Rayner v The Western Australian Government Railways Commission - [2000] WADC 332

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RAYNER -v- THE WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION [2000] WADC 332

CORAM: KENNEDY DCJ

HEARD: 25-29 SEPTEMBER 2000, 23-25 OCTOBER 2000

DELIVERED : 19 DECEMBER 2000

FILE NO/S: CIV 1852 of 1997

BETWEEN: CLINTON MATTHEW RAYNER
Plaintiff
AND
THE WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION
Defendant

Catchwords:

Negligence - Collision between train and road train - Were flashing lights working - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed, judgment for the defendant on the counter claim

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr C B Edmonds

Solicitors:

Plaintiff: Civitella Smith
Defendant: Freehills

Case(s) referred to in judgment(s):

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588

Case(s) also cited:

Australian National Railways Commission v Walker (1994) 20 MVR 226
Baker v Victorian Railways Commissioners [1949] VLR 85
Clark v Ryan (1960) 103 CLR 486
Commissioner of Railways v Leahy (1904) 2 CLR 54
Fraser v Victorian Railways Commissioners [1909] 8 CLR 54
Henderson v Hassel & Anor (1986) 3 MVR 359
Kolizos v Australian National Railways Commission (1980) 25 SASR 146
Wells v South Australian Railways Commissioner & The New Zealand Insurance Company Ltd (1973) 5 SASR 74

KENNEDY DCJ: At approximately 1.20 pm on 29 February 1996 a Westrail train collided with the plaintiff's road train which he was driving on The Esplanade rail crossing in Esperance ("the crossing"). Liability is in issue although any quantum of damage has been agreed. Each side sues the other for vehicle damage. The plaintiff specifies a number of particulars of negligence about the failure of the signal lights or if the signal lights worked, then they did not work soon enough to provide a sufficient warning and, in addition, alleges a failure to install warning bells or boom gates and failed to clear vegetation alongside the railway line. The defendant denies that the lights failed and says that they were regularly maintained and were serviced on 7 February 1996. Further, by its counterclaim, says that the plaintiff failed to keep a proper lookout.
The railway line runs east‑west and at the time of the collision, the train was travelling east to the harbour. The line crosses a street I will call "The Esplanade" (apparently, it has since been signposted as Smith Street) and it runs north‑south and the road train was travelling north. At the crossing, there are no boom gates but there are signal lights. On Exhibit 2, those signals have been given letters of the alphabet and there are three sets of signals. One on the north‑eastern side of The Esplanade facing north to be seen by traffic travelling from a northerly direction and two on the south‑western side: One of those faces south to be seen by traffic travelling from the south and the other is angled to the south‑east.
There are two relevant intersections of The Esplanade, to the south Hardy Street and to the north Harbour Road. The plaintiff came from the east along Hardy Road and stopped at the intersection of that street and The Esplanade. Numerous photographs of the intersections and the crossing were tendered in evidence.
At the hearing, the plaintiff's case was largely dependent on eyewitness evidence from people who said with varying degrees of certainty that the lights did not flash. The defendant's answer was that the lights were properly maintained and it was almost impossible for them to fail: If anything went wrong, they would come on and remain on. Furthermore, had anything gone wrong, it would have been possible to simulate that in the tests done immediately after the accident and if it were some type of intermittent failure, it would not stay intermittent forever and would eventually become obvious and that has not happened in the four years since this accident.
Mr Ivan Ursich is the Control & Communications Systems Manager at Westrail and is responsible for the maintenance and provision of railway signalling communications and electrical systems infrastructure. He has been employed by Westrail for 23 years and has spent 21 of those 23 years in railway signalling and level crossing protection. The flashing lights at railway crossings are automatically activated when the first wheels of the train pass over the insulated rail joints contacts which are on the line at a distance before the actual crossing. There is a formula to calculate the point at which the contact should be and it is arrived at, basically by using the distance from the crossing and the train speed but allowing a six per cent train speedometer error and allowing that the train may be travelling three kilometres per hour in excess of the permitted line speed.
This crossing has an approach distance, in fact, of somewhere between 217 and 222 metres. The reason for that variation is that it has been measured differently at different times, the actual approach distance is 219 metres as measured by Westrail personnel in September 1999, but shortly after the accident it was measured and said to be 217 metres and on the signal diagram for the crossing it is marked at 222 metres. Mr Ursich made his own calculations using the three distances and applying the formula and whatever the distance, there is a greater warning time than is required by the formula. Given that the fastest permissible line speed is 30 kilometre per hour, the minimum warning time required is 20 seconds and the minimum distance from the crossing at which the contact point must be placed is 205 metres and that is calculated using the formula I have already referred to as follows:
•Allowing for 6 per cent error plus 3 kilometre per hour:
(30 + 3) + (33 x 6 per cent) = 33 + 1.98 = 34.98
•If the train does 34.98 kilometre per hour (ie 3,600 seconds) how far would it travel in 21 seconds:
34.98 x 21 ÷ 3,600 = 0.20405 kilometres ie 204.06 metres
By means of the Hasler Role, the defendants are able to say exactly what speed the train was travelling at any given time. The Hasler Role is the train's equivalent of an aircraft "black box" but it does not record sound. By means of needle marks on a graph, it is possible to know train speed, throttle position and braking position at any given time. Exhibit K3 is the relevant piece of the Hasler Role taken from this particular train after the accident. Exhibits K1 and K2 are enlarged photocopies which have been marked with information to enable interpretation of this Role in accordance with the evidence of Mr Douglas Murphy who has worked for the defendant for 35 years and is now the Manager locomotive operator standards. By the Role, the collision occurred at about 1.32 pm and the train was then travelling at 12 to 15 kilometre per hour and it then started to brake. There is no recognised mark on the Role for a collision point but Mr Murphy is able to say from experience that when a collision of this nature takes place, there is a small jolt on the time stylus and that can be seen by a small mark on the Role. As to braking, simply by reading the Role, the train did not brake until after that collision point, however, Mr Murphy said it may well be the case that the brakes were applied up to two seconds before it showed because of the reaction time of the driver, the time it takes to physically move the handle around and the time it takes for the air to go out of the brakes. Mr Murphy further calculated that at the 217 metre mark, that is, at approximately the contact point, the train was travelling at about 22 kilometres per hour and if it maintained a steady speed (which it did not, it reduced), it would have taken the train 35 seconds to travel the 217 metres, so the minimum period in which the lights would be flashing would be 35 seconds, presuming they came on when the train went over the contact point.
When Mr Ursich did the calculations based on 217 metres at 15 kilometres per hour, the warning time was 40.9 seconds. One second is then deducted to allow for control equipment or relay operation delay and, therefore, the minimum warning time at 15 kilometres per hour is 39.9 seconds. Mr Ursich then did the calculations based on a speed of 22 kilometres per hour and assuming a constant speed and said that the lights would have flashed for 29.48 seconds, and then deducting a second for relay operation delay would be 28.48 seconds, so that the maximum possible time the lights were flashing was 39.9 seconds and the minimum possible time was 28.48 seconds.
In actual fact, the criteria for this level crossing based on the fastest line speed permissible which is 30 kilometres per hour is 20 seconds of warning time. That 20 seconds is the mandatory minimum warning time stipulated by the American Association of Railroad Standards and the criteria improves on that standard by allowing for speedometer error and control equipment delay.
The plaintiff's own expert witness, Mr Simms, said that a road train moving from Hardy Street to the crossing which is the route taken by the plaintiff, takes about 10 seconds.
In addition to the evidence of Mr Simms, the defendant called Mr Lachlan Miller, a traffic engineer who was sent by them to do an independent assessment of the time it took for trucks to clear the level crossing and to consider the allegation that the flashing lights did not provide sufficient time to clear the crossing before the arrival of the train. Mr Miller's report is Exhibit M and his final conclusion is:
"The result from the video survey indicate that only three loaded trucks approaching The Esplanade crossing from Harbour Road took longer than 20 seconds to clear the crossing. This was based on the observation of 124 truck movements over a 12 hour day, with 60 of those movements being for trucks of length 30 metres and over. No truck approaching the crossing from Hardy Street was observed to take longer than 17 seconds to clear the crossing. However, if the trucks from Hardy Street were loaded, it is conceivable that the occasional truck could lightly exceed 20 seconds."
He went on to say that on the basis of the results of his study, he considered it highly unlikely that any vehicle, including a fully loaded road train leaving from either Hardy Street or Harbour Street and being driven in a normal manner could have entered the crossing before the lights started to flash (or even several seconds after) and be hit by a train assuming that there was a 40 second time lapse between the time the lights started to flash and the train reaching the crossing.
It follows that if the lights were flashing for anything between 28.48 and 39.9 seconds, then there was sufficient time for the road train to pass through the crossing prior to a train's arrival there.
According to Christopher Leederer, who in 1996 was a safeworking technician with Westrail, and Gregory Grenfell, who is the regional signals superintendent south with Westrail and who, in February 1996, was the district electrical supervisor at Bunbury, but was relieving in the position of signal liaison inspector in Perth, maintenance had been carried out on this set of lights and each of them attended at the scene after the accident. Mr Grenfell arrived at 10.30 pm and Mr Leederer was already there. Mr Leederer said that there is in place a comprehensive system for maintaining crossings, this particular crossing was regularly maintained and that that was done in accordance with the procedures in the technical manual. Furthermore, the signalling system at this crossing had been inspected by him and a trades assistant some three weeks before the accident and the system then performed satisfactorily under test conditions. Then, following the accident, he and Mr Grenfell carried out a comprehensive examination and their conclusion was that the lights had been operating satisfactorily at the time of the accident.
When Mr Leederer went to the site in the weeks before the collision, he commenced his servicing by checking that all the secondary batteries were in order because they will supply the crossing in the event of a mains power failure. After checking all of the batteries, he then did a simulation of the train movement using what they call a half‑aim shunt where they actually go to the track and physically put the half‑aim shunt across the railway line to prove that the crossing is actually working. They do various other tests and these are recorded and those documents on which it is recorded have been tendered in evidence and are referred to in the evidence of Mr Ursich to which I will return shortly.
Mr Grenfell arrived at the site at approximately 10.30 pm, Mr Leederer was already there and he and Mr Leederer went through what they call a "40‑point check", which is a formal procedure they have to follow when there is an irregularity at a protected level crossing. His report with relevant attachments is to be found in Exhibit A.
After the collision, the eye witness evidence is that the lights were flashing and they flashed continuously. It seems that Western Power were requested by the Fire Brigade to disconnect the power in the hope that that would stop the lights flashing, however, what it did was to activate the batteries which caused the lights to continue flashing until the batteries ran out and the lights then stopped flashing. By the time Mr Grenfell did his tests, the secondary batteries had been exhausted. He was able to say that their test demonstrated that the crossing was operating normally.
Mr Ursich's evidence was that the train detection system or track circuit was operating correctly on the information provided to him in the irregularity report forms completed by the previous two witnesses.
The track detection system is basically an electrical circuit with the beginning and end defined by insulated rail joints. An electrical short such as a train or a simulated shunt resistance applied anywhere across the rails between the insulated rail joints will result in the loss of DC voltage, causing the de‑energising or dropping out of the relay and, as a result, the lights commence to flash.
Mr Ursich said that the track circuit in operation here is a "westrak" circuit system and, in the time that the "westrak" circuit system has been in operation in Westrail, he has never been notified or become aware of any failure of the track circuit system. Furthermore, the only occasion on which he has known the lights to fail to work is when the system was struck by lightning and it took out both sources of power.
Mr Ursich checked the irregularity report forms completed by Mr Leederer and Mr Grenfell and, as a result of their answers to questions 23, 24, 25 and 36 on those forms, it was his opinion that the track circuitry was functioning properly.
Question 24 required the technicians to record the drop and prevent shunt values. The drop shunt is the value of resistance required to de‑energise the track circuit relay. To indicate that the track circuitry and the contacts are functioning properly, a technician must show that the "drop shunt" is operating the track circuit with at least 0.5 ohms. Here, it was working at 3.4 and 3.5. Had the result shown that the circuit did not operate at 0.5, he would have been concerned. The 3.4 is well above the safety margin and it is his opinion that the train detection system operated for this particular train immediately before the accident. The answers to questions 25 and 36 indicate that the lights worked after the accident and that was done by means of simulating the presence of the train. The answers do note that one set of lights could not be tested because Mast B was demolished, but otherwise, the lights worked after the accident, which indicates that they would have been working before the accident.
The technicians also checked other factors such as the electrical installation and the earth readings to establish whether there was any evidence that the control circuitry could possibly have been by‑passed and there was no such evidence.
The information Mr Ursich had from witnesses at the scene and, indeed, this is supported by the plaintiff's witnesses, is that after the collision, the lights flashed continuously and Mr Ursich said this would have been because part of the control circuitry was broken. As soon as the circuit is broken, however that is done, it opens the control circuitry and that activates the lights. This is a fail safe design feature so that if there is any problem with the lights equipment, the lights flash continuously to alert the road user.
In cross‑examination of Mr Leederer, he was taken through a number of faults that could occur to the lighting system and in each case, he said that that would cause the lights to flash continuously.
As to the suggestion that the lights did not work before the accident, but because the collision resulted in the push button mast being pushed over, this set the lights on to the fail-safe mode: Mr Ursich said on the information he had from the irregularity report form, that was highly improbable. In his opinion, the fact that the lights were working after the accident, taken with the results of the circuit tests proves that the flashing light mechanism and associated circuitry were working before the accident.
He further said that he has never encountered a situation where all evidence of a fault disappears after the accident. All the evidence shows everything to be normal and there has been no incident of a signal failure where the lights have failed to flash at this crossing since this accident. Even an intermittent fault will eventually become permanent if it is not attended to and nothing has been attended to other than the matters that are referred to in the various reports and they have all been situations where the lights have flashed continuously. Looking at all of the fault report forms from 1991 to 1999, they are only about reports of the lights flashing continuously, there has never been a report of the light not flashing.
It was also put to Mr Ursich that there may have been dust on the lights. He said that in his opinion, it was extremely unlikely that the flashing lights were not clearly visible due to having dust on them. They have done tests in the past about such a matter and it needs an extremely thick film of dust to have any real adverse effect on the visibility of the lights.
The plaintiff did not call any witness who contradicted the evidence and the opinions of Mr Ursich, nor the evidence and the opinions of Messrs Grenfell and Leederer. The only expert witness called by the plaintiff was Mr Simms and his expertise was confined to calculations of times and traffic matters and his opinion from his own observation that there was a delay in the commencement of the lights flashing.
In the face of that technical evidence, the plaintiff sought to persuade me, by means of the evidence of lay witnesses and of Mr Simms' observations, that there was a delay in the lights commencing to flash or they flashed for too short a period or they did not flash at all.
Mr Simms is a chartered consultant engineer who's report is contained in Exhibit 5. He provided evidence in relation to distance measurements and his own observations made on 4 December 1996 when he personally attended the Esperance crossing. He does not have specific qualifications in electrical circuits and engineering, nor in railway crossing warning systems.
On 4 December, he stationed a video camera on the verge in Hardy Road diagonally across the road from the railway crossing. He then went to the crossing and, as a train came down the track, he took those photos which are numbered 13, 14 and 15 in his report. His evidence was that those three photographs demonstrate what he saw on this day, that is to say, the train crossed the contact point but the lights did not commence to flash until many seconds had elapsed. Photograph 15 is the photograph that he took the instant the lights commenced to flash, however, he did qualify the words "the instant" and said that he was alternating between looking at the lights and looking through the lens of the camera and the lights may have flashed for a little while before he noticed. His evidence was that in photograph 14, the train can be seen to be past the contact point and yet his observation was that the lights were not flashing. He conceded that the telephoto lens tends to make things in the photographs look closer than they really are and distorts the relative positions of things in depth and conceded the point made later by Mr Davey, another expert called by the defence that there could be an error of parallax. In his report, Mr Davey describes that as:
"Also, even though there is a power supply box situated to the right of the railway line, the person taking the photograph from the railway level crossing would have been unable to accurately judge the position between the moving train and the power box. This is know as error of parallax and means that the position of the two objects (namely the train and power supply box) relative to each other would be distorted. That is to say that from the particular vantage point where the photographs were taken by the photographer, it cannot be said with any real degree of accuracy at what point in time the train passed the contacts on the track."

In answer to this, Mr Simms said that this could be judged by looking at the shadows on the track. He said while he was there, he could see the shadow coming toward him and he could see it on the ground, however, the shadow of the train cannot be seen in the photographs. The shadows that are in the photographs are from the trees.
Later in his own home, Mr Simms watched the video he had taken at the crossing and, using a stopwatch, noted that the lights flashed for 33 seconds until the train arrived at the crossing and he reported:
"Based on the train travelling at a constant speed of 13 km/h and a time delay of 33 seconds between the signals commencing to flash and the train reaching the intersection, the train would have travelled approximately 119 m between these two events [that is to say, 13 km/h ÷ 3.6 x 33 = 119 m].
It is possible that the train was decelerating and that the average speed was higher than predicted above, thus effecting the distance travelled in the 33 seconds between the signals starting to flash and the train reaching the intersection. The train driver involved in the accident states that he was travelling at about 20 km/h prior to the intersection and if this speed is assumed as an average for the distance travelled between the signals initiating and the train reaching the intersection, the train would have travelled approximately 183 m during the time the signals were flashing based on the 33 seconds measured above. In this case, the train is still well past the contactors before the lights begin to flash.
These two estimates of the distance travelled whilst the signals were lit are both significantly less than the measured distance between the contacts and the intersection and this indicates that the signals currently installed do not initiate as soon as the train crosses the contacts but some seconds later."
This evidence is obviously of great significance because if it is correct something is seriously wrong with the lights. It could of course only be a beginning and one would have thought that the plaintiff would then seek to support it with some evidence as to an explanation for how this could have happened but they did not and the defence expert evidence is that this could not have happened. In the face of Mr Davey's evidence and given the evidence of the experts from the defence as to how the system works, I cannot accept that there was the substantial delay in the commencement of the lights flashing.
There is a parallax error in viewing the photographs. So far as the shadow is concerned, that cannot be seen in the photographs and while I have absolutely no doubt that Mr Simms is a resolutely honest witness, the fact is that he was trying to do several jobs at the one time and that small piece of observation, as unreliable as it must be, could not possibly affect the other evidence that I have in relation to this matter.
So far as taking 33 seconds is concerned, Mr Davey then watched the video that Mr Simms had taken, from which there are similar still photographs being photographs 11 and 12 in Mr Simms' reports. In photographs 11 and 12, it appears that a Volvo car is pulled up at the crossing and that that would obstruct Mr Simms' view of the crossing and only that. However, when Mr Davey watched the video, he was able to say that ahead of the Volvo is a 4WD vehicle. It is also the case that there is a distance from the railway line to the white line at which the vehicles stop and, therefore, it is simply not possible to say when the train reached the crossing and there is too much room for error.
In any event, even if it was only 33 seconds on the basis of the evidence of Mr Simms and Mr Miller as to the time it would take a road train to get over the crossing from Hardy Road, that is sufficient time to see the lights and get out of the train's way.
Mr Robert Davey is the principal of Motor Vehicle Accident Consultants and was called by the defendant. He provided information as to the time it would take a prime mover travelling at various speeds to stop and, at five kilometres per hour, he said it would take 2.14 seconds and at 10 kilometres per hour, 2.99 seconds. Furthermore, at five kilometres per hour, the distance it would need to stop would be 2.53 metres and at 10 kilometres per hour, 6.24 metres. It follows that once the road train driver saw the crossing lights flashing, if travelling at five kilometres per hour, it would take him just over two seconds to come to a stop and, by that stage, he would have travelled three metres.
In Davey's opinion, having seen the photographs, it is apparent that the point of impact between the prime mover and the train was on the left rear side of the driver's cab and given that point of impact, which I accept, it is his opinion that the prime mover had crossed the railway line by no more than three to four metres. The distance between the white stopping line on the road and the rail line is five metres and the distance between the two rails is one metre.
The time taken for the road train to get across the crossing entirely (from the stop line before the crossing to one metre past the second railway line travelling at five kilometres per hour) would be 26.6 seconds. This is based on there being five metres from the stop line to the railway line, one metre between the railway lines and allowing for one metre past the railway line which equals seven metres. Added to this is 30 metres for the length of the truck giving calculations based on a 37 metre distance.
Turning now to the plaintiff, he is a 28 year old sub‑contractor truck driver who took possession of his road train only a few weeks before this accident. The prime mover weighs 10 tonnes, his load was 45 to 50 tonnes and the entire rig weighed about 80 tonne and was about 30 metres long.
At the point where the plaintiff stopped in Hardy Street preparatory to turning right into The Esplanade, he was faced with a set of crossing lights which on the map are specified "Mast D". Before then pulling out, he did a visual check to make sure there was no other reason for him to stay there. He said that if the lights had been flashing, he would have stayed at Hardy Street because if he pulled out from Hardy Street and then could not get through the crossing lights, his prime mover would have been blocking off Hardy Street and The Esplanade. Traffic that comes from his left on The Esplanade comes at a very fast pace around a bend and there is always a fear that that traffic will not be able to stop and even if it were able to stop, he would be blocking off the road and that would be inconsiderate. Once the turn has been commenced, he would not stop unless there was a train coming but he denied that he did not look at the crossing lights because he had so many other things to attend to.
When he commenced his turn, the lights definitely were not flashing. He proceeded on and then he said the nose of the prime mover would have been about two to three metres across the line when he heard the train blow its horn and he knew that the train was coming. He put his foot on the accelerator but did not travel much further and his vehicle was struck by the train. He believed that it was behind the turntable, and not at the point where the vehicle appears from the photographs to have been struck, that the vehicle was struck. The vehicle was pushed in front of the train so that it eventually collided with Mast B. The plaintiff said that his speed as he crossed over the crossing would have been about 10 kilometres per hour.
The plaintiff said that before the accident, he also saw a truck with a prime mover and at least one trailer parked in Harbour Road travelling from the harbour and it seemed as though it was going to go straight ahead, that is to say, over The Esplanade. Of course, once he straightened up on The Esplanade it would have been on his right.
As to his speed at the time, he agreed that in his answers to interrogatories, he had said that his speed as he approached the crossing was five kilometres per hour and he accepts that as the correct position but said he was really guessing as to his speed. He agreed he could stop in two or three metres.
He further agreed that in his statement to the insurance company, he said:
"Crossing the railway line about 10 m into the turn, it was clear for me to go. The railway lights were not flashing and no train was visible on the 40 to 50 m of track which is not obstructed by dense scrub and trees."
He agreed that he was not specifically looking at the edge of trees waiting for a train to come out because the warning lights were not flashing and the first time he saw the train was when it sounded its horn and, by then, he was on the crossing itself.
He agreed that it was possible that the horn was sounded by the driver of the train 100 metres up the track and that it was possible that he did not hear it. He may possibly have had his radio on and certainly would have had his windows closed.
In cross‑examination he agreed that if he were in a position similar to that in photograph 5, it is possible that either his mirror, his internal strut or his air snorkel obstructed the view of Mast D.
Then I asked some questions and the following exchange took place:
"... I just cannot understand this business about the lights and I can't understand - before this day had you done that turn before?---Yes.
Can you see the flashing lights from Hardy Street?---From Hardy Street.
In your - in a truck, your truck, can you see the flashing lights? Do you know?---You would - if they were flashing it would be possible to see them. I'm not sure - which masts?
Any mast. If you're at Hardy Street and you say, "Once I'm committed to the turn" - "I don't commit to the turn unless I know I'm pretty sure I can keep going." That's what you have said, haven't you?---Yes.
To do that, wouldn't you need to make sure that you could see the - I can't quite understand whether you're telling me you could see the traffic lights - the train lights from Hardy Street, or whether you're saying you couldn't?---Before I left?
Yes?---It just depends on - there's a lot of factors it depends on; what position I was pulled up at at the time. If I pulled up and they were directly blocked, like from the air cleaner snorkel or the beam or the main cab chassis itself was blocking one or - it wouldn't have been blocking both of the masts, the light masts, but - - -
It wouldn't be blocking both of them?---It wouldn't have been blocking both of them.
But if A is not blocked can you see - would you be able to see if A was flashing from Hardy Street?---I think you might be able to, but once I'm committed to the turn - I mean, the reason - once I have left that intersection there I'm not going to keep going if there's a train coming.
No, I understand that and I'm not suggesting to you - I'm just trying to work out - - - ?---Yes.
I wouldn't have thought this was something I would have to make a judgment about, quite frankly. I would have thought this is something that everybody could have measured and somebody could have told me. But apparently not. So what I'm trying to say to you - well, at what point do you know for sure, as you're coming around there, whether the lights are flashing or not?---Unless you pass - well, just - at what point is sort of hard to say. At any point as you're going around there you're just doing a visual check of the whole area and that's one of the things you look at, is the mast and the light poles and - - -
But what I'm saying is presumably you have done that dozens of times?---Yes.
And so have loads of other truck drivers?---I was satisfied that the lights weren't flashing when I left Hardy Street, if that's what you're trying to get at.
Yes?---Yes.
But how can you say that if you can't tell me that you could see them?---I may have been able to see them. I'm not - - -
I see, so - - - ?---I'm not saying I could or I couldn't see them.
If you couldn't see then you couldn't have been satisfied, could you?---That's right, so I must have been able to see them, but I'm not sure - it's sort of hard to explain but when you're in the truck cabin you have got the trucks with the cab structures that are on your left and your right. You actually move yourself physically forward and back in the seat so as you're looking forward past the beams and back again as well you have got to do the same with your rear vision mirror so you can see.
All right. Don't talk about this day then. Let's talk about normal practice. Would you say normal practice is not to leave Hardy Street if you see the lights flashing?---Yes.
And to check and make sure - to check about the lights. Is that something that a truck driver would do?---Yes, definitely, yes. It's quite obvious that the railway line is there and it's obviously a hazard and you know you can't get across there at any great speed, so - and with the amount of traffic that's around, once you're pulling out of there you're going to cause a few problems if you pull out in front of people and so forth."
After that, further cross‑examination of the plaintiff took place and he did say that at some point once he had left Hardy Street, the lights at Mast B would have been clearly visible to him and while it was possible that he did not see the lights flashing even though they were flashing, he did not believe that was true and he said "I wouldn't think so, actually".
The plaintiff confirmed that he did not see the train until he was on the railway line and he had not looked up the track looking for a train because there was no warning light to say that anything was coming.
He agreed that it would take approximately 30 seconds for his entire rig to clear the railway crossing and, on this day, it took him 15 to 20 seconds to get to the spot where he was struck by the train.
The first independent witness called by the plaintiff was Mr Robert Jones. Immediately before the collision, he was driving his campervan south on The Esplanade. His wife was a front seat passenger and his three children were rear passengers. It was his intention to cross the railway crossing, but at the last minute, he turned left to go to the harbour and, at that time, he was travelling at about 30 kilometres an hour. At the last minute, he remembered a fishing spot in Harbour Road and turned to the left. As he looked south on The Esplanade, the crossing lights were not flashing but he could see a vehicle that must have been the plaintiff's vehicle pulling out of Hardy Street.
He was about five per cent through the turn when he heard the bang and saw the train hit the cab of the truck. At that time, the front wheels would have been just over the line and the cab was probably still actually on the line and he observed the train to push the truck until it "cleaned up" the signal lights and the box and then stopped. Initially, as he watched the train hit the truck, he did not look at the lights, but 20 seconds later, he did when he mentioned to his wife "The lights aren't working". He then pulled around the corner and was going to stop but he saw a number of people arrive and so he continued on to the picnic lunch with his family.
He said that there were no lights flashing on the crossing, he was very sure of that because he was going to head in that direction himself.
There were no other vehicles in the vicinity at the time of the accident. He did not recall seeing a truck on the western side of Harbour Road, nor was there any road train on the port side of Harbour Road. In his estimation, the distance between Harbour Road and the railway crossing was about five to 10 metres roughly.
He did not hear a train whistle blow, but he put that down to there being a very strong sea breeze and, with the noise of his vehicle and the children's noise, he probably would not hear it.
When he said to his wife "The lights aren't working" it was 20 seconds after the collision, he was not further into his turn because he had stopped when he saw the accident, not a complete stop but slowed right down to almost a stop. He would not be 100 per cent certain that he actually said the words "Look, the lights aren't working" but that is what happened.
Mrs Jayne Jones is the wife of the previous witness and was a front seat passenger in the campervan being driven by her husband on 29 February 1996. Just before the Harbour Road intersection, she looked to her left and saw a grassed area where some people were having lunch and, as she was looking in that direction, she heard her husband say "Oh, look at that" and she looked out of the window and saw the train pushing the truck. She marked her initials on Exhibit 2 at the point where their vehicle was on the road when she saw the train hit the truck and it can be seen that her husband has also put his initials and there is a little difference between how far in to the turn they are and where they are on the road. Immediately before she looked to her left the lights were not flashing nor when her husband spoke to her but when the truck hit the train and she saw that she did not look at the lights.
They finished their turn and went on to the jetty for lunch. When they came back, the crossing lights were flashing.
She did not see the impact of the train on the truck, but she did see the truck being pushed along the line.
As to any vehicle on the port side of Harbour Road, she did not remember seeing another vehicle until after the accident happened and then people came from everywhere.
She did not hear the train at all and did not hear the train horn but did not agree that she was looking away to the left for a significant period of time prior to the turn by her husband into Harbour Road. She did not remember a conversation with her husband just as they turned left at the time the accident was taking place about the lights.
She agrees that she had discussed this matter with her husband and, on the way home, they heard discussion on a radio station about the matter and her husband stopped the car and rang the radio station to tell them what he saw.
Mrs Glenys Ellis was holidaying at the Dempster Street Caravan Park in Esperance in February 1996. At about 1.30 pm on that day, she had occasion to walk across The Esplanade, she looked to the railway crossing and the lights were not flashing. A small white car travelled down across the crossing toward her and she looked toward this small car and then heard the crash. There was another truck at Harbour Road and she had thought to herself that they could have an accident and, when she heard the crash, she originally thought the two trucks had collided. She did not hear the train or see any lights or hear any bells or anything and, when she looked back, the crossing lights were not working.
However, immediately after the accident, she told Mr Grenfell that she could not recall whether the lights were working, that she was 140 metres from the crossing and that she was distracted by the three road trains manoeuvring in the area. And in a police statement, she also said she did not see if the lights were flashing or not. What she was able to confirm was the existence and placement of two road trains on Harbour Road, a white one on the port side which she said was starting to pull out to the crossing and a brown road train on the inland side, intending to turn right into The Esplanade.
Mr Bryan Walker lives at 93 The Esplanade, which is on the eastern side of Hardy Street and looks down on to the railway crossing. He was unable to say whether the lights were or were not flashing immediately prior to the collision but the submission of the plaintiff's counsel is that from the whole of his evidence, the most probable inference is that they were not working.
He also confirmed the existence of a second road train on the inland side on Harbour Road.
The plaintiff's counsel said that Mr Walker's evidence should be viewed in the light of the fact that the defence case was that these lights were flashing for 30 to 40 seconds.

Mr Walker said and it was not disputed, that he could see Mast A very clearly from where he was sitting at the time of this accident and then he said:
"At any time, say, in the five or 10 seconds before the crash, did you have occasion to look at Mast A?---Before the crash? Only what I was observing initially with the general traffic movement and the train coming through. I looked two or three times and I couldn't make out whether they were going or not. It was - and it wasn't a case of being difficult to see, it was just a case of I was just confused, you know. I thought they should be going, "I should be able to see them clearer than what they are if they" - I just assumed that they were going because there was a train coming so - but I couldn't see them. Normally, they are very obvious."
Then, at T172, the following exchange took place:
"So I wondered, but I don't know whether the lights were on or not?---No, well, see, normally, you have a very clear view of the lights going and this gentleman was in my lounge room when he saw them as well. You can see them quite easily.
Yes?---On this occasion, and that's why I was confused because I just assumed they should be going - "Why can't I see them clearly?" - and then the truck - the car drove through, so I think I even - I think I put that in my statement, but I just assumed then that maybe they're not going because the car didn't even slow down or show any caution or anything."
He agreed that when the road train got level with Mast D, it blocked out Mast A altogether.
In his statement to the police, he said "I cannot say with any certainty that the level crossing lights were working prior to the collision" and that is what he is saying now.
Mr John Ashby lived on the corner of Hardy Street and The Esplanade, almost opposite to Mr Walker. He was called to give evidence that on occasions he had observed the lights were not flashing when trains came through. I do not accept Mr Ashby's evidence on this matter but there is a matter on which I do accept it and I will refer to that later.
Under s 79C of the Evidence Act, an affidavit by a Mrs Jillian Plew was tendered despite the defendant's objection and, of course, she was not cross‑examined. In her statutory declaration, she says that she was standing on The Esplanade talking to a group of people, looking toward the crossing. She saw a truck which must be the plaintiff's truck turn in to the crossing and at the same time, there was another truck turning right from Harbour Road. She saw the train hit the truck and, at the time of the accident, the flashing level crossing lights were not working and neither were the warning bells. The lights started to work after the accident.
The defence called the train driver Mr Michael Davern, and his assistant, Mr Robert Doig. Mr Doig was aggressive and, in my view, deliberately evasive and I put no reliance on his evidence at all.
Mr Davern is a Locomotive Operator Level 5, which is the highest level that can be reached. He said that he blew his horn twice, he was warned by his partner that the road train was not going to stop, so he applied the emergency brake and, as he said "the rest is history".
He can recall Mr Doig calling out "There's a truck on my side and it looks like it's coming to a stop". He did not look to the truck because his assistant's job was to look to that side and his job was to look straight ahead and to the left. He did blow his horn the second time when he was told the truck was about to stop. He was then told "No, it's not coming to a stop, it's coming through, it's going through the lights" and it was at that point that he put on his emergency brake. He received that second command when he was about 20 metres or less from the crossing.
As the train driver approaches the light, the fact that the crossing light is flashing is obvious to the train driver. On the side of the same light that is seen by the road user, there is a white patch and the same light that flashes to the road user flashes white to the train driver. He said that he saw the flashing light and he also saw another car come to a stop.
He hit the side of the cabin and it tipped over and the fuel tank split.
Mr Davern is probably wrong about another car pulling up at the lights. Nevertheless, he appeared to me to be as honest as the other lay witnesses but much more experienced and with more reason to be ensuring that the lights were working than all but the plaintiff and he said that they were working.
With the one exception, the plaintiff's witnesses were all honest witnesses doing their best to tell me the truth. By the end of the plaintiff's case, despite a slight sense of unease about Mr Jones' evidence, I thought that probably the lights did not work. However, once I heard the largely unchallenged evidence of the defence, it became obvious that to be satisfied on the probabilities of the accuracy of the evidence of the plaintiff's witnesses would mean it would have to be subject to great scrutiny: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588.
Mrs Plew's evidence without cross‑examination on its own would never have been sufficient. Mrs Ellis has made a prior inconsistent statement and in the statement to the defendant's investigator, she said that she did not see if they were working or not and she did not hear the train at all before the crash. Furthermore, when the crash occurred and she heard it, she was not looking because her immediate assumption was that two road trains, the one in Harbour Road and the one coming from Hardy Road, had collided with each other.
So far as the plaintiff's evidence is concerned, this was and is an extremely difficult and hazardous intersection and I will refer to that again later and he had a number of things on his mind as well as the lights. To his left, he had the potential of traffic coming at speed around a bend, traffic to whom he was supposed to give way. He also ran the risk of blocking the intersection and then when he straightened up, he had a vehicle on his right in Harbour Road. It is necessary to look at the photographs to see just how close Hardy Street and Harbour Road are to each other, one on either side of the railway line. Even though he told me that the lights were not working, in the end, I think he was telling me that that was his opinion rather than that he had actually saw that the lights were not working and actually noted that they were not working.
So far as the evidence of the other witnesses are concerned, Mr and Mrs Jones turned left into Harbour Road but were not able to say that there was a road train parked there whereas all the other witnesses knew that it was parked there. Their attention was actually on other matters and that is made clear by what they were doing immediately before they realised there had been a collision and immediately afterwards.
Mr Walker was not prepared to say that the lights were not flashing.
It is clear from Mrs Jones' evidence that she and her husband heard debate about this matter on the radio in Esperance. Also from newspaper clippings that were inadvertently put before me it is obvious that this was a topic of enormous debate in the Esperance area until slowly, what happened was that the witnesses moved from not seeing the lights to the lights were not working.
On reviewing the evidence, I have slowly come to accept defendant counsel's submission that what people expect is some sort of noise, that is, with bells ringing or some other sound to indicate that the lights were working. There was no noise. It was completely silent and then, the first thing they heard was the sound of the collision between the train and the road train or, alternatively, the first they saw was the collision between the train and the road train. Once the collision occurred, it is unlikely that they then looked to the lights to see if they were flashing. It is more likely that their attention would be on the crash.
In the circumstances, I reject the evidence that the lights were not flashing and I accept the evidence of the defence that the lights did flash. Accordingly, it follows that the driver of the train did not fail to notice that they were not activated.
Additionally, these signal lights were regularly maintained and there is not a shred of evidence to suggest that they were not.
Once it is found that the lights were working, given the evidence of Mr Ursich and Messrs Simms, Davey and Miller and on the basis of the findings that I have already made within the body of the judgment, the plaintiff has failed to satisfy me on the probabilities that the defendant failed to ensure the contacts on the railway track which activated the signal lights were an insufficient distance from the crossing to give motor vehicles including heavy prime movers, sufficient time to pass through the crossing prior to a train's arrival.
As to the failure to instruct train drivers to drive sufficiently slowly when approaching a crossing to enable vehicles to pass safely through the crossing prior to the train's arrival at the crossing, we now know that immediately prior to this crossing, on the evidence of the Hasler Role, the train was travelling at 12 to 15 kilometres per hour. Furthermore, the train has the right of way not only in law but in common sense. It is a lot easier for a road vehicle than for a train to stop and, obviously, most road users and I am sure even the plaintiff would accept this, would take that to be the wise and sensible thing to do.
So far as the failure to install warning bells at the crossing, this is normally done where there is a reasonable amount of pedestrian traffic because it is considered that most road vehicle users would not hear the warning bells. The plaintiff said that he sometimes had his radio or CD on, that his windows were wound up because of the air‑conditioning and because the vehicle is sound‑proofed and putting in warning bells would not have made a difference.
As to the matter of boom gates or other protection, Mr Ursich said the defendant does not itself determine the level of protection at level crossing, that is whether a particular crossing should have flashing lights, boom gates or just simply a stop sigh. It relies on the policy and determination of the Railway Crossing Protection Committee ("RCPC").
The RCPC's policies and guidelines for railway crossing protection are set out in the "Railway Crossing Protection in WA - Policy and Guidelines" document dated September 1996 which is approved and agreed to by the Commissioner of Main Roads Western Australia and the Commissioner of Railways.
The RCPC is a body that was set up by the Western Australian government in 1964 following several serious accidents at railway level crossings. The then Cabinet appointed an inter‑departmental committee to review and make recommendations on the safety requirements for all safety crossings in Western Australia. The RCPC is chaired by the Main Roads Department Western Australia ("MRWA") and funding is provided under the Main Roads Act. Funding for railway crossing protection is provided by the government as road funds and administered through the MRWA.
Until very recently, the RCPC consisted of only one committee with representatives from MRWA, from the defendant, Police Department and Shire. The committee has been restructured into two sub‑committees now.
The policy and guidelines have been determined by the RCPC based on information and expertise provided to it from the various committee members and its consultants and it makes a determination on what needs to be done at a crossing based on the reports and information provided to it and the final decision as to what level of protection there should be at a particular crossing is determined by the committee.
Based on RCPC guidelines, the key governing factor as to whether a level crossing should be protected by boom gates or flashing lights is determined by the weighted conflict between the number of train services and road vehicles encountered over a set period of time at the level crossing. The other factor that is taken into account is whether multiple railway tracks exist for more than one train approaching the crossing at the same time.
So far as boom gates are concerned, MRWA usually initiates the process because it has the information and has agreed to take responsibility for this. It carries out its investigations or a consultant is used and the crossing is considered in accordance with the RCPC guidelines. As part of that process, MRWA obtains from the defendant the details of a number of train services that pass over the level crossing over a specified period of time, then does a traffic count and a site survey. They then do the necessary calculations to ascertain the weighted conflict. The RCPC then makes the final determination whether boom gate protection is justified and the maintenance and upkeep of boom gates is shared equally between MRWA and the defendant.
The crossing with which we are concerned did not have a weighing factor sufficient to warrant boom gates.
Furthermore, the defendant has been reinforced in this view by surveys that were done subsequent to this particular accident, not only on this crossing but on a number of crossings in Esperance as a result of extremely adverse publicity in the Esperance area. Independent consultants were employed and the only recommendation made was in relation to another crossing in Esperance and the recommendation was that advanced warning signs should be erected.
On the basis of that evidence, it would not be possible for me to find that boom gates should have been installed here or, rather, that it was negligent of the defendant not to ensure that boom gates were installed.
Furthermore, as to par (i) and par (j) of the Particulars of Negligence, it appears on the evidence that I have that regular review of crossings and regular reporting is maintained and it would not be possible to say that the defendant was negligent in relation to those matters.
However, having said that, there is one matter that does concern me and it arises out of the evidence of Mr Ashby and the evidence of the plaintiff and that is that, I suspect although I am unable to say on the probabilities that this is correct, but I suspect that there are too many hazards at this intersection. As I have already said, Harbour Road and Hardy Street are very close to each other, one on either side of the railway crossing. The plaintiff had to ensure that he did not block the Hardy Road intersection, that he was not struck by a vehicle coming around a bend from his left, on the other hand, when he eventually got across the railway crossing, it may have been necessary for him to give way to a vehicle on his right. While I did not accept Mr Ashby's evidence about the lights not working, in fairness to Mr Ashby, I do not believe that that is what he came to court to give evidence about. Mr Ashby considers this intersection to be dangerous and if, in the end, he had to say what he thought the lawyers wanted him to say to get attention, then he was prepared to do that. No doubt, he should not have done that but that does not mean that what he says should not be listened to and considered. It may not be correct but it seems to me that it should be considered. He said (T180):
"... I would sometimes go over the crossing and because I had to look right, because The Esplanade goes around a corner - cars roar down there - I would get across the crossing and sometimes I couldn't tell whether the lights were going or weren't going and I would look up and I would see the train. I had many close encounters.
KENNEDY DCJ: How do you mean you couldn't tell whether the lights were going or not?---When you go through, when you're going through the crossing, you had to go across the crossing pretty fast to beat the traffic coming down the hill and, you know, you would just think to yourself "God, I should have looked" or something like that and you just, you know - and then you would take off down the road and you wouldn't even look behind or see ...
All right, but that's a different matter to the lights not working, isn't it? That's the situation of this whole area being a bit dangerous?---Yes."
The issue of there being simply too many hazards was not properly explored before me and I am not in a position to say that on the probabilities, there were too many hazards but I certainly have a suspicion about that. In any event if I thought on the probabilities there were too many hazards I could not say that that was the fault of the defendant and not something that should have been foreseen by the combination of agencies. To make a finding on that would require more evidence and submissions than I have.
In all the circumstances, I am not satisfied on the probabilities that the defendant was negligent in failing to construct and maintain a safe crossing or failing to regularly inspect the crossing to ensure it remain safe for all road users or failing to install crossing guards or boom gates.
So far as the allegation in relation to vegetation is concerned, it seems to me that once I have found that the lights were flashing and that there was sufficient time for the plaintiff to see those lights and stop his vehicle, even if there were heavy vegetation, that would not amount to negligence by the defendant. There are many situations in which, because the crossing is in a built up area, the visibility is very low indeed and it would be beyond the defendant's control to do anything other than install lights and a notice in advance that the lights were being approached which is what has happened here.
Nevertheless, in relation to this, there was sufficient visibility but someone in the plaintiff's position was always going to be dependent upon the crossing lights. It would not be possible throughout Western Australia for the defendants to cut down foliage at every railway crossing and make sure that it was cut down. More than probably, they do have a responsibility to ensure that, in those crossings that have no lights but not to the same degree in those crossings that do have lights.
In any event, the plaintiff himself said that when he was about 10 metres into the turn, he could see 40 to 50 metres of track. There is nothing about the state of the vegetation that leads me to the view that the defendant has been negligent.
For all these reasons, the plaintiff has failed to make out any of the particulars of negligence.
As to the counterclaim, the defendant alleges that the plaintiff was negligent and it is my finding that the plaintiff was negligent. The plaintiff ignored the flashing lights. He did not keep a proper lookout. I have already said that I have a suspicion that it was very difficult for the plaintiff but that does not mean that he did not fail in his duty to keep a proper lookout and to obey the flashing lights and to put that ahead of any other concerns that he had for problems in the immediate area.
In all the circumstances, the plaintiff is responsible to the defendant in damages. I understand that that has been agreed at $15,101.60 with interest and I will hear the parties in relation to the matter of interest.