Warren Carpenter v Pacific National (NSW) Pty Ltd

[2010] FWA 6994

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren Carpenter
v
Pacific National (NSW) Pty Ltd
(U2009/14476)

DEPUTY PRESIDENT HARRISON	NEWCASTLE, 10 SEPTEMBER 2010
Application for unfair dismissal remedy - arbitration

[1] This matter arises from an application for unfair dismissal remedy filed on 7 December 2009 pursuant to s.394 of the Fair Work Act 2009 (FW Act) by Mr Warren Carpenter. Mr Carpenter (the Applicant) was employed by Pacific National (NSW) Pty Ltd (the Respondent) as a Train Driver from 1995 until the termination of his employment on 7 December 2009.

[2] The application was subject to conciliation proceedings which proved unsuccessful.

THE HEARING

[3] Hearing of the matter took place on 13, 14, 27 and 28 July 2010 in Newcastle. Mr Carpenter was represented by Ms Presdee of the Australian Rail, Tram and Bus Industry Union (RTBU). The Respondent was represented by Mr Shariff of Counsel instructed by Mr Baroni of Clayton Utz Lawyers.

[4] Mr Carpenter gave evidence on his own behalf. Ms Presdee brought evidence from Mr Kerry Kidd, and Mr Wayne Bates who are also employed by the Respondent as Train Drivers; and Mr Stephen Wright, who holds the position of Divisional Freight Organiser for the RTBU.

[5] The Respondent brought evidence from the following officers and employees:

Mr Andrew Hall Superintendent Rail Safety Standards

Mr Peter Everingham Divisional Safety Health Environment and Quality Officer Coal, NSW

Mr Gary Wolfe Train Crew Supervisor

Mr Paul Gorman Trainer Driver

Mr Russell Allum Train Crew Superintendent Coal NSW

Mr Craig Cable Manager of Coal Assets NSW

Mr Grahame Ford Train Crew Manager NSW

Further witnesses for the Respondent not employed by it were:

Mr David Rumble National OH&S Manager, MVM Rail Pty Ltd

Mr Bruce Sismey Consulting Engineer, Interfleet Technology Pty Ltd

Events Leading To Termination

[6] The events leading to the termination of Mr Carpenter’s employment occurred on 16 November 2009 when he, accompanied by a co-driver, Mr Kidd, was in charge of a loaded coal train on the Ulan to Muswellbrook Line. The Respondent alleges that Mr Carpenter was driving at a speed of up to 75 kilometres per hour, 15 kilometres above the rated maximum speed; that because of this excessive speed Mr Carpenter did not control the train sufficiently; that he failed to employ correct procedures, particularly concerning braking; and that due to this Mr Carpenter was unable to stop the train when signalled to do so, travelling 300 metres into a work site.

[7] Mr Carpenter was issued with a Show Due Cause letter 1 on 27 November 2009, in which the allegations were put to him and a response requested. He responded by letter on 2 December 20092. This response was considered in conjunction with the investigation report3 into the events of 16 November 2009. On 7 December 2009 a meeting took place between Mr Carpenter and Mr Ford, Train Crew Manager NSW. At the conclusion of this meeting Mr Carpenter was issued with a letter confirming the termination of his employment for serious misconduct4.

[8] Mr Kidd and Mr Carpenter took the fully loaded train, identified as Unit No 19 Job No AT750, from Wilpinjong Mine loading point to Antiene coal unloading facility in the Ulan to Muswellbrook direction. The train consisted of three locomotives and 91 wagons loaded with coal with a total weight of 10920 tonnes and 1473.1 metres in length.

[9] Mr Kidd is qualified to drive trains loaded and without load in both directions on the Ulan line. Mr Carpenter is qualified in both directions on 42 wagon trains and had over the previous three years driven the route on several occasions. There is some conjecture as to whether this is more or less than ten occasions. In any event, it is sufficient for Mr Carpenter to be familiar with the route.

[10] Mr Carpenter is qualified to drive 91 wagon trains in the Muswellbrook to Ulan direction when the wagons are empty, but is not qualified to drive 91 loaded wagons in the Ulan to Muswellbrook direction.

[11] Mr Kidd’s evidence is that Mr Carpenter requested to drive the train on 16 November 2009, saying to him:

“Can I drive because I am coming up to be assessed on the return route”. 5

[12] Mr Carpenter asserted he was under pressure from Mr Hall to obtain accreditation to operate loaded 91 wagon trains on the Ulan to Muswellbrook line. This is refuted by Mr Hall in his statement of evidence. 6

[13] Mr Kidd deposed that it was normal practice for a driver without accreditation to be given control of a train for the purpose of obtaining experience and so he agreed. This is confirmed by Mr Hall in his statement of evidence wherein he sets out the Pacific National Training and Competency Requirements from pages 9 to 18, supported by Safety System Notices re Piloting of Trains in NSW 7 and Qualifications and Competency.8

[14] Mr Kidd concedes that he was not supervising well, if at all, having agreed to Mr Carpenter’s request to drive the train. Mr Kidd deposed that in hindsight he should have questioned Mr Carpenter closely on his experience and how well he knew the route and not assumed the level of competence he did. Mr Kidd put:

“I have been given no training whatsoever in training and mentoring other drivers.

... ...

On 30 March 2010 Pacific National issued a Safety Notice titled “Driving Under Instructions” which states that it is the responsibility of the qualified driver to confirm the knowledge/training of the non-route qualified driver prior to acting as a co-driver and, if necessary, to stop the train and take charge in certain circumstances.” 9

[15] Mr Kidd was given and accepted a formal warning in regard to his involvement in the matter.

The AT750 Route

[16] The train, with Mr Carpenter driving, left Wilpinjong at 10.40 am on 16 November 2009. The route is regarded as difficult, with a number of tunnels and gradients. Both Mr Carpenter and Mr Kidd gave a detailed description of the difficulties of Tunnel No 3 in their evidence.

[17] A data logger is fitted to Locomotive No 9016. Using the information from the data logger Mr Hall constructed an overview of Mr Carpenter’s operation of the train, set out below following paragraph 21.

[18] It is appropriate to note that where Mr Hall refers to “service application”, this is a well understood term in the rail industry for application of train brakes by a reduction in air pressure with the brake pipe system. The lower the brake pipe pressure the greater the application of the braking system. The evidence is that the maximum brake pipe pressure recorded is 495 KPa nil braking effect, to a minimum of 44 KPa maximum braking effect at11:58:12 recorded when the train was brought to a stop.

[19] Locomotive brakes operate on the wheels of the locomotive only, they do not operate on the wagons. Locomotive brakes operate on a reduction of air pressure from an auxiliary reserve known as the reserve cylinder, and will be applied automatically whenever a service application occurs, unless the train driver manually overrides their application, referred to in the industry as “bailing off”. Where the train driver “bails off” the locomotive brakes are released, which is a less effective braking action than allowing the locomotive and wagon brakes to operate in unison.

[20] Dynamic Braking is the use of the locomotive power to slow the speed of the train, adequately described by Mr Kidd in the following terms:

“Each train has a diesel engine with six traction (electric) motors underneath. The diesel engine runs a generator to give power to the electric motors and creates a force. Dynamic braking is when you turn the traction motors into generators and burn it into electricity and it creates a retarding effect on the electric traction motors. The use of dynamic braking will not bring the train to a stop but will slow you down and allow you to hold your speed in between applications of the train brake. 10“

[21] There are certain pre-conditions for the effective engagement of dynamic braking, the principal being that the locomotive throttle is in the neutral position and that train brake pressure is above 250 KPa.

[22] Overview of Mr Carpenter’s operation of the train:

The Train’s journey from Wilpinjong to the start of Tunnel No. 3

57. The Tabular Report, Data Graph and Data Analysis, as well as an analysis of the track gradient along the AT750 route, reveals the following about Mr Carpenter’s operation of the Train from the commencement of the Train’s journey from Wilpinjong to the start of Tunnel No. 3:

(a) at 10:33:14, the Train commenced motion at track point 423.112 km on a 1:40 gradient;

(b) from 10:34:49, .25 km from Wilpinjong (track point 422.860 km), to 10:39:59, 1.18 km from Wilpinjong (track point 421.200 km), the Dynamic Brakes were utilised. During this time the Train speed was maintained between 13 km/h and 27 km/h on a 1:40 gradient. The KPa at the time the Dynamic Brakes were applied was 492, and as a result was well above the minimum requirement of 250, meaning that the Dynamic Brake function was available (First Dynamic Brake Application);

(c) from 10:47:54, 7.84 km from Wilpinjong (track point 415.270km), to 10:49:18, 8.97 km from Wilpinjong (track point 414.140 km), the Dynamic Brakes were utilised. During this time the Train speed was maintained between 45 km/h and 48 km/h over an undulating grade onto a descending gradient of 1:67, prior to an ascending gradient of 1:80. The KPa at the time the Dynamic Brakes were applied was 495 and as a result was well above the minimum requirement of 250, meaning that the Dynamic Brake function was available (Second Dynamic Brake Application);

(d) at 10:58:23, 13.78 km from Wilpinjong (track point 409.330 km), the Dynamic Brakes were momentarily utilised in order to maintain a Train speed of 28km/h. At this point in time the Train was coming over the crest and starting to descend a 1:55 gradient. The KPa at the time the Dynamic Brakes were applied was 495 and as a result was well above the minimum requirement of 250, meaning that the Dynamic Brake function was available (Third Dynamic Brake Application);

(e) between 11:00:14, 14.88 km from Wilpinjong (track point 408.230 km) and 11:05:44, 19.59 km from Wilpinjong (track point 403.520 km), Mr Carpenter utilised the Train Brakes while on a descending gradient of 1:50. At the time of the initial application, the Train speed was 51 km/h. While applying the Train Brakes the Train increased speed to a maximum of 62 km/h and was, at the time the Train Brakes were released, reduced to 30 km/h; 11

(f) at 11:06:52, 20.19 km. from Wilpinjong (track point 402.920 km), the Dynamic Brakes were applied while the Train was descending a gradient of 1:50 and travelling at 45 km/h. The KPa at the time the Dynamic Brakes were applied was 492 and as a result was well above the minimum requirement of 250, meaning that the Dynamic Brake function was available. However, Mr Carpenter applied the Dynamic Brakes at a speed of approximately 45 km/h meaning that the Train had gathered too much momentum for the Dynamic Brakes to be effective. As a result, less than a minute after (at 11:07:40), the Train was travelling at 68 km/h and Mr Carpenter, in conjunction with the Dynamic Brakes, applied the Train Brakes. Mr Carpenter utilised the Dynamic Brakes and Train Brakes to manage the speed of the Train up until 11:09:44 (track point 400.830 km) at which time he released the Dynamic Brakes and Train Brakes. At that time, the speed of the Train, which had been 75 km/h, was reduced to 73 km/h as the Train started to climb an ascending gradient and, as a result, the gradient was also controlling the Train’s speed (First Combined Dynamic Brake and Train Brake Application);

(g) from 11:11:39, 24.84 km, from Wilpinjong (track point 398.270 km), to 11:13:44, 26.28 km from Wilpinjong (track point 396.830 km), the Dynamic Brakes were utilised in conjunction with the Train Brakes. The Train speed at the time was 47 km/h and the Train Brakes and Dynamic Brakes were used to control the Train’s speed approaching the ARTC Network Owners Speed Restriction of 25 km/h (Safe Sighting Distance level crossing). The Train’s speed was reduced to 21 km/h. The Train was travelling on an undulating grade at the time (Second Combined Dynamic Brake and Train Brake Application).

The KPa at the time the Dynamic Brakes were applied was 492 and as a result was well above the minimum requirement of 250, meaning that the Dynamic Brake function was available; and

(h) from 11:16:05, 27.06 km from Wilpinjong (track point 396.050), to 11:17:44, 27.88 km.from Wilpinjong (track point 395.230), the Dynamic Brakes were applied. The Train speed at the time was 25 km/h and the Dynamic Brakes were used to control the Train’s speed approaching the ARTC Network Owners Speed Restriction 20 km/h (Safe Sighting Distance level crossing). The Train was travelling on an undulating grade at the time. The KPa at the time the Dynamic Brakes were applied was 495 and as a result, were well above the minimum requirement of 250, meaning that the Dynamic Brake function was available (Fourth Dynamic Brake Application).

The Train’s journey from Tunnel No 3 to the Incident

58. The Tabular Report, Data Graph and Data Analysis, as well as an analysis of the track gradient along the AT750 route, reveals the following about Mr Carpenter’s operation of the Train from the time the Train entered Tunnel No. 3 to the Incident:

(a) at approximately 11:46:14, 377.100 km from Wilpinjong (track point 46.160 km), the Train entered Tunnel Number 3;

(b) at approximately 11:49:44, 47.38 km from Wilpinjong (track point 375.88 km), the Train had reached the middle of Tunnel No. 3. Given the length of the Train, nearly two thirds of the Train was in the Tunnel at this time;

(c) at approximately 11:50.44, 47.94 km from Wilpinjong (track point 375.170 km), the front of the Train had emerged from the Tunnel. The Train was descending a 1:50 gradient at the time. At this time the Train Brakes were applied to reduce the Train’s speed of 37 km/h. As a result, the Train reduced speed and, at 11,53:14, when the Train Brakes were released, the Train’s speed was 16 km/h;

(d) despite the fact the Train was continuing to descend a 1:50 gradient, shortly before the Train Brakes were released, the Train was moved from notch 1 to notch 2, increasing the Train’s pulling power;

(e) at 11:53:41, 49.22 km from Wilpinjong (track point 49.220 km), the Train sounded the horn in response to the outer flagman. The Train remained in notch 2 until 11:54:27, when it was reduced to notch 1. As a result of the delay in reducing the throttle from notch 2 to notch 1, the speed of the Train increased by 19 km/h on a 1:50 gradient.

While the KPa’s were well above the minimum requirement of 250, Mr Carpenter did not place the Train’s throttle into idle in order to prepare the “set-up” sequence for the Dynamic Brakes as he had done on six occasions during the journey from Wilpinjong in order to effectively control the speed of the Train on lesser gradients. Rather, Mr Carpenter applied the Train Brakes to arrest the Train’s speed;

(f) the Train passed the inner flagman at 11:56:45. Between the time the Train horn sounded and the time the Train passed the inner flagman, Mr Carpenter continued to attempt to arrest the Train via the Train Brakes. During this time, the Independent Brakes were automatically applied on two occasions and Mr Carpenter “bailed off” the Independent Brakes on both occasions, effectively reducing the Train’s braking force. It was not until 11:56:39, only 6 seconds before the Train passed the inner flagman, that Mr Carpenter placed the Train’s throttle into idle in order to prepare the Train for Dynamic Braking; [emphasis added]

(g) at 11:56:50, 51 km. from Wilpinjong, an emergency application of the Train Brakes was made;

(h) from 11:56.54, 51.56 km from Wilpinjong, to 11:58:12, 52.25 km from Wilpinjong, Mr Carpenter also attempted to apply the Dynamic Brakes. However, the KPa at the time the Dynamic Brakes were applied was 154 and as a result, was well below the minimum requirement of 250, meaning that the Dynamic Brake function was not available; and

(i) at 11:58:13 the Train came to a stop on a gradient of 1:54. 12

[23] This led Mr Hall to the following conclusions:

60. Having reviewed the Data Logger, it is my opinion that the evidence discloses that:

(a) each of the Train Brakes, Dynamic Brakes and Locomotive Brakes were fully operational throughout the Train’s journey;

(b) Mr Carpenter clearly knew about the availability and use of Dynamic Braking;

(c) on two prior occasions during the journey Mr Carpenter had applied Dynamic Braking in combination with the Train Brake, including in circumstances where there were heavy descending gradients;

(d) on four prior occasions during the journey, Mr Carpenter had applied Dynamic Braking alone in circumstances where there were heavy descending gradients;

(e) on at least one prior occasion during the journey, in which Mr Carpenter confronted a gradient equivalent to the one at the time of the Incident, Mr Carpenter applied the Dynamic Brakes only after the train had reached a speed of 45 km/h. This meant that the Train had gathered too much momentum for the Dynamic Brakes to be effective and, as a result, the Train reached a speed of 75 km/h, well in excess of the speed limit;

(f) after Mr Carpenter sounded the horn in recognition of the outer flagman, the Train increased speed as a result of a number of factors, including the speed of the Train at the time Mr Carpenter made the first service application, the rate at which Mr Carpenter made the series of service applications and the failure to engage the Dynamic Brake upon exiting Tunnel No. 3; and

(g) in all the circumstances, the Train responded as it would be expected to given Mr Carpenter’s driving technique.

Breaches

61. As the Train exited Tunnel No. 3 and descended the 1:50 gradient, Mr Carpenter breached Pacific National’s Train Handling Standards by failing to use the Dynamic Brake to control the speed of the Train down the heavy descending gradient.

62. As the Train passed a green flag between the times of 11:53.41 to 11:54:27, Mr Carpenter was required to take action to keep the Train speed below 25 km/h and to be prepared to stop short of obstructions. Mr Carpenter did not apply the Dynamic Brakes at this time but, rather, chose to apply the Train Brakes only in circumstances where the speed of the Train, the momentum of the Train and the heavy descending gradient meant that the Train Brakes in isolation were not sufficient to keep the speed of the Train below 25 km/h. As a result, the speed of the Train increased well above 25 km/h and Mr Carpenter breached ANPR 702 and ANPR 709.

63. As the Train passed a red flag at approximately 11:56:45, Mr Carpenter breached ANPR 702, by failing to stop the train prior to passing the red flag.

64. As a result of Mr Carpenter breaching the Train Handling Standards, ANPR 702 and ANPR 709, the TCR shows the Train entered into a worksite by approximately 200 metres (refer to Annexure L).

65. The TCR confirms that the Train ran over 2 “detonators” prior to passing the green flag, and ran over 3 detonators prior to passing the red flag, Accordingly, Mr Carpenter, as the Driver of the Train, had forewarning before passing the green and red flags 13“

[24] The analysis of the train journey put by Mr Hall is supported by the data logger records put in evidence 14. The data logger records were subject to close cross examination and analysis, which did not expose fault in Mr Hall’s analysis.

[25] It is appropriate to note that both Mr Carpenter and Mr Kidd were subject to post event drug and alcohol testing, which eliminated any such impairment.

[26] In his defence Mr Carpenter relied upon a number of grounds.

Use of Train Brakes Only on Exit From Tunnel No 3

[27] Mr Carpenter deposed that there is nothing in the Pacific National Rules which require a driver to use dynamic braking. This is not correct. The Pacific National Train Handling Standards state:

“on heavy descending grades, where dynamic braking is available it must be used” 15

[28] Mr Carpenter confirmed that in the disciplinary interview of 20 November 2009 he said that it was not his driving style to use dynamic braking. 16 Mr Carpenter clarified this, deposing that what he meant was:

“...I was trying to see how I could go without using dynamic brake in case I was tested on it when I was going to be qualified for the return route from Ulan to Muswellbrook” 17

[29] Mr Carpenter deposed that:

“I was aware that some driver trainers require drivers to drive a particular route without the use of the dynamic brake. With this in mind I decided to take this opportunity to drive this section of track without using dynamic brake in preparation for being assessed for qualification on this return route”. 18

[30] The assessment of drivers using only air brakes is confirmed by Mr Gorman as an occasional practice. Mr Gorman deposed that this is done to assess the driver’s ability to control the train if dynamic braking fails.

[31] Mr Gorman’s evidence is that this would not apply in circumstances where a green flagman was encountered, in which case he has instructed drivers to use both dynamic and airbrakes to control the train.

[32] There is no argument that a green flag means that train speed be maintained below 25 km/h and the ability to stop as required.

[33] In conjunction with sighting the green flagman, the train activated two detonators on the track. The need for control was clear and absolute. It is inescapable that Mr Carpenter failed to control the train in the manner required.

[34] Mr Kidd’s evidence is that if he were required to bring the train to a stop he would probably not bother with dynamic braking. This is not to the point; the requirement in encountering a green flagman is to control the train and be able to stop.

[35] The decision by Mr Carpenter not to use dynamic braking in conjunction with air brakes on encountering the green flagman at the exit of Tunnel No 3 is at best a serious error of judgment, at worst a decision to put his preference to “see how he would go” ahead of well established safety standards within the industry.

Brake Failure

[36] Mr Carpenter contended that his inability to control the train on encountering the green flagman was due to the poor braking ability of the train.

[37] Mr Carpenter’s position is that if the airbrakes had worked properly the train would not have reached the speed it did and he would have been able to meet the green flag and red flag requirements.

[38] Mr Carpenter is supported by the evidence of Mr Wayne Bates, who deposed that he experienced difficulty with the braking ability of the Unit 19 train on Friday, 13 November 2009.

[39] The following day, 14 November 2009, Mr Bates reported his concern regarding the braking ability of Unit 19 train to his supervisor, Mr Blackman, whom he deposed advised him to put it in a letter as another driver, Tony Brooks, had a SPAD (Signal Passed at Danger) one or two weeks earlier in the same train. 19

[40] Mr Bates did not use the usual “green form” reporting process, opting to put his concern in note form so it could be actioned over the weekend as Mr Allum works Monday to Friday. Mr Bates gave a copy of his note to Mr Blackman and to the RTBU and put a copy under Mr Allum’s office doors so he would get it on Monday. Mr Bates’ note states:

“BAD BRAKING Δ19

13-11-09

Upon taking said unit 19 no 167 ex Port Waratah at 0900. At Warabrook completed running brake test on empty rake the brakes seemed o.k. stopping within the usual limits of our test.

But it’s a different story when loaded! While descending singleton bank using my normal braking points there seemed to be a vastly [sic] reduced braking effort.

Resulting in longer brake application times (e.g. extra 1. Km brake time) and at least 500m more stopping distance approaching signals at stop.

It seems like you might be driving a train with only ½ the load compensators working or it’s just the configuration of wagons.

In my opinion this train should be treated as a dangerous train & all drivers should be made aware of its lack of braking ability as soon as possible before theres a SPAD or worse!!

This unit had a brake exam on the 11.11.09 its only going to get worse not better.” 20

[41] The evidence is that by not completing the required green form the process of investigation of the information conveyed by Mr Bates was impeded, however, I do not regard this as a material consideration.

[42] The information from Mr Bates and the response by Mr Carpenter which put the braking ability of Unit 19 in question resulted in extensive mechanical and empirical review of the train’s braking system.

[43] The evidence of Mr Craig Cable is that he is responsible for oversight of the maintenance of Pacific National coal trains.

[44] Mr Cable deposed that the routine 112 day unit maintenance, which includes service and where necessary repair to train brakes, was carried out on wagons forming Unit 19 on 28 May 2009, 10 July 2009, 11 August 2009, 16 September 2009, 29 October 2009 and 10 November, 2009.

[45] Mr Cable’s evidence is that it is common for approximately one third of the wagons on a train to have the brake shoes changed during the 112 day maintenance. Mr Cable’s evidence is that there were no unusual maintenance requirements on the Unit 19 components over this period.

[46] Mr Cable further deposed that he reviewed the “green form” hazard reports submitted in respect to Unit 19 which also record resultant maintenance. Mr Cable deposed that the maintenance undertaken could not have had a substantial impact on the braking capability of Unit 19.

[47] It is Mr Cable’s evidence that an inspection undertaken on 3 December 2009 revealed leaking unions on five load compensators. These were tightened by hand which rectified the air leaks. Mr Cable’s evidence is:

25. In a worst case scenario, five leaking load compensators would mean that five of Unit 19’s 91 wagons only had available to them the braking effort which is available to an unloaded wagon.

26. It is a well accepted industry practice, and one recognised and approved by both the Independent Transport Safety and Reliability Regulator and the Australian Rail and Track Corporation, that a train can operate safely with the train brakes on 10 per cent of the wagons of the train being cut out.

27. I have been informed and believe to be true that, on or about 19 November 2009, a brake test was carried out on Unit 19’s train brakes.

28. I have also been informed and believe to be true that none of the train brakes during this test were found to be leaking or cut out. As a result, even if five leaking compensators were subsequently identified on Unit 19’s wagons:

(a) the affected five of 91 wagons still had significant braking effort available to them as the braking pressure needed to manage the speed of an unloaded wagon was still available; and

(b) Unit 19 was still operating within the accepted industry standard as less than 10 per cent of the train brakes were affected.” 21

[48] Pacific National also brought evidence from Mr Bruce Sismey, a consulting engineer employed by Interfleet Technology, an international company providing rail technology consulting services. Mr Sismey is a mechanical engineer with over forty years in the rail industry, most of which has been specific involvement in train braking.

[49] Mr Sismey was engaged to carry out tests on Unit 19 train which included a re-enactment of the circumstances of 16 November 2009 which took place on 12 February 2010; and a second test on 22 February 2010 to determine whether it was possible for the train to be controlled in a safe manner in the same circumstances as driven by Mr Carpenter.

[50] Mr Sismey’s evidence is that:

“The results show that:

1. There does not appear to be anything that could have caused the train comprising Unit 19 to have performed differently than would be expected at the time of the incident on 16 November 2009.

The train performed similarly in response to the driver’s air brake inputs during the re-enactment on the 12 February 2010 as it did on the date of the incident. It appears that the timing and intensity of the air brake application by the driver on the date of the incident was what caused the overrun into the worksite.

2. The train could be safely controlled in the same circumstances as occurred on 16 November 2009.

Using air brake only, as was used on the date of the incident, it was possible for a driver selected at random to bring the train to a stand in view of where the inner flagman would have been located on the date of the incident.” 22

[51] Mr Sismey was also required to review the allegations of poor braking by the Unit 19 train put by Mr Bates. Mr Sismey assumed that five load compensators were faulty, being the number found to be leaking, concluding that this would not have any impact on the braking ability of the train.

[52] Mr Gorman is a Driver Trainer with 35 years experience in the rail industry and qualified as a train driver from approximately 1978.

[53] In his statement of evidence 23 Mr Gorman deposed that he had driven unit 19 train fully loaded on 14 November 2009 on the AT750 route as driven by Mr Carpenter two days later.

[54] Mr Gorman deposed that as the train exited Tunnel No 3 he encountered a work site protected by detonators and outer (green) and inner (red) hand signallers. Mr Gorman’s evidence is that he was able to bring the train under control and maintain its speed under the 25 km/h speed limit by using a combination of dynamic braking and air brakes, which he described as balanced braking. Mr Gorman put that had it been necessary he would have been able to bring the train to a stop using balanced braking.

[55] Mr Gorman’s evidence is that he had been informed of the event involving Mr Carpenter and the assertion that the brain brakes were not working properly. Mr Gorman deposed that he assisted Mr Wolfe, the Pacific National Train Crew Supervisor, and Mr McKenna to conduct a static brake test on Unit 19.

[56] Mr Wolfe’s evidence is that this test took place on 19 November 2009 at the Antiene coal unloading facility. The train had been unloaded but did consist of the same 91 wagons. The test involved pushing air through the brake pipes and cylinders with the aid of a pneumatic air pump. The test revealed that the train air brakes were operating normally.

[57] Mr Wolfe further deposed that there had been no mechanical repairs or alterations to the train since the incident on 16 November 2009 and accordingly the train’s air brakes could be regarded as working normally on that day. 24

[58] On 20 November 2009 Mr Gorman, accompanied by a co-driver, Mr Aboozaid, took control of Unit 19 fully loaded at Wilpinjong for the purpose of a test run to observe the braking effect of the train in the same loaded configuration encountered by Mr Carpenter.

[59] Mr Gorman deposed that on handover the previous driver, Mr Enright, reported that the train brakes were working perfectly. Mr Gorman deposed that the report by Mr Bates expressing caution in respect to adequacy of braking was in the cabin.

[60] Mr Gorman deposed that he did not detect any fault in the train braking system throughout the entire journey. Mr Gorman’s evidence is that he also tested the train’s braking ability at the location of the incident and had no difficulty keeping the train under control and would have been able to stop if required.

[61] Mr Gorman’s evidence is that prior to Tunnel No 3 the route from Ulan passes through a place identified as “Coggans Creek”. Mr Gorman’s evidence is:

“Coggans Creek has a similar gradient to the descent that follows Tunnel 3, being approximately 1/50. As the terrain conditions are similar, a driver has the benefit of being able to anticipate how a train will perform, in terms of speed and braking ability, going down the gradient coming out of Tunnel 3 as its performance will be similar to how it performed going down the Coggans Creek descent. That is, a driver is likely to know what to expect of a train when coming out of Tunnel 3, and is unlikely to be ‘surprised’ 25

[62] There is no functional explanation why Mr Carpenter left the throttle in notch 2 for some 40 seconds after he encountered the green flagman and ran over the two detonators.

[63] At the time the train horn was sounded by Mr Carpenter in recognition of the green (outer) flagman and two detonators (11:53:41) it was travelling at 15 km/h in notch 2 with a brake pipe pressure of 488 increasing to 492; effectively no braking. By the time Mr Carpenter responded 40 seconds later the train speed had increased to 33 km/h, gathering momentum on a downhill grade of 1:50. A maximum speed of 55 km/h was reached at 11:56:50, about 3 minutes later.

[64] Mr Carpenter argued that he needed the engine pulling power to ensure that the whole train got through the tunnel, and if he had applied dynamic braking the train could have bunched up, causing derailment and/or damage.

[65] This is a curious explanation when examined against the fact that Mr Carpenter had driven that route before with a loaded 42 wagon train, had passed Coggans Creek earlier, and was qualified and had driven a fully loaded 91 wagon train on other sections with similar gradients and terrain. 26

[66] It is not disputed that Tunnel No 3 on the Ulan to Muswellbrook route has its challenges.

[67] The evidence of Mr Kidd is:

“I qualified to drive the Muswellbrook to Ulan route both ways (there and back) in 2005. This route is a very difficult one to drive. The route has four tunnels. The Number Three Tunnel, which is on that route, is a very dangerous tunnel and is very narrow. You approach it via a very steep hill and the second half of the tunnel on the Ulan to Muswellbrook route is downhill. You only go approximately 10 to 15 kilometres per hour on the approach to the tunnel. The tunnel is approximately 1.8 kilometres long and, due to its length, it is necessary to carry ventilators on the train with you. As a driver this tunnel is a big concern and it is always a huge relief when you have made it out to the other side.” 27

[68] Mr Carpenter is supported by the evidence of Mr Wright in respect to the possibilities of the effect of over braking or premature braking being potentially serious. The issue here is one of inadequate braking on encountering a green flagman. In cross examination Mr Carpenter confirmed that he chose to rely on air brakes only:

“What you say is that you didn’t engage the dynamic brake because you wanted to test - - -?---That’s right.

- - - your own ability to bring the train to a halt using only the train brakes. Correct?---Correct.

And you made that decision knowing that you’d seen a green flagman. Correct? ---Correct.

You knew that your train was going to come down a one in 50 steep gradient - - -?---With the air brakes on.

Just listen to my question. You knew that you were coming down a one in 50 steep gradient. You’d seen a flagman. You had to reduce your speed to 25 kilometres per hour and you decided you would test your own ability?---No, not in the slightest. I had the air brakes on and the air brakes should have pulled that train up.

On each of the prior occasions where you’d confronted a steep gradient on this journey you engaged the dynamic braking. Correct?---Not to come to a stand, I didn’t.

Just listen to my question, Mr Carpenter. I don’t think you’re answering my question. Do you agree that on each prior point of this journey where you confronted descending gradients or needed to reduce your speed you had used dynamic brakes?---Correct.

And on this particular occasion you chose not to use them because you wanted to test yourself?---No, I was going to pull the train up on the air.” 28

[69] Mr Gorman’s evidence in cross examination is that he engages dynamic braking in the portal of the tunnel approximately 487 metres prior to the exit.

[70] Mr Carpenter’s insistence that he was going to “pull the train up on the air” is inconsistent with his assertion that there was a problem with the brakes. It is reasonable to conclude that if there had been an inadequacy in the braking ability of Unit 19 on 16 November 2009 it would have been evident earlier. The defence of brake failure is not supported by any mechanical or practical evidence.

[71] There is evidence that Unit 19 has been involved in three SPAD events from September 2009 to February 2010.

[72] Ms Presdee relied upon Mr Allum’s evidence that the Respondent would experience approximately six to twelve SPAD events in a year to ground a submission that for half to a quarter of those to be on the same train leads to a conclusion that there is a problem with the train.

[73] Ms Presdee was obliged to concede that bad braking was not found in any of those events.

[74] Mr Shariff relied upon the SPAD reports tendered to ground his submission that the events involved driver error or misjudgement which had been accepted by the staff involved, all of whom indicated that they would learn from the incident.

[75] Mr Shariff noted the distinction between the attitude of employees involved in those events and the attitude of Mr Carpenter that he had done nothing wrong and that the blame lay elsewhere.

Inadequate Advice of Track Work

[76] Mr Carpenter contended that he should have been informed that work was being carried out on the section of track past Tunnel No 3.

[77] Ms Presdee relied upon a report by the Coroner at Singleton on 13 March 2009 in which the Coroner recommends, among other matters, that:

“(f) the Protection Officer for a work party must notify Network Control of the intention to enter, and of actual entry to carry out work within the danger zone, and of the location, number of crew, nature of work and estimated duration of work, of any modification of those particulars, and of completion of the work and of withdrawal from the danger zone.

(g) Network Control must notify the crew of any train operating through or near the location of the particulars notified by the Protection Officer, of any modification of those particulars and of the withdrawal of the work crew from the danger zone”. 29

[78] The Coroner was dealing with work carried out in a No Authority Required circumstance. I note the particularly strong words used by the Coroner in discussing the submissions leading to this recommendation at pages 14 to 16 of his Decision 30.

[79] The evidence of Mr Rumble is that he is the National Occupational Health and Safety Manager for MVM Rail, a provider of rail track construction and maintenance services. MVM Rail is part of the Ulan + Alliance (“the Alliance”) which includes the Australian Rail and Track Corporation (ARTC) and Macmahon Holdings Ltd.

[80] At the time of the incident on 16 November 2009 Mr Rumble was working as the Rail Reliability and Safety Manager for the Alliance.

[81] Mr Rumble deposed that the Alliance had obtained a Track Work Authority (TWA) from the ARTC for the work on the Ulan line at a location identified as Murrumbo, which is in the vicinity of Tunnel No 3. The TWA required that a Protection Officer be appointed for the work and that outer (green) and inner (red) hand signallers be placed in both directions. There were four hand signallers (two up and two down) engaged on the work. The Protection Officer and hand signallers were employees of Momentum Rail.

[82] Mr Rumble deposed that he had carried out an investigation of the worksite, concluding that all safety procedures had been met including the correct placement of signallers and warning detonators.

[83] Mr Carpenter and Mr Kidd did not receive notification in the manner recommended by the Coroner. The work subject to this matter is of a different category, identified as Track Work Authority Required. Whether there is a basis for review of these procedures is not raised in these proceedings.

[84] The absence of notification does not in any way remove responsibility from the train driver to act properly and effectively in the event track work is encountered, nor is the absence of notification any warrant to disregard the mandatory protocols applying to green and red flag indicators.

[85] There is some evidence that Mr Carpenter was aware of work in the region. Mr Carpenter and Mr Kidd had travelled the route on the previous evening (15 November 2009) and observed signs of activity.

[86] The evidence is that Mr Carpenter and Mr Kidd observed vehicles in the work area on their trip to Ulan the night before the incident.

[87] In transcript of 13 July 2010 at PN137 Mr Carpenter put that he had informed Mr Everingham that he had seen a truck with its hazard lights on, not trucks as had been recorded in a transcript of intrview. At PN145 Mr Carpenter put that he was not sure whether the vehicle he had seen was on the farmer’s side of the fence or the railway side. At PN146 Mr Carpenter acknowledges that he informed Mr Everingham in the initial interview that he had seen a railway utility in the vicinity of the worksite the night before the incident. At PN209 Mr Carpenter deposed that it could have been a farmer’s truck “pinching rocks or shooting kangaroos” further testifying that it did not prompt him to consider that trackwork was being undertaken in the area. At PN726 and 727 Mr Carpenter put the following response to Mr Shariff in cross examination:

“You, I think, have now agreed you were familiar with what you were going to confront on the Ulan line return trip. Correct? -- I was aware of what I was going to confront.

I see, and--?---Except for the flagman. I was aware of the track work. I wasn’t aware of the flagman.”

[88] At PN739 to 746 Mr Carpenter accepted that there were hazardous parts of the journey through Tunnel No 4 and Tunnel No 3 on the Ulan to Muswellbrook line and that he would need to be alert and focused on the safety risks. Mr Carpenter put that wildlife as well as the terrain in the area also required the train driver to remain observant.

[89] In this evidence Mr Carpenter accepts the responsibility of a train driver to be alert. It is, however, in contrast with his assertion that lack of specific notification of the trackwork at Murrumbo is a mitigating factor in consideration of his conduct.

Requirement to Stop the Train on a 1:50 Grade

[90] Mr Carpenter contended that it was inappropriate and unreasonable to require the train to be stopped in the location due to the steep downhill grade.

[91] This assertion cannot be accepted. A train must be under control at all times and capable of being brought to a stop should the circumstances require.

[92] I note that in the simulation test undertaken as part of Mr Sismey’s investigation Unit 19 fully loaded was brought to a stop in the location and grade required of Mr Carpenter.

Employment History

[93] Mr Carpenter commenced employment with a predecessor of the Respondent in May 1971 and as such has had continuous service in varying roles with rail transport predecessors of the Respondent for thirty nine years. Mr Carpenter has been a train driver for some 15 years, eight of those years with Pacific National. Mr Carpenter is classified as Competent Operator Level 12.

[94] At the time of the incident Mr Carpenter was Chairman of the OH&S Committee.

[95] Mr Carpenter relied upon his contribution to this committee as supportive of his positive attitude to safety.

[96] Pacific National argued that as Chairman of this Committee Mr Carpenter was acutely aware of his responsibilities as driver of the train when he encountered the green flagman.

[97] Safety is a responsibility which falls equally on all employees of the Respondent. The Chairman and members of the Committee undertake a commendable leadership role, however, they do this as first among equals in regard to responsibility to safety. It is not appropriate, in my view, to impose a higher duty to safety upon the Chairman or members of the Committee as to do so suggests a lesser responsibility upon other employees, which is wrong.

[98] Mr Carpenter is ascribed awareness and responsibility to the same degree as any other train driver.

Previous Disciplinary Matters

Intemperate Comments

[99] Mr Carpenter was given a written warning in December 2007 for breach of the Pacific National Employee Responsibility Code arising from some adverse opinions expressed in an open office environment in respect to management participation in an OH&S Committee meeting he had chaired in November 2007.

[100] Mr Carpenter deposed that he had been called on to handle many issues as Chairman of the OH&S Committee and would not have made his comments in the open office area had the manager with whom he was conversing moved the conversation to a room.

[101] I do not regard this event as one of material consideration in this matter.

Signal Passed At Danger (SPAD)

[102] Mr Carpenter was involved in a SPAD event on 29 December 2008. Mr Carpenter describes the event in the following terms:

“On that occasion I had already stopped the train approximately 300 metres before the signal. When the train moved on again I made a brake application short of the signal because it was red. The train cabin pulled up level with the signal. There are wires which are supposed to be level with the signal which run between the track and the signal to record that you have driven over them. Usually if you drive past a red signal an alarm goes off in the control room and you are notified by the control room. On this occasion, nothing happened so I assumed that I had not passed the signal. Attached and marked with the letter “D” is a true copy of photograph of the train cabin and the wires which clearly shows that the wires were in front of the physical signal. As I exited the train on the opposite side of the cabin (on the track side) I did not notice where the train was. If I had been aware that a SPAD had been registered I would have notified the Respondent of it.” 31

[103] It is not disputed that the obligation of a train driver involved in a SPAD is to notify network control and wait with the train for further instructions.

[104] Mr Ford’s evidence is that Mr Carpenter failed to properly appreciate the severity of the SPAD event, demonstrated by his leaving the site.

[105] Mr Ford’s evidence under Ms Presdee’s cross examination is that Mr Carpenter was at the end of his shift when the SPAD occurred and had left the train, informing the driver taking over from him that he may have had a SPAD and if questioned the relief driver was to confirm that Mr Carpenter was the driver.

[106] Mr Carpenter was suspended for two days without pay as a disciplinary measure which, on Mr Ford’s evidence, was directed as much at Mr Carpenter’s failure to accept any accountability for his actions, as it was in respect of his failure to follow procedure.

[107] Ms Presdee argued that Mr Carpenter accepted accountability by not challenging the two day suspension.

SUBMISSIONS

[108] Ms Presdee submitted that the termination was without valid reason; and that Mr Carpenter was denied procedural fairness by failure of Pacific National to give appropriate consideration to the explanation given by Mr Carpenter in the interview which formed part of the investigation report.

[109] In respect to the latter point, Mrs Presdee submitted that Pacific National failed to have regard to:

problems with the train’s braking;

requirement to stop on a 1 in 50 grade, which she put is neither usual nor expected;

lack of prior knowledge of trackwork;

Mr Carpenter not being deemed competent by the Respondent to drive the loaded 91 wagon train over the route in the Ulan to Muswellbrook direction;

this occasion was the first on which Mr Carpenter had driven a loaded 91 wagon train on the route in the Ulan to Muswellbrook direction.

[110] Ms Presdee submitted that there are a range of sanctions available to the Respondent in the event of a breach of Network Rules. Ms Presdee identified these as:

warning;

warning with a combination of other penalties, such as regression in grade or pay; and

suspension, either with or without pay.

[111] Ms Presdee noted that the only other termination of employment by the Respondent had been for breach of the Drug and Alcohol Policy and, while not challenging the Respondent’s right to terminate employment in appropriate circumstances, submitted that it is rarely used and that termination of Mr Carpenter’s employment was an extreme sanction which was harsh, unreasonable and unjust; particularly having regard to the mitigating circumstances and the rating of medium risk ascribed to this event in the investigation report.

CONCLUSION

[112] Mr Carpenter is a qualified train driver with experience driving fully loaded 91 wagon trains. He had not driven a fully loaded 91 wagon train on the Ulan to Muswellbrook route previously (he was not qualified to do so), however, took control of Unit 19 on 16 November 2009 with the purpose of obtaining experience so he could become qualified.

[113] It must be concluded that Mr Carpenter was aware of the route and the difficult terrain involved and the different behaviour of a 91 wagon train compared to a 42 wagon train.

[114] Mr Carpenter failed to respond in an appropriate manner when encountering the green flagman. The combination of the flagman and detonators is such that Mr Carpenter was immediately aware of his responsibility.

[115] The explanations offered by Mr Carpenter, characterised by management as failure of all elements other than him, are not sustainable.

[116] Mr Shariff’s submission that Mr Carpenter has, during the course of an earlier SPAD, refused to accept accountability and learn from the incident, is supported by the argument advanced on his behalf in this matter which seeks to attribute cause and blame elsewhere.

[117] The primary defence put by Mr Carpenter is simply not credible. Extensive testing recorded that there was no fault with the brakes on the train.

[118] I accept Mr Shariff’s submission that rail is a safety critical industry. In that context I am compelled to the conclusion that Mr Carpenter’s actions in operating the train in a grave and dangerous manner were wilful and reckless.

[119] There is no absence of procedural fairness. The event and the explanation offered by Mr Carpenter were extensively and thoroughly investigated and Mr Carpenter offered every opportunity to be represented and defend his position.

[120] It is necessary to consider the elements of Section 387 of the FW Act.

Section 387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees):

[121] I find that there was a valid reason for the termination of Mr Carter’s employment in that he failed to control Unit 19 train on 16 November 2009 in a manner consistent with his obligations on encountering green and red flags; and that he refused to take any responsibility for his actions.

Section 387(b) whether the person was notified of that reason:

[122] Mr Carpenter was adequately notified of the reason.

Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[123] Mr Carpenter was given adequate opportunity to respond.

Section 387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[124] There was no refusal by the Respondent to allow Mr Carpenter representation.

Section 387(e) if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal

[125] Mr Carpenter had been warned of his unsatisfactory performance in respect to a SPAD on a previous occasion. Specific warning is also found in the Respondent’s procedures and train driving manual. Further, the obligations when encountering a green and red flag are so well known in the industry as to be notorious.

Section 387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[126] Do not require specific consideration in this matter as the size of the organisation and dedicated human resources staff are such that Mr Carpenter was not denied any procedural fairness.

Section 387(h) any other matters that FWA considers relevant

[127] In consideration of other relevant matters the propensity for Mr Carpenter to refuse to accept responsibility and shift blame elsewhere without foundation is of serious concern. I accept Mr Shariff’s submission that such an attitude is not indicative of improved future performance. The refusal to accept responsibility and learn from events leads to a real concern that the circumstances would be repeated with the risk of extreme consequences.

[128] There are no mitigating circumstances which would warrant intervention in the Respondent’s decision to terminate Mr Carpenter’s employment. Mr Carpenter’s length of service and lack of formal accreditation to drive are vastly outweighed by his steadfast refusal to accept any responsibility in the incident; determination to shift blame to Mr Kidd, for lack of supervision; to the braking ability of the train; and to Pacific National for not formally informing the train crew of trackwork. Any mitigating factors are further nullified by the inconsistencies in Mr Carpenter’s evidence in ultimately accepting that he was aware of conditions on the track and that trackwork was being undertaken.

[129] The arguments advanced on behalf of Mr Carpenter descend to:

It was not Mr Carpenter’s fault - he was in charge of the train in accordance with Pacific National’s rules which allow drivers to obtain experience for the purpose of route qualification and he was under pressure from the company to become route qualified on that section;

Mr Kidd did not supervise him correctly but don’t blame Mr Kidd as there is nothing in Pacific National’s rules that required him to do so. The rules are now changed to require more supervision by persons in Mr Kidd’s position.

[130] This is an absolute denial of common sense. If Mr Carpenter was as uncertain of the route as he subsequently claimed he could have and should have sought assistance from Mr Kidd.

[131] Pacific National denies that there was any pressure on Mr Carpenter to be route qualified. I prefer the evidence of Pacific National in this regard on the basis that if the company had wanted Mr Carpenter route qualified for 91 wagon trains there were a number of options open to it, from specific training to more frequent rostering on the route as a co-driver. There is an inconsistency in Mr Carpenter’s argument that he was not required to drive the route very often, and the assertion of company pressure to be route qualified for 91 wagon trains.

It was not Mr Carpenter’s fault as - he had not driven that section of track on sufficient occasions to have adequate knowledge of the requirements of the track so as to be held responsible;

[132] This evidence is refuted by the detailed evidence given by Mr Carpenter of the difficulty in driving the relevant section of track, particularly Tunnel No 3, and the evidence that he was route qualified for 42 wagon trains.

It was not Mr Carpenter’s fault as - in charge of the train he could elect which form of braking he used and was under no obligation to use dynamic braking.

[133] This is simply not true. The decision to use air brakes only was in accordance with Mr Carpenter’s understanding of how he could be tested. To maintain that view disregards the paramount obligation on encountering a green flag to hold the train under 25 kph and be ready to stop.

It was not Mr Carpenter’s fault as - the brakes on the train were inadequate.

[134] This is simply not true. The further assertion by Mr Carpenter that he was not aware of the deficient braking ability of the train as he had not been required to stop it on the earlier part of the journey is incredulous. He was not required to stop on the green flag. The train did in fact stop on application of emergency braking which supports the conclusion that the brakes were adequate but were not properly applied by Mr Carpenter.

Pacific National was at fault because it did not give Mr Carpenter advice of the trackwork.

[135] Mr Carpenter was forced to concede that he was aware of trackwork.

The Contractor was at fault because it should not have required the train to stop in that particular place on that grade.

[136] This just cannot be accepted as a matter of principle and is disproved as a matter of fact by subsequent tests.

[137] The arguments advanced in support of Mr Carpenter are not supported by the evidence.

[138] The propensity to deny commonsense over what may or may not be written in procedures diminishes the role of the train driver.

[139] The secondary submission that Mr Carpenter should be given a chance by re-instatement and remedial training due to his length of service, age and personal circumstances, does not outweigh the gravity of the offence which, at its core, is Mr Carpenter’s disregard of the green flag protocol, compounded by his unsustainable attempts to shift the responsibility to all other participants.

[140] In the course of his oral evidence Mr Carpenter expressed some optimism in respect to alternate employment with another company as a train driver. In analysis of whether the termination of Mr Carpenter’s employment by Pacific National was harsh so as to warrant intervention, the prospects of alternate employment are not a material consideration. Alternate employment may or may not materialise and in the event it does not, the gravity of conduct outweighs all other considerations.

[141] For these reasons I find that the termination of Mr Carpenter’s employment is not harsh, unjust or unreasonable.

The Application for remedy is refused.

DEPUTY PRESIDENT

Appearances:

Ms Presdee, Australian Rail, Tram and Bus Industry Union (Applicant)

Mr Shariff of Counsel, instructed by Mr Baroni, Solicitor of Clayton Utz Lawyers (Respondent)

Hearing details:

2010

Newcastle

July 13, 14, 27 and 28

1 Exhibit 15 (Statement of Mr Allum) Annexure E

2 Exhibit 15 Annexure F

3 Exhibit 7 (Statement of Mr Everingham) Attachment B

4 Exhibit 17 (Statement of Mr Ford) Annexure S

5 Exhibit 2 (Statement of Mr Kidd) para 16

6 Exhibit 6 (Statement of Mr Hall) para 86

7 Exhibit 6 Annexure A issued 27/6/08

8 Exhibit 6 Annexure A issued 4/10/06

9 Exhibit 2 paras 33 and 34

10 Exhibit 2 para 19

11 It is appropriate to observe that this is on a 1 in 50 grade and similar to the incident later when the green flagman was encountered, the train first increased speed before slowing.

12 Exhibit 6 paras 57 and 58

13 Exhibit 6 paras 60 to 65

14 Exhibit 5 (Folder of tendered documents) Tab Q

15 Exhibit 15 Attachment B

16 Exhibit 5 Tab T question 16

17 Exhibit 1 (Statement of Mr Carpenter) para 29

18 Exhibit 1 para 29

19 Exhibit 3 (Statement of Mr Bates) para 10

20 Exhibit 3 Attachment A

21 Exhibit 16 (Statement of Mr Cable) paras 25 to 28

22 Exhibit 14 (Statement of Mr Sismey) Annexure A

23 Exhibit 11 (Statement of Mr Gorman)

24 Exhibit 10 (Statement of Mr Wolfe)

25 Exhibit 11 para 22

26 Transcript PN664 to 668

27 Exhibit 2 para 11

28 Transcript PN1011 to 1018

29 Exhibit 12 (Coroner’s Report of 13/3/09) page 30

30 Exhibit 12 pp 14-16

31 Exhibit 1 para 57

Printed by authority of the Commonwealth Government Printer

[2010] FWA 6994

10 SEPTEMBER 2010