Pike v State Rail Authority of NSW [2000] NSWSC 926

New South Wales Supreme Court

CITATION : Pike v State Rail Authority of NSW [2000] NSWSC 926 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC N150/94 14 August 2000 HEARING DATE(S) : 24-25 August 2000 28 August 2000 JUDGMENT DATE : 3 October 2000

PARTIES : Neil David Pike (Pltf) State Rail Authority of NSW (Def) JUDGMENT OF : Newman J

C R Callaway QC/Benson (Pltf) COUNSEL : K L Dodd SC (1D) L King SC (XD) R G Gambi (XD from 24/8/00) Reid & Reid (Pltf) SOLICITORS : Gillis Delaney Brown (1D) Henry Davis York (XD) CATCHWORDS : Negligence - escaping horses - vicarious responsibility - damages - loss of earning capacity CASES CITED : Dessent v The Commonwealth of Australia (1977) 51 ALJR 482 at 487 DECISION : See para 80

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN J

NEWCASTLE: TUESDAY, 3 OCTOBER 2000

N150/94 - PIKE v STATE RAIL AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This is a claim for damages for personal injuries arising out of a road accident which occurred on 23 November 1989. The parties at the trial were the plaintiff, the State Rail Authority of New South Wales (hereinafter referred to as SRA) as defendant and a Mr Cy Hedley who was joined as a cross-defendant by SRA. 2 Cy Hedley was the owner of a rural property which was abounded by the Broke and Putty Roads (the latter being known as the Windsor Road) near Singleton. The subject accident occurred on the Putty Road a short distance west of where the Putty and Broke Roads intersect. 3 The plaintiff's case was that he was driving home from work at about 11.30 pm on 23 November 1989. He was employed by the Drayton open cut colliery as a coal miner. His duties at the colliery involved him operating heavy machinery. Shortly before the accident he had completed the afternoon shift, hence his presence on the road at about 11.30 in the evening. Because of the presence of traffic on the opposite side of the road, the plaintiff had his headlights on low beam. 4 Three horses ran on to the road from its southern edge across the plaintiff's path. The plaintiff applied his brakes but a collision occurred. One horse appeared on the bonnet of the car, another was struck from behind. The plaintiff's car came to an abrupt halt. The plaintiff was initially thrown forward, his mouth coming into contact with the steering wheel of his car. He was then thrown backwards striking the back of his head on the back window of the cabin of his utility. Such was the force of the impact of the plaintiff's head striking the back window that the window was cracked. 5 While a dispute emerged at the trial as to whether or not the plaintiff was able to drive his car home after the accident, there was no dispute that his vehicle was written off as a consequence of it. 6 As I have said the cross-defendant, Cy Hedley, was the owner of rural land abounded by both the Broke and Putty Roads. The accident thus occurred next to his property. Cy Hedley was absent from the property at the time of the accident, however, his son John Hedley, who both lived and worked on the property was in residence that evening. His house was adjacent to the Broke Road. 7 He deposed that his father and himself at the time and indeed still do, carry out a business of raising beef cattle on the property which occupies an area of some 850 acres. He deposed that the three horses involved in the accident were his. The horses in question were kept in a paddock on the property which according to a location map which was exhibit B in the trial, was adjacent to the Broke Road and south of both the intersection of the Broke Road with the Putty Road and the Mt Thorley branch railway line. 8 Evidence called on behalf of the SRA from one Noel Knight revealed that the branch line which extended from the Saxonvale spur to the Mt Thorley loop had been built in 1977. The railway line is built across Cy Hedley's property and in fact crosses the Broke Road by way of a bridge to the north of John Hedley's residence and south of the Putty Road. John Hedley deposed that this part of the easement held by the SRA included land either side of the permanent way. On the southern side of that easement access may be had by way of a gate constructed by the SRA at the time when the line was laid. The gate which in part was constructed of railway materials also gave access to the paddock in which the three horses involved were kept. 9 Not only that but also it afforded access to power lines which ran parallel to the railway line and were owned by Telstra (named Telecom at the relevant time). 10 The gate was secured by a chain which in turn was secured by three padlocks, the unlocking of any one of which would free the chain and allow the gate to be opened. 11 One lock was under the control of the Hedley family, another in the control of the SRA and a third in Telstra's control. 12 John Hedley deposed that on the evening in question he was told of the accident by a neighbour. He went to the scene where he identified the three horses as being his, one which was badly injured was destroyed by the police and the other two were placed in the adjoining Hedley paddock - access being gained by a gate to the property which gave access to the Putty Road. 13 John Hedley later that evening went to the gate which gave access to the Broke Road paddock in which the horses were normally kept and also, as I have said, to the railway line and to the Telstra power lines. 14 He found that the gate was open and one of the three locks was unlocked. That lock was not a lock over which the Hedley family had control. He was able to relock it by simply pushing the plunger of the lock back into its body. The lock which was under the control of the Hedley family could not be fastened in such a simple manner, it being a lock which required the use of a key either to lock or unlock it. He was unable to say whether the unlocked device was that under the control of the SRA or Telstra because it was dark at the time when he carried out his investigation. 15 It is a proper inference to draw that the three horses entered the Broke Road through the unlocked gate, travelled south along the Broke Road to the intersection of the Putty Road then diverted west before crossing into the path of the plaintiff's car. 16 I should note that the compass directions which I am using in this narrative are taken from the north/south indicator on the location map which was exhibit B in the trial. I say this because there was some confusion as to the true compass references during the course of the trial. It is for the sake of certainty that I have adopted the compass references in exhibit B. 17 John Hedley further deposed that during the day of 23 November 1989 he had been working on the property. He had worked between 8 am and 5 pm breaking for one hour for lunch. He deposed that during the course of the day he had seen men, whom he described, as either gangers or fettlers working on the western side of the railway bridge and that he had seen a truck which he identified as a railway truck parked off the Broke Road under the railway bridge. He had last seen the truck at about one in the afternoon when he was returning to resume work after his lunch break. In chief he stated there were some gangers or fettlers whereas in cross-examination he said: "Q. How many men were there? A. Oh, there would have been four or five or something. I don't know, I can't really remember. I remember men." 18 John Hedley was extensively cross-examined by counsel for the SRA. In particular when a statement which he had given to an investigator on 18 November 1998 was put to him he said that all the material in the statement put to him was correct save for one feature. That feature was that in the statement he said he was carrying out fencing work near the railway line whereas his recollection at the trial was that he had been working on building a shed on the family property. 19 However, in cross-examination John Hedley did not resile from the evidence he had given in chief. It was put to him that he ought to have carried out a visual check of the gates including the locked gate during the course of the day. He maintained that he did not observe the gate to be unlocked prior to the inspection he carried out at night. 20 The defendant, SRA, called a number of witnesses, all of whom were employees of the defendant both now and at the relevant time. All were familiar with the section of railway line in question. 21 The first of those witnesses, a Mr Greentree, said that if in 1989 an inspection was being carried out of the track it was done so by using a conveyance known as a high rail vehicle which was a road vehicle converted to run on rails. The approach would be made either from the Saxonvale end of the line or from the Mt Thorley end of the line. He stated that it would be dangerous to approach the line by entering the railway line area through the subject gateway because of the necessity to climb up the very steep embankment on which the railway line is situated - particularly if it was necessary for railway workers to carry tools. He said that if tools were being used they would be brought down the line on a flat top aluminium trolley. When asked what type of equipment would be needed to carry out maintenance work on the line he said that jacks and welding gear would be required and that he doubted that those objects could be readily carried up the embankment. 22 If there were three to five people involved they would be carrying out work rather than a mere inspection because usually only two people were required for an inspection. He deposed that his efforts to find records relating to work carried out on the Saxonvale-Mt Thorley section of the railway line in November 1989 had been unsuccessful. 23 In cross-examination he agreed that while for an inspection there always has to be two people involved, the number of people involved in maintenance work would depend upon the extent of the work required to be performed. 24 Another employee, a Mr McDonnell, gave similar evidence to Mr Greentree. He had been carrying out inspection of the relevant railway line since 1990. He said that he had not carried out any inspection of the railway line by accessing the line through the gate in question nor had he seen other railway workers so accessing the line. Like Mr Greentree, he expressed the view that the height of the embankment would militate against the gate being used to access the line. 25 While in cross-examination he claimed that the railway did not, in fact, have control over one of the locks on the subject gate he agreed that he did not know what the position was in relation to the subject locks prior to 1990 because it was only in that year that he took over duties involving inspection of the line. He did concede that if it was convenient to perform an urgent job access to the line could be obtained by the gate. 26 The third employee, a Mr Knight, also gave evidence. He said that following the construction of the subject line in 1977, inspection of the line was carried out by use of a motor trike. He claimed that if work was being carried out on the line access would be had by use of a trolley which would be placed on the line at Saxonvale. He had not seen at any time railway workers gaining access to the line by using the subject gate. He knew of no work other than inspections which had been carried out on the relevant section of the line between 1977 and the end of 1989. His endeavours to find records relating to any work carried out involved an enquiry being made of Mr Greentree, whose evidence I have already summarised. 27 He agreed in cross-examination, that if an urgent job needed to be carried out access to the line can be obtained by using a truck and parking that truck as close to the access point to the line as can be had. 28 It was thus submitted on behalf of the SRA that because of the nature of the terrain it was very unlikely that railway workers would have used the subject gate to gain access to the line to carry out work. 29 Accordingly it was put that John Hedley was mistaken in the observation he deposed to. I should add that in a letter from Telstra tendered in evidence, without objection, the Australian Government Solicitor on Telstra's behalf, states that records indicate that no Telstra employees were present at the relevant site on the day in question. 30 The submission made on behalf of the defendant, SRA, would have had greater force if records had been produced demonstrating that no work had been carried out at the relevant part of its railway line on 23 November 1989. Of course, no such records were produced. 31 I found John Hedley to be a very straightforward witness whose testimony I have no trouble in accepting. Accordingly, I find that on 23 November 1989 employees of the defendant SRA had carried out work on the Saxonvale-Mt Thorley line in the area near the railway bridge which crossed the Broke Road and that to do so they had gained access via the locked gate. 32 I thus hold that when they left they had not secured the gate by locking the chain in position. This failure resulted in the gate being left open and John Hedley's horses were thus able to leave the property ultimately reaching the point in the Putty Road where the accident occurred. This careless action plainly constitutes a breach of duty to take care on behalf of the railway employees for whose actions, of course, the SRA is vicariously liable. 33 The circumstances of the accident were such that there was no way in which the plaintiff could avoid the collision which occurred and as he suffered injury in the accident, he is thus entitled to a judgment. 34 As I have indicated earlier, a cross claim was made by the defendant against Cy Hedley. The basis of the cross-claim is that John Hedley, as the agent of his father, failed to make proper observations when returning him at about 5 pm on 23 November 1989 which had he done so would have revealed that the gate was open. 35 In my view it may well not have been apparent on passing the gate in a motor vehicle travelling along the opposite side of the Broke Road that the gate was, in fact, at that time, not secured. I do not regard it as part of any duty cast upon John Hedley to inspect the gate after having seen SRA employees in the area earlier in the day. 36 In these circumstances I am of the view that the cross-claim must fail. 37 I turn then to the question of damages. 38 While as I have said there was some controversy as to how the plaintiff got home on the evening of the accident, the fact remains that the next day he consulted his local general practitioner, a Dr Thomas, who arranged for x-rays to be carried out by a Dr Williams. 39 Initially he was diagnosed as suffering from a whip lash injury and physiotherapy was prescribed. However, the plaintiff found that whenever the physiotherapist carried out a rotation exercise to his neck he passed out. 40 He remained off work suffering from a sore neck, dizziness and headaches as well as the episodes of passing out while undergoing physiotherapy sessions. 41 He returned to work on 27 March 1990 but as I understand the evidence soon after his return on light duties a strike occurred. During the term of the strike he suffered a penetrating injury to his right leg when a horse he was riding came into contact with a gate latch. This injury caused him to miss some six weeks of work after the end of the strike. 42 On resuming he found when driving a water cart at his employer's open cut mine, he became confused when driving over rough ground and did not know where he was. 43 He was ultimately referred to Dr Wolfenden, neurologist, who concluded that in jerking his neck in the accident he had suffered a slight degree of damage to the cervical part of the spinal cord on the right side. While Dr Wolfenden observed that a CT scan showed a small fracture through the right side of the body of the second cervical vertebra there was no displacement of any portion of that vertebra. 44 Dr Wolfenden has seen the plaintiff on a number of occasions, the last being on 14 December 1999. At all times Dr Wolfenden maintained his diagnosis which was supported by reflex changes in the plaintiff's body consistent with his diagnosis of spinal cord damage but he certified him unfit to do heavy work. 45 I should add that not only did Dr Wolfenden note the reflex changes to which I have referred but also took into account pins and needles in his fingers which he believed to be consistent with the diagnosis he had made. 46 Dr Dan, neurosurgeon, was of the view that the headaches of which the plaintiff complained were related to injuries to his occipital nerves which were caused in the accident. He was of the view that the cause of the blackouts which had occurred during the cervical rotation at the physiotherapist were most likely explained by kinking of the vertebral artery which runs through the cervical vertebrae, again related to the accident. 47 He was of the view that the plaintiff was unfit for work involving heavy lifting or working in confined spaces or avoiding driving because of the problems involved with head movements. 48 While the plaintiff complained of feeling depressed, Dr Lambeth, psychiatrist, found no psychiatric disorder although he felt that earlier in the piece he may have suffered an adjustment disorder with depressed mood. 49 I have referred only to the views of Dr Wolfenden and Dr Dan because neither are dependent upon the existence of any cervical fracture. 50 The defendant had the plaintiff examined by Dr Korber, radiologist, whose x-rays and CT scan procedures resulted in him concluding that he disagreed with any diagnosis of a fracture in the upper cervical spine. He noted Dr Wolfenden's diagnosis that the plaintiff had a cervical spinal cord injury and observed that such a lesion would not be visible on any of the imaging performed so far. 51 The plaintiff gave evidence which was consistent with the history of symptoms noted by Drs Wolfenden and Dan. Accordingly I have no difficulty in finding that the plaintiff suffers from either a cervical spinal cord injury and/or a kinked vertebral artery and that he is unfit for heavy work of the type he carried out in the coal mine. 52 However, equally, I am of the view that he is fit for light work and in reality has been since his final return to work prior to the episode when driving the water cart that is he has been fit for light work since 27 March 1990. 53 The prime challenge made to the plaintiff's case on damages for economic loss involved his participation in entrepreneurial activities following his cessation of work at the coal mine. 54 To place this challenge in context it is necessary to review the plaintiff's history in this regard. 55 The plaintiff was born on 19 April 1948. He left school part way through third year. Thereafter he worked first for his parents on their farm then at a saw mill, then as a self employed truck driver. He also drove a bus during which time, oddly enough, he drove a school bus in which the witness John Hedley, when a school boy, travelled. 56 He commenced farming in 1971 or 1972 when he acquired his first farm. In 1977 he commenced work as a coal miner at the Lemington coal mine as a shift worker. He continued his farming activities while working at the Lemington mine which included growing corn and lucerne and running beef cattle at the same time. He continued to run a trucking business. 57 On 30 May 1988 he commenced work with Drayton Coal Pty Limited who, as has already been mentioned, were his employers at the time of the accident. Because the nature of his work as a coal miner was shift work, the plaintiff was able to carry out farm work at week ends and run trucks five days a week to the markets. 58 At the time of the accident he had three trucks consisting of two semi trailers and a tabletop truck employing one driver, as I understand the evidence, on a full time basis and a casual driver. He himself drove a truck doing deliveries. He was running between 250 and 300 breeding cattle on his property. 59 Following the accident because of the closure of a local timber yard and brick works and also because I understand, the plaintiff's inability to drive trucks, he ceased his trucking business and sold the trucks. However, he kept his cattle farm running. 60 In 1993 he commenced a further rural business, namely that of breeding and selling ostriches. That continued until 1997 when the ostrich market collapsed. 61 Thereafter he started turkey farming - a business in which he is still engaged. Turkey farming basically consists of raising turkey chickens (if that is the right expression) supplied by a major company (in this instance Steggles) until they reach a stage where they can be marketed. He is paid a fee for so doing and as I understand it, feed is supplied by Steggles. When the turkey reaches an appropriate stage of their development they are removed by Steggles and replaced by turkey chickens. Thus the process goes on. 62 One extraordinary business run by the plaintiff since his accident was that of a hair dressing salon which he purchased to enable his daughter to complete her hair dressing course. He sold that business when it was no longer necessary for her to pursue that occupation. 63 During his time as a turkey breeder, the plaintiff travelled within this State and interstate on occasions. However, it was his case that had he not been injured on 23 November 1989 he would always have retained his business as a coal miner because the nature of the shift work was such that he was able, (as he had been able in the past) to carry out his entrepreneurial rural activities at the same time as working as a coal miner. He received assistance, it appears on a voluntary basis, from his son during a great part of the post-accident period. 64 A good deal of cross-examination was directed to the plaintiff as to the time he has expended since he suffered injury, on his various rural ventures. The plaintiff, at all times, maintained that the time he spent on those ventures would not have prevented him, if he was fit so to do, to carry out the work of a coal miner. 65 I accept the plaintiff as a witness of truth. While the records kept relating to his various businesses caused the accountants retained by the defendant, difficulty in carrying out a proper analysis of the profitability of his business, the fact remains that his claim is based on the simple proposition that had he remained uninjured he would have kept working as a coal miner as well as continuing as he had in the past, his other business activities. 66 I should add that the plaintiff's evidence as to the accounting practices of his business was confirmed by the evidence given by his wife who assisted in the management of this business. It is not part of the plaintiff's claim that he has suffered loss in his entrepreneurial ventures as a consequence of his injury. 67 However, the report of the accountants retained by the defendant included an observation that "a review suggested of the plaintiff's businesses have not been profitable." 68 As I have said I accept the plaintiff. I find that had he not been injured he would have continued work as a coal miner and at the same time continued as he had in the past, to carry out his business activities between shifts and at week ends. It is on this basis that I proceed to assess damages. 69 The plaintiff's out of pocket expenses were agreed in the sum of $5,448 and I award that sum. 70 I turn then to the question of past economic loss. Had the plaintiff continued to work at the Drayton open cut mine from the date of the accident to the date of trial, it is agreed that he would have been able to earn 93.97% of wages earned by comparable employees he was totally incapacitated for a period of nineteen weeks from the date of the accident. 71 On the basis of the percentage he would have earned as compared to comparable workers for this period of nineteen weeks a figure of $11,070 emerges. From the expiration of that period of nineteen weeks to date of trial I find that the plaintiff has been partially incapacitated for work. Adopting the approach taken by the majority of the High Court in Dessent v The Commonwealth of Australia (1977) 51 ALJR 482 at 487 I find that the plaintiff had a loss of earning capacity of not less than forty percent of his full capacity. 72 Again, using the ratio of 93.97% the plaintiff, had he worked during that period, would have earned $471,902.30. Assuming that he was able to earn sixty percent of his full earning capacity during that period I calculate his loss during that period to be $188,761. Accordingly, adding his loss during the period of total incapacity to that figure, a figure of $199,831 emerges. 73 Because this is a claim at common law uninhibited by provisions of either the Workers' Comensation or Motor Vehicles Acts the plaintiff is entitled to interest on this sum. Allowing half the Supreme Court rate of interest that is 7.25 percent for 10.75 years the sum of $155,743 emerges. 74 I turn then to future economic loss. At the date of trial, the plaintiff was aged fifty-two. It was agreed that he would have been earning if employed as a coal miner, 93.97 percent of comparable employee. This gives rise to $1,005 per week. Again assuming that his loss of earning capacity was not less than forty percent of his full capacity a figure of $603 is thus calculated as his present capacity to earn on the open labour market having regard to his disability that is his present loss is $402 per week. 75 Assuming the plaintiff would have to retire from the mining industry at aged sixty, the correct multiplier to be applied is 358 on 3 percent actuarial tables giving rise to a raw figure for future loss of $143,916. Allowing fifteen percent discount for vicissitudes a figure of $122,328 emerges and I award him this sum under this head. 76 I turn then to general damages. The plaintiff, as I have said, is now aged fifty-two years. On the 1998 mortality tables the plaintiff has a life expectancy of 28.78 years. I accept that the plaintiff has suffered severe headaches for over ten years, has had black outs and was depressed in the early years after his accident. With the exception of the depression which I believe is now past I accept that he will suffer from headaches and occasional black outs in the future. As I have already mentioned this case is not governed by the statutory caps which exist in cases involving the implementation of either the Workers' Compensation or Motor Vehicle Acts and is one for assessment at common law. 77 Taking into account the plaintiff's age, life expectancy, pain and suffering and loss of amenities of life I assess the plaintiff's general damages in the sum of $125,000. I have taken into account that the plaintiff's entrepreneurial ventures as well as his employment as a coal miner left him no time to take part in any sporting or other recreational activities before the accident. 78 Being a claim at common law I find that the plaintiff is entitled to interest on half that sum for his past general damage. Thus I make the following calculation - $62,500 x 10.75 x 2% = $13,437. 79 I tabulate the plaintiff's damages as follows: