Twentieth Super Pace Nominees Pty Ltd v Australian Rail Track Corporation Ltd
[2006] VSC 353
•27 September 2006
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
major torts
No. 2003 of 2003
| TWENTIETH SUPER PACE NOMINEES PTY LTD (ACN 005 855 327) Trading as Specialized Container Transport | Plaintiff |
| v | |
| AUSTRALIAN RAIL TRACK CORPORATION LTD (ACN 081 455 754) | Defendant |
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JUDGE: | GILLARD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9, 13-16, 19-23, 26-30 June; 25-28 July; 4, 14-16 August 2006 | |
DATE OF JUDGMENT: | 27 September 2006 | |
CASE MAY BE CITED AS: | Twentieth Super Pace Nominees Pty Ltd v Australian Rail Track Corporation Ltd | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 353 | |
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GOODS TRAIN DERAILMENT – Claim by train operator against network owner – Allegation of track buckle – Allegation of rolling stock defect – Claims and cross claims in contract and tort – Indemnity clause – Dispute concerning cause –Dispute of fact – Track defect caused derailment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Colbran QC with Mr P. Booth | Wisewoulds |
| For the Defendant | Mr C. Blanden SC with Mr H. Redd | McCabe Terrill |
TABLE OF CONTENTS
Parties................................................................................................................................................... 1
The Dispute......................................................................................................................................... 3
Causes of Action................................................................................................................................. 4
The Investigations............................................................................................................................. 5
Defendant’s occupation of the track.............................................................................................. 9
Agreement between the parties..................................................................................................... 10
The plaintiff...................................................................................................................................... 10
The train............................................................................................................................................. 11
Time.................................................................................................................................................... 13
Temperature...................................................................................................................................... 13
The track and gradient.................................................................................................................... 14
The Derailment................................................................................................................................. 15
The investigation............................................................................................................................. 18
The offending brake beam............................................................................................................. 19
Damage observed at the scene....................................................................................................... 20
Good rail network practice............................................................................................................. 25
Track works – December 2001....................................................................................................... 26
Observations – re track movement............................................................................................... 30
Bump noted prior to derailment................................................................................................... 32
Previous track buckle at point of derailment............................................................................. 32
Rail creep........................................................................................................................................... 33
Radius of curve................................................................................................................................. 38
Maintenance history........................................................................................................................ 41
Causes of action................................................................................................................................ 43
A. Plaintiff’s causes of action.................................................................................................... 43
B. Defendant’s causes of action................................................................................................ 48
Witnesses........................................................................................................................................... 49
Mr Lovro Ljubanovic.................................................................................................................. 49
Phillip Dunne............................................................................................................................... 50
Anthony Russell Fidock............................................................................................................. 50
Steve Balfour................................................................................................................................ 51
Douglas Cummings.................................................................................................................... 51
Ross Mitchell................................................................................................................................ 52
Ronald Kempster......................................................................................................................... 53
Brian Pitt....................................................................................................................................... 53
Ian Domleo................................................................................................................................... 54
Carolynne Southern.................................................................................................................... 55
Brian Busch.................................................................................................................................. 57
Gregory Murray.......................................................................................................................... 58
John Furness................................................................................................................................. 58
Kyle Russell Mortimer................................................................................................................ 60
John Scott...................................................................................................................................... 63
Graham Templer......................................................................................................................... 67
The cause of the derailment........................................................................................................... 68
The Plaintiff’s version..................................................................................................................... 78
(a) Prior history of track......................................................................................................... 83
(b) Re-Sleepering works......................................................................................................... 84
(c) Inadequate Ballast............................................................................................................. 85
(d) The curve, the gradient and the setting......................................................................... 87
(e) Creep................................................................................................................................... 89
(f) 25 January 2002 – a hot day............................................................................................. 90
(g) The derailment itself......................................................................................................... 91
(h) Lack of prudent engineering practice............................................................................ 92
Prima facie conclusion on plaintiff’s case................................................................................... 93
Conclusion – plaintiff’s case and defendant’s case................................................................... 98
Case in negligence........................................................................................................................... 98
The defendant’s case..................................................................................................................... 101
A. Contractual claims.............................................................................................................. 101
B. Negligence claim.................................................................................................................. 101
Conclusion....................................................................................................................................... 101
Attachment “A”.............................................................................................................................. 102
Attachment “B”............................................................................................................................... 103
Attachment “C”.............................................................................................................................. 104
HIS HONOUR:
This proceeding is concerned with claims made as a result of a train derailment which occurred in country Victoria on a hot day in January 2002, resulting in extensive damage to the rails, sleepers and surrounding areas and to the rolling stock. The train operator claims that the derailment occurred as a result of the defective condition of the rail track, whereas the occupier of the rail network asserts that the derailment occurred because of the defective condition of the front bogey of a wagon. Each party claims damages suffered as a result of the derailment. An order was made splitting the issues in the proceeding and this trial is concerned with the issue of liability.
Parties
The plaintiff, Twentieth Super Pace Nominees Pty Ltd (“the plaintiff”), carries on business under the name of Specialized Container Transport. Its role in rail transport is that of logistic manager. It arranges the movement of freight by rail. It owns some equipment, including goods wagons, but normally engages the services of others to provide locomotives, staff and goods wagons. Its business includes transporting freight interstate by rail.
The defendant, Australian Rail Track Corporation Ltd (“the defendant”), carries on the business of managing rail network, which involves servicing and maintaining the network. By head lease commencing 1 July 1999, a statutory corporation called Victorian Rail Track leased certain rail track, including an area in and near Dimboola in the western part of Victoria, to the Director of Public Transport under the Transport Act 1983, and by sub‑lease the latter leased certain track to the defendant. As the occupier of the track, the track was under the control and management of the defendant. It had obligations to ensure that the track was in a safe and serviceable condition.
It is necessary to identify another company which had responsibilities with respect to the state of the rail track at the place of derailment. The company, Works Infrastructure Pty Ltd (“Works Infrastructure”), entered into a Track Maintenance Alliance Agreement with the defendant in 1999, although the actual agreement itself was not executed until 24 March 2000. The agreement noted that the defendant operated a train network system in this State and was required to maintain the network. The network included not only the rail lines, but level crossings, sleepers, ballast and all the matters that were essential for a rail network. Works Infrastructure agreed to perform the work of maintaining the said network in this State. The agreement established an alliance between the two contracting parties to maintain the network in accordance with the terms of the agreement. Clause 2.1 provided:
“The parties enter into this agreement as an alliance for the maintenance of the assets in accordance with the alliance principles.”
The agreement established what was known as an Alliance Board and an Alliance Management Team. Each party had two members on the Board and the Management Team. The agreement provided that the maintenance of the network was to be performed by Works Infrastructure and would involve carrying out the work and supplying materials. The Alliance principles included achieving an efficient, competitive and open access interstate freight rail market in Victoria, achieving ongoing reduction of maintenance costs, and ensuring that the assets were kept in a good condition. It is clear from the agreement that the overall servicing and maintenance of the network was to be a co-operative effort between the parties. It was part of the responsibility of the Alliance Management Team to manage the provision of the services in accordance with the agreement, and the Team was responsible to the Alliance Board.
Works Infrastructure was not joined in this litigation. On the other hand, it had the prime responsibility for the condition of the rail network and the track at and surrounding the point of derailment. In the month preceding the derailment, it performed re‑sleepering works at the point of derailment and surrounding areas. The works destabilised the area, affecting track geometry and the integrity of the track. If there was a defect in the track which caused the derailment, then Works Infrastructure’s servicing procedures are questioned. In other words, Works Infrastructure may have an interest in the outcome of this proceeding and this fact is relevant to the credibility of those employees of Works Infrastructure who gave evidence in this proceeding.
The Dispute
The facts which led to the Court proceeding can be briefly summarised. The plaintiff operated a freight train from Perth to Melbourne designated “3PM3S”. On 25 January 2002, the train was proceeding in an easterly direction in western Victoria and passed through a place called Kiata, which is to the west of Dimboola, at about 4.10pm. It was a hot day. The ambient temperature was in the order of 350 Celsius.
The train proceeded down a decline and passed through a sweeping left-hand curve. As it did so, the fifteenth wagon on the train was derailed, followed by the wagons numbered 16 through to 31 (inclusive). The wagon after the thirty-first wagon did not wholly derail. The last three wagons were left standing. The wagons that derailed created and suffered substantial damage. As a result of the derailment, the main standard gauge line from Melbourne to Adelaide was blocked. It remained out of service until about 6.00pm on the following day, being 26 January 2002.
The actual track was owned by Victorian Rail Track, which is a statutory corporation established under the Rail Corporation Act 1996 of this State. However, at the relevant time, the occupier of the track where the derailment occurred was the defendant.
As a result of the derailment, the plaintiff suffered substantial damage to the wagons. The claim is in the order of M$1.4.
The plaintiff alleges that the derailment occurred because of the state of the track. It asserts that a buckle in the line developed as the train passed over the point of derailment, resulting in the front left wheel of the front bogey of a wagon rising and passing across the top of the rail to the left.
As a result of the derailment, the defendant also suffered substantial damage to the rail network. Its claim is in the order of $338,000. It asserts that the derailment occurred because the side of a brake beam dislodged, fell down onto the rail and, in effect, tripped a wheel, causing the wagon to derail. Hence the dispute.
The defendant filed a counterclaim.
The main factual issues in the proceeding were what was the cause of the derailment, and who was liable for it?
Causes of Action
The statement of claim, including its amended versions, is hardly a model of drafting and is confusing. It did not properly plead the claims. Plaintiff’s counsel were not responsible for it. During the course of the plaintiff’s opening, the causes of action and issues were identified.
The plaintiff brings a claim for breach of contract. The parties accepted that they had a contract which regulated their relationship. The document was called a “Draft Track Access Agreement No. 5”. It is a lengthy document.
In a nutshell, the plaintiff alleges that it was a term of the agreement that the defendant would provide a safe and proper rail track, and that in breach of that term, it did not do so and, as a result, the plaintiff suffered substantial damage.
In the alternative, the plaintiff claims an indemnity pursuant to an express term of the contract. The term in question, however, has an escape clause for the defendant. The indemnity fails if the defendant proves that the cause of the plaintiff’s damage was a breach by the plaintiff of the contract.
The second cause of action is in common law negligence. The defendant admits that it owed a duty of care at the relevant time to the plaintiff to avoid causing it property damage. The questions are, first, was the defendant negligent and, secondly, if so, was the negligence a cause of the plaintiff’s damage?
The defendant has also pleaded two causes of action. The first is a breach of contract claim. The defendant alleges that the plaintiff was in breach of express terms of the contract in relation to the condition of the rolling stock, and, in the alternative, the defendant claims an indemnity pursuant to an express term of the contract. The indemnity operates in the same way as in the plaintiff’s claim, namely, that the defendant is entitled to an indemnity, but there is the escape clause open to the plaintiff. If the plaintiff proves that the cause of the defendant’s damage was a breach of contract by the defendant, it is not liable.
The defendant’s second cause of action is in common law negligence. The plaintiff admits that it owed a duty of care at the relevant time to the defendant to avoid causing it property damage. The same questions arise as in the plaintiff’s claim in negligence.
The factual issue in the proceeding can be simply stated. What caused the train to derail? The plaintiff contends it was the state of the track. The defendant, for its part, contends it was the defective state of a wagon which caused the derailment. Many witnesses were called. A number of reports were prepared. All of them were investigators’ reports. They ranged over the issues, referred to evidence from a variety of sources, and contained opinions as to the state of the plaintiff’s wagons, the defendant’s rail network, and the cause of the derailment. No report was solely an expert’s report. Some witnesses gave expert evidence, others gave a combination of direct and expert evidence, and most sought to answer the issues that the Court had to decide. Much can be said in favour of the cases put forward by each party. Some of it is pure theory. In the end, the real issues concerned the inferences which could be drawn from the proven facts. These were ultimately matters for the Court.
The Investigations
Much of the evidence was not in dispute. However, the inferences to be drawn from the proven facts were very much in dispute. The derailment occurred between 4.10pm and 4.15pm on Friday, 25 January 2002. That evening, the plaintiff engaged two expert investigators, namely, Mr Lovro Ljubanovic and Mr Philip Dunne, to attend the scene, investigate the track and rolling stock, and report to the plaintiff. They arrived around about midnight on 25 January 2002, and carried out investigations that night and the following morning after the sun rose. Four employees of the defendant also travelled to the derailment scene. They were Messrs Rod Kempster, Brian Busch and Hart, and Ms Carolynne Southern. They arrived at approximately 9.00pm on the evening of the derailment. They carried out investigations, took steps to clear the rail and carry out repairs, and continued their investigations after sunrise the following day. Mr John Furness, of Works Infrastructure, arrived at the site between 10.00‑11.00am the following day and made a number of observations.
The circumstances under which the investigations were carried out by the various persons who arrived at the scene were far from ideal. First, because many of the observations were made at night, it was dark, and there was limited lighting. Secondly, works had commenced to remove debris and the wagons that had been derailed, and to re‑open the line. Thirdly, the observations made the following morning in daylight were made after a long night of investigation.
Repairs were carried out as a matter of urgency to clear the line and re‑install the rail track for the passage of trains. These were carried out and completed by 6.00pm on 26 January 2002, and trains thereafter passed through the area at a slow speed.
On Friday, 1 February 2002, various persons attended at the site and also inspected some of the rolling stock at the Kiata siding and at Dimboola. Three persons engaged by the plaintiff attended on its behalf to carry out the inspection, investigate and report. Mr Noel Ramsay, an employee of the plaintiff, was also present. The three who investigated the derailment for the plaintiff were the said Messrs Ljubanovic and Dunne, and Mr Ross Mitchell. On that day, Mr Kempster and Ms Southern attended on behalf of the defendant and were joined by an investigator engaged by the defendant, Mr John Scott of Worley Pty Ltd.
Each of those persons gave evidence in the trial, other than Mr Ramsay. It was very apparent to the Court that shortly after 1 February 2002, each of the persons who performed an investigation had formed an opinion as to the cause of the derailment. Those retained by the plaintiff formed the opinion that the cause of the derailment was a track buckle, whereas some of the defendant’s employees and Mr Scott formed the view that the derailment occurred because of a brake beam falling under one of the wagons and catching under a wheel of the wagon, leading to its derailment. Having adopted those positions, each of the investigators gathered further information which each was convinced supported the theory advanced. It will be necessary hereafter to say something about the credibility of each witness. However, I think it is a fair comment to make that each was very aware of his or her brief and was convinced that the conclusion reached in February 2002 by each was the correct one.
Further information was gathered after 1 February 2002, and various reports were prepared by or on behalf of each of the parties. The majority of the reports are in the form of an investigator’s report and intrude into the domain of the fact finding tribunal in this case, namely, the judge. A number of reports opined as to the cause of the derailment. I do not accept the evidence of the conclusions. In the end, it is a matter for me to decide what caused the derailment. Fortunately, as this case was not before a jury, I informed the parties early in the trial that I would accept into evidence the complete reports, but firmly stated that I would rely only upon the reports for evidence which was direct evidence, and evidence which was truly expert evidence, to assist the Court in reaching its conclusions. I was assisted by the exposition of the various hypotheses put forward in reaching my findings on the facts. I do not criticise the witnesses who prepared these reports, because it is clear to me that each took the view that his or her brief was to consider all evidence and to reach a conclusion as to the cause of the derailment. But it is necessary, yet again, to state briefly what the principles are in respect to expert evidence.
As the tribunal of fact, the judge is entitled to rely upon his general knowledge, common sense and judicially noticed notorious facts. In addition, the judge is entitled to rely upon the basic principles of science, including physics and, in particular, the laws of motion. However, in respect to some issues, and especially inferences that may be drawn from proven facts in a specialist field, the Court needs the assistance of an expert. An expert must be qualified as an expert either by study and/or experience in the field. Sometimes an expert not only gives expert evidence, but is an investigator who can give direct evidence of a fact. A witness may give direct evidence of anything perceived by him through any of the five senses, although the usual ones are what the witness has seen and heard. An example of this is the pathologist in a murder case who, having performed the autopsy, is able to give direct evidence of observations made and then give an expert opinion as to the cause of death. Often, expert medical witnesses who are engaged to give medico-legal evidence, also fall into the category of giving direct evidence as a result of examining the plaintiff. In the majority of cases, the expert gives evidence based on facts proven by others. The facts must be identified and must be independently proven, otherwise the building blocks of facts upon which the expert relies to state an opinion, fall away.
An expert witness, like any other witness, gives evidence and does not decide the issues. Many of the witnesses who prepared reports in the present proceeding, and who expressed an opinion as to the cause of the derailment, combined the roles of investigator and expert witness. For example, one witness who investigated the derailment, Mr Ross Mitchell, opined in his report as to the ambient temperature at the place and time of derailment. His evidence of the temperature is not expert evidence and is not admissible. He considered and summarised the source materials and then gave his opinion based on the probabilities. Those questions are factual matters for the Court. There are examples in most of the reports of the various investigating witnesses, of the witness expressing an opinion on an issue which is for the Court to decide.
I do not criticise the witnesses for intruding into the fact finding area of the Court. Most of them had investigated derailments before and, no doubt, had prepared reports setting out their findings as to cause. The views expressed in areas where the Court was to make the decision I note, but in the end, of course, it is a matter for the Court to decide the particular issues. Their evidence, of course, is of value where it is truly expert evidence that the Court needs in order to make a finding.
In considering many of the witnesses, it is clear that they have an interest in the proceeding. The plaintiff engaged three independent experts to investigate the cause of the derailment, and it is apparent that they formed an opinion early in the piece that it was due to the state of the rail. Thereafter, they concentrated on proving that. On the other hand, the defendant took it upon itself to have an internal investigation and called a number of witnesses who were responsible for a report. They were employees of the defendant. Those responsible for the defendant’s report have an interest in the outcome of the proceeding. One has to approach all of that evidence with considerable care, and scrutinise it closely. In addition, Works Infrastructure’s employees have an interest in the outcome of the proceeding. Some five weeks prior to the derailment, it was carrying out re‑sleepering works in the area, including at the point of derailment, and by performing that work, destabilised the area. If there was anything wrong with the track on 25 January 2002, the immediate reaction is that the recent works may have played their part in the derailment. In addition, Works Infrastructure was responsible for the maintenance of the rail network in the area of the derailment.
I now turn to the facts.
Defendant’s occupation of the track
The derailment occurred on the standard gauge main line between Melbourne and Adelaide. The point of derailment accepted by the parties was situated at a point 384.1km west of Melbourne. The area was located west of Dimboola and approximately 2kms east of Kiata, a small town in the Wimmera. The point of derailment was approximately 80kms from the South Australian border.
The rail track at the site of the derailment was owned by Victorian Rail Track, a statutory corporation established under the Rail Corporation Act 1996. It leased the track, commencing on 1 July 1999, to the Director of Public Transport of this State under the Transport Act 1983. On the same day, the Director of Public Transport, pursuant to a lease, leased the track to the defendant.
It is accepted by the parties that at all relevant times, the track between Dimboola and the South Australian border was in the occupation of, and under the control of, the defendant, who was obliged to keep the track in a proper, safe and serviceable condition. In order to carry out the servicing and maintenance works, the defendant engaged a company called Works Infrastructure. The latter was responsible for keeping the track in a safe and serviceable condition.
Agreement between the parties
In June 2000, the plaintiff and defendant entered into an agreement which was entitled “Draft Track Access Agreement No. 5”. The parties accepted for the purposes of the proceeding that it was a binding agreement, pursuant to which the defendant permitted the plaintiff to use the railway network from Melbourne to the South Australian border.
The agreement contains many terms. Each party has relied upon express terms and alleged that the other party has breached the terms. It will be necessary to refer later to the terms of the agreement.
The plaintiff
As stated, the plaintiff conducts the business of arranging the movement of freight by rail. It owns some goods wagons, but normally engages the services of others to provide locomotives and goods wagons. It has a large complex at Altona, in the State of Victoria, and regularly operates a goods train carrying freight from Altona to Perth. The usual practice is for the train to carry substantial freight in covered wagons from Altona to Perth. The train, during the relevant period, then returns from Perth, usually unladen. The train passes through a suburb of Adelaide on its way to and from Perth. It takes about two and a half days for the train to travel the distance between the two capital cities.
The plaintiff at all relevant times engaged a company called Gemco Rail Pty Ltd, which has its head office in Western Australia, to maintain, service and repair the rolling stock used by it. The maintenance services provided by that company commenced on 1 July 2001. The company maintained the plaintiff’s fleet, which totalled approximately 300 wagons. Gemco also has business premises in Adelaide and Melbourne. As a train left Melbourne, Adelaide or Perth it was visibly checked as it slowly left each destination, to determine whether there were any signs of problems or defects in the wagons.
The wagon that first left the rail at the point of derailment was a wagon owned by the plaintiff, which bore the identification ABFY2500J (“wagon 2500”). It had been the subject of repairs and maintenance, and evidence was given to that effect. The evidence revealed that it had been regularly serviced and maintained.
The train
The train consisted of two locomotives and 32 wagons. Immediately behind the locomotives were a fuel tank wagon, a partially loaded goods wagon, a partially loaded flat wagon, and 29 empty ABFY wagons which were owned by the plaintiff. Each of the 29 ABFY wagons was an enclosed louvered van fitted with high speed bogies. Pursuant to the agreement with Gemco, the latter serviced, maintained and repaired the wagons. The train designated 3PM3S had travelled from Perth. The train was under the control and operation of Freight Australia pursuant to an agreement with the plaintiff. Freight Australia provided the two locomotives and drivers. There is no suggestion that the driver’s conduct in any way contributed to the derailment. Prior to the derailment the two locomotives, which each weighed 127 tonnes, the locomotive’s fuel tanker and the first 13 wagons passed over the point of derailment. The next wagon, which was wagon 2500, derailed. An ABFY wagon is a large closed wagon with two large sliding doors situated on each side halfway along the wagon. The total length of the wagon is 23.749 metres from coupling to coupling. Situated at a distance of 1.746 metres from the end of each coupling is a wheel bogey, which has two wheels on each side. Each wagon weighed approximately 30 tonnes unloaded. The train had a total mass of 1,238 tonnes and an overall length of 795 metres. The distance from the front of the train to wagon 2500, which was the first derailed wagon, was 366 metres.
It is necessary to describe a bogey. Attached to these reasons marked “A” is a diagram of a bogey. The bogies on wagon 2500 were of the industry standard, three piece type, which were primarily developed in North America. They comprised three parts, namely, the main frame, the bolster, and the two side frames. The bolster is a beam which at each end fits into a side frame. It is supported on springs and moves up and down on those springs in the side frames. The central part of the bolster has a circular plate that primarily supports the wagon above it. The two side frames are supported by four wheels which are on two axles. The wheels are assembled in pairs, in what are called wheelsets, and are fixed two to an axle. The axle extends beyond a wheel to the bearings. The axle rotates with the wheels. It is the axle bearings which are fitted into the bogey side frames. A bogey has a mass in the order of four tonnes. Because after the derailment, it was observed that the brake beam at the rear of the front bogey on wagon 2500 had fallen away and was damaged, it is necessary to describe a brake beam. On each bogey are two brake beams and levers, which are identified in Attachment “A”. Attached to these reasons, marked “B”, is a photograph of the brake beam. The brake beam is approximately 1.7 metres long and has a mass of approximately 75kgs. Attached to each end is a paddle. The ends of the brake beam paddles are located inside a pocket to a distance of approximately 25mm. The brake beam can move laterally within those pockets. Attached to the brake beam are the brake pads, which lock on to the surface of the wheel. There is a brake rod which joins the brake beams of each wagon and runs along underneath each wagon. This brake level applies the force that moves the brake beam, in turn, to apply pressure to engage and disengage the brake blocks onto the wheels. The brake beam is designed so that it will not come adrift in normal use. The total weight of the actual beam and the associated equipment is in the order of 110kgs.
The brakes are air brakes and if the air pressure is reduced or eliminated, the brakes automatically apply. Indeed, the driver of the locomotive first became aware that the train had derailed when the air brakes automatically applied, as a result of the break in the air line serving the brakes that occurred when the wagons derailed.
Each of the wheels on the wagon has a flange, which is located on the inside of the wheel as it moves on a rail. Its purpose is to ensure that the wheel remains on the rail, and to combat lateral movement.
The train had left Perth approximately two and a half days prior to 4.10pm on 25 January 2002. It reached Adelaide after about two days. There were four train drivers, who shared the duties involved. When the train came into the yard in Adelaide, it was subject to visual inspection, and when it left it was also subject to visual inspection. The evidence revealed that nothing was observed to suggest that there was anything wrong with any of the wagons. The train took approximately four to five hours from Adelaide to reach the point where it derailed.
Time
The derailment occurred at between 4.10pm and 4.15pm on Friday, 25 January 2002.
Temperature
There was no evidence as to the actual temperature at the place and time of derailment. The evidence revealed that temperatures were recorded at various times on that day at Nhill and Horsham. The parties accept as a fact that the maximum ambient air temperature at the time and place of the derailment was in the order of 35.30C. As a rule of thumb, on a hot sunny day, a rail temperature would be between 150C to 200C hotter than the ambient temperature. Accordingly, the rail temperature at the point of derailment would have been in the order of 500C to 550C, although it must be pointed out that the actual temperature would be influenced by cloud cover and cooling wind, if there was any. There was no evidence that it was a cloudy day or that there was any cooling wind.
The track and gradient
The area where the derailment occurred was on the Australian interstate railway network connecting Melbourne through to Adelaide and Perth by standard gauge rail. The track was constructed on timber sleepers and comprised 60kg/m rails, which were continuously welded. Continuously welded rail is now common practice, but care must be taken with respect to its design, installation and maintenance because there are no expansion gaps to deal with the expansion and contraction of the rail. The speed limit at the point of derailment was 110km/hr. It had been increased on 4 September 1999 from 100km/hr. The derailment occurred at the bottom of a grade where a left-hand curve was reaching a straight stretch, and just prior to an unsealed road level crossing used by a local farmer. Rails expand when heated. Further, they are elastic and will stretch when pulled and shorten when compressed. The rails are welded in continuous lengths. This gives a smoother ride. However, using welded rails brings with it the risk of track buckling. The sleepers were timber. They were fitted with base plates, which were spiked into the sleepers, and the rails were attached to the base plates. Pandrol clips were applied to attach the rails to the base plates. These clips apply a constant clamping force that resists rail movement. In addition, dog spikes are sometimes used to resist rail creep. It is important to provide crushed rock ballast around the sleepers and the rails. Ballast spreads the loads from the sleepers and is placed under and around them. Ballast resists sleeper movement. It is important to put ballast between the sleepers inside the rails, and ballast must be located on the shoulders hard up against the end of the sleepers, in order to avoid lateral movement.
Experience shows that track caused derailments occur frequently on curves. Design of track around a curve is important. It is important to have super‑elevation, that is, where the outer rail is higher than the inside rail, to combat the centrifugal forces moving the wheels out from the curve. The curve radius must be ascertained in order to determine a safe speed. Further, it is important that rail creep is kept to a minimum. If there is an excess of rail this can cause a rail to buckle. Rail creep must be monitored. Rail creep does occur on gradients.
Super‑elevation is used to assist safety and comfort in balancing loads on curves. Tighter curves and faster speeds require more super‑elevation. As a general proposition, at 110km/hr the balanced super‑elevation must be 173mm for an 825 metre radius curve, and 187mm for a 765 metre radius curve.
Where the top alignment of two adjacent rails varies, it creates changing super‑elevation, and changes in super‑elevation over a distance are called “track twist”. Any twist must be maintained and managed within tight limits, as rolling stock and bogies do not accommodate large twist variations. Twists are difficult to see and measurements are taken regularly to maintain track within the limits set. A track twist of significance will be noticed by a train driver and reported. It is evidence of a problem which, if left unattended, could be the recipe for a disaster.
It is important to maintain the rail track. Timber sleepers that are old and in a state of disrepair must be removed and replaced. The work must be performed with much care, as the activity creates track instability.
The Derailment
The point of derailment was fixed at a distance of 384.1kms west of Melbourne. The train was proceeding towards Melbourne in an easterly direction. It was on a single track. At various times of the day, trains travelled along the track in different directions. In January 2002, and for many years previously, goods trains travelling to Perth were loaded with freight and the trains returning were unladen. The train passed through the 386km point, which was near Kiata, proceeded on a straight stretch and then passed through a sweeping left‑hand turn, followed by a right‑hand turn, and then proceeded downhill in a sweeping right‑hand turn until it reached the bottom of the decline, where it started to swing around to the left approaching a straight stretch towards Melbourne. The gradient was 1 in 50. The train travelled downhill for 1.3kms to the point of derailment. The wheels of the wagons were traversing in a gradual left sweep and were then confronted with a small reverse turn as the rail straightened. As the train was sweeping around the left-hand bend, the fifteenth carriage derailed. That was wagon 2500. The derailment was approximately 100 metres west of the level crossing. Attached, marked “C”, is a photograph looking down the track as it swept to the left. The level crossing is located at the bottom of the sweeping left turn, behind the tree.
The train, after passing through Kiata, travelled on a straight stretch with a slight incline for about 1km, and then for the next .5km started to rise and go through a left-hand sweeping bend. It then reached the 385.5km point and began to travel down a 1 in 50 gradient, going initially fairly directly and then through a right‑hand bend and a left‑hand bend, reaching the point of derailment. When the train got to about 150 metres west of the point of derailment, the track declined at a gradient of 1 in 99 and the train proceeded to go through the curve leading to a level section. It proceeded on a level plain for approximately half a kilometre, at which stage the track began to rise.
At the time of derailment the train was travelling at 110km/hr. It was believed by the defendant that the radius of the left‑hand sweeping curve at the point where the train derailed was in the order of 825 metres. If it was 825 metres, then the speed of the train was in accordance with acceptable levels. On the other hand, if the radius was less than 825 metres, then the speed was excessive in the circumstances. Excessive speed through a curve creates more force on the track, thereby having a tendency to affect track stability and, in particular, lateral stability.
The train proceeded down the decline towards the point of derailment, travelling at 110km/hr, and passed through the point of derailment. The two locomotives, the fuel tanker and the first 13 wagons continued along the track. The fourteenth wagon after the fuel tanker was wagon 2500. It derailed at a point identified as the 384.1km post. It derailed in an unusual manner. This was the opinion of the investigator – experts whose field of expertise was rail networks and derailments. This is especially so when one considers that as the train proceeded to go through the sweeping left‑hand curve, the centrifugal forces would be pushing the wheels to the right, as in the direction of travel. If the wheels were to leave the track, one might think that the centrifugal force would cause the wheels to go to the right. Of course, the super‑elevation would have some effect upon that force. However, the front two left‑hand wheels in the direction of travel left the inside rail and travelled in a line to the left of that rail, but close to it. This, of course, pulled the wheels off the right‑hand rail. However, the back bogey wheels of wagon 2500 remained on the track. The next three wagons derailed at or about the same spot, and the wheels of the leading bogey of each these wagons derailed in exactly the same way, and fairly close to the point where the first set of wheels had left the track. Evidence observed at the scene leads to the conclusion, on the balance of probabilities, that each set of the front left‑hand wheels of the four wagons derailed over a distance of approximately 37 metres.
Four wagons derailed in exactly the same way. The front bogies were derailed but not the rear bogies. The wagon behind those four wagons parted from the train, and the next 11 wagons left the track in the vicinity of the 384.1km mark and went to both the left and right-hand side of the track, destroying the track for approximately 150 metres between the 384.1km point and the 383.7km point. The track was damaged, as were 11 wagons.
When the wagon parted from the last of the four wagons which had initially derailed, the air supply line was broken and brakes were automatically applied to all wagons. The four wagons that had initially derailed continued in the direction of travel, slightly to the left of the rails, and remained in an upright position until eventually the train came to a stationary position. Those four wagons were still coupled to the wagons that had not derailed.
The last three wagons remained upright. The first was derailed, the second‑last wagon’s front bogey derailed, and the last of these three wagons remained on the track. Those three wagons stopped across the point of derailment and on either side of it. In total length, they were in the order of slightly over 70 metres.
When it stopped, the front of the train was approximately 800 metres to the east of the point of derailment.
Considering that the train at the point of derailment was proceeding through a sweeping left‑hand curve, the centrifugal forces were pushing the train to the right in the direction of travel. Considering that they were the forces applying at the time, it was accepted by most of the witnesses that it was surprising that the train had derailed to the left rather than to the right.
The investigation
Four persons employed by the defendant arrived at the scene at about 9.00pm. Some salvage works had already commenced by then. However, they were able to make some observations, although it was dark. There were spotlights located on the southern side of the train, which is the side where the Western Highway travels along the side of the rail. A number of wagons had come to a stationary position close to the northern edge of that highway. The defendant’s personnel were Mr Rod Kempster, who was the safety and technical investigations manager, Ms Carolynne Southern, who was a mechanical engineer, and Mr Busch, who was the safety compliance manager. They commenced to make investigations soon after their arrival. Assisting them was a young employee, Mr Hart. Ms Southern had a video camera and took some film in the dark. They remained at the scene for the night and made further inspections at first light. The plaintiff engaged a derailment expert, Mr Lovo Ljubanovic, and he arrived at the scene at approximately midnight, as did another consultant, Mr Phillip Dunne, whose field of expertise was rolling stock. They carried out investigations at the scene.
The circumstances of the inspections and investigations that night were not ideal. Some five hours had passed before the defendant’s representatives arrived to make observations. They and the plaintiff’s consultants made inspections at night. They then continued early the next day. Whilst observations were made, inadequate records were kept of distances, and some of the observations and photographs were not helpful. In particular, photographs of the marks on the rail and the sleepers were lacking in definition.
The parties returned on 1 February 2002 to inspect the area and also the rolling stock, both at Kiata and Dimboola. The parties got together and discussed the derailment, and views were put by consultants employed by the plaintiff and also personnel from Freight Australia that the cause of the derailment was the state of the railway track. On the other hand, representatives of the defendant, including a representative from Works Infrastructure, were of the view that the most probable cause was a falling brake beam on wagon 2500. I have little doubt that the provisional views held by the various persons on 1 February 2002 thereafter influenced the approach of all people involved in investigating this derailment. Each set out to prove that his or her conclusion was correct. Of course, the employees of the defendant had an interest in the outcome, as did personnel from Works Infrastructure who had carried out some sleeper works in the month prior to the derailment.
The offending brake beam
When the defendant’s employees arrived at the scene at 9.00pm on 25 January 2002, they observed that the four wagons, the first of which was wagon 2500, were in an upright position with their front wheels derailed and their rear wheels still on the rails. They observed that below the front bogey of wagon 2500 was a displaced brake beam. The left end of the brake beam was still inside the pocket on the left side of the bogey. However, the right side had come away from the pocket, was located under the back axle of the front bogey and was in a damaged condition. The brake rod that ran underneath the length of that wagon, and which had been attached to the brake beam, had been forcibly pulled apart where it was adjacent to the axle. There were markings on the axle which led to the conclusion that, at some point, the brake rod had rested on the axle. However, in my opinion the amount of damage to the axle surface showed that the brake rod was not on that axle for any length of time. In reaching that conclusion, I rely, inter alia, on the photographs of the axle. At the end of the brake beam is what is called a paddle. There was no suggestion that the brake beam had broken or parted in any way. However, at the tip of the end of the brake beam paddle there was a deep, recent mark, which showed that a wheel of the front bogey had passed over the end of the paddle, very close to its end.
The defendant’s representatives made their observations at about 9.00pm and photographs were taken. The consultants engaged by the plaintiff observed the state of the brake beam at about midnight. Unfortunately, nobody at the scene, or within the next seven days, closely examined the brake beam. The beam was discarded and eventually found on a tip in Geelong on 5 February 2002 and examined by a civil engineer, John Scott, whose employer, Worley Parsons, was retained by the defendant to assess the general maintenance condition of the plaintiff’s wagons and the damage to same, and to assist in the search for the cause of derailment, with particular attention to the rolling stock. The brake beam was not produced in Court. The photographs of it are poor and it is difficult to draw conclusions from looking at the photographs, other than in relation to the mark on the end of the paddle.
Damage observed at the scene
Ms Southern and the other representatives of the defendant on 25 and 26 January 2002 observed certain markings on the rails and the sleepers after the point of derailment, and a mark on a level crossing some kilometres west of the point of derailment. Some notes were made at the time and eventually a document was prepared by Ms Southern setting out the marks that had been observed. The marks were also observed by those retained by the plaintiff. There was no dispute between the parties as to the presence of certain marks. However, what the marks mean is a matter of debate.
Ms Southern gave evidence that she, with Messrs Kemptster and Hart, walked back along the track towards Kiata, that is, to the west. They walked approximately two kilometres. At a level crossing at Kiata, which was a bitumen covered crossing, a small mark on the surface of the bitumen, parallel to the right-hand rail looking east, was observed. Ms Southern stated that the mark appeared to be fresh. She said that the mark was measured as being 560mm to the left of the right‑hand rail. The mark was referred to by the defendant’s witnesses as being some evidence of a dragging brake beam. In my opinion, the mark provides no evidence of a falling brake beam some kilometres from the point of derailment.
Located approximately 100 metres west of the point of derailment was a steel pin, about 50mm in length and with a diameter of about 15mm. None of the reports placed any significance on that pin. Ms Southern gave evidence that it looked as if it had suffered reasonably fresh damage. In the course of questions asked by the Court, she stated that it was her view that the pin had come from the brake beam assembly, suggesting that it had been a cause of the collapse of the assembly prior to the point of derailment. I do not accept the evidence of Ms Southern. There were a number of features about her evidence and the way in which she gave it which raise real doubts as to her credibility. In my view, she tailored her evidence in the witness box in order to support the case of the defendant. No other person who had investigated the derailment placed any significance on that pin. There were other features about Ms Southern’s evidence which, in my view, lead to the conclusion that her loyalty to her former employer was of far more importance than her oath to tell the truth. I am satisfied that the pin had nothing to do with the derailment. There is no evidence that it was part of the particular brake beam assembly, and there is no evidence that the pin fell from this train.
The mark on the bitumen surface at the level crossing was referred to by a number of the defendant’s witnesses as being a piece of evidence supporting the theory that the brake beam had become dislodged some distance prior to the point of derailment. In my view, however, the theories put forward in regard to that aspect are purely speculative and have no foundation. First, if the beam had fallen out prior to the derailment, it would have been suspended above the surface until the brake rod had broken, and then the end of the brake beam, being the paddle, would have rested upon the top of the rail. It is difficult to see how in those circumstances, it could have produced a mark on that bitumen surface. Secondly, it was only a very small gouge mark. Thirdly, and importantly, it was at a distance inside the right-hand rail which would have had it so far away from the right-hand wheels of wagon 2500, that at no stage thereafter could the beam have played any part in the derailment. Finally, there is no evidence between that point and the point of derailment, on the surface of the sleepers or ballast, to suggest that the brake beam was dragging in some way on the surface between the rails. The distance to the point of derailment was at least 2kms.
I find, on the evidence, that the mark on the bitumen at the level crossing near Kiata was not caused by the brake beam of wagon 2500.
The point of derailment was ascertained by reason of a heavy diagonal mark on the top of the left‑hand rail in the direction of travel. There is no doubt that a wheel left the track, moving from right to left at this point. It is most likely that the mark was caused by one of the two left wheels on the front bogey of wagon 2500.
A number of other marks were noted on the rails and the sleepers over the next 53 sleepers, that is, to the east of the derailment. The distance is about 37 metres and from then on, many sleepers were broken, and rails dislodged and damaged. The damage extended for in excess of 100 metres.
I accept the document prepared by Ms Southern as being a reasonably accurate depiction of the marks which were observed, but I do not accept the description of some of them. The marks were observed by other witnesses called by the parties and were not the subject of dispute as to their location. The evidence can be summarised as follows:
· Moving from west to east along the track, taking the sleeper at the point of derailment and calling it 0, there were 53 sleepers noted thereafter. At sleeper 0 was a sharp line in a diagonal direction from right to left across the left-hand rail. It was generally accepted that this was made by one of the front left-hand wheels of the front bogey of wagon 2500 crossing the rail at the point of derailment.
· Over the next 32 metres there were five further diagonal marks across the head of the rails. Because the left-hand front bogies of wagon 2500 and the following three wagons went across the head of the rail to the left, all told there would have been four sets of wheels moving across the head of the rails over this distance. The fact that there were six marks, and not eight, suggests that some wheels were above the head as they crossed the line.
· There were two marks on the heads of the rails on the right-hand side at 25 metres and 28.7 metres east of the point of derailment. In my opinion, on the balance of probabilities, these marks were caused not by the four wagons that initially derailed, but by subsequent wagons. It is noted that some of the wagons did end up on the right side, or the southern side, of the rail after derailment.
· There were a number of marks on the sleepers which, in my opinion, on the evidence, were caused by the wheels crossing the sleepers. Some of the marks were between the rails and some were on the left-hand side of the rail.
· There was a mark on the inside of the right rail on sleepers 5, 6, 7 and 8, east of the point of derailment. It is the defendant’s case that those marks were caused by the dragging brake equipment. Each of these marks were at approximately the same distance to the left of the right-hand rail. These latter marks were approximately 400mm left of the right rail. There was no wheel mark on the sleeper to the left of the left-hand rail.
It was said by Ms Southern that this indicated that these were marks caused by some dragging equipment. However, I do not accept that the absence of any wheel mark on the other side of the sleeper showed that it was not a wheel mark. It is open to infer that when the wheel left the rail at sleeper 0, the wheel was airborne for some distance. The left-hand wheel then came down either on a sleeper or on ballast on the left shoulder. Ms Southern then stated that the appearance of the marks led her to believe that they were not wheel marks. When questioned, she said that that was because of the shape of the mark itself. I observe that the diagram which was prepared by her indicates that the wheel mark on each sleeper was not right across the width of the sleeper. The video film taken on the night after the derailment showed the mark, and it was in fact across the width of the sleeper. It was only on being questioned that Ms Southern then volunteered that the shape of the mark led her to believe it was not a flange mark. Again, in my view, she was tailoring her evidence whilst in the witness box. She made no notes of this shape. It is not mentioned in any of the defendant’s reports. The photographs and films do not support what she says, although it must be accepted that the film and photographs do not enable one to be definite about the shape. Further, when the observations were made on the night, the last three wagons were positioned across this area, which would have made visual scrutiny extremely difficult. I reject her evidence. Mr Brian Busch, who was at the time the safety compliance manager with the defendant, and who inspected the scene, stated that he observed the shape of the mark that night. He stated that he was able to stand over it and look at it. He could not have done so. The last three wagons were situated over the top of the marks. I do not accept his evidence. In my view, he tailored his evidence to support Ms Southern.
Case in negligence
There is no doubt that the defendant owed the plaintiff a duty of care to take reasonable care to ensure that the rail network was in a proper and safe condition to enable the plaintiff to use its trains on the network. I am satisfied that the cause of the derailment was the track buckle. I am also satisfied that there was negligence on the part of the defendant and Works Infrastructure. Without going into any great detail, because of my findings in relation to the contract case, the negligence comprised:
· The carrying out of the re-sleepering works in summer, in an area where there was the potential for a buckle to develop, and the failure to carry out compaction works.
· The creep monitoring system was totally inadequate and contrary to good industry practice and, as a result, the defendant and Works Infrastructure were not in a position to properly monitor any movement in an area where movement might be expected. In regard to the latter observation, there was the history of this area of track and, in particular, the previous 12 months. The gradient, the curve, the straightening of the track and the level crossing, were all matters which should have alerted the defendant and Works Infrastructure to the potential of a buckle developing, especially in the light of the twist problems, the reporting by train drivers of twist problems, and the buckle experienced the year before. The defendant had information which, if it had bothered to examine it, would have raised concerns about the radius of the curve, and it was negligent in failing to re-survey the area when the re-sleepering works were carried out.
Some of the blame must be directed at Works Infrastructure. The inadequacy of the placement and quantity of ballast, and of the ballast profile, were all examples of negligence. It is no answer to say that the re-sleepering works had not been completed. The danger involved in carrying out the works in summer meant that the utmost care had to be taken. The lack of proper compaction in this area in December/January was a recipe for a disaster.
Much of the criticism is directed at Works Infrastructure. It was an independent contractor. However, the relationship between the defendant and Works Infrastructure was something more than that of arms‑length contracting parties. Under their agreement, they had a joint committee which met regularly and made recommendations on repair, service and maintenance of the track. There were representatives of both the defendant and Works Infrastructure on the committee. No argument was advanced by the defendant’s counsel that the defendant would not be liable for the negligence of Works Infrastructure, and that is not surprising. Whilst the general rule is that an entity is not vicariously liable for the negligent conduct of an independent contractor, there is an exception to that rule when the works performed by the independent contractor are part and parcel of an obligation resting upon the entity which employs the contractor. The principle of law is that in certain circumstances, an entity cannot delegate a duty which rests upon it by employing an independent contractor to carry out the duty. There is no doubt that the defendant had the duty to keep the rail track in a proper state of good repair.
The principles concerning a non‑delegable duty of care in relation to the employment of an independent contractor, were discussed in Burnie Port Authority v General Jones Pty Ltd.[15] In that case,[16] the majority of the Court adopted a passage in the judgment of Mason J in Kondis v State Transport Authority.[17] There, Mason J identified some of the principal categories of case in which the duty to take reasonable care is non‑delegable. His Honour identified the common element as:[18]
“The person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.”
[15](1994) 179 CLR 520.
[16]At p.550-1.
[17](1984) 154 CLR 672.
[18]At p.687.
In the Burnie Port case, the majority of the Court went on to observe:
“It will be convenient to refer to that common element as ‘the central element of control’. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.”[19]
[19]At p.551.
Those principles apply here. A train operator on a train network is extremely vulnerable, and is very dependent upon the track owner keeping the track in a good state of repair and safe.
I am satisfied in this case that the defendant cannot rely upon the employment of Works Infrastructure as an independent contractor, and assert that it is not liable for its obligation to keep the track in a state of repair because it relied upon another to do the work. In my opinion, the non-delegable duty of care arises and the defendant is liable for any negligent conduct on the part of Works Infrastructure.
I am satisfied in all the circumstances that the defendant was negligent and that the negligence was a cause of the derailment. The plaintiff is entitled to succeed in its claim in common law negligence.
The defendant’s case
A. Contractual claims
The defendant has counterclaimed against the plaintiff, alleging breach of the contract. In the light of the findings that I have made, the defendant has failed to prove a breach of the contract by the plaintiff. So far as the indemnity clause is concerned, the defendant would be entitled to succeed unless, of course, the plaintiff proved the matters set out in the indemnity clause. I am satisfied that the plaintiff has proven the “escape clause” matters and, accordingly, the defendant’s claim must fail.
B. Negligence claim
Whilst I accept that the plaintiff owed the defendant a duty of care to take reasonable care that its rolling stock did not cause damage to the defendant, I am satisfied that the defendant has failed to prove negligence on the part of the plaintiff, or that the plaintiff caused the derailment. It follows that the defendant’s claim must fail.
Conclusion
I make findings that the plaintiff has proven a breach of contract and is also entitled to an indemnity against the defendant. The plaintiff has also proven negligence against the defendant. I am satisfied, in respect to the causation issues in relation to all claims, that the plaintiff has proven that the defendant was at fault, and that that was a cause of the derailment. The plaintiff is entitled to damages or an indemnity.
The defendant’s counterclaim must be dismissed.
I will hear the parties on the questions of orders that should be made and the future conduct of the proceeding.
Attachment “A”
Attachment “B”
Attachment “C”
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