Transport Commission v Neale Edwards Pty Ltd

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.

1. (1952) 2 All E.R. 1016. 2. (1912) S.C. 555.

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.

Having made these findings, the learned judge stated the grounds for his decision in a passage which should be quoted in full. "This accident took place because the deceased driver was not attending to his duty. That in my view amounts to misconduct in law. The question is, was that misconduct wilful? Was the driver wilfully not attending, or was there some other reason for his failure to do so? I think that it was wilful. I think that he wilfully, that is, as a conscious act of his will, ceased to watch where his train was and what its speed was. I reach that conclusion because the driver was an experienced man. He knew that stretch of line and, of course, the whole line. He knew the length and weight of his train. He knew that he was on a down grade and that his train would gather speed quickly if he did not brake. He passed the Wattles at 35 or 37 m.p.h. so that he was not, I think, keeping a proper watch before then. From the Wattles the point of derailment was a distance shown on the plan of approximately 170 yards and in that distance again he did not brake. His failure to do so was in my view, misconduct, and in my view, wilful misconduct. He was not looking. If he had been looking and had let the train run on, he was and must have known that he was simply committing suicide. It is his failure to look which in my view was the wilful misconduct. There is nothing to suggest that that failure to look was due to illness or to any other cause than a deliberate act of the will and on the balance of the probabilities I think it was a deliberate act".

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".

The second comment to be made is that the evidence does not warrant the conclusion that the driver acted deliberately in refraining from watching where his train was and what its speed was. There was, of course, no direct evidence on the point, for the only two persons who could have given such evidence, the driver and the fireman, unfortunately perished in the disaster. The guard was unable to throw any light on the cause of the accident. The case was therefore one of circumstantial evidence. The burden of proof lay upon the respondent: H. C. Smith Ltd. v. Great Western Railway Co. [1] , and the standard of proof which he had to satisfy was that which was explained in Luxton v. Vines [2] . It will be sufficient to quote two sentences from the latter case: "In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley [3] . But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought, then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn [4] " [2] .

1. (1922) 1 A.C. 178, at p. 183. 2. (1952) 85 C.L.R. 352, at p. 358. 3. (1911) A.C. 674, at p. 687. 4. (1911) A.C., at p. 678. 5. (1952) 85 C.L.R. 352, at p. 358.

Now, the considerations which weighed with the learned trial judge were undeniably substantial. The driver was an experienced driver of both steam and diesel electric engines. He should have known the capacity of so heavy a train to gain momentum if allowed to coast downhill without any application of the brakes. He knew the line well. He knew there was a steep slope to the curve at Brummagen Creek, and had often taken trains down it. Having regard to his knowledge and experience, there is obviously much to be said for the view which the trial judge expressed, that if the driver had been keeping a proper watch he would have known, as he passed the Wattles and indeed over a period of some seconds before he reached the Wattles, that unless he applied the brakes he was committing suicide. And if that view be accepted, the inference is strong, as his Honour thought, that the driver could not in fact have been keeping a proper watch. But the very knowledge and experience upon which this inference is based must have told the driver, if he gave any consideration to the question of keeping or not keeping a watch on the location and speed of the train, that to let the train run free on that stretch of line without keeping such a watch was just as surely suicidal as to keep a watch but to refrain from applying the brakes when the need to do so should become apparent. The circumstances which support the inference that no proper watch was kept support equally the inference that the omission to keep a proper watch was not due to a deliberate choice made with a realization of the danger involved.

The theory that the driver deliberately elected to take the risk of paying no attention for an appreciable period to the identity of the slope he was descending and the speed the train was developing as it descended that slope is thus open to the very objection which led his Honour to reject the competing theory that the driver elected to take the risk of not braking the train, although he perceived that the speed and the proximity of the five-chain curve demanded that course. If there is any reasonable alternative hypothesis, both those theories ought to be rejected as attributing to the driver a degree of unconcern for his own life and the life of his fireman, to say nothing of the safety of his train, which could hardly be reconciled with sanity.

Other possibilities suggest themselves at once. It is true, as the learned judge said, that there is nothing in the evidence to suggest that the driver's failure to watch was due to illness, but neither is there anything to exclude the possibility. Again, it may be that the fireman became ill and claimed the driver's attention for a few seconds. Or some altercation may have broken out between the two men and absorbed the attention of both. Or it may be that the driver's familiarity with the line he was traversing had bred a contempt for its dangers, and he turned his mind to some engrossing occupation such as a study of sporting information, or the reading of an absorbing story, taking it for granted, without thinking about the matter, that as long as the power was shut off there was no need to worry. It cannot be said that there is any special likelihood about any of these possibilities, but the evidence is consistent with them all, and at least none of them requires the supposition that the driver deliberately embraced the danger of a violent death. If there is one thing less probable than any other in this case, it is that the driver risked plunging off the line with 265 tons of rolling stock behind him, appreciating that the risk was real, and actually choosing to take it in preference either to keeping his attention on his work or to using the brakes when he saw the need to do so.

The conclusion which the respondent sought is therefore one which cannot be reached save by conjecture, and by conjecture characterized by improbability. The respondent's claim should fail, and accordingly the appeal should be allowed.