Wade v Aust Railway Historical Society and Anor No. Scgrg-94-1672 Judgment No. S311

WADE V AUSTRALIAN RAILWAY HISTORICAL SOCIETY (SOUTH AUSTRALIAN DIVISION) TRADING AS STEAMRANGER AND ALEXANDRINA COUNCIL

[1999] SASC 311

JUDGE BURLEY. On 13 October 1991 at about 12.00 noon the plaintiff was riding his motor cycle in a northerly direction on the Middleton to Currency Creek Road (the Airport Road) when he collided with a steam locomotive owned by the first defendant at a level crossing on the Airport Road. Prior to the collision the first defendant’s locomotive was travelling in a south-easterly direction along the railway corridor. The collision occurred between the front wheel of the plaintiff’s motor cycle and the rear of the tender which was situated immediately behind the locomotive. The plaintiff contends that the collision was caused by the negligence of one or both of the defendants and he seeks to recover damages for the personal injury sustained by him. Each of the defendants claims that the collision was caused solely by the negligence of the plaintiff or, alternatively, that the plaintiff had been contributorily negligent. There are contribution proceedings between the defendants.
Before I turn to the pleadings, it is appropriate to state my findings as to the nature of the level crossing at which the accident took place. The Airport Road runs in a north-south direction and the railway corridor across it runs in a north-west south-east direction. That part of the road which crosses the railway corridor is vested in the second defendant. To that extent there is an interruption of the railway corridor which I understand to be Crown Land. The first defendant has a right to occupy, and a duty to maintain, the railway corridor. This much is common ground between the parties.

The Issues as to Liability

In paragraph 10 of the statement of claim the plaintiff sets out the allegations of negligence against the first defendant. It is alleged that there was a failure to keep a proper lookout and that the train was operated without due care or attention.
There is an allegation that the train was driven in such a manner as to create a hazard for road users approaching the level crossing. This is a general allegation which I do not think furthers the plaintiff’s case. It can only be made out if specific allegations of a breach of duty of care are made out.
It is alleged that there was a failure to give any adequate warning of the approach of the train and that the train was driven at an excessive speed in the circumstances. The plaintiff says that the first defendant failed properly to train or instruct its drivers in safe and proper ways of carrying out their duties as a train driver and, in particular, failed to instruct the driver to stop or slow down prior to reaching the level crossing.
The plaintiff alleges that there was a failure to ensure that drivers complied properly or at all with all safety requirements and obligations. This is another non-specific allegation which can only be made out if particular breaches of duty are established.
It is alleged that the first defendant permitted an unsuitable and unsafe locomotive and train to be used on the railway line. This is again a non-specific allegation. It does not seem to me that, by reference to the evidence called by the plaintiff or by reference to any other evidence adduced at trial, this allegation has been either pursued or made out.
It is alleged that the first defendant failed to provide a safe system to ensure that the driver of the train could obtain proper and adequate notice of the approach of motor vehicles to the level crossing.
Further, it is alleged that the first defendant failed properly and adequately to design and/or modify the locomotive so that the driver was afforded a clear and unobstructed view of the approach of motor vehicles to the level crossing. None of the evidence suggests that the first defendant had anything to do with the design of the locomotive, nor was any evidence called which would enable me to make a finding as to whether or not the locomotive could have been modified so as to give the driver a better view of the on-coming road traffic. It seems to me that this aspect of the allegations of negligence has not been pursued by the plaintiff.
By paragraph (k) at page 5 of the amended statement of claim, the plaintiff alleges that the first defendant failed to install or provide adequate safety measures at the level crossing. It is the plaintiff’s case that the first defendant should have provided a barrier over the roadway to prevent motor vehicles entering the level crossing when a train was approaching or that the first defendant should have provided a system of flashing lights or warning lights to alert motorists of the approach of the train.
It is alleged that the first defendant failed to provide any safe system of other warning to motorists, such as by whistle, horn, siren, bells or otherwise. I take it that this aspect of the allegations of negligence means that the warning system was to be fitted at the level crossing rather than to the locomotive.
It is alleged in paragraph (c) at page 6 of the amended statement of claim that the first defendant failed to ensure that persons approaching the level crossing by road had a clear and unobstructed view of any trains approaching the crossing. This allegation of negligence will involve the examination of the extent to which (if any) it was responsible for (and had the right to) prune or remove foliage from the verges of the roadway. The same allegation is made in paragraph (e), but from the perspective of the train driver and the same considerations apply.
Before leaving the plaintiff’s allegations of negligence against the first defendant, I should mention that it was part of the plaintiff’s case against both defendants that there should have been a stop sign placed at the level crossing. It was contended that if the second defendant did not have the right to place the stop sign at the level crossing, it should have asked the first defendant (as the appropriate road authority) to do so and in failing to ask the first defendant to install such a sign, it was negligent. These matters have not been specifically pleaded in the statement of claim, but they are capable of coming within the allegations of negligence respectively maintained against each of the two defendants. However, even if they were not capable of being included precisely within the allegations of negligence, the plaintiff’s case at trial was advanced on such a basis and no objection was taken to a lack of specific mention of such an allegation in the statement of claim by either defendant. I therefore intend to deal with this issue as if it had been specifically pleaded.
In paragraph 3 of the statement of claim, the plaintiff alleges that the second defendant was responsible for the erection of appropriate warning signs alongside the roadway leading to the level crossing. The second defendant denies this assertion. It alleges that the roadside warning signs had been erected by the Highways Department and that the first defendant had erected the warning sign on the roadway immediately adjacent to the crossing. It is common ground that the roadside signs along the southern approach to the intersection have been changed since the accident, but there is ample photographic evidence showing the position of the roadside signs as they were at the time of the accident (see, for example, Exhibit P2). Those photographs also show that the letters “R” and “X” were painted on the road adjacent to one another some distance south of the intersection.
In paragraph (a) at page 6 of the amended statement of claim, the plaintiff alleges that the second defendant “failed to provide appropriate warning approach signs on the roadway leading [to] the railway crossing such as would prevent vehicles entering onto the crossing at the same time as any train approached the crossing”. This is denied by the second defendant. Thus, the issue as to signage is whether the roadside and roadway signs for which, it is alleged, the second defendant was responsible were adequate to give appropriate warning to a motor cyclist of the existence of the level crossing. In addition, the second defendant says that it did not have responsibility for the crossing sign immediately adjacent to the level crossing, that, according to the second defendant, being the responsibility of the first defendant.
It is alleged that the second defendant failed to provide appropriate warning signs on the roadway leading to the crossing.
There is a general allegation that the second defendant exposed the plaintiff to a risk of injury which they knew or ought to have known could occur. This is an allegation which is defeated by its generality.
The plaintiff alleges that the second defendant failed to clear foliage on land owned by the second defendant adjacent to the roadway on the southern approach to the level crossing with the result that road users were prevented from having a clear and unobstructed view of trains travelling along the railway corridor. The second defendant denies that it was negligent in that way. It says, further, that to the extent that the negligence pleaded consists of an allegation of non-feasance against the second defendant, it is not liable because of the immunity from liability which a highway authority has in relation to allegations of non-feasance. The plaintiff asserts that no such immunity applied to the failure of the Council to remove the foliage. In particular, it was argued by Mr Walsh QC, counsel for the plaintiff, that the provisions of Part 1B of the Wrongs Act, dealing with what was formerly the law relating to an occupier’s liability, has abrogated the second defendant’s non-feasance immunity. It was argued that the liability of an occupier is to be determined solely in accordance with the principles of the law of negligence.
Paragraph (d) at page 6 of the amended statement of claim is as follows:-
“(d).. [the second defendant] allowed those approach warning signs on the roadway leading to the level crossing to present in such a state as could lead a person using the roadway approaching the level crossing to believe the railway line was no longer used;”.
If this allegation of negligence is to be an effective part of the plaintiff’s case, it must be demonstrated that it was the plaintiff who was misled in the manner alleged. Since the plaintiff could not remember how the collision occurred, it is not possible for the plaintiff to rely upon this ground of negligence because, assuming I found that the signage was capable of leading a road user to believe that the railway line over the level crossing was no longer used, I would have to find that the plaintiff actually formed that belief. I can make no finding as to the latter because there is no evidence from the plaintiff one way or the other on the point.
The plaintiff has pleaded that the second defendant was negligent in failing to clear foliage, thereby preventing the driver of the train from obtaining a clear and unobstructed view of the roadway. It raises the same considerations as the allegation of failure to clear foliage so that the user of the roadway did not have a clear and unobstructed view of the rail corridor.
Finally, the plaintiff alleges against the second defendant that it failed to give adequate weight or attention to correspondence forwarded to the second defendant by the first defendant expressing concerns at the lack of safety precautions in existence at the level crossing and that it failed to act upon that correspondence. The second defendant denies that it received any such correspondence prior to the accident. What correspondence there is is comprised in Exhibit P8 which consists of correspondence between 28 November 1991 and 2 January 1992 , ie, after the accident. The plaintiff has failed to make out this allegation of negligence.

The Evidence on Liability

In broad terms the evidence on liability may be divided into two categories: the evidence given by lay witnesses and the evidence given by expert witnesses. There were three men in the cabin of the locomotive at the time of the accident. Mr JL Smythe, the driver of the train, Mr GJ Smythe, his son, who was the fireman, and Mr MA Sawyer, who was an observer. The driver’s controls are at the left-hand side of the locomotive and the fireman’s seat is at the right-hand side. Mr Sawyer was seated behind the fireman. The fireman and Mr Sawyer saw the plaintiff’s approach to the level crossing to the point immediately prior to impact. In addition to these eye witnesses, two passengers were called to give evidence: Mr CL Evans and Ms I Copeland. Each observed the approach of the plaintiff to the level crossing. The driver of the train did not see the plaintiff prior to or at the moment of collision because he was seated at the left-hand side of the locomotive cabin.
The expert witnesses, who gave evidence which consisted of a reconstruction of the manner in which the accident occurred based on a skid mark which was left on the road by the motor bike and the damage to the motor bike and train, were Mr Hall, Mr Maddern, Mr Aust and Mr Potts. Each of those witnesses has engineering qualifications and varying degrees of experience in relation to the reconstruction of vehicle accidents. Given that I have had the benefit of evidence from eye witnesses, all of whom I accept as witnesses of truth, I must draw upon their evidence to form the basis of my findings in relation to the way in which the accident occurred. Reconstruction of the events by reference to principles of physics and the application of mathematical formulae which arise from those principles, cannot be a substitute for reliable eye witness evidence. The evidence of the fireman and Mr Sawyer I consider to be generally reliable, as is the evidence of Mr Evans.
Before turning to the evidence, I mention that a view was conducted on the second day of the trial. By that time, the roadside warning signs had been changed and some of the vegetation along the western side of the southern approach to the level crossing had been either removed or cut-back. During the course of the view I took the opportunity to drive a motor car in a northerly direction along Airport Road towards the level crossing from a point about 250 metres south of the level crossing. Even though roadside and roadway signs had been changed, and allowing for the fact that the foliage on the western side of the approach had been cut-back or removed so that an unobstructed view to the west of the rail corridor was obtained at a point earlier than the day on which the accident occurred, I formed the impression that, on the day of the accident, any person approaching the level crossing from the south who slowed down sufficiently to be able to look carefully to the left and to the right at the point where the roadside vegetation ceased, would have had no trouble in identifying that a train was approaching the crossing, at a point at least 100 metres along the rail corridor on either side of the level crossing. It was also apparent to me that when travelling from a point approximately 200 metres south of the level crossing, the vegetation on both sides of the road would have created the impression of a tunnel on the day of the accident.
Mr GJ Smythe (the fireman) gave evidence as to his qualifications and experience in the position of a fireman. In accepting that evidence I find that he was an appropriately qualified and experienced fireman on the day of the accident. In particular, he was aware from his training and experience of the nature of his duties should an emergency arise. So far as the running of the train was concerned, it was his responsibility to maintain the appropriate water levels in the boiler so as to maintain steam pressure “and to maintain a lookout, a vigil on the right-hand side of the train” (T943/16.). When the train approached level crossings it was his duty to keep a lookout on the right-hand side. On the day of the accident, he was seated alongside a window which enabled him to look forward and to the right. His father, Mr JL Smythe, was the train driver. There was also in attendance Mr Sawyer, who was an observer. It is apparently a requirement of the defendant that if the driver and the fireman are related, an independent observer must ride in the cabin with them.
In previous years the fireman had travelled over the route between Mount Barker and Victor Harbor on a number of occasions in varying capacities. On the day of the accident he was “very familiar” with the route.
Not far north-west of the level crossing where the accident occurred, there is another level crossing referred to in the evidence as the Mount Compass crossing. Prior to that crossing, the fireman was seated in the right-hand side of the cabin of the locomotive keeping watch to the right side of the train for motorists. The train proceeded safely through that crossing. After the Mount Compass crossing, the track curves to the left. At the commencement of the curve there is a sign called a “whistle board” on the left side of the rail corridor It is a signal to the locomotive operators to sound a warning whistle in relation to an approaching level crossing. At about that point the train’s whistle was sounded by the driver in the regulation way - a long application followed by a short application followed by a long application of the whistle. At that point the fireman was keeping a lookout ahead and to the right-hand side of the train. Towards the end of the bend, he could see the Airport Road. He noticed to his right a motor cyclist travelling in a northerly direction along the Airport Road towards the level crossing. I quote from the evidence (T993/9):
“Q.... When you first saw the motorcycle can you tell us where it was in relation to the crossing or in relation to any particular feature of Airport Road.
A...... Yes, there is a bend in Airport Road about approximately 250 metres from the crossing and the motorcyclist was about half way around that bend and I could get a very clear view because there is no vegetation at all on that corner.”
He said that at that point the distance between himself and the level crossing was about 150 metres at a point where the left-hand curve begins to straighten out. He thought that the train was travelling at about 60 kilometres per hour. (This is a reasonably accurate estimate because a device on the locomotive recorded the speed of the train as it approached the intersection at 64 kilometres per hour). When he first saw the motor cycle he estimated its speed to be about 100 kilometres per hour. He said, as the train continued towards the crossing (T994/33):
“It ran through my mind that I had seen this motorcyclist, that it was possible that he was on a noisy bike with his head in the helmet so I thought it best to give another warning on the whistle.”

He proceeded to sound the whistle. He operated the train whistle until the locomotive reached the crossing. It was operated in one continuous blast. At the commencement of that continuous blast, the train was approximately 100 metres from the crossing. In the meantime, he said, the motor cyclist had travelled about a further 100 metres. (This is probably incorrect because the train had travelled 50 metres at about 60 kph which would mean that the motor cyclist, the plaintiff, would have been travelling at about 120 kph. None of the witnesses, including the fireman, suggested that the plaintiff had travelled at that speed.) He had not been able to observe the motor cyclist continuously from the point where he first saw it to the point when it was 100 metres south of the level crossing, but he did see the motor cyclist intermittently. I quote again from the evidence (T995/33):

“Q.... You told us that you kept the whistle on for some time. Where were you or where was the train when you released the whistle.

A...... The front of the locomotive was over the roadway.
Q...... Do you mean completely over the roadway.
A...... No, I mean the front of the engine was probably just over the other side of the roadway.
Q...... Where would that place your position.
A...... About ten or so metres before the roadway.
Q...... You released the whistle, did you.
A...... Yes.
Q...... At that stage do you know where the motorcyclist was.
A...... Yes, I do.
Q...... Where was the motorcyclist.
A...... About 60 or 70 metres south of the crossing.
Q...... Had you observed the motorcyclist travelling from the point you had previously described to that point 60 or 70 metres south of the crossing.
A...... Yes.
Q...... Had you noticed any change in his speed.
A...... No, I had not.
Q...... Had you noticed any changes at all in the approach of the motorcyclist.
A...... None.
Q...... At the time when you released the whistle were you still keeping an eye on the motorcyclist.
A...... Yes, I was.
Q...... What did you notice about the motorcyclist.
A...... At that point, I was comfortable with the knowledge that the train had reached the roadway well ahead of the motorcyclist, so, at that stage, it wasn’t of great concern, because I thought, well, you know, we were here well before, he would have had to have seen us before now. So that is why I released the whistle.
Q...... What I want you to tell his Honour is what you saw of the motorcyclist from that point onwards. Did you keep an eye on him.
A...... Yes.
Q...... What did you notice about him. Was there any change, first of all, to his direction of travel.
A...... No, none.
Q...... Was there any change at all to his speed.
A...... None.
Q...... Was there any change to his position on the motorcyle.
A...... No.
Q...... Did you see a collision between the motorcycle and the train.
A...... Yes, I did.
Q...... You know the motorcycle and the train collided.
A...... Yes.
Q...... You actually saw that collision, did you.
A...... Yes.
Q...... So, did you keep an eye on the motorcyclist, between the time when he was 60 or 70 metres south of the intersection, and the time of the collision.
A...... Yes.
Q...... What did you notice about the motorcycle over that period.
A...... I noticed that, the motorcyclist reacted to the train when he was about 30 metres from the rail crossing.
Q...... When the motorcyclist was about 30 metres from the crossing, what did you see happen to the motorcyclist, or what did you see the motorcyclist do.
A...... I saw the front of the bike dip and the rider being lifted out of the seat somewhat by the deceleration.
Q...... Did you get the impression the motorcycle-
A...... He was under heavy braking.
Q...... When you say the motorcyclist lifted out of the seat, what do you really mean. Can you explain a little more clearly to us.
A...... The front of the bike dipped and he just appeared that the deceleration that he was under caused him to rise out of the seat.
Q...... When you saw that, were you still blowing the whistle of the train.
A...... No.
Q...... Did you keep an eye on the motorcyclist still.
A...... Yes.
Q...... What did you notice happen after that.
A...... I noticed the back wheel of the bike lock up and skidded. I still thought to myself that he was going to pull up in time and to the very last stage of the accident, I still thought that. He was almost stationary, but at the last, you know, few metres, he just kept moving, just enough to come in contact with the train.
Q...... Are you able to give us any idea of the speed of the motorcyclist, at the time when the collision occurred.
A...... Yes, very low speed. I would say around 10 kilometres an hour, although it’s hard to judge.
Q...... Are you able to give us any idea of your impression of the speed of the train.
A...... Still around 60 kilometres an hour.
Q...... Are you able to tell us whether or not the bike was in an upright position when the collision occurred.
A...... Yes, it was.
Q...... Do you know where the motorcyclist had his hands when the collision occurred.
A...... On the handle bars.
Q...... Do you know where the collision was, on the train.
A...... Yes, on the back step of the locomotive.”

The above evidence is an example of where the evidence of the experts can assist with regard to distances. The fireman said that he noticed the plaintiff commence to brake about 30 metres south of the crossing. That braking left a skid mark on the road, the dimensions of which were marked by the police on the day of the accident. The commencement of the skid mark is about 19 metres south of the point of impact. It tends to corroborate the fireman’s evidence that the plaintiff reacted by braking when he was about 30 metres from the railway crossing.
The fireman said that when the plaintiff was at about the 60 or 70 metre mark he appeared to be looking straight ahead.
When the collision occurred the train’s brake was applied but it took several hundred metres for the train to come to a stop. When it did come to a stop, the fireman went back to the level crossing. Whilst there he saw that the step at the rear of the tender to the locomotive had been bent and that the chrome headlight surround of the motor cycle was hanging from a protuberance on the side of the train.
He said that the headlight of the locomotive was in operation prior to the impact and that it was on high beam.
During cross-examination the fireman said that he told a police officer who interviewed him after the accident that there had been several close calls at the crossing prior to the accident the subject of these proceedings. A record of that statement is Exhibit P10. In his evidence at trial the fireman was not as clear about the previous “close calls” but I have no doubt that the fireman had witnessed, on several occasions, near misses between the train and vehicular traffic at that level crossing. Much of what was said by the fireman in his statement to the police officer is consistent with his evidence at trial. There are, as one would expect, some variations. When he spoke to the police officer he said that the train was about 100 metres north of the crossing when he saw the plaintiff’s motor cycle, although he did not give a distance from the level crossing for the position of the plaintiff’s motor cycle. He also told the police officer that he did not see the full motor cycle because his vision was obscured by the trees, but in evidence he said that when he first saw the motor cycle he saw it at the bend in the road south of the intersection because there was a gap in the foliage at that point. It was apparent from the view and the aerial photographs that were tendered in evidence of the locality that there is, and was at the time of the accident, a gap in the trees adjacent to the bend in the road south of the level crossing.
There is another problem with the fireman’s evidence about the distance of the motor cycle from the level crossing and the distance of the train from the level crossing when he first saw the motor cycle. It is common ground that the train travelled from that point to the intersection at about 60 kilometres an hour without altering speed until the collision occurred. That means that if the plaintiff travelled 250 metres at the same time that the train travelled 100 metres, the plaintiff’s average speed was more than 120 kilometres an hour. None of the eye-witnesses nor any of the expert witnesses have suggested that the plaintiff’s speed at any time was anywhere near the speed that he would have had to have travelled to average in excess of 120 kilometres per hour. I shall return to this aspect of the matter later in these reasons.
It was put to the fireman during cross-examination that an incident report signed by him as part of the first defendant’s investigation of the collision indicated that he first saw the motor cyclist when both the train and the motor cyclist were approximately 50 metres from the collision. The fireman explained that the incident report only related to the events which immediately preceded the collision and that his statement to the police officer, which was taken within a half an hour of the occurrence of the accident, was the more accurate version of events. I accept this explanation.
As to the speed of the motor cycle at the time of the collision, the fireman agreed that his statement to the police officer that the motor cyclist’s speed was about 20 kilometres an hour was likely to be more accurate than his evidence that it was about 10 kilometres per hour.
He said that when he first saw the motor cyclist, he did not tell his father to stop the train because he did not consider that the motor cyclist posed a threat at that stage. It was not until the motor cyclist continued along the straight section of the road immediately south of the level crossing that he realized that a collision might occur because the motor cyclist did not seem to reduce his speed along that straight section of the road.
The fireman was cross-examined about a statutory declaration which he gave to a loss assessor. In it the fireman said:
“I would estimate we were approximately 50 metres from the level crossing when I observed a motorcycle about 300 metres away from the level crossing.”

The fireman agreed that this could not have been correct.

Mr Sawyer was an observer in the locomotive cabin on the day of the accident. He sat immediately behind the fireman. At the time Mr Sawyer was training to be a fireman and he was observing what the fireman was doing. He recalls that as the train approached the level crossing at Airport Road, the driver sounded the train’s whistle. At the time that the whistle was sounded the train was on the curve leading to the crossing. He estimated that to be about 150 metres from the crossing. According to the plan Exhibit 1D71 the whistle board or whistle post is about 380 metres north-west of the level crossing. Mr Sawyer said that the whistle was sounded as they passed the whistle board and therefore his estimate that the train was 150 metres from the level crossing was incorrect.
When the whistle sounded Mr Sawyer was looking to his right across a paddock towards Airport Road. At that stage he did not see anything on the Airport Road. He recalls that the fireman sounded the whistle and kept it operating continuously. When that occurred he looked to his right towards the road and saw a motor cyclist on the road. All he saw was part of the helmet of the motor cyclist “coming through the trees” (T1345/7). He was asked where the motor cyclist was when he first saw it. He said:
“The only features I can tell you is just back a bit from a sign that’s there. There’s a sign that’s got black and white checkered arrows. I don’t know what sort of sign you call that. It’s on a curve and the curve straightens up into it.”
The photographic evidence discloses that there was, on the day of the collision, a sign of the type described by Mr Sawyer at the northern end of the bend south of the level crossing. The middle of the bend is about 230 metres south of the level crossing (see Exhibit 1D71).
Mr Sawyer thought that the speed of the motor cycle when he first saw it was about 90 to 100 kilometres an hour. He kept the motor cyclist under observation from the point when he first saw it until the point of collision. The whistle was sounded continuously during that time. He said that when the front of the train entered the crossing the motor cycle was about 50 to 60 metres south of the level crossing, “maybe less” (T1346/30). At that point the motor cycle was towards the eastern side of the north-bound carriageway of Airport Road. He said that when the locomotive was on the crossing he saw the rider of the motor cycle look up and that the motor cycle was braking hard. I quote from the evidence (T1347/19):
“Q.... What did you notice about the bike.
A...... The bike was stuck, you could see he was braking heavily (INDICATES) and he was, like with deceleration, you lift out of the motorbike like that (INDICATES).
Q...... You’re indicating he lifted out of the saddle or the seat, is that right.
A...... Yes.
Q...... Forwards.
A...... Yes.
Q...... What did you notice about the bike itself.
A...... Going by that, because of him hard braking, the rear brakes were locked up.
Q...... Did you see any mark occur on the road, or did you see any smoke, or did you see anything at all.
A...... It was leaving a black mark on the road.
Q...... Did the speed of the motorcycle reduce because of the application of the brakes.
A...... Yes, yes.
Q...... Did you see the collision between the motorcyclist and the train.
A...... Yes.
Q...... First of all, can you tell us what part of the motorcycle first hit the train.
A...... Probably the front wheel, if anything.
Q...... Can you tell us your impression of the speed of the motorcycle at the time of the collision.
A...... My impression of the speed is he was probably doing between 10 and 15 kilometres per hour. He wasn’t going that fast when he hit us.
Q...... At the time of the collision, did the motorcyclist still have his hands on the handlebars of the cycle, as you previously indicated.
A...... Yes.
Q...... Do you know if the brakes were still being applied.
A...... I could not tell you that.
Q...... Can you tell the court whereabouts on the train the collision occurred.
A...... On the back corner of the tender of the locomotive.
Q...... Are you able to tell us at about what speed the train was travelling at the time of the collision.
A...... My guess is probably no more than 65 kilometres per hour, if not a bit more.
Q...... At some stage were the brakes on the train applied.
A...... Yes.
Q...... Can you tell us when the brakes on the train were applied.
A...... As soon as the impact occurred, because Glenn was - I was hanging out the engine like that (INDICATES) as we went past.
Q...... You were looking out through the side of the engine.
A...... Yes.
Q...... Back towards the tender, is that right.
A...... Yes, back towards the back of the train.”
When cross-examined by Mr Walsh, Mr Sawyer said that when the fireman commenced to sound the continuous blast on the whistle, the train was about 50 metres, “maybe a bit more” (T1361/8), from the intersection. It was put to him that when the train was at that point the motor cyclist was not near the black and white sign previously referred to by Mr Sawyer but much closer to the level crossing. Mr Sawyer disagreed with this. He was quite sure that when he first saw the motor cyclist, he was to the south of the black and white sign. If this is correct, and I accept his evidence in this regard, it must mean that the train was much further back from the level crossing than 50 metres. The black and white sign was approximately 200 metres south of the level crossing. If the estimate of 50 metres were correct, it would mean that the motor cycle travelled 200 metres whilst the train travelled only 50 metres plus the length of the locomotive and tender. Given that it is common ground that the train was travelling at about 60 kilometres per hour until the collision, the motor cycle’s average speed would have been in excess of 120 kilometres per hour. This cannot be correct and, consequently, the estimate of 50 metres must be incorrect.
Mr Evans was a passenger on the train on the day of the accident. He was seated in the sixth carriage back from the engine, in about the middle of the carriage. Prior to the accident, he left the interior of the carriage and stood on the right-hand side of a platform at the front of the carriage. He remembered the train travelling along the left-hand curve which was to the north-west of the level crossing. As the train went round the curve he heard two short blasts of the train whistle. At that point his carriage was just before the bend in the track. As he was standing on the platform he looked to his right and he saw a motor cyclist through the trees. At that point his carriage was just at the bend. He estimated that the motor cyclist was about 400 metres from the level crossing at that point. When the motor cyclist was about 200 metres from the level crossing Mr Evans went back inside the carriage. At that point he observed that the motor cyclist was slowing down.
When cross-examined by Mr Greenwell, counsel for the second defendant, he said that as the carriage on which he was travelling came out of the bend before the level crossing he first saw the motor cycle. However, he said that he was looking straight ahead when he saw the motor cycle. This indicates that he first saw the motor cycle either at the commencement of the bend or during the course of the carriage travelling through the bend because, had he been looking straight ahead when his carriage was through the bend, he would not have seen the motor cyclist. He also said that when he was standing on the platform watching the motor cyclist travel towards the train, he became alarmed for the motor cyclist’s safety because he thought that the motor cyclist was not going to stop.
Mrs Copeland was a passenger on the train on the day of the accident. She was in the first carriage behind the locomotive tender. She was seated at the back of the carriage on its right-hand side. She was seated next to a window and facing forwards. She saw the plaintiff on the roadway. She was able to see his shoulders and head. She remembers hearing the train whistle before the train crossed the level crossing. She was not able to say whether the motor cyclist was travelling at a slow or fast speed because, she said, she did not see the road on which the motor cyclist was travelling. Her impression was when she saw the motor cyclist that it was going to be close as to whether he was able to pass in front of the train as opposed to colliding with it.
When cross-examined by Mr Lovell, junior counsel for the plaintiff, she agreed that she told the police officer who interviewed her that when she first saw the motor cyclist he was only about 40 to 50 yards away from her. But she stated that it was a distance that was put to her by the policeman rather than her own estimate.
Mrs Copeland was obviously trying to state in the witness box what her recollection was of the accident. However, I do not think her evidence assists beyond recording that when she first saw the motor cyclist she thought that a collision might occur because of the proximity of the train and the motor cycle to one another.
The evidence of the fireman and Mr Sawyer, when taken in conjunction with the evidence of Mr Evans, enables me to make findings as to how the accident occurred. It must be acknowledged that there are inconsistencies between the evidence given at trial by those three witnesses when it is compared with previous statements made by some of them. However, with one exception, they are not glaring inconsistencies. The exception is with the evidence of the fireman, as to the position of the motor cycle when he first saw it. In his evidence he said that it was at the bend south of the intersection, the mid-point of which I know to be in excess of 200 metres south of the level crossing. Two of his earlier statements, in particular the one to the assessor, indicate that the plaintiff may have been much closer to the level crossing when the fireman first saw the plaintiff. However, I think this difficulty is resolved by the evidence of Mr Sawyer, which I accept. He said that immediately after the fireman sounded the train’s whistle he saw the plaintiff about 15 metres south of the black and white sign which is at the bend in the Airport Road south of the level crossing. This is consistent with the evidence given by the fireman at trial that he saw the motor cyclist through the gap in the trees on the western-side of Airport Road where the bend occurred. The various estimates of speed indicate that, as the plaintiff was moving through the bend and emerging from it, he was travelling at about 90 to 100 kilometres per hour.

None of the expert witnesses could assist with the speed of the motor cyclist through the bend. Indeed, their evidence as to speed could only assist if an assumption was made as to the speed of the motor cycle at the point of impact or as to the speed of the motor cycle when it commenced to brake.
I find that the fireman first saw the plaintiff’s motor cycle through the gap in the foliage on the western-side of the Airport Road where it occurs at the bend in Airport Road to the south of the level crossing. At that point the plaintiff was approximately 220 metres from the level crossing. I find that when Mr Sawyer first saw the plaintiff, the plaintiff was near the black and white sign which was situated at the northern end of the bend to the south of the level crossing.
I find that the plaintiff, when he emerged from the bend, travelled along the straight section of Airport Road towards the level crossing without significantly reducing speed. It is impossible to say whether or not there was a speed reduction from the time when he was first seen respectively by the fireman and Mr Sawyer. However, it is clear from the fireman’s evidence that at a point approximately 30 metres south of the level crossing the plaintiff commenced to operate the rear brake of the motor cycle, such that a skid mark was left on the roadway because of the locking of the back wheel. It is common ground that the skid mark was 14.7 metres in length and commenced approximately 19 metres south of the point of impact.
I am unable to make a finding as to whether or not the plaintiff applied the brake operating on the front wheel of the motor cycle. He may have done so but not to the extent that the front wheel locked because Mr Sawyer saw that the skid mark on the road was left by the back wheel.
These findings are consistent with the evidence of Mr Hall and Mr Aust relating to reaction times, ie the time between the first application of the brakes and the time that the brakes take effect. I do not accept the evidence of Mr Potts as to reaction times which were much less than the range given by Mr Hall and Mr Aust. I think their experience in the field of accident reconstruction is much greater than that of Mr Potts and, in any event, I found Mr Potts’ explanation put in support of likely reaction times as unconvincing.
I find that the plaintiff did not become aware of the train until he was about 50 or 60 metres south of the level crossing, at which point the front of the locomotive was just short of the level crossing.
As to the speed of the plaintiff’s motor cycle at the time of the collision, I find that it was in the order of 10-20 kilometres per hour. Mr Hall, in his evidence, thought that the speed at the time of impact may have been greater because he observed the deformation in the front wheel of the motor cycle which could have been caused by the force of the collision. However, the evidence of Mr Sawyer and of the fireman indicates that the plaintiff had almost stopped prior to the collision and I think it is safer to make a finding of the speed at the point of impact by reference to that evidence.
I find that as the plaintiff approached the intersection his view to the left was obstructed by the presence of vegetation on the left-hand side of the road. It would have been difficult for him to see the approach of the train from his left until he was clear of the foliage on the left-hand side of the road. I think it probable that when the whistle of the train was sounded, he did not hear that whistle because of the noise of the motor cycle and the fact that he was wearing a helmet which was padded on the inside. I find that at the commencement of the prolonged blast of the train’s whistle initiated by the fireman, the plaintiff would have been in the vicinity of 200 metres from the level crossing and, had he heard the whistle, I have no doubt that he would have slowed down with a view to stopping at the level crossing. There is also no doubt that he would have had more than adequate time to come to a stop before reaching the level crossing.
As to the location of the foliage on the day of the accident on the western-side of the Airport Road, the photographic evidence, including the aerial photograph (Exhibit 2D54), indicates that the foliage did not cease until a point about 50 to 60 metres south of the level crossing. It is impossible now to make findings as to the nature and extent of the last 40 or 50 metres of that foliage present on the day of the accident, because foliage has been removed or cut back since the date of the accident. However, I am able to conclude that the last 30 or 40 metres of the foliage on the western-side of the Airport Road would have obscured the plaintiff’s view to the left had he been looking to the left. I should also mention the foliage on the southern side of the railway corridor. I do not think that that foliage by itself obscured the plaintiff’s view of a train approaching the intersection because, where it occurred, it was not particularly dense and the train moving along the track, as appears from the photographic evidence, was clearly visible behind such foliage.
With regard to the roadway signs and the sign at the intersection itself, the evidence is that there was erected at the crossing a sign consisting of two crossed boards with “Railway Crossing” written upon them and immediately underneath the cross was a triangular sign indicating to a north-bound road user that vehicular traffic was required to give way to any train approaching the crossing. In addition, there were a number of roadside signs and a sign painted on the roadway. There was an advisory sign on the southern side of the bend south of the level crossing, indicating an advisory speed of 45 kilometres per hour. About 80 metres south of the intersection there was painted on the road in white the letters “R” and “X”. Approximately alongside the letter “R” there occurred a sign which consisted of two pieces - a yellow sign with a black cross marked upon it and the words “Rail Crossing” which was surmounted by a triangular sign having a red border and a white centre indicating that traffic must give way to trains. That sign would have been visible to the plaintiff from the point where he emerged from the bend in Airport Road which was south of the level crossing. According to Exhibit 1D71 and to the evidence of Mr Hall, the point at which the plaintiff could have seen the roadside sign and the painted letters on the road was about 170 metres south of the level crossing. It follows also that the railway crossing sign at the level crossing itself was also visible from a point 170 metres south of the level crossing.
I find that the speed of the train as it approached the level crossing from the north-west was a more or less constant speed of about 64 kilometres per hour. That speed was maintained by the train until the motor cycle collided with the train.
I find that the motor cycle collided with the rear of the tender to the locomotive at a point immediately in front of the metal steps situated on the rear right-hand corner of the tender. Those metal steps immediately came into contact with the plaintiff and the motor cycle causing injury to the plaintiff and damage to the motor cycle.

Liability in Relation to the First Defendant

The plaintiff alleges that the first defendant, by its employees, failed to keep any or a proper lookout. I do not think that this allegation of negligence has been made out. It is clear that both the fireman and Mr Sawyer looked to their right as the train approached the level crossing. The distance of the train from the level crossing when the fireman first saw the plaintiff can be calculated by reference to the calculation of the time that the plaintiff took to reach the point of impact. In very broad terms, if the plaintiff travelled at 90 kilometres per hour for 150 metres he took 6 seconds to do so, because 90 kilometres per hour is the equivalent of 25 metres per second. Over the last 50 metres, if the motor cyclist went from 90 kilometres per hour to approximately 20 kilometres per hour, his average speed over that distance was 55 kilometres per hour or about 15 metres per second. In approximate terms, that means that a further time of 3 seconds needs to be added to the time of 6 seconds to make a broad, and very approximate, estimate of the time that elapsed between the time that the plaintiff was first seen by the fireman until the time that the collision occurred. During that period the train was travelling at a constant speed of about 64 kilometres per hour, which is about 17 metres per second. That would place the rear of the tender of the train at about 150 metres north-west of the crossing. The evidence is that, even with emergency application of brakes, the train travelling at 60 kilometres per hour would not have been able to stop in less than 150 metres.
In my view the lookout kept by the fireman was more than adequate in that he was able to pick up the presence of the plaintiff through a gap in the trees some 220 metres south of the level crossing.
The generality of the allegations of negligence in paragraphs 10(b) and 10(c) are such that they cannot be made out unless some more specific allegation of negligence is relied upon. A more specific allegation occurs in paragraph 10(d) of the statement of claim where it is alleged that the first defendant by its employees failed to give any or adequate warning of the approach of the train. The only positive warning given was the sounding of the train whistle and the illumination on high beam of the light at the front of the train. In addition, there is the passive warning given by the presence of the train on the track. I have found that the plaintiff probably did not hear the train’s whistle.
I do not think that the failure of the plaintiff to hear the train’s whistle can be attributed to any inadequacy in that warning device. In my view, it was the noise of the motor cycle and the fact that the plaintiff was wearing a helmet which prevented the plaintiff from hearing the whistle. In those circumstances, the motorist must take extra care: see Rolf AJA in Kelly v Narrandera Shire Council & Ors, unreported decision of NSW Court of Appeal delivered 16 December 1998, at p21. There has been no evidence called that the whistle was otherwise inadequate to warn motorists of the approach of the train and so to that extent I do not think that the warning given by the fireman was inadequate.
As to the other two aspects of warning, the light on the front of the train and the train itself was there to be seen by the plaintiff approaching the level crossing from the south if a careful look to the left had been undertaken by him. The fact that the plaintiff’s view was obscured by a line of trees cannot be said to be the fault of the first defendant because, on the evidence, it is clear that the responsibility for that vegetation was with the second defendant and not the first defendant. I therefore do not consider that the plaintiff has established that the first defendant was negligent by failing to give any or adequate warning of the approach of the train.
Paragraph 10(e) of the statement of claim alleges that the train was driven at a speed which was excessive in the circumstances. The responsibilities of the operator of a railway are dealt with by the High Court in Commissioner for Railways v Dowle (1958) 99 CLR 353 where Dixon CJ, on behalf of the Court said at 358-359:
“In the recent case of The South Australian Railways Commissioner v. Thomas (1951) 84 C.L.R. 84, this Court gave some attention to the formulation of the law which governs the duty of railway commissioners in respect of level crossings. What was said was this: ‘In considering whether adequate warning was provided at a level crossing over a public road all the circumstances of the locality and of the traffic passing over it and the conditions prevailing at the relevant time must be taken into consideration: Alchin v. Commissioner for Railways ((1935) 35 S.R. (N.S.W.) 498, at p. 502). The duty of the commissioner is to do everything which in the circumstances is reasonably necessary to secure the safety of persons using the crossing: Cliff v. Midland Railway Co. ((1870) L.R. 5 Q.B. 258, at p. 261); Ellis v. Great Western Railway Co. ((1874) L.R. 9 C.P. 551, at p. 555); Liddiatt v. Great Western Railway Co. ((1946) K.B. 545, at p. 550). This must include a duty to give reasonable warning of the approach of a train where the commissioner does not provide gates which are closed when a train is approaching. That duty is not fulfilled by providing means which would enable persons of acute vision and hearing exercising the most anxious care to avoid injury. The fact that all sorts and conditions of people use the highway must be taken into account, and, whilst the commissioner is not required to protect against their own carelessness people who proceed without any regard to their own safety, it is his duty to take every reasonable precaution to ensure that the level crossing will be safe for the members of the public generally who act with due care while exercising their rights of passing over it’... .
In the present case the question whether due care was exercised appears to us to be essentially one for the jury. All sorts of expedients may suggest themselves, drawn from common knowledge of what is done on railways, as a means of adding additional precautions to those which were in fact taken. Here we have simply an open crossing with halt signs, a crossing too where the visibility to the left was very much restricted for traffic approaching the crossing from the northern side.
Audibility is another question; it has to be remembered that in modern conditions there are many occasions of which it may be said either that the vehicles make so much noise themselves or that there is so much noise surrounding them that it is not by any means certain that a person inside one of them will be able to hear the whistle of an engine.”
In Baker v The Victorian Railways Commissioners [1949] VLR 85, Herring CJ, who delivered the judgment of the Full Court, said (at 88):
“... having given due warning the train driver is entitled to proceed on the basis that road users will exercise due care for their own safety, that they will stop and let the train go by, that is to say, that they will give him the right of way. Indeed it is difficult to see how a railway service could be conducted on any other basis. Trains are heavy things and take a long distance in which to pull up when travelling at any speed. If every crossing had to be approached at a speed which would enable the train driver to pull up before reaching it, should road users show no care for their own safety, it would be impossible to run an express train or to maintain any kind of satisfactory schedule. Road vehicles can, on the other hand, be pulled up in a comparatively short distance.”
It must immediately be said that the Chief Justice was there concerned with an express train whereas in this case, there was no requirement for the train to keep to a strict schedule. Nevertheless, much of what the Chief Justice said applies to this case.
It was the plaintiff’s case that the first defendant should have ensured that the driver of the locomotive reduced the speed on its approach to the intersection so that it could stop in order to avoid a collision should a motorist ignore the warning signs leading up to the level crossing. However, it seems to me that that submission can only be made out if there is established by the evidence an appropriate speed which takes account of the possibility of a collision in all circumstances and not just those which confronted the fireman and the driver on the day of the accident. It is obvious that if the train had reduced speed well prior to the level crossing, there may not have been a collision between the train and the plaintiff’s motor cycle, but that does not make out a case that the speed of the train on the day was excessive. Taken to its logical conclusion, the plaintiff’s submission was that the speed of the locomotive should have been such that either it was able to stop before a collision occurred or, alternatively, that it travelled at such a speed that the plaintiff would have had time to pass in front of the locomotive before it reached the level crossing. That would mean that on every level crossing the train would have to slow down such that it could avoid a collision in circumstances where the motorist paid little or no regard to his or her obligation to give way to the train and otherwise to take heed of the warning signs displayed prior to the level crossing. That is not, in my view, a proper basis for establishing the extent of the duty of care on the part of the first defendant in relation to either the level crossing the subject of these proceedings or any level crossing. In those circumstances, I consider that the plaintiff has failed to establish that the speed of the train was excessive in the circumstances.
In arriving at that conclusion I have taken into account the fact that the fireman had on several occasions prior to the accident seen near misses at that intersection. It is clear from the evidence that drivers and firemen discussed such occasions amongst themselves and that, although there was no formal procedure observed within the organisation of the first defendant for action to be taken into relation to such near misses, the management of the first defendant became aware of them. In those circumstances, the question of the speed of the train as it approached dangerous intersections should have been considered by the first defendant’s management with a view to giving instructions to train crew to observe particular speeds at given level crossings. However, the plaintiff’s case on excessive speed can only be as good as the evidence he adduces as to what the appropriate speed would have been. On the evidence before me I am able to make no finding as to what an appropriate speed was. There is nothing in the evidence which indicates to me that the speed actually observed by the train driver prior to the collision was other than the appropriate speed for that intersection.
The same reasoning applies to the allegation of negligence in paragraph 10(f) of the amended statement of claim and for that reason that ground also must fail.
Paragraph 10(g) of the amended statement of claim asserts that the first defendant failed to ensure that train drivers complied with all safety requirements. I have already indicated that this part of the pleading is not in reality a particular but a general statement and cannot be relied upon. In any event the plaintiff has not advanced a case in that regard beyond the question of the speed of the train which I have already dealt with.
Paragraph 10(h) of the amended statement of claim alleges that the first defendant permitted an unsuitable and unsafe locomotive to be used on the track. This allegation also fails because of its generality. In any event, there is no evidence to suggest that the locomotive was other than suitable and safe.
Paragraph 10(i) of the statement of claim alleges that the first defendant failed to provide a safe system to ensure that the driver of the train could obtain proper and adequate notice of the approach of motor vehicles to the crossing. This allegation must fail for the reasons given in relation to paragraph 10(a) of the statement of claim. It was impossible for the driver of the train to keep a lookout to the right and it was the responsibility of the fireman to keep a lookout in that direction. There is nothing in the evidence to suggest that a lack of a system for communication between the fireman and the driver contributed to the happening of the accident. This ground must fail.
Paragraph 10(j) of the statement of claim alleges that the first defendant failed to design or modify the locomotive such that the driver was afforded a clear and unobstructed view of the approach of motor vehicles. There was no evidence called to suggest how any modifications to the locomotive could be made so as to afford the driver a view to the right. In any event, this ground must fail for the same reasons given in relation to paragraph 10(i) of the statement of claim.

Paragraph 10(k) of the statement of claim alleges that the first defendant failed to install adequate safety measures at the level crossing, including a barrier, flashing lights or a warning system, such as a whistle, horn, siren or bells. The last two subparagraphs of paragraph 10(k) contain respectively allegations that there was a failure on the part of the first defendant to ensure that persons approaching the crossing by road had a clear and unobstructed view of the train and that there was a failure to ensure that the train driver on his approach to the crossing had a clear and unobstructed view of the crossing and any vehicles approaching the crossing by reason of failure to remove foliage adjacent to the railway line.
As to the allegation that the first defendant was negligent in failing to provide a barrier or warning devices at the level crossing, it is clear from the evidence that the first defendant has no authority to install such barriers or warning devices. In any event, I am far from satisfied that, even if the first defendant had the relevant authority, the nature of the level crossing required such devices to be installed. This aspect of the plaintiff’s allegations of negligence must fail.
I take subparagraphs (iv) and (v) at page 5 of the statement of claim both to apply to the presence of foliage within the rail corridor. I have already indicated that I do not think that any foliage within the railway corridor on the day of the accident prevented the train from being seen by road users. It is for this reason that I do not think that either of these two subparagraphs can succeed.

Allegations of Negligence Against both Defendants

There remains to be considered the allegation of negligence pursued at trial against the defendants, namely that they failed to take steps to install a stop sign at the crossing.
This was based, in relation to the first defendant, on the evidence of the fireman that the crossing was dangerous in that he had been witness to several “close calls” at that train crossing prior to the accident.
It was contended that either there should have been a system of reporting within the first defendant so that the management structure within the first defendant would become aware of dangerous incidents which occurred at crossings, thereby enabling the first defendant to take appropriate precautions.
It was also contended that it became known to management that this was a dangerous crossing and that, therefore, the first defendant should have attempted to do something about it.
There were a number of witnesses called by the first defendant who were either train drivers or fireman, or in training for those positions, and who were members of the management structure of the first defendant. It is clear from their evidence that dangerous crossings were discussed between those who operated the locomotive and that those discussions in turn became known to the management structure. There was no specific system in place for the knowledge of the drivers or fireman about the dangers of particular level crossings to be made known to the management structure. But, given their evidence overall, I consider, on the balance of probabilities, that persons within the management structure were aware that this particular crossing was dangerous.
Although the first defendant used the line infrequently, it is clear from the evidence of officers of the second defendant, Mr Banks in particular, that Airport Road carried a high volume of vehicular traffic. It follows that the chances of collisions and near misses are greatly increased where the volume of vehicular traffic on the road is substantial.
The plaintiff said in evidence that had there been a stop sign installed at the crossing, he would more than likely have stopped or at least slowed down to put himself in a position to stop at the crossing. Whilst it may be said that the weight to be attached to this evidence is slight because it arises from hindsight, I think nevertheless it has some substance. It is one thing to warn a motorist that a railway crossing is ahead and remind the motorist by the appropriate sign that the motorist is required to give way to any train that might be passing, but it is quite another to put a stop sign at the level crossing. There is less likelihood in the case of a stop sign that motorists, heedless of their own safety and of the requirements of the rules of the road, will take the chance that a train is not advancing along the line when a stop sign is in place. For example, if the lesser requirements to give way are notified, there is more chance that the sign will be disregarded altogether. But if the obligation is to stop rather than merely to give way, there is the chance that motorists will at least slow down to the extent that if a train is proceeding along the track, they will be able to stop before entering the crossing.
A great deal of evidence was called and documentary evidence tendered, with regard to the standard applicable to the placing of road signs in respect of level crossings. Much of the evidence centred upon the question of what expectations there might be in relation to the speed at which motorists were likely to travel along the Airport Road towards the level crossing. The 85th percentile factor was frequently mentioned. This involves ascertaining by one means or another the maximum speed travelled by no less than 85 per cent of road users along a particular road. Ideally, it is tested scientifically by using instruments to measure the speed of vehicles along the road over a period of time and, presumably, over a number of different days. From this data there can then be calculated the maximum speed observed by 85 per cent of the road users whose speeds were registered. There is no evidence of this nature before me. Various witnesses gave evidence that in their estimation the relevant 85th percentile speed was a given number of kilometres per hour, but these can be no more than guesses on the individual’s part, no matter how experienced they are. Consequently, I do not think that evidence of this nature assists with determining whether or not it would have been better to have a stop sign at the level crossing rather than a give way sign.
In my view the nature of the crossing and the approaches to it on the day of the accident were such that it made more than good sense to have a stop sign at the crossing rather than the triangular sign that indicated that there was a requirement to give way. I mention in particular that both of the triangles, the one 80 metres south of the intersection and the other at the crossing, consisted of triangles without the words “give way” being written on the sign. There was a bend in the railway track to the north-west of the intersection. There was a bend in the road to the south of the level crossing. The view of the motorist coming from the south was obscured to the north-west by vegetation to a point approximately 50-60 metres south of the level crossing. The usual speed of the locomotive in approaching and entering the level crossing was in excess of 60 kilometres per hour. It is not clear what the speed limit on the Airport Road was but it was no less than 100 kilometres per hour. Although the crossing was infrequently used by the first defendant, there was a considerable amount of vehicular traffic which used the Airport Road. There had been a number of close calls at that particular intersection. The defendants should have considered all these factors and, had they done so, they should then have taken steps to install a stop sign at the level crossing. To that extent I think the defendants were negligent and that their negligence contributed to the happening of the collision. It was by no means the sole cause of the collision because, as will be seen when I deal with the question of contributory negligence, it is clear that the plaintiff was contributorily negligent to a substantial degree.

Liability in Relation to the Second Defendant

These allegations of negligence are centred upon the alleged inadequacy of the roadside and roadway signs, failure to clear foliage alongside the road and failure to clear foliage within the rail corridor.
As to the latter I do not think there is any obligation upon the second defendant to take steps to have foliage cleared from the railway corridor. It had no rights in respect of that land but, in any event, for reasons which I have given in relation to the same allegations being made against the first defendant, I do not consider that the presence of foliage within the rail corridor contributed to the collision.
As to the adequacy of the roadside and roadway signs, it was contended by the plaintiff that the signs should have been as they are placed today. In particular, the first warning of the railway crossing should have been placed at a point south of the bend in the Airport Road south of the level crossing. Again, a great deal of evidence was called in relation to appropriate Australian standards which at the end of the day is not particularly helpful. It seems to me that even if the signs contended for by the plaintiff had been in place on the day of the accident, with the exception of a stop sign, the plaintiff would have ignored them as he obviously did in relation to the signs that were actually there on the day.
Before arriving at the level crossing he had to negotiate the bend south of the crossing. That contained, on the southern side of the bend, an advisory sign indicating that 45 kilometres per hour was the appropriate speed for negotiating the bend. Any experienced motorist, as the plaintiff was, knows that those signs are based on the assumption that a motorist has to deal with adverse conditions in a vehicle with unsophisticated handling qualities. The plaintiff rode through the bend at at least 90 kilometres per hour. When he was about 170 metres from the level crossing he must have seen the road sign and the roadway markings (which were at the 80 metre mark) and he must have seen the sign at the level crossing itself. When he was 170 metres from the crossing travelling at about 90 kilometres per hour, he had every opportunity to slow down such that, if a train was approaching the level crossing at the time that he was about to enter the crossing himself, he could have come to a halt. However, the plaintiff did not slow down in any material way until he was about 30 metres from the crossing. He ignored the warning signs that were there which, had he taken heed of them, would have enabled him to slow down and eventually stop if that became necessary. With the exception of a stop sign, I do not see how it could be said that the plaintiff would have paid proper heed to any different set of road signs. This is particularly so when it is considered that the plaintiff failed to slow down until the last moment even though his view to the left was considerably obstructed by roadside foliage. It seems to me, and I so find, that the plaintiff must have been aware of the level crossing from the 170 metre mark but, by not slowing down, he took a chance that there was no train on the rail line.
I reject Mr Walsh’s submission that reasonable motorists only react to such signs when they come alongside the sign or, to put it another way, that it is reasonable to defer reaction to the sign until once the motorist is alongside the sign. It may be the case that with signs which mark a speed limit for a particular area, the speed of the vehicle is not increased or decreased, as the case may be, until the motor vehicle comes alongside the road sign. However, there is a reaction to the sign prior to the motor vehicle coming alongside it at least to the extent that, if the sign requires a reduction in speed, the motorist reduces speed so that the speed of the vehicle complies with the requirements of the sign once the vehicle is past that sign. In addition, signs which warn that a level crossing is ahead are meant to be reacted to once they are seen and it is unreasonable for a motorist to do otherwise.
For these reasons I consider that, with the exception of the placement of a stop sign at the level crossing, it is likely that the plaintiff would have ignored the configuration of signs contended for by the plaintiff had they been in place on the day of the accident. That means that, with the exception referred to, there can be no finding of negligence against the defendants in relation to the alleged inadequacies of the roadside and roadway signs that were present on the day of the accident, because even if they were deficient, such negligence was not causative of the collision.
The final allegation of negligence against the second defendant relates to the failure to clear vegetation from the side of the road so as to give a motorist a better view of the approach of any train. Again, subject to any immunity that the second defendant may have, I would hold that the second defendant was clearly negligent in failing to clear roadside vegetation. The pictorial evidence as to the extent of the vegetation on the day of the accident leaves me with no doubt that the view of a motorist approaching the level crossing from the south was severely restricted by the presence of vegetation on the western-side of the road to a point 50 to 60 metres south of the level crossing. Leaving that vegetation in place is almost an invitation for an accident to occur based on the inability of the motorist to detect the presence of a train in the rail corridor. It is but one of a number of factors which when combined, produced, for the plaintiff, the collision which occurred. It is, nevertheless, an important factor and as such the presence of the roadside vegetation was a material cause of the subsequent accident. In my view, the vegetation should have been cleared back to at least 80 metres and preferably a greater distance and the failure to clear the vegetation constitutes negligence on the part of the second defendant for which it is liable in damages unless an immunity from liability applies.

Non-feasance Immunity

The second defendant submitted that, on the assumption that its failure to clear vegetation on the western-side of Airport Road, south of the intersection, was negligent, it consisted of “non-feasance” for which the Council was not liable. Reliance was placed upon such authorities as Municipal Council of Sydney v Bourke [1895] AC 433 and Hill v Commissioner for Main Roads (NSW) 9 MVR 45. The plaintiff asserted that the immunity from liability that once applied had been whittled away by subsequent cases such that in modern times it no longer existed. Reference was made to a number of cases to support this proposition, including The Council of the Shire of Sutherland v Heyman and Anor (1984-1985) 157 CLR 424. In any event, the plaintiff contended, the common law immunity which applied to non-feasance on the part of a highway authority (including local government bodies) had been abrogated in South Australia by the provisions of Part 1B of the Wrongs Act which came into operation on 5 July 1987.
The relevant provisions of Part 1B are as follows:-
“Interpretation
17B.In this Part, unless the contrary intention appears-
“dangerous” includes unsafe;
“landlord” includes a landlord under a statutory tenancy;
“occupier” of premises means a person in occupation or control of the premises, and includes a landlord;
“premises” means-
(a).... land; or
(b)... a building or structure (including a moveable building or structure); or
(c)... a vehicle (including an aircraft or a ship, boat or vessel).
Occupier’s duty of care
17C. (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account-
(a).... the nature and extent of the premises; and
(b).... the nature and extent of the danger arising from the state or condition of the premises; and
(c).... the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d).... the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e).... the extent (if at all) to which the occupier was aware, or ought to have been aware, of-
(i).... the danger; and
(ii)... the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)any other matter that the court thinks relevant.
(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
(4) Subject to any Act or law to the contrary, an occupier’s duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.
(5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.
(6) An occupier owes no duty of care to a trespasser unless-
(a).... the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and
(b).... the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection.
Landlord’s liability limited to breach of duty to repair
17D. The liability under this Part of a landlord who is not in occupation of premises is limited to injury, damage or loss arising from-
(a).... an act or omission on the part of the landlord in carrying out an obligation to maintain or repair the premises; or
(b).... a failure on the part of the landlord to carry out an obligation to maintain or repair the premises.
Exclusion of conflicting common law principles
17E. (1) Subject to subsection (2), this Part operates to the exclusion of any other principles on which liability for injury, damage or loss attributable to the state or condition of premises would, but for this Part, be determined in tort.
(2) This Part does not apply to a case where an occupier causes a dangerous state or condition of premises, or allows premises to fall into a dangerous state or condition, intending to cause injury, damage or loss to another.”
Part 1B deals with occupier’s liability. Prior to Part 1B of the Wrongs Act coming into operation, occupier’s liability, until Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, came within the law of tort but not specifically within the law of negligence.
The first question to be dealt with is whether or not, if there is to be any liability attributed to the second defendant in respect of the accident, such liability is attributable to the second defendant in its capacity as an occupier. It is common ground that ownership of the road corridor comprising Airport Road is vested in the second defendant. It is also common ground that it has the power to maintain the road corridor. It also has a duty, under Section 37(1) of the Highways Act, to maintain the road in good and trafficable condition. That duty may only be limited to a duty to the Highways Commissioner but, for present purposes, it makes no difference whether the duty is so limited or is owed at large to the public using the road.

Further degeneration will occur in the right and left knees, in the left hemi-pelvis and in the right sacro-iliac joint. This will result in a rapidly decreasing ability to walk. He will have difficulty in climbing stairs and it would be dangerous for him to go on to a construction site. He would be a danger both to himself and to others. The plaintiff is prone to tripping and he is very prone to further injury. Mr Pohl stated that his reserves in that regard were minimal, which meant that his ability to respond to further injury is reduced. Once his reserves are depleted he will be confined to a wheelchair, probably between the age of 50 to 60.
The plaintiff has also been left with the additional problem of cruciate ligament deficiency in the left knee. The right knee shows signs of severe degeneration and operative intervention in the future, consisting of a total knee replacement, is more than likely. The pain he experiences in his right knee will lead to the necessity of such an operation and it would occur sooner if the plaintiff continues to try to walk rather than using a wheelchair. Mr Pohl said that the left knee is in the same position as the right knee.
Mr Pohl is of the view that the plaintiff will need a great deal of assistance in the future. Although the plaintiff is fiercely independent, the plaintiff will need assistance with home maintenance, housekeeping, cooking and generally looking after himself. As his condition deteriorates he will come to need that assistance on a daily basis.
So far as the knee replacements are concerned, he thinks that these will be needed by the time the plaintiff reaches 60 years of age.
The only dispute pursued by the defendants in relation to the nature and extent of the plaintiff’s injuries and disabilities is that concerning the effect of the injury sustained by the plaintiff in the accident of December 1997. Mr Stratford, counsel for the first defendant, dealt with this issue in his final address and what he said was adopted by Mr Greenwell, counsel for the second defendant.
My attention was drawn to the evidence of Mr Pohl where he said that prior to the December 1997 accident the plaintiff’s pelvis was such that he could have carried out basic daily living activities. Mr Pohl said that the prognosis was altered by the motor vehicle accident and a further problem was created.
Reference was also made to those parts of Mr Pohl’s evidence where he said that the right sided fusion of the pelvis was successful and improved the plaintiff’s ability to weight bear. A left sided fusion was undertaken to address the same problem and its results were similar.
Mr Stratford referred to the judgment of Mayo J in Fishlock v Plummer (1950) SASR 176 where his Honour said (at 181):
“Where further injury [to the plaintiff] results from a subsequent mishap (without carelessness by himself), which would not have been sustained had he not been in the physical condition caused by the defendant’s neglect, the added damage is directly linked with the original catastrophe. If injury would have resulted from the subsequent mishap had the plaintiff been in normal condition of bodily health, but the damage sustained is greater because of his injured state, the extra damage, but only the extra damage, is sufficiently connected.”
Mr Stratford submitted that the pelvic injuries sustained by the plaintiff in October 1991 had at least reached a level of stability prior to the second accident in December 1997 and that the defendants in this case should not be held liable for injuries flowing from the second accident. He submitted that I should adopt the approach taken by Mohr J in Nicholson v Walker (1979) 21 SASR 481.
Mr Walsh submitted that the injury sustained in December 1997 came within the first category mentioned by Mayo J in Fishlock v Plummer, such that the added damage was directly linked with the original accident and, accordingly, the defendants were liable for the effects of that additional injury.
Mr Stratford submitted that the combination of the two occasions of injury came within the second category referred to by Mayo J.
It seems to me that Mr Walsh’s submission correctly states the approach that I should take. There was further injury to the plaintiff which occurred as a result of an accident which was not the plaintiff’s fault. The additional complication to the left sacro iliac joint would not have occurred, according to Mr Pohl, if the plaintiff had not been in the physical condition caused by the original accident. Thus, the additional complication is directly linked with the accident of October 1991 and the plaintiff is entitled to recover damages from these defendants to that extent.
Before turning to the specifics of the assessment of damages, I must deal with one matter which was raised involving the proper construction of Section 35A of the Wrongs Act. That requires the assessment of damages in relation to a motor vehicle accident to be carried out in the manner specified in the section. It was submitted by Mr Walsh that that section did not apply because the accident the subject of these proceedings was not a motor vehicle accident governed by the provisions of Section 35A of the Wrongs Act. This had particular significance in relation to the assessment of general damages and damages in relation to gratuitous services.
Reference was made to the decision of Millhouse J in Clyne v Gulbin (1995) 65 SASR 397 where his Honour held that a collision between a motorist and a cow was not a motor vehicle accident within the meaning of Section 35A of the Wrongs Act, where the motorist had not been held guilty of any contributory negligence. I think that case is to be distinguished because there has been a finding of substantial contributory negligence against the plaintiff. It was argued by Mr Walsh that contributory negligence was not a point of distinction because Section 35A should be read in the context of the compulsory third party insurance scheme which indemnified negligent drivers in personal injury cases. He said that Section 35A should be confined to cases where the defendant was indemnified by the scheme. As much as his argument has logic to support it, I do not think that the phrase “arising from a motor accident” can be so construed. To achieve the result contended for by Mr Walsh the wording of the whole of sub-section (1) would have to be quite differently cast. Thus, the accident was one which comes within the provisions of Section 35A of the Wrongs Act, and the assessment of damages must be made by reference to the provisions of that section.
I approach the assessment of damages bearing in mind the findings I have made as to the nature and extent of the injuries and disabilities sustained by the plaintiff.

Non-economic Loss

As to non-economic loss I am required to select a number on the scale between 0 and 60 to reflect the extent of the plaintiff’s loss under this heading. I take into account and follow the approach taken by the Court in Packer v Cameron (1989) 54 SASR 246 and make an assessment of the plaintiff’s loss compared with the worst non-economic loss that might befall anyone at all. The plaintiff has suffered terrible injuries to the lower part of his body and has continually suffered considerable, sometimes excruciating, pain as a result of those injuries. He was once a healthy and fit person who was able to engage in his profession, his hobbies and in social activities without restriction. He is now but a shadow of his former self. In my view I should assign the number 40 to reflect the extent of his non-economic loss. The relevant multiplier is 1310, which leads to an assessment of $52,400.

Past Economic Loss

As to past loss of earning capacity, Section 35A(1)(d) of the Wrongs Act provides that no amount should be allowed for the first week of incapacity. Mr Stratford submitted that I should make no allowance for the period off work as a result of injuries sustained in the accident of 20 December 1997. It seems to me that the distinction must be drawn between the injury to the left knee sustained in the second accident and the injury which attenuated the left-sided arthrodesis of the sacro iliac joint. It is the latter which comes within the first category of injury as described by Mayo J in Fishlock v Plummer (at 181). With regard to the knee injury sustained in December 1997, it has not been suggested that the damage caused by that second knee injury was greater because of the pre-existing injured state of the left knee. It therefore does not come within the second category of injury referred to by Mayo J and the effects of the second knee injury therefore cannot be taken into account in the assessment of damages in this action. In addition, the plaintiff sustained a broken bone in his right arm as a result of which he lost the equivalent of one week’s work. That that loss is not attributable to the accident of October 1991.
All parties agree that there were two periods relevant to this part of the assessment: from the date of the accident to early January 1994 when the plaintiff returned to work; and from early January 1994 to the date of trial. More accurately the second period ends in May 1999 when the evidence and submissions were completed. At the date of the accident the plaintiff’s base gross salary was $43,186.00. In addition, his employer paid superannuation contributions amounting to $5,614.00 and he had an expense entitlement of $7,700.00. On a base salary of $43,186.00, after allowing for taxation, the plaintiff submitted that the loss from October 1991 to January 1994 amounted to approximately $68,000.00. The plaintiff submitted that in addition allowance should be made for the superannuation component and the expenses entitlement which would add a further $30,000.00 for that period.
Mr Stratford submitted that there was no evidence as to applicable taxation rates, particularly in relation to taxation payable (if any) in relation to the superannuation contributions made by the employer. He also submitted that the expense entitlement should not be included in the income loss because whilst the plaintiff was not working, he did not incur expenses in relation to his work duties. I accept that submission and accordingly do not propose to take into account the expense allowance of $7,700.00 per annum.
I am unaware as to how the employer taxation contributions are treated from a taxation point of view, but I think I am correct in assuming that those contributions represent a net figure and, consequently, to the extent that annual contributions of $5,614.00 have not been paid by the plaintiff’s employer up to January 1994, the plaintiff’s loss of earning capacity in that regard is to be calculated by reference to that figure. The relevant period is 2.24 years and the loss is $12,600.00 approximately.
The only evidence about the relevant rates of taxation was contained in the actuary’s letter dated 8 September 1998 which forms part of Exhibit P3. However, the approximate proportion of the plaintiff’s gross salary taken by tax was about 30 per cent and in taking a broad brush to calculation of past economic loss, I think that this is an appropriate percentage to apply for the purposes of my assessment of economic loss. I therefore think that the plaintiff has established two components of his economic loss: first, the sum of $68,000.00 approximately in relation to his base salary for the period October 1991 to January 1994; and, second, the sum of $12,600.00, being the loss assessed by reference to the superannuation contributions made by the plaintiff’s employer.
Mr Walsh submitted that the plaintiff was also entitled to have taken into account the loss of the opportunity to gain promotion between the date of the accident and the date of trial and losses associated with the fact that the plaintiff used holiday and sick leave entitlements to cover time away from work after his return to work.
Mr Stratford submitted that there is no evidence to suggest that the plaintiff would have gained promotion with his employer had the accident not occurred and I accept that this is the finding that should be made in light of the evidence that was called from his employer in that regard. However, I must make a positive allowance for two contingencies: first, that the plaintiff may have been able to obtain other more remunerative employment. I think it is necessary to do this because in general terms, the plaintiff was on the lookout for more remunerative employment. Second, it is evident from the income records relating to employment prior to the accident, the plaintiff received increments from time to time. An allowance should be made for this when assessing past loss of earning capacity for the period from the date of the accident to the date of return to work. These are very much jury questions but I think a modest allowance should be made for the 7 ½ year period from the date of the accident to May 1999. I think the sum of $25,000.00 adequately covers this aspect of the plaintiff’s past economic loss.
As to the loss to be assessed by reference to recourse to annual and sick leave, a schedule forming part of a written outline of submissions was handed up to me by Mr Walsh. That discloses an alleged loss of nearly $29,000.00 in that regard. Mr Stratford submitted, correctly in my view, that the schedule is largely unsupported by the evidence. Nevertheless, I think some allowance should be made for this aspect of the plaintiff’s loss and, again, it can be no more than a jury estimate. I think an allowance of $15,000.00 is appropriate.
For the above reasons, I assess damages for past economic loss in the sum of $120,600.00.

Future Economic Loss

As referred to earlier in these reasons, the plaintiff’s employment with his employer was terminated on 28 April 1999.
It appears from Exhibit P48 that his salary was increased to $66,400.00 gross per annum. It is apparent from Exhibit P48 that the amount of taxation he paid on this salary was dependent upon the extent of superannuation contributions made by the employer, those contributions forming part of the salary package. Mr Walsh submitted that I should find that the net income of the plaintiff from March 1998 should be taken as $800.00 per week. That amounts to a net income of $41,600.00, which means an allowance for taxation has been made in the sum of $21,800.00. That represents about a third of the gross income. Mr Stratford accepted that this was an appropriate allowance for taxation.
Exhibit P3 consists of an actuary’s calculation of economic loss applicable to the age and circumstances of the plaintiff. The relevant multiplier is 598 and if applied to a weekly loss of $800.00, the product is $478,400.00. The figure arrived at by the actuary amounts to $471,000.00, being the lower range of the scale advanced by the actuary depending upon the amount of superannuation contributions.
In a case such as this, in order to assess damages for future loss of earning capacity, the Court has to commence with an examination of what the plaintiff’s earning capacity, but for the accident, would have been as at the date of trial. This is usually expressed in dollar terms by reference to the income that the plaintiff would have earned as at the date of trial but for the accident. This is not to say that the assessment is essentially an exercise in calculating lost income. It is clear from the judgment of the High Court in Medlin v SGIC (1994-95) 182 CLR 1, that the Court’s task is to assess damages for loss of earning capacity. Nevertheless, having recourse to evidence as to what would have been the plaintiff’s weekly income as at the date of trial but for the accident, is a common device used legitimately by the Courts as a starting point. It is subject to a number of qualifications depending on the circumstances of the case. The plaintiff may not be in employment at all but evidence is given that had the plaintiff remained in employment engaged in at the date of the accident, the plaintiff’s earnings would have been at the date of trial a given dollar amount. Alternatively, by the date of trial, the plaintiff may have been able to return to work and been in receipt of income the equivalent of what he or she would have earned but for the accident. The permutations may not be endless but they are many and varied. Frequently the Court then has resort to evidence which enables the Court to express in present day terms the value of an income which accrues to the plaintiff for the remainder of his or her expected working life, the expectation being based on the assumption that the accident giving rise to the claim for damages had not occurred. The Court is required, by such a process, to evaluate what might have happened or not happened in the past and future on the assumption that the original accident had not occurred. This process was the subject of consideration by the High Court in Malec v JC Hutton Pty Ltd (1989-90) 169 CLR 638. In that case the majority (Deane, Gaudron and McHugh JJ) said at 642:
“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. ... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of possibility. The adjustment may increase or decrease the amount of damages otherwise to be awarded. ... The approach is the same whether it is alleged the event would have occurred before or might occur after the assessment of damages takes place.”
Brennan and Dawson JJ referred to the speech of Lord Diplock in Mallett v McMonagle [1970] AC 166 where his Lordship said at 176:
“The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”
It is common ground that, after the plaintiff returned to work in January 1994, he remained in that employment until 28 April 1999 when his employment was terminated by his employer due to a “downturn in workload”. It is apparent from the evidence of Mr Prouse, a senior officer of the plaintiff’s employer, that the downturn in workload related to less work being available to the employer as a whole.

Given that I have found that the plaintiff’s net weekly income as at March of this year was $800.00, it is safe to assume that as at May of this year, when evidence and submissions had been completed, his net weekly income would have been in the vicinity of $800.00 had he still been in Kinhill’s employment. That finding constitutes an evaluation of what the plaintiff’s earnings would have been had he remained in the employment of Kinhill. I use that evaluation as part of the process of evaluating what the plaintiff’s working capacity would have been had the accident with the train not occurred. This is necessary because, in order to make a fair assessment of damages for loss of earning capacity, the loss of earning capacity must be measured by reference to what would have been the earning capacity of the plaintiff as at May 1999 had the accident not occurred and what it actually was. The latter requires a finding on the balance of probabilities which, when made, is then treated as a certainty.
I conclude from the findings that I have already made about the nature and extent of the plaintiff’s injuries and disabilities that he has retained, almost undiminished, the intellectual capacity to perform his vocational employment. This is qualified to a small degree by the depression which he experiences from time to time. As to the physical limitations, I find that these are considerable. I have observed him walking with crutches and he does so only with great difficulty. It would be quite inadvisable for him to attempt to work outside. He is therefore confined to employment which enables him to work in an easily accessible environment. He no longer has the energy and drive that he once had. He is a much less attractive proposition to a potential employer than he would have been had he been able-bodied. Nevertheless, he has retained a residual working capacity and this factor must be allowed for in the assessment of damages.
It is necessary to evaluate how long he would have worked for but for the accident. In my view it is likely that he would have worked until at least age 60 and probably until age 65. Before the accident he was an active, able-bodied person interested in his work. He was able to undertake a wide range of interests and hobbies as well as acquit himself well in the performance of his employment duties. It is possible that he may have been precluded from working either temporarily or permanently, by illness or accident, but my evaluation of this aspect of the future, on the assumption that the accident had not occurred, is that the chances of such occurrences were the same as the ordinary vicissitudes of life might occur to any other person. In other words, I do not consider that those chances were very high.
In order to attempt to assess the value of the working capacity of the plaintiff had the accident not occurred, I take into account the actuarial calculations in Exhibit P3 in a general way. Mr Walsh submitted that in assessing damages for future economic loss I should evaluate the chances of the plaintiff proceeding to higher levels of income for the remainder of his working life. I agree that that prospect should be taken into account. I think it is possible that the plaintiff may have been able to obtain a level of seniority in employment beyond that which applied as at the date of the termination of his employment.
I must also take into account the adverse contingency that in fact his employment was terminated in April of this year for reasons not associated with his injuries. The plaintiff is now in a position where he has to attempt to get back into the employment market. But for his injuries, I think he would have had very good prospects of regaining employment, which may or may not have been commensurate with his employment with Kinhill. He might have been retrenched in the future.
What might have happened but for his injuries, is to be contrasted with the plaintiff’s present position. In my view, the plaintiff’s working capacity has been considerably diminished by the injuries that he has sustained. Although intellectually he is capable of the task, the physical limitations imposed upon him by his injuries and disabilities are a severe impediment to his regaining employment, and if he regains it, of maintaining such employment. Most prospective employers in the field of the plaintiff’s expertise require a physically fit employee so that the employee may then be engaged in all aspects of the type of work undertaken by such an employer. My evaluation is that the physical limitations experienced by the plaintiff will be a great impediment to him regaining employment and, if he is lucky enough to do so, to maintain that employment.
Of course, I must taken into account that he has the intellectual capacity to look for different forms of employment and there he is on less gloomy ground if the employment is physically capable of being undertaken by a disabled person and if such work is available.
Weighing these various competing factors in the balance, I consider that damages for loss of earning capacity in the future should be assessed in the sum of $500,000.00.

Gratuitous Services

A claim for gratuitous services has been made but because I have determined that the provisions of Section 35A of the Wrongs Act 1936 apply, no allowance may be made. The evidence is that the plaintiff was visited in hospital and afterwards by his brother and sister on a regular basis. Under the provisions of Section 35A(1)(g) of the Wrongs Act no allowance may be made in respect of siblings. There is some evidence that the plaintiff was visited by his parents, but that evidence does not disclose that assistance was rendered of the type envisaged in Griffiths v Kerkemeyer (1977) 139 CLR 161.

Future Medical and Other Costs

By reference to Item 6 of Exhibit P3, the report of Mr Wicks of 4 November 1998 in Exhibit P1 and the report of Dr Clothier dated 13 November 1998 contained in Exhibit P1, the following future costs have been identified:
Prosthetics........ $147,154.00
Orthotics$ 18,620.00
Wheelchair........ $ 21,000.00
$186,774.00
These claims are not in dispute apart from the extent to which an allowance should be made in relation to the use and maintenance of the wheelchair.
The plaintiff has been using the wheelchair on a daily basis for a number of years, particularly in the morning. Based on Mr Pohl’s evidence, I consider that the plaintiff will become more dependent upon the wheelchair in the coming years. I accept that by age 60 he is likely to be confined to a wheelchair. Each of the above amounts constitute the present value of future costs. I am satisfied that the claim of $186,774.00 should be allowed.
A claim has been made for the cost of removal, in the future, of a small bony lump around the lateral aspect of the plaintiff’s right patella. This has been referred to in the report of Mr Wallace dated 13 December 1996 as an exostosis. According to Mr Wallace it has the potential to grow larger but it only needs to be removed if it causes pain or pressure problems in relation to the plaintiff’s artificial limb. I am required to make an evaluation as to the need, in the future, to remove the exostosis. Doing the best I can with the opinions expressed by Mr Wallace in his report of 13 December 1996, I can only conclude that this problem may occur in the future but equally it may not. In the circumstances I think an allowance of $1,350.00 ought to be made in this regard.
The plaintiff has made a claim in relation to future urological costs. These are dealt with in the report of Dr Bolt (Exhibit P37). Dr Bolt said that “there is a good probability that [the plaintiff’s] sphincter will fail over a 5-10 year period and he will need some form of revision”.
Dr Bolt has set out in his report the various possibilities as follows:-
“I will outline on a separate page the exact cost of a new sphincter which would be $6,300, the theatre fee costs of $1,200 and the costs of the hospital assuming five nights. I will outline also the surgical fees. This situation assumes that if his sphincter mal-functions, it is going to be technically possible to revise his sphincter. If it is not technically possible he may have to manage long term with pads or with urodomes which is a condom sheath drainage attached to the penis. This would cost at least $2-$3 a day long term. If a sphincter revision was not appropriate an alternative reconstruction of the bladder to overcome the incontinence may be necessary. It is a bit hard to be specific about the exact details of this until we see what happens at the time, but, if for example, he ended up having a continent supra-pubic catheterizable stoma and urinary diversion, the cost will still run into the order of $10-15,000. The follow up that he would need would be consultations twice a year and a renal and bladder ultrasound once a year. I will itemise the cost of a follow up consult and the costs of the bladder and renal ultrasound.”
The costings are as follows:-
Sphincter....................................... $6,300.00
Theatre$1,200.00
Bed $390/night x 5....................... $1,950.00
Anaesthetist      $   896.00
Dr John Bolt.................................. $1,255.00
Assistant$   251.00
Ultrasound..................................... $   199.00
Consultation      $     51.00
As I understand it, there are three alternatives: first, the surgical insertion of a new sphincter; second, drainage with pads or urodomes; and, third, reconstruction of the bladder. Whatever approach is taken, the plaintiff will require two consultations a year and a renal and bladder ultrasound once a year. The follow up amounts to an annual cost of $250.00, the present day value of which for life is approximately $7,500.00. The present day value of the cost of pads or urodomes ranges from approximately $11,000.00 to $16,500.00. The present costs of the replacement of the sphincter amounts to just over $11,000.00 and the reconstruction cost of the bladder is somewhere between $10-$15,000. My evaluation based on Mr Bolt’s opinion that there is a good probability that the plaintiff’s sphincter will fail in the future, is that a substantial allowance needs to be made to cover this contingency. The amount of the allowance is to be determined by reference to the respective costs of the three alternatives referred to by Mr Bolt and by reference to the cost of the follow up procedures which will be required in any event. As I understand it, those follow up costs apply from the date of trial even though the failure of the sphincter may not occur for another five to ten years. I allow the sum of $7,500.00 for those follow up costs. As to the three alternatives, I think that the sum of $12,000.00 is appropriate.
The plaintiff has claimed the cost in the future of knee replacements. The current cost of such an operation is approximately $16,000.00. Mr Pohl said in evidence (T340 et seq) that if the plaintiff continues to walk or attempt to walk it would be more likely than not that he would require a knee replacement in both legs before he reached 60 years of age. It was his view that the plaintiff would not require more than one knee replacement for each leg. It seems from Mr Pohl’s evidence that both the need for and the timing of knee replacements is dependent to some degree upon the extent to which the plaintiff uses a wheelchair from now onwards. I take that to mean that if he uses the wheelchair extensively then the likelihood of the requirement for knee replacements is lessened.
I had the opportunity to observe the plaintiff walking with the aid of crutches and it appears to me that he has great difficulty in doing so. That by itself would tend to require the conclusion that the plaintiff is and will continue to be heavily dependent upon the use of a wheelchair. This is particularly so now that he has lost his employment and, as I have said, the prospect of him regaining employment is not good. As against that, the plaintiff is the type of person who will attempt to minimize to the extent possible the limitations placed upon him by his injuries. In other words, I think that he has and will continue to avoid the use of a wheelchair where possible. Taking all of these factors into account I think that a substantial allowance should be made for the future cost of knee replacement operations. I allow the sum of $25,000.00. To this should be added the sum of $1,500.00 to cover the cost of follow up consultations with Mr Pohl.
The plaintiff will be required to attend his general practitioner on at least nine occasions each year at a cost of $25.00 per visit. The present value of such consultations is approximately $3,400.00. I allow that sum.
The present cost of medication is $3.20 per week per script. The plaintiff is required to take five different types of medication. The present day cost amounts to $12,500.00 approximately. Given that the extent of the medication required to be taken may vary in the future I think an allowance of $10,000.00 in this regard is appropriate.

Future Care

Under this heading the plaintiff claims the cost of domestic/housekeeping services and gardening/handyman home maintenance. For domestic help the plaintiff has made a claim from the date of trial until he reaches age 60 and a claim from age 60 onwards. For the first period the claim is for three hours per day every day. The hourly rates are $16.00 per hour for week days and $17.00 per hour for Saturday and Sunday, amounting to a weekly cost of $342.00. The plaintiff contends that after age 60, when he is confined to a wheelchair, he will need additional domestic assistance.
I do not think that the plaintiff will require domestic assistance to the extent contended for. In my view, something like three hours a day four days a week will be sufficient up to the age of 60 and beyond. The appropriate multiplier is 784.00, which gives a present day value of approximately $150,000.00. I allow that sum.
The plaintiff will also need to employ someone to carry out gardening and home maintenance. The extent of this requirement will depend to a large extent on where he lives. I think there is a real possibility that he will need to move from his present home, which is entirely unsuitable for a person with his disabilities, to somewhere more practical, both as to its geographical location and as to the ease with which the plaintiff may move about the home.
The plaintiff claims four hours per week at $25.00 per hour. The present day value of which is approximately $78,000.00. I think that the allowance should be made by reference to something in the order of two to three hours per week. Bearing in mind the uncertainties relating to this aspect of the plaintiff’s damages I think it appropriate to award the sum of $45,000.00.
The plaintiff claims the cost of modifications to the home arising from the limitations imposed upon him by his injuries. Exhibit P18 discloses a present cost of modifications amounting to $63,500.00. Again, the amount of the allowance to be made depends upon where the plaintiff lives. As I have indicated, I think it inevitable that he will have to relocate and he will incur expenses in that regard. By the same token he may move to a house which does not require modification to the extent set out in Exhibit P18. In all the circumstances, I think an allowance of $60,000.00 is appropriate.

Additional Motor Vehicle Expenses

The plaintiff claims additional costs both in the past and in the future. As to the past, he claims an annual loss of $1,424.00, which consists of $624.00 per annum ($12.00 per week) plus $800.00 per annum for the cost of servicing his vehicle. This gives rise to a pre-trial loss of approximately $7,000.00. In addition he has claimed a total of $700.00 for modifications to the car to enable him to drive it by hand. These calculations do not take into account the extensive period during which the plaintiff was hospitalised and undergoing rehabilitation, when the plaintiff was unable to re-use the vehicle. In the circumstances I think an allowance of $5,000.00 is appropriate.
The plaintiff has also claimed the cost of purchasing a larger vehicle amounting to $30,000.00 approximately. I accept that some allowance must be made in this regard but not the full cost of the vehicle. The plaintiff is unable to continue what he did in the past, namely purchase old vehicles and restore them. However, there must be deducted from the cost of a new car an allowance for the cost that would have been incurred by the plaintiff and the acquisition of vehicles had the accident not occurred. In all the circumstances I think that an allowance of $15,000.00 is appropriate.

Special Damages

These have been agreed in the sum of $530,630.99. I allow that sum. In summary my assessment is as follows:-
Non-economic loss............................... $     52,400.00
Past economic loss     $   120,000.00
Future economic loss............................ $   500,000.00
Future medical and other costs    $   247,524.00
Future care.............................................. $   255,000.00
Motor vehicle    $     20,000.00
Special damages..................................... $   530,630.99
$1,725,554.99
I will hear counsel as to interest and costs and entry of judgment on the claim and contribution proceedings.

[1999] SASC 311

6 August 1999