GAUKROGER v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA, MEAGHER and HANDLEY JJA 2 October 1990, 2 October 1990 [1990] NSWCA 65 NEGLIGENCE — inferences from primary facts — no question of principle. Samuels JA We have before us an appeal and cross-appeal from a judgment of Studdert J in which he awarded damages of $137,250, a figure which includes a discount for contributory negligence, to the plaintiff who, when aged twelve, on 18 December 1980 sustained serious injuries while on or close to a pedestrian crossing across a single track railway line at Guyra. The facts are fully and clearly set out in the judgment under appeal and I need not repeat them all. Indeed, the findings of primary fact which are supported by direct evidence are not disputed. I need, however, to set out sufficient facts to provide some context for the conclusions at which I have myself arrived. The pedestrian crossing as I will call it is made up of railway sleepers lying parallel to the axis of the railway track which runs from north to south. It is a single track at this point. The plaintiff lived on the eastern side of the track and had been sent on an errand to shops on the western side. The train which the circumstances implicate was travelling from north to south. On the western side of the track there is a pathway which leads up to the pedestrian crossing. In the final few metres, judging from the photographs, there appears to be an uphill gradient so that it is precisely true to describe the track as running up to the crossing. At the time there were signs warning of trains on either side of the line but no barrier or railing or other obstacle which would compel a cyclist, for example, to dismount before crossing the line or at least to dismount before deciding whether to cross the line wheeling the bicycle or to mount it and ride across. The plaintiff was at the time riding a bicycle, that is to say he had set off from home riding a bicycle. He was found, after a train had passed, close to the western side of the western running rail some 1.4 metres away from it and 3.4 metres south of the centre of the sleepers. The bicycle was not far away from him. The plaintiff appeals on the ground that the thirty per cent allowance for contributory negligence which the learned judge made against him was wrong, and also challenges the assessment of damages. The defendant cross-appeals contending that the learned judge was wrong to find negligence against him. I will continue to call the parties the "plaintiff" and "defendant". The plaintiff has amnesia for the occurrence. Accordingly, it is necessary to establish what happened, that is to say how the plaintiff's injuries to the head and left knee and the damage to his bicycle were occasioned, by a process of inference from the primary facts. First of all, there arises the question whether the plaintiff was intending to cross from east to west or from west to east, and whether he was indeed struck by the train and if so by which portion of it. 2 UNREPORTED JUDGMENTS There is evidence of paintmarks on the right hand side of the cowcatcher of the locomotive which the learned judge thought reasonably matched the colour of the paintwork on the plaintiff's bicycle. His Honour found - and I think there is really little challenge to this conclusion - that the bicycle had been struck by the right hand edge of the locomotive, and the plaintiff also. Human hair was discovered on the rear bogey of the wagon which formed part of the make-up of this train, and it was contended by Mr Wilmott for the defendant that this showed that the plaintiff, having been thrown down by contact with the front of the train, had been run over by the rear of it. It may be so. The learned judge thought that the hair issue - and I interpolate to say there was no evidence that it was the plaintiff's hair, that is to say the hair on the train and the plaintiff's hair were never matched - represented a "red herring", that is to say, a misleading irrelevancy. It does not seem to me to matter whether the plaintiff was struck by the rear of the train. The important question is whether he was struck by the front. In my view there is a clear and definite inference in the affirmative. First, there is the paintwork. One can exclude the traces of blood as coming from grasshoppers or insects of some sort. Secondly, there is the injury to the plaintiffs left knee which was described in the evidence as a penetrating injury with a large degloving laceration on the left calf. Thirdly, there is damage to the frame of the bicycle. All of this material leads me to conclude as a matter of inference that the plaintiff and the bicycle were struck by the right hand side of the cowcatcher of the locomotive; and that, allowing for the dimensions of the track and the train, they were both on the crossing at the time this occurred although not, as Mr Wilmott has persuaded me, directly in the centre of it, and thus not directly in the path of the locomotive. The question then is to decide whether the plaintiff was on the bicycle at the time or whether he was wheeling it. The material to which I have already referred, that is to say the nature of the plaintiff's injuries and the character of the damage to the bicycle, leads me to conclude that the plaintiff was riding the bicycle when he was struck by the train. Further, he was not seen by the driver, as he probably would have been had he been standing by the crossing as the train approached. It seems to me that apart from the factors which I have listed, the inferential probabilities strongly favour the view that a boy of twelve sent off on a message riding his bicycle, bearing in mind that the track which I have also referred to leads directly to the pedestrian crossing, was riding his bicycle along the track and up onto the crossing. There was no reason, apart from the approaching train, for him to dismount and no compulsion by reason of any obstacle, and I think it unlikely that he did. This involves, of course, the conclusion that he intended to ride across the crossing notwithstanding that a train was approaching from his left hand side. There is evidence which the learned judge accepted that the train had whistled at a crossing further to the north, four hundred and twenty three metres from the pedestrian crossing, and had whistled again about halfway between these two points, that is to say a little more than two hundred metres from the pedestrian crossing. It was a single continuous blast which lasted for about five or six seconds. This would have given ample warning, one would think, to anyone whose faculties were unimpaired, and there is no evidence that the plaintiff suffered from any physical defect which would have made it difficult for him to hear. Furthermore, there was the sound of the train approaching apart from the \WRAUKROGER v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES (Samuels JAB whistle. Accordingly, I would conclude that it is probable that the plaintiff was riding his bicycle when he was struck by the train, of whose approach he was aware. The plaintiff put his case on three bases. First of all, that the driver and the observer in the cabin of the locomotive failed to keep a proper lookout. Secondly, that the train was being driven at an excessive speed and, thirdly, that there was no barrier of any kind on either the eastern or western side of the crossing such as would require a cyclist to dismount and consider his or her position before proceeding. The locomotive driver sat on the left hand side of the cabin and the observer on the right. The driver gave evidence. The observer had died before the trial but his statement was tendered. It appears that the observer would not have had a view of the western approaches to the crossing until the train was three hundred metres from it. At that point he would have had an extensive view. The train was travelling at about seventy kilometres an hour and at that speed a train made up as this one was would have taken 250 to 280 metres in which to stop. It is obvious therefore, as the learned judge found, that taking account of visibility and the stopping distance there is a very fine margin for error. It appears that the observer did not see the plaintiff and the driver did not stop. The driver of course has to look across his cabin, and there is a blind spot which is created by the forward thrust of the nose of this type of locomotive. However, even if it be granted that the observer failed to keep a proper lookout it is very difficult to see how there could be any causal relationship between his failure and the impact because there was so little time in which the observer, however acute and however sharp his reflexes, could have called to the driver or drawn his attention to the need to make an emergency stop. I do not think that there is substance in the first of these heads. Secondly, it is said that the speed was excessive because it left insufficient time in which to stop if the observer had noted some impending danger at the crossing. This contention seems to me to have cogency when linked to the third head which is the one which seems to me to have the most force. The defendant was contemplating providing a fence before the accident happened. That, of course, although it does not establish that the failure to have it done before December 1980 was negligent, does tend to dispose of the foreseeability and prevention issues in the plaintiffs favour. The obstacle which has been erected is a cyclone wire fence costing, it is estimated, $1000, which is a little like a cattle race which requires a cyclist to dismount before deciding whether to ride or walk across the crossing. It would have prevented what I take to have been the nature of the plaintiff's approach in the present case which was, to my mind, entirely foreseeable in the absence of any barrier. I think that Mr Wilmott at the end of his argument frankly conceded that the probabilities favoured the inference of some kind of continuous approach to the crossing on the part of the plaintiff. While it is true that in cases of this kind the temptation to speculate must be avoided, and I refer to Luxton v Vines (1952) 85 CLR at 352 and 358 and Holloway v McFeeters (1956) 94 CLR at 470 and 480, it must be remembered that the tribunal of fact has merely to determine whether the material is capable of supporting a clear and definite inference superior in possibility to competing inferences if they arise. In the present case the competing hypotheses include the plaintiff suddenly projecting himself and his bicycle into the path of the train or, mounted on his bicycle and maintaining some sort of stationary stance, falling into the path of the 4 UNREPORTED JUDGMENTS train, or being sucked into the path of the train by the slipstream of its passage. I admire the fertility of imagination which has produced these suggestions, but I do not find any of them at all plausible. It seems to me that it may be confidently inferred that this twelve year old boy, cycling home, cycled along the path and up onto the line hoping that he would be able to beat the approach of the train. Exactly what happened when he got onto the sleepers it is not necessary to find. He may at that stage have attempted to stop but as events proved it was too late. The negligence resides in his having made that foreseeable approach which the cyclone fence, if then erected, would have prevented. Accordingly I would reject the complaint that there was no evidence of negligence or that his Honour was wrong to find negligence. It of course almost exactly follows that in making that case of negligence the plaintiff inevitably proves a case of contributory negligence save for one thing. Mr Van Aalst, while conceding that the mounted approach of the plaintiff did create difficulties for him, nonetheless endeavoured to persuade us that since the principle requires us to consider whether there was here a failure on the plaintiff's part to exercise the care to be reasonably expected of a twelve year old boy, that test was, in these circumstances, unsatisfied. He then offered his hypothesis as to what happened, that the plaintiff may have approached on his bicycle and tried to apply his brakes which had not worked or had panicked and had in some way continued on instead of stopping. I think that these conjectures are vulnerable to the criticisms which I have already adumbrated. The negligence resides in the approach, and the contributory negligence does also. There is simply no evidence of any defect in the braking mechanism of the bicycle. While, indeed, the plaintiff may have panicked too late, there is little room on the evidence to assume that he panicked early but nonetheless maintained the approach which took him on his bicycle onto the crossing. Accordingly, I would not interfere with his Honour's conclusion as to contributory negligence. I do not think that it was argued that if contributory negligence were established the discount of thirty per cent could be attacked. Finally, it was submitted that the damages were inadequate. First of all, that the figure of $70,000 for pain and suffering and the like was insufficient. There is little that can be said to embroider this point or to indicate why I would, myself, reject it. The plaintiff has undoubtedly received serious injury and as a result has incurred an intellectual deficit which is not insubstantial. But there is no evidence that this has affected his enjoyment of life to any exceptional degree. He does not have a great deal of insight into the intellectual defects which followed the injury. He is employed and leads a full social life and engages in a good deal of sport. I would not think that the figure is open to challenge. Secondly, the allowance for diminished earning capacity was challenged. As to that I would merely say that the learned judge was not bound to accept that the plaintiff's wages in the employment which he held at the time of the trial represented his optimum capacity for work. Granted that there was unchallenged evidence that he wished to become a primary schoolteacher and could have attained his ambition had he not been injured, it does not follow that the discount applicable to that profession should have been limited to the fifteen per cent which his Honour in fact applied. When one considers the possibility of a larger discount and a greater optimum capacity, the figure awarded and the figure contended for come so close that it cannot reasonably be contended that the award is wholly disproportionate to what was proved, and thus outside the boundaries of a proper discretion. \WRAUKROGER v THE STATE RAIL AUTHORITY OF NEW SOUTH WALES (Handley JAB For those reasons I would dismiss the appeal and the cross-appeal. Meagher JA I agree. Handley JA I also agree. Appeal and cross-appeal dismissed. No order as to the costs of either the appeal or cross-appeal to the intent that each party should pay his and its own costs of the proceedings before this Court. 10 Counsel for the Appellant: J Van Aalst Counsel for the Respondent: MS Willmott Solicitors for the Appellant: Abbott L Co (Armidale) 15 Solicitors for the Respondent: MR FD Thompson, Solicitor For State Rail Authority