Perry and Bell v Australian Rail Track Corporation Ltd

[2013] NSWSC 714

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Perry and Bell v Australian Rail Track Corporation Ltd & Ors [2013] NSWSC 714
Hearing dates:	28, 29, 30, 31 May 2012; 1, 4, 5, 6, 7, 8 June 2012
Decision date:	07 June 2013
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See paras [259] and [309]
Catchwords:	TORTS - negligence - liability of train controller, driver and driver's employer for level crossing collision - scope of liability - damages for mental harm.
Legislation Cited:	-Civil Liability Act 2002 (NSW) -Law Reform (Miscellaneous Provisions) Act 1946 (NSW) -Motor Accidents Act 1988 (NSW) -Motor Accidents Compensation Act 1999 (NSW) -Rail Safety Act 2002 (NSW) (Repealed) -Rail Safety (General) Regulation 2003 (NSW) (Repealed) -Transport Administration Act 1988 (NSW) -Workers Compensation Act 1987 (NSW) -Workers Compensation Regulation 2010 (NSW) -Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	-Baden Cranes Pty Ltd v Smith [2013] NSWCA 136 -Bennett v Minister of Community Welfare (1992) 176 CLR 408 -Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 -Bolitho v City & Hackney Health Authority [1998] AC 232 -Davie v New Merton Board Mills Ltd [1959] AC 604 -Grant v Sun Shipping Co Ltd [1948] AC 549 -Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 -Kuwait Airways Corp v Iraqi Airways Co (No's 4 and 5) [2002] 2 AC 883 -Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 -Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 -March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 -Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 -Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1) case) [1961] AC 388 -Re C L Nye Ltd [1971] 1 Ch 442 -Roads and Traffic Authority v Ryan [2005] NSWCA 34; 62 NSWLR 609 -Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 -Sharman v Evans (1977) 138 CLR 563 -Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 -Sungravure Pty Ltd v Meani (1964) 110 CLR 24 -TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 -Wallace v Kam [2013] HCA 19; 87 ALJR 648; 297 ALR 383 -Wright v Cambridge Medical Group [2013] QB 312; [2011] EWCA Civ 669
Texts Cited:	Torts in Commercial Law, LawBook Co 2011 (Ch 14)
Category:	Principal judgment
Parties:	William Charles Perry (plaintiff) Stanley William Bell (plaintiff) Australian Rail Track Corporation Limited (first defendant) Kenneth William Eldridge (second defendant) GrainCorp. Operations Limited (third defendant)
Representation:	Counsel: J. Catsanos (plaintiffs) D. Talintyre with K. James (first defendant) B. Hull (second defendant) P. Rickard (third defendant) Solicitors: White Barnes (plaintiffs) Wotton Kearney (first defendant) George Mallos Lawyer (second defendant) Goldbergs Lawyers (third defendant)
File Number(s):	2009/337578; 2009/337579

Judgment

1. Just before 11:25 pm on 2nd November 2006, an unladen grain train allocated the number 9351 collided with an overturned semitrailer at a level crossing at Illabo in the Riverina of New South Wales. The train crew are the plaintiffs in the proceedings. They claim damages for personal injury and mental harm. Their separate proceedings were heard together with evidence in one being treated as evidence in the other so far as liability questions are concerned.

1. Both men were fully qualified, experienced freight train drivers. At the time of the collision Mr. Bell was serving as driver, and Mr. Perry as observer or co-driver.

1. The first defendant, Australian Rail Track Corporation Limited ("ARTC"), operated Junee South Train Control. ARTC manages, under lease, a large proportion of what is referred to as the defined interstate standard gauge rail network in New South Wales and Victoria (report of John Aitkin dated 23rd May 2012, Ex S3). The total length of the railway tracks under its control is around 3,400 kilometres. For present purposes, it is sufficient to note that the railway line sections between Nyngan and Goulburn, on the one hand, and between Goulburn and Junee, on the other, at all material times were within the part of the network leased by ARTC and under its control. ARTC exercises its control under statutory authority conferred by Part 8A Transport Administration Act 1988 (NSW) ("TAA"). In the section of the rail network with which this case is concerned, ARTC has statutory responsibility for network control (s.88L TAA) which extends to "real time control (namely, the actual control of the movement of rolling stock, including train signalling and incident management)" (s 99D(1)(b) TAA). The requirements of railway communication and "incident management" are central to the resolution of the issues between the parties, which I will define below.

1. Mr. Eldridge, who is the second defendant, was the semitrailer driver. The semitrailer overturned on the level crossing constituted by the intersection of the Olympic Highway and the main south railway line at about 11:10 pm. Illabo is about sixteen kilometres northeast of Junee in the southwest slopes region of the Riverina.

1. It is not in issue in these proceedings that the semitrailer was laden with 133 wool bales. Mr. Eldridge was approaching the level crossing from the northeast. The highway approaches the level crossing running generally parallel to the railway for a short distance. It then curves northward through 90 degrees, crossing the railway line virtually at a right angle. Across the railway line the highway turns west. The roadway was wet, but in the unchallenged view of Mr. Christopher Hall, a mechanical engineer consulting in the field of motor vehicle accident reconstruction (report dated 11th October 2011, Ex S5), this circumstance did not contribute to the semitrailer rolling over.

1. The bend leading to the level crossing was subject to an advisory speed of 35 kilometres per hour which was equally applicable to wet conditions. Mr. Hall is of the opinion that the laden semitrailer could have safely negotiated the approach to the level crossing at that speed without risk of rollover. Rather, in his view, excessive speed in the circumstances accounted for what happened. He expressed the view at page 10 [8.8] of his report:

...the rollover could only have occurred due to excessive speed for the bend. Given the load configuration, the speed required to cause the rollover was in excess of 50 kph, which is more than 40% greater than the advisory speed for that bend.

Mr. Eldridge entered the bend at a speed significantly above that considered safe for trucks and semi-trailers. In doing so, Mr. Eldridge greatly increased the likelihood of the semi-trailer rolling over.

As I have said, Mr. Hall's views were not challenged by any party and the second defendant accepts that on the basis of them, he breached the duty of care he owed to other users of the roadway and railway intersecting at the level crossing.

1. Fortunately, Mr. Eldridge was not seriously injured. Commendably he had the presence of mind to notify police that his semitrailer was blocking the railway line. The police in turn notified Junee South Train Control of the situation. This phone call was complete just before 11:17p.m. The parties are agreed that this was eight minutes before the collision.

1. The third defendant, GrainCorp Operations Limited ("GrainCorp"), operated the freight train. GrainCorp employed Mr. Bell and Mr. Perry. GrainCorp had a track access agreement with the network controller, ARTC.

1. It is also uncontroversial amongst the parties that the train consisted of two locomotives and 40 wagons with a mass of 1,184 tons and a length of 657 metres. All parties accepted the calculation of Warwick Stoddart, a mechanical engineer, that a train thus configured, in good mechanical repair, approaching the Olympic Highway level crossing at Illabo from the northeast at a speed of 100 kilometres per hour upon full application of its brakes, required space of 1,980 metres and time of 135 seconds (two minutes and fifteen seconds) to come to a complete stop to avoid colliding with the obstruction across the line. I find that the assumptions made and the calculations performed by Mr. Stoddart are applicable to train 9351 on 2nd November 2006.

1. It follows from the narrative so far, that ARTC through its train controller on duty, a Mr. Foley, had a period of 5 minutes and 45 seconds after receiving notice of the danger presented by the overturned semitrailer across the lines to warn Mr. Bell and Mr. Perry of the risk of catastrophe, if they were to be put in a position to halt the train before impact.

1. In the event, word of the emergency was not provided to them in time, or at all, before impact, although four unsuccessful attempts were made to contact them between 11:17 p.m. and 11:23 p.m. I find the last would have been too late anyway.

1. As I have said, incident management, and in particular, train communication systems, lie at the heart of this case. These considerations extend beyond what happened during the last eight minutes.

The issues

1. As I have said Mr. Bell and Mr. Perry sue Mr. Eldridge, ARTC and GrainCorp for damages. Mr. Bell relies upon personal injury and mental harm. Mr. Perry claims damages for mental harm. His personal injuries were relatively minor and resolved in a fairly short term.

1. The claim of each plaintiff against Mr. Eldridge is brought under the damages regime established by the Motor Accidents Compensation Act1999 (NSW) ("MACA"). Some of the liability issues, most pertinently causation and questions arising from the limitations on the recovery of damages for mental harm, are informed by the Civil Liability Act2002 (NSW) ("CLA"). The liability of ARTC, including as to quantum, must be determined in accordance with the CLA. Questions relating to the liability of GrainCorp are to be determined according to the common law (CLA s3B(1)(f)), as modified by Division 3 of Part 5 Workers Compensation Act 1987 (NSW) ("WCA").

1. There is no issue that each of the defendants owed each plaintiff a duty to exercise reasonable care in the performance of its part in the circumstances which led to the collision to avoid the risk of either of them suffering personal injury, or mental harm. Neither Mr. Eldridge, nor ARTC, in the circumstances, raised any issue about the recoverability by either plaintiff of damages for mental harm that might have arisen for consideration by operation of the provisions of Part 3 CLA. The issues which presented for determination at the trial are as follows:

(1) As already stated, Mr. Eldridge accepted he drove his semitrailer at an excessive speed in breach of the duty of care he owed each plaintiff. He also accepted that his negligence was a necessary condition of the occurrence of the harm suffered by each plaintiff within the meaning of s5D(1)(a) CLA. He argued strenuously, however, that it was not appropriate for the scope of his "liability to extend to the harm so caused", as required by s 5D(1)(b) CLA;

(2)   ARTC, at the end of the trial, accepted that it had been negligent in failing to institute, maintain and activate any backup procedures for contacting the train in the precious minutes available after receiving notification of the danger from the police (see [35] below). It otherwise denied other particulars of negligence levelled against it by the other parties. I will return to these matters;

(3)   Whilst acknowledging the stringent duty imposed upon it by law, GrainCorp denied that it had been negligent, either personally, or vicariously in the circumstances of the case. It argued that, having regard to the statutory, and assumed, responsibility for incident management of ARTC, that negligence consisting of an omission to contact the train in good time to avoid the collision should be seen as being beyond the scope of its relevant duty of care;

(4)   Assuming negligence on its part, each defendant argued that the others should bear the largest proportion of the liability; and

(5)   Each defendant disputed each plaintiff's quantification of his entitlement to damages.

In the end I did not understand any defendant to argue that either plaintiff was guilty of contributory negligence, although there was some cross-examination of each of them which may have touched upon issues relevant to that consideration, particularly as regards the question of whether the CountryNet Radio System with which the locomotive was fitted was properly operational.

Rail communications, statutory framework

1. Apart from the TAA, safe working on the railway in November 2006 was governed by the Rail Safety Act 2002 (NSW) ("RSA") (the Act has since been repealed). Both ARTC and GrainCorp were operators within the meaning of s 5 of that Act; ARTC because of its responsibilities for infrastructure which concept includes train control systems and communication systems; GrainCorp because it operated rolling stock on a railway i.e. the train. Under s8 RSA, operators were required to be accredited. It is accepted that ARTC and GrainCorp were relatively accredited. Section 117 RSA empowered the government to make regulations not inconsistent with the Act including with respect to "rules relating to railway network operations and operations of specified operators and the making of any such rules": s.117 (2)(p) RSA. The Rail Safety (General) Regulation 2003 (NSW) ("the Regulation") (also since repealed) made the following provision:

60A Train communications systems

(1) An accredited person who is responsible for a railway operation referred to in section 5 (3) (b) of the Act (operation or movement of rolling stock on a railway) must ensure that each train for which the person is responsible is, at all times during which the train is on the NSW rail network, fitted with a radio communications system that complies with this clause and a back up means of communication to be used if the radio communications system fails.

Maximum penalty: 100 penalty units.

(2) A radio communications system for a train must:

(a) enable the driver of the train to verbally communicate with any network control officer responsible for the area in which the train is operating, and

(b) be working at all times that the train is being operated, and

(c) be capable of receiving and transmitting emergency calls, and

(d) be fitted with an emergency button that enables an emergency call from the train to be given priority over all other calls and that enables direct communication between the train and the network control officer responsible for the area in which the train is operating, and

(e) be capable of transmitting an emergency communication in a form that will allow any network control officer responsible for the area in which the train is operating to transmit the communication to other trains in that area.

(3) A back up means of communication for a train must consist of either or both of the following:

(a) a "without brakevan (WB) radio", being a radio that operates at a frequency of 450.050 MHz,

(b) a mobile phone that is able to be used anywhere in the area in which the train is operating.

(4) The ITSRR may, by notice in writing to one or more accredited persons, exempt from the operation of this clause a particular train or class of trains.

(5) In this clause:

NSW rail network has the same meaning that it has in the Transport Administration Act 1988.

(6) This clause commences on 1 September 2006.

1. As may be noted from the above extract, clause 60A commenced on 1 September 2006. This was a little more than two months before the Illabo collision.

1. At the time of the commencement of clause 60A, the Independent Transport Safety and Reliability Regulator ("ITSRR"), established by s 42B TAA, had as it's "principal objective" the facilitation of the safe operation of transport services in New South Wales: s 42C TAA. A principal function was the dissemination of information to the public relating to the safety of transport services: s 42D TAA.

1. On the day it commenced, ITSRR issued an information alert about the new clause. Clause 60A was said to have been promulgated for the purpose of giving effect to recommendations arising from the Glenbrook and Waterfall inquiries conducted by McInerney J. One object was inter-operability of railway communications in New South Wales to be achieved by integration of separate existing radio systems for the purpose of enabling simultaneous communications through a "broadcast call" with passenger and freight trains in the vicinity of the emergency: Ex S3.

ARTC systems for incident management

1. In furtherance of its obligations relating to network control, ARTC published an incident management manual, a version of which was admitted into evidence as Ex. 2D12. The contents of the manual are referred to as an incident management plan. The purposes of the plan include compliance with the requirements of Australian Standard 4292 - Rail Safety Management.

1. Some definitions are significant (Ex 2D12, p3):

Emergency

An incident which requires a significant and co-ordinated response.

....

Incident

An occurrence, as defined in AS4292 Part 1 Appendix C, involving or affecting operations on the Network, which has resulted in or has the potential to cause:

- Death or injury;

- Property damage;

- Disruption to train services; or

- Adverse environmental consequences.

1. From page 10 [5.1.1] of the manual it is clear that the primary response to a reported incident is the responsibility of the train controller, who "shall, on receipt of... advice [of an incident] take immediate action to notify, in order, any approaching trains which may impact on the incident ... Emergency Services if required, and the Train Transit Manager ... or nominee".

1. At page 11 [5.2.2], a "Level 2 incident" means:

...an occurrence, involving or affecting operations on the Network, which has resulted in, or has the potential to result in one or more of the following:

- The death or serious injury of persons, the health or safety of persons being affected, significant damage to property or infrastructure, significant disruption to train services

...

- And a sustained co-ordinated response is required.

1. Incident assessment is the responsibility of the train transit manager who is required to determine the level of the incident and implement the appropriate response in accordance with the manual.

1. Page 13 [6.3] deals with the obligations of the operator, in this case GrainCorp, in the following terms:

The Operator is to respond to the incident as set out in this Manual, or as directed by ARTC under the conditions of its access agreement, as follows:

6.3.1 Response coordination

Each operator is to nominate a person, or persons, to co-ordinate that organisation's response to incidents. For each incident this person shall be termed the Incident Response Co-ordinator for that organisation. An Incident Response Co-ordinator is to be available for call on a 24 hour per day, 7 days per week basis.

Each Operator shall provide to the ARTC Train Transit Manager/Train Control Centre Manager or nominee, either full details of the nominees' business and after hours contact numbers, or a 24-hour telephone number.

1. After having been advised by the train controller of the incident, and having made his assessment, the obligations of the train transit manager include assisting the train controller to initiate a response, and the implementation of the requirements of the manual in relation to the notification of, inter alia, operators (Ex 2D12, p16 [7.2]).

1. As will be demonstrated, ARTC did not manage the incident initiated by the semitrailer fouling the lines at Illabo in accordance with its incident management manual. In contradistinction, GrainCorp had complied with its obligations, including the provision of the information and contact details required by page 13 [6.3.1] of the manual.

Communication equipment on train no. 9351

1. GrainCorp only had one train, which it leased, consisting of the two locomotives, GL101 and GL102, and 40 wagons: 263.40T; Ex. 2D4 and 2D1 (the reference to "operating our train" - emphasis added). Mr Bell gave evidence that if a locomotive failed a temporary replacement would be provided "from the leasing company". Each locomotive was fitted with a NEC handset for use on the CountryNet Satellite System. Every locomotive, and each of these locomotives, is ascribed a particular identity which is permanently encoded in a locomotive identity device ("LID") "that is secured to the locomotive's structure and used to uniquely identify the CountryNet equipment on the locomotive. The LID is the forerunner of the SIM card that is now so widely used in mobile telephones": page 61 [5.3.4] Ex S3.

1. In addition to the handset, indicator lights were fitted on the driver's panel, one amber and one red. The amber indicator light is significant: when the amber light is off, the equipment is unable to connect to the CountryNet system because the system is not turned on; a single flash means the relevant train control area must be selected manually to make a call; a double flash indicates the CountryNet equipment is initialised on the train controller workstation and depression of the "P1" button on the handset will automatically initiate a call to train controller responsible for the section of track the train is in. Additionally, the locomotives were equipped with a "Without Brakevan" (WB) radio used mainly for contacting signal boxes along the way. Each of Mr Bell and Mr Perry (see 57.40T) initially gave evidence that the same handset was used for both CountryNet and the WB radio. However I find they were mistaken about this. I accept the evidence given by Mr Bell under cross-examination by Mr Hull, for Mr Eldridge, at 222.40-223.30T that a separate "fist microphone" was fitted, and used, for WB radio communications. This equipment is like that illustrated in two simulated photographs, Ex. 1D1. The CountryNet handset could also be used as a satellite phone to dial numbers outside the CountryNet system. Two "walkie-talkie" radios were provided for communication between the crew when one or both of them were out of the stationary train performing other duties. Finally, the train had a CDMA mobile phone. In their joint report (Ex S1), Mr Aitken and Mr Holt offer the opinion that the equipment fitted to train 9351 complied with the requirements of clause 60A.

1. Mr. Aitken is an engineer with a long and impressive background in railway communication. In his professional career he designed and developed a number of train radio systems used by transport authorities in Australia. Indeed, he provided the original specification of the CountryNet train radio system.

1. Mr. Holt is a mechanical engineer by profession who has 30 years of experience in the rail industry, mostly in New South Wales. He has long experience in safe working requirements including developing safe working rules. He has practical experience in railway operation.

1. This might be a convenient time to point out that before GrainCorp's train commenced its journey on 1st November 2006, GrainCorp provided a document referred to as the "Train Consist" to ARTC in accordance with GrainCorp's contractual obligations. The consist, near its top, provided four telephone numbers: a number for the CDMA mobile phone, the CountryNet telephone number for each of GL101 and GL102, and GrainCorp's 24-hour number. The latter, of course, was required by ARTC's incident management manual. Surprisingly ARTC did not supply these numbers to its train controllers.

1. The CDMA mobile phone numbers were capable of being contacted directly through the CountryNet system by the train controller by manual entry of the correct number. Once registered, the CountryNet equipment, a satellite radio, was contactable by a controller clicking an icon on his workstation screen. I will explain this in more detail below. Even if merely logged on but not registered, the locomotive would have been contactable through the train control workstation, as explained below at [53]-[54].

1. Leaving to one side for the moment the opinion of the experts, one can see by reference to clause 60A(2) of the Regulation that this equipment did indeed comply. First, the CountryNet system itself, as the experts explained, satisfied each of the requirements of paragraphs (a) to (e) of subclause (2). The backup required by subclause (3) was the WB radio. It did indeed operate at a frequency of 450.05 0 Mhz. And, the CDMA mobile phone to which I have referred.

1. I am satisfied on the evidence before me that the WB radio would not have worked as a backup on 2nd November 2006 during the eight minutes before the collision, because the stretch of track which included Illabo was located in so called 'dark territory'. The hilly nature of the country interfered with terrestrial radio communication. But the evidence also establishes that the train CDMA mobile phone could be used anywhere in the area in which the train was operating as it approached Illabo. As learned counsel for ARTC conceded (at 600.35T), the failure of ARTC to provide the information from the train consist to the train controller meant it had failed to provide a backup system in accordance with the requirements of clause 60A(3). It was in this regard that I understood ARTC to accept that in at least one respect it was negligent, a topic to which I will return. (See [15](2) above.)

Train controller's task and CountryNet

1. It is appropriate at this stage to say something about the train controller's task and the operation of the CountryNet train controller workstation. This is because, in the hours leading up to the collision, the CountryNet radio in the second (trailing) locomotive (GL 101) became registered for all intents and purposes as the train on the train controller's workstation. This was erroneous. Instead, the CountryNet radio in the leading locomotive (GL 102) should have been so registered. Had the erroneous circumstance not occurred, the train controller's first telephone call - after having been notified of the incident by the police - would probably have been received and acted on by the train crew, and the collision avoided, whatever other shortcomings there were in ARTC's response to the incident. As I will seek to explain, registering the wrong CountryNet unit as the train was a mistake to which each of ARTC and GrainCorp contributed.

1. As I have said, Mr. Aitken was an expert involved in the development of CountryNet. In Ex. S3 (page 49 et seq.) he describes how CountryNet was originally designed and developed to provide communication through terrestrial systems in high traffic areas and through satellite in lower traffic areas. Larger rail operators adopted equipment which operated in both modes. I infer from what Mr Aitken has written that this dual capacity equipment was hard to obtain in the marketplace. Accordingly Mr. Aitken recounts that smaller operators, like GrainCorp, were unable to obtain what he described as "the full CountryNet equipment". This impeded competition in the freight-rail business and "RailCorp sponsored the development of a satellite-only version".

1. Doubtless there are many differences between the two 'versions' of CountryNet, but a significant one for present purposes is that unlike the full version, the satellite version "does not have a 'driver present' input, so the CountryNet equipment is unable to distinguish between the leading and trailing locomotives on a train". The trailing locomotive is usually, but not always, unmanned. In the full version this function enables the CountryNet computer system "to identify the leading locomotive and display only that locomotive's icon on the train controller's workstation": Ex. S3.

1. I have attached a copy of Ex. S8, which is a network block-diagram of the full system (see appendix at the end of this judgment). The reader will receive an impression of the complexity of the componentry of the system even in its single, satellite version.

1. Mr. Aitkin describes how the satellite version of CountryNet has the same features and functionality as terrestrial operation of the full version, but there "are... longer call set up times and delays in voice transmission". Mr Aitkin states (page 49[5.1], ExS3) that it takes an appreciable time for a radio signal to travel from the train to the satellite, be processed at the satellite, be retransmitted to the Optus earth station, and from there to the train controller. The transmission time is typically 250 milliseconds (one-quarter of a second), and he says that this is quite noticeable in speech. Mr Perry described this as an "echo". The CDMA mobile telephone also has a transmission delay, but this is much shorter and is usually not noticeable in normal speech. Some train drivers and controllers found the satellite transmission delay annoying so they preferred to use CDMA mobile telephones when coverage was available. And Mr Bell and Mr Perry practised this preference on 9351 according to their respective evidential statements.

1. In the appendix at the end of this judgment, I have attached and marked "Annexure B" a copy of page 50 of Ex S3, illustrating the CountryNet train controller workstation. This is not the same workstation that was in use in Junee South on 2nd November 2006. It is a photograph taken on a demonstration conducted for the experts at Broadmeadow on 18th May 2012.

1. The CountryNet system not only provides a voice communication system, but also incorporates a global positioning system for locating trains. In this latter respect this is not the only information available to the train controller. In addition the train controller desk is fitted with two or three "phoenix displays" (statement Chris Foley 10 April 2012). The phoenix system is another means of tracking train movements. "The phoenix display shows the location of the train as it travels along the track's electrical circuit so you can actually see where the train is" (Foley at 400.5T). The phoenix system is ineffective in so called "dark territory" because terrestrial radio systems depend upon "line of sight" being available. In "dark territory" the topography interferes with that contact. In his statement Mr Foley said that in dark territory "contact by radio could be a bit hit and miss".

1. In addition to the display screens, or monitors, a train controller is responsible for plotting the progress of trains on a train control diagram (Ex. 2D 13). Expected progress of the train is plotted on the diagram as printed in broken lines. The controller on duty plots the actual progress in block lines. The information plotted comes from the signallers in charge at various locations, the phoenix display, the CountryNet display, and, doubtless, information provided in voice contact with the train crew when that occurs. The diagram is a large document printed as a graph with pertinent information, such as the location of signal boxes, the dates covered, a linear representation of time, and (as I have said) the projected progress of the timetabled trains. A separate diagram is printed for the up and down lines respectively, or so I infer. Mr Foley said that these diagrams were "forged" in advance.

1. In relation to train 9351, another train controller had recorded its number, the fact that it was operated by GrainCorp, the serial number of each locomotive, the number of wagons, its length, and its tare weight. The locomotives GL102 and GL101 are recorded in order of leading and trailing (420.40 - 421.15T). Mr Foley said that other information such as a CDMA phone number (if available) could be recorded in the same box at the top of the diagram. Each train plotted has a separate box.

1. From the information relating to train controllers at the top of the diagram, I find that Mr. Foley started work at 10:30 pm on 2nd November. From his graph, it can be seen that train 9351 was then between Demondrille and Wallendbeen on the down line. Exhibit 2D13 plots train movements on the down line only. Train 9351 was then about 68 kilometres and 55 minutes away from Illabo.

1. Obviously, train controllers are subject to onerous responsibilities.

1. It may not be clear from Annexure B, but trains are plotted on the CountryNet train controller workstation by icons positioned on the screen in line with larger icons on the left hand side of the screen representative of the line, or section of line, on which the train is then travelling. Other icons are displayed along the bottom of the screen providing shortcuts to various functions.

1. Although the global positioning system periodically updates the location of the train automatically, the train controller can immediately refresh the current location of the train to an accuracy of 100 metres, assuming GPS data is available, by pressing the "find train" icon at the bottom of the screen. By touching the "train info" icon, certain information about the train, including whether it is registered or unregistered, its unique LID and its precise location will appear in a box on the screen. In the example that was provided at figure 5.3 at page 51 of Ex S3, the information includes the additional satellite phone number for the train. This was not included in 2006 for the trains of smaller operators like GrainCorp (clause 60A(3) notwithstanding). It was, however, for larger operators like FreightCorp: Mr Baczynskyj 342.45-343.10T. I have no doubt that this information could have been recorded on the workstation for all operators.

1. It is clear from looking at the photographs illustrating the operation of the workstation contained at page 50 et seq. of Ex S3 (which photographs were taken on the view and demonstration conducted on 18th May 2012) that the appearance of unregistered trains on the workstation is a common enough occurrence. And I understand this to result from the automatic features of the CountryNet system and from the consideration that registration of a train requires the direct input of the train controller.

Train registration on the CountryNet system

1. Exhibit 2D11 and exhibit 2D14 are a train control user manual for the CountryNet system, and a facilitator's, or trainer's, guide to the same system, respectively. Both relate to the 'full' version of the system, and are illustrated by reference to equipment fitted on trains equipped with that version. Accordingly, they need to be read with some caution. Mr Aitken said functionality is the same. But the equipment is different. The system with which we are concerned was the satellite version.

1. The obligation of a driver at the commencement of a trip is to log on. It must be remembered that many trips like that of 9351 will involve multiple drivers, crossing a number of control regions. It is at the commencement of the trip that the obligation to log on arises for satisfaction: Ex. 2D1; Weekly Operational Notice 28th June 2004; Ex. 2D14 page 11; Ex. 2D11 page 32. This important consideration is dealt with further below.

1. Train registration requires a cooperative effort on the part of the train crew on the one hand, and the train controller on the other. An analogy in argument was of a handshake. On the equipment with which 9351 was fitted, this required the driver to turn the handset on and then to press the "P1" button on the bottom left hand corner of the handset. Once turned on, the indicator light on the driver's position dashboard emits a single flash. Depressing the "P1" button initiates a call. At this point the equipment will become initialised whether the locomotive is registered or not. After initialisation the indicator light emits it's characteristic "double flash".

1. Acceptance of the proffered hand occurs at the train controller workstation. Upon depression of the "P1" button at the train, an icon automatically appears on the train controller's workstation displaying the abbreviation "UnReg". The icon also displays the unique identification number of the locomotive to which the LID is fitted. In the case of GL 101, this was "OT 59". For GL 102, "OT 60". "OT" is simply an abbreviation for "other", distinguishing the locomotive of a smaller operator from those of larger operators which, like airlines, have a number preceded by initials which identify the operator. See Mr. Baczinskyj at 342.35 - 343.5T.

1. The process of registration is the acceptance by train control of the proffered hand. Exhibit 2D11, the train control user manual for the CountryNet system describes the train controller's part as follows at page 32:

Answering incoming call - Unregistered train or a Registered train

To answer an incoming all from a registered train or an unregistered train:

(a) If not in communication with a train then:

- Select ANSW NEXT button or;

- Just touch the train icon button.

(b) If in communication with a train and another call is received this second train button will be highlighted green, indicating called queued.

Messages displaying calls waiting and next call will be displayed at the top of the screen then:

- Select ANSW NEXT will clear the current call and automatically connect the next queued call, or

- Alternative [sic] just press the CLEAR button to clear the current call and then select ANSW NEXT for the next call or

- Just touch the train icon button for selective calling of a specific locomotive outside of the queue.

At page 31 the manual makes clear that, in the case of an unregistered locomotive (which is the process I am reviewing), for the controller to place a call it is necessary for him or her to touch the "UnReg" locomotive button twice, enter the locomotive identification number, and select "OKAY" on the screen.

1. The handshake is complete when the train controller answers the incoming call from the train and enters the train trip number, in this case 9351, in place of the abbreviation "UnReg". The incoming call on the train is received over loudspeakers above the crew position. A distinctive beeping noise is made, and, when answered, the sound comes from that direction.

1. The purpose of the phone call at this point is really to confirm the train details. I infer that in the case of a small operation like GrainCorp it may be strictly unnecessary for the driver and the controller to speak to each other. The pre-printed train control diagram, as I have said, has timetabled routes plotted in expectation. A controller familiar with GrainCorp operations may identify the train when the "UnReg" icon appears, without acknowledging the call. However best practice requires the controller and driver to speak to each other. A train should never be registered until the controller has confirmed the trip details with the driver.

1. Mr. Michael Baczynskyj is an operations manager employed by ARTC. As at 2nd November 2006, he was the train control manager for New South Wales and, therefore, the officer of ARTC ultimately responsible for train control for the Junee territory. In his evidentiary statement of 31st May 2012 (Ex. 1D2) he said at [48] - [51]:

The CountryNet system can contact people either by a radio system or by telephone. By pressing the touch screen to contact a particular person, a train controller may be making contact by radio or by telephone. Whoever the contact is made to will be determined by the data which is stored in the CountryNet system for that particular party.

Therefore for each locomotive the contact is made to the corresponding radio unit which is in the locomotive, and not to any other system. The only automatic contact through CountryNet therefore is to the primary contact system which is registered within the CountryNet system.

Even though the backup satellite phone number might be displayed in the data which is shown for a particular train the operator will then have to ring that number by manually entering it into the CountryNet system and asking it to be dialled.

To contact someone by a mobile telephone that wasn't registered as a means of communication, the train controller would have to do the same thing, that is, enter that information on the CountryNet which would then try and establish the contact with that phone.

1. His oral testimony (at 464.35 - .40T) is as follows:

Q. Mr Baczynskyj, if a train is not logged on, how do you contact them?

A. Normally if they are not logged on and registered as such there is an icon appears, so, you know, you can touch with them. But a network controller or a train controller really doesn't have a need to talk to a train. It is only at the origin point. There is no need for him to talk to a train from A to B. That's what I said, you know we have trains travel all the way from Melbourne to Brisbane we don't talk to the train crew, we don't need to, but if you did, 99.9 times is out of the CountryNet train radio, or the Victorian radio system, or whatever system is designated at that place.

The question was mine, but in his answer Mr. Baczynskyj clearly displayed a consciousness of the distinction between logging on and registration, which in framing the question I did not. His evidence confirms the impression I have formed from the documentary evidence that it is seldom necessary for the train controller and the train driver to actually speak.

1. But Mr. Baczynskyj, in the end, confirmed in his oral evidence that it was better practice for the train controller to make voice contact with the train driver at the time of registration. He was cross-examined on behalf of the plaintiffs about an email he wrote on 23rd November 2006, three weeks after the collision (Ex. P). Initially when asked about this topic by Mr. Catsanos of counsel, who appeared for the plaintiffs, he said he did not agree that it would not be good practice to take an unregistered train icon and register it on the controller's system without first making contact with the train crew (451.30T). He said:

I can't see a problem with that.

When pressed, Mr. Baczynskyj sought to deflect the question by saying, "I don't do that task", but he accepted he was responsible for the controllers.

1. His email of 23 November 2006 had as its subject "CountryNet trains not found logged on or registered on the CountryNet radio system". The text of it is as follows:

In line with the new regulations surrounding train communication systems, from today 23rd November 2006, should a train operating on the ARTC leased or CRN Networks "be found not logged on and/or registered within the CountryNet System" in the first instance contact must be made with that train (by any means available) and the crew informed to log on the locomotive (if possible to do so). (Emphasis in the original).

1. The following exchange occurred between Mr. Catsanos and Mr. Baczynskyj at 452. 20 - 35:

CATSANOS

Q. So you believe that in registering the locomotive it wasn't necessary to contact the train crew?

A. I don't believe so.

Q. Then on 23 November, three weeks later, why was it, Mr Baczynskyj, that you sent out, in bold print in an email, a directive that trains found operating and to use your words found not logged on and/or registered with the CountryNet system in the first instance contact must be made with that train by any means available, if you didn't think it was necessary for a prudent train controller to make contact with the train crew before effecting registration, why was it, Mr Baczynskyj, that three weeks after this accident you sent a directive mandating that that must occur?

A. I agree, I did send that email.

Q. And you sent it, you told me earlier, consistent with your practice of wanting to communicate to those to whom you sent it, things you wanted to happen?

A. I had sent an email previously to this accident which basically pointed out the same things. (Emphasis added).

And at 452.50 - 453.5:

Q. So it seems that on 23 November you thought it would be prudent practice for a train controller, in fact you thought it was mandatory for a train controller to contact the train before effecting registration, and before that date, as I understand your evidence, you thought that was the case as well, is that right?

A. I did.

1. Mr. Baczynskyj's initial prevarication did not show him in his best light, and counsel was right to press him for the answer. At times Mr Baczynskyj was both combative and defensive. But the issue did not go only to credit. The point of substance in this segment of the cross-examination was that ARTC train controllers had some hours before the collision registered the unmanned trailing locomotive GL 101, OT 59, as train 9351 without attempting to contact the crew. This occurred at 7:24pm just after the train left Goulburn, having come under Junee Control. The reader will recall this is almost exactly four hours before the collision. Had the proper practice been followed the attempt to contact the crew would have been unsuccessful but train control would have been alerted to the irregularity in more than sufficient time to rectify it, another point to which I will return.

1. Given the fundamental importance of train communications to safe working on the railway, in my judgment, this omission has particular significance in explaining the failure to succeed in contacting the crew during the eight minutes leading up to the collision.

A rail odyssey

1. The journey of the train that collided with Mr. Eldridge's truck at Illabo commenced at Nyngan on 1st November 2006 at 1 p.m. The train was carrying a load of wheat to be shipped by sea from Inner Harbour, Port Kembla. This first stage of the journey was allocated train number 8952. The route to Inner Harbour was via Parkes, Stockinbingal and Goulburn. On the way it passed through a number of different train control regions, some more than once, commencing with Orange, Junee South, and finally Metro when it entered the Port Kembla region. Four different crews in succession manned the train. Messrs. Bell and Perry manned the locomotive from Stockinbingal to Goulburn on this inward leg of its journey.

1. As I have said above, prior to the commencement of this journey, GrainCorp provided ARTC with its train consist. The relevant extract from the train consist for this inward leg may be found at page 69 of Ex. S3. Once again, as has been pointed out, the consist complies with GrainCorp's obligations under its access agreement with ARTC. I repeat, it provides in respect of each of the two locomotives three phone numbers, being the CountryNet number, the "on train telephone", and GrainCorp's 24-hour number. There are therefore four phone numbers in all. Moreover, the consist showed GL102 (OT60) as the leading locomotive. A footnote said:

This consist is correct after train reverses at Narromine.

At the point of origin GL101 (OT59) was the leading locomotive, but it was necessary for the order of locomotives to reverse at Narromine. This necessity is illustrated on page 77-8 of Ex. S3. Negotiation of the junction of the Nyngan-Parkes lines requires the locomotives to be uncoupled from the wagons at Narromine. The locomotives then continue past points that connect with a parallel line. The crew leave GL101 and enter GL102, which is then driven, in reverse of the previous order, through the points into the parallel line, past the stationary wagons, and through a second set of points back on to the main line. The locomotives are driven in further reverse and re-coupled with the wagons at what was formerly the back-end of the train. GL102 then departs as the leading locomotive.

1. The train crew from Nyngan to Parkes were Mr Glenn Pollock and Mr Steve Kennedy, neither of whom were called by any party to give evidence. The call data collated by Mr Aitken in Ex. S6 demonstrates that at Nyngan the driver logged on to CountryNet, but completed registration by telephoning Orange train control via the CDMA phone in accordance with what seems to have been the preferred practice. It should be pointed out, as Ex. S7 makes clear, that the CountryNet logs produced to the Court by ARTC on 30th May 2012, during the trial, covered only 2nd November 2006, and not 1st November 2006. However it is common ground that the CountryNet equipment was "logged on" by the driver and registered by the controller at the commencement of the trip. I infer that when the reconfiguration of the train was completed at Narromine and the crew left GL101, neither of them turned off the CountryNet radio. This meant that this unit remained registered on the CountryNet train controller's workstation as the train moved through the various control regions. This was a mistake which probably had a "masking" effect, and to that extent contributed to the failure of Junee Control to warn 9351 of the danger at the Olympic Highway level crossing at Illabo, as I said at [36] above.

1. Between Narromine and Stockinbingal where the plaintiffs joined the train, two more calls were made from the CDMA satellite phone: one at 7:14pm and the other at 7:21pm. Both were of short duration.

1. As there is no polling data available for 1st November 2006, there is no independent confirmation that when GL102 (OT60) became the lead locomotive, the driver logged the CountryNet radio in that locomotive on. On the evidence I have, there is no record of a CDMA telephone call at the time the train left Narromine (at 4:20pm on 1st November 2006). There was a change of crew at Parkes. Mr James Martin and Mr Michael Tucker manned the train from there to Stockinbingal. Neither of them was called by any party to give evidence. They were the crew responsible for the two calls I have mentioned.

1. The plaintiffs joined the train at Stockinbingal at 10:20pm on the same date. The evidence of each of them is that the amber light was emitting the characteristic double flash and a familiar "chirping" sound was heard during the handover from one control region to another. This occurs automatically: Ex. A1 [32], [66] - [75]; Ex. F1 [58], [65], [67] - [79].

1. It is convenient to interrupt this narrative to deal now with the question of whether the CountryNet equipment in GL102 was on when the plaintiffs joined it at Stockinbingal; that is to say, whether after the reconfiguration that equipment had been logged on. There is no evidence that it was registered because no witness was called from either ARTC or GrainCorp relevant to whether GL102 became registered at Narromine, which was subject to train control out of Orange. However I am satisfied that the CountryNet radio in GL102 (OT60) was logged on when the plaintiffs joined the train at Stockinbingal, when Mr Bell rejoined it at Inner Harbour for the return trip, and when Mr Perry rejoined Mr Bell on the train at Goulbourn also on the return trip. In making this finding I record that I accept the evidence of each of Mr Perry and Mr Bell contained in the evidential statements to which I have referred, and their oral evidence under cross-examination in this regard which was unshaken.

1. Mr Perry was cross-examined to suggest, essentially, that he may have been mistaken about the CountryNet radio being on. At 56.15T he said:

Can I say to you with them radios, when you changed territory, say we are going from Junee control area into Port Kembla control area, the radio makes a dominant beep like you know it has changed. It has gone from one to another. And when we come through Cullerin, which that normally happens between Yass and Goulburn, you can hear the radio change over. On the way home it done the same thing in the same area, so you know the radio is working. So I don't have any problem with the radio being working.

1. Mr Perry denied ever experiencing any difficulty with the CountryNet radio working, except with voice echoing (66.15T). He also gave evidence that Mr Bell used the CountryNet phone to make an emergency call after the collision. The documentary evidence analysed by Mr Aitken in exhibits S6 and S7 confirms this call.

1. Mr Perry confirmed that the logging on procedure was only required at the start of the trip "when you start up an engine or start the beginning of a journey. Not half way through it" (92.35T). He also said, although he was not on the train at Port Kembla on this trip, "they would not let you leave Port Kembla harbour until you were contacted on that network" (91.30T). In his experience, it was only necessary for a driver to log on, in this case, at Narromine, "because they've swapped the engines around". And leaving Port Kembla "because the train number changed" (92.40T). This evidence in substance is the same as the evidence of Mr. Baczynskyj I have referred to above. Mr Perry said that on the return neither he nor Mr Bell "touched" the CountryNet radio. By this I understood him to mean that neither of them did anything to change its status in any way. Mr Perry also explained, although in error, that because the NEC handset operated both the CountryNet radio and the WB radio, using the CDMA phone to contact train control when necessary left the WB line open to receive calls from signal boxes (104.25T). His error does not undermine this evidence of the preference for using the CDMA phone. Mr Aitken's logs confirm the employment of the practice on these trips.

1. At 60.20T the following exchange occurs:

Q. What I want to suggest to you Mr Perry is that at least for a period of time before the accident occurred that the radio in the lead locomotive may not have been switched on?

A. I am telling you it was.

1. In his evidence, Mr Bell said that when previously he had driven a train that was reconfigured at Narromine, as all trains heading for Parkes must be, he would turn off the CountryNet radio in what had become the trailing locomotive after the reconfiguration, by turning "the circuit breaker off in the cabin". He clarified that by this he meant turning the power off. He also said that it was part of the procedure to switch on the CountryNet radio when you entered "what was now going to be the lead locomotive" (177.30T). When this was done, that unit would be logged on by pressing the "P1 button" (178.5T). Mr Bell said at 178.20T that:

[P1] registers to control that I wish to speak to him and then he would come on and speak to me and then I can just talk to him.

He said he would not leave Narromine until he received contact from train control.

1. Returning to the narrative, Mr Bell and Mr Perry left the train at Goulbourn, but because of an unexpected need to change crew Mr Bell was sent by road to Port Kembla to rejoin the train as the observer on its return trip.

1. The wheat was unloaded at Port Kembla before Mr Bell rejoined the train, and the registration of 8952 was manually cancelled at 3:03pm. A call was made using the CDMA phone at the same time, I infer to the Metro train controller, who at the conclusion of the call or during it cancelled the registration by touching the relevant icons on his train controller workstation. This requires the controller to select the "CANCEL REG" button, and the relevant train button. But "the locomotive radio is still logged on and calls via the 'UNREG LOCO' button are available": Ex. 2D11 at p34.

1. As I have already said, the unladen train was re-designated 9351 for the return trip for "stabling" at Junee. It did not depart Inner Harbour until 4:20pm. There is no record of a CDMA phone call to train control or any other contact with train control logging on and registering for the commencement of the new journey. However, although the phone call cancelling the registration earlier had been made from the CDMA mobile phone which was then situated in the leading locomotive GL102 (OT60), because of the confusion engendered by the continued operation of the CountryNet equipment in the trailing locomotive GL101 (OT59), it seems clear, and I infer, that what was cancelled, of course by computer, was the registration of the CountryNet equipment in the trailing locomotive. But it must follow that that equipment remained logged on because no one had turned off the power by operating the circuit breaker. And I would also infer that the CountryNet radio in the lead locomotive also remained on.

1. Clearly the crew who had finished the trip at Inner Harbour believed that CountryNet was on because the driver took steps to cancel the registration. There is also a presumption of continuity in my mind in that I accept the evidence of the plaintiffs that it was showing all signs of being on, right up until they left the train at Goulbourn. I find it was on at that time. As I have said, Mr Perry gave evidence about the normal practice at Port Kembla. Mr Bell gave evidence to the same effect, although he could not recall observing the driver, a Mr Edwards, using the CountryNet radio to contact train control. And there is no log of that having occurred, the logs being available for 2nd November 2006.

1. Mr Bell said it was necessary to make verbal contact with train control responsible for Inner Harbour (Metro train control) to obtain permission to leave. That is the normal practice and Mr Bell assumed that Mr Edwards had observed it (185.40T). Mr Bell's assumption is not evidence, but his evidence and that of Mr Perry about the usual practice is circumstantial evidence that Mr Edwards followed the usual procedure. I infer 9351 could not leave somewhere like Inner Harbour unless it had "permission". Presumably a working harbour is a large complex, leaving it may require favourable signals and the opening of points. The evidence discloses that neither Mr Bell nor Mr Perry were qualified to drive at Inner Harbour, although they could act as observers. This suggests to me that Mr Edwards had higher qualifications and experience. It seems very unlikely that someone with his expertise could, or would, ignore proper procedures with impunity. And there is no suggestion in the evidence that the departure from Inner Harbour was somehow irregular.

1. Mr Bell said that the practice was to avoid using the satellite function on the CountryNet handset. He described this as a cost issue. He confirmed it was preferable to use the WB radio function. At 190.35T, he said that he would use the WB radio function wherever possible to make whatever communication he had to. He confirmed that the CDMA telephone was the preferred method of contacting train control (192.10T).

1. That there is no CDMA phone record or CountryNet log, or poll, of a communication, it must be acknowledged, is some evidence that the normal practice may not have been followed. Mr Bell thought the relevant contact could not be made by WB radio because permission had to come from the yardmaster: 259.20-25T, which may have been obtained by the personal attendance of Mr Edwards.

1. Mr Bell denied that he could be mistaken about whether the CountryNet radio was turned on as the train approached Illabo (196.5-40T). I accept his evidence. If it was on at that stage, it follows that it must have been on when the train left Inner Harbour, given what I have said already about the improbability of the train departing Inner Harbour, in the hands of a senior driver (in terms of his superior qualifications and experience) irregularly. To this might be added the additional consideration that it is highly improbable that all of eight qualified freight train drivers, each of whom would have taken turns at serving as driver and observer during their shift in the cab, must have completely disregarded proper operating and safe working procedure with regard to CountryNet. One's experience of life suggests perhaps that one or two of them may have in some respect, such as the crew at Narromine failing to turn off the CountryNet unit in GL101, but not all of them in all respects.

1. Along the same lines, to my way of thinking, is the evidence that after the collision, which derailed the locomotives and some of the wagons and severely threw the crew around in the cab, Mr Bell and Mr Perry notwithstanding the trauma of the collision performed their duties in the most professional manner. Mr Perry spoke to train control on the CDMA mobile phone, and Mr Bell using the CountryNet radio, at the same time, as a satellite phone, attempted to call GrainCorp. Mr Perry walked back and beyond the crossing putting out detonators behind the train to warn approaching trains of the obstruction. Mr Bell did likewise ahead of the train. He put out detonators and a required warning light for trains approaching from the opposite direction (see GrainCorp statement, Annexure A to Ex. F1).

1. The "GrainCorp statement" made by Mr Bell on 9th November 2006 contains the following narrative (Ex. F1, Annexure A, p13):

A normal journey was experienced from Goulbourn to Harden. At Cullerin I noted that the CountryNet radio sounded several pips as it normally does at this location which indicated to me that the radio was working. Throughout the journey I observed the double flashing lights of the CountryNet radio. At about 21.50 hours at Harden William Perry telephoned Junee Train Control on the CDMA telephone to find out what time we were expected to arrive at Junee so that he could make arrangements with Thomas Martin and James Martin to sign on duty and relieve us at Junee. He also advised Junee Train Control what working was required at Junee and then rang Junee South Box to advise that our train was going to be placed to Junee Railway Workshops.

That telephone call appears on the log prepared by Mr Aitken, being Ex. S6 (referred to further below). It was of 1 minute and 41 seconds duration, to Junee Control. I should point out that in the same statement Mr Bell says:

William Perry told me to get on the train working radio and call out 'emergency'.

I take this to be a reference to the WB radio. I will refer again to some of these details below.

1. A difficulty which arises on the evidence is that Mr Foley, the train controller, gave evidence that he "[felt] there was only one [icon]" for 9351 on his screen when he commenced his shift. Leaving to one side the uncertainty in that response, it is argued if there was only one icon, and there was no dispute that the icon related to the unmanned GL101, then the manned GL102 (OT60) must never have been initiated (see Foley 403.35-404.20T). Moreover, the consideration that, as Ex. S6 demonstrates, GL101 continued to be polled from the time it left Inner Harbour (variously as 'UnReg' or OT59) until it was unilaterally registered without contact at 7:24pm, and GL102 (OT60) did not, is said to require the conclusion that GL102's CountryNet radio must have been off, and therefore not connected to the system. It is true enough that the experts could not explain what does appear to be an anomaly. And OT59 polling before train 9351 was registered, is taken as confirmation of the undisputed fact that after leaving Inner Harbour its radio was initialised and continued to be logged on after the previous train number registration had been cancelled. However that it was polling on the CountryNet system does not necessarily mean it was always displaying an icon on the appropriate train controller workstation prior to its registration as 9351. The log attached to Ex. S6 shows that its registration occurred at a changeover location and certainly at that point an icon in respect of it must have been displayed to enable registration by the train controller.

1. At [54] above, I have set out the contents of the manual for answering an incoming call from an unregistered train. The icon represents the incoming call not the train per se. In Ex. S3, Mr Aitken said (at p52 [5.2.2]):

While the unregistered radio is accessible to the train controller, it is usually not shown on the train controller workstation. It will be shown if the locomotive has made a call to the train controller and the train controller has not registered the locomotive. It will also be shown when the train moves into a new train control area. (Emphasis added).

1. This is confirmed, to my mind, by the contents of the manual at page 31 as follows:

Initiating call - Unregistered train

To initiate a call to an unregistered train:

- select UNREG LOCO button twice

A QWERTY keyboard is displayed.

- enter the locomotive identification number

- select OKAY to place the call.

The TCWS will attempt to call the unregistered train.

I find on the probabilities that an unregistered, but logged on or initiated, CountryNet radio will not constantly display as an icon on the train controller workstation. It will remain connected and can be found by the computer system to which the train controller workstation is attached (see Annexure A, Ex. S8), and it ought to continue to participate in the global positioning system. It is worth recording that there was no further changeover between Mr Foley's commencement on shift at 10:30pm and the collision at just before 11:25pm. Given that GL101 had been erroneously registered as the train by a previous train controller, that is the only icon that one would expect to be displayed continuously on the screen or to be displayed at all during the time the train was under Mr Foley's control, unless a call was initiated by the train by one of the crew depressing the "P1" button, which we know did not occur.

1. This analysis does not deal with all anomalies. But they have in large measure, with a degree of irony, been generated by the late production of part of the polling data only. Bearing in mind the application of the civil onus I find it permissible for me in the circumstances to apply the Blatch v Archer maxim to my reasoning approach, leading me to make the finding expressed in [96].

1. According to Ex. 2D11, the CountryNet users manual, there is a distinction between the "UnReg Loco" button (or icon) always present on the screen as part of the bar along its bottom, and an "UnReg train" button or icon which appears when a call is received from an unregistered train.

1. The masking effect of the continued registration of the CountryNet unit in the unmanned GL101 (OT59) all the way to Inner Harbour is capable of accounting for train control not picking up the anomaly to that point; that together with the considerations, first that voice communication was rarely required after registration, and, secondly, the permissible practice of communication over the CDMA phone. But to my mind this masking effect does not displace what I would regard as the high probability of regularity in operation arising from the force of these other circumstances, which, in my judgment, is not displaced by the competing consideration of the lingering irregularity of the registration of the unmanned trailing locomotive. This consideration supports the finding that the CountryNet radio in GL 102 was logged on.

1. There are other matters which support this conclusion. I have already indicated that Mr Aitken compiled a log of the communications from 9351 in Ex. S6, with additional analysis in Ex. S7, drawing upon the various contemporary documents recording the trail of communication emanating from the train. That objective documentation in significant ways supports the conclusion I have reached on the basis of the evidence I have discussed so far that the CountryNet radio in GL102 (OT60) was logged on at all material times including during the return trip. As the CountryNet system is largely automated through satellite and computer functions, not requiring much by way of human input, the communications between the train equipment and the train control equipment are recorded or "polled". Despite an early request for this information, it was not provided by ARTC until the third day of the trial, 30th May 2012. The explanation proffered by Mr Talintyre of counsel, which I accept, which is also supported by the affidavit of his instructing solicitor, Ms Jacqueline Remy, affirmed on 31st May 2012, is that the record was maintained not by ARTC but rather by RailCorp who are, obviously, not a party to the proceedings, and that despite that organisation's goodwill, ARTC were not able, by their own efforts, to have the documents produced as expeditiously as they would have wished. When they were produced, only records for 2nd November 2006 were available. The limited nature of the material hindered the ability of Mr Aitken to provide complete analysis (see Ex. S6 [1.1], and Ex. S7 [3.1]). In assessing these proofs, therefore, I have borne in mind the principle discussed in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 970 that:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

1. These additional matters are of significance. First, the material produced by Optus, the satellite operator, and ARTC, show that the equipment on GL102 was operating correctly at 5:37am on 2nd November 2006 (see Ex. S7 [5.2] - 5.3]). After OT59 had automatically changed over from Junee train control to South train control, OT60 is recorded as attempting to perform the same automatic function. Indeed its position was also polled at 5:36:40am. Initially the "changeover" appeared to be successful, but at 5:37:06am its registration is recorded as being "cancelled" at Junee. The evidence does not disclose why the registration was cancelled especially as it must have shown up on the train controller's workstation as an unregistered icon. (See the description above at [54], and [87]-[88]). For these pollings to have been recorded at all, the CountryNet equipment must have been on, and must have been logged on. The most likely explanation for the rejection of registration is human action at the train controller's workstation. Having said that I acknowledge there is force in Mr Talintyre's argument that given the competing demands of a train controller, it is unlikely that in the 35 seconds covered by the polling it would have been noticed by the train controller. But this is not impossible. Indeed, given that its companion locomotive was already registered as 8952 at that time, the cancellation or rejection of OT60's attempts seems a logical response even if it should not have occurred without making voice contact with the locomotive, or at least attempting to. But, I repeat, to my mind the real significance of this is that, however briefly, OT60 showed on the train controllers workstation. The fact that it did proves, to my satisfaction, it was turned on, and logged on. Thus this circumstance provides an important thread in the evidence of continuity.

1. The second matter is the call Mr Bell made from the CountryNet unit on GL102 after the collision in an attempt to contact the GrainCorp 24-hour number. In the event the wrong number was dialled. But there is no suggestion in the polling data, as I understand it, that the CountryNet unit was, for the first time, logged on immediately before that call was made.

1. Thirdly, there is the important consideration that the CountryNet equipment on GL102 was operating normally on 3rd November 2006: see table 4-3 page 11, Ex. S7.

1. I find that the CountryNet equipment in GL102 was logged on, but not registered at all material times after the train left Narromine on 1st November 2006. I find that it remained logged on until the collision. The train driver can do no more than log on. Registration belongs to train control.

The collision

1. Train 9351 (it had yet to be registered as such) arrived at Goulburn at about 6:35pm on 2nd November 2006. Mr Edwards left the train, Mr Bell took over as driver, and Mr Perry rejoined it as observer. It departed at about 6:40pm heading for Junee: Ex. 2D13.

1. As I have already said, more than once, at 7:24pm a train controller at South train control registered GL101 (OT59) as 9351, presumably when an unregistered icon appeared on his screen at the commencement of a changeover process from South to Junee train control. As I have said before, this should not have been done (see Mr Baczynskyj's evidence extracted above; see also Mr Foley at 444.5-30T).

1. I have already detailed how various routine calls were made along the way using the CDMA phone, including to Junee train control.

1. At the time that Mr Eldridge's truck rolled over on the level crossing on the Olympic Highway at Illabo, 9351 was hurtling toward that location at 100km/h.

1. As I have already said, when the police called Junee train control the only response initiated on behalf of ARTC by its train controller was to attempt to telephone the train by means of the icon on his workstation. The reader will appreciate that this was an exercise in futility. However, in fairness, Mr Foley was not to know that at the time he initiated the first call. But with respect to him, all he did was initiate three more calls by the same means.

1. Mr Foley did not, as he should have, institute a priority call. Nor did he, as the relevant controller, respond to the incident - as he had been trained to do (414.10T) - in accordance with the requirements of the ARTC incident management manual (Ex. 2D12). The requirements of the manual are summarised at [20] - [27]. Mr Foley was carefully cross examined about these details from 414.15 - 440.15T.

1. There are two types of priority call described in Ex. 2D11 (the users manual), at page 38. The first is a train specific priority call. It is a simple four-step process of touching icons on the screen. It is initiated by a button on the bar "PRIOR CALL". This allows two-way communication with a selected train, while all other trains in the selected area can listen. A priority call which is non-train specific is a three-step process, also involving the "PRIOR CALL" button. All trains within the selected area will hear the communication, but cannot respond.

1. There can be no doubt that the incident of which Mr Foley had been notified by the police qualified as an emergency, as defined in Ex. 2D12. The assessment of that matter in operations fell to the train transit manager. The train transit manager on duty, in an office nearby Mr Foley's workstation, was Mr Bart Bucinski. He did not give evidence. But Mr Foley did not notify him, as he should have (415.30-416.5T). Had Mr Bucinski been informed, I find that he would have assessed this incident as an emergency.

1. The transit manager would have relieved Mr Foley of all other duties to enable him to concentrate on contacting the train. Instead, Mr Foley continued to field routine calls and conduct his usual duties in the few minutes available to him before the collision.

1. The transit manager also had the GrainCorp 24-hour telephone number, which had been provided by GrainCorp in accordance with its obligations under its access agreement with ARTC. A coordinated response by the transit manager and the train controller would have included notification of GrainCorp of the emergency. I have no doubt that GrainCorp would have contacted the train had ARTC notified them, as they should have, in accordance with their incident management obligations and the system set out in their own manual. There can be no doubt that GrainCorp would have responded to a call from the train transit manager. After the collision the relief driver, Thomas Martin, who was standing by in Junee, was contacted by the train crew and attended the scene. But more significantly, as I have said, Mr Bell attempted to telephone GrainCorp on the CountryNet radio, which was not required to be initialised for that purpose. Contact was made with the number by means of the CDMA telephone one minute later. I infer that Howard Hoper, the operations manager at Rail Dubbo, received that call and travelled from Dubbo to Illabo arriving at 3:30am (Annexure A to Ex. F1). He apparently answered the phone at 11:28pm. I infer he would have answered it if called during the preceding eleven minutes, enabling him to contact the train. Mr Perry confirmed speaking to Mr Hoper in the immediate aftermath of the collision (Annexure A to his evidentiary statement, Ex. A1).

1. Mr Baczynskyj confirmed that making a priority call "would exactly be the first thing [any train controller] would do" upon receiving a report of an emergency like this (350.30-40T). He also confirmed that the train transit manager on duty had the GrainCorp 24-hour number and that, if he was in his office, he was easily contactable by a train controller. Mr Foley's evidence established that the train transit manager was indeed in his office.

1. Moreover as Mr Talintyre accepted, because ARTC did not record the mobile phone numbers of smaller operators like GrainCorp (unlike for larger operators 346.5-20T) it did not have a backup system for contacting the train when it did not respond in the emergency to Mr Foley's CountryNet calls, contrary to clause 60A of the Regulation. The information alert issued by the regulator upon commencement of clause 60A (Ex. 1D2, Annexure B) said:

What is a backup system?

If the primary radio system fails, there must be a back-up communication system for the train.

This means:

- WB radio (450.050 MHZ) or;

- Mobile phone (i.e. mobile or satellite phone - appropriate for the area in which the train is operating)

1. GrainCorp complied with this requirement, ARTC did not. Mobile phone numbers for trains were only recorded by train controllers in respect of the smaller operators on an ad-hoc basis (444.5T, 406.5 - 407.5T). From what Mr Foley said in re-examination at 445.30-45T, had he had the CDMA phone number easily available to him I find he would have used it rather than persisting with calls to which he was receiving no answer.

1. These are the circumstances then in which there was a failure to warn 9351 of the emergency.

1. Mr Perry said (Ex. A1; [46] - [49])

46. On the approach to the Olympic Highway level crossing at Illabo, we had a full clear signal and when the train passed the track circuit I could see the level crossing lights activated.

47. We went into heavy rain and then without warning I saw there was something on the line. I said "What's that" to Stan, I could see wheels. Stan said something to me and I threw myself on to the floor of the train and then the train collided with the obstruction. I thought we were going to die - we had been travelling at near maximum track speed (100kmh).

48. The impact was very loud and violent and I was thrown around in the cabin of the train. It took a while for the train to come to a stop and I kept looking up when I could to see if we were going to derail. The noise was so loud and we were going so fast that if we derailed I thought we would die. We had been travelling at about 97kms per hour when we hit.

49. I was very shaken when the train came to a stop. I checked that I was OK physically and that Stan was OK. I had hurt my finger and I was shaken up but otherwise I hadn't been seriously injured physically. I pulled myself together.

1. Mr Bell said (Ex. F1 [53] - [57], [58]):

53. Approaching the level crossing at Illabo we had a clear signal and there was nothing to suggest that the line ahead was not clear and certainly not blocked.

54. Suddenly I saw something in front of me about 20 meters ahead. There was no time to avoid the obstacle. I saw it seconds before the train hit it. It was a vehicle. I braced myself and said to Bill "Good bye old mate" I thought I would die.

55. When the train hit the semi-trailer we were travelling at more than 90km per hour. The impact was violent. I braced myself but I was thrown out of my seat against the back of the cabin. My back and my head were injured when I hit the rear wall of the cabin. I was then... thrust forward in to the console of the train. I was terrified.

56. It took a while for the train to come to a halt. It was incredibly loud. All I could do was hold on as best I could and wait for everything to come to a standstill.

...

58. When the train eventually stopped I stayed seated for a short time to collect myself. I dreaded looking for the driver of the truck.

1. I have dealt with aspects of the aftermath already and I will not repeat those details. It is unnecessary to record the details of an altercation of sorts which occurred between Mr Perry and Mr Foley when Mr Perry rang train control on the CDMA phone. I will reiterate that the locomotives and a number of wagons were derailed, coming to rest some distance beyond the point of impact.

1. Each of Mr Bell and Perry gave evidence (c.f. s5D(3) CLA) that had they received a warning of the emergency they would have immediately instituted the necessary procedures to effect an emergency stop of the train. Even without this evidence I would have inferred from all of the circumstances had they received a warning of the emergency they would have done so.

The liability of ARTC

1. As I have already said, ARTC does not dispute that it owes each plaintiff a duty to exercise reasonable care in the performance of its functions of train control extending to incident management for the avoidance of the infliction of personal injury and mental harm. No point arises under Part 3 CLA.

1. ARTC also accepts that its system did not incorporate a backup means of communication as required by clause 60A of the Regulation, and to that extent, it is in breach of the duty of care. In terms of s5B CLA, the relevant precaution against the risk of personal and mental injury caused by the collision, in this context, is failing to use the backup communications system available through the CDMA phone within five minutes of receiving notice of the emergency, having tried unsuccessfully to contact the crew through CountryNet in the first minute or two. There can be no question that the risk of injury through the train colliding with the overturned truck was a risk of which ARTC, through its employees, actually knew. Clearly the risk was not insignificant, and in my judgment in the circumstances a reasonable person in ARTC's position would have taken the precaution of utilising the backup. There is no doubt that a consideration of the factors listed in pars (a) to (c) of s5B(2) supports the conclusion that a reasonable person would have taken this precaution against the risk of harm. That railways are of social utility does not of itself denigrate from the consideration that they should be worked safely, and is not a telling consideration against my determination.

(g)   05/05/09 - told Dr Westmore he still potters in his garden and shed;

(h)   29/06/09 - told Dr Lehman he can clean his house, make his bed, and mow his lawn;

(i)   27/08/09 - told Prof. Jones that he continues to enjoy gardening, spending his days at that pursuit. He does his own housework, shopping and prepares meals, his fifteen year old son now living with him;

(j)   27/08/09 - told Dr Maxwell he does his own gardening and he enjoys growing vegetables, enjoys furniture restoration, does his own housework and says he keeps his house neat and tidy;

(k)   10/11/11 - told Dr Lehman that he does his housework and mows the lawns but "takes [his] time"

(l)   27/03/12 - told Assoc. Prof. Jones that he was able to do some housework and gardening and domestic chores up to a certain extent.

1. Assoc. Prof. Jones, a rehabilitation physician, is of the view that the plaintiff did not require domestic assistance.

1. I accept the evidence of the plaintiff and of his family members. However, it is difficult, of course, to assess the efficiency with which people may perform ordinary domestic chores. The view I have formed of the plaintiff's orthopaedic injuries is such that I accept he would be able to perform most activities but possibly slowly and at his own pace. During times when his symptoms are worse, he may not be able to perform the activities that he has described to the doctors from time to time.

1. The estimates of lay witnesses in this area are likely to be unreliable unless a detailed diary has been maintained. In ordinary life, people generally speaking do not count the hours spent on ordinary chores. In some respects this phenomenon suggests that an underestimation is just as likely as an overestimation of the time engaged.

1. I accept the evidence of Ms Grinter and I consider that her professional estimate is likely to be a more accurate assessment of the plaintiffs needs. I accept that there may be a social element to family visits, but that does not reduce the reality of the assistance provided. Given what I regard as the severity of his overall medical condition I am of the view that the provision of seven hours per week of voluntary domestic assistance is reasonable. I allow seven hours per week at a rate of $24 per hour, for 343 weeks. That is $57,624.

Future domestic assistance

1. Mr Bell gave evidence that in the future he would prefer to have commercial assistance. As his mother ages and his daughter's circumstances change, it is likely that they will not be available to lend the hand they have lent in the past.

1. It also seems to me that if the surgery is successful, and Mr Bell achieves greater improvement in his mental condition, he will be able to do more for himself. The pottering that he now does and the mowing over which he takes his time might develop further into an ability to perform more chores for himself than in the past. I appreciate that Ms Grinter's prescription for the future is the same as for the past, but I consider, on average, and doing the best I can to estimate it, that it will be sufficient for there to be a provision of four hours per week in various household tasks.

1. The first defendant agrees that the plaintiff will require domestic assistance totalling four hours a week for six weeks following his back surgery (as per the report of Dr Pell of 08/05/12, p2) but submits that the plaintiff has not demonstrated further need for domestic or other assistance beyond this level, particularly allowing for improvements following surgery (submissions on damages for Mr Bell at [28]).

1. Mr Bell is now 54 and has a life expectancy on the median life tables of about 31 years and 6 months. The plaintiffs claim is for a period of 25 years, on the basis that the normal effects of aging are likely to give rise to a need for assistance in the later years of life in any event. This is a reasonable approach and I propose to adopt it. The rate claimed is $36.30 per hour, and this is not disputed. I allow $145 per week. The multiplier is $753.60. The amount allowed is $109,272.

Total damages

1. The total amount of my assessment of damages is $1,540,956.32 under the CLA, subject to the calculation of interest in accordance with s18, which I will ask the parties to agree upon.

Motor Accidents Compensation Act damages

1. The only difference in the assessment procedure between the CLA and the MACA is that in the circumstances of this case Mr Bell is not entitled to damages for non-economic loss. Accordingly, I deduct the sum of $283,500 and assess damages under the MACA in the sum of $1,257,456.32. I will in my orders give the parties liberty to apply in respect of any entitlement to interest under that legislation.

Workers Compensation Act damages

1. Had I found GrainCorp liable to pay Mr Bell damages, the damages would have been restricted to the same allowances I have made in respect of past and future economic loss, including Fox v Wood and superannuation. Thus damages would have been assessed in the sum of $882,917.

Contribution

1. As the damages under the MACA are less than those under the CLA in the circumstances of this case, there is no necessary deduction from the damages payable by Mr Eldridge under s19(3) CLA. Subject to the calculation of interest in due course, Mr Eldridge will be entitled to contribution from ARTC at the rate of 50 per cent of the damages payable by him, or the sum of $628,728.

1. Likewise, on its cross-claim, ARTC will be entitled to contribution from Mr Eldridge (in accordance with the principles discussed in Roads and Traffic Authority v Ryan) in the sum of $770,478.

Section 151Z(2) Workers Compensation Act 1987

1. If I am wrong in finding that GrainCorp is not liable to pay damages to Mr Bell, the damages payable by each of ARTC and Mr Eldridge will be reduced by reference to the provisions of s151Z(2)(c) WCA. On the contingent finding I have made as to GrainCorp's liability to contribute, ARTC would have been entitled to contribution in the sum of $308,191. But because of the provisions of s151Z(2)(d), that contribution is reduced to the sum of $176,583. Accordingly, it would otherwise have been necessary to reduce the plaintiffs damages payable by ARTC by the difference between those figures, or $131,608.

1. In the case of Mr Eldridge, but for the operation of Div 3 of Part 5 WCA the contribution recoverable by him from GrainCorp would have been $251,491. Under s151Z(2)(d), the contribution is also $131,608. The difference is $74,908. If I am wrong about GrainCorp's liability it will be necessary to reduce the damages payable by Mr Eldridge by the sum of $74,908.

Orders

1. I will pronounce orders which will be subject to the right of the parties to apply in respect of interest and costs. Those orders will be in the following terms:

(1)   Judgment for the plaintiff against the first defendant in the sum of $1,540,956.32;

(2)   Judgment against the second defendant in the sum of $1,257,456.32;

(3)   Judgment for the third defendant;

(4)   The first and second defendants to pay the plaintiffs costs of the proceedings;

(5) Subject to the provisions of s346 Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Division 3 of Part 17 Workers Compensation Regulation 2010 (NSW), the plaintiff to pay the third defendant's costs of the proceedings;

(6)   Judgment in favour of the first defendant on its cross-claim against the second defendant in the sum of $770,478;

(7)   Judgment in favour of the second defendant on its cross-claim against the first defendant in the sum of $628,728;

(8)   The first and second defendants to bear its or his own costs of the cross-claims;

(9)   The Court notes that satisfaction of one of the judgments pronounced in order (1) and (2) discharges the other pro tanto;

(10) The Court notes that the judgments pronounced by orders (1) and (2) hereof are subject to the provisions of s151Z(1)(b) Workers Compensation Act 1987 (NSW);

(11)   Direct the plaintiff, first defendant and second defendant within 14 days of the date hereof, to bring in short minutes of order recording any agreement as to interest, varying the agreed out of pockets figure, varying the agreed Fox v Wood figure and amending the judgments accordingly;

(12)   Order that the entry of the judgments pronounced today be deferred for a period of 28 days from today;

(13)   Grant liberty to the parties to apply in respect of arithmetical error or any special order as to costs within 14 days of the date hereof.

Assessment of damages - Mr Perry

1. Mr Perry was born on 21 September 1959. Accordingly, he was 47 years of age at the date of the accident and is now aged 53 years and 8 months. He has been a professional train driver all of his working life; first with the State Rail Authority of NSW and, from May 1998 to the time of the accident, with GrainCorp.

1. He had been involved in four prior derailments between 2002 and 2005 and had been treated with Lovan by his General Practitioner, Dr Datoo.

1. I have fully set out Mr Perry's account of what happened to him in the Illabo collision above, and I accept that notwithstanding the previous derailments, this was the first time that he had had the apprehension that he was going to die. I fully accept that the Illabo collision was a frightening and life threatening experience for Mr Perry. Nonetheless, he had received a prescription for Lovan in March 2006, and I accept that this demonstrates that the earlier incidents had brought about a level of mental ill health which may have been persisting as at 2 November 2006.

1. Mr Perry commenced a long-term relationship in 1987 and he married his partner in 1994. They have three children. Mr Perry's wife had two children from a previous relationship, both of whom were treated by Mr Perry as his own. Unfortunately, the marriage broke down in April 2008 and the plaintiff and his wife separated. His teenage daughter remained with him for a few months before leaving to live with her mother.

1. Mr Perry does not complain of having suffered significant physical injuries in the collision; those he did suffer soon resolved. However, mentally he is severely affected. He said he felt he had gotten over the previous incidents but the Illabo collision has robbed him of all self-confidence, and he suffers from panic attacks.

1. A Medical Assessor under the MAA diagnosed major depressive disorder and anxiety disorder, and assessed that his degree of permanent impairment for the purpose of s131 MACA is greater than 10 per cent.

1. Because of a suspicion of psychiatrists, and living in the country, Mr Perry has not undergone ongoing psychological treatment. He has remained under the care of his GP, Dr. Datoo, who says that she has continued to prescribe Lovan for Mr Perry and Murelax, which he takes as required. She has diagnosed a condition of depression. Mr Perry has complained to his GP of depression, night sweats, flashbacks, insomnia and an upset metabolism. She has diagnosed post traumatic stress disorder as a result of the collision of 2nd November 2006, acknowledging that he previously suffered from depression as a result of other train accidents. She has assessed him as being permanently unfit to work as a train driver, and in Ex. O9, she said:

I have known Mr Perry for 15 years and during that time he has told me of various accidents / incidents in which he has been involved. At no time did he ask for anytime off and I have never assisted him with any WorkCover claims prior to this.

Mr Perry has been on and off Lovan for the last 10 years but I am unable to say whether these times were proceeded by any particular incident. He, to my knowledge was not taking anti depressant medication immediately before the November 2, 2006 incident.

1. Mr Perry has been examined by Dr Westmore, at the request of his solicitors, a number of times over the years. Dr Westmore initially made a provisional diagnosis of Major Depression. He noted Mr Perry's somewhat negative views about psychiatry based upon his experience with insurance company doctors. Dr Westmore's current diagnosis (since June 2010) is Dysthymic Disorder, superimposed on an adjustment disorder. In his last report of 26 March 2012 Dr Westmore regarded the prognosis as poor due to the chronic nature of Mr Perry's symptoms. He said (Ex. O3)

Mr Perry remains depressed, socially isolated and withdrawn. He is not able to enter into, let alone maintain a personal intimate relationship. He continues to rely on considerable support from family and friends.

While he remains employed he finds it very difficult to go to work, he has lost motivation and drive and he does not enjoy working indoors. He has lost previously enjoyed recreational activities.

...

I note continuing disturbances in his biological functions and were this man in Sydney, I would be recommending he be assessed by a mood specialist and probably undergo treatment in a mood specialist unit. The introduction of mood stabilising drugs or perhaps combinations of antidepressants or indeed more aggressive treatment with antidepressants might affect some change in his condition, but again I am generally pessimistic about his prognosis because of the chronic nature of his symptoms, their poor response to treatment to date and their continuing nature and severity.

1. He assessed Mr Perry as having a fifteen per cent whole person impairment. Doctor Eli Revai, who examined Mr Perry at the request of QBE Workers Compensation (NSW) Insurance Ltd, expressed the view that Mr Perry had become depressed because of the collision. He said (Ex. O5, p7):

Mr Perry has suffered from depression in the past consequent as a response of his reaction to train accidents. On this occasion the depression is unremitting. It is possible that Mr Perry had a greater facility to becoming depressed as a consequence of his being primed in the past to depression after rail accidents.

He also said, in a separate report:

...prior to this most recent collision, Mr Perry's past adjustment disorders with depressed mood had long resolved.

1. Dr Revai was of the view that Mr Perry required immediate treatment from a psychiatrist as an inpatient.

1. Dr Robert Lewin, in his report of 27th August 2009, obtained by the solicitors for the second defendant, diagnosed Recurrent Unipolar Major Depression. Dr Lewin thought there was a 90 per cent prospect at that time of resolution of the Major Depression given the past history. Dr Lewin considered that Mr Perry was unfit for train driving work (and that this will continue indefinitely).

1. Dr Phillip Brown, in his report of 5th July 2010, expressed the following view (Ex. 2D8I, p17):

In my opinion Mr Perry presents with mild depressive symptomatology being predominately demotivation of the severity usually associated with a Dysthymic Disorder. He also describes some mild generalised anxiety. I consider both as reactive to his having had the train accident and being blamed for this and his resultant situation, including his separation from his wife and his concern for the outcome of his legal case. As I considered both his anxiety and depression as reactive they may be subsumed in the diagnosis of an Adjustment Disorder. This psychological condition is of a Mild Degree as he is able to work full-time despite the degree of his motivation, which is consistent with dysthymia and the introspection usually associated with it. (Emphasis in the original).

Dr Brown accepted that this was a diagnosable psychiatric condition. He also expressed this view (Ex. 2D8I, p18):

In my opinion he does not have a history of an ongoing significant psychological condition prior to the last train accident. Whilst he described prior periods of depression of a very mild degree and trouble sleeping, which from his account may have been related to prior train accidents in their more clinically significant part, in any event they ongoing as he did not require time off work due to them or any ongoing treatment. Thus in my opinion they are if no relevance to his present psychological condition other than to indicate his propensity to have such a reaction to the significant stressors of the time. I did not see these episodes as indicating a psychological constitution with a propensity to have [major depressive episodes] of the Melancholic Type and so to merit the constitutional diagnosis of Dysthymic Disorder of the Endogenous (Melancholic) Type, a Unipolar or Bipolar Affective Disorder.

In my opinion he has no pre-existing psychological condition which may wholly or party account for his psychological symptoms and there has been no exacerbation or acceleration of any relevant pre-existing psychiatric or psychological condition.

1. It is worthwhile recording at this time that Dr Brown said the following concerning Mr Perry's ability to perform domestic tasks (Ex. 2D8I, p19):

He is able to work at abattoirs and so he should be able to perform tasks of a comparable effort about his home, and so this includes cooking, cleaning, general housework, laundry, farm work, home maintenance, shopping and the like. The problem is not that he can't do them but that he describes lacking the motivation to do things other than at work. Accepting this, then he has dysthymia; in this condition motivation is only applied when it has to be, such as to earn a living, and as long as others perform the tasks or there is no compelling force to do them then the dysthymic individual might not do them.

1. Dr John Albert Roberts in his report of 27th December 2006 found that Mr Perry was not suffering from any recognisable psychiatric, diagnosable condition and that he was fit for all work without restrictions. He doubted Mr Perry's reliability as an historian. I reject Dr Robert's opinion. It is entirely out of step with the overwhelming contrary opinion from doctors from all sides of the record in the present case. Moreover, his complaints about Mr Perry's reliability do not accord with my own observation of him in the witness box. I found him to be an honest witness and I had no reason to doubt the accuracy of his report of his symptoms and difficulties since the accident.

1. I accept the relevant diagnosis is that proffered by doctors Westmore and Brown, and I accept Dr Brown's description of Mr Perry's ongoing difficulties and the medical explanation for them. Although both Dr Westmore and Dr Brown suggest that psychiatric treatment may help, I understand Dr Brown's view to be that it is more likely to be effective after the stress of the litigation is behind Mr Perry.

1. To the extent to which there are differences in emphasis between Dr Westmore and Dr Brown, I prefer Dr Westmore as his views seem to accord more with my own impressions of Mr Perry, having had the opportunity of assessing him in the witness box.

1. As I will recount when dealing with economic loss, Mr Perry has, to his great credit, been back in the workforce since 16 December 2006, first with Conqueror's Mill at Cootamundra, and then with Scott's Abattoir, also Cootamundra, with the latter working as a labourer/boner in the boning room.

1. Notwithstanding this, I accept Dr Brown's explanation for what may be an inconsistency between the ability to work full time and the other difficulties of which Mr Perry complains. Mr Perry goes to work because he feels he must, but the effort of maintaining himself in work exhausts him mentally and takes all of his motivation in his dysthymic state.

Non-economic loss

1. As I have said, Mr Perry qualifies for non-economic loss under the MACA. I accept that Mr Perry's condition is wholly related to the accident of 2nd November 2006, notwithstanding the previous episodes of depression suffered. At most, on the acceptable medical evidence, he was primed. Dr Revai, who offered this view, as I read him, relates the whole of the present condition to the events of 2nd November 2006. This is also how I understand the other psychiatric evidence, with the exception of Dr Roberts whose views I have rejected. Accordingly, in this case, there is no occasion for making a discount on the basis of the principles discussed in Ghaleb.

1. In my judgment, the injuries suffered by Mr Perry are very significant. He has suffered from them for over eight years, and is likely to be permanently affected by them. They have been disruptive of almost all aspects of his daily life. That he is able to continue to work full time in heavy work is a testament to his determination rather than an indicator that his symptoms are not as severe as he says, Dr Brown's contrary view notwithstanding.

1. Mr Catsanos argues that I should assess him at 65 per cent of a most extreme case; Mr Talintyre for ARTC at 40 per cent.

1. In the case of damages under the MACA for non-economic loss, they are of course at large, subject to the statutory cap of (currently) $462,000. Damages under the MACA are assessed in accordance with ordinary common law principles. This does not mean of course that a different result necessarily follows. If a different result does follow it may be more or less than the CLA assessment.

1. Under the CLA I assess the non-economic loss at 50 per cent of a most extreme case, which translates to a figure of $267,500. On a common law basis, as is appropriate for the MACA, I assess damages for non-economic loss in the sum of $250,000.

Past economic loss

1. Once again, the most significant issue relates to the retrenchment of all GrainCorp train drivers within days of the incident. With great respect, Mr Talintyre mounts the same argument. I think there are considerations in Mr Perry's case which are somewhat different from those in Mr Bell's case. I will not summarise the evidence again. The fact that Mr Perry was able to get a suitable job within weeks of the accident persuades me that he would have done everything he could to get himself back to work as a train driver had the accident not occurred. In his case, I am of the view that he would have been re-employed as a train driver either in Cootamundra, Junee or elsewhere in NSW, by about the same time he found alternative work at the flourmill. Moreover, I am satisfied that with his work ethic he would have retained that employment and continued in it until he reached ordinary retirement age. For these reasons I do not propose to make any discount in respect of the actual loss suffered by Mr Perry when his earnings are compared to those of a train driver.

1. Once again, the agreed net figures produce an average of $1,150 for the past. A schedule of agreed earnings figures was handed up as MFI 13. On that basis, as of the date of trial in June 2012, a claim of $267,111 was advanced. I propose to add to that figure the difference between the current earnings of a train driver, agreed at $1,300 per week net, and Mr Perry's current average weekly net earnings of $615 per week net, rounding up slightly the figure in MFI 13. The difference is $685 per week, and I will allow an additional allowance for past economic loss of $35,620. The total figure therefore is $302,731.

Fox v Wood

1. Agreed in the sum of $24,592.

Past out of pocket expenses

1. Agreed at $6,054.

Future economic loss

1. I have already found that Mr Perry's most likely future circumstances but for the accident are that he would have found and retained work as a train driver earning $1300 per week net. His current earnings of $615 per week represent, in my judgment, the limit of his residual earning capacity. Apart from the usual discount for the vicissitudes of life, I can see no reason to discount the economic loss any further. Accordingly I will allow a sum which represents $685 per week until age 67, on the 5 per cent tables, less 15 per cent. That figure is $292,446.

Superannuation

1. At 11 per cent on past and future economic loss allowances, superannuation is $65,471.

Future out of pocket expenses

1. The plaintiff claims the costs of medication (Lovan and Murelax), general practitioner attendances every two months, attendance upon a psychologist and admission to a mood disorder clinic. The first defendant disputes each of these claims in turn.

1. In relation to medications, the plaintiff claims an allowance for Lovan and Murelax. The parties have agreed on a weekly rate for these medications of $11.55 (Ex. U). The dispute relates to the period for which an allowance of this kind should be made. The first defendant submits that a two year period is reasonable, in view of the evidence of Dr Westmore (report of 3/4/12, Ex. O4). Similarly, the first defendant concedes that bi-monthly general practitioner visits are reasonable, and the parties have agreed on the rate of $17.25 per week. However the first defendant submits that such an allowance is only reasonable for the period during which the plaintiff is being prescribed medications (i.e. two years), but that the rate of attendances should reduce thereafter (first defendants submissions on damages for Mr Perry at [5](b)).

1. The first defendant disputes the plaintiff's claim to attendances upon a psychologist and admission to a mood disorder clinic on the grounds of the plaintiff's evidence, which in its submission, revealed some reluctance to seek treatment of this kind unless the plaintiff could be assured of the practitioners trustworthiness. At 69.10 - 70.5T the following evidence was given:

Q. Much aside from seeing your family doctor and taking some medications, you haven't seen any other doctors for treatment of your condition, is that the case?

A. That's correct.

Q. Because you are mistrustful of psychiatry as a field of medicine, is that right?

A. I wouldn't say field. Just some of the people that practice it.

Q. It's not your intention to follow Dr Westmore's advice and have any further treatment, is it?

A. Yes.

Q. Are you saying you do intend to have further treatment or not?

A. I would, yes.

Q. You haven't so far, have you?

A. No.

Q. Is that because none of your family doctors have referred you anywhere?

A. No. It does cost a fair bit of money to go to these people and you got to find the one that you can trust.

Q. If you couldn't find one that you could trust you wouldn't do it, would you?

A. No.

Q. You haven't found anybody you can trust so far, have you?

A. As in psychiatrists?

Q. Yes.

A. There's a couple I like, yep.

Q. Why haven't you sought treatment from them?

A. A bit hard to travel down to the city to see them.

Q. You haven't found anybody convenient to you where you live to be treated by

A. No.

Q. that you feel you can trust?

A. Yes.

Q. Is it the case that you won't have any treatment for your condition until such time as you do find somebody you feel you can trust and is also convenient to you?

A. Somewhere convenient to me and somebody that will possibly fix me, yes.

1. It is submitted on behalf of the first defendant that this evidence combined with the fact that the plaintiff has not obtained treatment from a psychologist or psychiatrist since the accident has the result that "it is highly improbable that the plaintiff will attend for such treatment" (first defendants submissions on damages for Mr Perry at [5](c)). It is further submitted that this low probability should result in the allowance of only "a very modest buffer of say $1000 or $2000 for the possibility of [Mr Perry] obtaining such treatment."

1. It is not submitted that I should find that Mr Perry has failed to mitigate his loss by not having more active treatment. In any event, I would not be so satisfied. He seems very well motivated, so far as he can be, with the restrictions imposed upon him by his condition. It seems to me that he will need the Lovan and Murelax indefinitely and that he will continue to require the support of his GP, also indefinitely. However it does seem to me that a buffer is the appropriate approach. I am of the view that there is only a low degree of probability that Mr Perry will follow Dr Westmore's prescription. However, the buffer suggested by ARTC, with respect, is too niggardly. The amount I allow is $15,000.

Past gratuitous care

1. The plaintiff claims various kinds of past gratuitous care, including cooking, cleaning, mowing, weeding and various one-off outside maintenance jobs. The first defendant submits that although on the face of it the hours of assistance provided by Mr Perry's friends and family exceed six hours per week, the assistance results from an "understandable benevolence and concern", rather than the "reasonable need" as required by s15(3) CLA. It is further submitted that the unique nature of the plaintiff's "need (if it is a 'need', in the requisite legal sense) aris[es] from lack of motivation" (first defendant's submissions on damages at [14]). In support of this submission the first defendant refers to Mr Perry's evidence at 70.45 - 71.10T:

Q.In terms of looking after yourself, I think you have already said that you can do it. You just really don't want to, is that the case?

A. Correct.

Q. So, if you were motivated to do it, you can cook for yourself?

A. Yep.

Q. You can clean for yourself?

A. Yes.

Q. You can look after your property?

A. Yes.

Q. You could also look after your personal hygiene needs, is that the case?

A. Correct.

1. The plaintiff claims 12 hours per week based upon Ms Grinter's assessment. Ms Josephine Campese, an occupational therapist, has reviewed that report and also made her own assessment. She acknowledges a need for past care but her opinion is such that the statutory threshold would not be crossed. In her assessment Mr Perry requires less than two hours per week. As I understand her, that allowance would continue into the future.

1. In my judgment, the resolution of the issue in this case is best understood by reference to Dr Brown's careful opinion about the effect of Mr Perry's dysthymic state. I understand that some may find it strange that a man who can work as a boner in an abattoir should need any help at all with the activities of daily living. But in my view that is to misunderstand the true nature of Mr Perry's illness and the effect upon him of dysthymia.

1. He lives on a ten-acre block, and leaving aside all considerations in relation to any hobbies he may have (no claim was made in respect of those matters), it requires extra mowing and maintenance. As Mr Catsanos argued, it is an aspect of the defendant taking the plaintiff as it finds him that his additional needs because of his rural situation need to be met. I accept this submission.

1. However, in my judgment, an appropriate allowance for the past is eight hours per week.

1. I allow $24 per hour by eight hours by 343 weeks, which is a total of $65,856.

Future care

1. The plaintiff claims an allowance for future gratuitous care at a rate of seven hours per week, or, in the alternative, ten hours of assistance at commercial rates. The first defendant disputes this claim on the basis outlined above, namely, non-compliance with the requirement of s15(3) CLA.

1. The second defendant joins the first defendant in disputing these entitlements. I accept that there is a continuing need which the plaintiff says he would prefer to meet on a commercial basis, rather than relying upon the help of his family and friends as he has so far. This is not unreasonable. One however may assume that the type of assistance he is receiving, provided on a professional basis may well be provided more efficiently than on a voluntary basis. For the reasons I have already given I propose to allow five hours per week at a commercial rate of $36.30 for a period of twenty years. It is to be hoped that eventually Mr Perry's dysthymia will improve, or he will overcome it sufficiently to enable him to look after himself. When one couples with that consideration of the fact that the effects of age will have their own effect, I regard twenty years as reasonable. $181.50 per week by the 5% multiplier of 666.4 equals $120,951

Total damages payable by ARTC

1. The total amount of damages payable by ARTC is $1,060,619.

Total damages payable by Mr Eldridge

1. The total amount of damages payable by Mr Eldridge is $1,043,119.

GrainCorp

1. If I am wrong in assessing that GrainCorp is not liable to pay damages to Mr Perry, the total damages payable by it under Division 3 of Part 5 WCA are limited to the allowances for past and future economic loss, including loss of superannuation and the Fox v Wood component. The total figure, drawing upon the allowances I have already made, is $685,258.

Contribution

1. As the damages payable by Mr Eldridge are in the event slightly less than the damages payable by ARTC, there is no occasion to reduce the damages otherwise payable under the MACA by reason of the provisions of s19(3) CLA.

1. ARTC will be entitled to recover the sum of $530,309.50 from Mr Eldridge pursuant to the provisions of s5 LRA, in accordance with the principles discussed in Roads and Traffic Authority v Ryan. Mr Eldridge will be entitled to recover the sum of $521,559.50 from ARTC pursuant to the provisions of s5 LRA.

Section 151Z(2) Workers Compensation Act

1. The amount ARTC would have been entitled to recover from GrainCorp if my contingent assessment of GrainCorp's liability to contribute is applied, having regard to the provisions of s151(Z)(2)(d) WCA, is $137,051. Under the general law it could have recovered $212,123. The difference is $75,072. Had GrainCorp been held liable that amount would need to be deducted from the damages I have assessed against ARTC in accordance with the provisions of s151(Z)(2)(c).

1. In the case of Mr Eldridge, his general law contribution from GrainCorp is $208,623 on the contingent assessment I have made. Under s151(Z)(2)(d), he can recover no more than $137,051. The damages payable by him would be required to be reduced by the difference of $71,572.

Orders

1. In Mr Perry's case I make the following orders:

(1)   Judgment for the plaintiff against the first defendant in the sum of $1,060,619;

(2)   Judgment for the plaintiff against the second defendant in the sum of $1,043,119;

(3)   The first and second defendants to pay the plaintiffs costs of the proceedings after they have been agreed or assessed;

(4)   Judgment in favour of the third defendant;

(5) Subject to the provisions of s346 Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Division 3 of Part 17 Workers Compensation Regulation 2010 (NSW), the plaintiff to pay the third defendant's costs of the proceedings;

(6)   Judgment for the first defendant on its cross-claim against the second defendant in the sum of $530,309.50;

(7)   Judgment in favour of the second defendant on its cross-claim against the first defendant in the sum of $521,559.50;

(8)   The first defendant and the second defendant to bear its or his own costs of the cross-claims;

(9)   The Court notes that satisfaction of one the judgments pronounced in orders (1) and (2) discharges the other pro tanto;

(10) The Court notes that the judgments pronounced by orders (1) and (2) hereof are subject to the provisions of s151Z(1)(b) Workers Compensation Act 1987 (NSW);

(11)   Direct the plaintiff, first defendant and second defendant within 14 days of the date hereof to bring in short minutes of order recording any agreement as to interest, varying the agreed out of pockets figure, varying the agreed Fox v Wood figure and amending the judgments accordingly;

(12)   Order that the entry of the judgments pronounced today be deferred for a period of 28 days from today;

(13)   Grant liberty to the parties to apply in respect of arithmetical error, or special order as to costs, within 14 days of the date hereof.

Appendix

Annexure A: Network block diagram of the full CountryNet system (Ex. S8)

Annexure B: The CountryNet train controller workstation (Ex S3, p50)

5.2 Train Controller Interface

5.2.1 Train Controller Workstation

A typical train controller workstation display can be seen in Figure 5-1. The screen display is arranged into a number of rows, with each row representing a railway line. Trains are indicated by grey icons on the screen, with the position of the icon along the line representing the approximate position of the locomotive along the track.

Figure 5-1 CountryNet Train Controller Workstation

Figure 5-2 Train icons

**********

Amendments

20 June 2013 - Delete "June" and substitute "November"

Amended paragraphs: Paragraph 1, line 1

Decision last updated: 20 June 2013