KELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS

For the reasons I have given I answer this question "Yes".

(i) it would have prevented the ejection of Mr Kelly from the cabin;

(ii) if it had it would, none-the-less, have caused him to suffer equally serious spinal injuries while still in the cabin, or serious, and potentially fatal, internal injuries.

I am satisfied by the evidence of Professor Henderson, Dr Yeo and Mr Simpson that the lap seat belt would have prevented the ejection of Mr Kelly from the cabin. I am also satisfied by the evidence of Dr Yeo and Professor Henderson that if a lap seat belt had been worn Mr Kelly would not have suffered any spinal injuries of significance, because this was not a front on collision, or the type of collision which would have thrown him forward such as to cause flexion whilst he was in the cabin. Essentially for the same reasons, and with a possible exception to which I shall now turn, I am satisfied by the evidence of Professor Henderson that Mr Kelly would not have suffered serious internal injuries, because, he would not have been thrown forward.

UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBd v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA)

The exception is the evidence of Dr Yeo at AB140. Dr Yeo's first answer, relevant to this point, was that in his view, as a matter of probability, Mr Kelly would not have suffered a flexion injury. Against the background of that answer it seems to me that his next answer relating to internal injuries can only be relevant in relation to a lap seat belt where the body is thrown forward but restrained by it. Accordingly, his answer at the commencement of AB141 was predicated upon that happening, which Dr Yeo did not accept was the case. It is, in my opinion, not possible to read Dr Yeo's evidence that Mr Kelly would not have suffered a flexion injury, and also to postulate that he would, in some way, which could only reasonably be connected with a forward movement giving rise to a flexion type injury, have been injured internally.

(c) Whether, notwithstanding that he was not wearing a lap seat belt, the spinal injuries were suffered whilst he was still in the cabin and before he was ejected and hit the ground.

In my opinion the evidence of Dr Yeo as to the pattern of fractures is overwhelmingly in favour of the view that they occurred when he hit the ground. That must be so once one eliminates, as I consider the evidence does, the possibility that he suffered any spinal fractures as a result of any flexion movement whilst in the cabin.

In the result I am satisfied that the Council was negligent in failing to fit a lap seat belt; that had a lap seat belt been fitted Mr Kelly would have been wearing it; that had such a seat belt been fitted it would have restrained him in the cabin notwithstanding the force of the impact; and that he been restrained in the cabin he would not have suffered any spinal fractures rendering him a paraplegic. I am further satisfied that he would not have suffered any serious internal injuries. Accordingly, Mr Kelly has satisfied me that the Council was negligent, that its negligence was causative of the injuries which he received, and that had a lap seat belt been provided, as he asserted it should have been, he would not have suffered either the injuries he did or any other serious injuries. For these reasons I am of the view that the Master's conclusions that the Council was not liable for the failure to fit a lap seat belt, and that the failure was not causative of Mr Kelly's injuries, were in error. In my view this Court is in as good a position as the Master to determine those issues and, for the reasons I have given, I consider that there should be judgment in Mr Kelly's favour against the Council.

Ihave stated a number of reasons why, in my opinion, SRA was not negligent in the way in which the train was driven in the particular circumstances of this case. I shall deal, in a little more detail, will the question of speed. Mr Poulos furnished a series of calculations based upon the distances to be travelled and the time within which such distances would have to be travelled for the purpose of either avoiding or creating the accident. I have referred to the difficulties I have in trying to work out, with any mathematical precision, in what circumstances the accident may have been avoided short of the train's being brought to a halt before it entered the level crossing, a proposition for which I do not understand anyone contended. In my respectful opinion it is artificial to try to reconstruct times and distances when there are so many unknowns in the estimates given. I agree with the general submission of Mr Poulos that one is far better off looking at the evidence of those who were present.

Ihave expressed my disagreement with the theory that there was a continuous stream of traffic across this level crossing of which those in charge of the train should have assumed the front end loader to be part.

On the evidence I reject the suggestion that the train was being driven on the basis that it was sufficient to sound the whistle without heeding what was going on at the level crossing. If the whistle had not been sounded that would have been relied on as a ground of negligence. Rather, those in charge of the train were acutely aware of what was going on at the level crossing and, on any view of the evidence, the motor cars had passed over it when the train was still about a minute away from the level crossing. That, in the context of moving motor vehicles, provided adequate opportunity for them to clear the level crossing, which they did.

Mr Bamford makes clear in his statement that he saw the three motor vehicles at the crossing when the train was 1,000 metres to its east and it was not until "we got closer to the crossing", AB339, that Mr Bright told him that "there was another one coming". That was obviously a reference to the front end loader having started to move after stopping. The evidence was that it moved very slowly. It is a matter of pure conjecture as to how close the train was when Mr Bright made the observation, but allowing for minimal reaction time, it was only a little more than 124 metres from the level crossing. It was travelling below the prescribed speed and within the speed limit at which it was allowed to travel. Those in charge of it were keeping a proper lookout.

The Master made no finding as to the speed at which the train should have been travelling, but assuming it should have been travelling at half of the allowable 70 kilometres per hour or at 35 kilometres per hour, it was travelling through some 9.7 metres per second. Assuming it was 150 metres from the level crossing it would have taken approximately fifteen seconds to reach the level crossing at that speed.

Within that time the front end loader would have had to have moved some 15 metres from a standing position, up a slight incline and at a very slow speed. These figures merely demonstrate the difficulty of trying to apply formulae when the evidence of Mr Sibraa, for example, was quite clear that as the front end loader moved forward the train was reasonably close. It may be that Mr Sibraa was mistaken when he said how close the train was, but there can be no doubt that he observed the train in reasonable proximity to the front end loader as it started to move.

Mr Poulos sought to furnish to the Master, by way of further submissions his calculations. Although, with respect to the calculations and because of the circumstances of this accident. I do not derive great advantage from them, I consider the Master should have received them, for anything of potential use in resolving as difficult a problem as this should be considered.

When I review the totality of the evidence I am totally satisfied that SRA was in no way negligent in the manner in which the Master found and, in my opinion, that finding should be reversed.

The other matter upon which Mr Kelly relied so far as SRA was concerned was the failure to provide hinge gates. There was an abundance of evidence on which the Master could have found, and I think at AB487 did find, that the provision of hinge gates was not, in all the circumstances, practicable. Nor did the history of this level crossing demand that any such steps should be taken.

UWHELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LB9 v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA)

Tf others take the view that I am wrong in this conclusion and that SRA is liable to Mr Kelly, I consider the Master's assessment of contributory negligence as between Mr Kelly and SRA should not be disturbed. I do not accept the submissions made by Mr Ellicott that Mr Kelly's conduct can be described as mere inadvertence. In my opinion it was, as I have earlier described it, on the findings of the Master, which I accept, gross neglect for his own safety. Thus, when one comes to have regard to the amount by which the damages recoverable should be reduced "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage" it seems to me that the Master's determination was correct. In any event, it is accepted that unless the award of contribution can be shown to be grossly disproportionate it should not be interfered with on appeal.

Contributory Negligence As Between Mr Kelly And The Council

Prima facie it may be thought that the assessment of contributory negligence as between Mr Kelly and SRA should be applied as between Mr Kelly and the Council. This was my initial view. However, on reflection, I do not think that is the correct approach, because the default on the part of each party has to be weighed having regard to their respective acts and omissions. There is no doubt that had Mr Kelly had due regard to his own safety he would not have been injured. Equally, in my view, there is no doubt that had the front end loader been fitted with a lap seat belt then, notwithstanding the failure of Mr Kelly to have regard to his own safety, that would not have led to his being seriously injured. That consequence flowed from the absence of the lap seat belt. When the matter is viewed in that light it seems to me that the preponderant cause for the injury to Mr Kelly was the failure to fit the lap seat belt and, whilst Mr Kelly's own failure to take care for his safety contributed to the accident, I am of the view that the appropriate, reduction for contributory negligence on his part should be only twenty per cent. In the result I consider the Council should pay eighty per cent of the damages to which Mr Kelly is otherwise entitled.

The Proceedings Between GIO Workers Compensation (NSW) Ltd and Mercantile Mutual Insurance (Australia) Ltd

GIO Workers Compensation (NSW) Ltd, ("GIO"), was, at all material times, the workers compensation insurer of the Council, and Mercantile Mutual Insurance (Australia) Ltd, ("MMI"), was its motor vehicle insurer in respect of liability under the Motor Accidents Act 1988.

GIO sued MMI on the basis that MMI's policy of insurance extended to indemnify the Council in respect of Mr Kelly's accident. In view of the findings of the Master GIO was not liable, because the Council was not responsible. In these circumstances the Master dismissed GIO's Statement of Claim and ordered it to pay MMI's costs of the proceedings.

GIO complained about this order for costs and, on the hearing of this appeal, submitted that if Mr Kelly's appeal against the Council is allowed the Master was necessarily in error in dismissing GIO's Statement of Claim against MMI. In my view that result must follow.

GIO further complained that if Mr Kelly's appeal against the Council was allowed it will be necessary to order a new trial as between GIO and MMI, which, in my opinion, would never have been necessary, but for the concession at trial to which I shall now refer.

On behalf of MMI Mr J D Hislop of Queen's Counsel submitted that the appeal, in so far as the Master had found favourably to the Council, should be dismissed. At p49 of the transcript he said:-

"Tf the Court sought to enter a verdict on that basis, then there was a concession made by counsel appearing on behalf of my client in the Court below at 329H to 329J. and it would seem to me that if this Court was minded to enter a verdict against the Council then that concession made at that hearing should be binding upon me, so I don't seek to put any submissions to this Court in relation to that aspect of the matter if the Court, contrary to the submissions which I've put, determined that there should be a verdict for the Council. On the other hand, if the Court was to determine that the matter should be returned for a re-hearing, then I would not wish to be fettered by something that occurred in the first hearing."

The concession to which Mr Hislop referred was in the following terms:-

"MENZIES: If you were to find that the system which involved having the system of refuelling on the other side of the line involved a breach of duty and found against the employer for that reason, that would not be a fault involving the use or operation of the motor vehicle.

MASTER: You had accepted the fact that the seat belt question was one that you were going to be liable for.

The matter identified by the Master was the basis on which I consider the Council is liable to Mr Kelly and, accordingly, MMI is liable to indemnify the Council.

1. In the appeal by Mr Kelly against judgment in favour of the Council:- (a) That the judgment for the Council be set aside. (b) That in lieu thereof there be judgment on the issue of liability in favour of Mr Kelly. (c) That the matter be remitted to the Common Law Division to assess the quantum of damages as between Mr Kelly and the Council. (d) That the amount of damages so assessed be reduced by twenty per cent to reflect Mr Kelly's contributory negligence.

(e) That the Council pay Mr Kelly's costs of the hearing at first

instance and of the appeal. (f) That the Council have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one.

2. In the appeal by SRA against the judgment in favour of Mr Kelly:- (a) That the judgment for Mr Kelly be set aside. (b) That in lieu thereof there be judgment for SRA and Mr Bamford on Mr Kelly's claim. (c) That Mr Kelly pay SRA's and Mr Bamford's costs of the hearing at first instance and of the appeal. (d) That Mr Kelly have a certificate pursuant to the Suitors Fund Act, if he is otherwise entitled to one.

3. In the appeal by GIO against MMI:- (a) That the judgment for MMI against GIO be set aside.

UWELLY v NARRANDERA SHIRE COUNCIL; GIO WORKERS COMPENSATION (NSW) LBD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (Rolfe AJA)

(b) That it be declared, having regard to the concession made on the hearing, that MMI is liable to indemnify the Council in respect of the damages the Council is required to pay to Mr Kelly.

(c) That MMI pays GIO's costs of the hearing at first instance and of the appeal and that it have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one.

That may leave outstanding a further question, namely whether Mr Kelly is entitled to be indemnified by the Council in respect of the costs which he is obliged to pay to SRA and Mr Bamford. It seems to me that there is no reason why the Council should be obliged to make that payment and, in any event, Mr Kelly's costs of the appeal as between himself, on the one hand, and SRA and Mr Bamford, on the other, are subject to an order under the Suitors Fund Act if Mr Kelly is otherwise entitled to the benefit of that Act.

1. In the appeal by Mr Kelly against judgment in favour of the Council:-

(a) That the judgment for the Council be set aside.

(b) That in lieu thereof there be judgment on the issue of liability in favour of Mr Kelly.

(c) That the matter be remitted to the Common Law Division to assess the quantum of damages as between Mr Kelly and the Council.

(d) That the amount of damages so assessed be reduced by twenty per cent to reflect Mr Kelly's contributory negligence.

(e) That the Council pay Mr Kelly's costs of the hearing at first instance and of the appeal.

(f) That the Council have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one.

2. In the appeal by SRA against the judgment in favour of Mr Kelly:-

(b) That in lieu thereof there be judgment for SRA and Mr Bamford on Mr Kelly's claim.

(c) That Mr Kelly pay SRA's and Mr Bamford's costs of the hearing at first instance and of the appeal.

(d) That Mr Kelly have a certificate pursuant to the Suitors Fund Act, if he is otherwise entitled to one.

(a) That the judgment for MMI against GIO be set aside.

(b) That it be declared, having regard to the concession made on the hearing, that MMI is liable to indemnify the Council in respect of the damages the Council is required to pay to Mr Kelly.

(c) That MMI pays GIO's costs of the hearing at first instance and of the appeal and that it have a certificate pursuant to the Suitors Fund Act, if it is otherwise entitled to one.

That may leave outstanding a further question, namely whether Mr Kelly is entitled to be indemnified by the Council in respect of the costs which he is obliged to pay to SRA and Mr Bamford. It seems to Rolfe AJA that there is no reason why the Council should be obliged to make that payment and, in any event, Mr Kelly's costs of the appeal as between himself, on the one hand, and SRA and Mr Bamford, on the other, are subject to an order under the Suitors Fund Act if Mr Kelly is otherwise entitled to the benefit of that Act.

Counsel for the appellant (Kelly): R J Ellicott QC/P Hennessy

Solicitors for the appellant (Kelly): Walsh & Blair

Counsel for the appellant (GIO): J N Gleeson QC/M Gilbert

Counsel for the first respondent (Narrandera): J N Gleeson QC/M Gilbert

10 Solicitors for the first respondent (Narrandera): Moray & Agnew Solicitors for the respondent (GIO): Moray & Agnew

Counsel for the second and third respondent (SRA/Bamford): J Poulos QC/P Brereton Solicitors for the second and third respondent (SRA/Bamford): Belbridge

Hague Counsel for the respondent (Mercantile): J D Hislop QC

20 Solicitors for the respondent: Mercantile Sparke Helmore