IN THE CORONERS COURT OF VICTORIA ; AT MELBOURNE Court Reference: COR 2012 004191

FINDING INTO DEATH WITH INQUEST

liorm 37 Rule 60(1) Section 67 of the Coroners Act 2008

Inquest into the Death of: Werner Viertmann

Delivered On: 4 April 2016 . Coroners Court of Victoria Del At: clivered 65 Kavanagh Street Southbank Victoria 3006 Hearing Dates: 25 March 2015 Findings of: Coroner Paresa Antoniadis SPANOS Representation: Mr T. BURNS of Counsel, instructed by Mr R. Barton of

Metro Trains Melbourne, appeared on behalf of Metro Trains Melbourne.

Police Coronial Support Unit Leading Senior Constable P, COLLINS, assisting the Coroner

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I, PARESA ANTONIADIS SPANOS, Coroner, having investigated the death of WERNER VIERTMANN

and having held an inquest in relation to this death at Melbourne on 25 March 2015

find that the identity of the deceased was WERNER VIERTMANN born on 24 January 1929, aged 83

and that the death occurred on 4 October 2012

at Laburnum Train Station, Laburnum Road, Blackburn, Victoria from:

I(a) MULTIPLE INJURIES SUSTAINED IN COLLISION WITH TRAIN

(PEDESTRIAN)

in the following circumstances:

BACKGROUND!

1. Werner Viertmann was an 83-year old retired man. He had separated from his wife in about 1988 while the couple were living in France. Mr Viertman continued to live in France until September 2010 when his neighbours became concerned about his ability to continue to live independently and informed his adult children who were living in Australia, Mr Viertmann’s daughter, Elsa, and her brother travelled to France and returned to Australia with their father who stayed with family until accommodation was available for him at Crofton House Aged

Care Facility [Crofton House] in November 2010,”

2. Mr Viertmann reportedly settled in well at Crofton House which was situated in Lithgow Avenue, Blackburn, a short distance north of the Blackburn train station. He had his own room, got along well with staff, received visits from family and was sometimes taken to visit

his wife who lived in Abbotsford.

3. Mr Viertmann was also a keen walker — and had been used to taking walks daily when living

in France -- and this continued at Crofton House. Mr Viertmann knew the access code for the

! This section is a summary of facts that were uncontentious, and provide a context for those circumstances that were contentious and will be discussed in some detail below.

2 Coronial Brief of Evidence, Statement of Elsa Viettmann dated 9 October 2012,

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entry/exit at Crofton House and would often go out unsupervised, sometimes just for a walk

around the block and at other times farther afield, returning to Crofton House by train.

4. By early 2011, Crofton House staff were concerned about Mr Viertmann’s safety should he continue to leave the facility unsupervised and raised these concerns with his daughter.‘ Although he was physically robust, Mr Viertmann’s cognitive capacity was diminishing and on three occasions he become lost requiring police involvement to locate him. Moreover, on two occasions Mr Viertmann sustained minor injuries as a result of falls when unsupervised in the community.> Knowing that her father hated being confined and perceiving that he would regard being permitted to leave Crofton House only with supervision as an unacceptable imposition on his quality of life, Ms Viertmann gave written instructions to the facility that her father should be allowed to leave unsupervised.®

5. Inmid-2011, a Consultant Geriatrician assessed Mr Viertmann and attributed his cognitive decline to probable Alzheimer’s disease.’ A further cognitive assessment in May 2012, this time by a Consultant Psychiatrist, revealed significant memory impairment and severe executive dysfunction suggestive of a neurodegenerative disorder, most likely Alzheimer’s disease. It was noted that Mr Viertmann was coping less well due to diminished frontal lobe functioning and was becoming more dependent on staff at Crofton House to assist him with

activities of daily living.®

CIRCUMSTANCES PROXIMATE TO DEATH

6. Atabout 1.30pm on 4 October 2012, Mr Viertmann left Crofton House alone and on foot.? A

little under an hour later, at 2.25pm, he purchased grocery items at an IGA supermarket on

South Parade, Blackburn, which runs parallel and to the south of Blackburn train station.'°

‘ Coronial brief of Evidence, Statements of Elsa Viertman and Margaret Riza dated 16 November 2012.

4 Coronial Brief of Evidence, Statement of Margaret Riza.

5 Coronial brief of Evidence, Statements of Elsa Viertman, Margaret Riza and Dr Robert Dunn dated 22 October 2012.

The precise timing of these incidents relative to concerns being raised by Crofion House unclear from the available information (and is not material).

6 Coronial Brief of Evidence, Statements of Margaret Riza and Elsa Viertmann, Ms Riza, an employee of Crofton House, referred to Ms Viertmann’s written instructions as ‘an indemnity’.

? Correspondence from Consultant Geriatrician Dr Andrea Bea dated 9 June 2011 to Mr Viertmann’s general practitioner, Dr Dunn, at the Blackburn Clinic,

8 Correspondence from Consultant Psychiatrist Dr Peter Drysdale dated 18 May 2012 to Mr Viertmann’s general practitioner.

° Coronial Brief of Evidence, Statement of Margaret Riza.

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7. At2.37pm, train driver, lan Brown, manoeuvred TD 3570,"! the Ringwood to Flinders Street six carriage X’Trapolis electric train express/empty carriage service from the Ringwood sidings, and commenced the run to the city on time. Before setting off, Mr Brown performed safety checks to confirm the train was operational, manually entered the train’s TD Number into the train radio to connect it to the Urban Train Radio System [UTRS] network, set the head board to show the train was not in service!” and communicated by radio with the Ringwood signaller to indicate that the train was ready for departure.!? This was all in

accordance with normal and required procedures.

8. Ataround 2.38pm, on the line five stations ahead of TD 3570," Jan Handerck, the driver of TD 3208!5 a Lilydale to Flinders Street train, stopped as scheduled and on time" at Laburnum station. Here, Mr Handerck used his train radio to make a standard (rather than emergency) call to Metrol!’ and reported that he had seen a pedestrian walling near the train tracks. Mr Handerek told Metrol Radio Operator, SB, that he had seen an elderly male carrying a shopping bag walking along the tracks to the left of his train in the direction of, and about 100

metres from, Laburnum station.'!® Mr Handerek then resumed driving his city-bound service.

9. SB understood Mr Handcrek to have reported seeing the pedestrian ‘between Blackburn and Laburnum’ stations, ‘approximately 100 metres on the down side of Laburnum’ station.!? SB turned to inform Line Controller, MH, who was working with him at Metrol monitoring the operations of the Burnlcy and Clifton Hill group train services. According to his statement,

"© Coronial Bricf of Evidence, Exhibit | Incident Investigation report prepared by Alan Scott and in particular, Photograph 10 of Attachment 3, which depicts a tax invoice for grocery items located on the Platform of Laburnum train station.

1 This is a ‘TD number’ or Train Describer Number which his unique to a route and time of day.

2 TD 3570 was an empty/non-passenger service.

° Coronial Brief of Evidence, Statement of lan Brown dated 19 October 2012,

4 Exhibit D.

'S TD 3208 was a six carriage X’Trapolis-type electric train.

'6 ‘TD 3208 was scheduled to pass through Laburnum station at 2.37pm (after passing Blackburn station at 2.35pm), It was due at Box Hill station at 2.40pm.

‘7 Metrol provides train control for the metropolitan rail network and communicated with train drivers through a radio system,

'8 Coronial Brief of Evidence, Statement of Jan Handerek dated 5 November 2012.

'S Coronial Brief of Evidence, Statement of SB dated 16 October 2012. I note the explanation of ‘rail terminology’ provided by Mr Scott in his Incident Investigation report (above note 10): a ‘down train’ is an outbound train and an ‘up train’ is a city-bound train. Similarly, in relation to locations, the ‘down side’ is the non-city-side of an area and the ‘upside’ refers to the city-side.

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SB told MH that there was a pedestrian near the tracks ‘who was heading towards

Blackburn’.?°

10. MH recounted in his statement that as a result of this interaction, he understood that there was a pedestrian on the tracks ‘approximatcly 200 metres on the downside of Blackburn railway

station, walking towards Blackburn’ .?!

11. MH consulted his MTR Timetable”? and observed that two trains, ‘an outbound train TD 3605 and inbound train TD 3570, Mr Brown’s city-bound express service, were approaching the area. MH asked SB to warn the drivers of these two trains of the presence of the pedestrian near the tracks and provided him with the relevant TD Numbers for the purpose.”? In the interim, MH contacted station staff at Blackburn train station, asking them to keep a lookout

for the pedestrian and report back to him.”

12. In 2012, metropolitan rail network communications occurred via the analogue UTRS.”> Radio Operators initiated a radio call to a train radio by selecting its TD Number on their computer with a computer mouse. Only the TD numbers of “active” train radios were displayed and so ifa TD Number was not visible, its train radio was not connected to the radio network and the Radio Operator was unable to initiate a radio call to the train.2° Similarly, if a ‘line’ or ‘group’ radio call was made to a group of train services, the train radio of a train whose TD

number was not displayed, would not receive the transmission.”

• Coronial Brief of Evidence, Statement of SB.

41 Coronial Brief of Evidence, Statement of MH dated 17 October 2012.

® Also known asa ‘Train Graph’ [see Transcript page 51] or Train Controller’s Map. The Train Graph is a paper record that depicts the timetabled position of each train on particular routes, Railway stations arc listed down the left hand side of the graph and the time of day actoss the top; solid lines printed in a downward direction represent down (outbound) trains, solid lines printed in an upward direction represent up (city-bound) trains and broken lines in either direction represent empty trains (those not scheduled to carry passengers). Each linc is labelled with a TD number. In the case of the extract of the 4 October 2012 Train Graph tendered as Exhibit F at inquest, those routes for which the

. Eastern Line Controller was responsible (train movements on the Burnley and Clifton Hill groups) were depicied along with the annotations made by the Line Controller to reflect information received from drivers and others on the rail network and un-timetabled train movements made in response to emergent conditions.

23 Coronial Bricf of Evidence, Statement of MII.

% Ibid,

25 Uxhibit H.

26 Coronial Bricf of Evidence, Incident Investigation report prepared by Alan Scott,

2 Fxhibit H. I note that there appeared to be some uncertainty about whether a ‘group’ call would be received on a train radio irrespective of whether its TD Number was ‘logged on’/’connected’ to the radio network. Some thought this was a misconception (that is, train radios of TD Numbers that were not ‘on’ the system would still receive a group call), others were not sure. Mr Salas’ evidence appeared to resolve the issuc: ‘if the TD Number did not appear on the Metrol system, that particular train could not participate in the group call’ [Exhibit H and Transcript page 98],

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13. Based on the information available to him, SB considered notification of Mr Brown’s TD 3570 service to be his ‘first priority’.** He consulted his computer’s display of the TD Numbers of trains logged into the radio system and noted that TD 3570 was not among them.”” He dismissed as redundant the possibility of contacting TD 3570 through a group call and considered that his only means of contacting the train’s driver would be to obtain the driver’s employer-issued mobile telephone number via the Driver Allocation Officer [DAO].*° SB contacted the other train in the vicinity, which was registered on UTRS, and informed the driver of the pedestrian near the tracks within three minutes of receiving Mr Handerek’s

warning.*!

14, SB became unsure of the location of the pedestrian seen by the driver of TD 3208 and so contacted Mr Handerek for clarification. SB then informed MH that the pedestrian was

between Blackburn and Laburnum stations, heading towards Laburnum,*?

15. SB received a radio call from a train driver reporting a fault who then started to discuss ‘nontrain-related issues’.*? Although he ‘tried to end this call as quickly as possible’, two minutes had expired before he did so.** During the call, SB noticed that TD 3570 had ‘popped up on

the screen’ in front of him and could therefore be contacted.*

16. Meanwhile, MH annotated the Train Graph with ‘BBN [Blackburn] Trespasser 200m Upside BBN’*® to reflect information about the location of the pedestrian and contacted Blackburn station staff a second time to update them. CCTV footage from cameras at Blackburn station depicts station staff walking along the outbound platform, Platform 2, presumably in response to MH’s initial request to be on the lookout for a pedestrian near the tracks, as TD 3570 was

passing alongside the city-bound platform, Platform 1, en route to Laburnum station.*”

8 Coronial Brief of Evidence, Statement of SB.

2° This was noted on both the Radio Call Sheet maintained by SB and the Train Graph maintained by MH; these documents appear as attachments to Mr Scott’s Incident Investigation report in the Coronial Brief of Evidence,

• Coronial Brief of Evidence, Statement of SB.

31 Tbid, See also the Radio Message Sheet maintained by SB included in Coronial Brief of Evidence, Exhibit 1 Incident Investigation report prepared by Alan Scott and labelled as “Attachment 13”,

32 Thid.

33 Tbid.

34 Coronial Brief of Evidence, Statement of SB.

35 Thid,

6 Exhibit F.

37 Mr Scott’s Incident Investigation report in the Coronial Brief of Evidence.

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17, Around 2.40pm, a passenger SJ was waiting for a train on Platform 1 at Laburnum station. He observed a man in the train pit walking along the city-bound tracks, asked him what he was doing and told him that a train would arrive at the station shortly. The man told him that he was ‘trying to get up’ and SJ watched as the man placed a shopping bag and a walking stick

on Platform 1 and position his hands on the platform in an effort to climb up onto it.*

18. Blackburn and Laburnum stations are about 860 metres apart. The city-bound track between them has a left curve which straightens as it reaches Platform 1. However, the curve obscures a train driver’s view of the track and. platform ahead until the train is less than 95 metres from the leading edge of the platform.” The speed limit applicable to trains on this section of track is 65 kilometres per hour.? TD 3570 was travelling at 64km/p/h!. The expected stopping distance of an X’Trapolis train travelling on a straight dry track at that speed is about 156

metres.”

19. As TD 3570 was emerging from the ‘blind left bend’ Icading into-Laburnum station, Mr Brown saw an elderly man in the train pit ahead, about 20 metres from the leading edge of Platform 1. It appcared as though the man was attempting to climb up out of the pit. Mr Brown immediately applied the emergency brake and sounded the train’s horn but could not avoid impact. TD 3570 stopped about 50 metres after the initial impact point, “? 123 metres

after the emergency brake was applied.“

20. At about 2.45pm, SJ telephoned cmergency services" while Mr Brown used his train radio to

contact Metrol and his employer-issued mobile telephone to contact the DAO,*°

21. Emergency services personnel quickly arrived on scene. Attending paramedics confirmed that

the pedestrian, who was later identified as Mr Viertmann,*” was deceased. Police attended

38 Coronial Brief of Evidence, Statement of SJ dated 18 October 2012.

3° Coronial Brief of Evidence, Exhibit 1 Incident Investigation report prepared by Alan Scott and in particular, Photographs 1-5 of Attachment 3.

4 Exhibit D.

4 As documented by the Train Data logger.

Coronial Brief of Evidence, Mr Scott’s Incident Investigation report.

® Coronial Brief of Evidence, Mr Scott’s Incident Investigation report.

447 note that once the emergency brake is applied by the driver, s/he can make no further adjustment to braking speed and that on this occasion, ‘I'D 3570 exceeded stopping distance expectations [sec Transcript pages 12-14].

45 Coronial Brief of Evidence, Statement of SJ.

46 Coronial Brief of Evidence, Statement of lan Brown. I note Mr Brown’s comment, “While waiting to speak to Metrol I contacted the DAQ’.

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and commenced an investigation on behalf of the coroner,** Alan Scott, a Metro Trains Melbourne [MTM] Investigator, commenced an investigation of the collision on behalf of

MIM,”

INVESTIGATION — SOURCES OF EVIDENCE

22. This finding is based on the totality of the material the product of the coronial investigation of Mr Viertmann’s death. That is the brief of evidence compiled by Senior Constable Brad Johnson of the Transit Safety Police, the statements, reports and testimony of those witnesses who testified at inquest and any documents tendered. through them, and the final submissions of Counscl. All of this material, together with the inquest transcript, will remain on the coronial file° In writing this finding, 1 do not purport to summarise all the material and evidence, but will refer to it only in such detail as is warranted by its forensic significance and

in the interests of narrative clarity.

PURPOSE OF A CORONIAL INVESTIGATION

23, The purpose of a coronial investigation of a reportable death is to ascertain, if possible, the identity of the deceased person, the cause of death and the circumstances in which death occurred.*' The cause of death refers to the medical causc of death, incorporating where possible the mode or mechanism of death. For coronial purposes, the circumstances in which death occurred refers to the context or background and surrounding circumstances, but is confined to those circumstances sufficiently proximate and causally relevant to the death, and

not merely all circumstances which might form part of a narrative culminating in death.

24. The broader purpose of any coronial investigations is to contribute to the reduction of the

number of preventable deaths through the findings of the investigation and the making of

47 Mr Viertmann was presumptively identified by police at the scene via a Victorian Driver’s Licence issued in his name. His identified was confirmed by his son-in-law, Mark Durre.

4 Coronial Brief of Evidence, Statement of Senior Constable Brad Johnson dated 13 November 2013.

® Mr Scott’s report of his investigation was included in the Coronial Brief of Evidence [as Exhibit 1] and he provided a number of further statements and materials [see generally Exhibits C and D].

• From the commencement of the Coroners Aci 2008 (the Act), that is 1 November 2009, access to documents held by the Coroners Court of Victoria is governed by section 115 of the Act.

5! Section 67(1) of the Coroners Act 2008. All references which follow are to the provisions of this Act, unless otherwise stipulated.

• This is the cffect of the authorities — see for example Harmsworth v The State Coroner [1989] VR 989; Clancy v West (Unreported 17/08/1994, Supreme Court of Victoria, Harper J.)

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25,

recommendations by coroners, generally referred to as the prevention role.’ Coroners are also empowered to report to the Attorney-General in relation to a death; to comment on any matter connected with the death they have investigated, including matters of public health or safety and the administration of justice; and to make recommendations to any Minister or public statutory authority on any matter connected with the death, including public health or safety or the administration of justice.°* These are effectively the vehicles by which the

prevention role may be advanced.°°

It is important to stress that coroners are not empowered to determine the civil or criminal liability arising from the investigation of a reportable death, and are specifically prohibited from including in a finding or comment any statement that a person is, or maybe, guilty of an offence.°° However, a coroner may include a statement relating to a notification to the Director of Public Prosecutions if the coroner believes an indictable offence may have been

committed in connection with the death”

FINDINGS AS TO UNCONTENTIOUS MATTERS

In relation to Mr Viertmann’s death, most of the matters I am required to ascertain, if possible, were uncontentious from the outset. His identity and the date and place of death were not at

issue. I find, as a matter of formality, that Werner Viertmann born on 24 January 1929, aged

83, late of Crofton House, Lithgow Avenue, Blackburn, died at Laburnum train station,

Laburnum Road, Blackburn in Victoria on 4 October 2012.

Nor was the cause of Mr Viertmann’s death contentious. On 5 October 2012, Forensic Pathologist, Dr Jacqueline Lee of the Victorian Institute of Forensic Medicine [VIFM] reviewed the circumstances of the death as reported by police and post-mortem CT scanning of the whole body undertaken at VIFM [PMCT], and performed an external examination of Mr Viertmann’s body.

33 The ‘prevention’ role is now explicitly articulated in the Preamble and purposes of the Act, cf: the Coroners Act 1985 where this role was gencrally accepted as ‘implicit’,

4 See sections 72(1), 67(3) and 72(2) regarding reports, comments and recommendations respectively.

5 See also sections 73(1) and 72(5) which requires publication of coronial findings, comments and recommendations and responses respectively; section 72(3) and (4) which oblige the recipient of a coronial recommendation to respond within three months, specifying a statement of action which has or will be taken in relation to the recommendation.

56 Section 69(1).

57 Sections 69 (2) and 49(1).

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Dr Lee advised that external examination revealed deformities of the torso and extremities and, PMCT revealed fractures to the right tibia and fibula, each femur, pelvis, ribs, thoracic spine, each scapula, sternum and the skull; all being injuries consistent with the reported circumstances. Post-mortem toxicology did not detect any common drugs, poisons or alcohol.

Dr Lee concluded by advising that it would be reasonably to attribute Mr Viertmann’s death to multiple injuries sustained in collision with train (pedestrian), without the need for an

autopsy.°®

In light of Dr Lee’s advice, J find that Mr Viertmann died of the multiple injuries sustained

when he was involved in a collision with a train as a pedestrian.

FOCUS OF THE CORONIAL INVESTIGATION AND INQUEST

31,

32,

In common with many other coronial investigations, the primary focus of the coronial investigation and inquest into Mr Viertmann’s death was on the circumstances in which he died. Mr Viertmann’s death was clearly preventable. It seems tolerably clear that had the driver of TD 3570 been alerted to Mr Viertmann’s presence near the tracks in a timely way, the collision and Mr Viertmann’s death may well have been avoided. Accordingly, the focus of my investigation and the inquest was the adequacy of communications between train drivers and Metrol, and in particular, the adequacy of the communication systems in place at the time of the incident. Improvements made to communication systems subsequent to Mr

Viertmann’s death were also investigated.

I also examined secondary but inextricably linked issues relating to the time available to respond to Mr Viertmann’s presence near the tracks and, to a limited extent, the actions that could have been taken to avert the collision. The evidence in relation.to these issues will be

examined in turn.

MTM commenced operation of the metropolitan electrified rail network in 2009.” There are approximately 2,320 timetabled services each day and during the off-peak period® about

175 trains are in service at any given time.

38 Exhibit A,

% Transcript page 34.

60 Exhibit E; figures are those applicable in 2015,

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33. MT™M data indicates that during 2012 there were 1,402 reports of “trespassers” within the geographical bounds of its rail network — equivalent to just under four pedestrians in unauthorised areas each day — and that there were 37 fatalities." Data for subsequent years suggests that the incidence of unauthorised pedestrian incursions has increased and the

frequency of fatal incidents remains static.**

34. While MTM monitors and maintains fencing in proximity to some areas of the network,® it is not obliged to erect fencing.®® That said, given that the presence of pedestrians in unauthorised areas can be anticipated, to say nothing of the catastrophic consequences that may follow, it is reasonable to expect that MTM has adequate systems in place to manage this eventuality successfully and to mitigate the potentially fatal consequences, as far as is

reasonably possible.

PREVENTING THE COLLISION: TIME TO ACT

35, Inhis investigation report, Mr Scott estimated the interval between Mr Handerek’s sighting of Mr Viertmann and the collision as between six and ten minutes.®’ Prior to the inquest, on his own initiative and of his own volition, Mr Scott revisited the various sources of timed data

and revised his estimate.

5 At 2.30pm, when the incident resulting in Mr Viertmann’s death occurred.

® Exhibit E,

® Transcript pages 86-87, The term “trespasser” is used by MTM to encompass a range of (mainly but not exclusively) pedestrians who access its property without authority including graffiti artists and/or others intent on causing criminal damage, individuals endeavouring to self-harm and vulnerable individuals like Mr Viertmann or children. Similarly, the number of fatalities is inclusive of individuals who died in both intentional and accidental circumstances, the former circumstances accounting for the vast majority of fatalities.

“ Transcript pages 88-89.

6 See for instance MTM’s Track Maintenance Instruction document [L2-1RK-PRO-003/019] extracted in Coronial Brief of Evidence, Exhibit 1, Mr Scott’s report of his investigation, | note that I heard some evidence, from Mr Scott, in relation to fencing, During his investigation, he noted that the fencing in the vicinity of Laburnum station had been inspected in September 2012 and that he had observed there are areas along South Parade in Blackburn, which runs parallel to the train line, including a hole in fencing, through which pedestrians could access the tracks. As potential points of unauthorised access are myriad, and there is no evidence before me concerning precisely where Mr Viertmann entered MTM property, I have not pursued the matter but note, for completeness, that the fencing defect Mr Scott observed was later rectified [Transcript page 34].

65 Section 61 of the Rail Management Act 1996, Transcript page 33 and the oral submissions of Counsel appearing on behalf of MTM.

• Coronial Brief of Evidence, Exhibit 1, Mr Scott’s report of his investigation.

& Transcript page 14.

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In evidence at inquest, Mr Scott confirmed that the various sources of timed data he analysed including TD 3570’s train data logger, time over distance calculations from staunchens,

CCTV time stamps, mobile telephone records, and witness reports are independent and disparate systems® that are not synchronised in any way.”? He agreed that times recorded on digital systems were likely to be more reliable than those dependent upon a witness’ perception. Mr Scott testified that having regard to all of the information available to him, he was as confident as he could be that the period available to Metrol within which Mr

Viertmann’s death may have been averted was around five minutcs.’!

PREVENTING THE COLLISION: OPPORTUNITIES TO ACT — STOPPING TD 3570

Mr Scott also provided evidence about the ways in which a train could be stopped in the event of an emergency. [ note the comment made in his investigation report, that had TD 3208, Mr Handerek’s train, remained stopped at Laburnum station, the collision between TD 3570 and Mr Viertmann would not have occurred.” I infer from the oral evidence of Mssrs Scott and Young, that Automatic Block Signalling [ABS] would have halted [TD 3570’s progress if TD 3208 remained at Laburnum station because it is designed to separate trains on the same track by a distance of two sections.” As an automated system of signals operated by the passage of trains, ABS has no facility to respond to the presence of pedestrians on or near the tracks.”4 Morcover, once TD 3570 had passed through signal BBN303 at the western end of Blackburn station, it could not be stopped by mechanised signals, automated or otherwise,” before

reaching Laburnum station.”

It is not clear why Mctrol did not advise Mr Handerek to remain at Laburnum station. I assume that, at least in part, logistical considcrations prevailed. Moreover, it may be that Mr

Handerek, a train driver with 25 years’ experience, did not know how to interpret Mr

® Transcript page 36.

® Transcript page 9.

1 Transcript page 38 and Mr Scott’s supplernentary statement, Exhibit D.

® Coronial Brief of Evidence, Exhibit 1, Mr Scott’s report of his investigation.

® Section lengths vary depending on the features of the track (straight, curved, etc) and the permissible speed limit thereon: Transcript pages 20 [Mr Scott], 44 and 45 [Mr Young].

™ Transcript page 45.

75 Transcript page 45.

% Transcript page 20.

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Viertmann’s presence walking alongside the tracks with his shopping.”’ Mr Vicrtmann was perhaps an unusual “trespasscr” in that, not appearing to react to Mr Handerek’s train as it.

passed,”* he could not casily be categorised as someone intent on self-harm, nor as someone intent on damaging or interfering with MTM property. Even so, Mr Handerek was sufficiently concerned about the potential hazard posed by Mr Viertmann’s presence to notify Metrol, albeit in a standard rather than emergency train call.” In this setting (and others), “human factors” such as individual perception and judgement are likely to remain central to risk recognition and management and as such not fully susccptible to procedural or

technological remediation.

At inquest, Mr Scott conceded that it would have been possible to stop TD 3570 at Blackburn station by station staff making an “emergency stop” hand signal to the driver, if station staff hade been informed in sufficient time.° However, significantly, thc Radio Operator misinterpreted information from TD 3208’s driver about Mr Vicrtmann’s location and relayed this to the Line Controller who, in turn, told Blackburn station staff to look out for a pedestrian 200m from, and walking towards, the station.! In short, despite there being some six minutes between TD 3570's scheduled departure from Ringwood station, virtually simultaneous with Mr Handerek’s notification, and TD 3570’s arrival at Blackburn station at 2,43pm,* the initial advice from Metrol to Blackburn station staff was simply to ‘be on the

lookout for’ a pedestrian.”

A manual “emergency stop” signal would not have been possible at Laburnum station as

Laburnum Station is not staffed at any time, and in any event, tf a manual emergency stop

7 Coronial Brief of Evidence, Statement of Jan Handerck.

• Thid.

® | note that, according to Mr Young, either a train driver or the Radio Operator can designate a given situation as “an

emergency” [Transcript page 69].

50 Transcript pages 18-19.

8! Coronial Brief of Evidence, Statements of SB and MH.

® Coronial Brief of Evidence, Belgrave-Lilydale-Alamein-Glen Waverly-Flinders Street Mondays to Fridays Timetable, extracted as Attachment 21 to Mr Scott’s report of his investigation included in the Coronial Brief of

Evidence [as Exhibit 1].

83 Coronial Brief of Evidence, Statement of MH.

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signal was given from Platform 1, it would be obscured to the train driver by the blind left-

hand bend on approach.*

41. However, it does not appear that Metrol staff ever contemplated stopping trains in the vicinity of Mr Handerek’s sighting of Mr Viertmann: they sought only to warn the relevant drivers.

The policy® in place at the time provided little guidance to Metrol staff/train controllers or drivers about response to pedestrian incursion, beyond requiring that Metrol take ‘all reasonable steps’ — which are nowhere defined — to ‘advise’ all drivers approaching or travelling through the incident area,° Notably, the policy was revised in the month following Mr Vicrtmann’s death, though it is unclear whether his death precipitated the revision. The later policy’ is more detailed and enables Mctrol to prevent trains from approaching an area, including by isolating overhead power, ‘if necessary’, although again what constitutes such a

necessity is nowhere defined.

PREVENTING THE COLLISION: CONFOUNDING COMMUNICATIONS

42. It is trite to observe that cffective communication is critical in the successful management of time-sensitive emergent situations, Metrol, MTM’s command and control centre, coordinates incoming and outgoing information and communications for the ‘provision of safe, reliable train services and deployment of resources’ throughout the metropolitan train network.®? At any given time, Metrol is staffed by two teams, each comprising one Radio Operator (who

communicates with train drivers), one Line Controller (who communicates with train stations)

™ Transcript page 18.

85 Document No cml-8.13-pr-485 (Revision 2, 21 July 2009), ‘Reporting and dealing with Incidents involving Rock Throwing, evel Crossing Failures and. Trespassers’, originally a Connex Melbourne P/L document adopted by MIM [hereinafter Old Trespasser Policy] extracted as Attachment 16 to Mr Scott’s report of his investigation included in the Coronial Brief of Evidence [as Exhibit 1].

86 Old trespasser Policy, section 42.

®7 M1TM Document No L2-SWS-PRO-009 (cffective 9 November 2012), ‘Dealing with an Incident of Condition Affecting the Safety of the Network’ [hereinafter New Trespasscr Policy] extracted as Attachment 17 to Mr Scott’s report of his investigation included in the Coronial Brief of Evidence [as Exhibit 1].

88 New Trespasser Policy, section 4.2. I note that according to Mr Scott [Transcript page 22] isolation of overhead power was nol ever used to causc a train to stop in an emergency at the time the incident. Mr Scott’s report suggests that under the New Trespasscr Policy, section 4.3.1, drivers will be advised by Metrol to ‘operate under extreme caution through the arca’ — that is, to travel at not more than 25 km/p/h but at a speed enabling the train to be stopped in half the distance that can be sccn ahead. I cannot find any definition, or the phrase, ‘operate under extreme caution’ in the policy, though it may appear in a another related policy such as L4A-SWS-FOR-021, ‘Incident or Condition Affecting the Network [CAN] Warning Notice’, which was not provided to me during the investigation and inquest into Mr Viertmann’s death

89 Exhibit E.

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and one Senior Controller with oversight of operations. Each team is responsible for

operations on one half of the train network.”

43. Tn 2012, the analogue UTRS, installed in the early 1990s, facilitated communications between Metrol, train station staff and, via train radio and/or the driver’s portable radio, with train , drivers.?! UTRS did not envisage or enable driver-to-driver communications. Train radios joined UTRS when the train driver successfully entered the relevant TD Number into the train radio system prior to commencing a journey as required by policy.”* Radio Call Logs confirm

that Mr Brown, TD 3570’s driver, did this at about 2.19pm.

44, UTRS generally provided good coverage over ‘much of the suburban area’ but it was known that there were areas where the radio system did not operate or could “drop out” intermittently.*4 That is, a fixed train or portable radio could fail to connect to, or became disconnected from, the network in much the same way as a mobile telephone may lose comnection to its carrier network due to geography, electrical interference, hardware malfunction or transient atmospheric disturbance. In 2012, the UTRS network’s coverage was routinely tested bimonthly,®° with additional testing taking place if connectivity issues were identified by drivers. The Belgrave and Lilydale lines had passed radio testing conducted on 28 August 2012, the last test in the relevant area prior to Mr Viertmann’s death.”

45. Ifa radio disconnected from the analogue network, the radio handset would automatically scan frequencies in an attempt to reconnect. This may or may not be successful. A train driver may be unaware that the train radio had disconnected from the network or was scanning

to reconnect to it. Significantly, in such an eventuality, the radio (or more properly, its TD

°9 See generally Exhibit E and the evidence of Mr Young [Transcript pages 41-96], One Metrol team manages operations of train services in the Burnley and Clifton ITill groups and the other manages the Dandenong, Northern and Cross City groups.

91 Rxhibit H. The fixed train radio and the driver’s portable radio are essentially two parts of the same communication device, linked to the train radio system by the TD Number [Transcript page 72]. This arrangement is retained in the new digital radio system.

52 Simoco Fixed and Portable Train Radios, Document No cml-8.13-tsg-110 (revision 01, 22 July 2009), originally a Connex Melbourne P/L document adopted by MTM [hereinafter UTRS Radio Policy] extracted as Attachment 18 to Mr Scott’s report of his investigation included in the Coronial Brief of Evidence [as Exhibit 1].

% Coronial Brief of Evidence, Exhibit 1, Mr Scott’s report of his investigation.

4 Coronial Bricf of Evidence, Exhibit 1, Mr Scott’s report of his investigation.

55] note Mr Salas’ evidence that by 2014 connectivity issues were sufficiently problematic to require weekly radio testing [Exhibit H].

°6 Coronial Brief of Evidence, Exhibit 1, Mr Scott's report of his investigation.

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Number) was not visible on the Radio Operator’s computer display and the train radio could neither send nor receive transmissions.”’ I note that no explanation was proffered to explain why TD 3570’s train radio was not visible to the Radio Operator, despite Mr Brown having successfully logged into UTRS and recent radio testing confirming satisfactory network

function in the area.®

46.. The train radio was, and remains now under the new digital system,” the primary form of communication’®° but each driver is issued with and required to carry an employer-issued mobile telephone to be used in the event of train radio network failure or malfunction.!"! A driver’s mobile telephone number was and is still not directly accessible by Metrol staff.

Rather, they must obtain it from one of six DAOs on duty,’ They, in tum, use an electronic database to reconcile TD Numbers with shift numbers, to identify the correct one of a

thousand train drivers on staff and then locate his/her mobile telephone number.!™

47. Although cumbersome enough for MH to comment that he did not believe there was sufficient time available to obtain Mr Brown’s mobile number through the DAO,'™ according to MTM’s Head of Network Control and Security, Tim Young, the process takes 15 to 30

seconds optimally, outside of peak times.'”? Mr Young conceded that in an emergency the

‘extra step’ involving the DAO meant that time to act was lost.'©° There is no evidence before

7 Tid.

8 For example, Transcript pages 16 and 31.

® Countcr-intuitively, the ‘train radio’ and ‘portable radio’ are essentially the same radio, the former is fixed in the cabin while the latter is, as the name suggests, porlable and is for use by the driver if s/he leaves the cabin. Thus, if the train radio’s TD number is not registered on the system neither it nor the portable radio can be used [Transcript page 72).

100 UTRS Radio Policy.

‘01 MIM document L2-TSD-PRO-003 Train Driver Metro Issue Mobile Phones, extracted as Attachment 19 in Mr Scott’s report of his investigation included in the Coronial Brief of Evidence [as Exhibit 1]. J note that in addition to the primary communications (via train/portable radio) and secondary communications (via mobile telephone) there is also a tertiary communication option, Local Train Radio [LTR] with limited operation on a ‘line of sight’ basis relevant to the metropolitan electric rail network, Diesel, freight and V-Line train radio communication systems, with some capacity for interface, also operated in 2012 and continue to operate now.

i Transcript page 70.

103 Transcript pages 65-68.

14 Coronial Brief of Evidence, Statement of MH.

1 Transcript pages 67-68.

106 Transcript page 65,

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48,

49,

me that the Radio Operator initiated enquiries with the DAO, though he had formed the view

that he would need to do so because he was unable to contact TD 3570’s driver by radio,!”

Irrespective of the means of communication used, drivers were (and are) required to use mobile telephones only when ‘in a position of safety’ which ordinarily means when the train is stationary, either at a signal or platform.'? Accordingly, MTM would not have expected Mr Handerek to notify Metrol of his sighting of Mr Viertmann any sooner than he did, at 2.38pm, while stationary at Laburnum station.” Though not explicitly canvassed at inquest, the presumptive corollary of this is that even if the Radio Operator had obtained Mr Brown’s mobile telephone number and dialled it in advance of the collision, he ought not, according to

policy, have answered the call unless and until he was stopped at a station (or signal).

Mr Handerek’s notification to Metrol was timely and specific. At first instance, its details appear to have been correctly noted by the Radio Operator on the Radio Message Sheet as ‘Trespasser w [with] shopping up line [city-bound line]... BBN + LBM [Laburnum] down side of platform [non-city end of the platform]’.!'° Thereafter, and somewhat inexplicably, the location information appears to have been miscommunicated when relayed to the Line Controller and likely, through him, to Blackburn station staff. Notwithstanding the Radio Operator’s call to Mr Handerek for clarification (and relay of this information), a misunderstanding appears to have persisted given the Line Controller’s notation on the Train Graph: ‘BBN Trespasser 200m Upside BBN’.'!! While not necessarily determinative of the outcome in this case, the implications of miscommunications of this kind about the location of

a hazard — between habitual users of a specialist idiom!!? — are clear.

Even if miscommunication of location information was not determinative, the Radio Operator’s effort to verify location produced delay. Although it is not unreasonable to verify

important information where there is uncertainty, Mr Young conceded that in the context of

07 Coronial Brief of Evidence, Statement of SB.

Transcript page 75.

109 Thid.

110 Radio Call Sheet, Attachment 13 of Mr Scott’s Incident Investigation report, Coronial Brief of Evidence [Exhibit 1].

UY Exhibit F.

12 Observe Mr Young’s interpretation of MH’s annotations on the Train Graph and its accuracy vis-a-vis Mr Viertmann’s actual location when first sighted [Transcript pages 54-56]. The exchange also demonstrates the impenetrability of specialist language to ‘outsiders’. | note in passing that ‘upside of Laburnum’ and ‘downside of Blackburn’ appcars to describe the same 860m between Blackburn and J.abumum stations,

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Metrol’s strategy to notify trains in the vicinity irrespective of their direction of travel, particularly where one of two drivers had already been informed, it was ‘potentially’ a waste of time for SB to do so.!"° It was also conceded by Mr Young that the Radio Operator ‘potentially’ should not have spent two minutes on a radio call about a fault while the need to alert TD 3570’s driver of Mr Viertmann’s presence was extant: it, too, was an inefficient use

of precious available time.!*

MTM COMMUNICATIONS AFTER 24 AUGUST 2014

52,

As early as 2007, the ‘limitations and life expiration’ of UTRS and the need to upgrade to a digital communication system had been acknowledged.! Victorian government and Public Transport Victoria [PTV] funding of a Digital Train Radio System [DTRS] was secured by 2008 and PTV’s delivery of the new system to MTM was scheduled to occur before the end of

2012. However, the project was delayed and DTRS did not “go live” until 24 August 2014.16 It is still only used by MTM metropolitan electrified rail network trains.!!”

Train radios!!* remain the primary means of communication across the DTRS and the system still requires that a service’s TD Number be entered to register the radio on the system." While there is still a requirement that communication devices only be used when safe, it follows that ‘if the message is of an urgent nature’ it can be heard on a fixed or portable train radio via a loudspeaker function.'!*"” The DAO controls access to portable radios’ unique

numbers’! and train drivers’ work-issued mobile telephone numbers, in the event that a train

'3 Transcript page 60.

"4 Transcript page 61. I note Mr Young’s evidence that the only other person available to take any radio calls (any of which may also have been to report an emergency) while the Radio Operator was trying to alert Mr Brown was the Senior Controller for the group.

5 Exhibit H.

16 Exhibit H.

7 Exhibit H. Mr Young considered universal use of DTRS by all train operators would be an improvement on the current system where it is only presently available to MTM trains.

{\8 The fixed train radio and the driver’s train radio operate independently [Transcript page 96].

19 T note that Mr Salas’ evidence about the impact of a failed train TD Number registration onto DRS was unclear.

His answer to a question concerning whether an alert would notify Mctrol/the driver the radio had ‘dropped off the network was: ‘the user will be presented with an alert tone to say that it has not been entered’ [‘I'ranseript page 103].

129 Sce section 4.5 (including the “Note” below that section) of MTM Document No I.1-COO-PRO-001, ‘Digital Train Radio Standard Operating Procedures’, (Version 2, effective from 30 July 2014) [DTRS SOP].

21 DTRS SOP, section 4.4.9.

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radio or both the fixed and portable train radios fail and a secondary means of communication

is required.'?

53. Both Mr Young and MTM’s Control Systems Project Manager, Lloyd Salas, emphasised the reliability of DTRS. That is, DTRS is regarded as providing ‘extremely high levels of coverage’ and stability across the communication network!” such that there is a ‘low likelihood’ of losing communication with a train driver.* In the seven months of operation between its introduction and the inquest, MTM had reportedly received no reports of DTRS

communication failure.'?° DTRS’ reliability continues to be tested on a quarterly basis.!°

54. DTRS is considered to have greater functionality than UTRS. Of particular relevance to this investigation are the Train Emergency Call [TEC]!*’ and Railway Emergency Group Call [REC] functions.!28 Both TEC and REC calls are a means of communicating emergency information, though only the latter is intended for use in circumstances of imminent danger to

people or trains and infrastructure.”

55. A REC call is the highest priority call — accompanied by a visual and audible alarm — and

terminates any call of lower priority."° A REC call has the effect of stopping trains

immediately, for one minute and/or until further notice.'3! REC calls may be initiated by either train drivers or Metrol. Such calls will be received irrespective of whether or not a train radio’s TD Number is registered on DTRS, by all radios within a pre-set geographical limit of a base station closest to the reporting train radio, for driver-initiated calls, or by all trains in a

particular service group cell, for Metrol-initiated calls.°? A REC call allows a train driver to

12 DTRS SOP, section 4.4,

"23 Transcript pages 64 [Mr Young] and 83-84 [Mr Salas].

4 Transcript page 65,

'5 Transcript page 84.

26 Transcript page 83.

27 A TEC call is a high priority (Priority 2) point-to-point call but unlike a REC call, it will only be reccived by the Train Controller at Metrol. It will cause calls of lower priority to be terminated and can only be terminated by a Priority 0 REC call. A TEC call should be the normal method of relaying emergency information unless trains approaching on other lines are in immediate danger, in which case, a REC call should be used.

"8 DTRS SOP.

28 DTRS SOP,

130 Thid.

'3! Ibid, section 6.5.2.

132 Exhibit F and Transcript page 84 and DTRS SOP. REC calls may also be initiated and received by Signallers.

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37,

alert other drivers in the vicinity of a hazard directly, eliminating the intermediate step

required by UTRS of notifying Metrol.

Mr Salas testified that if DTRS were in place at the time of Mr Viertmann’s death, the driver of TD 3570 could have been contacted even though the train radio was not registered on the

system through the use of a REC call!

A policy delineating Standard Operating Procedures [DTRS SOP] was introduced along with DTRS. The policy provides. guidance about communication procedures generally, including

the prioritisation of radio communications, and those to be employed in the event of an

emergency. In particular, DTRS SOP provides a list of circumstances in which REC or TEC calls may be used.!** Notably, a REC call may be used when there are ‘persons on or near the line who are in #nmediate and direct risk of being struck by a train’ [my emphasis].

Significantly, DIRS SOP acknowledges that ‘professional judgment is relied upon’ when

interpreting the procedures,!** as did Mr Young, when giving evidence at inquest.!*®

CONCLUSIONS

$9,

The standard of proof for coronial findings of fact is the civil standard of proof, on the balance

of probabilities, with the Briginshaw gloss or explication.'*’ The effect of the authorities is that Coroners should not make adverse findings against or comments about individuals, unless the evidence provides a comfortable level of satisfaction that they caused or contributed to the

death.

Having applied the applicable standard to the available evidence, I find that —

• Mr Brown entered TD Number 3570 into the train radio in order to register it with

the UTRS train radio system as required.

133 Exhibit F, 34 See sections 6.3 [REC calls] and 7.2 [TEC calls].

85 DTRS SOP, scction 6.1,

136 Transcript page 91.

Briginshaw v Briginshaw (1938) 60 C_L.R. 336 esp at 362-363. “The seriousness of an allegation made, the inherent

unlikelihood of an occurrence ofa given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issues had been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences...”

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Mr Handerek provided timely and sufficiently clear and detailed information to Metrol about Mr Viertmann’s presence near the train tracks between Blackburn and

Laburnum stations to enable Metrol staff to manage the hazard it presented.

Tam unable to determine whether the choice of an emergency rather than a standard call by Mr Handerek to Metrol would have materially altered the actions taken by the Radio Operator and Line Controller or changed the outcome in this casc.

Accordingly, I make no criticism of Mr Handerek’s judgement in this regard, nor

should any criticism be inferred.

Mctrol staff had a period of about five minutes after Mr Handerck’s radio call in

which to manage the hazard presented by Mr Vicrtmann’s presence near train tracks.

The management plan adopted by Metrol staff was reasonable, namely to warn train drivers in the vicinity that a pedestrian had been seen near train tracks, and had they

managed to do so in the time available, was likely to have averted the collision.

The Line Controller correctly identified the trains ~ the outbound TD 3605 and Mr Brown’s city-bound TD 3570 — to which a warning about the presence of a

pedestrian near the train tracks should be issued.

Metrol was unable to communicate directly with the driver of TD 3570 via the train’s UTRS radio for much of the five-minute period prior to the collision. This was a systemic UTRS failure, perhaps related to connectivity, and not the result of

any omission by Mr Brown or oversight on the part of the Radio Operator.

The Radio Operator’s decision to notify the driver of TD 3605 before attempting to obtain Mr Brown’s mobile telephone number via the DAO was reasonable in the

circumstances,

Although not entirely unreasonable, the Radio Operator’s decision to seek clarification from Mr Handerek of the location where he had seen the pedestrian was not an efficient use of time in circumstances where Metrol’s strategy was to warn the

drivers of both inbound and outbound trains.

The Radio Operator’s continuation of a non-urgent radio call was imprudent and an inefficient use of valuable time given that notification of the driver of TD 3570 was

identified by him as his first priority.

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e Despite determining that it was appropriate to do so, there is no evidence before me that the Radio Operator initiated contact with the DAO to obtain Mr Brown’s mobile telephone number, a procedure estimated to take about 30 seconds in optimal, off-

peak circumstances, within the five or so minutes available to him.

e Human error on the part of Metrol staff and systemic failure of the UTRS network prevented TD 3570’s driver from receiving a warning that Mr Viertmann was near

the tracks close to Laburnum station and so contributed to the collision,

« Absent any warning to TD 3570's driver of the hazard ahead, the approved speed limit, extent of obscured visibility on approach to Laburnum station’s Platform 1 and the anticipated stopping distance of a six carriage train combined to render Mr Brown’s prompt application of the emergency brake insufficient to stop the train in

time to avoid a collision.

« No act or omission on the part of TD 3570’s driver, nor any operation of the train’s

emergency braking system, caused or contributed to Mr Viertmann’s death.

COMMENTS

Pursuant to section 67(3) of the Coroners Act 2008, I make the following comments connected with

the death:

1. Although not relevant to Mr Viertmann’s death, on the basis of the evidence of Mr Young and Mr Salas, it appears likely that implementation of DTRS is likely to enhance communications across the metropolitan electrified rail network and reduce the risk that a

train driver cannot be contacted in the event of an emergency.

2. Assuming that DTRS provides improved reliability of train communications within the MTM network, the REC call facility appears particularly well-suited to streamline the transmission of emergency alerts to train drivers and so reduce the potential for

miscommunication that may occur when working through Metrol as intermediaries.

3. That said, given the terms of the DTRS SOP in relation to the use of REC calls — contingent as they are upon individual perception of risks and professional judgments about these matters ~ there is little guarantee that were it available at the time, a REC call would have

been used in response to a pedestrian incursion like that of Mr Viertmann.

4. Given Metrol’s management of Mr Viertmann’s incursion by attempting to alert drivers

rather than stop trains it appears that a significant cultural shift would be needed to

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encourage use of a REC call in such cases. Indeed, it is difficult to see when a REC call for the presence of “trespassers” could actually be effective in avoiding collisions, as the DTRS

SOP requires pedestrians to be at immediate and direct risk of being struck by a train.

I direct that a copy of this finding be provided to: Ms Viertmann Metro Trains Melbourne Public Transport Victoria

Senior Constable Brad J ohnson of the Transit Safety Police

Signature:

PARESA ANTONIADIS SPANOS Coroner Date: 4 April 2016

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