The claim by Woods in proceedings 20061/07 against the RTA and the claim by Mr Kuschert in proceedings 20065/07 against the RTA
189 These claims raised similar issues.
190 A very large part of the written submissions of counsel for the trucking interests under the heading "the case against the RTA" consisted of lengthy extracts from the Roads Act 1993, the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512, especially at pp 577-582 (pars 150-165, omitting some paragraphs) and the judgment of Tobias JA in Liverpool City Council v Millett (2004) 43 MVR 193 at 208-209 (66-69) and 212-218 (80-113) and quotations from and references to, documents which had been produced by the other parties on discovery. Only a comparatively small part of the written submissions was devoted to the making of actual submissions as to the case against the RTA.
191 It would appear to me that the case against the RTA propounded by the trucking interests can be briefly summarised as follows. The RTA was a road authority under the Roads Act or at least had the powers of a road authority under the Roads Act, in relation to the Riverina Highway. As such, it owed a duty of a kind recognised in Brodie to take reasonable care that its exercise of, or failure to exercise, those powers did not create a foreseeable risk of harm to a class of persons, road users, which included Mr Kuschert. This duty was not limited to a duty to road users exercising reasonable care for their own safety.
192 In the present case, the roadside trees were within what was described as sight triangles for road users approaching the crossing from the west. A sight triangle is a notional triangle, one side of the triangle being along the highway from the position of a road vehicle approaching the crossing up to the crossing, another side of the triangle being along the railway line from the simultaneous position of the train up to the crossing and the third side of the triangle being a direct line between the position of the road vehicle and the position of the train. If trees are within a sight triangle, they can obstruct the road users' vision of the train.
193 The RTA had knowledge before 10 November 2000 of the presence of the roadside trees within sight triangles and should, in discharge of the duty owed by it to road users, have removed the trees. However, the RTA, in breach of its duty, had failed to remove the trees and the failure to remove the trees had been a cause of the collision.
194 Alternatively, having failed to remove the trees, the RTA should have taken some other steps to safeguard road users. The other steps which were pressed in final submissions by counsel were to have erected a stop sign at the crossing or to have erected a speed limit sign on the highway before the crossing. If either of these signs had been erected, then Mr Kuschert would have obeyed it and the collision would not have occurred.
195 The RTA conceded parts of this case and disputed others.
196 The RTA conceded that it was the road authority or had the powers of a road authority in respect of the Riverina Highway but limited that concession to "responsibility for the Riverina Highway at this crossing extending to the limit of the table drain and up to 3 metres either side of the railway line".
197 The RTA accepted that it owed a duty to take reasonable care that its exercise or failure to exercise its powers as a road authority did not create a foreseeable risk of harm to road users but sought to limit that duty to a duty to take reasonable care for persons using reasonable care for their own safety.
198 It was conceded by the RTA that the roadside trees were in a sight triangle, as defined in the RTA's draft traffic engineering manual of 1994, which was conceded to have been in operation in 2000. However, it was disputed that the RTA had knowledge before 10 November 2000 of the presence of the roadside trees within the sight triangles.
199 It was submitted by the RTA that responsibility for the trees being within the sight triangles fell on the Victorian railway authorities and not the RTA. The RTA accepted that it would have been responsible for all approach signs on the highway, including any speed limit signs, but it disputed that it was responsible for signs at the crossing itself, including any stop sign. The RTA disputed that any breach of care by it had been a cause of the collision.
200 I will now make some findings about certain parts of the trucking interests' case against the RTA which were disputed by the RTA.
201 It is unnecessary to determine whether the RTA's responsibility extended on both sides of the highway to beyond the limit of the table drain, because the roadside stand of trees was within the limit of the table drain. The roadside trees had of course been cut down before I had a view in the first week of the hearing in Albury but stumps of some of the trees could still be seen and appeared to me to be within the limit of the table drain. I can draw inferences from what I saw on a view (Evidence Act s 54).
202 It is unnecessary to determine whether, if the RTA owed a duty of care, it owed a duty of care to persons not exercising reasonable care for their own safety, in circumstances where it would not have owed a duty of care to persons who were exercising reasonable care for their own safety. A duty of care would have been owed alike to drivers exercising, and drivers not exercising, reasonable care for their own safety, to take reasonable care that a driver's view of an approaching train was not obstructed by trees.
203 To determine some other parts of the trucking interests' case which were disputed, it is necessary to refer to some documents. At pp 63-69 of the trucking interests' written submissions in the section headed "what the documents disclosed" counsel for the trucking interests quoted parts and referred to parts of a number of documents. I have taken into account all of these documents but will specifically refer to only some of them.
204 Some of the documents related to an audit of the crossing conducted in about June 1996 by the Department of Infrastructure of the State of Victoria. One of these documents was a spreadsheet, copies of which were produced by both the Department of Infrastructure and the RTA, in which it was noted, in relation to three of the four sight triangles for the crossing, including the sight triangle in the quadrant relevant to Mr Kuschert, the sight was unsatisfactory, the obstruction was vegetation and the vegetation was able to be easily removed.
205 Another document was a document described as an interoffice memorandum on the letterhead of the Public Transport Corporation of Victoria from the Manager, Track Engineering to a Mr Ponton Manager System Safety V/Line Freight. The memorandum referred to the level crossing at Rennie (that is the level crossing at Savernake). It stated:-
"I refer to your memorandum dated 29 January, 1997 requesting for a safety review of the above level crossing following an accident on 20/12/96.
An investigation into the level of safety provided at this crossing has been carried out and it indicates that the advanced warning signs, level crossing signage and pavement markings do not fully comply with the Australian Standard AS.1742.7-1993. Additionally there is the possible presence of overgrown trees along the rail reserve which could affect sight distance. Written requests (copies attached) have been forwarded to the Road and Traffic Authority which is the responsible road body and the District Engineer (Northern) seeking for these to be remedied."
206 On the same day 29 May 1997 an officer of the Public Transport Commission wrote a letter to the RTA in the following terms:-
"Following a level crossing accident at the above site on 20 December, 1996 the Public Transport Corporation reviewed the level of safety at this crossing. This investigation indicated that the approach warning signs do not fully comply with the Australian Standard AS.1742.7-1993 'Manual of uniform traffic control devices - Railway Crossings'.
In view that the RTA is the road authority and is responsible for the provision of advance warning signs at level crossings please arrange for the required signage to be erected to accord with Figure 1 of the Australian Standard.
The investigation has also indicated an absence of 'RAIL X' pavement markings on the approaches to the crossing and holding lines at the crossing itself. As these are also required under the Australian Standard it would be appreciated if you can also arrange for these to be provided.
The Corporation's District Engineer (Northern), Mr Frank Flynn has also been requested to update the signage at the crossing which is the responsibility of the P.T.C."
207 On the same day 29 May 1997 an officer of the Public Transport Commission wrote a letter to Mr Flynn, which is in the following terms:-
"Following a level crossing accident at the above site on 20 December 1996, Adrian Ponton, Manager System Safety, V/Line Freight has requested a safety review of this crossing.
As a consequence a letter has been forwarded to the Roads and Traffic Authority (copy attached) requesting updating of the advanced warning signs and pavement markings to comply with AS1742.7-1993. In view that the PTC is responsible for the level crossing signage please arrange for these signs to be altered to accord with Figure 1 of the Australian Standard. It also appears that a missing 'RAILWAY' sign requires replacement.
Further, the 1996 Rail Level Crossing Audit indicates that trees within the railway reserve are affecting sight distance. It would be appreciated if you can also arrange for these to be attended to if you consider that they are adversely affecting sight distance."
208 There is a handwritten note dated 21 July 1997 signed by Mr Flynn on a copy of this letter. The handwritten note reads:-
"New "railway" sign and hazard marker erected Trees were not obstructing sighting".
209 Notes in diaries kept by the RTA indicate that in January and February 1998 the RTA replaced and upgraded signs near the crossing.
210 Some of the documents discovered indicated that it was proposed to conduct another audit of the crossing in about September 1998 but the documents which are still in existence do not reveal whether this proposed audit was held.
211 Another document discloses that in 1999-2000 it was proposed to upgrade the crossing in 2002.
212 Although counsel for the RTA submitted that there was no evidence as to when the copy of the spreadsheet held by the RTA had been received by the RTA, I consider that, more probably than not, it had been received before 10 November 2000 and hence the RTA, at some level, had knowledge before 10 November 2000 of the presence of the roadside trees within the sight triangles. I am, however, not satisfied that it has been established that responsibility to remove the trees or to erect a stop sign at the crossing was within the scope of the RTA's responsibilities. The auditing of the crossing conducted in about June 1996 was conducted by the Department of Infrastructure of the State of Victoria. After the results of the investigation following the accident in December 1996 had been obtained, the Public Transport Corporation of Victoria on 29 May 1997 wrote to the RTA as "the road authority", asking it to arrange for advance warning signs and pavement signs to be effected, in accordance with the relevant Australian standards.
213 However, as the Public Transport Corporation informed the RTA, it wrote to its own district engineer requesting him to update the signage at the crossing, "which is the responsibility of the PTC". The Public Transport Corporation did not even mention in its letter to the RTA that it had written to its own district engineer, asking that trees within the railway reserve be attended to, if the engineer considered that the trees were adversely affecting sight distance. The engineer reported to the Public Transport Corporation that signs had been erected at the crossing but that the trees were not obstructing sight.
214 If a responsibility to remove the trees was within the scope or content of the RTA's duty of care to road users, the questions would still remain of whether it was a breach of the duty of care not to have removed the trees and, if it was a breach, whether this breach caused the collision.
215 In my opinion, the omission to remove the trees would clearly have been a breach.
216 Mr Cowling, the engineer retained by the RTA, was strongly of the opinion that the roadside trees, when combined with the fenceline trees, "effectively blocked a proper sighting from alongside the road through to the north in the direction of an approaching train" and "this serious sight obstruction" should have been removed (Mr Cowling's report 20 July 2006 p 23). In his oral evidence Mr Cowling reiterated that the roadside stand of trees should have been removed.
217 In exhibit PN10 the engineering experts said in answer to question 8 that the first and second roadside tree stands (that is the roadside trees and the fenceline trees) created an obstruction to a clear view of an approaching train and that the safest action would have been promptly to remove the obstructing trees.
218 In exhibit PN10 the engineering experts said in answer to question 10 that at a road distance from 100 metres to 60 metres from the crossing, the truck driver's view would be obstructed by the roadside and fenceline trees.
219 In answer to question 11(f) the engineering experts said that "the roadside and fenceline stands of trees within 100 metres to the west of the crossing may have played a role (in contributing to the collision) in that they would have blocked the driver's view within this section of the approach".
220 However, the engineering experts added in their answer to question 11(f) "this effect is only relevant in the event the driver did not observe the train in the interval from about 300 metres to 100 metres from the crossing". This addendum to the answer to question 11(f) relates to the issue of causation, to which I now turn.
221 As I have already remarked, the only rational explanation of the skid mark is that Mr Kuschert had suddenly become aware for the first time of the approaching train and had applied the brakes of the truck hard.
222 The engineering experts in their answer to question 1(c) in exhibit PN10 said that Mr Kuschert had probably determined a need to commence braking at 80-100 metres from the impact, including a reaction time. In their answer to question 10(a) the engineering experts said that it was only at a distance of from 100 metres to 60 metres from the crossing that the truck driver's view would have been obstructed by the roadside and fenceline trees. Accordingly, Mr Kuschert became aware of the train either just before reaching or just after reaching the trees. On either view, any obstruction created by the trees did not prevent him becoming aware of the train.
223 That the driver of the truck had become aware of the train before he was unsighted by any of the trees was a conclusion reached by Mr Hazel, one of the trucking interests' own experts, in a report dated 24 April 2001, which counsel for the trucking interests did not tender. In his oral evidence Mr Hazel said that he stood by the opinion he had expressed in his report of 24 April 2001.
224 In recognition of the difficulty of establishing that a failure to remove the trees had caused the collision by obstructing Mr Kuschert's view of the approaching train, the argument for the trucking interests shifted from an "obstruction" argument to what was sometimes referred to as a "distraction" argument, although Professor Dain deprecated the use of the word "distraction". According to the distraction argument, the failure to remove the trees should be regarded as having caused the collision, in that at certain distances, for example at 250 metres from the crossing, the trees, even if they did not block a driver's view of an approaching train, blocked a driver's view of the crossing itself and by doing so added to Mr Kuschert's tasks in driving the truck, for example, in remaining in the correct lane as he negotiated the curve in the road and watching for oncoming traffic, thereby "distracting" him from looking out for trains.
225 I do not consider that the distraction argument should be accepted. As Professor Dain said in evidence, for drivers approaching any intersection or roundabout or indeed anywhere on a road, there are a number of factors that a driver needs to pay attention to and a number of tasks to be performed by the driver. In my opinion, the presence of the trees did not to any significant degree add to, or make more difficult, the other tasks which Mr Kuschert as the driver of the truck had to perform.
226 I conclude that the failure to remove the roadside and fenceline trees did not cause the collision.
227 It was submitted on behalf of the trucking interests that, if the trees were not removed, a stop sign for road traffic should have been erected at the crossing.
228 In exhibit PN10 the engineering experts, although they referred to other steps which might have been taken, such as the removal of the trees and the lowering of the road approach speed, said nothing about erecting a stop sign.
229 In his report of 23 May 2006 Dr Rechnitzer expressed the opinion that a stop sign would not be suitable at this crossing. Factors referred to by Dr Rechnitzer included the likelihood that a stop sign would be disregarded by a portion of the driving population, that drivers who stopped at a stop sign would run the risk of rear-end collisions and that the time for a large semi-trailer to clear the crossing when starting from a stationary position at the crossing would be longer than the approach time of a train from the available sight distance.
230 In oral evidence at the hearing Dr Rechnitzer and Mr Cowling said that they were not in favour of there being a stop sign at the crossing.
231 Mr Booth said in evidence that he did not think that there should be any other form of warning device (including a stop sign) at the crossing. He had not said anything about a stop sign in his reports.
232 The remaining engineering expert Mr Hazel had said in a report that the presence of a stop sign might have reduced the risk of an accident. However, Mr Hazel accepted in oral evidence that drivers of semi-trailers would prefer not to have to bring their vehicles to a halt on an open country road and that there was a likelihood that they would not comply with a stop sign, if they did not see any approaching train. Mr Hazel also accepted that a truck which had stopped at a stop sign and was taking off from a stationary position would be on the railway line for a longer period than a truck passing over the railway line at speed. Mr Hazel also said that a truck which had stopped at a crossing could have a difficult task in judging the speed of an oncoming train heading straight at the crossing, when "the only clue you have got is the change in size of the object (the train)". Mr Hazel ultimately agreed that he was not saying that there should have been a stop sign at the crossing.
233 I conclude that it was not a breach of any duty of care not to have erected a stop sign at the crossing.
234 Even if there had been a stop sign at the crossing, I do not consider that I should accept Mr Kuschert's self-serving, speculative evidence that he would have obeyed the stop sign and stopped the truck, if he had not seen any approaching train.
235 It was submitted by the trucking interests that, if the trees were not removed and no stop sign was erected, a speed limit sign should have been erected at some spot on the highway approaching the crossing.
236 In exhibit PN10 the engineering experts said in answer to question 7 that the 100 kph road speed limit was in accordance with standards but that a lower speed zone (80 kph or lower) would have been "preferable", since, if obeyed, there would be more opportunity to observe a train and come to a stop before the crossing.
237 In answer to question 11(b) the experts said that they were of the opinion that the posted speed limit was in the circumstances too high.
238 A sign limiting speed to 80 kph would not have prevented the collision occurring. According to Mr Kuschert's evidence about a part of his usual practice, which I have accepted he followed on 10 November 2000, Mr Kuschert started slowing down from a speed of 100 kph at the first warning sign, which was about 320 metres from the crossing. I have found that he slowed his vehicle to a speed estimated by the engineering experts to be 75-77 kph or only a very little higher, before he applied the brakes so as to produce the skid mark.
239 The submission I am presently considering could only succeed, if the speed limit set was lower than 80 kph and in oral submissions counsel for the trucking interests submitted that a speed limit sign limiting speed to 60 kph should have been erected. However, the engineering experts merely stated in exhibit PN10 that a speed of "80 kph or lower" would have been preferable.
240 I find that it was not a breach of RTA's duty of care not to have erected a speed limit sign limiting speed to 60 kph.
241 I also consider that I should not accept Mr Kuschert's self-serving, speculative evidence that he would have obeyed a speed limit sign limiting speed to 60 kph. I consider that, even if there had been a speed limit sign limiting speed to 60 kph, Mr Kuschert would have followed what he described as his usual practice of slowing down only to about 80 kph.
242 I note that the RTA sought to rely in the alternative on the provisions of s 45 of the Civil Liability Act. I have not, however, found it necessary to consider the possible application of s 45. Issues which would arise under s 45 would include whether steps which the trucking interests alleged the RTA should have carried out constituted "road work" within the meaning of the section and whether the RTA had "actual knowledge", at the required level, "of the particular risk the materialisation of which resulted in the harm".
243 I find a verdict for the RTA on the cross-claim in proceedings 20061/07 and on the claim by Mr Kuschert in proceedings 20065/07. I also find a verdict for the RTA on the claim against it by Pacific National in proceedings 20061/07. This claim was brought by Pacific National only as a precaution, because of the claims brought against the RTA by Woods and Mr Kuschert.