Transport Commission v Neale Edwards Pty Ltd - [1954] HCA 21 - HCA 1954 case summary — Zoe

CTHHCA

Transport Commission v Neale Edwards Pty Ltd

[1954] HCA 21

High Court of Australia|1954-07-01|Before: Kitto JJ, Webb J

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Source facts

Court

High Court of Australia

Decision date

1954-07-01

Before

Kitto JJ, Webb J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

The application of these tests in the present case is that in order to prove that the loss arose from wilful misconduct on the part of the driver the respondent had to satisfy the court that the root cause of the accident lay in a positive choice made by the driver to subject his train to the risk of being forced off the rails by excessive speed, he realizing at the time that there was a real danger of such a happening and recklessly choosing to incur it. It is possible to imagine two ways in which this might have come about. One is that as the train was descending the slope towards Brummagen Creek, and while there was still time to regulate the speed of the train as to enable it to pass safely round the curve, the driver, with the fact present to his mind that there was a real danger of the train leaving the rails if the speed went unchecked, nevertheless determined not to keep the speed in check, or not to keep it in check to the extent which he believed to be sufficient, and that he carried this decision into effect. The other possibility is that at some point during the descent of the slope or even before it commenced, but while there was time to reduce the speed of the train sufficiently to enable it to take the curve safely, the driver, while appreciating that there would come a stage at which the speed would need to be checked if the train were not to be in peril of leaving the rails, determined not to attend to the progress of the train, and kept his attention diverted to some other matter, recklessly incurring the risk which he realised was involved in so doing, until the accident happened or became inevitable.

[2]

[3]

At intervals along the line there are pegs indicating maximum permitted speeds. At the date of the accident these speeds were: 35 m.p.h. on the crest of the hill, 30 m.p.h. about 400 yards down the incline, 35 m.p.h. another 700 yards on, 30 m.p.h. on the gentle curve to the left of varying radii just before the Wattles, and 20 m.p.h. about fifty yards before the point of the capsize. The accident occurred just before 11 o'clock on a dark night, but the train had efficient headlights, and while there is no evidence that the figures on the speed pegs could be read by the driver it is to be observed that he knew the route quite well, and may be taken to have known what the pegs indicated. Just above his head was an illuminated speedometer which (unless it was out of order, and the evidence does not suggest that it was) would have enabled him to see, even if he did not know by reason of the sense of speed which his experience might be expected to have developed in him, how the pace of the train compared with the permitted speeds. These facts are mentioned because much reliance was placed upon them by counsel for the respondent, who pointed to evidence showing that the permitted speeds had been fixed for safety reasons, and that the importance of not exceeding them had been impressed by the commission upon its drivers. These matters, however, have importance in the case only as part of the material upon which the trial judge had to decide whether the driver was in fact aware of actual danger and consciously accepted it. It is nothing to the point that he may have been aware that he was infringing restrictions as to speed which were binding upon him, for the accident was not caused by infringing these restrictions; it was caused by allowing the train to enter the curve at a greater speed than that at which it was in fact possible for that train to take that curve. What is to the point is the question whether he was aware that he was subjecting the train to an actual danger of entering the curve at such a greater speed: cf. Horabin v. British Overseas Airways Corporation [1] . In so far as the case of Bastable v. North British Railway Co. [2] supports a different view it must be regarded as out of line with the current of English authority.

[5]

His Honour found that the train was travelling at 45 m.p.h. when it capsized; that it had been running free, i.e. without any application of the brakes; that so running it would have accelerated by 8 to 10 m.p.h. over the distance between the Wattles and the point of capsize; and that therefore the speed at the Wattles (where the maximum permitted speed was 30 m.p.h. and there remained only about 150 yards to be traversed before reaching the 20 m.p.h. peg near the commencement of the five-chain curve) was between 35 and 37 m.p.h. His Honour was satisfied that the brakes did not fail, but that the train was not retarded by any application of the brakes after passing the Wattles. He thought it improbable that any power was applied to the locomotive after passing the Wattles, but was unable to say whether any power was applied between the Blood Hut and the point of capsize. In his Honour's view, the driver ought to have known the proximity of the five-chain curve. To the question whether the driver mistook his position and found himself closer to the five-chain curve than he thought he was, the learned judge gave the answer, "I cannot say that he did not do so, but he was an experienced railwayman and if he was attending to his duty he should not have done so". Then his Honour made an important series of findings which may be re-stated thus. As an experienced railwayman, the driver knew that the train, running free on the downgrade from the Wattles, would gather speed quickly if the brakes were not applied. He should have been aware of the speed at which he passed the Wattles and of the speed at which he entered the five-chain curve. He was aware that there was an imminent risk of the train becoming derailed if he entered that curve at a speed of 40 m.p.h. or more. He should not have reached such a speed without being aware of it; but on the probabilities he could and did reach such a speed without being aware of it in sufficient time to prevent the train capsizing. He was not deliberately speeding into the curve. He did not deliberately fail, knowing that he was approaching the curve, to attend to his duty by slowing the train. But it was because he was not attending to his duty that he did not know where he was and did not slow the train.

[7]

In considering this reasoning it must be borne constantly in mind that the notion of wilful misconduct as expounded in the authorities which have been cited is not satisfied in the present case by a finding that the driver intentionally ceased to keep watch on the position and speed of the train from moment to moment. It requires the additional element that the driver did this, knowing but not caring that he was thereby taking a real risk of capsize or derailment. This being remembered, two comments upon the learned judge's reasoning must be made. The first is that the assumption is tacitly made that so experienced a driver could not have deliberately averted his attention from the situation and speed of his train to the extent which is suggested, without being aware of, and consciously accepting, the risk involved in so doing. There is, however, no reason to ignore the possibility that the driver, having shut off the power, believed that the train could not attain such a speed as to be in danger of failing to take the curve, and decided, through over-confidence in his own judgment, that he could safely attend to something else until there should again be need for an application of the power. In this connection it is relevant to mention that, according to the evidence given by Mr. Pennefather, the retired chief civil engineer of the New South Wales Railways, by Mr. Townsend the assistant chief mechanical engineer of the Tasmanian Government Railways, and by Mr. Mitchell, a retired engine-driver, diesel electric locomotives gather speed more quickly than steam locomotives when running free. Mr. Meikle, the superintendent of locomotive running of the Tasmanian Government Railways, said also that from a diesel it is harder to judge speed than from a steam locomotive, the diesel being more silent than the steam. (Mr. Pennefather, Mr. Townsend and Mr. Meikle were all relied upon by the learned judge for some of his findings). To this should be added some evidence given by Mr. Mitchell: "The grade from there (the Danby siding) to Brummagen Creek is a very deceiving one and to view it from the cab you would think it was more level than it is and the train gets away very quickly on it. I cannot think of any more deceiving piece of track in Tasmania. It would be deceiving to an experienced driver too In my experience it is very easy at night to misjudge your position and find you were very much closer to Brummagen Creek than you thought you were".