Locolines Edition 57

DIVISIONAL EXECUTIVE DIVISIONAL SECRETARY: Marc Marotta 0414 897 314 DIVISIONAL PRESIDENT: Terry Sheedy 0417 310 400 DIVISIONAL ASSIST. SECRETARY: Jim Chrysostomou 0404 814 141 DIVISIONAL VICE PRESIDENT: John Marotta 0414 864 702 DIVISIONAL DELEGATES Metropolitan Sub-division: Kevin Duggan 0404 811 589 Paris Jolly 0422 790 624 Pacific National Sub-division: Peter Laux 0417 526 544 Pacific National (ex Freight) Sub-division: James Styles 0427 018 963 Passenger Sub-division: Wayne Hicks 0407 035 282 Judge says train driver breached duty of care . Full article Page 3 JUNE 2013 LOCO LINES Conten ts LLOCOOCO LLINESINES EDITION 57 Marc Marotta—Loco Div Secretary 3 JUNE 2013 Loco Lines is published by the Terry Sheedy—Branch / Div President 8 Locomotive Division of the Australian Rail, Tram & Bus Industry Union – Victorian Branch. See the bottom of this Jim Chrysostomou— Assist. Secretary 10 page for the Locomotive Division’s business address, telephone, e-mail and website Paris Jolly— Metro. Sub-Div Sec. 11 details. Loco Lines is distributed free to all financial members of the Wayne Hicks— V/ Line Pass Report 13 Locomotive Division. Retired Enginemen also receive the magazine for free. It is made available to non-members at a Nelsons Column 14 cost of $20.00 per year. Advertisements offering a specific benefit to Locomotive Signal Sighting Reports 28 Division members are published free of charge. Heritage groups are generally not charged for advertising or tour information. Talkback from Hinch 30 Views or opinions expressed in published contributions to Loco Scholarships 31 Lines are not necessarily those of the Union Office. We also reserve the right to alter or delete text for legal or other Where Is It …? 32 purposes. Contributions are printed at the discretion of the publisher. Letters 40 Loco Lines, or any part thereof, cannot be reproduced or distributed without the written consent of the Victorian Membership application 44 Locomotive Division. RT&BU-LD Address: Level 6, 1 Elizabeth St, Publisher Melbourne Victoria 3000 Marc Marotta Toll Free: 1800 134 095 Fax: 9682 3344 E-mail: [email protected] RTBU LOCOMOTIVE DIVISION WEBSITE www.rtbuvicloco.com.au 2 LOCO LINES JUNE 2013 Locomotive … Divisional Q. Mr Timu, [ the train driver ] how often would you encounter on the track some form of what you have Secretary described as rubbish? Would it be on a daily basis or weekly or A. Certainly a daily basis, possibly even every train you get on to, there is always rubbish on the side of March Marotta the track or in that area. It's not a rare occurrence; it's a regular, normal occurrence. Q. Do you have to make a judgment about what you are looking at, to see if there is a danger of proceed- Metropolitan Train Operator found guilty of Negligence ing, not so much because it might be a human being, but because it might derail the train? On the 12/4/13 the Supreme Court NSW handed down a A. Certainly, yes. decision against Rail Corp, the Judge ordered the sum of Q. What about the fact that, in this case, part of the $650,000 to be paid to the plaintiff and Rail Corp was ordered to object actually extended across the rail head. Did that pay the plaintiff’s costs. This judgment will have an impact on all not cause you some concern? rail operators especially Metro Trains and V/Line passenger in A. I didn't know what that object was. Victoria and the train drivers employed by them. Q. Well, the fact that you didn't know what the object was, ought to have caused you to do something to The plaintiff was struck and run over by a train at Mortdale train slow the train down until you did know, shouldn't it? station NSW on the 2/9/2006 at 3am he was badly injured and A. The object that I saw at the time, I don't obviously lost a leg below the knee. He sued Rail Corp in respect of the didn't feel as though it was a risk to either the safety incident for $1.3 million dollars. The judgment concerns itself of myself or of the train or the passengers upon the with liability and statutory issues as well as contributory negli- train. gence. The plaintiff had consumed alcohol prior to the incident, ... CCTV shows him walking on the platform and he moved to the Q. Did you have not a moment's thought as to the edge and then fell off the platform onto the rail. He was possibility that this thing sticking across the rail head conscious but was unable to move himself away and off the interrupting the bright line of the rail head, might be railway lines. The driver said he saw an object on the line when human? Did it not occur to you for a fraction of a he was approx. 100 meters from the object which he thought was second? rubbish on and near the line, he estimated that 50 meters from A. I didn't recognize it as being human, no. the object was when he realized it was a human being and Q. But you knew it was something which interrupted applied the emergency brakes. the bright line, you knew it was an object intruding into the permanent way? In evidence the driver was asked: A. Yes. Q. Right under a platform used by people? Q. ... Since you didn't know what it was did it not A. Yes. occur to you that it would be prudent to take some Q. Have you had any instruction from Rail Corp steps so that you could stop if you had to? at any time as to what you should do if you saw A. It didn't occur to me to stop. material on the track, whether it was human Q. Do you think you should have? material or otherwise? (Emphasis added) A. My only answer to that is once I realised it was a A. Specifically to that question, no one has actually human being I took the appropriate action. I can't ever said to me, if there is anyone in front of you, and second guess myself and say that, because I didn't there is a danger to persons health or their life, stop know what it was. My experience is there is a lot of the train, because that's what you are going to do. So rubbish and litter around the area and I can't keep as far as a human person, obviously, they have never pulling the train out for just anything. said anything about that because you are not going to Q. But that is all very well and you say, well, you did- do it. n't know it was a human being. But you didn't know Q. No, I am going a little further than that. You see, it was just rubbish either, did you? clearly there can be no doubt that, had you A. That is correct, I didn't. recognized it was a human being, you would have Q. And since you didn't know it was just rubbish done whatever you could to stop, instead of there there was a possibility it was a person? being in the circumstances a crucial delay between A. I didn't consider that it would be a person. you seeing it, recognising it was a human being, and Then, significantly, he gave this evidence: then attempting to stop. What I am saying to you Q. When you first saw this object on the line, did you is, were you told at any time that if you saw mate- only see the part of the object that was on the rail rial on the track, and you were not able to ex- head, or did you see more than that? clude the possibility that it was a human being, A. What I saw was really only on the rail head and that you should then stop immediately? perhaps in between the tracks. The shadows itself are (Emphasis added) from the platform and the station lighting. I really A. I don't remember ever been told that, no. couldn't see anything in that area between the rail head closest to the platform and the platform itself. JUNE 2013 LOCO LINES 3 HIS HONOUR Corp does not provide instructions to Train Drivers to apply the Q. Were you ever given any instruction about emergency brake on a train immediately once something is what you should do if you just saw rubbish on noticed on the line. And they are: the line? • Safety concerns for the public travelling on the train A. Specifically, no . (Emphasis added) 1 when the brakes are placed in emergency. • Adverse impact to the service availability What the Judge Said: • Increased repair and maintenance costs. In circumstances where striking a human being was The judges view on Mr Scotts, the acting General Manager of not the only risk but derailment of the train by operations for Rail Corp, evidence: reason of striking an inanimate object was also a risk, as Mr Timu accepted, it seems to me that Mr Mr Scott's evidence was not challenged by the Timu breached his duty of care by not taking Plaintiff. In any event, in terms of statements of emergency action (Emphasis added) when he first general principle it can be accepted as common sense saw the object and did not know what it was. and appropriate in ordinary situations. It may not be Further, since the object must have been visible on appropriate, however, at night time, adjacent to a the railhead from the moment it came into Mr railway platform, in relation to a train where there Timu's line of sight, he breached his duty of care were few passengers (as the CCTV makes clear and as by not taking emergency action at that earlier the time of the events would strongly suggest) and point, (Emphasis added) again, in circumstances where the driver could see that an object was across where he did not know what the object was: Perry at the railhead but did not know what it was.

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