomotive 18.542 metres.
31. Locomotive A81 was painted in a Brunswick green livery with yellow highlighting around each end and with yellow and white lettering along the sides.
33. The train was travelling from north to south.
34. The train was crewed by two drivers. Mr Barry Gangemi had control and was driving the train on the left-hand side of the driver’s cab and Mr David John Jones, the other driver, was on lookout on the right-hand side of the cab.
35. At about 500 metres from the crossing, the train speed was about 55 km/hr.
36. At or about 155 metres from the crossing the Hasler tape recorded the application of the emergency brakes. Making due allowance for the lag in the Hasler tape of 3-4 seconds (ASCIANO report 06-T.001) the brakes were “applied” 201-216 metres before the crossing.
37. Before the emergency brakes were applied, the train horn was sounded more or less continuously from about the time the train passed the whistle up until about the point of impact.
38. At the moment of impact with vehicle 1, the speed of the train had reduced to 50 km/hr.
39. As a result of the impact, the locomotive and five of the nine fully laden grain hopper wagons were derailed and the train came to a stand about 100 metres beyond the crossing. As a result of the collision, the train sustained significant damage.”

20 I have already mentioned that, as a result of the joint conference, the engineering experts produced a document which became exhibit PN10. I am, of course, not bound by the opinion of any expert or any group of experts. However, when four experts retained by three opposing parties confer jointly for several hours and reach unanimous agreement on answers to questions, I should accept those answers, unless there is some good reason not to.

21 I have taken into account all the answers and all the comments in exhibit PN10 but I will expressly set out in this judgment only some questions, answers and comments which seem to me particularly relevant.

Questions	Experts Agreed Response	Comments
1. What is the estimated speed of the truck at the following points and what is the basis for such estimates: a) impact between the truck and the train; b) the commencement of the skid mark left by the truck; c) the point at which Mr Kuschert determined a need to commence braking; d) at the X on the road slightly to the west of the train illustration sign?	1(a): Probably about 50km/hr. 1(b): If the impact speed is 50km/hr is then probably about 75km/hr-77km/hr at commencement. This value is derived on the basis of an estimated deceleration of 0.3g over the recorded 43.5m. 1(c): Based on answers to (b), most probably about 80 to 100 metres from impact, based on a 1.5 to 2.5 second perception-reaction time. 1(d): Assumed 90 to 100km/hr as likely minimum based on the ruling speed limit [100km/h] and plaintiff’s own version of prior habit. Truck also speed-limited to 100km/hr.	Answers unanimously agreed by three and accepted by Booth. Except, that Rechnitzer and Cowling agree but consider a higher impact and pre-braking speed is also possible.
2. Can you prepare a plan (or plans if there is disagreement) showing the relative positions of the truck and the train, and the distance between the two, based upon the conclusions regarding the speed of the truck at the points referred to above and at the point at which the train was 500m from the railway crossing?	2. YES – Plans provided – based on assumptions in answer to Q.1. Contained on sheets 1 to 6 inclusive. Please note train distances shown are from crossing, not the position of train at impact (i.e. 10 metres further advanced) When train at 500 metres from impact, truck at 820 metres from impact, based on estimates given in answer to Q.1.	Answers unanimously agreed.
3. What was the braking capacity of the train (locomotive combined with carriages) at 55 kph and at 50 kph? Was that capacity less than it ought to have been and, if so, why and what should it have been?	3. Research material available at this time indicates that deceleration rates in the order of 0.35 to 0.46 m/s/s could be expected. Based on this, the stopping distance of the train could be in the following ranges: (a) At 55km/hr = 254 to 333 metres (b) At 50km/hr = 210 to 276 metres (c) The Pacific National values for stopping distances fall within the range of the values stated in (a) and (b) above.	Answers unanimously agreed.
4. Assuming the speed of the train was 55kph at the time it commenced braking: a) How far in advance of the railway crossing would it have had to commence braking if it were to stop prior to the crossing?	4(a): About 254 to 333 metres	Answers unanimously agreed.
7. Was the posted road speed appropriate and if not why and what speed ought to have been posted?	7. The 100km/h road speed limit as posted was in accordance with standards. However a lower speed zone [80km/h or lower] on the approach to the crossing would have been preferable, since if obeyed there would be more overall opportunity [time] to observe train and also come to a stop before the crossing.	Answers unanimously agreed.
8. Was the road signage on approach to the railway crossing appropriate and if not why and what signage ought to have been in place?	8. The road signage on approach was appropriate inasmuch that it complied with the various Standards, save for the transposition of two signs. The effectiveness of such signage is a different question. After all the ‘hazard’ is the train on the crossing not the crossing itself. It is noted that flashing lights have since been added which warn drivers of an approaching train. If an effective assessment of the crossing road approaches had been made then it should have revealed the obstruction to a clear view of an approaching train created by the first and second roadside tree stands. This would have necessitated additional warning to motorists, [obscured visibility, slow down] and lowering of the road approach speed significantly, until these trees were removed. Clearly the safest action would have been to promptly remove the obstructing trees.	Answers unanimously agreed.
9. Was the signage at the railway crossing appropriate and if not why and what signage ought to have been in place?	9. The railway position signage was appropriate inasmuch that it complied with the various Standards. The effectiveness of such signage is a different question. After all the ‘hazard’ is the train on the crossing not the crossing itself. It is noted that flashing lights have since been added which warn drivers of an approaching train. If an effective assessment of the crossing road approaches had been made then it should have revealed the obstruction to a clear view of an approaching train created by the first and second roadside tree stands. This would have necessitated additional warning to motorists, [obscured visibility, slow down] and lowering of the road approach speed significantly, until these trees were removed. Clearly the safest action would have been to promptly remove the obstructing trees.	Answers unanimously agreed.
10. What factors apply in relation to the ability of Mr Kuschert to perceive the train from the truck he was driving? If different factors apply at different points along the road, please specify.	This has been interpreted in terms of physical factors only. (a) Obstruction: Trees on the left side of the highway largely obscure a view of the approaching train from the left until the truck reaches a distance of about 300 metres from the crossing. There is a clear view towards the railway line on the left from a distance of about 300 metres until a distance of about 100 metres from the crossing, except for two trees, one of which is dead. At a road distance from 100 metres to 60 metres from the crossing, the truck driver’s view is obstructed by the roadside and fenceline trees. Mr Kuschert would have to have looked to his left at some point from about 270 metres on to 100 metres from the crossing to check for an approaching train. (b) Conspicuity The conspicuity of the train is a factor. The train’s headlight would not have been directed at Mr Kuschert’s vehicle. The train’s klaxon horn may not have been heard by Mr Kuschert until such time as collision became unavoidable. (c) Driving tasks Mr Kuschert would have had to pay attention to the task of steering his vehicle around a curve on two way highway while watching out for oncoming traffic. (d) Weather Overcast but not raining (e) Visibility through windscreen Line of sight towards the train was within 45 degrees.	Answers unanimously agreed.
11. What role in contributing to the collision might the following possibilities have played, if any: a) difficulties in perceiving the train; b) the speed of the truck; c) the speed of the train; d) the road signage; e) the signage at the railway crossing; f) the stand of trees within 100m to the west of the railway crossing; g) any other matter you believe to be significant?	11(a) May have played a contributing role. 11(b) We are of the opinion that excessive speed on the part of the truck driver in relation to the speed limit did not play a contributing role. However we are of the opinion the posted speed limit in the circumstances was too high. 11(c) The speed of the train at 55km/h was not high. Its speed at the time of the collision did not directly contribute to the collision. However, the speed limit was 50km/h. 11(d) No. 11(e) No. 11(f). The roadside and fenceline stands of trees within 100 metres to the west of the crossing may have played a role in that they would have blocked the driver’s view within this section of the approach. Their effect is only relevant in the event the driver did not observe the train in the interval from about 300 metres to 100 metres from the crossing. 11(g) The possibility exists that the truck driver may have been alerted to the presence of the train by the train horn whilst behind the roadside and fenceline stands of trees.	(a) Agreed. (b) Agreed. (c) Agreed. (d) Agreed. (e) Agreed. (f) Cowling is of the opinion that if the driver’s point of first perception was as answered in Q1 [i.e. 100m away], these trees were not contributory. (g) Agreed.

22 The response to question 2 referred to plans contained on six sheets. On some of these plans and in particular on sheets 1 and 5 some comments were written. These plans with their comments became exhibit PN11. There appears to me to be some confusion in PN11 between distances from the crossing and distances from the point of impact but the difference in these distances is only slight.

23 Sheet 1 in exhibit PN11 shows inter alia the position of the train and the position of the truck at the time of the impact.

24 Sheet 2 shows the relative positions of the train and the truck when the train was 500 metres from the crossing and the truck was 820 metres from the crossing. Sheet 3 shows the relative positions of the train and the truck when the train was 225 metres from the crossing and the truck was 320 metres from the crossing.

25 Sheet 4 shows the relative positions of the train and the truck when the train was 183 metres from the crossing and the truck was 250 metres from the crossing.

26 Sheet 5 shows the relative positions of the train and the truck when the train was 155 metres from the crossing and the truck was 210 metres from the crossing.

27 Sheet 6 shows the relative positions of the train and the truck at the commencement of the truck skid.

28 The notes on sheet 5 include the following:-

“Train @ 55kph (15.3m/s)
Driver & Hasler Reaction times 5.5 secs.
5.5 secs @15.3m/s = 84 metres
Brake Reaction commenced at
155m + 84m = 239m prior to impact

Hence likelihood that train driver reacted when truck was about 320 to 300 metres from impact (Refer sheet 3)”


I will make further reference to this comment on sheet 5 later in this judgment.

Evidence of the lay witnesses

Mr Kuschert

29 At the hearing pars 1-95 of a statement by Mr Kuschert were admitted into evidence. In pars 65 and 66 of the statement Mr Kuschert said that his last recollection before the collision had been at some time in the morning of 10 November 2000 and “what I did after that has been reconstructed by me following my usual practice”. As I have already noted, agreed fact 42 was that Mr Kuschert had stated that he had no recollection of the circumstances of the collision.

30 At the hearing it was not challenged that, as a result of the injuries suffered by him in the collision, Mr Kuschert was genuinely unable to recall the events leading up to the collision.

31 I have taken into account all of pars 1-95 of the statement but will now quote only pars 72-89.

“72. Because I have no recollection, I am reliant upon my usual practice of the way I approach the level crossing.
73. I approached the level crossing from the western side.
74. There were signs on the approach to the level crossing.
75. The first sign was about 300 metres or yards from the crossing which indicated the presence of the crossing.
76. My usual practice was to drive along the Riverina Highway at about 100 kilometres an hour driving from west to east.
77. As I approached the crossing, and just near the first 300 metre sign, I took my foot off the accelerator. That had the effect of commencing to slow the truck down. I also started looking for a train, to the left and to the right, as I approached the crossing.
78. I would have had my foot on and off the accelerator, as I approached the crossing to slow the truck to around 80-90 kms. If I left my foot off the accelerator the truck would have come to a stop before the crossing because of the operation of the Jacobs brake.
79. When using the accelerator and Jacobs brake in this way the engine noise was very loud. It was also my usual practice to listen to the radio when driving.
80. Both to the left and to the right there were stands of trees along the side of the road, between me and railway line.
81. The railway line approached the road on the left about 45 degrees to the road. On the right it was about 135 degrees.
82. To look at the railway line on the left, you had to look out of the passenger side window of the vehicle, and the closer you got to the railway line the further back over your left shoulder you had to look.
83. I continued with my foot off the accelerator, but not on the brake, until I approached the crossing.
84. My usual practice was to cross the level crossing at about 80 kilometres an hour, because the crossing was rough and was more jarring at higher speeds.
85. As I approached the crossing I looked both ways for trains.
86. I do not believe I had seen a train on the crossing before.
87. I knew that trains used the railway line.
88. I always treated railing crossings with great respect.
89. I had a near miss at a level crossing between Dubbo and Dunedoo a few years previously. I nearly hit a train in the dark the other side of Dubbo because there are no lights to see them so you have to look. It is second nature day or night to look.”

32 In oral evidence in chief Mr Kuschert was asked what he would have done, if there had been a stop sign at the crossing, and what he would have done, if there had been a traffic control sign on the Highway indicating a speed limit of 60 kph.

33 The questions were objected to on grounds including that they were prohibited by the Civil Liability Act. I did not have a copy of the Civil Liability Act with me in court in Albury and I allowed the questions, subject to the possible effect of the Civil Liability Act.

34 In answer to the questions Mr Kuschert said that he would have stopped and that he would have obeyed the traffic control sign.

35 The questions were, indeed, prohibited by s 5D of the Civil Liability Act and should have been rejected. Even if the questions and answers are allowed to stand, the evidence is so self-serving and so speculative that I should give it little weight.

36 In cross-examination by counsel for Pacific National Mr Kuschert agreed that he had driven across the crossing many times and had been well aware that there was a give way sign for road traffic and no give way sign for trains.

37 Mr Kuschert said that the train had been very hard to see, because of its colour; the train had been “camouflaged” (a word Mr Kuschert would have heard his counsel use in his counsel’s opening address).

38 Mr Kuschert said that a number of things could have blocked out the sound of the train’s whistle:-

“At the time the Jake brake on the truck would have been on and off and it's damn loud too or it was really loud that one, and if I had the radio going in the truck too it wouldn't have helped. With the windows wound up it's very soundproof inside the cabin of that particular truck.”

39 Mr Kuschert denied the suggestion that he had seen the train and had been trying to drive the truck at a speed which would have enabled him to cross the crossing before the train arrived at the crossing. He said that he had never had a death wish and would “never have done that ever”. He accepted that the only other explanation of the collision was that he had not seen the train until he was very close to the level crossing.

40 Mr Kuschert reiterated that, if there had been a stop sign at the crossing, he would have obeyed it. He was then asked “if there had been a give way sign there, would you have obeyed it?” to which he replied “Yes”.

41 A feature of the evidence in cross-examination was Mr Kuschert’s unwillingness to give direct answers to questions, where direct answers might have been detrimental to his case. When asked whether he accepted that there was an obligation to give way at a give way sign, he answered “No” and complained that the question was a “loaded” question. Mr Kuschert did not accept that he had not given way at a give way sign and said that he could not give a straight answer to the question whether he had. He said that a driver could give way at a give way sign, only if he was able to see the other traffic.

42 In cross-examination by counsel for the RTA Mr Kuschert confirmed that he was well aware of the crossing. He said that he sometimes passed over the crossing six times in a single week.

43 Mr Kuschert was cross-examined about his evidence as to his usual practice. Mr Kuschert said that he had crossed this crossing so often that he did have a usual practice at this crossing. He said “I approach every level crossing with the same practice”. His practice “varied little for any crossing”.

44 Mr Kuschert was cross-examined about evidence he had given at a hearing in the Local Court in 2002. In that evidence he had said that his usual practice near the crossing had been to drive at 60-70 kph (as distinct from 80 kph). Mr Kuschert ultimately agreed that it was possible that he had sometimes crossed the crossing at a speed of 90 kph.

45 Mr Kuschert was also cross-examined about other evidence he had given at the Local Court hearing in which he had agreed that it was “more than likely” he would have heard the train horn or whistle, if it had been sounded. The next question and answer were:-

“Q. I mean even if you had your window up and your radio on, you would still hear a train horn if it was sounded?
A. I'd think so, they are terribly loud those trains, those horns".

46 Mr Kuschert said that the Jake brake was something which had occurred to him since he had given evidence in the Local Court as being a possible explanation of why he had not heard the train’s whistle.

47 Mr Kuschert was cross-examined about whether on 10 November 2000 he had expected that there might be a train on the railway line. He said that he had never seen a train at or near the crossing and he had been told that trains used the lines only at night but added “I didn’t take it as gospel”.

48 Mr Kuschert was cross-examined about evidence he had given at the Local Court that in the 12 months before the collision he had never seen a train (at the crossing) and that he thought trains only came and went at night. Mr Kuschert said that the evidence he had given at the Local Court was “not wrong, maybe not full” and that “it doesn’t sound right”. He said “you never know when you’re going to see a train on any level crossing, so you’d always use utmost caution you can”. Mr Kuschert denied that he had not expected to see a train at or near the crossing in daylight.

49 Mr Kuschert was cross-examined about his evidence that he would have obeyed a speed limit sign. The following questions and answers occurred”-

“Q. I take it your evidence then to his Honour is that you have never driven over the speed limit as a driver; is that correct?
A. No, that's not correct.

Q. You've probably driven over a speed limit on many occasions in the past, haven't you, Mr Kuschert?
A. No, coming from the RTA you've got my driving record right in front of you.

Q. You've done it many times before, haven't you?
A. I wouldn't say many.

Q. It's wishful thinking, with the benefit of hindsight, to tell his Honour that if there'd been a 60 kilometre speed limit sign there that day you would have obeyed it, isn't it?
A. I definitely would have obeyed it.”

50 I propose deferring to later in this judgment the making of findings about Mr Kuschert’s evidence, including findings about what speed or speeds he was travelling at as he approached the crossing and what look out he was keeping as he approached the crossing. The resolution of some of these questions depends on other evidence, as well as Mr Kuschert’s evidence.

The train drivers’ evidence

51 The evidence of the train drivers Mr Gangemi and Mr Jones is relevant to a number of issues. In this part of my judgment I will confine myself to a summary of their evidence about events which they say happened as the train approached the crossing.

Mr Gangemi
Evidence in chief

52 Mr Gangemi gave evidence that on the afternoon of 10 November 2000 he was the driver of the locomotive, Mr David Jones being the co-driver.

53 At transcript p 45 lines 10-27 the following questions and answers occurred:-

“Q. At or about there or some time Mr Jones said something to you?
A. That's correct.

Q. Now could you tell us what Mr Jones said and what you heard?
A. Mr Jones made the statement that it looks like this bloke's not going to stop.

Q. Now do you remember where the train was at the time Mr Jones made that statement?
A. I'd say approximately 500 metres from the level crossing.

Q. Before the whistle board, in other words? Had you reached the--
A. About 500 metres - no, we hadn't reached the level crossing. So it was approximately 500 metres from the level crossing, judging by where the whistle board was.

Q. So this statement was made you think before you got to the whistle board?
A. That's correct.”

54 At some time after Mr Jones made his remark, Mr Jones blew the train’s whistle, which was very loud on that kind of locomotive.

55 The following questions and answers occurred at transcript p 47 lines 23-31:-

“Q. At what speed were you driving that train?
A. Approximately 50 kilometres an hour.

Q. Was that fast or slow or was it--
A. It was the speed for the line.

Q. And did it seem to you that you had, in your judgment, the train travelling at an appropriate and safe speed?
A. Yes.”

56 After Mr Jones made his remark, Mr Gangemi eased off the throttle of the locomotive but this may have been because the train was going down a slight incline.

57 The following questions and answers occurred at transcript p 48 lines 6-13:-

“A. He blew a horn whistle, then he ceased blowing it and then within the level crossing he started blowing it again.

Q. Now when you say "within the level crossing" that might have a technical meaning?
A. Well, within the whistle board at some point, I think it was approximately 350 metres he started blowing it again and he didn't release it until the impact occurred.”

58 Mr Gangemi applied the train’s emergency brake; however, the brake was not able to stop the train before the crossing and the collision occurred. The locomotive and the first four wagons were derailed. The truck caught fire but Mr Gangemi and Mr Jones were able to rescue Mr Kuschert from the cabin of the truck.

Cross-examination by counsel for the trucking interests

59 In cross-examination counsel for the trucking interests put to Mr Gangemi that the remark made by Mr Jones was a “judgement” made by Mr Jones that there was a danger of a collision between the train and the truck and counsel repeatedly referred to Mr Jones’ remark as having been a “judgement”.

60 At times during the cross-examination Mr Gangemi acceded to the suggestion that Mr Jones’ remark had been a judgement. However, at transcript p 63 lines 12-16 the following questions and answers occurred:-

“Q. And you accepted the judgment of Mr Jones, didn't you?
A. I accepted his statement, yes, that he made.

Q. The statement--
A. I heard what he said, yes.”

61 Mr Gangemi agreed that Mr Jones sounded the whistle for the first time at about the 450 metre mark. The first whistle blast “would have been a number of seconds-probably five approximately”.

62 The following questions and answers occurred at transcript p 65 line 44 to p 66 line 23:-

“Q. Well, at 55 kilometres an hour, for a five-second blast on the whistle, the train would have travelled another 70 or 75 metres or so, wouldn't it?
A. I'm not sure. Approximately I suppose, yeah.

Q. If that first whistle blast had been put on at 450 metres approximately, then that brings the train back to 375 metres from the crossing, doesn't it?
A. Yes.

Q. I know we're not dealing with exact - please take it if I'm saying 375 metres I'm meaning approximately?
A. Yes.

Q. Yes?
A. Yes.

Q. By which time you have had, what, five seconds had elapsed or so during the time of the whistle blast?
A. Right.

Q. And during the time of the whistle blast the truck had not responded as you had expected, which was to slow down?
A. That's right.

Q. So at that point, that is, the point at which the truck had not responded and Mr Jones was of the opinion or had been of the opinion at 500 metres that there was a danger of a collision at the level crossing, did your view change at the end of the first whistle blast that there was a danger of a collision at the level crossing?
A. At the point of the second - when David started blowing it the second time, which is roughly the 350 metre mark, it was roughly when my view changed.”

63 At transcript p 68 lines 34-35 Mr Gangemi gave the following evidence:-

“A. Dave blew the whistle the second time and when there was no response, yes, that's when I formed the view.”

64 The following questions and answers occurred at transcript p 70 line 27 to line 33:-

“Q. And at the 350 metre mark, you having formed the view that there was a danger of a collision, that is, approximately the 350 metre mark, you having formed the view that there was a danger of a collision, you chose to wait before you did anything about slowing the train down?
A. I didn't choose to wait. It takes time as you're travelling towards the crossing and, as I said in my statement, David blew the second whistle and then I placed it in emergency.”

65 The following questions and answers occurred at transcript p 74 lines 23-27:-

“Q. Sorry, I will ask it again, Mr Gangemi. The time to start slowing the train down was when you formed the view that there was a danger of a collision at the level crossing between the train and the truck, wasn't it?
A. The time I formed the view would have been just before I placed it in emergency.”

66 Mr Gangemi agreed that it would have been prudent to apply the brakes at the time he formed the view that there was a danger of collision.

67 The following questions and answers occurred at transcript p 82 lines 33-38:-

“Q. But you have accepted that you placed it in emergency?
A. Yes.

Q. At around about the--
A. I can't recall exactly when I formed the view, formed the opinion that there was a danger of a collision.

Q. But it was certainly some time before you applied the emergency brake, wasn't it?
A. Well, maybe a few seconds.”

68 The following questions and answers occurred at transcript p 84 lines 30-33:-

“Q. I suggest to you that you applied the emergency brake simply later than you should have. What do you say about that?
A. In hindsight I may have.”

Mr Jones
Evidence in chief

69 Mr Jones gave evidence that on the afternoon of 10 November 2000 he was the co-driver of the train.

70 He first became aware of the truck when the train was “probably 500, 600 metres from the crossing”. He did not say anything at that stage.

71 Mr Jones said to Mr Gangemi “it doesn’t look like this guy’s gonna stop”. Mr Jones said that he made this remark when the train was “400 metres or so from the crossing” but he also said he made the remark “when we’d probably just passed it (the whistle board)”.

72 Mr Jones had not sounded the whistle before the whistle board. Mr Jones said that Mr Gangemi had sounded the whistle while the train was at the whistle board. Mr Jones said that he himself had first sounded the whistle “probably 100 metres or 50 metres from the crossing”. He had hung on to the whistle (the whistle had a manual control) for probably 15 seconds.

Cross-examination by counsel for the trucking interests

73 Mr Jones was cross-examined about a statement he had made on the day of the collision. In par 4 of his statement he had said in part:-

“We passed the whistle board, which is about 400 metres from the intersection. I sounded the whistle and I noticed the truck…heading towards the crossing. I saw he wasn’t going to stop in time. I yelled out to Barry (Mr Gangemi) “redlight”, which means stop. I kept hold of the whistle”.

74 Paragraph 4 of Mr Jones’ statement was obviously inconsistent with parts of his evidence in chief and parts of Mr Gangemi’s evidence. Mr Jones said in evidence that it had been eight years since he had seen the statement.

75 On the basis that Mr Jones had now seen the statement, the following questions were asked and the following answers were given:-

“Q. That implies, doesn't it, that at around about the whistle board or shortly after you passed the whistle board, you, not Mr Gangemi, sounded the whistle?
A. Probably, yeah. Well, it's been eight years since I have seen this.

Q. Certainly. Is this a fair way of putting it - I understand now that you have had an opportunity to look at that document. Is this a fair way to put it; at about the whistle board you saw a truck?
A. Yep.

Q. You formed the view that the truck was not going to stop by application of your twenty odd years of experience, is that right?
A. I suppose, yeah.

Q. As a consequence you sounded the whistle on the train?
A. Probably, yeah.

Q. And at the time you sounded the whistle, because you had formed the view that the truck was not going to stop at the crossing, you were concerned about the danger of a collision between the truck and the train?
A. Probably, yeah.”

76 Mr Jones was also cross-examined about a further statement in which he had said that he, Mr Jones, had sounded the whistle at about 450 metres from the crossing and had said “red light” at about 250 metres from the crossing.

77 Mr Jones said in cross-examination that his remark (“it doesn’t look like this guy’s gonna stop”) was “just a manner of speech”, “just words we use in railway terms” “just things we say at nearly every crossing” and that he had not been concerned at the time he had made the remark.

Cross-examination by counsel for the RTA

78 Mr Jones agreed that it had been hard to remember what had happened and that there were inconsistencies between his two statements and between what he had said in the statements and the evidence he had given in his evidence in chief, for example as to which of he and Mr Gangemi had sounded the whistle.

Findings

79 Determining what findings should be made on the basis of the evidence of the train drivers is not a simple task. Both drivers were giving evidence about events which had happened almost eight years previously. It was apparent from a part of Mr Jones’ evidence that he had not had the opportunity before giving evidence of refreshing his recollection from the earlier statements he had made.

80 Of the two witnesses I consider Mr Gangemi should be regarded as generally the more reliable. Parts of Mr Jones’ evidence were inconsistent with his earlier statements and some of his evidence was inherently improbable. Parts of Mr Gangemi’s evidence, for example that it was Mr Jones and not Mr Gangemi who had sounded the whistle, although inconsistent with Mr Jones’ evidence in chief, were corroborated by what Mr Jones had said in previous statements.

81 As regards estimates of distances, I consider that Mr Jones’ evidence of estimates of distances was clearly unreliable and that Mr Gangemi’s evidence of estimates of distances should be regarded as no more than very rough approximations. In a statement made much closer to the date of the collision Mr Gangemi had estimated that he had applied the brakes about 300 metres from the crossing. However, Mr Gangemi had concluded that he must have been wrong in this estimate, when it had been put to him in the Local Court proceeding that a Hasler chart showed that he had applied the brakes at a distance of 155 metres from the crossing.

82 It was suggested in argument by counsel for the trucking interests that the estimate of distances by the train drivers and particularly by Mr Gangemi could be treated as reliable, because they had a reference point in the whistle board. However, both Mr Gangemi and Mr Jones were mistaken about the distance of the whistle board from the crossing. Each of them thought that the whistle board was 400 metres from the crossing, whereas in fact it was somewhat closer, 370 metres.

83 As regards the remark made by Mr Jones, I would not accept counsel for the trucking interests’ characterisation of what Mr Jones said as being a “judgement” by Mr Jones “that there was a danger of a collision”. I find that it was a remark of a kind that Mr Jones not infrequently made, if he sighted a vehicle approaching a level crossing and that at the time he made the remark he felt no real concern that there was any danger of a collision. If the remark was in fact made when the train was about 500 metres from the crossing, the truck would have been more than 800 metres from the crossing and would still have had ample opportunity to slow down or stop before reaching the crossing. Nor do I consider that Mr Jones’ remark was taken by Mr Gangemi as being an expression of an opinion that Mr Jones had formed that there was a danger of collision.

84 I make the following further findings. Of the two members of the train crew Mr Jones was the first to see the truck. He did not say anything on first seeing the truck.

85 At some time before the train reached the whistle board Mr Jones said “looks like this bloke’s not going to stop” or words to a similar effect.

86 Mr Gangemi estimated that Mr Jones said this when the train was about 500 metres from the crossing. Mr Jones estimated that he said this when the train was about 400 metres from the crossing. I do not consider that it is possible to make any precise finding about what the distance was from the crossing.

87 At the time of making his remark Mr Jones had not made any judgement that there was a danger of the truck colliding with the train and Mr Gangemi did not form a view that Mr Jones had made such a judgement.

88 Subsequently Mr Jones sounded the whistle for the first time by pulling on the whistle rope. This occurred before or at the time the train passed the whistle board. It is not possible to make any precise finding about when Mr Jones sounded the whistle for the first time. The first whistle blast lasted a few seconds.

89 After Mr Jones stopped sounding the whistle for the first time the two drivers watched the truck but did not observe any reduction in the truck’s speed. Mr Jones started sounding the whistle a second time and continued sounding the whistle right up until the collision.

90 Mr Gangemi became concerned that there might be collision. It is not clear whether he came to have this concern at the time Mr Jones started sounding the whistle a second time or a little later when Mr Gangemi observed that the driver of the truck did not appear to be responding to the second whistle blast.

91 After a slight delay Mr Gangemi applied the train’s emergency brake.

92 According to the comment on sheet 5 in exhibit PN11 Mr Gangemi commenced to react for the purpose of applying the brake when the train was 239 metres from the crossing.

Other Albury witnesses

Alan Adkins

93 At the time of the collision Mr Adkins was a member of the New South Wales Police Service. In his capacity as a police officer he attended the scene of the collision shortly after the collision happened. In a report he made he said that when he attended it was wet but he said in his evidence that he was sure it was dry.

94 Mr Adkins measured the skid marks on the roadway as being 43.5 metres long.

95 Mr Adkins went back to the scene of the collision a week or two later. On this occasion he observed the approach signs on the highway and the signs at the crossing and the roadside stand of trees. He prepared a diagram which became exhibit RTA4. A number of the agreed facts were derived from this diagram.

96 Mr Adkins drove up and down the highway several times in his police vehicle, which was a four-wheel drive vehicle, to determine whether he would be able to see a train through the roadside stand of trees. He said in evidence “you could see the train through it. If there was a train coming, you would be able to see it”.

97 In cross-examination Mr Adkins said that a truck driver would be higher up off the ground than Mr Adkins would have been in his police vehicle and he agreed that the canopy of trees shown in photographs appeared to be thicker, the higher it was from the ground.

98 I accept the evidence by Mr Adkins which I have summarised.

Kevin Charles Penny

99 Mr Penny gave evidence that he had formerly been employed by Pacific National. In 1999 he had become its operations manager and as such he had been its principal investigator into accidents, complaints and near accidents.

100 Mr Penny had participated in an investigation of the collision but, because there had been an investigation by police, his role had been limited to interpreting a chart which was produced by an instrument in the cabin of the locomotive known as a Hasler box and which recorded graphically information about the progress of the train.

101 As a result of interpreting the chart, Mr Penny was able to say that the speed of the train 500 metres from “the impact” was 55 kph and that “approximately 250 metres from the stop the speed was 55 kph and the locomotive brakes were applied”. As the train continued on for about 100 metres after the collision before coming to a stop, the brakes were applied approximately 150 metres from the point of impact and approximately 250 metres from the point where the locomotive came to a stop.

102 In this evidence by Mr Penny the expression “the brakes were applied” actually meant the recording on the Hasler chart of a change in the air pressure in the braking system. There would be a delay between the train driver performing the physical act of applying the emergency brake and there being a change in the air pressure in the braking system.

103 In cross-examination by counsel for the trucking interests Mr Penny said that the Hasler chart showed that for about 20 minutes before the collision the train had been travelling at a speed of 55 kph.

104 In cross-examination by counsel for the RTA Mr Penny said that at some time before he wrote a letter dated 20 February 2002 he had inspected the crossing for the purpose of determining whether its “configuration” complied with Victorian standards. The following questions and answers occurred:-

“Q. Other than the traffic control signs and/or signals, what else do you include in the configuration of the level crossing?
A. The angle of the rail crossing the railway, the visibility approaching from both ways. Usually I would go and observe the train driver's visibility of the crossing and go back and drive along from both ways observing the road vehicle and measurements I would take with my wheel.

Q. Having done those things, you formed the view, did you not, when you made your inspection, that the configuration of that level crossing complied with the relevant Victorian standard?
A. Yes, that crossing is, was equivalent at that date with the speeds we do in Victoria of 80 on goods trains and 115 kilometres an hour on passenger trains.”

105 In re-examination the following questions and answers occurred at transcript p 182 lines 16-19:-

“Q. So that the crossing would have, in terms of its safe use, have supported a conclusion of a speed limit of 80 kilometres per hour?
A. At that date, yes.”

106 I accept the evidence by Mr Penny which I have summarised.

Kevin Francis Gabriel

107 Mr Gabriel gave evidence that he had been the driver of a vehicle which had collided with a train at the crossing on 20 December 1996. When his accident occurred, some of the road signs on the highway had been missing, having been vandalised. He had been travelling at about 95 kph and he had not seen the train until he was almost right at the crossing, when he was too close to stop.

108 I accept the evidence by Mr Gabriel which I have summarised.

109 Other evidence showed that the signage at the crossing had been changed and upgraded between the time of Mr Gabriel’s accident and 10 November 2000.

The remaining Albury witnesses

110 It is unnecessary to set out any part of the evidence of the other Albury witnesses.

Decisions on claims
The claim in proceedings 20061/07 by Pacific National against Woods and Mr Kuschert

111 There was no dispute at the hearing that Mr Kuschert and Woods as Mr Kuschert’s employer had owed a duty of care to Pacific National as the owner of the train. It was submitted by Pacific National that Mr Kuschert had breached the duty of care in not giving way at the give way sign, in driving at a speed which was excessive in the circumstances and in not keeping a proper lookout.

112 There is no doubt that there was a give way sign at the crossing requiring a vehicle on the highway to give way to a train and that Mr Kuschert did not give way to the Pacific National train. In his evidence Mr Kuschert sought to excuse his not giving way to the train on the grounds that he had not been able to see the train.

113 As I have already noted, Mr Kuschert had no actual recollection of the events leading up to the collision. He gave evidence in his statement of what he said was his usual practice in approaching the crossing. According to this evidence, his usual practice was to drive along the highway at a speed of about 100 kph, to commence slowing down at the first sign on the highway warning of the level crossing at about 300 (or 325) metres from the crossing, to look to his left and right for any train approaching the crossing and to approach the crossing at a speed of 80-90 kph.

114 In cross-examination by counsel for Pacific National Mr Kuschert denied a suggestion that he had seen the train at an early stage and had then attempted to drive the truck at a speed which he thought would enable the truck to pass the crossing before the train arrived at the crossing.

115 In his submissions counsel for Pacific National accepted Mr Kuschert’s denial and did not contend that I should find that Mr Kuschert had seen the train at an early stage. Nor did counsel for Pacific National contend that I should not find that Mr Kuschert, in accordance with what he said was his usual practice, had slowed the truck down to about 80 kph.

116 However, counsel for the RTA submitted that I should find that Mr Kuschert did not have any usual practice as to the speed at which he approached the crossing or, if he had, he had departed from that usual practice on this occasion. It was submitted that a possible scenario was that Mr Kuschert had seen the train at an early stage and had formed a view that he would beat, or would be able to beat, the train to the crossing and that Mr Kuschert had continued travelling at a speed of about 100 kph. Counsel contended that this scenario was supported by the evidence of the train drivers that they had not observed any reduction in the speed of the truck. Although the RTA was not a party to the claim by Pacific National against the trucking interests, I consider that I should deal with these submissions, particularly as they have some relevance to other claims between the parties.

117 I do not consider that these submissions by counsel for the RTA should be accepted.

118 In answer to question 1(a) the engineering experts stated that the speed of the truck at the point of impact was probably about 50 kph, with the qualification that Dr Rechnitzer and Mr Cowling considered a higher speed was possible. This estimate by the engineering experts of the speed of the truck at the point of impact was not based on Mr Kuschert’s evidence of what he said was his usual practice. It was based on the damage which had been sustained by the truck in the collision.

119 The engineering experts then reasoned backwards from their estimate of the speed of the truck at the point of impact, taking into account the skid mark and assuming a rate of deceleration of 0.3 g, and concluded that the speed of the truck at the commencement of the skid mark was probably about 75-77 kph. Accordingly, this estimate also did not depend on Mr Kuschert’s evidence of his usual practice.

120 Accordingly, the unanimous opinion of the experts arrived at independently of Mr Kuschert’s evidence as to his usual practice, would support a conclusion that on 10 November 2000 Mr Kuschert did in fact slow his vehicle to about 80 kph or a little less, as he was approaching the crossing. Such a conclusion would be inconsistent with Mr Kuschert having seen the train at an early stage and having formed the view that he could beat the train to the crossing.

121 The evidence of the train drivers that they did not observe any reduction in the speed of the truck, at least insofar as the observations related to the period before Mr Gangemi commenced the process of applying the train’s emergency brake, is not inconsistent with the conclusion. The process of applying the brake of the train commenced when the train was 239 metres from the crossing, at which point the truck was 300 metres or more from the crossing, that is at about the position of the first warning sign on the highway. Mr Kuschert’s evidence of his usual practice was that it was only at this point that he started to slow down.

122 I accordingly accept that Mr Kuschert had been travelling along the highway at a speed of about 100 kph, that at about the first approach sign on the highway he commenced slowing down and that he had slowed to a speed of 75-77 kph or perhaps 80 kph by the time of the commencement of the skid mark. The only rational explanation of the skid mark is that Mr Kuschert had, by some means or other, suddenly became aware of the presence of the train.

123 Counsel for Pacific National submitted that I should find that Mr Kuschert, before braking, had been travelling at a speed which was excessive in the circumstances. It was submitted that Mr Kuschert was approaching a recognised place of danger, a level crossing, of which he had been given notice by a series of approach signs on the highway.

124 In their answer to question 11(b) in exhibit PN10 the engineering experts unanimously agreed that excessive speed on the part of the truck driver had not contributed to the collision but qualified this opinion by saying “in relation to the (posted) speed limit” and added the opinion that the posted speed limit was in the circumstances too high. The opinion of the engineering experts is, accordingly, not an unqualified opinion that Mr Kuschert was not driving at an excessive speed.

125 In my opinion, the speed at which Mr Kuschert was driving before he applied the brakes would be excessive, in the absence of a proper discharge by him of his obligation to keep a proper look out, and, for reasons which I will give, I do not consider that Mr Kuschert kept a proper lookout.

126 In answer to question 1(c) in exhibit PN10 the engineering experts stated that most probably Mr Kuschert had determined a need to commence braking about 80-100 metres from the point of impact, based on a 1.5 to 2.5 second perception-reaction time. It is clear that Mr Kuschert determined a need to commence braking, because he had suddenly become aware, for the first time, of the approaching train.

127 Agreed fact 23 was that from about 320 metres up until about 110 metres west of the crossing, apart from a few isolated trees, the view from the highway through that section over towards the railway line on the left was largely unobstructed.

128 In their answer to question 10(a) in exhibit PN10 the engineering experts said that there was a clear view towards the railway line on the left from a distance of about 300 metres until a distance of about 100 metres from the crossing, except for two trees, one of which was dead.

129 The slight discrepancies in the distances in agreed fact 23 and in the answer to question 10(a) are not material.

130 The fact that Mr Kuschert did not see the train while he was travelling over a distance of about 200 metres during which he would have had a clear view of the railway line, if he had looked in that direction, strongly suggests that Mr Kuschert, although knowing that he was approaching the level crossing, did not keep a proper look out for trains; that either he did not look at all or that any look was perfunctory.

131 Counsel for the trucking interests submitted that I should find that a number of factors in combination had prevented Mr Kuschert from seeing the train, with the consequence that I should not infer from Mr Kuschert’s failure to see the train that Mr Kuschert had not kept a proper look out.

132 Most of the factors relied on by the trucking interests were summarised in par 21 of Professor Dain’s report of 24 June 2008, which reads as follows:

“Reasons why the plaintiff would have difficulty observing the train on approach to the crossing
The visual factors operating against early and efficient detection of the train may be summarised as:
1) The angle at which the railway line intersects with the road and the relative speeds of truck and train which means that the truck travelling at 100 km per hour or a little less and the train travelling at 55 km per hour, the train could appear stationary to an observer in the truck who has opportunities to look in the direction of the train that are reduced by the intermittent view afforded by the trees.
2) The reduced visibility of the train due to its colour relative to its environment.
3) The reduced opportunities to detect the train caused by trees along the roadway.
4) The conflicting clues to the presence of the train caused by trees in front of and behind the train and close to the line of sight of an observer looking for a train.
5) The presence of the canola crop being of a similar colour and pattern to the wagons and masking the presence of the railway line and, in part, the side of the train.
6) The lower light levels of an overcast day.
7) The attention of the truck driver divided between the possibility of trains approaching from either the right and left and the normal tasks of driving a truck on a curved roadway.
8) The obstructed view to the right, demanding extra care and attention.”

133 At the hearing a great deal of evidence was given about these factors. I propose simply to comment briefly on each of them.

1. This refers to a phenomenon known as “constant heading” in which, if two vehicles are approaching an intersection at constant speeds, one vehicle does not appear to an observer in the other vehicle to be moving in relation to that other vehicle, thus eliminating any clue of relative movement in detecting the first vehicle.

2. Agreed fact 31 was that the locomotive was painted in a Brunswick green livery with yellow highlighting around each end and with yellow and white lettering along the sides. The wagons were painted a grey-brown colour but with a yellow markings. The evidence about the colour of the wagons consisted largely of photographs (or copies of photographs) and caution has to be exercised in assessing the photographs. For example, the appearance of the yellow markings on the wagons, which I assume were of a uniform colour, varies considerably in the photographs.

3. The trees referred to were the roadside and the fenceline trees.

The answers to questions 8 and 9 in exhibit PN10 referred to “the obstruction to clear view of the approaching train created by the first and second roadside tree stands”.

However, part of the answer to question 10(a) states that it was only at a road distance of 100 to 60 metres from the crossing that a driver’s view was obstructed by the roadside and fenceline trees. These trees did not obstruct a clear view of the crossing until a vehicle was about 100 metres from the crossing.

4. Part of the answer to question 10(a) in exhibit PN10 states that there was a clear view from about 300 metres from the crossing to about 100 metres from the crossing, “except for two trees, one of which is dead”.

5. The presence, colour and height of a canola crop in a paddock between the highway and the railway line has to be gleaned from photographs and a video. The crop may have reached the level of the railway track.

6. The day was overcast. However, it was not raining at the time of the collision and, according to Mr Gangemi’s evidence which I accept, there were patches of blue sky.

7. I accept that the truck driver had to distribute his attention among a number of tasks, including negotiating the curve in the highway, watching for oncoming road traffic and looking for any trains approaching from the south, as well as looking for any train approaching from the north. It is, of course, a common requirement for a driver of a vehicle that he distribute his attention among a number of tasks.

8. I accept that there were trees obscuring the truck driver’s view to the right, that is to the south of the railway line.

134 I accept that there were some matters making it more difficult for Mr Kuschert to have seen the train. However, Professor Dain himself said in oral evidence “I’m not saying the train was invisible”. It is to be borne in mind that the collision occurred shortly before 4 o’clock in the afternoon on a day in November during daylight saving. Although the day was overcast it was not then raining and there were patches of blue sky. The terrain between the truck and the train as they approached the crossing was flat. For a distance of about 200 metres Mr Kuschert, if he had looked, would have had a clear view in the direction of the train.

135 A matter rendering it more likely that Mr Kuschert did not keep a proper look out is that I am satisfied that Mr Kuschert, notwithstanding his denial in his evidence, did not expect to see a train at the crossing. He had never seen a train at the crossing, even though in some weeks he had passed over the crossing as many as six times. He had been told, and I find he believed, that trains used the railway line only at night.

136 I conclude that I should find that Mr Kuschert was negligent in not giving way at the give way sign, in driving at a speed which was excessive in the circumstances (those circumstances including an omission to keep a proper look out) and in not keeping a proper look out and that I should find a verdict for the plaintiff in the claim by Pacific National against Woods and Kuschert.

The claim in proceedings 20061/07 by Woods and the claim in proceedings 20065/07 by Mr Kuschert

137 As I have already indicated, these claims by the trucking interests can appropriately be regarded as raising identical issues.

138 Many particulars of alleged negligence were pleaded. Some of these particulars were expressly abandoned. A number of particulars, although not expressly abandoned, were not the subject of any submissions in counsel for the trucking interests’ extensive final written and oral submissions and I do not propose to deal with them, confining myself to such of the particulars as were pressed in final submissions.

139 The particulars of negligence which were ultimately pressed against Pacific National were that the train drivers, for whose negligence it would be vicariously liable, had been negligent in driving the locomotive at a speed in excess of the speed limit and had been negligent at two points, when the train was 500 metres from the crossing and when the train was 350 metres from the crossing; and that Pacific National itself had been negligent in the care and control of the crossing. Claims directly against Pacific National which were expressly abandoned included that Pacific National had been negligent in failing to ensure that the brakes on the locomotive and wagons were operating properly and that Pacific National had been negligent in painting its locomotives and wagons in colours which would be inconspicuous to drivers using the highway.

140 It is convenient to deal first with the claims of negligence against the train drivers.

141 According to the Hasler chart as interpreted by Mr Penny, the train had been travelling at a speed of 55 kph up until a point about 150 (or 155) metres before the crossing, when the application of the train’s emergency brakes started to produce a change in the air pressure within the braking system. In the answer to question 11(c) in exhibit PN11 the engineering experts stated that “the speed limit was 50 kph”. It was submitted by counsel for the trucking interests that Mr Gangemi had been negligent in driving the train at a speed in excess of the speed limit and that, if he had driven the train at a speed within the speed limit, the truck would have passed over the crossing before the train arrived at the crossing and no collision would have occurred.

142 It can be accepted that, if the train had been driven at a different speed, the collision would probably not have occurred, just as the collision would probably not have occurred if any one of a large number of facts had been different, but the argument put by counsel for the trucking interests cannot succeed unless it was negligent to drive the train at a speed of 55 kph.

143 I do not consider that I should find that the train drivers were negligent in driving the train at 55 kph. As Mr Penny stated in his evidence, “the speed limit” was in place, because of the condition of the railway track and had nothing to do with safety at the level crossing. In any event, the crossing was equivalent to crossings in Victoria on which Mr Penny said goods trains travelled at 80 kph. In his report of 20 July 2006 Mr Cowling said that the 50 kph speed limit was in place because of the track condition and maximum 20 tonne axle loading rather than any other external road vehicle traffic consideration.

144 Mr Gangemi gave evidence that in his judgement, as an experienced train driver, the train in travelling at “approximately 50 kph” was travelling at an appropriate and safe speed. Mr Gangemi was not challenged on this evidence. Although I informed the parties that generally I would apply the rule in Brown v Dunn in a flexible and not a rigid way, this evidence by Mr Gangemi should have been challenged, if it was intended to dispute it.

145 In answer to question 11(c) in exhibit PN10 the engineering experts said that the speed of the train at 55 kph was not high and that the train speed had not directly contributed to the collision.

146 It is convenient to begin a consideration of the other particulars in which it was alleged that the train drivers were negligent with a consideration of the scope or content of the duty of care owed by the train drivers.

147 It was submitted by counsel for the trucking interests that as soon as one or both of the train drivers formed a view that a road vehicle might not stop and that there was a danger of a collision, they had a duty to take reasonable steps to avoid a collision (see for example pars 118 and 119 of counsel for the trucking interests’ written submissions). Counsel cited inter alia Petropolous v Commissioner for Railways(No 1) (1962) 80 WN 659 at 662-663.

148 Counsel for Pacific National did not dispute that the train drivers owed some kind of duty of care to users of the highway. However, counsel submitted that it was necessary to determine what was the content of that duty of care. On the importance of determining the content of an alleged duty of care, counsel cited inter alia Vairy v Wyong Shire Counsel (2005) 223 CLR 422, for example at 442 (58) per Gummow J.

149 Counsel for Pacific National submitted that in determining the content of the duty of care it was necessary to have regard inter alia to the differences between the braking distances of a train and a road vehicle, as exemplified by the differences between the braking distances of the truck and the train in the present case.

150 In answer to question 4 in exhibit PN10 the engineering experts stated that, if the train had been travelling at 55 kph at the time it commenced braking, it would have had to commence braking about 254-333 metres from the crossing, if it was to stop before the crossing. This distance did not include any allowance for the train driver’s perception-reaction time. If this was taken into account, the higher figure would be increased to 363 metres.

151 On the other hand, if the truck had been travelling at 75 kph at the time it commenced braking, it could have stopped under hard braking in 74 metres, not including any reaction time and, if the truck had been travelling at 100 kph at the time it commenced braking, it could have stopped under hard braking in 131 metres, not including any reaction time, and in about 200 metres including an allowance for a reaction time.

152 It was submitted that in determining the content of any duty of care owed by train drivers, it was also necessary to take into account the very large number of level crossings in New South Wales and Victoria.

153 Counsel for Pacific National submitted that it was not part of the content of any duty of care owed by train drivers to road users to commence slowing down the train, whenever they saw a road vehicle approaching a crossing without reducing speed, if the vehicle was still much further away from the crossing than its stopping distance, if its brakes were applied.

154 In Petropoulos, a case to which I was referred by counsel for the trucking interests, Brereton J, with whose judgment the other members of the Court agreed, said at p 663:

“Several basic factors need to be borne prominently in mind. In the first place the Commissioner is driving a heavy vehicle which cannot be pulled up in a short distance and the efficacy of any warning needs to be gauged accordingly. In the second place, although there is no written law on the subject, it is undoubtedly and universally regarded as being a first requisite of prudence on the part of the user of a public highway that he should give way to a train approaching from either direction at a level crossing, and this is a matter which the driver of a train may properly have in mind. This is I think implicit in Dixon CJ’s remarks in Hale v Victorian Railways Commissions (1953) 87 CLR 529 where he said: “I do not think that the jury would suppose that his Honour meant in any way to suggest that a train crew might not rely upon road traffic heeding the warning of whistle and notice boards and might not accordingly proceed at speed over level crossings unless there was reason to think that a vehicle was actually endangered. His Honour spoke to jurymen who shared the common experience and understanding of the community as to the use of level crossings and the practice and indeed the necessity of trains travelling over them in reliance upon the road traffic paying heed to the warnings and allowing them to pass”. He appears to recognise, however, that a situation may arise in which the driver of a train, having given adequate warning of its approach to a crossing, becomes aware of impending danger and that it then becomes his duty to endeavour to stop. To put it shortly, as I understand the matter, the driver of a train is entitled to proceed at speed, provided he gives adequate warning of the train’s approach, on the assumption that all users of the highway will keep clear of the crossing. If, however, it becomes clear that a vehicle is not giving way, then he must slow down or stop. Bearing in mind of course that the distance within which a railmotor can stop as stated in the defendant’s admissions in the present case is very much greater than that in which a motor vehicle travelling at ordinary speeds can do so, it may well be that it can rarely become apparent to the driver of a railmotor that a vehicle is not stopping at a point of time early enough for him to stop his train before reaching the crossing. Even though this be so, I think that in such circumstances the duty remains on him at least to minimise the impact if it cannot be avoided by the reduction of speed as soon as the emergency becomes apparent.”

155 If Petropoulos is applied, there would be duty of care, if there was reason for the train drivers to think that the truck was actually a danger or if it became clear to the train drivers that the truck was not going to give way. It seems to me that these conditions would not be satisfied at a point where the truck was still much further away from the crossing than its stopping distance if its brakes were applied.

156 It was submitted by counsel for the trucking interests that, when Mr Jones said “it looks like this blokes’ not going to stop” at a distance of 500 metres from the crossing, Mr Jones was making a judgement that there was a danger of a collision and that Mr Gangemi should have heeded Mr Jones’ judgement and commenced slowing down the train. It was submitted that Mr Jones, as Mr Gangemi should have realised, was in a better position that Mr Gangemi to form a judgement, because he was on the side of the cabin of the locomotive nearer to the truck and he was not as occupied as Mr Gangemi was with other tasks in the driving of the train.

157 I do not consider that I should find that there was any negligence on the part of the train drivers at this point.

158 I have already held that Mr Jones’ remark is not properly characterised as a “judgement” made by him “that there was a danger of a collision”. I have also held that the train drivers’ evidence about distances cannot be regarded as anything more than very rough approximations.

159 If it is accepted that the remark was made by Mr Jones when the train was about 500 metres from the crossing, then the truck was still 820 metres from the crossing (see sheet 2 in exhibit PN11). When the truck was at this distance from the crossing, it was much further from the crossing than its stopping distance if its brakes were applied. There was no reason for the train drivers to think that the truck was actually a danger and it could not have become clear to the train drivers that the truck was not going to give way.

160 I agree with the robust remarks made by Dr Rechnitzer at transcript p 377 lines 23-27 and lines 38-42. Dr Rechnitzer said:-

“WITNESS RECHNITZER: .… The truck, even on a moderate condition, needs less than 200 metres to stop, so the idea that you would form a perception at 800 metres what the truck is going to do near the Crossing to me is absolute nonsense, as an engineer and, as a driver, it just doesn't hold water.

…..

WITNESS RECHNITZER: If I was the driver and someone said to me, "See that truck nearly a kilometre away, he's not going to stop at the Crossing", I would say a few swear words but I would also say, "Are you nuts? How would you know that?" because in the intervening 600 metres the truck can do all sorts of things.”

161 Mr Cowling said that he agreed with Dr Rechnitzer “100%”.

162 It was submitted by counsel for the trucking interests that Mr Gangemi had been negligent in not taking some action to avoid a possible collision, when the train was 350 metres from the crossing. The distance of 350 metres was derived from Mr Gangemi’s evidence that he “thought” that Mr Jones has started sounding the whistle the second time when the train was “approximately” 350 metres from the crossing.

163 I have already held that the evidence of the distance was a very rough estimate and was likely to have been affected by Mr Gangemi’s mistaken belief that the whistle board was at 400 metres, and not 370 metres, from the crossing. I have also held that it is unclear whether Mr Gangemi formed a view about the oncoming truck at the commencement of the second whistle blast or after he had observed that the truck driver did not appear to be responding to the second whistle blast.

164 However, if the distance of 350 metres is accepted, the truck would still have been at a distance of 500-600 metres from the crossing, a much greater distance than the stopping distance of the truck if its brakes were applied.

165 Even when the process of applying the train’s brakes, including the driver’s reaction time, actually commenced when the train was at a distance of 239 metres from the crossing, the truck, if the handwritten note on sheet 5 of exhibit PN10 is adopted, was at a distance of 300-320 metres from the crossing. The handwritten note on sheet 5 refers to sheet 3. Sheet 3 shows that when the train was 225 metres from the crossing, that is somewhat less than 239 metres, the truck was 320 metres from the crossing, indicating that, when the train was 239 metres from the crossing, the truck was actually more than 320 metres from the crossing, much more than the distance required for the truck to come to a stop before the crossing, if its brakes were applied.

166 The first approach signs on the highway warning of the level crossing were at a distance of 325 metres from the crossing (agreed fact 18). For a driver who had not previously driven along the highway, these signs would have been the first indication that he was approaching a level crossing. The engineering experts agreed that the road signage on the approach to the crossing was appropriate (exhibit PN10 answer to question 8).

167 According to Mr Kuschert’s evidence of his usual practice, he would commence slowing down by taking his foot off the accelerator “just near” the first approach sign on the highway. As Dr Rechnitzer remarked in oral evidence:-

“Why on earth would train drivers be thinking that the truck should slow down earlier than the truck driver himself…the idea that the train drivers should have done something earlier…before even the truck driver thinks he should do something…sounds to me a real contradiction or a nonsense”.

168 In my opinion, it was either not within the content of any duty of the train drivers or it was not negligent on the part of the train drivers, not to take some action to slow down or stop the train, when the train was 350 metres from the crossing. Any delay on the part of Mr Gangemi in deciding to take the step of applying the train’s emergency brakes, after he had first formed the view that there was a risk of a collision, was very slight and did not, in my opinion, amount to negligence on his part.

169 A claim was made by the trucking interests against both Pacific National and the RTA that each had been negligent in the care and control of the level crossing.

170 The particulars of negligence which were ultimately pressed were that each of Pacific National and the RTA had been negligent in not removing the roadside stand of trees, in not installing a sign imposing a lower speed limit at some point on the highway approach to the level crossing and in not installing a stop sign for road traffic at the crossing.

171 The claim against the RTA was by far the more strongly pressed of the claims. Indeed, it was only with some difficulty that it could be discerned that pages 42-81 of the trucking interests’ written submissions, which were headed “the case against the RTA”, were also intended to support a claim against Pacific National.

172 At pages 63-69 of the trucking interests’ written submissions under the heading “what the documents disclosed” counsel for the trucking interests discussed a number of documents which had been discovered by one or other of Pacific National and the RTA. I will consider these documents in some detail when I deal with the claim by the trucking interests against the RTA. As regards the claim against Pacific National, I will simply note that Pacific National received a sketch and photographs relating to an audit of the crossing conducted in June 1996. According to the sketch, what was described as “a sight triangle” was poor for the vehicles approaching the crossing in three out of four quadrants, including the quadrant in which Mr Kuschert approached the crossing. In a spreadsheet also relating to the audit it was noted that in three of the four sight triangles the sight was unsatisfactory, the obstruction type was vegetation and that the obstruction was easily able to be removed. It was not, however, established that Pacific National had received this spreadsheet.

173 Counsel for the trucking interests sought to rely on a lease called a primary infrastructure lease dated 30 April 1999 from the Director of Public Transport (Victoria) to Freight Victoria Limited (as Pacific National was then known). The lease is 81 pages long and I will refer to only a few of its provisions.

174 By clause 2.1 of the lease the Director granted a lease of “the land” to be held on the terms and conditions in the lease. The expression “the land” was defined in clause 1.1 of the lease as follows:-

“ Land means all that land forming part of:
(a) the Railway Corridors;
(b) the area delineated and coloured yellow on the plans of the Station Grounds listed in Schedule 2; and
(c) the Intrastate Corridors;
in each case as varied from time to time under the terms of this Lease, and includes the Railway Infrastructure but excludes:
(d) the Air Space; and
(e) the land subject to the Excluded Leases.”

175 The expression “the railway corridors” was defined in clause 1.1 as:-

“ Railway Corridors means all land owned by VRTC on which the railway lines listed in Schedule 1 are situated, but excluding the Station Grounds.”

176 However, Schedule 1 to the lease headed “Railway corridors” was left blank.

177 The expression “station grounds” would appear to have no relevance to the present case.

178 The expression “intrastate corridor” was the subject of lengthy definitions in the lease. I was not assisted by any submissions from counsel and it is unclear to me whether it could have any application in the present case.

179 In clause 1.1 of the lease the expression “railway infrastructure” was defined as meaning:-

“ Railway Infrastructure means the facilities installed or erected upon the Land from time to time necessary for or in connection with Railway Operations and includes railway track, associated track structures and works (such as cuttings, tunnels, bridges, stations, platforms, sidings, excavations, landfills, track support earthworks and drainage works), pedestrian crossings, over-track structures, under-track structures, service roads, signalling systems, notices and signs, overhead electrical power supply systems and associated buildings, workshops, depots and yards, but excludes the Excluded Infrastructure.”

180 The expression “excluded infrastructure” was defined as meaning the items listed in Schedule 4. Schedule 4 in turn included any infrastructure erected pursuant to clauses 2.3, 2.4 or 5.7(c) of the lease.

181 I conclude that it is not clear whether the lease applied to the Savernake level crossing.

182 On the basis that the lease did apply to the Savernake level crossing, counsel for the trucking interests referred to clauses 4.1 and 10.3.

183 Clause 4.1 was in the following terms:-

“Upgrade by Lessee
The Lessee may from time to time upgrade, replace or add to any of the Railway Infrastructure provided that the upgrade, replacement or addition:
(a) is for the purpose of Railway Operations; and
(b) does not interfere with the Air Space, the Excluded Infrastructure, the Excluded Leases or the Existing Licences.”

184 Clause 10.3 of the lease was in the following terms:-

“Level Crossings
The Lessee must at its own cost maintain that part of a level crossing which extends 2.44 metres either side from the outside running rail of the Intrastate Track together with the land which lies between the outside running rails and any pedestrian crossing which forms part of the level crossing.”

185 It was submitted that the steps which the trucking interests submitted Pacific National should have taken would have fallen within the power to upgrade conferred by clause 4.1 of the lease and the duty to maintain imposed by clause 10.3 of the lease.

186 However, it was later conceded by counsel for the trucking interests that Pacific National would have had no power under clause 4.1 or clause 10.3 of the lease or otherwise to remove the roadside stand of trees, which was situated 56-72 metres from the crossing, or to install a speed limit sign for road traffic, which, it was accepted, would have had to have been at a substantial distance along the highway from the crossing.

187 For similar reasons to those I will give in considering the claim by the trucking interests against the RTA, I consider that, even if Pacific National had power to erect a stop sign for road traffic at the crossing, it was not negligent in not doing so.

188 I find a verdict for Pacific National on the cross-claim by Woods in proceedings 20061/07 and on the claim by Mr Kuschert in proceedings 20065/07.

The claim by Woods in proceedings 20061/07 against the RTA and the claim by Mr Kuschert in proceedings 20065/07 against the RTA

189 These claims raised similar issues.

190 A very large part of the written submissions of counsel for the trucking interests under the heading “the case against the RTA” consisted of lengthy extracts from the Roads Act 1993, the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512, especially at pp 577-582 (pars 150-165, omitting some paragraphs) and the judgment of Tobias JA in Liverpool City Council v Millett (2004) 43 MVR 193 at 208-209 (66-69) and 212-218 (80-113) and quotations from and references to, documents which had been produced by the other parties on discovery. Only a comparatively small part of the written submissions was devoted to the making of actual submissions as to the case against the RTA.

191 It would appear to me that the case against the RTA propounded by the trucking interests can be briefly summarised as follows. The RTA was a road authority under the Roads Act or at least had the powers of a road authority under the Roads Act, in relation to the Riverina Highway. As such, it owed a duty of a kind recognised in Brodie to take reasonable care that its exercise of, or failure to exercise, those powers did not create a foreseeable risk of harm to a class of persons, road users, which included Mr Kuschert. This duty was not limited to a duty to road users exercising reasonable care for their own safety.

192 In the present case, the roadside trees were within what was described as sight triangles for road users approaching the crossing from the west. A sight triangle is a notional triangle, one side of the triangle being along the highway from the position of a road vehicle approaching the crossing up to the crossing, another side of the triangle being along the railway line from the simultaneous position of the train up to the crossing and the third side of the triangle being a direct line between the position of the road vehicle and the position of the train. If trees are within a sight triangle, they can obstruct the road users’ vision of the train.

193 The RTA had knowledge before 10 November 2000 of the presence of the roadside trees within sight triangles and should, in discharge of the duty owed by it to road users, have removed the trees. However, the RTA, in breach of its duty, had failed to remove the trees and the failure to remove the trees had been a cause of the collision.

194 Alternatively, having failed to remove the trees, the RTA should have taken some other steps to safeguard road users. The other steps which were pressed in final submissions by counsel were to have erected a stop sign at the crossing or to have erected a speed limit sign on the highway before the crossing. If either of these signs had been erected, then Mr Kuschert would have obeyed it and the collision would not have occurred.

195 The RTA conceded parts of this case and disputed others.

196 The RTA conceded that it was the road authority or had the powers of a road authority in respect of the Riverina Highway but limited that concession to “responsibility for the Riverina Highway at this crossing extending to the limit of the table drain and up to 3 metres either side of the railway line”.

197 The RTA accepted that it owed a duty to take reasonable care that its exercise or failure to exercise its powers as a road authority did not create a foreseeable risk of harm to road users but sought to limit that duty to a duty to take reasonable care for persons using reasonable care for their own safety.

198 It was conceded by the RTA that the roadside trees were in a sight triangle, as defined in the RTA’s draft traffic engineering manual of 1994, which was conceded to have been in operation in 2000. However, it was disputed that the RTA had knowledge before 10 November 2000 of the presence of the roadside trees within the sight triangles.

199 It was submitted by the RTA that responsibility for the trees being within the sight triangles fell on the Victorian railway authorities and not the RTA. The RTA accepted that it would have been responsible for all approach signs on the highway, including any speed limit signs, but it disputed that it was responsible for signs at the crossing itself, including any stop sign. The RTA disputed that any breach of care by it had been a cause of the collision.

200 I will now make some findings about certain parts of the trucking interests’ case against the RTA which were disputed by the RTA.

201 It is unnecessary to determine whether the RTA’s responsibility extended on both sides of the highway to beyond the limit of the table drain, because the roadside stand of trees was within the limit of the table drain. The roadside trees had of course been cut down before I had a view in the first week of the hearing in Albury but stumps of some of the trees could still be seen and appeared to me to be within the limit of the table drain. I can draw inferences from what I saw on a view (Evidence Act s 54).

202 It is unnecessary to determine whether, if the RTA owed a duty of care, it owed a duty of care to persons not exercising reasonable care for their own safety, in circumstances where it would not have owed a duty of care to persons who were exercising reasonable care for their own safety. A duty of care would have been owed alike to drivers exercising, and drivers not exercising, reasonable care for their own safety, to take reasonable care that a driver’s view of an approaching train was not obstructed by trees.

203 To determine some other parts of the trucking interests’ case which were disputed, it is necessary to refer to some documents. At pp 63-69 of the trucking interests’ written submissions in the section headed “what the documents disclosed” counsel for the trucking interests quoted parts and referred to parts of a number of documents. I have taken into account all of these documents but will specifically refer to only some of them.

204 Some of the documents related to an audit of the crossing conducted in about June 1996 by the Department of Infrastructure of the State of Victoria. One of these documents was a spreadsheet, copies of which were produced by both the Department of Infrastructure and the RTA, in which it was noted, in relation to three of the four sight triangles for the crossing, including the sight triangle in the quadrant relevant to Mr Kuschert, the sight was unsatisfactory, the obstruction was vegetation and the vegetation was able to be easily removed.

205 Another document was a document described as an interoffice memorandum on the letterhead of the Public Transport Corporation of Victoria from the Manager, Track Engineering to a Mr Ponton Manager System Safety V/Line Freight. The memorandum referred to the level crossing at Rennie (that is the level crossing at Savernake). It stated:-

“I refer to your memorandum dated 29 January, 1997 requesting for a safety review of the above level crossing following an accident on 20/12/96.
An investigation into the level of safety provided at this crossing has been carried out and it indicates that the advanced warning signs, level crossing signage and pavement markings do not fully comply with the Australian Standard AS.1742.7-1993. Additionally there is the possible presence of overgrown trees along the rail reserve which could affect sight distance. Written requests (copies attached) have been forwarded to the Road and Traffic Authority which is the responsible road body and the District Engineer (Northern) seeking for these to be remedied.”

206 On the same day 29 May 1997 an officer of the Public Transport Commission wrote a letter to the RTA in the following terms:-

“Following a level crossing accident at the above site on 20 December, 1996 the Public Transport Corporation reviewed the level of safety at this crossing. This investigation indicated that the approach warning signs do not fully comply with the Australian Standard AS.1742.7-1993 ‘Manual of uniform traffic control devices – Railway Crossings’.
In view that the RTA is the road authority and is responsible for the provision of advance warning signs at level crossings please arrange for the required signage to be erected to accord with Figure 1 of the Australian Standard.
The investigation has also indicated an absence of ‘RAIL X’ pavement markings on the approaches to the crossing and holding lines at the crossing itself. As these are also required under the Australian Standard it would be appreciated if you can also arrange for these to be provided.
The Corporation’s District Engineer (Northern), Mr Frank Flynn has also been requested to update the signage at the crossing which is the responsibility of the P.T.C.”

207 On the same day 29 May 1997 an officer of the Public Transport Commission wrote a letter to Mr Flynn, which is in the following terms:-

“Following a level crossing accident at the above site on 20 December 1996, Adrian Ponton, Manager System Safety, V/Line Freight has requested a safety review of this crossing.
As a consequence a letter has been forwarded to the Roads and Traffic Authority (copy attached) requesting updating of the advanced warning signs and pavement markings to comply with AS1742.7-1993. In view that the PTC is responsible for the level crossing signage please arrange for these signs to be altered to accord with Figure 1 of the Australian Standard. It also appears that a missing ‘RAILWAY’ sign requires replacement.
Further, the 1996 Rail Level Crossing Audit indicates that trees within the railway reserve are affecting sight distance. It would be appreciated if you can also arrange for these to be attended to if you consider that they are adversely affecting sight distance.”

208 There is a handwritten note dated 21 July 1997 signed by Mr Flynn on a copy of this letter. The handwritten note reads:-

“New “railway” sign and hazard marker erected Trees were not obstructing sighting”.

209 Notes in diaries kept by the RTA indicate that in January and February 1998 the RTA replaced and upgraded signs near the crossing.

210 Some of the documents discovered indicated that it was proposed to conduct another audit of the crossing in about September 1998 but the documents which are still in existence do not reveal whether this proposed audit was held.

211 Another document discloses that in 1999-2000 it was proposed to upgrade the crossing in 2002.

212 Although counsel for the RTA submitted that there was no evidence as to when the copy of the spreadsheet held by the RTA had been received by the RTA, I consider that, more probably than not, it had been received before 10 November 2000 and hence the RTA, at some level, had knowledge before 10 November 2000 of the presence of the roadside trees within the sight triangles. I am, however, not satisfied that it has been established that responsibility to remove the trees or to erect a stop sign at the crossing was within the scope of the RTA’s responsibilities. The auditing of the crossing conducted in about June 1996 was conducted by the Department of Infrastructure of the State of Victoria. After the results of the investigation following the accident in December 1996 had been obtained, the Public Transport Corporation of Victoria on 29 May 1997 wrote to the RTA as “the road authority”, asking it to arrange for advance warning signs and pavement signs to be effected, in accordance with the relevant Australian standards.

213 However, as the Public Transport Corporation informed the RTA, it wrote to its own district engineer requesting him to update the signage at the crossing, “which is the responsibility of the PTC”. The Public Transport Corporation did not even mention in its letter to the RTA that it had written to its own district engineer, asking that trees within the railway reserve be attended to, if the engineer considered that the trees were adversely affecting sight distance. The engineer reported to the Public Transport Corporation that signs had been erected at the crossing but that the trees were not obstructing sight.

214 If a responsibility to remove the trees was within the scope or content of the RTA’s duty of care to road users, the questions would still remain of whether it was a breach of the duty of care not to have removed the trees and, if it was a breach, whether this breach caused the collision.

215 In my opinion, the omission to remove the trees would clearly have been a breach.

216 Mr Cowling, the engineer retained by the RTA, was strongly of the opinion that the roadside trees, when combined with the fenceline trees, “effectively blocked a proper sighting from alongside the road through to the north in the direction of an approaching train” and “this serious sight obstruction” should have been removed (Mr Cowling’s report 20 July 2006 p 23). In his oral evidence Mr Cowling reiterated that the roadside stand of trees should have been removed.

217 In exhibit PN10 the engineering experts said in answer to question 8 that the first and second roadside tree stands (that is the roadside trees and the fenceline trees) created an obstruction to a clear view of an approaching train and that the safest action would have been promptly to remove the obstructing trees.

218 In exhibit PN10 the engineering experts said in answer to question 10 that at a road distance from 100 metres to 60 metres from the crossing, the truck driver’s view would be obstructed by the roadside and fenceline trees.

219 In answer to question 11(f) the engineering experts said that “the roadside and fenceline stands of trees within 100 metres to the west of the crossing may have played a role (in contributing to the collision) in that they would have blocked the driver’s view within this section of the approach”.

220 However, the engineering experts added in their answer to question 11(f) “this effect is only relevant in the event the driver did not observe the train in the interval from about 300 metres to 100 metres from the crossing”. This addendum to the answer to question 11(f) relates to the issue of causation, to which I now turn.

221 As I have already remarked, the only rational explanation of the skid mark is that Mr Kuschert had suddenly become aware for the first time of the approaching train and had applied the brakes of the truck hard.

222 The engineering experts in their answer to question 1(c) in exhibit PN10 said that Mr Kuschert had probably determined a need to commence braking at 80-100 metres from the impact, including a reaction time. In their answer to question 10(a) the engineering experts said that it was only at a distance of from 100 metres to 60 metres from the crossing that the truck driver’s view would have been obstructed by the roadside and fenceline trees. Accordingly, Mr Kuschert became aware of the train either just before reaching or just after reaching the trees. On either view, any obstruction created by the trees did not prevent him becoming aware of the train.

223 That the driver of the truck had become aware of the train before he was unsighted by any of the trees was a conclusion reached by Mr Hazel, one of the trucking interests’ own experts, in a report dated 24 April 2001, which counsel for the trucking interests did not tender. In his oral evidence Mr Hazel said that he stood by the opinion he had expressed in his report of 24 April 2001.

224 In recognition of the difficulty of establishing that a failure to remove the trees had caused the collision by obstructing Mr Kuschert’s view of the approaching train, the argument for the trucking interests shifted from an “obstruction” argument to what was sometimes referred to as a “distraction” argument, although Professor Dain deprecated the use of the word “distraction”. According to the distraction argument, the failure to remove the trees should be regarded as having caused the collision, in that at certain distances, for example at 250 metres from the crossing, the trees, even if they did not block a driver’s view of an approaching train, blocked a driver’s view of the crossing itself and by doing so added to Mr Kuschert’s tasks in driving the truck, for example, in remaining in the correct lane as he negotiated the curve in the road and watching for oncoming traffic, thereby “distracting” him from looking out for trains.

225 I do not consider that the distraction argument should be accepted. As Professor Dain said in evidence, for drivers approaching any intersection or roundabout or indeed anywhere on a road, there are a number of factors that a driver needs to pay attention to and a number of tasks to be performed by the driver. In my opinion, the presence of the trees did not to any significant degree add to, or make more difficult, the other tasks which Mr Kuschert as the driver of the truck had to perform.

226 I conclude that the failure to remove the roadside and fenceline trees did not cause the collision.

227 It was submitted on behalf of the trucking interests that, if the trees were not removed, a stop sign for road traffic should have been erected at the crossing.

228 In exhibit PN10 the engineering experts, although they referred to other steps which might have been taken, such as the removal of the trees and the lowering of the road approach speed, said nothing about erecting a stop sign.

229 In his report of 23 May 2006 Dr Rechnitzer expressed the opinion that a stop sign would not be suitable at this crossing. Factors referred to by Dr Rechnitzer included the likelihood that a stop sign would be disregarded by a portion of the driving population, that drivers who stopped at a stop sign would run the risk of rear-end collisions and that the time for a large semi-trailer to clear the crossing when starting from a stationary position at the crossing would be longer than the approach time of a train from the available sight distance.

230 In oral evidence at the hearing Dr Rechnitzer and Mr Cowling said that they were not in favour of there being a stop sign at the crossing.

231 Mr Booth said in evidence that he did not think that there should be any other form of warning device (including a stop sign) at the crossing. He had not said anything about a stop sign in his reports.

232 The remaining engineering expert Mr Hazel had said in a report that the presence of a stop sign might have reduced the risk of an accident. However, Mr Hazel accepted in oral evidence that drivers of semi-trailers would prefer not to have to bring their vehicles to a halt on an open country road and that there was a likelihood that they would not comply with a stop sign, if they did not see any approaching train. Mr Hazel also accepted that a truck which had stopped at a stop sign and was taking off from a stationary position would be on the railway line for a longer period than a truck passing over the railway line at speed. Mr Hazel also said that a truck which had stopped at a crossing could have a difficult task in judging the speed of an oncoming train heading straight at the crossing, when “the only clue you have got is the change in size of the object (the train)”. Mr Hazel ultimately agreed that he was not saying that there should have been a stop sign at the crossing.

233 I conclude that it was not a breach of any duty of care not to have erected a stop sign at the crossing.

234 Even if there had been a stop sign at the crossing, I do not consider that I should accept Mr Kuschert’s self-serving, speculative evidence that he would have obeyed the stop sign and stopped the truck, if he had not seen any approaching train.

235 It was submitted by the trucking interests that, if the trees were not removed and no stop sign was erected, a speed limit sign should have been erected at some spot on the highway approaching the crossing.

236 In exhibit PN10 the engineering experts said in answer to question 7 that the 100 kph road speed limit was in accordance with standards but that a lower speed zone (80 kph or lower) would have been “preferable”, since, if obeyed, there would be more opportunity to observe a train and come to a stop before the crossing.

237 In answer to question 11(b) the experts said that they were of the opinion that the posted speed limit was in the circumstances too high.

238 A sign limiting speed to 80 kph would not have prevented the collision occurring. According to Mr Kuschert’s evidence about a part of his usual practice, which I have accepted he followed on 10 November 2000, Mr Kuschert started slowing down from a speed of 100 kph at the first warning sign, which was about 320 metres from the crossing. I have found that he slowed his vehicle to a speed estimated by the engineering experts to be 75-77 kph or only a very little higher, before he applied the brakes so as to produce the skid mark.

239 The submission I am presently considering could only succeed, if the speed limit set was lower than 80 kph and in oral submissions counsel for the trucking interests submitted that a speed limit sign limiting speed to 60 kph should have been erected. However, the engineering experts merely stated in exhibit PN10 that a speed of “80 kph or lower” would have been preferable.

240 I find that it was not a breach of RTA’s duty of care not to have erected a speed limit sign limiting speed to 60 kph.

241 I also consider that I should not accept Mr Kuschert’s self-serving, speculative evidence that he would have obeyed a speed limit sign limiting speed to 60 kph. I consider that, even if there had been a speed limit sign limiting speed to 60 kph, Mr Kuschert would have followed what he described as his usual practice of slowing down only to about 80 kph.

242 I note that the RTA sought to rely in the alternative on the provisions of s 45 of the Civil Liability Act. I have not, however, found it necessary to consider the possible application of s 45. Issues which would arise under s 45 would include whether steps which the trucking interests alleged the RTA should have carried out constituted “road work” within the meaning of the section and whether the RTA had “actual knowledge”, at the required level, “of the particular risk the materialisation of which resulted in the harm”.

243 I find a verdict for the RTA on the cross-claim in proceedings 20061/07 and on the claim by Mr Kuschert in proceedings 20065/07. I also find a verdict for the RTA on the claim against it by Pacific National in proceedings 20061/07. This claim was brought by Pacific National only as a precaution, because of the claims brought against the RTA by Woods and Mr Kuschert.

Summary of verdicts

Proceedings 20061/07

On the claim by Pacific National, verdicts for Pacific National against Woods and Mr Kuschert and a verdict for the RTA against Pacific National. On the cross-claim by Woods, verdicts for Pacific National and the RTA.

Proceedings 20065/07

On the claims by Mr Kuschert, verdicts for Pacific National and the RTA. Dismiss the cross-claim by Pacific National against the RTA.

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