New South Wales Supreme Court CITATION : Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301 HEARING DATE(S) : 14 -16 March 2005 JUDGMENT DATE : 11 April 2005 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : JUDGMENT FOR THE PLAINTIFF REDUCED FOR CONTRIBUTORY NEGLIGENCE CATCHWORDS : NEGLIGENCE - OCCUPIER - CLAIM BY TRESPASSER - MINING LEASE KNOWN BY OCCUPIER TO BE FREQUENTLY USED BY RESIDENTS AS SHORT CUT - PARTICULAR DANGER STEMMING FROM ARRANGEMENT TO STORE RAILWAY CARS WHICH NARROWED SPACE FOR TRANSIT ACROSS OPEN SIDED BRIDGE - CONSIDERABLE POTENTIAL FALL - DANGER EASILY AND ECONOMICALLY REMOVABLE - OBVIOUSNESS - CONTRIBUTORY NEGLIGENCE LEGISLATION CITED : Civil Liability Act 2002 Australian Safeway Stores Pty Ltd v Zaluzna 1987 162 CLR 479 CASES CITED : Hamilton v Nuroof (WA) Pty Ltd 1956 96 CLR 18 Wyong Shire Council v Shirt 1980 146 CLR 40 PARTIES : Trevor John Edwards v Consolidated Broken Hill Limited FILE NUMBER(S) : SC 20240/2003 B. Gross QC with R. Wilkins and D. Williams (Plaintiff) COUNSEL : J. Turnbull (Defendant) Doyle Kingston & Swift (Plaintiff) SOLICITORS : McCabe Terrill (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Monday 11 April 2005 20240/2003 - TREVOR JOHN EDWARDS v CONSOLIDATED BROKEN HILL LIMITED JUDGMENT 1 HIS HONOUR: On Wednesday 22 August 2001 at about 1.30 pm the plaintiff was riding his bicycle along a track situated on land of which the defendant was occupier. The track followed the course of a railway spur line to the western side of that line. The line and the track passed over a bridge four metres in length, which crossed a dry creek bed. The plaintiff suffered severe injury and consequent paraplegia in a fall from the bridge to the lower ground. He sued the defendant alleging that the accident was caused by its negligence. During the trial, the parties agreed upon the assessment of damages. The issues for determination are the defendant's liability for the plaintiff's damage and, if it is, whether the damages should be reduced on account of the plaintiff's contributory negligence. 2 The plaintiff was born on 31 October 1947 and hence was aged fifty three when the accident occurred. He had little formal education, leaving school at about the age of eleven. He cannot read or write. He is asthmatic. Prior to, and since, the accident he has been in receipt of a disability support pension (under various names given to this form of social security from time to time). I consider that he was a truthful witness. His ready concession of matters might be regarded as disadvantageous or might be sought to be obfuscated by a guileful or less than candid person, persuaded me that his evidence was credible and dependable. 3 The relevant land occupied by the defendant is part of mining leases which effectively divide South Broken Hill from the main city of (North) Broken Hill. The rail spur departs from a main line and extends some 645 metres. For some years (at least ten), by agreement between the defendant and National Rail, the spur was used for the storage (or "parking") of rail wagons, otherwise it was not used. There was no set routine for the storage and removal of wagons which were from time to time shunted to and from the spur line. When the plaintiff was injured, there were wagons so stored and in particular they occupied the four metre bridge abovementioned. 4 A public road, known both as Crystal Street and Silver City Highway passes parallel to the main railway line to its north providing an access and egress between North and South Broken Hill. It crosses the main line by means of an overbridge and has vehicular, cycle and pedestrian carriageways. To achieve the crossing relatively steep grades have been constructed. The strip of road including the crossing is referred to as South Road. Unless approaching from an adjoining road (Gypsum Street) a vehicle passing between North and South Broken Hill would have to pass along South Road. 5 Cyclists and pedestrians have an alternative. Describing a crossing from north to south, they could exit Crystal Street some distance before the South Road, turning onto another public road, Old South Road. At the end of the bitumen seal of this road is the main railway line. A cyclist would need to dismount and walk across the rails but thereafter a relatively flat path followed beside the spur line to a mine entrance by which point the traveller had arrived in Bonanza Street, South Broken Hill. 6 I am satisfied that this route through the defendant's lease was in frequent and common use by cyclists and pedestrians, both adults and school children. The defendant's site manager, Mr Ogden, was aware that the spur line track was used as a short cut between the town and South Broken Hill (Exhibit 3). There was no challenge to the evidence that the route was in common use nor to the facts that it was shorter than the public road route and avoided the need to ascend the steep road grades. 7 The many people, including the plaintiff, who used the shortcut were trespassers on the defendant's mining lease. Nevertheless a duty of care was owed by the defendant to them: Australian Safeway Stores Pty Limited v Zaluzna 1987 162 CLR 479. The status of the plaintiff as a trespasser is relevant to the content of the duty, but it is also relevant that the plaintiff was but one of many whom the defendant knew were availing themselves of the shortcut. 8 On the day of the plaintiff's accident there was a string of rail cars parked along the spur line, occupying in particular that part of the line which was on the bridge over the dry creek bed. The plaintiff cannot recall, and there is no evidence from other source, whether the particular piece of rolling stock on the bridge was a flat car, a boxcar or other. Photographs taken a little over a month later show a string of wagons in the location, most of which are flat cars and perhaps at the critical crossing point the particular wagon at the time of the plaintiff's accident was a flat car but the issues do not depend upon that fact. 9 What the photographs do show, and I find was the fact on the occasion, is that the presence of any rail car would create a dramatic narrowing of the space or "envelope" through which the plaintiff cyclist had to pass between the rail car and the precipitous drop to the creek bed. 10 The initial question is whether the circumstances demonstrate that the defendant was negligent. The Civil Liability Act 2002 applies and unreferenced section numbers are to the provisions of that Act. It is convenient to express my findings in terms of the general principles legislated in s 5B. 11 The risk was that the narrowing of the gap through which a cyclist had to pass would lead to a fall over the unfenced side of the path to the creek bed below. That this might happen was foreseeable. Foreseeability is an undemanding test: Wyong Shire Council v Shirt 1980 146 CLR 40, but in this case the plaintiff's contention is strengthened by the evidence of an engineer (Mr Kiernan) called by the defendant, who testified that "it is obvious that if you reduce the gap then the risk increases". The reduction of the gap was a direct consequence of parking rail cars across the bridge. 12 The distance of potential fall (4.9 metres) itself demonstrates that the risk of not successfully passing through the reduced space was not insignificant. 13 Should the defendant have taken precautions? I am bound but not limited to consider the matters set out in s 5B(2). I agree with Mr Kiernan that the risk was obvious and if the rail cars were put in that position then the probability of harm, if care was not taken equally obvious. The potential of a nearly five metre fall makes likely seriousness of harm self evident. 14 The simplest way of avoiding the risk would have been not to park rail cars across the bridge. This involves not using only a small four metre portion of the available spur track. It was not suggested that the whole of the spur was needed for rail car storage. When placed they needed to be shunted into position and there was no perceptible reason why, if it was necessary to use the spur beyond the bridge, the cars could not be separated at that point so as to leave a clearance at that location. 15 Since the plaintiff's accident and a similar fall a few months earlier, about which Ms Oates testified (although there is no evidence that the defendant was aware of this prior to the plaintiff's accident) fencing has been placed at either end of the bridge to inhibit riding across it. There is evidence that this has not inhibited a dismounted rider from walking around the barrier with his cycle, and, I infer, pedestrians unencumbered by bicycles could do likewise. Cracker dust (crushed rock material) has been placed across the rail line in two locations to prevent rail wagon access. 16 I am conscious that this subsequent action is limited as to the use that can be made of it (s 5C) but it is demonstrative of the practicability of avoiding the risk and the very light burden involved in taking steps which were both practicable and would have avoided the risk. 17 I am obliged to consider the social utility of the activity that created the risk of harm. No doubt there is social utility in legitimate commercial activity and the parking of the wagons was an adjunct of what I would infer was the interest of the mining company in its relations with the transport facility which led to the seemingly casual arrangement that wagons could be stored on the spur line. This and the consideration demanded by s 5B(2) are relevant to whether a reasonable person in the defendant's position would have taken appropriate precautions, which in this case amounts to removing the risk created by parking the wagons along a four metre open sided bridge known to be frequently used by cyclists and pedestrians. 18 As Mr Kiernan remarked, and again I agree, " If the carriages weren't there the accident wouldn't have occurred". 19 I should refer to evidence that warning signs were also erected after the plaintiff's accident. They do not seem to have survived but the vacant poles still stand in position. Although in a division of the Act entitled "assumption of the risk" there is provision negativing the duty of a defendant to warn of an obvious risk (and as I consider the risk was obvious) I do not find that the defendant was negligent in failing to erect warning signs beforehand (s 5H). 20 The plaintiff testified that he was wearing a loose fitting jumper which caught on something, probably protruding, on the carriage as he passed it in his traverse of the bridge. This threw him off balance with the consequence that he fell to the creek bed below. It is true that on occasions he is recorded as simply saying that he fell off the bridge, but these laconic descriptions were sufficient to the occasions, for example, giving a history to a medical examiner whom he would expect to be focussed upon his injury rather than the detail of what precipitated the fall. 21 I appreciate that in cross examination the plaintiff was taken to a statement recorded by a Dr Buckley, in which he is recorded as saying, "I don't know what happened. I just fell off" and he agreed that this was a correct statement of what occurred. If "what occurred" refers to what the plaintiff told Dr Buckley, then that is literally correct, but the sense of the question was clearly that there was an omission to mention the precipitating cause of catching the jumper on some protrusion on the carriage. I am satisfied that the plaintiff did not appreciate the latter implication and I do not find that he resiled from his description of how the accident occurred which he had given in his evidence in chief. 22 I accept the plaintiff's evidence concerning the jumper "snagging" on something on the rail carriage. I am fortified in this conclusion by the recording in the Royal Adelaide Hospital notes on 18 October 2001 of an interview of the plaintiff by a social worker who noted that there appeared to be (unsourced) various accounts of how the plaintiff's accident happened and direct detail was sought from the plaintiff. The hospital notes record: "He told me that he was taking a shortcut on his bike across a railway bridge on which was parked rail cars. He was riding his pushbike along next to the carriages when his jumper caught on a carriage and the bike went from under him over the side of the bridge and he tried to grab hold of the carriage but missed and then followed his bike onto the ground below". 23 I have also to take account of the approach to causation specified in s 5D. I am satisfied that the failure of the defendant to obviate the risk caused the plaintiff's accident. Indeed, there is much to be said for the proposition that, given the foresight that parking the rail cars would "squeeze" any transiting cyclist between the rail car and a long drop and that the plaintiff in fact fell down this particular drop, there would be reason to conclude that he must have fallen as a result of being so "squeezed" even if he could not give the evidence which I have accepted: cf Hamilton v Nuroof (WA) Pty Limited 1956 96 CLR 18. 24 The defendant submitted that it was not liable because the plaintiff was injured as a result of the materialization of an obvious risk of a dangerous recreational activity engaged in by him. The riding of a bicycle scarcely fits the concept of what I would understand the legislature to have intended to have comprehended by its expression "dangerous recreational activity". The risk in this case of falling from the bridge because the space for passage had been limited by the presence of rail cars is not a risk of bicycle riding as such, rather it is a risk created by the defendant's activity in allowing the storing rail cars in that position. Section 5L has no application to the present circumstances. 25 In summary I am satisfied that the parking of a rail car so as to narrow the passage of cyclists, known to frequently pass along the track route, created a foreseeable risk which was practicable and economical to avoid, and which a reasonable occupier would have taken steps to so avoid. It was that risk which fell due as the plaintiff attempted his passage on the particular occasion and the defendant is liable for the damage which he sustained as a result of its negligence. 26 The second issue is whether the plaintiff's damages should be reduced on account of contributory negligence. I note and apply the principles articulated in s 5R. 27 I accept the evidence of the plaintiff that he had safely navigated his passage on his bicycle in similar circumstances on many occasions and I further accept that he was not conscious of the risk. I find however, that he should have appreciated the risk. Insofar as I have held that a person in the defendant's position who turned the mind to the situation should have perceived the risk, so also should the plaintiff, if he turned his mind to it, have appreciated it. 28 The evidence explored alternatives including abandoning the journey and returning to use the (New) South Road, dismounting and carrying the bicycle across the four metre bridge span, or moving across the bridge on foot while straddling the cycle (a somewhat awkward exercise as a performance in mime by counsel showed). I am unpersuaded that the failure of the plaintiff to adopt any of these postulated alternatives extinguished the liability of the defendant, but I am satisfied that the plaintiff has been shown to have failed to take reasonable care for his own safety, in failing to take sufficient care by having elected to ride past the rail car over the bridge, to ensure that his clothing was kept clear of the rail car as he passed it. 29 Mr Gross QC for the plaintiff submitted that contributory negligence was not shown. Mr Turnbull of counsel for the defendant submitted that in the event that contributory negligence was being assessed, the plaintiff should have "by far" the greater share. 30 I do not accept either submission. 31 The task is to compare in proportion the respective shares of the plaintiff and defendant in their responsibilities for the damage and I will record my finding but I need to advert to one other matter. 32 At the conclusion of the hearing on 16 March I drew to the attention of counsel that, by chance, I would be in Broken Hill during the following week and it was expressly agreed that both parties consented to my viewing the scene if I so elected, and that the view may be taken in the absence of any representative on their behalf. 33 On Tuesday 22 March I did so in the company of my personal staff and a sheriff's officer. Whilst I had, of course, seen what is depicted in Exhibit B (a collection of photographs) and in particular photographs numbered 17 and 18, as well as further photographs in other exhibits and sketches and the like, the actual view engendered an instructive appreciation of just how dramatically the pathway narrowed at the bridge on the "drop side" of which was nothing but the low concrete bar which gave an appearance similar to kerbing. Even if a parked wagon extended no further than to the width of the sleepers, the "squeeze" created was extreme. 34 There is nothing flexible about the measurement of the distance between the bridge and the ground below at 4.9 metres, but it was, once again, instructive to gain a real impression of just what a significant fall was involved and might be anticipated if one turned one's mind to it. 35 The consequence of the view was to fortify my finding, in particular, that the parking of wagons in the circumstances described would create a considerable and obvious risk. It was of passing interest to note that tracks in the dust suggested that cyclists continued to utilize the shortcut. The observation by Mr Kiernan of one person going around the fence seemed confirmed. There was little difficulty in getting around the new barrier fence and on to the bridge. 36 I would assess the plaintiff's share of responsibility for the damage at a proportion of one third and consequently that of the defendant at two thirds. 37 The agreed damages amount to $1,825,830. 38 Having regard to my finding on contributory negligence, I direct entry of verdict and judgment for the plaintiff for $1,217,220. The defendant is ordered to pay the plaintiff's costs of action. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.