RL & CA Woods Pty Ltd v Pacific National

RL & CA Woods Pty Ltd v Pacific National - [2009] NSWCA 298 - NSWCA 2009 case summary — Zoe

CATCHWORDS: TORTS - negligence -collision between a truck and a train at a level crossing - whether the truck driver had a clear view in the direction of the train - whether the truck driver kept a proper look out - the evidence established that the truck driver had a clear view and failed to keep a proper look out - TORTS - negligence -collision between a truck and a train at a level crossing -whether the train drivers should have applied the brakes earlier - the evidence did not establish that there was a reason for the train drivers to think that the truck was a danger or that the truck was not going to give way when the train was 500 metres from the level crossing - the evidence did not establish that the train drivers should have realised that there was a possibility of a collision 350 metres from the level crossing - the train drivers did not breach their duty of care - TORTS - negligence- collision between a truck and a train at a level crossing - stand of trees on the side of the highway before level crossing- whether the RTA breached its duty by omitting to remove the stand of trees - whether the stand of trees interfered with the truck driver's ability to see the train and react earlier to the presence of the train - whether the stand of trees was a cause of the collision - it was not argued that the RTA had responsibility for removing the stand of trees -the evidence did not establish that the stand of trees was a cause of the accidentTORTS- negligence -collision between a truck and a train at a level crossing - whether the RTA was required to reduce the existing speed limit of the highway on the approach to the level crossing - whether the collision would have been avoided if the speed limit on the approach to the level crossing had been reduced - whether the truck driver would have reduced his speed had the speed limit been lower than it was - the evidence did not establish that reducing the speed limit would have prevented the collision - the evidence established that the truck driver would not have reduced his speed had the speed limit been lowered - COSTS - Bullock order - the appellants ordered to pay the RTA's costs - whether the appellants should reimburse Pacific National for the RTA's costs - whether the three conditions required for a Bullock order satisfied - whether the appellants' conduct was such to make it fair to order the appellants to reimburse Pacific National - appellants' conduct does not warrant the making of a Bullock order against it

[16]

4 November 2009 RL & CA Woods Pty Ltd v Pacific National (Victoria) Ltd Wayne Bruce Kuschert v Pacific National (Victoria) Ltd and Anor Judgment 1 ALLSOP P: I have had the privilege of reading the reasons of Ipp JA in draft. I agree with the orders proposed by his Honour and with his Honour's reasons. I wish only to say something about the duty of care of Pacific National. 2 Whilst the arguments on appeal did not deal in any detailed contentious way with the duty of care of Pacific National, the primary judge dealt with the issue. At [153] his Honour recited Pacific National's submission at trial that it was not part of the content of any duty of care owed by it to road users to commence slowing the train whenever those in charge of the train saw a vehicle approaching a crossing without reducing speed, if the vehicle was still much further away from the crossing than its stopping distance if its brakes were applied. The primary judge concluded at [168] in Pacific National's favour by stating that it was either not within the content of any duty of the train driver or it was not negligent on the part of the train driver not to take some action to slow down or stop the train when it was 350 metres from the crossing. He thus did not decide the content or scope of the duty. It is appropriate to enunciate that duty, at least to the extent of those driving the train. I do so by reference to authoritative statements of approach in the High Court and to persuasive statements of approach in this Court. Some of the decisions deal not just with the question of the duty of those driving the train and so the vicarious liability of the railway authority, but also with the direct responsibility of the railway authority for the crossing and attendant signage. For present purposes, I am dealing with the former, not the latter aspect of the duty, but it is difficult to untangle these questions from these authorities. It might legitimately be said that some (in particular, The South Australian Railways Commissioner v Thomas [1951] HCA 48; 84 CLR 84, Caledonian Collieries v Speirs [1957] HCA 14; 97 CLR 202 and Rich v Commissioner for Railways (NSW) [1959] HCA 37; 101 CLR 135) are directed only to the latter, and not the former, aspect of the duty and so may not be relevant to the present task. In any event, for completeness and coherence I refer to all the cases. 3 For the following reasons, those driving the train, and thus Pacific National vicariously, owed a duty to exercise reasonable care, in all the circumstances, for the safety of persons using the level crossing. Whether that duty has been breached or not will require an examination of all the relevant circumstances including basic factors of commonsense and human and community experience discussed in the cases to which I now come, to the extent that they are still relevant to society and its activities, as they appear to me to be. 4 The inevitable starting point is the discussion of the standard of care by Jordan CJ in Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 at 502-503 (with whom Street J and Maxwell J agreed) has been approved on a number of occasions by the High Court: Thomas HCA at 89 (Dixon J, Williams J and Kitto J); Commissioner for Railways v Dowle [1958] HCA 15; 99 CLR 353 at 358 (Dixon CJ, McTiernan J, Fullagar J and Taylor J); and Rich at 145 (Fullagar J). The reasons of Jordan CJ in Alchin remain a clear and illuminating description of the responsibilities of those operating trains and level crossings. The passage at 502-503 follows a discussion at 501-502, in equally helpful terms, of the circumstances in which a duty of care will arise (cited by Gummow J in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [62] 443 and by Dixon CJ, McTiernan J, Kitto J and Taylor J in Caledonian Collieries at 221). In Alchin Jordan CJ said at 502-503: "There is no universal standard of care applicable to all level crossings. What precautions are to be taken depends upon the circumstances of the particular crossing and the conditions prevailing at the time when the train was driven across it. Precautions which would be reasonable at an unfrequented country road across which a train passes two or three times a week would not necessarily be reasonable at the crossing of a busy thoroughfare. Speaking generally it is the positive duty of those responsible for the train to give reasonable warning of the existence of the crossing or of the approach of the train or of both as the circumstances of the particular crossing may require: Fraser v Victorian Railways Commissioners 8 CLR 54 at p 60, and to keep a vigilant lookout on the train; and it is their negative duty to refrain from doing anything likely to lull persons who are going over the crossing into a sense of false security in time of actual danger. Such reasonable warning may be given at the crossing, eg by the provision of notices, lights and gates, and by the whistling of the train as it approaches the crossing if in the circumstances the noise of its approach is not likely to be sufficient. Whether any particular form of warning is called for depends on the circumstances: Skelton v London & North Western Railway Co Ltd LR 2 CP 631 at p 637. Whether or not it is the duty of a defendant to keep a gatekeeper at the crossing to warn pedestrians also depends on the circumstances of the particular crossing: Bilbee v London Brighton & South Coast Rly 18 CB (ns) 584 at pp 592-3. In the absence of special circumstances there is no general duty to provide a gatekeeper: Stubley v London & North Western Rly Co LR 1 Exch 13." 5 In Thomas, Dixon J, Williams J and Kitto J stated at 89: "In considering whether adequate warning was provided at a level crossing over a public road all the circumstances of the locality and of the traffic passing over it and the conditions prevailing at the relevant time must be taken into consideration: Alchin v. Commissioner for Railways (1935) 35 S.R. (N.S.W.) 498, at 502. The duty of the commissioner is to do everything which in the circumstances is reasonably necessary to secure the safety of persons using the crossing : Cliff v. Midland Railway Co. (1870) L.R. 5 Q.B. 258 at 261; Ellis v. Great Western Railway Co. (1874) L.R. 9 C.P. 551 at 555; Liddiatt v. Great Western Railway Co. (1946) K.B. 545 at 550. This must include a duty to give reasonable warning of the approach of a train where the commissioner does not provide gates which are closed when a train is approaching. That duty is not fulfilled by providing means which would enable persons of acute vision and hearing exercising the most anxious care to avoid injury. The fact that all sorts and conditions of people use the highway must be taken into account, and, whilst the commissioner is not required to protect against their own carelessness people who proceed without any regard to their own safety, it is his duty to take every reasonable precaution to ensure that the level crossing will be safe for the members of the public generally who act with due care while exercising their rights of passing over it." (emphasis added) 6 It is to be noted that the expression of the duty by Dixon J, Williams J and Kitto J in Thomas was in general terms: see the first emboldened passage above. The statement in the second emboldened passage that the commissioner was not required to protect people against their own carelessness can be seen to be part of a general expression of view as to the standard of care. This accords with the general expression of the duty in later cases, to which I will come.

[17]

7 In Hale v Victorian Railways Commissioner [1953] HCA 26; 87 CLR 529, the High Court dealt with a level crossing accident not unlike the present case. A bus and a train had collided at a level crossing on the outskirts of Horsham. The plaintiff was a passenger in the bus. The finding of the jury was that the bus driver was negligent. The case against the Commissioner included general allegations of failure to exercise due care by the train fireman who had been keeping a look out. In the judgment of Taylor J (with which judgment Dixon CJ, Williams J and Kitto J agreed, Dixon CJ adding some further comments of his own) there was a discussion of the duty of care of those driving the train. The full content of that discussion begins with Taylor J's discussion of what was said in the Full Court. Taylor J said at 545-546: "The basis of the criticism of the learned trial judge's charge to the jury is made clear by a passage in the reasons of Sholl J., who felt that if it had not been for certain answers given by the fireman in cross-examination as to the dangerous character of the crossing, he would have been of the opinion that there was no evidence to go to the jury of negligence on the part of the fireman at all. But, in view of those answers, he was of the opinion that the plaintiff was entitled to have the question of the fireman's negligence left to the jury upon the basis specified by him. In his Honour's view the ultimate question for the jury on this question was whether there was when or after he first saw the bus and at such an appreciable interval of time before he acted that his earlier action would probably have avoided the accident such a reasonable chance that the bus would go on to the crossing at the same time as, and in spite of the approach of, the train that a reasonable fireman would have preferred to call for the brakes rather than risk the catastrophe of a collision. In the view of Herring CJ the duty the fireman owed to road users approaching the crossing ... should be no more than to keep a proper look out and to call on the engine driver to take action when the possibility of danger became or should have become reasonably apparent to him'. While I agree that the duty of the fireman was no higher than these passages indicate, it is, I think, not unimportant to point out that, upon the evidence, it was for the jury to determine this issue in the light of all the circumstances. No doubt negligence could not be imputed to a person in the position of the fireman for assuming that the driver of a motor vehicle proceeding at a reasonable pace and who is aware of the presence of a train in the immediate vicinity of a level crossing will not act foolishly, and it would be quite wrong on such a set of facts and independently of any other circumstances to treat as negligent an omission on the part of such a person to act immediately. But in my view the learned trial judge's charge to the jury did not leave this course open to them. In my opinion there was no misdirection or failure to direct on this point; the difficulty, if there be one, is concerned with the question whether in the circumstances of this case the fireman was entitled to continue to make this assumption after he first observed the bus approaching the crossing. The question of the point of time at which a reasonable man, finding himself in the position of the fireman, should have apprehended that a dangerous situation had arisen, did not fall to be determined solely upon the evidence of what occurred or what was observed by the fireman after the train and bus came into the view of each other. No doubt if adequate warning of the train's approach had been given, the fireman would have been justified in assuming that Forbes was aware of its presence in the vicinity. But whether circumstances justifying such an assumption existed was itself a question for the jury. Again, Forbes claimed that his view of the approaching train, an event quite unusual at this crossing on Saturday afternoons, was impeded by the afternoon sun and there was some evidence to the effect that a locomotive whistle sounded some distance back from the crossing might easily be confused with whistles sounded near Horsham Station or on other railway lines approaching that point. I feel that all of this evidence was relevant to a consideration of what course a reasonable man in the position of the fireman would have adopted upon seeing the bus approaching. In these circumstances, I am of the opinion that the jury might well have concluded that the whistle should have been sounded at this point or that the brakes should have been applied in an endeavour to avoid the accident or minimise its consequences." (emphasis added in bold) 8 Dixon CJ in his additional comments said the following at 537: " … I am unable to agree with the view taken in the Supreme Court that there was a real likelihood, created by the direction, of the jury's supposing that simply because the fireman saw that upon the road a bus was approaching, he ought to have taken measures to stop the train lest the bus should not pull up to let the train pass. I do not think that the jury would suppose that his Honour meant in any way to suggest that a train crew might not rely upon road traffic heeding the warnings of whistle and notice boards and might not accordingly proceed at speed over level crossings unless there was reason to think that a vehicle was actually endangered. His Honour spoke to jurymen who shared the common experience and understanding of the community as to the use of level crossings and the practice and indeed the necessity of trains travelling over them in reliance upon the road traffic paying heed to the warnings and allowing them to pass. I do not think that the jury would misconstrue his direction and treat the train crew as under a duty of care at variance with common practice. At one point in the direction the learned judge pointed out that the fireman had not much time to act but added that if the jury nevertheless thought that a reasonable man in the circumstances should have concluded that there was a danger and that a catastrophe threatened, they might think he ought to have acted at once. The expression 'a catastrophe threatened' seems apt enough to convey the point. In other places more equivocal references to 'seeing the danger' occur. But I repeat that I am unable to think that the probability of the jury being led to adopt the view suggested in the Full Court was so real as to call for a new trial. There is no express affirmative statement contained in the summing up which has such a meaning." (emphasis added) 9 These passages in the reasons of Taylor J and Dixon CJ can be seen to be premised on, and reflective of, a general duty to take care in conformity with the general expression of the duty of care in Thomas with questions of breach, for the jury, taking up the kinds of considerations and assumptions discussed by Taylor J and the common experience and community understanding discussed by Dixon CJ. The error in the approach of the Full Court was to constrict the expression of the duty of care by reference to matters that were, properly understood, questions of breach for the jury. 10 In Caledonian Collieries, Dixon CJ, McTiernan J, Kitto J and Taylor J, after approving what Jordan CJ had said in Alchin at 501-502 about the function of the judge in relation to duty of care in a negligence case, said at 221: "… As a general proposition it would seem undeniable that in the occupation and management of a railway which crosses a busy highway the appellants owe a duty to those using the highway to exercise reasonable care for their safety from the dangers which arise from the presence of the railway. In applying that general proposition in the present case, unless only one conclusion was reasonably open, it became a question for the jury whether reasonable care demanded that the appellants should have taken any and what precautions which would have averted injury from uncontrolled vehicles leaving the Crofton loop through accident or neglect on the part of the Fenwicks' employees or other cause." (emphasis added) 11 It is to be noted that the expression of the duty by Dixon CJ, McTiernan J, Kitto J and Taylor J in Caledonian Collieries was in general terms conformable with the passage in Thomas first emphasised in the above quotation and with the approach in Hale. 12 In Dowle at 358 Dixon CJ, McTiernan J, Fullagar J and Taylor J also restated the above statement of principle in Thomas. 13 In Rich v Commissioner for Railways (NSW), the Court made clear that the liability of the Commissioner to Mrs Rich, who was struck by a train whilst crossing the tracks at a level crossing, did not depend upon a duty of care based on Mrs Rich as entrant to the land occupied by the Commissioner, rather upon the duty required of the Commissioner in running a train through a level crossing. Such duty was generally expressed by McTiernan J at 139-140, by Fullagar J at 144-145, by Taylor J at 150, by Menzies J at 152-153 and by Windeyer J at 159. In terms that reflect the substance of the other judgments in this respect, Fullagar J (who was one of the judges in Dowle, which restated the expression of principle in Thomas, as were McTiernan J and Taylor J) said at 145: "a case fit to go to the jury might have been made on the basis of a general duty to exercise reasonable care for the safety of persons using the crossing."

[18]

Windeyer J at 159 said: "… the duty of the Railway Commissioner and his servants is to be measured by all the circumstances, including any knowledge they had that persons habitually trespassed there and that it was probable that someone might be on the line at the level crossing." 14 It was against this background that the Full Court of this Court (Brereton J, Collins J and Jacobs J) came to discuss the issue of the responsibilities of those driving a train at a level crossing in Petropoulos v Commissioner for Railways (No 1) (1962) 80 WN (NSW) 659. The circumstances and the topography (not entirely dissimilar to those in the present case) were referred to by Brereton J (with whose judgment Collins J and Jacobs J agreed) at 659: "… The railway line is straight and runs over flat country on both sides of the crossing. The road for several hundred yards before reaching the crossing is straight and there are only minor undulations. There are some trees on either side of the road, but the driver of a moving vehicle would have a virtually unimpeded view of the railway line for at least two hundred yards before reaching the crossing. That is of course by day. At night, apart from warning signs, he would see nothing to indicate the presence of the railway line and the crossing until he saw the rail motor or his headlights shone on the crossing and its immediate surroundings. It was at 6.30 pm in the evening that the collision occurred and on the evidence it was quite dark. The road and the railway intersect at the crossing approximately at right angles and both vehicles were travelling from Parkes towards Forbes with the train approaching from the deceased's right. There was a warning sign at the roadside some one hundred yards from the crossing and another one just short of the crossing. Apart from these and the fact that the fences converged from the sides of the road just before the crossing was reached, there was nothing to indicate the presence of a level crossing. There were no gates and no warning lights or signals. The crossing was situated on a very slight rise in the road." 15 The trial judge was said to have unduly restricted the plaintiff's case that went to the jury. In discussing the duty of care, Brereton J referred (at 662) to Alchin's case at 502, and then said the following at 663: "Several basic factors need to be borne prominently in mind. In the first place the Commissioner is driving a heavy vehicle which cannot be pulled up in a short distance and the efficacy of any warning needs to be gauged accordingly. In the second place, although there is no written law on the subject, it is undoubtedly and universally regarded as being a first requisite of prudence on the part of the user of a public highway that he should give way to a train approaching from either direction at a level crossing, and this is a matter which the driver of a train may properly have in mind."

[19]

Then, after referring to the passage in Dixon CJ's reasons in Hale which I have set out above, Brereton J said the following at 663, referring in the first sentence to Dixon CJ in Hale : "… He appears to recognise, however, that a situation may arise in which the driver of a train, having given adequate warning of its approach to a crossing, becomes aware of impending danger and that it then becomes his duty to endeavour to stop. To put it shortly, as I understand the matter, the driver of a train is entitled to proceed at speed, provided he gives adequate warning of the train's approach, on the assumption that all users of the highway will keep clear of the crossing. If, however, it becomes clear that a vehicle is not giving way, then he must slow down or stop. Bearing in mind of course that the distance within which a railmotor can stop as stated in the defendant's admissions in the present case is very much greater than that in which a motor vehicle travelling at ordinary speeds can do so, it may well be that it can rarely become apparent to the driver of a railmotor that a vehicle is not stopping at a point of time early enough for him to stop his train before reaching the crossing. Even though this be so, I think that in such circumstances the duty remains on him at least to minimise the impact if it cannot be avoided by the reduction of speed as soon as the emergency becomes apparent. I do not find anything to the contrary in the views expressed by Taylor J in the same case." 16 From these cases, it can be stated that those driving a train approaching a level crossing are under a legal duty to exercise reasonable care in all the circumstances for the safety of persons using the level crossing. 17 Fulfilment of that duty and the exercise of reasonable care is a question of fact to be answered in all the circumstances and informed, in part, by the basic factors referred to by Brereton J in Petropoulos at 663 and the matters of common experience and community understanding referred to by Dixon CJ in Hale at 537, subject to their continuing societal relevance. 18 Here, the learned primary judge, on one hypothesis, assessed the conduct of those in control of the train by reference to a duty conformable with the above. For the reasons given by Ipp JA, there has been no error demonstrated in the learned primary judge's analysis of the conduct of those in control of the train and his Honour's conclusion that they were not negligent. 19 IPP JA:

[20]

Introductory 20 These reasons are in respect of two appeals that arise out of litigation concerning a collision between a truck and a train. The collision occurred shortly before 4:00 pm on 10 November 2000 at a railway level crossing in New South Wales. The level crossing was on the Riverina Highway ("the Highway") between Rennie and Savernake in southern New South Wales. 21 The train was travelling on a VicTrack railway line that extended into New South Wales. It consisted of nine fully laden grain hopper wagons, each weighing 76 tonnes, hauled by a locomotive having a mass of 121 tonnes, for an all-up train mass of 805 tonnes. The train had an overall length of 152.7 metres. The locomotive was 18.542 metres long and each wagon was 14.903 metres long. 22 The truck consisted of a prime mover and an unladen tipper trailer. It was owned and operated by RL & CA Woods Pty Ltd ("Woods"). The driver of the truck was Mr W B Kuschert, an employee of Woods. Mr Kuschert was driving the truck in the course of his employment with Woods. 23 The train was owned and operated by Pacific National (Victoria) Ltd ("Pacific National"). There is no evidence that Pacific National was a statutory authority or an emanation of a State or anything other than an incorporated company. Mr B Gangemi was driving the train. Mr D J Jones was his co-driver. 24 In consequence of the collision, the truck caught fire. Mr Gangemi and Mr Jones rescued Mr Kuschert from the truck, but he was seriously injured. The prime mover and the trailer of the truck were damaged beyond repair and the locomotive and some of the wagons of the train were damaged. 25 Pacific National sued Woods, Mr Kuschert and the Roads & Traffic Authority NSW ("the RTA") for damages for negligence for the cost of repairs to the locomotive and the wagons. In the same proceedings, Woods cross-claimed against Pacific National and RTA, alleging that the collision had been caused by their negligence. Woods claimed damages for the loss of the prime mover and the trailer, and for financial loss. In separate proceedings, Mr Kuschert sued Pacific National and the RTA, claiming damages in negligence for the personal injury he suffered as a result of the collision. In those proceedings Pacific National cross-claimed against the RTA claiming contribution or indemnity in the event of Mr Kuschert succeeding in his claim against Pacific National. The primary judge, James J, observed that, although the RTA did not cross-claim against Pacific National, it was common ground between these two parties that Pacific National's cross-claim sufficiently raised all questions of apportionment of damages as between these two parties. 26 It was common ground that the interests of Woods in the proceedings brought by Pacific National, and those of Mr Kuschert in the proceedings brought by him, were identical. During the hearing of the trial, Woods and Mr Kuschert were at times referred to as "the trucking interests". 27 The parties agreed upon the amount of damages to which Pacific National, Woods and Mr Kuschert would each be entitled should they obtain a verdict in their favour. The primary judge was therefore only concerned with questions of liability in the two actions that came before him. Furthermore, the parties agreed that any questions of contributory negligence or apportionment between tortfeasors should be deferred until after his Honour had delivered judgment. 28 His Honour found that the collision was caused by the negligence of Mr Kuschert in failing to keep a proper lookout. He held that Woods was vicariously liable for the negligence of Mr Kuschert. His Honour held that neither Pacific National nor the RTA was negligent. 29 Accordingly, his Honour upheld Pacific National's claim against Woods and Mr Kuschert, and dismissed Pacific National's claim against the RTA. His Honour, further, dismissed Woods' cross-claim against Pacific National and the RTA. In the action brought by Mr Kuschert, his Honour dismissed Mr Kuschert's claim against Pacific National and the RTA, and dismissed Pacific National's cross-claim against the RTA. 30 His Honour made several costs orders, including a Bullock order against Woods and Mr Kuschert, ordering them to reimburse Pacific National for all reasonable amounts Pacific National was required to pay as a result of the order requiring it to pay the RTA's costs.

[22]

The view of the train from the truck as it approached the crossing 38 The parties (in a series of numbered "Agreed Facts") agreed upon certain facts relating to the view that a driver approaching the crossing from the west (as did Mr Kuschert) had of a train travelling from north to south. Later, engineering experts retained by the parties, in consequence of attending a joint conference, produced a document (which became exhibit PN10) recording their agreed answers to questions that the parties had put to them. His Honour said of these answers at [20]: "[W]hen four experts retained by three opposing parties confer jointly for several hours and reach unanimous agreement on answers to questions, I should accept those answers, unless there is some good reason not to." 39 The parties agreed (by Agreed Fact 21) that, between 56 metres and 76 metres from the rail nearest to the oncoming truck, a line of trees or bushes (the "roadside stand") was located parallel to the northern side of the Highway (that is, to the left of the oncoming truck) and about five metres from that side of the Highway. They also agreed (also by Agreed Fact 21) that, between 70 metres and 85 metres from the rail nearest the oncoming truck, a line of vegetation (the "fenceline stand") was located on or about 20 metres from the northern side of the Highway. 40 Answer to question 10(a) in exhibit PN10 stated that, "at a road distance from 100 metres to 60 metres from the crossing, the truck driver's view is obstructed by the roadside and fenceline trees". As his Honour observed at [133], however, it was only at a road distance of 100 - 60 metres from the crossing that the roadside and fenceline trees obstructed a driver's view, and those trees did not obstruct visibility until the vehicle was about 100 metres from the crossing. 41 Agreed Fact 23 was that, apart from a few isolated trees, from about 320 metres up until about 110 metres west of the crossing the view from the Highway towards the railway line on the left of the oncoming truck (to the north) was largely unobstructed. 42 Answer to question 10(a) in exhibit PN10 stated that there was a clear view towards the railway line on the left from a distance of about 300 metres until a distance of about 100 metres from the crossing, except for two trees, one of which was dead (at [128]). Hence, Mr Kuschert had a clear view of the railway line for about 200 metres until his view was affected by the roadside and fenceline tres. 43 His Honour said at [129] that "the slight discrepancies in the distances in agreed fact 23 and in the answer to question 10(a) are not material." 44 Mr Kuschert was very familiar with the area as he had often driven along the Highway and well knew that he was approaching a level crossing. 45 To summarise, the first warning sign of the crossing was 325 metres west of the crossing. From about 300 metres west of the crossing to about 100 metres west of the crossing, Mr Kuschert, if he had looked, would have had a clear view in the direction of the train. His view would then have been obstructed, to a degree, by the roadside and fenceline trees. It is, however, significant that, very soon after the first warning sign, Mr Kuschert had a largely unobstructed view of the railway line to his left for a distance of about 200 metres until the roadside fenceline trees commenced to obstruct his view when the truck was about 60 to 100 metres west of the railway line.

[24]

The appeals 53 In two separate appeals, Woods and Mr Kuschert appeal against his Honour's judgments. I shall refer to Woods and Mr Kuschert, collectively, as "the appellants". Mr Laughton SC, together with Mr Hodgson, appeared for the appellants in both appeals. Mr Watson SC, together with Mr Sheller, appeared for Pacific National and Mr Seton SC, together with Mr Barrett, appeared for the RTA. 54 When argument on appeal commenced the appellants obtained leave to amend their notice of appeal. 55 As against the RTA, the appellants alleged: (a) "Having found that the omission to remove the roadside stand of trees would clearly have been a breach of duty, his Honour erred in not finding that duty had been breached by the RTA and that the roadside stand of trees caused Mr Kruschert to be unable to see the train; (b) His Honour ought to have found that the roadside stand of trees interfered with the ability of Mr Kruschert to see the train and to react earlier to the presence of the train … and was a cause of the collision; (c) His Honour erred in not finding that in the absence of removal of the roadside stand of trees the RTA was required to reduce the speed limit of the Highway on the approaches to the crossing to 80 kph or, alternatively 60 kph; (d) His Honour erred in finding that the collision would not have been avoided if the speed limit of the Highway on the approaches to the crossing had been reduced to 80 kph; and (e) His Honour erred in finding that, if the speed limit of the Highway on the approaches to the crossing had been 60 kph, Mr Kuschert would not have reduced the speed of the truck to 60 kph." 56 As against Pacific National, the appellants alleged: (a) The driver of the train should have applied the brakes between the time he was informed by Mr Jones of the presence of the truck and the moment that the driver formed the view that there was a danger of a collision; his Honour erred in finding to the contrary; (b) His Honour erred in finding that, for a distance of about 200 metres, as he was approaching the railway line, Mr Kuschert, if he had looked, would have had a clear view in the direction of the train; (c) His Honour ought to have found that, for a distance of about 200 metres, Mr Kuschert, whilst he would have had a clear view in the direction of the train, would have had difficulty seeing the train because it blended into the foreground and background; (d) His Honour erred in finding that Mr Kuschert failed to keep a proper lookout; and (e) His Honour erred in making a Bullock order in favour of Pacific National.

[26]

The duty of care owed by Pacific National to the appellants 60 James J noted (at [153]): "Counsel for Pacific National submitted that it was not part of the content of any duty of care owed by train drivers to road users to commence slowing down the train, whenever they saw a road vehicle approaching a crossing without reducing speed, if the vehicle was still much further away from the crossing than its stopping distance, if its brakes were applied." 61 His Honour concluded in this regard (at [168]): "In my opinion, it was either not within the content of any duty of the train drivers or it was not negligent on the part of the train drivers, not to take some action to slow down or stop the train, when the train was 350 metres from the crossing." 62 The appellants' notice of appeal, as initially filed, contended that his Honour had erred in concluding that it was not within the content of any duty of the train driver to take action to slow down or stop the train. Subsequently, however, the appellants, by their amended notice of appeal, abandoned this challenge. Thus no issue arises in this respect on the appeal. 63 James J accepted that the duties of a driver of a train were those expressed in Petropoulos v Commissioner for Railways (No. 1) (1962) 80 WN (NSW) 659; [1963] N.S.W.R 286 at 662-663, 292 by Brereton J (with whose reasons Collins and Jacobs JJ agreed), where his Honour said: "Several basic factors need to be borne prominently in mind. In the first place the Commissioner is driving a heavy vehicle which cannot be pulled up in a short distance and the efficacy of any warning needs to be gauged accordingly. In the second place, although there is no written law on the subject, it is undoubtedly and universally regarded as being a first requisite of prudence on the part of the user of a public highway that he should give way to a train approaching from either direction at a level crossing, and this is a matter which the driver of a train may properly have in mind. This is I think, explicit in Dixon CJ's remarks in Hale v Victorian Railways Commissions (1953) 87 CLR 529 at 537 where he said: "I do not think that the jury would suppose that his Honour meant in any way to suggest that a train crew might not rely upon road traffic heeding the warnings of whistle and notice boards and might not accordingly proceed at speed over level crossings unless there was reason to think that a vehicle was actually endangered. His Honour spoke to jurymen who shared the common experience and understanding of the community as to the use of level crossings and the practice and indeed the necessity of trains travelling over them in reliance upon the road traffic paying heed to the warnings and allowing them to pass". He appears to recognise, however, that a situation may arise in which the driver of a train, having given adequate warning of its approach to a crossing, becomes aware of impending danger and that it then becomes his duty to endeavour to stop. To put it shortly, as I understand the matter, the driver of a train is entitled to proceed at speed, provided he gives adequate warning of the train's approach, on the assumption that all users of the highway will keep clear of the crossing. If, however, it becomes clear that a vehicle is not giving way, then he must slow down or stop. Bearing in mind of course that the distance within which a rail-motor can stop as stated in the defendant's admissions in the present case is very much greater than that in which a motor vehicle travelling at ordinary speeds can do so; it may well be that it can rarely become apparent to the driver of a rail-motor that a vehicle is not stopping at a point of time early enough for him to stop his train before reaching the crossing. Even though this be so, I think that in such circumstances the duty remains on him at least to minimise the impact if it cannot be avoided by the reduction of speed as soon as the emergency becomes apparent." 64 Implicit in these remarks is the proposition that, while a driver of a train is entitled to have regard to the fact that a prudent user of a public highway would give way to a train approaching a level crossing, the train driver must bear in mind that a user may be inadvertent or even negligent. Therefore a train driver should be ready to take appropriate avoiding action should it become apparent that a person approaching the crossing, whether on foot or in a vehicle, is not going to so give way. I shall consider the duty of care owed by Pacific National as being in accordance with this approach.

[27]

The failure by Mr Kuschert to keep a proper lookout 65 It is convenient to deal, firstly, with this ground of appeal. I do so because this ground requires a discussion of the way in which Mr Kuschert drove the truck and this, in turn, bears on the conduct of Mr Gangemi in applying the brakes at the stage that he did (which is the subject of another ground of appeal). 66 By reason of the injury he sustained in the collision, Mr Kuschert had no actual recollection of the events leading up to it. However, he gave evidence as to his usual practice in approaching the crossing. 67 Prior to the collision, Mr Kuschert had often driven along the Highway and crossed the level crossing concerned. For that reason, he was able to testify as to his usual practice in so driving. He said that his usual practice was to drive along the Highway at a speed of about 100 kph. He would commence slowing down about 300 metres from the crossing (that is, at about the first sign on the Highway that warned drivers that they were approaching a level crossing - which sign was in fact 325 metres west of the crossing). Mr Kuschert would slow down at this point by taking his foot off the accelerator. He would reduce the speed of the truck by this method to about 80 or 90 kph and would approach the crossing at about that speed. As he neared the crossing, Mr Kuschert would look to his left and right for any train that might be approaching. 68 Mr Kuschert said that he would pass across this particular crossing at about 80 kph "because the crossing was rough and was more jarring at higher speeds". This appears to have been an important motivation for his usual practice to reduce his speed from 100 kph. He agreed that it was possible that he sometimes crossed the crossing at a speed of 90 kph. 69 Largely from having regard to the damage sustained by the truck, the experts agreed that the speed of the truck at the point of impact was probably about 50 kph. 70 A skid mark attributed to the truck was found on the Highway. The skid mark was 43.5 metres long, and terminated three to four metres from the nearside running rail. The experts concluded (after reasoning backwards from the skid mark, and assuming an agreed rate of deceleration) that the speed of the truck at the commencement of the skid mark was probably about 75 to 77 kph. The experts further agreed (in answer 1(c) in exhibit PN10) that Mr Kuschert first determined a need to commence braking when he was about 80 to 100 metres from the impact. 71 Thus, the unanimous opinion of the experts (arrived at independently of Mr Kuschert's evidence as to his usual practice) supported a conclusion that Mr Kuschert did in fact slow his vehicle to about 80 kph or a little less as he was approaching the crossing. 72 Importantly, as I have noted, when about 300 metres west of the crossing, Mr Kuschert had a largely unobstructed view of the railway line to his left for a distance of 200 metres until the roadside fenceline trees commenced to obstruct his view when the truck was about 60 to 100 metres west of the railway line. When about 300 metres west of the crossing, Mr Kuschert began to slow down from the speed of about 100 kph that he was travelling. The truck was moving at about 75 to 77 kph when, about 80 to 100 metres from the impact, he commenced braking. 73 James J observed at [130]: "The fact that Mr Kuschert did not see the train while he was travelling over a distance of about 200 metres during which he would have had a clear view of the railway line, if he had looked in that direction, strongly suggests that Mr Kuschert, although knowing that he was approaching the level crossing, did not keep a proper lookout for trains; that either he did not look at all or that any look was perfunctory." 74 At the outset of his argument on appeal, Mr Laughton challenged his Honour's reasoning in this regard by submitting that a tracing on an aerial photograph showed that the experts (who included an expert retained by the appellants) had erred in determining the position of the fenceline trees. He said that the tracing showed that the fenceline trees were 20 metres further to the west than the experts had agreed (and as his Honour, relying on the experts) had found. 75 The problem with Mr Laughton's submission, however, was that it depended on tracing the aerial photograph, then overlaying the tracing on various diagrams, and, lastly, drawing inferences from such an exercise. The facts on which Mr Laughton wished to rely contradicted the agreed evidence of the experts, and Mr Watson and Mr Seton objected to any reliance on the new material. 76 The argument that Mr Laughton wished to advance depended on triable issues that required factual findings. Apparently, it was only after James J had delivered judgment that the appellants first came to the view that the experts had erred. This was so despite the fact that the erroneous evidence had been put forward by all the experts and tendered by consent. 77 Mr Laughton rightly accepted that, in order to rely on such an argument, he had to obtain the leave of the Court to lead new evidence. After consideration he informed the Court that he did not propose to make an application for leave to lead new evidence, and this particular argument, in effect, was abandoned. 78 Mr Laughton then turned to what he described as his "principal complaint about his Honour's finding about the failure to keep a proper lookout". That complaint was that his Honour had "overlooked" a report by W Milfull, the Fleet Quality Manager of National Pacific (the "Milfull Report"). This report is dated 19 December 2000 (some five weeks after the accident). The report discusses the visibility of trains at various distances west of the crossing and states: "1000 m, the remainder [of] the train was silhouetted against the treeline and is barely visible. 800 m, the train is visible briefly through the trees, however trees border the road for the next 300 metres. 500 m, the train is again visible through the trees as road curves left and rail crossing signs are clearly visible. 250 m, 'look for trains' sign and the train blends into a background of trees and tall grass." 79 Mr Laughton stressed that, according to the Milfull Report, as from the 250 metre mark the train "blend[ed] into a background of trees and tall grass." Mr Laughton, rightly, did not submit that the train was invisible. He said, "we couldn't possibly do that, it was a train". 80 A video was tendered at the trial that showed the visibility of a similar train from vantage points on the Highway akin to that enjoyed by Mr Kuschert. In the course of argument in this court, the video was played. The impression I gained from the video was that the train should have been readily visible to Mr Kuschert, at least prior to the obstructing effects of the fenceline and roadside trees. 81 His Honour at [134] had regard to the fact that the collision occurred shortly before 4:00 pm on a day in November during daylight saving. Although the day was overcast it was not raining and there were patches of blue sky. The terrain between the track and the train as they approached the crossing was flat. His Honour was satisfied that Mr Kuschert did not expect to see a train at the crossing. Mr Kuschert had never seen a train at the crossing, even though in some weeks he had crossed over the crossing as many as six times. His Honour noted that Mr Kuschert had been told, and believed, that trains used the railway line only at night (at [135]). 82 Although his Honour did not mention the Milfull Report, he expressly had regard to "the reduced visibility of the train due to its colour relative to its environment" (at [132]). His Honour specifically referred to Professor Dain's report in which the witness recounted the reasons why Mr Kuschert would have had difficulty observing the train on his approach to the crossing. His Honour concluded that there were matters that made it difficult for Mr Kuschert to see the train (at [134]). Nevertheless, his Honour concluded that Mr Kuschert had failed to keep a proper lookout. 83 When the truck was 500 to 600 metres from the crossing, the train was about 350 metres from the crossing; when the truck was 320 metres from the crossing, the train was 225 metres away (at [164]-[165]). Between 300 metres and 100 metres from the crossing, Mr Kuschert's view was not obstructed. Mr Laughton accepted that at the speed Mr Kuschert was travelling, it would have taken him about eight seconds to travel from the 300 metre mark to the 100 metre mark. Thus, Mr Kuschert had at least eight seconds of clear visibility from the 300 metre mark to the 100 metre mark. I repeat that Mr Kuschert knew the area well, had often driven along the Highway and was well aware that he was approaching a level crossing. A powerful inference arises that Mr Kuschert's failure to take any avoiding action from the 300 metre mark to the 100 metre mark was due to his failure to keep a proper lookout. 84 It has not been demonstrated that his Honour erred. On the contrary, in my view, the circumstances compelled the finding that his Honour made. I would reject the argument advanced on this ground on behalf of the appellants.

[29]

In my opinion, his Honour's reasoning is correct. 86 Mr Laughton's principal argument on this ground was put as follows: "We say that at the very least on Mr Gangemi's evidence he formed the view that the truck was not going to give way to the crossing when the train was about 350 metres from the crossing, and that the evidence was, and the finding was, that the brakes went on, allowing for perception reaction time at about 239 metres from impact, which was about 229 metres from the northern side of the crossing." 87 This argument had been advanced at trial. James J explained at [162]: "It was submitted by counsel for the trucking interests that Mr Gangemi had been negligent in not taking some action to avoid a possible collision, when the train was 350 metres from the crossing. The distance of 350 metres was derived from Mr Gangemi's evidence that he "thought" that Mr Jones had started sounding the whistle the second time when the train was 'approximately' 350 metres from the crossing." 88 His Honour prefaced his discussion of this argument by pointing out that the evidence given by Mr Gangemi was "a very rough estimate" and, further, "was likely to have been affected by Mr Gangemi's mistaken belief that the whistle board was at 400 metres, and not 370 metres from the crossing" (at [163]). His Honour pointed out that when the train was 350 metres from the crossing, the truck would have been at a distance of 500 - 600 metres from the crossing, and this was "a much greater distance than the stopping distance of the truck if its brakes were applied." 89 His Honour had earlier pointed out at [150] that, according to the engineering experts, for the train (travelling at 55 kph as it was, according to his Honour's finding) to stop before the crossing, it would have had to commence braking about 254 to 333 metres from the crossing. This does not include allowance for the train driver's perception-reaction time. If perception-reaction time is taken into account, the distance would be increased to 363 metres. 90 On the other hand, if the truck had been travelling at 75 kph at the time it commenced braking, it could have stopped under hard braking in 74 metres, not including any reaction time and, if the truck had been travelling at 100 kph at the time it commenced braking, it could have stopped under hard braking in 131 metres, not including any reaction time, and in about 200 metres including allowance for a reaction time (see [151]). 91 James J said that he agreed with the following "robust" remarks of a witness, Dr Rechnitzer: "WITNESS RECHNITZER: .… The truck, even on a moderate condition, needs less than 200 metres to stop, so the idea that you would form a perception at 800 metres what the truck is going to do near the Crossing to me is absolute nonsense, as an engineer and, as a driver, it just doesn't hold water. …..

[30]

WITNESS RECHNITZER: If I was the driver and someone said to me, "See that truck nearly a kilometre away, he's not going to stop at the Crossing", I would say a few swear words but I would also say, "Are you nuts? How would you know that?" because in the intervening 600 metres the truck can do all sorts of things." 92 His Honour observed that, on the expert evidence, when the train's brakes (including the driver's reaction time) were actually applied, the train was a distance of 239 metres from impact and, at that stage, the truck was at a distance of 300 to 320 metres from the crossing. That meant that, had Mr Kuschert braked at the moment that the train braked, the truck could easily have come to a stop well before the crossing (at [165]). As Mr Laughton said, "it was only going to take 130 to 200 metres [for the truck to stop], depending on the reaction time". 93 Mr Laughton submitted that Mr Gangemi's act, in applying the brakes of the train when the truck was so far from the crossing, refuted the logic of Dr Rechnitzer. I do not agree. The act of Mr Gangemi in applying the brakes of the train when he did, demonstrates merely that, at that stage, Mr Gangemi was being more cautious than Dr Rechnitzer thought would reasonably be warranted. 94 Mr Laughton submitted that the train and the truck were on a collision course and Mr Gangemi should have realised earlier than he did that the truck was not going to stop. Mr Laughton relied particularly on the fact that Mr Jones said, at a point before the truck had reached the whistle board, "it looks like this bloke's not going to stop". At some time after Mr Jones made this remark, he blew the train's whistle for a short period. Very soon after ceasing, Mr Jones started blowing the whistle again and did not release the whistle until the collision occurred. 95 Mr Laughton submitted that, on the strength of Mr Jones's remark, Mr Gangemi should have realised approximately 500 metres from the level crossing that the truck was not going to stop. The 500 metres distance on which Mr Laughton relied was based on estimates that Mr Gangemi (and Mr Jones) gave. 96 There are two answers to this submission. 97 Firstly, when the train was 500 metres from the crossing, the truck was approximately 820 metres from the crossing. The notion that Mr Gangemi should have applied his brakes at that point, having regard to the truck's stopping distance, has no semblance with reality. At the point that the train was 500 metres from the crossing, the truck was so far away that it could not then reasonably have occurred to Mr Gangemi that it would not stop. At that stage, on a reasonable assessment, the risk of the truck causing harm was virtually non-existent (cf s 5B(1)(b) of the Civil Liability Act 2002). 98 Secondly, his Honour found that Mr Jones' remark to the effect that the truck was not going to stop was a remark of a kind that Mr Jones made not infrequently when seeing a vehicle approaching a level crossing (at [83]). His Honour found that, when he made the remark in question, Mr Jones "felt no real concern that there was any danger of a collision" (at [83]). His Honour said that when the train was about 500 metres from the crossing, the truck would have been more than 800 metres from the crossing and would have had ample opportunity to slow down or stop before reaching the crossing. His Honour concluded that Mr Gangemi did not understand Mr Jones's remark as being an expression of an opinion that Mr Jones had formed that there was a danger of collision. Nothing has been shown that would entitle this Court, on appeal, to come to a different conclusion. 99 Mr Laughton then submitted that, at some point near the whistle board (which Mr Laughton said would be at about the 350 metre mark), Mr Gangemi formed the view that there was a danger of collision at the crossing. Mr Laughton submitted that Mr Gangemi should have realised that there was a possibility of a collision should the truck driver not slow down. He submitted that Mr Gangemi was negligent, at that stage, in not commencing to apply brakes, other than the emergency brakes, to slow the train down. 100 It took six to eight seconds from the 350 metre mark before Mr Gangemi applied the emergency brakes. Mr Laughton submitted that the failure of Mr Gangemi to apply the other train brakes from the 350 metre mark constituted negligence on his part. 101 There are a number of difficulties with the appellant's argument on this issue. 102 Firstly, it is heavily dependent on the accuracy of the estimates of distances given by Mr Gangemi and Mr Jones. In particular, the six to eight seconds period that Mr Laughton submitted Mr Gangemi had after first deciding that there was a danger of a collision is entirely dependent on the accuracy of those estimates. James J, however, was not prepared to accept their estimates as reliable (at [81], [82] and [86]). Their evidence provides ample justification for his Honour's doubts about the accuracy of their distance estimates. In the light of his Honour's findings, the foundation for this argument falls away. 103 Secondly, the proposition that Mr Gangemi thought that there was a danger of a collision when the truck was 350 metres from the railway crossing again lacks reality. After all, the first approach signs on the highway that warned of the level crossing were at a distance of 325 metres from the crossing. Normally, one would only expect a truck to commence slowing its approach to the crossing after it had passed that sign. This fact undermines the argument that, when the truck was 350 metres from the crossing, Mr Gangemi realised or should have realised, that there was a danger of a collision. 104 Thirdly, the facts do not establish that, had the brakes other than the emergency brakes been applied when the train was about 350 metres from the collision, the accident would not have occurred. 105 In the circumstances, I would reject the appeal based on this ground. 106 I have so far dealt with all the arguments the appellants have directed against Pacific National, save for the challenge to the Bullock order that his Honour made. My reasons on the latter issue are set out below.

[31]

The RTA's responsibility to remove the roadside trees 107 I repeat that the appellants' amended notice of appeal alleges against the RTA that: "Having found that the omission to remove the roadside stand of trees would clearly have been a breach of duty, his Honour erred in not finding that duty had been breached by the RTA." 108 James J, however, did not find that the RTA owed the appellants a duty of care, although he found at [215] that "the omission to remove the roadside stand of trees would clearly have been a breach of duty" (as the amended notice of appeal states). This requires some explanation. 109 At trial, the RTA conceded that it was the road authority that had the powers of a road authority in respect of the Highway but limited that concession to "responsibility for the … Highway at this crossing extending to the limit of the table drain and up to three metres either side of the railway line" (at [196]). His Honour found at [201] that the roadside trees were within the limit of the table drain. The appellants did not contend that the fenceline trees were within that limit. 110 At trial, the RTA conceded that the roadside trees were "in a sight triangle, as defined in the RTA's draft traffic engineering manual 1994 which was conceded to have been in operation in 2000" (at [198]). His Honour explained at [192] that: "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 [user's] vision of the train." 111 At trial, the RTA disputed that it had knowledge before 10 November 2000 of the presence of the roadside trees within the relevant sight triangle. It contended further that, even if the trees were within the sight triangle, it had no responsibility for them. The RTA contended that the Victorian railway authorities had accepted responsibility for the removal of the trees. 112 James J discussed the relationship between the RTA, the Department of Infrastructure of the State of Victoria and the Public Transport Corporation from [202] to [207]. In [207] his Honour referred to a letter dated 29 May 1997 from an officer of the Public Transport Corporation ("the PTC") to Mr Frank Flynn, District Engineer (Northern) Bendigo. The letter stated: "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." 113 On the same date, the PTC, in writing, advised the RTA that it, the RTA, was the relevant road authority for the Highway and was responsible for the provision of advance warning signs on the Highway as it approached the crossing. Nevertheless, the letter of 29 May 1997 to the RTA stated that Mr Frank Flynn "has also been requested to update the signage at the crossing which is the responsibility of the PTC." Thus, the letter of 29 May 1997 was ambiguous as to whether the RTA or the PTC was responsible for the relevant part of the Highway, for all or part of the duties ordinarily undertaken by a road authority. 114 Having reviewed the documentation in evidence, James J said at [212] that he considered that, more probably than not, the RTA had received a spreadsheet relating to an audit of the crossing conducted in about June 1996 by the Department of Infrastructure of the State of Victoria in which it noted that, as regards the sight triangle relevant in this case, "the sight was unsatisfactory, the obstruction was vegetation and the vegetation was able to be easily removed" (at [204]). 115 His Honour confirmed this finding at [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." 116 Nevertheless, James J went on to say, in the same paragraph: "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." 117 This finding appears to be based on the correspondence between the RTA, the Department of Infrastructure of the State of Victoria, the PTC and Mr Frank Flynn. 118 The amended notice of appeal does not challenge the finding that the appellants had not established that the RTA had legal responsibility to remove the trees. 119 In paragraph 62 of the appellants' written submissions, the appellants asserted: "The roadside stand of trees presented a hazard and were in breach of the RTA's own guidelines. It was within the road corridor, under the control of the RTA, so that RTA could access and remove the trees." 120 These submissions appear to assume that the RTA owed the appellants a duty of care to remove the roadside trees, but his Honour had found to the contrary. Nothing was said in the appellants' written submissions concerning that finding.

[32]

121 At the commencement of his oral argument on appeal, Mr Laughton said that the appellants challenged the finding that the RTA was not liable for the presence of the roadside trees. He said that the appellants contended that the RTA was required to remove the roadside trees; alternatively, the RTA should have reduced the speed limit on the Highway to either 80 or 60 kph. Nevertheless, Mr Laughton did not thereafter submit that the RTA was negligent in failing to remove the trees. No part of Mr Laughton's oral argument was addressed to the finding that the RTA was not liable for the presence of the roadside trees. In fact, Mr Laughton candidly accepted that he could not submit that the removal of the trees would have had any causative effect. He submitted, rather, that the roadside trees "placed a sight obstruction within the sight triangle" and, for that reason, the RTA should have reduced the Highway speed limit on the approaches to the crossing. 122 In the circumstances: (a) The amended notices of appeal do not challenge his Honour's finding that it was not established that the RTA had any legal responsibility to remove the trees; and (b) The argument on appeal was not directed to the issue whether the RTA was legally responsible for the removal of the trees. 123 Accordingly, I shall approach the appeal against the RTA on the basis that the appellants do not challenge his Honour's finding that the RTA had no responsibility to remove the trees. 124 I would add that, as the appellants concede that it was not established that the removal of the trees would have had any causative effect, there would be no utility in such a ground of appeal. 125 I would further note that the appellants did not raise any issue concerning the removal of the trees against Pacific National. Although, at trial, the appellants alleged that Pacific National was negligent in not removing the roadside trees, his Honour found against them and the appellants do not challenge his Honour's finding as regards Pacific National in this respect.

[33]

Did the roadside stand of trees interfere with the ability of Mr Kuschert to see the train and to react earlier? 126 The appellants contended that the roadside stand of trees interfered with the ability of Mr Kuschert to see the train. They argued that, but for the roadside stand, Mr Kuschert would have seen the train earlier and reacted earlier. 127 This argument is answered by the following findings by the trial judge at [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." 128 His Honour was entitled to rely on the answers given by the engineering experts (which were tendered by consent) and his reasoning, based on those findings, cannot be faulted. There is a real likelihood that Mr Kuschert commenced braking before the trees obstructed his view. Were that not to have been the case, Mr Kuschert would have realised that he needed to brake when the truck was at a maximum distance of 20 metres within the line of the trees. Prior to reaching the trees, Mr Kuschert had had 200 metres of unobstructed view of the train. 129 The distance of 80-100 metres from the impact (being the point at which Mr Kuschert decided that he needed to apply the brakes of the truck) is at best an informed estimate. The evidence does not enable a firm finding to be made that the truck had passed the tree line when Mr Kuschert began to brake. There is therefore no proper foundation for an argument based on the proposition that, at any relevant time, Mr Kuschert's view of the train was obscured to any extent by the roadside trees. 130 I would further note that his Honour accepted the evidence of Mr Alan Adkins, a police officer, who attended the scene of the collision shortly after it occurred. Mr Adkins drove up and down the highway several times in a four wheel drive vehicle, to determine whether he would be able to see a train through the roadside stand of trees. He said: "you could see the train through it. If there was a train coming, you would be able to see it". In cross-examination, Mr Adkins accepted that the truck driver would be higher off the ground than he, Mr Adkins, was in his vehicle, and he agreed that the canopy of trees appeared to be thicker the higher it was from the ground. Nevertheless, an inference may be drawn from Mr Adkins' evidence that, while the trees did create some obstruction of the view from the highway to the oncoming train, that obstruction did not obscure the train entirely. 131 Even if one ignores the evidence of Mr Adkins and assumes that Mr Kuschert first became aware of the train when the truck was 20 metres within the tree line, it does not follow that the tree line prevented him from becoming aware of the train. He had had at least 200 metres before encountering the tree line within which to see the train. 132 In my view, his Honour's finding that any obstruction created by the trees did not prevent Mr Kuschert, to any relevant extent, from becoming aware of the train, is unassailable on appeal. 133 I would add that the failure of the appellants to challenge the finding that the RTA had no legal responsibility to remove the trees is, in any event, fatal to any argument based on the proposition that the RTA should have removed the trees.

[35]

139 James J did not make a specific finding as to whether the speed limit should have been reduced to 80 kph. I shall assume, in considering whether the RTA should have reduced the speed limit to 80 kph, the following: (a) The RTA owed a duty of care to all users of the Highway, whether or not they took ordinary care for their own safety; (b) The scope of the duty owed by the RTA took into account the exercise of reasonable care by road users themselves; and (c) The RTA's duty of care, having the scope identified, required the RTA to reduce the speed limit to 80 kph. 140 James J held that "a sign limiting speed to 80 kph would not have prevented the collision occurring" (at [238]). His Honour explained: "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." 141 Mr Laughton submitted, by reference to the RTA's guidelines, that the 80 kph speed limit sign should have been posted 275 metres from the crossing. On the assumption that that submission is to be accepted (albeit that it was not put at trial), on his Honour's findings Mr Kuschert was likely to be travelling in the vicinity of 80 kph when the truck was about 275 metres from the crossing. On that basis, imposing an 80 kph speed limit on the Highway, 275 metres from the crossing (as the appellants contended should have occurred), would not have prevented the collision, as his Honour found (at [238]). That is because Mr Kuschert (having regard to his usual practice and the experts' findings to which I have referred above) was, in any event, travelling at about 80 kph at about 275 metres from the crossing. As his Honour rightly observed, the appellants' submission in relation to lower speed limits could only succeed if the speed limit was lower than 80 kph (and were Mr Kuschert to have obeyed that speed limit). It is for that reason that the appellants submit, in the alternative, that a speed limit sign of 60 kph should have been erected. 142 There was no evidential support at the trial for the need to impose a speed limit of 60 kph (and install a sign reflecting that limit). As James J pointed out (at [239]) the engineering experts merely stated that a speed of "80 kph or lower" would have been "preferable". James J observed that it was only in oral submissions that counsel for the appellants submitted that a speed limit sign limiting speed to 60 kph should have been erected. 143 In the light of the way the trial was conducted, I consider that James J was entirely justified in finding, as he did, that RTA did not breach its duty of care by failing to erect a speed limit sign of 60 kph (at [240]). 144 James J went on to say at [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." 145 The effect of s 5D(3)(b) of the Civil Liability Act was apparently not raised at trial. In any event, I understand his Honour's finding that Mr Kuschert would not have obeyed a speed limit sign of 60 kph to be based on all the relevant circumstances established by the admissible evidence. This is a credibility finding by his Honour that is not attended by any error and this Court is bound to accept it: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434. 146 In the circumstances, I would not uphold the grounds of appeal applicable to the RTA.

[36]

The Bullock order 147 James J ordered the appellants to reimburse Pacific National for the costs he ordered Pacific National to pay the RTA. The order so made is known as a Bullock order (after Bullock v The London General Omnibus Co & Ors [1907] 1 KB 269). In a Bullock order, the unsuccessful defendant is ordered to pay the plaintiff the costs the plaintiff is ordered to pay the successful defendant. In the present case Pacific National is to be regarded as the plaintiff, the appellants the unsuccessful defendant and RTA the successful defendant. 148 The principles governing of the making of a Bullock order were set out by Gibbs CJ in Gould v Vaggelas [1985] HCA 85; 157 CLR 215 at 229 - 30. The Chief Justice mentioned three conditions that would have to be met before a court could make a Bullock order. Firstly, the plaintiff must have acted reasonably in all the circumstances in bringing the action against two or more defendants. Secondly, the plaintiff must have reasonably and properly incurred the costs as between it and the unsuccessful defendant. Thirdly, the conduct of the unsuccessful defendant must have been such as to make it fair to impose some liability on it for the costs of the successful defendant. See the discussion of this issue by Handley AJA (with whom Beazley and Macfarlan JJA agreed) in Dominello v Dominello (No. 2) [2009] NSWCA 257. 149 Pacific National commenced proceedings 20061 of 2007 by filing a statement of claim against the appellants (the RTA was not then made a party to that action). Thereafter, Mr Kuschert commenced proceedings 20065 of 2007 against Pacific National and the RTA. Later, in proceedings 20061 of 2007, the appellants, as defendants, denied liability and Woods filed a cross-claim against both Pacific National and the RTA. Subsequently, Pacific National amended its statement of claim in 20061 of 2007 by adding the RTA as a further defendant. 150 Pacific National relied on the fact that it only joined the RTA as an additional defendant in 20061 of 2007 after Woods had brought a cross-claim against the RTA in that action and had furnished particulars of the respects in which it alleged the RTA had been negligent. 151 James J held that Pacific National had acted reasonably in joining the RTA and that the appellants created circumstances of uncertainty as to who was the proper defendant. His Honour said that he accepted that Pacific National joined the RTA to protect itself against the contingency that its claim against the appellants might fail outright. Accordingly James J made the Bullock order, ordering the appellants to indemnify Pacific National in respect of its costs liability to the RTA in the action involving Pacific National's claim for property damage (proceedings 20061 of 2007). 152 As was Dominello, the present was a case where it was quite uncertain, until judgment, whether one or both of the appellants, on the one hand, and the RTA, on the other, would be held liable. Pacific National, acting with ordinary prudence, was bound to sue both defendants. 153 There is, however, no reason for thinking that the conduct of the appellants, after Pacific National had commenced proceedings against all the defendants, caused Pacific National to maintain their action against the RTA, or that Pacific National would otherwise have discontinued against the RTA. As was the case in Dominello, nothing short of capitulation by either the appellants or the RTA or both would have prevented the action going to trial against both. The uncertainty that prompted Pacific National to sue the appellants and the RTA was not created by the conduct of the appellants. The uncertainty derived from the nature of all the circumstances in the case. The appellants had not refused to disclose objective facts known to them, but not known to the plaintiff, or any other material facts.

[37]

154 In Dominello, Handley AJA said: "[19] The statement of principle of Gibbs CJ in Gould v Vagellas … establishes that an order of the nature sought is not justified merely because the plaintiff acted reasonably in her own interests in suing both defendants. There must be something in the conduct of the unsuccessful defendant which makes it fair to impose this liability on it. This must be something more than a denial of liability which would be present in every case brought against two or more defendants. [20] That something more will typically involve a positive assertion, express or implied, that the relevant defendant is not liable because the other is. [21] Many of the cases involved alternative claims where the plaintiff could succeed against only one of the defendants but had to sue both … ." 155 In RTA and Others v Palmer (No.2) [2005] NSWCA 140, the plaintiff, who was injured in a single vehicle accident, sued the RTA, the Council and the Council's contractor. The plaintiff failed against the RTA but succeeded against the other defendants. Giles JA, giving the leading judgment of this Court, refused to make a Bullock order in favour of the plaintiff. He said at [35]: "It may have been reasonable for the plaintiff in her own interests to join the RTA as a defendant, but I do not think that there was conduct which made it just that the Council, and still less Pioneer, pay the costs payable by the plaintiff to the RTA. Neither the Council nor Pioneer created any circumstances of uncertainty as to who was the proper defendant. They were not obliged to concede liability or make admissions in order to remove the RTA from contention, there being a respectable argument that the RTA was liable and there is no reason to think that short of effective capitulation by the Council and Pioneer the plaintiff would not have maintained her claim against the RTA. In my opinion conduct has not been shown so as to make it fair to impose on the Council and Pioneer liability for the costs of the RTA." 156 In my opinion, that reasoning applies in the present case, as it did in Dominello (see at [28] in that case). 157 In my view, the appellants' appeal against the Bullock order should succeed.

At a glance

Court

Decision date

Before

Source

Judgment (40 paragraphs)

Parties

Cases Cited (20)