COSTAIN AUSTRALIA LTD v PJ HENSGEN; STATE RAIL AUTHORITY OF NSW v PJ HENSGEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, CLARKE and MEAGHER JJA 27-28 April 1989, 27 June 1989 [1989] NSWCA 52 Negligence — collision between locomotive and front end loader on level crossing — Injured driver of loader sued sub-contractor-employer, head contractor and State Rail Authority — Finding of negligence against each defendant and of contributory negligence on part of plaintiff — Apportionment of responsibility between defendants — Works being carried out on one side of railway line pursuant to contract between head contractor and Commonwealth — Part of work being carried out by sub-contractor-employer required its employees to cross railway line to pick up gravel from stockpile on other side of line — railway line a spur line very rarely used — no information as to use of line provided by head-contractor or by sub-contractor-employer — appeals as to findings of negligence, degree of plaintiff's responsibility and apportionment, and cross-appeal by plaintiff as to damages — liability of head contractors — precautions required of rail crews — appeals and cross-appeal dismissed save as to apportionment — apportionment of between defendants fixed by trial judge varied. ORDERS 1. Parties to bring in short minutes within 7 days to give effect to the Court's conclusions. Hope JA On 2 December 1983 the plaintiff Peter John Hensgen was injured when a front-end loader which he was driving was struck by a railway locomotive owned and controlled by the State Rail Authority of New South Wales (the SRA). The plaintiff was employed by Refca Hunt Pty Limited (Refca) which was carrying out road and earthworks connected with the construction of buildings at the Bandiana military camp in Victoria near the New South Wales border as subcontractor to the head contractor Costain Australia Limited (Costain). The camp site was owned by the Commonwealth with whom Costain had contracted to carry out the works. The Commonwealth authority responsible for the work appears to have been the Department of Housing. The railway line on which the locomotive was travelling belonged to the Victorian Railway Board and had three rails to enable it to be used both by the Victorian and New South Wales trains. It was a spur line running to a sales yard. The Murray Valley Highway was north of the line, and the camp was south of it. A bitumen road, Anderson Road, ran from the highway across the line to the camp, and it was on this road that the plaintiff was driving at the time of the accident. Refca had placed a stockpile of gravel to the north of the line and to the east of Anderson Road. Another heap of gravel had been placed to the south of the line near the area where Refca was carrying out its road and earth work. This heap was used as the immediate source of gravel for the work and as necessary was replenished from the stockpile to the north of the line, Refca using trucks and front-end loaders for this purpose. The plaintiff was driving a front-end loader from the camp to the stockpile when the locomotive, coming along the line from the west, that is, from the plaintiff's left, hit the loader, its front hitting the part of the loader between its bucket (which protruded forward) and its front wheel. The loader was thrown over a white fence running beside the eastern side of 2 UNREPORTED JUDGMENTS Anderson Road on the camp side of the line, and the plaintiff was thrown through the doorway of the cabin in which he had been sitting onto the side of the locomotive and then onto the ground. The plaintiff sued Refca, Costain, the SRA, the Victorian Railways Board and the Commonwealth. He discontinued the proceedings against the Commonwealth and the trial judge dismissed the proceedings against the Victorian Railway Board. His Honour found the other defendants guilty of negligence, and found the plaintiff guilty of contributory negligence, his degree of responsibility being assessed at 10%. Damages were assessed at $162,400. His Honour apportioned liability between the defendants as to 20% against Refca, as to 20% against Costain and as to 60% against SRA. Judgments were entered on the plaintiff's claim and on the cross-claims between the defendants accordingly, workers' compensation payments being taken into account where appropriate. Costain has appealed in respect of liability, and if liable, on the degree of the plaintiff's responsibility by reason of his contributory negligence and on apportionment. The SRA has appealed on liability, the degree of the plaintiff's responsibility, and apportionment. The plaintiff has appealed on the quantum of damages. Refca has supported the conclusions to which Grove J came. Costain's primary position is that as head contractor, it had no relevant duty to the plaintiff in relation to his driving across the railway line. It was the duty of the subcontractor, Refca, to provide or arrange a safe system of work for its employees, including the plaintiff. It also submits that the stockpile of gravel and the access to it along Anderson Road across the railway line was outside the site over which, under its contractual arrangements with the Commonwealth, it had any control. In support of the primary position, it was submitted for Costain that the case was a "safe system of work" case, and not a "site control" case. It had no non-delegable duty to provide a safe system of work for the plaintiff; that duty had been delegated to Refca, and any breach of that duty was Refca's responsibility. Whatever danger may have been foreseeable by Costain in relation to the crossing of the railway line by vehicles in connection with the carrying out of the works the subject of the contract with the Commonwealth, the necessary proximity did not exist between it and an employee of a subcontractor so as to impose on it a duty to take reasonable steps to ensure that a work system was put in place to protect such an employee against that risk. The received law used to be that a person was only liable in respect of injuries resulting from the actions of an independent contractor if the independent contractor was carrying out extra hazardous acts required of him under his contract. It is now necessary to see whether such a proximity existed between the person engaging the independent contractor and the person injured that in the circumstances a common law duty of care arose between them: Stephens v Brodribb Sawmilling Company Pty Limited (1985-1986) 160 CLR 16 at 29-30. Costain as the head contractor controlled the site of the work in a general sense. It had a number of subcontractors working for it, carrying out different classes of work, within that site. The site was defined in its contract with the Commonwealth in such a way that the stockpile and the road crossing the railway line was outside it. However the evidence shows that by arrangement between the Commonwealth and Costain and thence between Costain and Refca, the site was extended to include the stockpile and that part of Anderson Road leading to it, including that part of the road crossing the railway line. The evidence is that Costain had a supervisor or clerk of works on the site called Kevin Pope, who UWROSTAIN AUSTRALIA LTD v PJ HENSGEN; STATE RAIL AUTHORITY OF NSW v P3 HENSGEN (Hope JA) (Hope JA) from time to time gave directions to the subcontractors including Refca. The person who at the relevant time was in charge of the operations on the part of Refca was one Mike Ryan. When the question arose as to where the stockpile should be located Ryan went to Pope and then went with Pope to see an officer in the Department of Housing who was supervising the work for the Commonwealth. After discussion the officer of the Commonwealth said that the stockpile should be located where it was in due course located and Pope and Ryan departed, the understanding between all parties clearly being that the stockpile should be situated on the further side of the railway line and that vehicles having occasion to go to it from the general site of the works would go along that part of the road which crossed the railway line and back. Despite the terms of the contract between the Commonwealth and Costain, in my opinion the site of the works for the purposes of the arrangements between Costain and Refca included the site of the stockpile and of the means of access to it along the road and across the railway line. That road was not only the means of access for Refca's workers from the camp site to the stockpile; it was also the means of access for anybody else working on the site from the highway. The evidence is that there were eight to ten workmen employed by Refca on the site and about fifty other employees of Costain or subcontractors. Accordingly for the purposes of carrying out work which was required to be done to fulfil the contract between Costain and the Commonwealth, the subcontractors' employees had regularly to cross the railway line, if only to have access to and from the camp site. As regards the railway line, the risk of danger to persons crossing it depended on the degree of use if any which was made of the line. There are many possibilities but three of them are that the line was not used at all, the line was used regularly or the line was used very infrequently. If the line was not used at all the risk of danger was entirely absent or minimal. If the line was used regularly, there would be a risk of danger, but the degree of that risk would be lessened by the fact that persons working nearby would, by the very regularity of the use of the line, be aware of the risk. If however the line was used very infrequently, the risk could be great indeed. In truth the line was used very infrequently. The evidence establishes that in the six or seven months preceding the date of the accident, the line was used only on two occasions. One was at the time of the accident itself. The other was some two or three days before the accident when the plaintiff saw a locomotive using the line. It is plain that Costain should and could reasonably have foreseen that if the railway line was used there was a real risk that a worker carrying out the plaintiff's duties would sustain an injury of the kind that occurred. The risk that such a worker would run was considerably increased if the line was used very infrequently and he had no present warning of that use. It is to be remembered that the use was one which Costain's representative had arranged with the Commonwealth representative, albeit in the presence of a representative of Refca, and this in itself should have brought to Costain's notice the risk that its arrangements might result in a worker having to cross the railway line. In my opinion Costain was under a duty to the plaintiff to take reasonable steps to ensure that proper warning was given of the possible risks involved in crossing the railway line for the purposes of obtaining material from the stockpile and returning with it to the camp site. Such a duty would require at least that Costain should make enquiries of the Victorian Railways Board and the SRA to see whether the line was used at all, and if used, how frequently and when, and to 4 UNREPORTED JUDGMENTS pass on the information it obtained. This was a non-delegable duty which it owed to the plaintiff and which was not supplanted by the duty which undoubtedly the plaintiff's employer, Refca, also owed. There is no evidence that Costain made any such enquiry and the plaintiff himself was never told by Costain or by anyone that the railway line was used at all. He was told by some unidentified person that the railway line was unused. He did of course see a locomotive using the line some two or three days before the accident but that was the whole of his knowledge which would give him any warning that there might be an unexpected train using the line. In this regard I agree with what Grove J said in his reasons: "Tt was incumbent upon Costain whose own operations created a particular need for multiple crossings to do more than figuratively shrug its shoulders and it was not entitled to omit to enquire as to what user of the track might be expected and to communicate information to those who were within the proximity of its operations and the railway." I accordingly agree with the conclusion of Grove J that Costain owed a duty of care to the plaintiff and that it committed a breach of that duty which resulted in the plaintiff's injury. I will consider the question of the apportionment of liability subsequently. I turn now to the question of the liability of the SRA. As I have already said, the railway line was rarely used. That circumstance in itself should have brought home to the SRA and its employees the need for care when the railway line was traversed by a road and particularly by a road associated with a working area such as the camp site. The level crossing was unfenced and there were no boom gates or similar devices to warn travellers or to prevent an accident. There were two cross-arms with the words "Railway Crossing" written on them at either side of the crossing. Each of these was placed on the road verge to the near-side of traffic moving north or south across the level-crossing. When the accident occurred the plaintiff was driving the front-end loader in a northerly direction towards the stockpile. The scoop was raised from the ground in a travelling position and was empty. Grove J accepted the plaintiff's evidence that he was travelling at about 10 kilometres per hour. The nearside door of the cabin in which he was seated was fully open so that his view through it was unrestricted but the triangular forward window provided less than ideal viewing and there was obstruction or blind-spots caused by metal parts of the cabin. As the vehicle approached that part of the roadway that crossed the railway he allowed his attention to remain to the east where he had an unrestricted view. There was no rail traffic to be seen. He knew that for a considerable distance until he was almost upon the crossing his view to the west would be obstructed by trees, shrubs, tall grass and the like. As his vehicle commenced to make a traverse of the crossing he turned around towards the left and saw the locomotive bearing down upon him. He estimated in the witness box that it was about 40 or 50 metres from him when he saw it although as Grove J mentioned, there would be doubt that at the time he had a real opportunity to make an estimate other than that the locomotive was bearing down upon him. The plaintiff immediately applied the brakes and engaged a reverse lever. His Honour accepted that in that instant the plaintiff saw that there were two occupants of the driving cabin of the locomotive with whom he had no eye contact because their heads were turned to the south in the direction of the main army camp. He heard no whistle or other warning coming from the train and the impact occurred. There is in evidence a railway inspector's report which suggests that the speed of the locomotive was said to be 35 kilometres per hour and that is the speed which the plaintiff said he could do UWROSTAIN AUSTRALIA LTD v PJ HENSGEN; STATE RAIL AUTHORITY OF NSW v P3 HENSGEN (Hope JA) (Hope JA) little more than guess was the speed of the locomotive. His Honour found that the locomotive speed was at least 35 kilometres per hour. It is not in issue that the plaintiff did not hear any whistle coming from the locomotive, but again it is not in issue that the locomotive did sound its whistle. The reason why the plaintiff did not hear it was because of the noise coming from his own vehicle. There is evidence from Mr Burns, a witness called by the plaintiff that the locomotive gave a single short whistle, there was then a slight pause, and then the whistle was blown for some twenty to thirty seconds. The evidence does not show when the whistle was blown in relation to the time of the impact, and the SRA did not call evidence. Grove J said of this evidence: "T am not satisfied that any whistle was blown in order so to warn and indeed insofar as Mr Byrne (sic) testifies to hearing a whistle there is no basis for conclusion that it was even sounded prior to the impact." Although there is no direct evidence as to the time when the whistle was blown in relation to the impact, the evidence of Mr Burns does throw some light on it. Mr Burns heard the first sharp blast of the whistle, then the break and then, almost at once, the continuous blowing. When it did this he turned around and saw the front-end loader going over the rails beside the railway line. On this evidence, which was accepted by his Honour, it is apparent that the whistle was blown at the time of the impact or very shortly before it. Counsel for the SRA submitted that the passage from the reasons of Grove J about the blowing of the whistle which I have quoted above shows that his Honour wrongly reversed the onus of proof. In my opinion, although his Honour's statement may have been more happily phrased, he was stating his conclusion that the evidence did not establish that the whistle was blown before the impact. The SRA has denied negligence and submits that his Honour's finding was wrong. It is submitted that the SRA had a duty to give a warning by its whistle to any possible user of the crossing but having done that it was up to any person proposing to cross the railway to have regard to his own safety and to take whatever steps were necessary to that end. This required that the plaintiff should have stopped before he attempted to cross the railway line and looked each way to see whether a train was approaching. Apart from any obligation under the general law the SRA relies upon reg901 of the Victorian regulations dealing with motor vehicles. This regulation provides that a driver approaching a railway level crossing shall stop his vehicle so that the leading portion of the vehicle is on the approach side of and safely clear of the railway and of any gate, boom or barrier, if, relevantly, an approaching train is visible or emits an audible signal and there is danger of a collision with his vehicle and the train, in which case he shall not proceed until safe to do so. This regulation was not tendered in evidence and in my opinion the court did not have judicial notice of it. S6 of the State and Territorial Laws and Records Recognition Act 1901 as amended makes provision for the way in which evidence of a regulation may be given in courts, absent admission, and it would have required the tendering of some appropriate document to prove the regulation. Accordingly the matter is to be dealt with under the general law. The locomotive was thus approaching, on a rarely used line, a level crossing over which a bitumen road ran and which had no boom gates or alarm bells or lights to warn vehicles of an approaching train. His Honour correctly concluded that in those circumstances the rail crew should have given adequate warning of the approach of the locomotive to the crossing. His Honour also concluded that 6 UNREPORTED JUDGMENTS the rail crew should have observed the work site adjoining the crossing and should have been more diligent on that account. He considered that to travel on the line at a speed of at least 35 kilometres per hour was excessive. He also concluded from the evidence of the plaintiff as to his observation of where the train crew were looking at the time of the accident that they were not paying sufficient attention to what was happening along the line in the direction in which the locomotive was travelling. The acceptance by his Honour of the submissions for the plaintiff in relation to these matters has been challenged for the SRA but they were conclusions which were open to his Honour and were in my opinion correct. It is important that the line on which the locomotive was travelling was a rarely used spur line, and that the rail crew should have been able to observe activity near the railway crossing and to have taken appropriate precautions including precautions as to speed and paying attention to what was happening. For the SRA reliance is placed on what was said by Asprey JA in Tarquini v Commissioner for Railways [1970] 2 NSWR 15 at 18-19. In my opinion this decision makes it clear that it is a question of fact whether warnings or other precautions taken by a rail crew when approaching a level crossing are adequate. Undoubtedly in the present case the plaintiff was guilty of contributory negligence, as the learned judge found, but I see no reason to disagree with his Honour's conclusion that what the rail crew did was inadequate and that the SRA was guilty of negligence. The next question is the degree of responsibility of the plaintiff, by reason of his contributory negligence, for the injuries which he suffered. His Honour assessed that responsibility at 10%. Costain and SRA each challenge that assessment and submit that the proportion of responsibility should be larger. It is submitted that the plaintiff should have stopped and whether or not he stopped he should have looked carefully to his left before attempting the railway line. No doubt these are steps which he should have taken but they must be put in context. Although he had seen one locomotive using the line some two or three days before the accident, he had been told that the line was unused. The evidence was that nobody working on the site stopped when crossing the railway line. This is consistent with the general view that was held that the line was an unused one. In assessing the degree of his responsibility, his Honour said that he paid particular regard to the fact that the plaintiff was performing his duty in a way indistinguishable from other workmen doing similar tasks upon the work site and that he might reasonably expect some warning if the railway line was in use. In my opinion his Honour was correct in taking these circumstances into account. Taking them into account, although had I been the trial judge I may have assessed the degree of responsibility at a somewhat higher amount, applying the established principles there is in my opinion, no occasion for this Court to interfere with his Honour's assessment of that responsibility. The next question concerns his Honour's apportionment of responsibility between the defendants for the damage suffered by the plaintiff. His Honour assessed that responsibility as to 20% to Refca, 20% to Costain, and 60% to SRA. In arriving at this apportionment his Honour said: "...I have found that Refca was negligent in failing to take steps to ascertain the existence of the risk and then to give appropriate warning of it to the plaintiff, Costain was negligent in failing to have regard to the safety of persons within the ambit of its operations whom it would knew would, by reason of the location of the two dumps, necessarily travel to and fro across the railway line about which they tendered no information, State Rail was negligent in bringing its locomotive across a level crossing in an area UWROSTAIN AUSTRALIA LTD v PJ HENSGEN; STATE RAIL AUTHORITY OF NSW v Pd HENSGEN (Hope JA) (Hope JA) where it ought to have known men were working and whose train crew neither kept a proper lookout nor gave adequate warning of approach." With respect to his Honour, I have concluded that this apportionment was erroneous, and erroneous to an extent that this Court should interfere. In the first place, I regard the responsibility of the plaintiff's employer Refca in respect of the plaintiffs safety as greater than the responsibility of Costain. Again I do not think that the responsibility of SRA was greater than that of Refca. In the circumstances I have concluded that an appropriate apportionment to substitute for that arrived at by his Honour would be 20% as to Costain, and 40% as to both Refca and SRA. There remains the plaintiff's cross-appeal as to the quantum of damages. The challenge is limited to the assessment of general damages and of damages for future economic loss, which his Honour assessed at $45,000 and $65,000 respectively. The plaintiff was born on 5 May 1949 and was thus 34 years of age at the time of the accident and 36 years at the time of the trial. His Honour described his injuries as including a mark on his forehead near the eyebrow, laceration near his knee, gravel rash and extensive bruising particularly on the back, problems with head and ear ache from which he recovered, and a foreign object below the skin near his left knee which was subsequently discharged, and some symptoms of disability in his neck and shoulder movements, but his principal disability was related to pronounced and constant pain in the lower back. His Honour accepted that the plaintiff had been markedly handicapped in performing any of his usual household and recreational activities and that he had been unfit for employment as a plant operator, and in particular unfit for his previous employment which although he was a leading hand involved a considerable amount of plant operation. However his Honour also concluded that the medical evidence provided a basis for some optimism. The physical basis for the plaintiff's back complaints was ligamentous in nature and he concluded that it was reasonable that in the long term there should be a substantial recovery although there was a risk that the problem would persist and it would be necessary to retrain the plaintiff to carry out a less strenuous job. In arriving at his assessment of $65,000 for future economic loss, his Honour made an allowance for one year's total unemployment from judgment at the rate of $300 per week in order to enable the plaintiff time to rejoin the workforce, that is, doing work which he could carry out having regard to his low back injury. That sum amounted to $15,600. His Honour then estimated that for the ten years following that one year period the value of his reduced earning capacity was $100 per week, that is, his working capacity was diminished by that amount. For this ten years he allowed $43,860. Acting on his findings that a substantial resolution of the plaintiff's disability was likely but allowing for the chance that they would not resolve in the seventeen years after the expiration of the eleven years from date of judgment, which would bring the plaintiff to approximately 65 years of age, his Honour allowed a continuing loss of $25 a week, amounting in all to the sum of $12,586. The total of these amounts is $72,046 which his Honour discounted to $65,000 to allow for vicissitudes. The submissions for the plaintiff challenge his Honour's limitation of the period needed for retraining to one year. It was submitted that the plaintiff had at no time done any sedentary work, and indeed that he had done nothing other than heavy labouring work and that at no time had he had any experience and had no 8 UNREPORTED JUDGMENTS qualifications to perform any sedentary or clerical work. It was also submitted that he had no educational basis for retraining in the clerical area. It is clear on the evidence that the plaintiff was permanently fit for doing work of a light nature and that he would have to be retrained to perform some work other than that which he had been performing at the time of the accident. Although there would be obvious limitations as to the type of work which the plaintiff could be retrained to do, in my opinion no error is shown in his Honour's conclusion that the plaintiff could be retrained within twelve months to do work which fell within his capacity, notwithstanding his disabilities. Again, on the evidence, his Honour's conclusion that the plaintiff's disabilities would in the long term improve was undoubtedly justified, although he was right to take into account the possibility that they might not. In these circumstances I see no reason to disagree with his Honour's assessment of future economic loss and in my opinion the plaintiff's challenge to his assessment fails. Although the assessment for general damages was challenged in the notice of appeal, no submissions were addressed to the Court on his Honour's assessment and in my opinion there is no basis for the Court to interfere with that assessment. The plaintiff's cross-appeal should be dismissed. Accordingly the appeals and cross-appeals should be dismissed, except for the appeals of Costain and SRA in relation to apportionment. The judgments on the defendants' cross-claims should be set aside and in lieu thereof judgments should be substituted based on an apportionment of 20% to Costain, 40% to Refca, and 40% to SRA. Costain and SRA should pay the plaintiffs costs of the appeal, and the plaintiff should pay the costs of his cross-appeal. Refca should pay the costs of Costain and SRA insofar as their appeals related to the question of apportionment, but subject thereto Costain and SRA should pay Refca's costs of their appeals and of the plaintiff's appeal. In the light of the new apportionment as between the defendants, the appropriate course is that the form of the judgments to be substituted for the existing ones should be dealt with by short minutes to be prepared by the parties. The Court should make no orders now save to direct the parties to bring in short minutes within seven days giving effect to the conclusions which the Court has reached.