Caledonian Collieries Ltd v Speirs

Caledonian Collieries Ltd v Speirs - [1957] HCA 14 - HCA 1957 case summary — Zoe

[8]

The evidence fell short of establishing with certainty how the escape of the trucks from the Crofton loop was caused, though there was undoubtedly enough to warrant a conclusion by the jury that the cause was to be found in some carelessness on the part of one or more of the employees of the Crofton Colliery. The trucks had been left standing on the loop line, not far from its junction with the appellant's line, and between the junction and a gantry which was used by the Crofton people for loading coal from screens into trucks. They had been assembled in accordance with a practice which took advantage of a slight downward gradient in the line from a point above the gantry to a point near the junction. The practice was to gravitate a truck down to the gantry, and after filling it with coal to let it gravitate again towards the junction. Immediately before the junction the line rose very slightly, thus forming what was described in the evidence as a very shallow "dish". In this "dish" it was the custom to assemble the filled trucks. As each came down from the gantry it was stopped by an application of its brakes or by means of a sprag. Each truck after the first was immediately coupled to the one ahead of it. The practice was to leave the two leading trucks and the rear truck fully braked. In the ordinary course, when enough trucks had been collected they would be moved by a locomotive belonging to the appellant over the slight rise of the "dish" to the junction, and thence down the appellant's line to Newcastle. It may be that what happened on the occasion in question was that the brakes were not fully applied on the trucks which should have been braked, and that a bump from a truck newly-arrived from the gantry gave the ten which were coupled together a sufficient impetus to carry them over the slight rise to the junction. The brakes were of a simple though efficient type, consisting of a shoe impinging on the rim of the truck wheel with a degree of pressure applied to it by means of a lever. The free end of the lever moved in a rack. At the top of the rack was a slot in which the lever rested when the brake was completely off. To apply the brake it was necessary to lift the lever out of the slot and carry it down the rack, the pressure of the brake-shoe on the wheel-rim increasing with the downward movement of the lever in the rack. If the lever were allowed to bear down in the rack by its own weight alone, a slight braking effect would be produced. For stronger braking it was necessary for a man to force the lever further down the rack and fix it in the desired position by inserting a pin above it through holes in the rack. On the occasion in question the pins may have been left out, or (as the evidence suggested was possible) they may have been insecurely inserted and dislodged by vibration. There was evidence from which the jury might conclude that when the trucks were examined after the fatality the brakes were found to be in good order, but the wheels showed no signs of the brakes having been on, and the brake levers, though out of their slots, were not pinned down in the racks. There was also evidence suggesting that a shunter belonging to the Crofton colliery removed a sprag from a wheel of the leading truck.

[16]

The situation which the jury had to consider was, of course, that which existed immediately before the fatality. It may be that, at a time when no rolling-stock could ever be on the line except such as were being managed in connexion with the appellant's own mine and under conditions established and controlled by its staff, the provision of catch-points would have exceeded the requirements of reasonable care. But in 1936 the Crofton loop was constructed. The Act 27 Vict. provided by s. 93 that it should be lawful for the owners or occupiers of the land traversed by the authorised railway to lay down on their own lands any collateral branches of railway to communicate with the said railway for the purpose of bringing carriages to or from or upon the said railway, and that the company should if required at the expense of such owners or occupiers make openings in the rails and such additional lines of railway as might be necessary for effecting such connexion. Apparently it was accepted by all concerned that this provision obliged the appellant to construct the junction of the Crofton loop with its own line. At any rate, it did so; and from that time onwards the situation was substantially different from that which had existed before. The points which were installed at the junction were switch-points, providing no obstacle to the free passage of rolling-stock from the loop to the appellant's line and in the direction of the Lambton Road and Newcastle. Any trucks reaching the junction, if out of control, would necessarily go down the line, unless, indeed, some positive action such as the insertion of a piece of metal into the points should be a means of derailment at the junction. And it was obvious that the appellant's line, from the junction down, would constitute, unless a protective device were provided, an instrument by which any rolling-stock emerging out of control from the Crofton loop must be carried to the succession of level crossings. Yet no such device was in fact provided, although the persons in charge of the appellant's affairs well knew that workmen not under its own control or oversight would be constantly dealing with trucks on the loop, that the trucks would be equipped with manually-operated brakes only, that the general trend of the loop was downwards to the junction, that a practice of moving trucks by gravitation towards the junction would be followed, and that nothing but the slight upward trend of the "dish" provided any obstacle to the escape of trucks which human fallibility might set moving while there was no locomotive to hold them. In considering whether it was within the demands of reasonable care in these circumstances to instal such a device as catch-points, the jury was bound, as the learned judge told them, to bear in mind the gravity of the consequences which might follow from an escape of trucks on to the Lambton Road level crossing. The probability was high that the result would be a collision for some unsuspecting user of the road, for at this point it was a very busy highway indeed. Close to the level crossing, in fact separated from it only by the width of a stormwater channel, was an intersection of several much-used roads. According to the evidence of a police officer, there was almost continuous traffic there. The vicinity was described by one witness as the most densely populated part of suburban Newcastle. And it was self-evident that if a collision should occur it would be a most serious disaster.

[20]

For the appellant it is said that, although catch-points would certainly be effectual to stop runaway rolling-stock, there were such practical objections to them that a reasonable man in the position of the appellant would not have installed them. Not that they would have been excessively costly. A sum of £200 would have covered the cost, according to the evidence; and the interruption to the use of the line could hardly have been great, for it took only a day to put in the switch points at the Crofton junction in 1936. But it was said, particularly by a Mr. Proctor, at one time Traffic Inspector, and later Superintendent, of the South Maitland Railway Pty. Ltd., that to put catch-points in a single "main" line, as he called the appellant's line, would be contrary to railway practice, as it would create a hazard for traffic coming down the gradient. He thought it would be "quite impracticable", meaning, so far as one can gather, that catch-points would be a source of danger to regular traffic on the line and would be open to the economic objection that they would cause every train coming down from the Crofton loop to lose a great deal of time - as much as twenty minutes he suggested - in slowing up and stopping, waiting for a man to close the points, proceeding slowly past the points, and stopping again to pick up the man. But he seems to have been much influenced in his view by the supposition that if catch-points were reasonably required to protect the Lambton Road level crossing they must reasonably be required to protect the "thousands of level crossings all over the country", or at least at many comparable places. He does not appear to have given weight to the facts that only two trains a day, one from the appellant's mine and one from the Crofton mine, came down the line each day, and that even while there were no catch-points the constant practice was to stop for water at a point shortly before the level crossing was reached, and to proceed across the Lambton Road at a walking pace. An important consideration, which by itself was sufficient to justify a rejection of Mr. Proctor's opinion as to practicability, was that within a fortnight after the fatality which gave rise to the ligitation the appellant actually installed catch-points in such a position on its line as to prevent the occurrence of another tragedy, and these catch-points had remained a feature of the line ever since. That, of course, could not be regarded as an admission by the appellant that reasonable care in the management of the line required such a provision, and the trial judge so instructed the jury. But it had significance nevertheless, for the trial took place four years and more after these points were let into the line, and although the appellant's regular engine-driver and fireman-shunter were called as witnesses nothing in the evidence suggested that the difficulties which Mr. Proctor raised had proved important in practice. Even apart from this, however, the jury was entitled to discount Mr. Proctor's evidence as giving insufficient attention to the special requirements of the particular locale, as exaggerating the loss of time involved in the negotiation of catch-points by trains in the ordinary use of the line, and as giving undue weight to the possibility of derailments being caused by trains accidentally over-shooting the catch-points in the normal operation of the line. It seems nothing to the point that according to Mr. Proctor railway practice is to have catch-points to protect main lines only, and not on main lines themselves. If their provision may be a reasonable precaution for the protection of a main line, it is difficult to see why the view should not be open to the jury that in the situation that existed on the appellant's line a similar provision was a reasonable precaution for the protection of the Lambton Road level crossing. And the absence of catch-points on main lines to protect level crossings was explained by Mr. Bone, a retired Government railway rolling-stock inspector, as attributable to the fact that on such lines trucks are always coupled to an engine.

[23]

The contention that on the evidence the jury could not properly find a verdict against the appellant must be rejected. As to damages, two submissions were made. The first was that certain evidence given at the trial by an actuary should not have been admitted. The actuary produced a book of mortality tables compiled by the Commonwealth Actuary and said that for the purpose of his calculations he had taken an interest rate of four and one-half per cent per annum. Without any further foundation than this having been laid, he was asked to say what, according to calculations he had made, was the present value of a sum of £1 per week payable weekly over three separate periods. One was the period of the joint lives of a man and a woman both aged thirty years, the payments ceasing at latest when the man reached the age of sixty-five years. Another was the period of the joint lives of a man aged thirty years and a girl aged three years and three months, the payments ceasing in any event when the girl reached sixteen years. The third was the period of the joint lives of a man aged thirty years and a boy aged seven months, the payments ceasing in any event when the boy attained sixteen years. The ages mentioned were respectively the ages of the respondent's husband, the respondent herself and their two children. The questions were objected to, but the objection was overruled, and the figures given by the actuary in his answers were £840, £499 and £560 respectively. We have not here to consider any broad question as to the admissibility of actuarial evidence, such as was the subject of the well-known judgment of Blackburn J. in Rowley v. London and North Western Railway Co. [2] . The contention that is put is a narrow one, depending upon the fact that the actuary did not say what were the respective periods which he was taking as the expectation of life of each of the persons in respect of whose joint lives his calculations were made. In the absence of this information, it is said, the jury were not in a position to make a proper adjustment to any sum they might reach by employing the actuary's figures in order to allow for the contingencies affecting the lives of the actual persons they were dealing with, and that for that reason the evidence was irrelevant.

[29]

The appellant submits that it could not reasonably have foreseen that the Crofton Colliery employees would fail to take the very simple measure of braking and spragging the wheels of the trucks to prevent them from moving, more particularly as that very simple measure had always been taken theretofore and had proved effective. There is, I think, something to be said for that submission, although the trial was with a jury and it is within the jury's province to find whether the danger was foreseeable and what precautions were reasonably required to avoid it. But in any event I cannot see why the installation of catch-points, which counsel for the respondent say should have been inserted, should be regarded as a reasonable precaution which the appellant should have taken against the possible escape of the trucks. I assume, without deciding, that the appellant could have insisted on catch-points being installed on the siding as a condition of permitting either the connexion of the siding with the appellant's line or the continuance of that connexion. Catch-points were installed on the Government line with which the appellant's line was connected, and they were installed on the appellant's line after this accident. But catch-points might be installed merely in the hope that they would reduce the damage without entirely preventing it. To derail a truck is an extreme measure and the onus of showing it is a reasonable precaution against accident must rest heavily on the party asserting that it is. Indeed, to prevent derailments railway lines are required to be so constructed throughout their entire length that derailments will not occur; for wherever a derailment occurs it might well injure or kill somebody authorised to be there, and in proceedings to recover damages in respect of his injuries or death it could not be justified, whether as a reasonable precaution or otherwise, unless it could be shown that such injuries or death could not reasonably have been foreseen as a result of the derailment. If that is the position even where catch-points are installed and bring about a derailment, then, where they are not installed I think the position must be that the party alleging the duty to instal catch-points can succeed in establishing negligence only if it is shown that catch-points could have been installed at a place on the line where the derailment would not be likely to cause injury to any person. There is no presumption that such a place existed. For the reasons already stated none arose from the existence of catch-points on the Government line or since the accident on the appellant's line. I do not see how the mere existence of such catch-points can shift the onus of proof, as would be the case if their effect was a matter peculiarly within the appellant's knowledge. The problem of deciding whether to derail escaping trucks or to let them run on is perhaps readily solved. Still the choice is always between two evils: wherever the derailment is effected injury to some person is reasonably foreseeable, unless the catch-points are installed at a point where there is no likelihood of injury resulting from the derailment. The burden of proving that such point exists rests, I think, on the party alleging the duty to instal catch-points as part of his obligation to establish negligence, and that burden has not been discharged here.

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Decision date

Before

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Judgment (30 paragraphs)

Parties