Wade v Steamranger & Anor

[2001] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A33 of 2000

B e t w e e n -

STEPHEN ROBERT WADE

Applicant

and

AUSTRALIAN RAILWAY HISTORICAL SOCIETY (SOUTH AUSTRALIAN DIVISION) trading as STEAMRANGER

First Respondent

ALEXANDRINA COUNCIL

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 1 JUNE 2001, AT 11.13 AM

Copyright in the High Court of Australia

MR S. WALSH, QC:   If the Court pleases, I appear for the applicant. (instructed by Angela Bentley & Associates)

MR A.J. BESANKO, QC:   If the Court pleases, I appear with my learned friend, MR I.C. ROBERTSON, for the first respondent. (instructed by Rowell Forrest & Co)

MR D.H. GREENWELL:   If the Court pleases, I appear with my learned friend, MR W.G. DUDDY, for the second respondent. (instructed by Duddy Shopov)

GUMMOW J:   Yes, Mr Walsh.

MR WALSH:   If the Court pleases, as a result of the decision of this Court yesterday in two cases of Ghantous, on the one hand, and Brodie, on the other hand, the submissions that we put to you today must necessarily be different to those which otherwise we would have put because now the issue of immunity of highways authorities, as it was then thought to be, has now been settled by this Court.

However, in relation to the liability of the second respondent, Alexandrina Council, the position then becomes this, as a result of the decision of the Full Court:  in the first instance, the Council had been found liable in negligence to the plaintiff on two bases, one in so far as it failed to provide appropriate signage; two in so far as it failed to clear foliage on the side of the road.  In the Full Court, the Full Court rejected the conclusion that there was negligence with respect to the failure to cut back foliage because the court found that there was the immunity for public authorities in relation to highways precluded any finding of negligence.  That meant that there was only a finding of negligence ‑ ‑ ‑

GUMMOW J:   But did Chief Justice Doyle not go on to consider the application of negligence generally, as it were?

MR WALSH:   Yes, he did, your Honour, and his Honour concluded that ‑ ‑ ‑

GUMMOW J:   Did his Honour not therefore, as it were, anticipate yesterday’s events on one branch of his reasoning?

MR WALSH:   Yes, what his Honour did was say that had there been no immunity, then he would have agreed that the Council was liable in negligence and his Honour concluded that there would have been a duty of care.  His Honour referred to the decision of this Court in Crimmins and then concluded on a proper analysis of the facts that had there been no immunity, then the Council were liable for failure to cut back the foliage.  So we are then in the position before this Court where, because of yesterday’s decision, the rejection by the Full Court of one ground of negligence, namely the issue of the foliage and the failure to clear it, is not well founded.  In fact, the Full Court would not have disturbed the finding of negligence with respect to that issue had, of course, have had the advantage of the recent decisions.  That means that the decision of the Full Court and the challenge with respect to the major issue of liability and contribution has been pursued or determined, rather, in a sense, on a false premise, namely that there was only one basis for successfully arguing that the Council was negligent.

In our respectful submission, that raises an important issue, certainly as far as the plaintiff is concerned, and it is an issue which we say raises a question of whether special leave should be granted on the basis that it is in the interests of the administration of justice.  As a matter of interest in relation to the issue of ‑ ‑ ‑

GUMMOW J:   But is your client’s real difficulty the finding against him of serious negligence on his part contributing to these events which led to such a substantial reduction?

MR WALSH:   It was a very substantial reduction and, matched against these facts, that the learned trial judge concluded that there was almost an invitation for an accident to happen at that railway crossing.  It was not your typical railway crossing, it was a relatively rarely used railway crossing and when that was said at 29.35, it really highlights, in our ‑ ‑ ‑

GUMMOW J:   I know all that, but was your client not driving far too fast?

MR WALSH:   No, I think what the court concluded was that the speed limit was 100 kilometres an hour, that his speed was something of the order of 90, that he did not reduce speed, but as soon as he got to a point where there was a clearing in the vegetation, in effect, he applied his brakes as soon as he could but, unfortunately, at that speed he was unable to avoid an accident.  But it must be remembered that, in effect, nobody would have avoided an accident in the circumstances of this case had they been doing more than about 55 kilometres an hour because there was not sufficient time to avoid an accident on the findings that were made. 

So, what we have here is a situation where you have almost an invitation for an accident to happen as far as the Council was concerned because of its failure in negligence on two issues now, not just the one.  We have the fact that there was a 100 kilometre speed limit, no sign saying “Travel only at 55 kilometres an hour”, which you had to be below that in order to be able to successfully avoid a collision, and the negligence of the plaintiff must be viewed in that light.

Yes, it is true that the plaintiff was negligent, but when one looks at the respective culpability of the Council in the light of the findings by the trial judge, in our respectful submission, also looking at the fact that the issue of contribution must have been viewed by the Full Court in the light of the fact that there was only one basis for negligence on the part of the Council, namely the failure to provide a stop sign, in our respectful submission, that warrants reconsideration of the issue because, as we say, the court has proceeded on a false premise, as it were, on that issue, your Honours.  If the Court pleases, that deals with the issue of the Council.

In relation to the first respondent, the issues that we raise are these:  that the Full Court overturned the decision of the trial judge, true, on the basis that the trial judge had erred in so far as it found that Steamranger had no obligation to place a sign, but by the same token, rejected that there was any negligence on the part of Steamranger, despite the very unique features of the case.  There are two points that emerge in relation to this:  firstly, that the Steamranger was a leisurely tour, it was not a train facility which had a deadline to meet, and the Steamranger knew that this was a dangerous crossing, that there had been very near misses in the past.        The driver and the fireman knew that that was so. 

In addition, we have another important circumstance that in the present case it was said by the Full Court, by the learned Chief Justice, that there was some significance in the fact that there was no standard applicable with respect to trains and his Honour seemed to be treating it on the basis that one should draw a distinction between this type of circumstance and, say, the ordinary accidents that occur on the roads, despite the fact that this was a very unusual train accident, and for the very reasons we outline in our outline of arguments.

At page 99 point 40 of the book of documents, his Honour the Chief Justice observed that, at the foot:

Another way of putting it is that the plaintiff had to show that by reference to some established and identified standard, the speed of the train was excessive.

His Honour went on at page 100 at line 22 to deal with that issue again.  His Honour said:

For those reasons, expert evidence or proof of established standards by which to assess speed is not usually necessary.

His Honour was there talking about the ordinary case, but then seemed to assume or said that:

The situation is quite different in assessing the reasonableness of the speed of a train.  That is not to say that the issue that the Master had to decide was anything other than an issue of fact . . . But absent any expert evidence, or evidence from an experienced operator indicating a basis for the finding that the plaintiff needed to obtain to succeed, or evidence of some standard against which to assess the appropriateness of the train’s speed, the Master had to make his own assessment as a matter of common sense.

He seemed to be asserting that if a plaintiff in these circumstances does not provide expert evidence, then that would tend to indicate that there is no evidence of negligence when, of course, in our respectful submission, the court will make its own assessment based on the facts and based upon the indicia of evidence of negligence on the part of a particular person that is said to be negligent by a plaintiff.  His Honour concluded on this topic at page 118 point 23 in relation to the issue of Steamranger’s liability ‑ ‑ ‑

KIRBY J:   Page 118?

MR WALSH:   Page 118, your Honour, at point 20, sorry, paragraph 172:

As operator of the train, I have no doubt that Steamranger owed a duty of care to road users.  In relation to Steamranger, the issue is whether its duty of care embraced a responsibility for the choice of traffic control devices used at level crossings.

Then his Honour continues:

Steamranger’s duty of care obviously embraced things like the speed of the train, the use of the whistle –

and so forth.  Then in the next paragraph, his Honour said ‑ ‑ ‑

KIRBY J:   I know this is very important for your client, but it does not strike me as a special leave point.  This is just a factual assessment of an issue of negligence which, in a sense, is a sort of running-down case, except that the running down was done by a train.

MR WALSH:   Yes, there are rare cases where the Court might consider that in the interests of the administration of justice, that special leave ought to be granted.  Nonetheless, we acknowledge that ‑ ‑ ‑

KIRBY J:   I am not unaware of that, but I am just looking at it from the point of view of its significance.  It does not seem to be ‑ ‑ ‑

MR WALSH:   Yes, the two points we raise is that there was really no warrant in the overall circumstances of the case for the appeal court to interfere and, in that way, gives rise to issues of ‑ ‑ ‑

KIRBY J:   I am not hearing you, Mr Walsh, can we have the sound increased?

MR WALSH:   Yes, I am sorry, I may have moved away a little from the lectern.

GUMMOW J:   You were sounding a bit muffled.  It is better now.

MR WALSH:   It is probably my cold and I apologise for that.  If the Court pleases, there are two points that we make:  one is the appropriate circumstances in which an appeal court should interfere, particularly with a finding of negligence, as in this case, against Steamranger, particularly where there are good grounds for saying that there was negligence for reasons other than expressed by the learned trial judge, and we say that there were such grounds.  The second issue, I suppose, that we would say is that an important issue that arises from this case is that it appears as if the Full Court has imposed a standard of proof with respect to negligence in this case which is not warranted, namely that you should have to prove some sort of standard by way of expert evidence when, on the face of the evidence before the Court, the Court is in a perfectly good position to make its own assessment. 

So that if this decision is allowed to stand, then you will have, potentially, judges in other decisions looking for standards in cases such as this or other cases, indeed, when there is no warrant for that to be so.  It may be an important way to prove in some cases, but it does not mean that a plaintiff should fail, and by way of example ‑ ‑ ‑

KIRBY J:   Surely, it does not require the High Court of Australia to say that in most running-down cases you do not need expert evidence.  I mean, there are thousands of those going on at this very moment as we speak, throughout the nation.  You do not get expert evidence in many cases, but this was an unusual case.

MR WALSH:   This was an unusual case and there will be other unusual cases, that is a point we make.  We certainly would not be asking this Court to be looking at running-down cases at large, but we are talking here about the different type of case that it should be asserted that there needs to be expert evidence and a standard proven and we say that is a dangerous principle, in our respectful submission, in so far as it is put in that way, particularly against the court’s conclusion in paragraph 173 at page 118, where the court said:

Common sense suggests that as operator of the train Steamranger could not ignore the issue of traffic control devices at level crossings.  At the least, its duty of care might require it to operate a train at a low speed when approaching a level crossing if Steamranger is aware that the relevant highway authority has not or will not install traffic control devices which appear reasonably appropriate to avoid the risk of a collision between road traffic and a train.

Here, as we say, the case is such that there was evidence of near misses at the crossing, it was infrequently used, but there were considerable volumes of vehicles using the road, there was no strict schedule for the train, there were several near misses which were known to the driver and to Steamranger, the train was a tourist train, and the evidence was that it could have stopped, for example, for a short period of time of two or three minutes at another point and that would not have affected its progress.  There was no evidence to say that these near misses at this particular crossing ought to bring into play a policy issue in relation to all train crossings because it was not sought to, for example, show that there were other crossings just as dangerous as this one and try to compare that and then say, “Well, that means that we should ignore the danger of this particular crossing because, for policy reasons, it is not reasonable to expect something to be done”, and particularly given that this was Steamranger that had control, not only of the train, but control of the railway corridor as well as a result of the legal documentation and the agreements that had been entered into.

So it is true that as your Honour Justice Kirby puts to us, that obviously in a case like this, it is important that we able to demonstrate to the Court that there is something that warrants treating this in a way which justifies special leave or grant of special leave on the basis of the interests of the administration of justice, but there are some powerful reasons, we say, in this case, both in relation to the issue of Council, on the one hand, and what we have put to you already, and also in relation to Steamranger on the other, which would justify the grant of special leave in this case.

We point out that if the conclusion stands, then this might be drawn from the decision in relation to the facts of this case.  In relation to trains, there must be some proof of standards with respect to speed before a court will conclude that there was negligence in relation to the use of the train, even if it was a leisurely tour, a disused track for other purposes, even though it might be known that it was a highly dangerous crossing, even

though there was no time pressure, no obligation to slow down, in circumstances where it would have added only 1.5 minutes to the train’s travel time to travel, say, 15 kilometres an hour over two crossings in the area, when there was evidence of the train stopped at, for example, Strathalbyn, and it would not matter if the train stayed there for a few additional minutes.

As against this, the plethora of evidence which suggest that, in relation to the plaintiff, he was in an accident waiting to happen, according to the trial judge, a tunnel created for his passage, and that, had he been travelling, in effect, on the evidence, more than 50 to 55 kilometres per hour, he had no hope of avoiding the train.  No sign saying that you should limit your speed.  So, if your Honours please, they are the reasons that we say that this case is somewhat exceptional, and that the grant of special leave is warranted.  If the Court pleases. 

GUMMOW J:   Yes, thank you, Mr Walsh.  We do not need to trouble you, Mr Besanko and Mr Greenwell. 

The applicant sought special leave to appeal and in written submissions argued that it should be granted to permit this Court to reconsider the highway rule, affording immunity to certain statutory authorities.  Yesterday, this Court, in Brodie v Singleton Shire Council (2001) HCA 29, delivered its decision dealing with that point. It is unnecessary to grant special leave upon that question.

In his reasons in the Full Court, Chief Justice Doyle anticipated in his reasons the course of events that occurred in Brodie.  At paragraphs 148 to 168, he considered the matter on the footing that this Court might conclude that the Alexandrina Council, the second respondent, did not enjoy an immunity.

We see no error in his Honour’s treatment of the issues upon that eventuality, nor do we see any error in the way in which the liability of the first respondent, the Australian Railway Historical Society, South Australian Division, was dealt with.  To succeed, the applicant would require this Court to reverse findings of fact, and we do not consider that there are real prospects of succeeding in that endeavour. 

Accordingly, special leave is refused with costs, and the Court will adjourn to reconstitute. 

AT 11.33 AM THE MATTER WAS CONCLUDED