Hugh Cowling – Court Appointed Expert

In 2002 Gregory Moore attended at our office and advised that he had been driving down Gorman Street, Bakers Creek to his home on the other side of the North Coast Rail line and ran into a diesel locomotive towing freight wagons.  He could not understand how he could possibly fail to see the locomotive and not only put his own life at risk, but also the lives of his two children who were passengers in his vehicle.  The accident occurred late in the afternoon when the sun was setting.  He was driving in a westerly direction and on entering Gorman Street had lowered his sun visor.

An action was commenced on behalf of Gregory Moore against Queensland Rail for damages for personal injuries suffered by him in the collision between his vehicle and the diesel locomotive.

The matter came on for hearing in the Supreme Court at Mackay in late 2006.  On the first day of the trial, following the opening address by John Baulch QC for the plaintiff, the judge asked how many days the trial would take and was advised that the parties anticipated that the trial would not finish until the end of the week.

Later, during the first day of the trial, the trial judge asked how many engineers would be called to give evidence at the hearing.  The response was four.  The defendants, who were represented by Duncan McMeekin QC, had obtained reports from two engineers.

At the end of the first day of the hearing, after the plaintiff had given his evidence in chief and had been cross examined, the trial judge advised that he proposed to appoint a further engineer to confer with all of the engineers and directed that this court appointed engineer would be the only engineer to give evidence at the hearing.  The parties were directed to be in a position to submit their recommendations as to the engineer that he should appoint at the resumption of the trial the next day.  The outcome of this exercise was that the trial judge appointed Hugh Cowling (nominated by the defendant, Queensland Rail) as the Court appointed engineer.

Hugh Cowling was a civil engineer who obtained his Bachelor of Civil Engineering from the University of Southampton in the United Kingdom in 1962.  Hugh Cowling subsequently came to Australia and was engaged as an engineer in high-rise construction in Sydney.  He had a special interest in railway engineering matters and had undertaken special investigations of railway level crossings in Australia, Europe, Asia and the United States of America.

Hugh Cowling subsequently met with all of the engineers and all of the legal representatives and produced a report.  The report, amongst other things, indicated that there were failings in the positioning and focusing of the lighting system at the rail crossing and the backing boards.  He also highlighted the position of a large poinciana tree with numerous red flowers immediately behind one of the flashing lights.  His report also recommended that there be an auditory alarm at the crossing (as there were no boom gates).

Following the issuing of Hugh Cowling’s report, Queensland Rail obtained a further report from a sound engineer to endeavor to show that the recommended auditory alarm would not be heard by a motorist who was driving with the air conditioning on, the windows closed and listening to a radio.  Hugh Cowling was then required to produce a further report dealing with the further dissenting report obtained by Queensland Rail.  The case subsequently settled.

The Uniform Civil Procedure Rules 1999 provide for parties in a litigation to agree on appointing a single expert.  This rarely occurs.  In any case that proceeds to a trial it is now highly unlikely that more than one expert in any field will ever be permitted to give evidence.

Hugh Cowling died in Sydney in January of 2021.  In 2008 he gave a paper on the role of a single appointed court expert at the North Queensland Law Conference in Mackay. The paper delivered by him can be found here.