McLellan v Queensland Rail[2001] QDC 58

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In the late morning of the 25^th September 1995, the plaintiffs, John Thomas McLellan (the first plaintiff) and Matthew Brayton (the second plaintiff) were injured when they rode their trail bikes into a fire lit by the defendant. The fire was part of a controlled burn being conducted by the defendant in the railway corridor at Curra north of Gympie, for the purposes of reducing dead grass and vegetation thus preventing accidental fire outbreak.

2. [2]
   The plaintiffs allege that the defendant owed them (or a class of persons such as them) a duty of care which it breached in the manner particularised in paragraphs 16 of the Plaints (as amended by leave at the start of the trial by the addition of two new particulars (h) and (i)). As well as the claim based on negligence of the defendant, the plaintiffs further allege a breach of statutory duty particularised in paragraph 17 of the Plaints as a breach of s. 72 of the Fire Service Act 1990. Prior to lighting the fire the defendant had obtained a permit as required by the Act. The permit is Exhibit 23. It is common ground that whereas the permit contains a condition that 10 persons be in attendance at the fire, in fact only seven were present.

3. [3]
   Mr Bell Q.C. for the defendant submitted at the outset that s. 74 of the Act makes it clear that the Act does not impose any liability beyond that at common law. I agree with his submission that the purpose of s. 74 is to excuse liability that would otherwise exist at common law if certain statutory preconditions are satisfied. It does not follow that if those conditions are not satisfied that a defendant would not otherwise be liable. Mr Allan for the plaintiffs in effect conceded the correctness of this proposition in his closing argument.

The Plaintiffs’ Case

4. [4]
   Critical to the plaintiffs’ case is the evidence of both plaintiffs that they had no warning of a fire and that, in effect, they found themselves in flames and trapped before appreciating the presence of fire. At the time, the first plaintiff was 12; his date of birth is 4^th March 1983. The second plaintiff was 14. He was born on 23^rd September 1981. The plaintiffs commenced their journey that morning in O'Dea Road, Curra where they both lived at the time. Neither plaintiff mentioned an actual time when the journey commenced, but I am satisfied on all the evidence it was mid-morning. Together with their friend Tim Anderson who was also 14, they decided to ride their trail bikes to a waterhole which was some 5 to 6 kilometres north of the Queensland Rail Access Point on Curra Road depicted in Exhibit 1 (the plan prepared by the Queensland Rail investigator Mr Ford the following day). There is some dispute as to how they proceeded at the start of their journey; however this issue is minor in all the circumstances. The plaintiffs say they wheeled their bikes down to Curra Road, turned left; and then proceeded down Curra Road to a point just prior to Mr Hornery’s gate. The gate is depicted in Exhibit 15, and it is common ground that the gate was built at that time. The gate opens to an area of driveway which is part of Mr Hornery’s property. To the left the track proceeds north and eventually merges with the access road in the corridor owned by the defendant. The plaintiffs and Anderson turned right just before the gate and proceeded in a southerly direction along an area described by the first plaintiff as Bob Bailey’s driveway. They then proceeded up a defined track onto the defendant’s access road, and turned left. I viewed the area at the start of the trial. There is no dispute that the area is now overgrown with vegetation, and a barbed wire fence has been built roughly on the boundary of the access road which would now prevent access onto the defendant’s access road by that route. The first plaintiff’s brother gave evidence, which was not disputed, that he assisted Mr Hornery (who was then an employee of the defendant) to build that fence approximately a month after the incident. From that point the plaintiffs rode their trail bikes in a northerly direction towards the Bruce Highway as depicted in Exhibit 1. The first plaintiff was in front, and Anderson was sitting behind him, and the second plaintiff was 10-15 metres behind. No-one had helmets. They wore tee-shirts and shorts and were barefoot. I am satisfied that they rode at a constant speed of at least 45 kph to the point where they found themselves in fire. They proceeded along the access road which comes to a moderate crest at which the road bends to the right. I am satisfied that a rider’s vision of the access road ahead from the point of the crest would be restricted as the rider proceeded up to the crest and the bend, because of the natural lie of the land. The distance from where the plaintiffs entered the access road to the crest was not the subject of any direct evidence, but I am satisfied on the basis of the evidence given by the defendant’s employees who were present that day, that it was a distance of at least 1,000 metres. From the crest, I accept there is a clear view of the access road ahead for a considerable distance. The road slopes slightly downwards but is straight, more or less down to a point where the rail line crosses the Highway.

5. [5]
   I find that that position at the crest is roughly aligned with the abutment of an old wooden bridge to the left of the access road as one proceeds north; and at a point directly in line with a Queensland Rail electrical box which I accept on the basis of the evidence of Mr Edwards was 190.7 kilometres from Roma Street Station in Brisbane.

Analysis of the Evidence

6. [6]
   As I have said it is critical to the plaintiffs’ case that as they approached that crest, neither had any warning of a fire ahead. The first plaintiff (who was in front) told me that as they came around the bend, it was 50-60 metres before they hit fire; Initially he told me it was 100 metres (T.67 l.22) but settled on 50-60 metres. At that point he was travelling at about 60 kph and Anderson jumped off. He says he first saw smoke just before he got to the bend (T.63 l.56). It looked “far away on the left”. He thought it was coming from Pulsen’s property, which is a grazing property immediately adjoining the railway corridor and depicted in Exhibit 15 as “View north from accident scene”. He says he was into the flames about 20 metres when Anderson jumped, and he then rode another 50 metres in flames to a point where “the flames actually dropped quite a bit”. He then abandoned his bike and proceeded up onto the tracks where I find he encountered Mr Cook, who was the supervisor in charge of the burn on that day. The second plaintiff says he got to a point 40-50 metres past the crest when “a lot of smoke all of a sudden started coming over, then flames”. He says he did not see smoke until he got to the crest. He says that he could not see in the smoke; he pulled his shirt over his head, and abandoned his bike he thinks about 30 or 40 metres into the fire. He ran up the embankment on his right onto the railway track.

7. [7]
   Mr Ford conducted an investigation on behalf of the defendant the next day. He produced Exhibit 1 (which is not to scale) and took the photographs in Exhibit 15. I find that he conducted an objective and thorough investigation and I accept his evidence. His evidence was not seriously challenged by Mr Allen. On the basis of his evidence I find that after the incident, the first plaintiff’s motorcycle was stopped at a point 190.95 kilometres from Roma Street Station, and the second plaintiff’s bike (which was burnt out) was at a point 190.92 kilometres from Roma Street. Mr Ford was able to make these calculations by reference to electric cable pylons along the track which are 60 metres apart, and all numbered specifically by reference to an exact distance from Roma Street Station.

8. [8]
   It follows as a simple mathematical calculation that the first plaintiff’s bike ended up at a point 250 metres from the crest, and the second plaintiff’s bike at a point 220 metres from the crest.

9. [9]
   To assess the reliability of the plaintiff’s evidence, it is necessary for me to make findings of fact in relation to the size and intensity of the fire being conducted by the defendant just prior to the plaintiffs sustaining their burn injuries.

10. [10]
    The defendant had seven men on site. Mr Cook was the supervisor. He gave evidence that he and his team had been conducting controlled burns in the railway corridor north from Gympie for some days prior to 25^th September 1995. He told me that the gang had commenced burning that morning at a point approximately 600 metres south of Hornery’s property. I am satisfied that Hornery’s property is roughly in the position as drawn by Mr Ford in Exhibit 1 just north of the access point on Curra Road. The method adopted was to slash along the fence line to the left of the access road, and to light the fire from the fence line proceeding north. He was the lighter, using a hand held burner. As he walked slowly ahead, he constantly checked the fire which was burning on an angle towards the access road and up the railway embankment. It is common ground  that the grass and vegetation was considerable. Mr Cook said there was a lot of dead grass as a result of a series of frosts in winter. There was a considerable amount of green vegetation as well.

11. [11]
    Mr Doran and Mr Russ were operating two tractors as part of the gang. Mr Doran’s tractor had a blade in front for clearing away burning logs and heavy clumps of vegetation, and a 600 litre water tank with high pressure hose which he was to use if the fire jumped the break or caught on to a fence post. Mr Russ was approximately 100 metres south in the direction of Curra Road. His tractor was equipped with a slasher. Mr Doran’s tractor was near the fence line, and close to the abutment of the old railway bridge at approximately the position marked B on Exhibit 1. The remaining four men were with the gang truck ahead of the fire to attend to any fires that jumped the track. The truck was equipped with a 2,000 litre water tank, and four portable knapsacks for use if necessary. Messrs Doran, Christensen and Kerridge gave oral evidence, as well as Mr Cook. Mr Ford took sworn statements from all members of the gang. The statements of Mr Russ and Messrs Eisel and Hoffman were tendered by consent. In relation to Russ, Mr Allen conceded fairly that he had been avoiding service of a subpoena and his statement was admitted pursuant to s. 92 of the Evidence Act 1977.

12. [12]
    In relation to the evidence of the members of the gang who gave oral evidence, there are a number of consistent features. All say they commenced the burn that day at some point south of Hornery’s. This evidence is significant, because the plaintiffs say they saw nothing to suggest a burn that day along the access track leading up to the bend, although neither was positive about this which is surprising. The photographs in Exhibit 15 taken next day by Mr Ford indicate burning up to the crest near the old bridge remains. There were no photographs taken by Mr Ford of the route travelled by the plaintiffs prior to the crest. There are photographs of Hornery’s gate in Exhibit 15 taken the next day. In one at least there is a background view of the embankment area leading up to the access road, which does not appear to have been burnt, however it is not clear and is equivocal at best. Mr Allen addressed no submissions to this issue. Certainly, the evidence establishes that after the incident the gang continued the burn up to the highway. It seems to me to be inconsistent with common sense and the evidence to suggest that the burn started that day after the bend in the road and the crest, and, indeed Mr Allen made no such submission. I am satisfied that the burn had proceeded along the route taken by the plaintiffs from at least the access point on Curra Road marked on Exhibit 1 and that the plaintiffs could not have failed to notice evidence of burning.

13. [13]
    Messrs Cook, Doran, Christensen and Kerridge gave evidence of significant quantities of smoke and flame at the time of the incident. Mr Edwards, whose extensive expertise in rural fire behaviour and management was not challenged, inspected the scene on the 20^th March 2001. He also inspected the photographs in Exhibit 15. He concluded that the fire, evidenced by what he saw at the scene and, in particular the photographs, would have produced a considerable amount of smoke which would have been obvious from the point on the access road adjacent to the electrical box. I accept his evidence and the evidence of the railway employees on this point.

14. [14]
    Mr Mounfield gave expert evidence for the defendant. He is the Manager of Emergency Services for the defendant. He has extensive experience, both practical and academic in rural fire control and management. He undertook a similar exercise to that undertaken by Mr Edwards. He concluded that the fire would have been quite intense. He explained that the corridor contained some introduced grass species which have deep root systems, and create considerable smoke when burnt particularly paspalum which is very high in water content. In his opinion flames and heavy smoke would have been clearly visible. In fact he thought smoke would be visible from Gympie, some 18 kilometres to the south. I accept his evidence.

15. [15]
    It follows that the plaintiffs’ evidence in a number of critical respects, cannot be accepted. I find that it is more probable than not that there was overwhelming evidence of burn off along the route taken by them prior to the crest. Their evidence about smoke cannot be accepted. It is simply fanciful and conflicts with the credible evidence to which I have earlier referred. Their evidence of not seeing fire and smoke from the crest prior to becoming trapped is similarly incredible. I reject it on the basis that it conflicts with the evidence that I do accept. Finally, the second plaintiff says that he did see someone off to the left of the track as he came around the bend. This was probably Mr Doran. It is beyond credibility that he did not also see the tractor. The defendant submits that I will find that the plaintiffs rode deliberately into a fire that they must have seen well in advance of the fire front. Mr Bell does not rely on Mr Doran’s evidence that he saw the riders stop, go back along the track and then return at speed and ride into the fire. He said no such thing to Mr Ford the next day. He positively asserted that he did not see the boys enter the fire. His evidence before me to the contrary must be rejected. On the other hand, Mr Russ, who was apparently reluctant to come to court, swore in his statement dated 27^th September 1995, that he was watching the fire and he saw “a motor bike (shoot) past me from the southern end … Then before I could do anything, another bike flew past”. The plaintiffs’ evidence is that they did not slow down at all before reaching the fire. The passenger Tim Anderson did not give evidence at the trial, and I draw no adverse inference against either plaintiff because of that. However, the uncontested evidence is that soon after the first plaintiff’s bike entered the fire, and at a time when it was travelling at 60 kph, he jumped off. He was not injured. I agree with Mr Bell that this is a telling fact against the plaintiffs. Why would he jump off a bike travelling at 60 kph when he had no helmet and no protective clothing; unless it was to escape a more serious danger. I have concluded that both plaintiffs must have travelled a considerable distance from the crest towards the fire before entering fire. This conclusion is irresistible when one has regard to the evidence from Mr Edwards and Mr Ford as to the distances from the crest to where the bikes were abandoned, combined with the plaintiffs’ evidence taken at its highest. In those circumstances, Anderson must have had the same view and the same time as the first plaintiff to observe what was coming as they proceeded down the track. I am satisfied that it is more probable than not that when he appreciated that the first plaintiff was going to drive into the fire, he attempted to escape.

16. [16]
    There were a number of other areas of factual dispute which are peripheral to the critical evidence to which I have just referred. I will deal with these issues quite quickly. There was dispute about the wind speed at the time. Exhibit 2 from the Bureau of Meteorology gives the wind speed at Gympie at 9.00am at 87 kph and at 3.00pm at 22 kph. Curra is some 18 kilometres to the north and therefore Exhibit 2 is of limited weight. The plaintiffs and a number of witnesses for the plaintiff say that it was very windy and hot. The railway employees all say that wind was not a factor; and that the smoke was going straight up. I find that it is more probable than not that there was some wind, but that it was not a significant factor in relation to the fire. The plaintiffs submit that some form of barricade, or at least a person to warn people approaching from the south of fire ahead, should have been in place. The plaintiffs say that if there was a barricade, they would have turned back. The expert witnesses Mr Edward and Mr Mounfield gave evidence that any form of barricade would be unsafe practice because not only could it prevent the gang escaping if the fire did get out of control, it would also impede access to the fire by emergency vehicles. The defendant acknowledged from the outset of the trial that it was aware that people were entering onto the railway corridor and using it for trail bike and vehicle travel. Mr Cook had noticed tyre marks; and it was not an issue that the defendant was aware that people would use the corridor for unauthorised purposes. Mr Millers gave evidence of the many openings in the fences in the relevant area and the effect of vandalism. There was uncontested evidence that at least since 1970, the defendant had no knowledge of anyone being injured in an area where it was burning off, apart from this incident. In my view, the findings I have reached in relation to the amount of smoke; and my rejection of the plaintiffs’ evidence that they had no warning, is a complete answer to the plaintiffs’ argument. I adopt Mr Edwards’ statement that it is surely not necessary to erect barricades to prevent people from entering obvious areas of rural fires. As he observed, you do not expect people to walk directly into a fire.

17. [17]
    There was also some argument directed towards the failure of the defendant to have 10 men on the job, contrary to the condition in the fire permit. The fire warden gave evidence that he inserted the figure 10 in the certificate as a result of his conversation with Mr Cook at the time he obtained the certificate on 13^th September 1995. Mr Edwards and Mr Mounfield gave evidence that seven men were more than enough to safely perform the task at hand on that day. Mr Cook, who has also had extensive experience in the use and control of fire, gave similar evidence and I accept it. He gave a very convincing explanation for having seven men at the site that day. He explained that the permit was for a month and covered a considerable range of terrain and conditions in that area. In areas where the tracks had wooden sleepers he would employ additional men with knapsacks to extinguish any burning sleepers. In this area the sleepers were concrete, so that extra men were not needed. I am satisfied on all the evidence that the method used by the defendant on that day was safe and appropriate to the circumstances.

The Law

18. [18]
    In Wyong Shire Council v. Shirt (1979-1980) 146 CLR 40 at 47-48, Mason J (as His Honour then was) said:

“In deciding whether there has been a breach of the duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff … The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have … The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable”  (my emphasis)

19. [19]
    The defendant submits that the risk of a person intentionally riding into an obvious area of smoke and fire is indeed a “far-fetched” or “fanciful” risk, so extraordinary as to be not foreseeable. It argues therefore that there was no duty of care. It argues alternatively, that if there was a duty of care owed to the plaintiffs, they have failed to establish any breach of that duty. The well known statement of principle of Mason J in Wyong quoted above assumes the existence of a duty of care; and if it is determined as a matter of fact that the risk is not foreseeable in the sense that it is “far-fetched” or “fanciful”, then it follows then the plaintiff would fail to establish a breach of the relevant duty of care. In Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431, Toohey and Gummow JJ at 454 referred to the approach of the trial judge Angel J, based on the statement of Dixon J (as His Honour then was) in Aiken v. Kingborough Corporation (1939) 62 CLR 179 at 210:

“Because the appellant was aware of the danger presented by the cliff and since she failed to exercise ordinary care for her own safety, Angel J held that the respondent was not in breach of its duty of care.”

20. [20]
    As their Honours noted (by reference to Mason J’s judgment in Wyong):

“This approach directs attention to the degree of probability of the occurrence of an accident. There is however some tension between this approach and decisions of this Court which place this factor on the scales, to be weighed against the seriousness of the foreseeable risk and the expense, difficulty and inconvenience of precautions which could be taken.”

21. [21]
    The defendant relies on the decision of the Full Court of the Supreme Court of South Australia in Wilmot v. State of South Australia (1993) Aust Torts Reports 81-259. The factual circumstances are very similar with the notable difference that the injury to the trail bike rider there came about as a result of land structure, i.e. she rode blindly over a rise which ended in a cliff, whereas in this case the danger was introduced by the defendant. In light of the findings of fact I have made I adopt the reasoning of Cox J at 62-700–62-701 where His Honour said:

“It seems to me that in these circumstances the Crown’s duty of care to any trail bike rider who chose to make use of Redbanks was a quite modest one. It did not extend to making the obviously improvised tracks safe, even for inexperienced riders. It was a relevant consideration that the kind of risk of injury to trail bike riders that … could have (been) foreseen (by the respondent) … could just as easily have been foreseen by the riders themselves.”

22. [22]
    This line of reasoning in my respectful opinion reconciles the approach based on the degree of probability of the occurrence of the accident with the approach which places this factor on the scales as it were in accordance with the Mason J test in Wyong. The risk was indeed “far fetched” or was a risk that “existed only in the case of someone ignoring the obvious” (per Toohey and Gummow JJ in Romeo (supra.) at 455), or the plaintiffs’ conduct was “foolhardy in the extreme” (per the Court in Borland v. Makauskas & Anor [2000] QCA 521 at p 7 of the judgment). As Hayne J observed in Romeo (supra.) at 488:

“The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.

The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.”

23. [23]
    It is in that sense that the defendant argues that the plaintiff has not established the existence of a duty. Whichever way it is viewed, either as the failure to establish the existence of a duty which is a “duty to take reasonable care”; or having established the existence of a duty in the sense of the appropriate degree of proximity; but a failure to establish foreseeability because the plaintiffs’ conduct was so foolhardy it does not matter. The plaintiffs’ claims must fail.

24. [24]
    There is nothing in Nagle v. Rottnest Island Authority (1992-1993) 177 CLR 423 which would alter my conclusions; particularly in light of the analysis of the judgments in that case undertaken by members of the High Court in Romeo.

Quantum

25. [25]
    Both plaintiffs suffered burns to the body in the incident. The first plaintiff suffered serious burns to his left leg and thigh, his left arm and the left side of his face. He undoubtedly suffered a great deal of pain in the course of his long recovery in hospital. The areas of scarring now remain sensitive to sunlight, thus preventing him from pursuing any occupation which would require him to work outside. The reports of clinical psychologist Bradley Johnson confirm that the first plaintiff has had a long history of learning disorders resulting in him being semi-illiterate. When he left school he obtained employment at the local meatworks. His brother who still works there arranged the job for him. He left that employment after some months on the advice of his general practitioner. The doctor refers to a number of cuts in the scarred area which failed to heal, and some infections as a result of the cold. The evidence of his older brother strongly suggests to me that the first plaintiff left the meatworks for psychological reasons, unrelated to the injuries. The general practitioner and Dr Harris, the plastic surgeon, also refer to the need for him to avoid direct skin contact with chemicals in the work place. The first plaintiff is presently undertaking a TAFE course designed to assist him to obtain an apprenticeship as a motor mechanic. He clearly enjoys working with cars, and since leaving the meatworks he has worked on vehicles at home without ill effect. He is prepared to wear overalls and gloves at work to avoid any contact with chemicals. I accept the opinion of Krista O'Connor the occupational therapist that the first plaintiff is able to work in this area, provided he takes proper precautions. The parties reached agreement as to all heads of damages with the exception of future economic loss for the first plaintiff.

26. [26]
    In relation to the second plaintiff damages under all heads are agreed at $10,000, and I assess damages in that amount. In relation to the first plaintiff, he is entitled to a modest global award for future economic loss taking into account general and personal contingencies, and I assess $35,000 under this head. The first plaintiff’s damages as assessed or agreed are as follows:

1. (i)
   Pain and suffering, etc. $45,000.00

2. (ii)
   Interest 1,837.50

3. (iii)
   Specials 4362.00

4. (iv)
   Interest 1,102.50

5. (v)
   Wilson v. Macleay 4,400.00

6. (vi)
   Interest 462.00

7. (vii)
   Griffiths v. Kerkemeyer 5,460.00

8. (viii)
   Interest 1,433.00

9. (ix)
   Future expenses 3,000.00

10. (x)
    Past economic loss 4,000.00

11. (xi)
    Future economic loss   35,000.00

  $106,057.00

27. [27]
    The orders of the Court will be:

1. The first and second plaintiffs’ claims are dismissed.

2. The plaintiffs will pay the defendant’s costs of an incidental to the claim to be assessed or agreed on the standard basis.