BlueScope Steel Ltd v Cartwright

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the detailed reasons of Emmett JA. I agree for the reasons his Honour gives that the first respondent did not establish that the appellant breached any relevant duty of care to him.
2. I also agree with his Honour that it was essential, for the determination of the second respondent's liability, to determine two factual matters. The first was the speed at which the vehicle would topple, assuming that there was no shift in the load during the course of the first respondent's journey from the premises of his employer, Mannway Logistics Pty Ltd. Secondly, on the same assumption, the speed at which the vehicle would need to be travelling for the load to cause the vehicle to roll over. Having carefully re-read the evidence on these questions, I am satisfied, for the reasons given by Emmett JA, that the first respondent has failed to establish that the load caused the vehicle to roll over.
3. I also agree with his Honour's reasons for dismissing the evidence of Dr Rechnitzer, the first respondent's engineering expert, as to the existence of "eccentricities" in the loading of the coils, which may have caused the load to move during the course of the journey, as an explanation of the cause of the accident.
4. I agree with the orders proposed by his Honour and with his proposal in respect of costs.
5. WARD JA: I have had the advantage of reading in draft the comprehensive reasons of Emmett JA. I agree, for the reasons given by his Honour, that the appeal should be allowed with costs. I agree with the orders his Honour proposes.
6. EMMETT JA: On 29 August 2007, the first respondent, Mr Sydney Cartwright, was driving a Sterling prime mover (the Prime Mover) on the Princes Highway, Carss Park, on the way from Port Kembla to Port Botany. A 41-foot tri-axle freightliner trailer (the Trailer) was attached to the Prime Mover. The Trailer was loaded with a 20-foot P&O container (the Relevant Container), which contained a load consisting of two 7.3 tonne steel coils and one 6.4 tonne steel coil (the Relevant Coils).
7. At the time, Mr Cartwright was employed by Mannway Logistics Pty Ltd (Mannway) and he was driving the Prime Mover and Trailer (together, the Vehicle) in the course of his employment by Mannway. Mannway had agreed to transport the Relevant Coils from Port Kembla to Port Botany on behalf of the appellant, BlueScope Steel Ltd (BlueScope).
8. While Mr Cartwright was negotiating a left hand bend in the Princes Highway at its intersection with Carwar Avenue, Carss Park (the Accident Site), the Trailer capsized to the right, onto the wrong side of the roadway, pulling the Prime Mover with it. Mr Cartwright was seriously injured as a consequence.
9. Mr Cartwright commenced proceedings in the Common Law Division of the Supreme Court for recovery of damages in respect of the injuries he suffered. He sued BlueScope as first defendant and the second respondent, Workers Compensation Nominal Insurer (the Insurer), as second defendant. Mr Cartwright sued the Insurer pursuant to leave granted under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), since Mannway had, in the interim, been placed into liquidation.
10. The Insurer stood in the shoes of Mannway in the conduct of the proceedings in the Common Law Division and in this Court. In the circumstances, it will be convenient occasionally to refer to the Insurer as Mannway when dealing with the conduct of the proceedings in the Common Law Division and the conduct of the appeal.
11. On 9 July 2013, a judge of the Common Law Division (the primary judge) found a verdict for Mr Cartwright against both BlueScope and the Insurer and published reasons for that conclusion. On 15 August 2013, her Honour directed the entry of judgment for Mr Cartwright against BlueScope in the sum of $872,156.66 and against the Insurer in the sum of $53,852.57, being a total judgment of $926,009.23, apportioned as to 85% to BlueScope and as to 15% to the Insurer. Her Honour ordered BlueScope and the Insurer to pay Mr Cartwright's costs of the proceedings jointly and severally on a party/party basis to 19 October 2013 and thereafter on an indemnity basis. Her Honour noted that Mr Cartwright accepted that, by the operation of relevant workers compensation legislation, he was restricted in relation to the recovery of party/party costs from the Insurer.
12. On 1 October 2013, BlueScope filed a notice of appeal from the orders made by the primary judge. During the hearing of the appeal, questions were raised concerning the consequences, as between Mr Cartwright and the Insurer, of BlueScope's appeal being allowed. The Insurer and Mr Cartwright thereafter filed notices of cross-appeal, without objection. Mr Cartwright appealed from the order that the Insurer's proportion was limited to 15% on the basis that, if BlueScope's appeal was to be upheld, the Insurer's proportion should be increased to 100%. The Insurer, in its cross-appeal, contended that the primary judge erred in finding that any breach of duty of care on the part of Mannway caused Mr Cartwright's injuries and that her Honour failed to give any or any sufficient reasons for that finding.
13. Mr Cartwright also filed a notice of contention in relation to BlueScope's appeal. BlueScope opposed the notice of contention, on the basis that it departed from the case that Mr Cartwright had advanced before the primary judge.
14. BlueScope admitted that it owed a duty of care to Mr Cartwright. However, it disputed the scope of the duty owed by it to him, and denied that the accident was caused by any breach of any duty owed to him by it. The Insurer admitted that Mannway owed a duty to Mr Cartwright and that Mannway was in breach of that duty, but only in respect of the installation in the Trailer of wooden "wedges", which are described in more detail below. The essential question in the appeal is the extent of the duty owed by BlueScope to Mr Cartwright and whether there was a breach of that duty. Rolled up in those questions is the cause of the Vehicle's capsizing. I have concluded that BlueScope was not in breach of its duty to Mr Cartwright, that the accident was caused by excessive speed, and that the appeal should be allowed. It also follows that the cross-appeal by Mr Cartwright against the Insurer should be dismissed and that the Insurer's cross-appeal should be allowed. The reasons for those conclusions follow.

The obligations of BlueScope and Mannway

1. At relevant times, BlueScope manufactured steel coils at plants located in Port Kembla. Most of the coils were manufactured for export. Those intended for export had to be transported from Port Kembla to Port Botany for loading onto container ships. At relevant times, Mannway was a specialist transport company. Mannway operated warehouses at various places, including one near Port Kembla and another at Villawood, which were involved with the transport of steel coils.
2. BlueScope engaged Mannway to transport coils from Port Kembla to Port Botany under a contract between BlueScope and Mannway made on 2 March 2004 (the Transport Contract). By the Transport Contract, the parties agreed to the supply by Mannway, and the receipt by BlueScope, of Services, as defined in the Transport Contract, on the terms and conditions set out in a document described as "Consolidation Services Sub-Contract". The Services were defined as the provision of consolidation services and the delivery of goods as directed by BlueScope. Mannway was required to provide the Services to BlueScope in accordance with, and as specified in, the Transport Contract. The Services were to be provided by Mannway at the times and, from time to time, as required by BlueScope.
3. Under cl 2.2 of the Transport Contract, Mannway was required to perform the Services with due care and skill. Under cl 2.3, Mannway was required to ensure that, in performing the Services, it and its representatives exercised due care and skill in respect of the consolidation, storage and transport of goods while in Mannway's possession or control, and took all necessary precautions to prevent loss or damage to the goods during such consolidation, storage, transport and otherwise whilst the goods were in Mannway's possession or control.
4. BlueScope provided to Mannway a document entitled "Minimum Packing Guidelines for Containerised Steel Coil Cargoes" (the Guidelines). The Guidelines were prepared by BlueScope's engineers and were varied or updated from time to time. BlueScope also provided Mannway with an abbreviated form of the Guidelines for use by its employees (the Abbreviated Guidelines). Set out in Appendix 1 to these reasons is a copy of the Abbreviated Guidelines.
5. The Guidelines provided for a system of restraint for steel coils that were intended for export, which system was designed principally to ensure the stability of the coils in containers while at sea. The system was designed to prevent the coils from moving in a container, whether laterally, longitudinally or vertically, and to ensure that the coils were firmly held to the floor of the container to prevent them from bouncing or jumping.
6. The Transport Contract expressly provided in cl 2.3(c) that, in performing the Services, Mannway was required to comply, and to ensure that its representatives comply, with the Guidelines. Mannway's employees who were responsible for loading coils into containers were trained to undertake that work in accordance with the detailed conditions, specifications and requirements for the packing, load restraint and loading requirements of transport contained in the Guidelines.

The method of packing and transport

1. Before a steel coil was delivered to Mannway, the coil was first mounted by BlueScope onto a timber pallet. Each pallet consisted of a timber platform or deck, which was secured to planks of timber, variously referred to as bearers or struts. The bearers raised the platform of the pallet a short distance from the ground, thereby permitting the tines of a forklift to be inserted underneath the pallet platform, enabling the forklift to lift the pallet with the coil on it. In most cases, a coil fitted wholly within the perimeter of the pallet. In some cases, a coil might protrude beyond the perimeter of the pallet. There was no evidence that any of the Relevant Coils protruded over the edge of the pallets.
2. At least four blocks of wood were nailed to the platform of the pallet to prevent the coil from shifting on the pallet, and the coil was secured to its pallet by steel bands. At least four straps passing through the bore of the coil affixed the coil to the pallet. The effect was to create a single unit consisting of a pallet and coil. All of that was done at BlueScope's plants before the coil was delivered to Mannway.
3. When coils were delivered to Mannway, strapped on pallets, employees of Mannway used forklifts to move the pallets and coils and store them in Mannway's warehouse until they were placed in shipping containers. Mannway's task was to load the pallets and coils into containers and to transport the loaded containers to Port Botany.
4. A container would contain several coils, each affixed to a pallet in the manner described. It was necessary for the weight of the coils to be evenly distributed in the containers. That required that each coil be centred laterally in its container, and that the group of coils be centred longitudinally in the container. Labour-level employees of Mannway then placed several restraints around the coils and pallets. Such employees were trained for that purpose by a Mannway supervisor, who had himself received training from BlueScope. The Guidelines showed with some precision how coils on pallets were to be packed in containers and how they were to be secured. It is desirable to describe in more detail the system of restraint prescribed by the Guidelines.
5. First, several steps were to be taken to prevent lateral movement of units consisting of pallet and coil. When such a unit was placed in a container, wooden wedges were to be forced under the sides of the pallet, butting against the pallet (or against the coil itself, if the coil protruded over the perimeter of the pallet). The wedges were then to be nailed to the wooden floor of the container. Wooden chocks, cambered to the same angle as the wedges, were then to be positioned to hold the wedges in place and also nailed to the floor of the container. The wedges and the chocks were specially cut to fit the pallets and to fit each other. The dimensions for the wedges and the chocks were specified in the Guidelines.
6. Secondly, several further steps were to be taken to prevent longitudinal movement of the units consisting of pallet and coil. Unless the units were loaded to fill the length of a container, stoppers were to be constructed for the unit nearest to the back of the container and for the unit nearest to the front of the container. The stoppers were to be connected to the structural supports of the container and were also to be nailed to the container floor. Where the units filled the full length of a container, two wooden boards were to be placed across the width of the container floor, picking up the pallet and the container walls. At least two steel bands (belly bands) were then to be strapped around all of the coils in the container to create a larger unit, consisting of all of the coils on pallets in the container. Where coils of different sizes were carried in the same container, it was necessary that the smaller coils be at one end or the other to ensure that the belly bands were in contact with each coil.
7. Finally, another step was to be taken to ensure that the units, consisting of pallet and coil, were firmly held down and fixed to the container floor, to prevent bouncing. At least two steel straps (overcoil straps) were to be fixed diagonally over each unit, criss-crossing over the coils where possible, and were to be fastened to lug points on the container floor along the side walls. The straps were then to be tensioned, crimped and secured. While the Guidelines did not specify the final level or degree of tension required, they recommended a level of pre-tension and the practice was for the Mannway employees to fasten the overcoil straps as tightly as they could.
8. BlueScope contends that it is clear from the Guidelines and the Abbreviated Guidelines that the wedges must be in contact with either the underneath of the platform of the pallet or the protruding edge of a coil. The Abbreviated Guidelines make clear the requirement for wedges to be hard against a pallet, or the coil where the coil protrudes. Clearly, in order for the wedges (and chocks) to have their intended effect, of preventing sideways topple of the load, that requirement would have to be complied with.

The system of packing modified pallets

1. The Relevant Coils were delivered to Mannway's Port Kembla depot from a site operated by BlueScope that had previously been occupied by Commonwealth Railing Manufacturing (the CRM site). The Relevant Coils were amongst the first coils to be delivered to Mannway's Port Kembla depot from the CRM site. Although the trial judge (at [41]) stated that the evidence was not clear in relation to the provenance of the 6.4 tonne coil, it appears to have been common ground that that coil did not come from the CRM site, with the consequence that the question of ineffective wedging (as described below) did not apply to that coil. Moreover, and importantly, in the joint report prepared by the parties' expert engineers (discussed at [80]ff), the engineers proceeded on the basis that only the two 7.3 tonne coils were not properly wedged. For convenience, however, I shall continue to refer globally to the Relevant Coils in these reasons, except where the distinction is important.
2. The significance of the CRM site being the source of the Relevant Coils is that, unlike units consisting of pallet and coil delivered from other BlueScope sites, the units delivered to Mannway from the CRM site were loaded by means of cranes and chains, rather than forklifts. In order to enable the chains to pass under the pallets, two extra timber runners were nailed to the bearers of the pallets in order to elevate them higher off the ground. A consequence of the presence of the added timber runners was that standard size wedges were of insufficient height to connect with a pallet, or a coil if the coil protruded over the perimeter of the pallet. Set out in Appendix 2 to these reasons is a diagram (in the middle of the page) indicating how the extra runners on the pallets on which the Relevant Coils were mounted prevented contact between the wedges and the pallets.
3. Pallets that had extra wooden runners had previously been sent to Mannway's Villawood depot. Mannway's employees at the Villawood depot adopted a specific procedure in relation to pallets with extra runners that originated from the CRM site: the extra runners were removed from the pallets before pallets and coils were packed inside containers. That was done because of the particular size of the wedges used in connection with the pallets; the standard size of the wedges was in fact specified in the Guidelines. The practice of removing the extra runner had been in place at the Villawood depot for some months before August 2007. The evidence did not disclose how Mannway employees at the Villawood depot came to be aware of the extra runners on the pallets. That is to say, there was no evidence as to whether it was the result of the employees' own observation, advice from BlueScope, or some other means. In any event, it was common ground that BlueScope had taken no steps to inform Mannway of the additional timber runners.
4. Mr Brian Rooney was Mannway's regional manager at the relevant time. He was based in Sydney, not at Port Kembla. Mr Rooney agreed that the belly bands, which went around all of the coils in a container, were intended to create a single unit so as to make the load more stable. In that way, each coil would, in effect, restrain the others. He explained that the overcoil straps were to be fastened to lug points and then tensioned. The employees at Port Kembla used a tensioning tool for that purpose. After tensioning, a clip was attached to an overcoil strap, which was then crimped so that it could not move. A crimping machine was used for that purpose. A Mannway employee would tension the strap as tight as he could and then crimp it.
5. Mr Rooney said that at the Port Kembla site, there were several different pieces of timber, being wedges and chocks, as well as other restraining timbers. Mannway would order in the timber and cut it to size, except for the chocks, which were ordered in a particular size by the Villawood depot.
6. Mr Rooney accepted that, if he were supervising, and a pallet came to the Port Kembla depot with extra runners underneath it, such that the wedges were too short and went under the pallet without coming into contact with it, he would regard it as common sense to put some other timber underneath the wedge or to remove the extra runners. He agreed that common sense told him that the wedges should be in contact with the pallet or a protruding coil, and agreed that the Guidelines clearly required that. He agreed that, in order to meet the Guidelines, if any employee observed that a wedge would fit underneath the pallet and coil and was too short to come into contact with the pallet or coil, he would either knock off the extra runner or put extra timber underneath the wedge.
7. Mr Rooney accepted that it was plain common sense that the wedges could perform their function only if they were in contact with the pallets or coils. He accepted that the requirements of the Guidelines that wedges come into contact with pallets or coils were absolutely mandatory.
8. Mr Rooney said that, when employees packed containers, there were supervisors present at all times, although since supervisors have other duties, they "may come and go". He agreed that, in an ideal world, supervisors should check each container before the doors were closed to ensure that all procedures had been completed. That was part of the job description of the supervisors. Because, for a variety of reasons, an employee might do the wrong thing, the supervisors were employed as a checking mechanism. Thus, the system of work at Mannway's Port Kembla depot was that, before the doors were closed on a container containing vertical steel coils, a supervisor would check that the packing had been done correctly.
9. Mr Rooney explained that the weight of coils needs to be evenly distributed within a container. Mannway employees would mark the floor of a container with a piece of chalk to assist forklift drivers to place the pallet and coil in the correct centred position. The chalk mark was a hand-drawn line on the floor of the container, and marked where the front of the pallet would sit. Thus, if there were three coils to go into a container, three chalk marks would be put on the floor of the container where the front of each pallet needed to be.
10. Mr Rooney said that, when a supervisor was new, he might have a tape-measure to measure exactly where to put chalk marks. Once a supervisor had experience, he knew the size of the coils and simply marked it out. A supervisor might "step it out" to get the approximate distance. He said that the process was reasonably accurate and that it was not necessary to be within a centimetre of accuracy.
11. Next, the forklift driver deposited the pallet and coil as close as he could to the first white line and then reversed out, picked up another pallet and coil and placed it down on the next line and repeated the process for the third pallet. The forklift driver tried to put the pallet down as close to the latitudinal centre as he could, but there was nothing to assist him and he was required to gauge the distance on each side. There would be about half a metre left on each side, but as with the placement of the pallets on the chalk lines, total accuracy was not necessary. That was because, as Mr Rooney said, there was an element of a margin of error built into the packaging to cope with small variations such as a few inches either way.
12. Mr Rooney said that the employees of Mannway responsible for packing containers were not highly trained employees and were basically labourers, "good for following instructions". However, he said, it was necessary to make sure that they were in fact following instructions. Once the loading work had been done, the supervisor might go in and have a look at the container when everything was completed. That inspection would ordinarily take place from the end of the container; it would be unusual for a supervisor to step inside the container and over the strapping. That would be difficult, but not impossible.
13. Mr Rooney had seen pallets with additional runners on them. He said that, when they were lifted up on the forklift, the additional runners could be seen easily. If they were on the ground, the runners were probably not as easy to see. He accepted that, if a supervisor walked by a container when the packers were doing their work, it would be difficult for the supervisor to discern that there were additional runners on the pallets, unless the supervisor specifically knew what to look for.
14. Mr Rooney said that employees of Mannway at the Port Kembla depot were trained that the wedges had to be secured against the pallet or protruding coil. They were trained that the wedges had to be under and in contact with the pallet or coil. He agreed that that would be obvious to a reasonable packing man.
15. Mannway employees were provided with a copy of the Abbreviated Guidelines. Mr Rooney said that the supervisor would ensure that Mannway employees had read the document and did what the document directed. The supervisor would sit down with employees when a new procedure was introduced and go over it with them. The employees would have copies of the Abbreviated Guidelines in their hands and the supervisor would go over the procedures with them.

The events of 29 August 2007 and subsequent accident reports

1. The Relevant Coils, together with other steel coils, were delivered from the CRM site at Port Kembla to Mannway's storage facility at Port Kembla a short time prior to 29 August 2007. They were delivered to Mannway on trucks onto which they had been loaded by crane. The Relevant Coils were then stored in Mannway's warehouse at Port Kembla.
2. On 29 August 2007, employees of Mannway loaded the Relevant Coils into the Relevant Container. As there was no evidence proffered from the employees who actually loaded the Relevant Coils, the sequence in which they were loaded is not known. However, the Guidelines provided that where, as in this case, there were two larger coils and one smaller coil, the smaller coil should be placed on one end in order for the belly bands to be effective. The post-accident evidence did not suggest that that aspect of the Guidelines had not been complied with. The Relevant Container was sealed and was then loaded onto the Trailer, which was then attached to the Prime Mover. The load on the Trailer may fairly be described as heavy and high, in terms of its centre of gravity.
3. Once the Relevant Container was loaded onto the Trailer, Mr Cartwright was required to drive the Vehicle to Port Botany, where the Relevant Container would be loaded onto a container ship for the purpose of transport overseas. According to Mr Cartwright, he had made similar journeys "many many" times, and there was a route that he usually took from Port Kembla to Port Botany, following the Princes Highway through Carss Park. He had made the journey earlier on the same day.
4. On the day in question, Mr Cartwright stopped the Vehicle at traffic lights at the intersection of the Princes Highway and King Georges Road, which is about 0.8 kilometres south of the Accident Site. He then proceeded approximately 600 metres up a hill, to a point where an overhead footbridge crosses the Princes Highway. Just before that point, the Princes Highway begins to descend to the Accident Site. At the Accident Site, the speed limit was 70 km/hr. The surface of the roadway was described as being "off camber" as it led towards the Accident Site. That is to say, the roadway sloped to the right on the left hand bend.
5. At the Accident Site, the Princes Highway has three lanes in each direction. There was some conflict in the evidence as to the lane in which the Vehicle was travelling when the accident occurred. Mr Cartwright said that the Vehicle was travelling in the middle lane. However, Mr John Currie, who was driving a motor vehicle on the Princes Highway in the same direction as Mr Cartwright at the time of the accident, gave evidence that he was driving in the third of the three lanes, about 30 metres behind the Vehicle. Mr Currie said that he was directly behind and in the same lane as the Vehicle.
6. The primary judge did not resolve that conflict, saying that the discrepancy made no difference to the resolution of the question of the speed at which Mr Cartwright was travelling, an important issue that was raised at the trial. However, even if the lane in which Mr Cartwright was travelling was not material to the question of the cause of the accident, the resolution of the conflict may have been important to the reliability of the evidence given by Mr Cartwright as to his speed at the time of the accident.
7. Mr Cartwright said in evidence that, as he attempted to negotiate the left-hand bend in the Princes Highway at the Accident Site, he heard and felt "a loud bang and a thud" as the Vehicle entered the bend. The Trailer capsized, taking the Prime Mover with it. A critical question in the proceedings is the cause of that capsizing.
8. On 6 September 2007, Mr Mike Robertson, the engineering manager of BlueScope, sent an email to various people considering various issues arising out of Mr Cartwright's accident. The terms of the email suggest that Mr Robertson had access to the Relevant Container, or at least a description of what was observed in the Relevant Container after the accident. However, the source of Mr Robertson's information was not identified. In his email, Mr Robertson said that the nailing of timbers was inadequate and that many of the nails "witnessed" had only penetrated the floor of the Relevant Container by 10 to 13 millimetres or less. He said that the nails "simply failed in shear". Mr Robertson also made the observation that "the marine guidelines don't specify the nailing details". That was a reference to the Guidelines. He then addressed the question of whether the Guidelines were appropriate for "road and marine forces". He said that, given the standard of the nailing, it was very doubtful that the system was actually capable of meeting "the on-road standards". He said that, in order to be sure, further work was needed. However, it was not suggested on behalf of Mr Cartwright that inadequacy of the nailing had any bearing on the cause of Mr Cartwright's accident.
9. Mr Robertson said in his email that Mannway had reported that sideways tilt tests of loaded containers showed that the system was "adequate". Mr Robertson went on to say that, while he understood that a marine surveyor had issued a certificate on the securing methods, there was significant doubt that the methods shown actually work as intended. He referred to a photograph received the day before Mr Cartwright's accident showing how 17 containers bound for India had "failed en route". Mr Robertson expressed the opinion that that failure was more likely to be a "design failure than an installation one". He said that, at a minimum, some significant changes were likely to be required to the Guidelines. He did not specify the changes that he had in mind. In any event, it was not suggested on behalf of Mr Cartwright that the failures identified by Mr Robertson had any bearing on the cause of Mr Cartwright's accident.
10. Mr Rooney examined the Relevant Coils, on their pallets, and the Relevant Container, when they were returned to Mannway's Port Kembla depot following Mr Cartwright's accident. The wedges and "locking timbers" behind the wedges (presumably a reference to chocks) were still in place after the accident. The nailing appeared to him to have been done properly. He observed nothing to suggest that the overcoil straps had not been tensioned correctly. He did not observe anything else (other than the lack of contact between wedges and pallets) that was not in compliance with the Guidelines.
11. A report of 20 September 2007 produced by Mannway identified the following as "essential contributory factors" to the cause of Mr Cartwright's accident:

• The pallets included a 50 millimetre extra runner underneath the pallets;
• Packing timber nails "failed in shear" due to poor penetration (10-13 mm) into the floor of the Relevant Container; and
• Timber wedges did not chock against the pallets by reason of the extra runners underneath the pallets, lateral stability therefore being less effective. The report identified the following as one of the "secondary contributory factors": High centre of gravity loading of coils - exacerbated lateral forces and caused a marginal safety factor in vehicle stability.

1. A further undated report, produced by the manager of logistics and procurement at BlueScope, hypothesised that the Relevant Coils may not have been packed strictly in accordance with the Guidelines. The report said that the timber wedges used to block the two larger of the Relevant Coils were not in contact with the pallets and therefore were less effective at preventing sideways movement and the toppling over of the Relevant Coils. The report said that the pallets for the larger two of the Relevant Coils had an additional 50 millimetre "skid" under the bearers and that the wedges used by Mannway were the same as those for pallets without "skids". Therefore, they were not high enough to be in contact with the pallets. The report said that Mannway already knew about that issue and had addressed it at one site by knocking off the additional "skids" prior to loading, but that that "learning" had not been shared throughout Mannway's other operations. The report also said that poor penetration of nails through the wedges into the timber flooring of the Relevant Container most likely resulted in "shear failure" under sideways forces. As I have said, it was not suggested on behalf of Mr Cartwright that any inadequacy of the nailing contributed to the accident.
2. The report then said that, as a consequence of those assumptions, the following were potential contributory factors from BlueScope's "incident cause analysis method":

• The Abbreviated Guidelines required effective blocking but did not distinguish between different pallet sizes;
• Without BlueScope's knowledge, the Guidelines were not followed by Mannway;
• The "management of change processes" did not capture the change in mode of transport of coils from the CRM site with specific pallet requirements; and
• The Guidelines have not historically addressed non-marine freight movements, given that perceived high marine standards apply.

1. Clearly enough, Mr Cartwright had the onus of establishing that the accident was caused by BlueScope's negligence, or breach of duty. BlueScope says that Mr Cartwright did not discharge that onus by pointing to various reports that were made following the accident. The reports make clear that they were not intending to assign blame. Rather, they were endeavouring to find steps that would ensure that a similar occurrence was not repeated.
2. After the accident, BlueScope issued new guidelines. The new guidelines drew attention to the possible use of extra wooden runners, resulting in standard sized wedges not coming into contact with pallets or coils. The new guidelines directed that, if the wedges were too low to make contact, they should be raised on an extra wooden bearer to bring them to an adequate height. The new guidelines also showed that, in addition to the wedges and chocks, wooden braces now had to be nailed between the pallets and the container wall, in order to provide additional pallet restraint. This change was apparently made in recognition of the fact that the wooden chocks did not extend to the wall of the container. Diagrams in the new guidelines appear to show a greater number of nails than was previously the case, although the number of nails was never specified. The new guidelines also required additional top timber braces to be added running the length of coils, thereby providing a solid and consistent base for the overcoil straps that previously did not always line up correctly with the coils. Mr Cartwright did not rely on the new guidelines as indicating any admission by BlueScope of any inadequacy in the Guidelines.

Decision of the Primary Judge

1. It was common ground that the liability of BlueScope and Mannway was governed by different statutory regimes. BlueScope's liability was governed by the Civil Liability Act 2002 (NSW) and Mannway's liability by the Workers Compensation Act 1987 (NSW). As I have said, Mannway accepted that it was in breach of the duty that it owed to Mr Cartwright. While BlueScope accepted that it owed a duty to Mr Cartwright, it did not accept that it was in breach of the duty that it owed to him.
2. The thrust of the case against BlueScope on breach of duty, as appears from Mr Cartwright's statement of claim, was as follows:

• In circumstances where BlueScope changed its system of pallets, so as to place additional timber on the underside of the pallet, BlueScope failed to advise Mannway of the change in its system and failed to propose and implement measures for the safe transportation of the Relevant Coils;
• BlueScope changed the system for the packaging and movement of steel coils without adequate notice and advice to Mannway and without the implementation of an appropriate system;
• In circumstances where BlueScope controlled, directed and implemented the system of movement and transportation of steel coils, BlueScope failed to advise Mannway of the changes to the system and failed to implement a safe system for the transportation of the Relevant Coils;
• BlueScope placed additional timber on the underside of the pallets that were used for the transportation of the Relevant Coils;
• BlueScope failed to remove the additional timber placed on the underside of the pallets once the lifting process that was required at BlueScope's premises for the initial movement of the Relevant Coils had been completed; and
• BlueScope failed to communicate to Mannway the change in design of the pallets.

1. All of those particulars amount to the proposition that BlueScope breached a duty to warn Mannway that the additional runners had been nailed to the bottom of the pallets in question to increase the height of the pallets above the ground. The result was that the wedges prescribed by BlueScope were not high enough to come into contact with the edge of a pallet or the edge of a coil where it protruded over the perimeter of a pallet. It was claimed that the lack of contact increased the instability of each unit consisting of pallet with coil mounted on it.
2. The primary judge found that it was obvious, from the weight of the Relevant Coils, that their transport presented potential risks. Her Honour found that it was essential that the Relevant Coils be securely fastened to prevent movement, with an eye both to the dangers of road transport and to the hazards of sea transport. That is to say, any movement of coils in containers could cause property damage or could result in serious personal injury.
3. The primary judge found that the restraint system described above had the appearance of having been carefully designed and of having been generally effective. Her Honour drew the inference that it was effective from the fact that Mr Cartwright and other drivers had transported many loads without incident. Her Honour found that, to the extent that the system was effective, it was effective because there was uniformity in the basic equipment, being the dimensions of the pallets, the wedges and the chocks.
4. Nevertheless, the primary judge criticised the system. Her Honour found that, for the wedges and chocks to be effective, it was essential that the wedges should come in direct contact with the pallet, or, if a coil protruded over the perimeter of a pallet, in direct contact with the coil. Her Honour found that the presence of the additional timber runners was not readily apparent to a casual observer or an observer who had not been forewarned. Her Honour found that, accordingly, the timber runners may not have been apparent to the Mannway employees whose task it was to pack the Relevant Coils into the Relevant Container and to secure them in accordance with the Guidelines. Her Honour therefore found that the effectiveness of the system was significantly compromised by the fact that standard size wedges were of insufficient height for the pallets in question. Her Honour concluded therefore that the system was flawed. Her Honour referred in particular to the fact that chocks were permitted to be less than the full width of a container, when they could have made use of the strength of the container walls, in favour of a nailing arrangement that was clearly subject to individual variation. Those latter factors, however, do not appear to have contributed to the accident.
5. The primary judge found that the evidence established the following:

• The Guidelines were inadequate in a number of respects, including in failing to deal with a change in the configuration of the pallets that were delivered to Mannway;
• BlueScope failed to inform Mannway that the Relevant Coils were mounted on pallets that were constructed differently from those previously used and could not be adequately restrained by the use of standard sized wedges;
• BlueScope's system was inadequate in so far as it provided for the use of chocks that were of insufficient length to extend to the walls of a container;
• A safer system, introduced after Mr Cartwright's accident, had chocks extending to the walls of a container, thereby obtaining strength and support from the walls;
• It was difficult to believe that the Mannway employees did not know that the wedges did not make contact with the pallets on which the Relevant Coils were placed;
• Mannway's employees failed to take action to remedy the ineffectiveness of the wedges;
• It was not known whether that was because Mannway's employees were inadequately trained and did not understand the function of the wedges, or because they simply did not notice that the wedges did not make contact with the pallets or coils; and
• The nails that were intended to fix the wedges and the chocks to the floor of the Relevant Container did not have sufficient depth of penetration to achieve that purpose, as a result of which the already inadequate chocks failed to restrain the heavy load. Her Honour concluded that, in those circumstances, both BlueScope and Mannway failed to discharge the respective duties owed by them to Mr Cartwright.

1. The primary judge considered that the fact that Mannway owed a duty to Mr Cartwright did not alter the fact that BlueScope acknowledged that it also owed a duty directly to him. Her Honour found that, in maintaining control over the method of packing, BlueScope disentitled itself from relying upon the separate duty that Mannway owed to Mr Cartwright, so as to be relieved of its own obligation.
2. The primary judge found that the additional timber runners on the pallets carrying the Relevant Coils prevented the wedges from achieving the purpose that they were designed to achieve. Her Honour also found that it should have been obvious to employees that the purpose of the wedges was to restrain movement and that that purpose could not be achieved unless contact was made between the wedges and either the pallet or a protruding coil. On the other hand, her Honour found that it was unlikely that Mannway's employees would notice the additional timber runners on the pallets. There is considerable tension between those two findings.
3. The primary judge considered that a disclaimer appended to the Guidelines, in which BlueScope purported to return the responsibility for the packing of coils to Mannway, was inconsistent with the evidence that BlueScope insisted on adherence to the Guidelines. It is also inconsistent with the fact that it was an express term of the Transport Contract that Mannway adhere to the Guidelines. Moreover, her Honour had regard to evidence that BlueScope was experienced in the steel industry and employed engineers whose task it was to design and oversee systems of delivery of its very heavy products. Although Mannway was experienced in the freight industry, and could be expected to have its own expertise in loading and packing cargo, her Honour saw no evidence that it had specialised expertise in loading and packing steel coils.
4. The primary judge characterised the issue as whether BlueScope owed Mr Cartwright a duty extending beyond that of a principal to an employee of an independent contractor and whether it adequately discharged its duties. Her Honour considered that system design lay at the heart of BlueScope's duty and that that had added significance because of the contractual requirement that Mannway pack coils in accordance with the Guidelines. Her Honour found that BlueScope's duty to Mr Cartwright included the proper design of the loading and packing system and also included maintaining the efficacy of that system when circumstances, such as the height of the pallet from the ground, changed. Once that change occurred, her Honour considered that the discharge of BlueScope's duty to Mr Cartwright required notification to Mannway of that change and that BlueScope failed in that respect.
5. The primary judge appears to have found that BlueScope was in breach of a duty owed to Mr Cartwright to draw to the attention of the appropriate level of employee at Mannway the fact that the pallets on which the Relevant Coils were mounted had been modified, such that wedges of the prescribed dimension were inadequate to perform their intended task in restraining the Relevant Coils. Implicit in that conclusion appears to be a finding that the Relevant Coils toppled while the Vehicle was rounding the corner in the Princes Highway at the Accident Site and that they would not have toppled if the wedges had been properly placed in contact with pallets or coils. That is to say, there is implicit in that finding a conclusion as to causation. Certainly, there is no sustained analysis of the issue of causation elsewhere in the reasons for judgment, and her Honour's formal conclusion in respect of s 5D of the Civil Liability Act (at [92]) merely recites the words of that provision.

The Appeal

1. BlueScope's notice of appeal contains 25 grounds, many of which contain sub-grounds. However, BlueScope's submissions were limited to three topics. The first was whether the primary judge erred in failing to make a finding as to the speed at which the Vehicle was travelling at the time of the accident, and in failing to accept opinion evidence of the parties' expert engineers that, even if the wedges were installed inadequately, the load would not have shifted and toppled within the Trailer if the Vehicle was travelling at a speed below 75 km/hr. The second topic was whether BlueScope was in breach of any duty owed by it to Mr Cartwright, assuming that the inadequacy of the wedges was the cause of the accident. The third topic was the apportionment of responsibility as between BlueScope and Mannway, assuming that BlueScope was in breach of a relevant duty owed to Mr Cartwright. I shall address those topics separately.

The speed of the Vehicle and the cause of the capsize

1. BlueScope contends that the formulation of the relevant questions by the primary judge indicated a misapprehension of the case advanced by it. BlueScope says that her Honour conflated two questions into one. The first question was whether the Relevant Coils shifted position and toppled, thereby causing the Vehicle to capsize. If it were to be found that the Relevant Coils shifted position and toppled, thereby causing the Trailer to capsize, taking the Prime Mover with it, the second question would be whether the shifting and toppling of the Relevant Coils was caused by the defective loading of them. BlueScope contends that the question of defective loading of the Relevant Coils does not arise unless it is first established that they shifted position and toppled, prior to the Trailer's capsizing. BlueScope says that it is only at that point that any question of negligence on the part of BlueScope arises. BlueScope contends that the evidence before her Honour could not support a conclusion that the Relevant Coils shifted position and toppled prior to the capsizing of the Trailer.
2. It appears to be implicit in the conclusion reached by the primary judge that the load shifted, thereby causing the Trailer to capsize, and that that occurred because of the inadequacies in the placement of the wedges. That appears to follow from her Honour's acceptance of Mr Cartwright's evidence (described by her Honour as "the most compelling item of evidence that tipping occurred") that he heard and felt a loud bang and a thud before the Trailer capsized. However, in order to reach a conclusion as to whether the load shifted before the Trailer capsized, it is critical to know the speed at which the Vehicle was travelling. As I have said, her Honour made no finding as to the speed at which the Vehicle was travelling when the Trailer capsized.

Expert evidence regarding the Trailer's capsizing

1. Mr Cartwright and BlueScope both relied on opinion evidence concerning the cause of the Trailer's capsizing. Dr George Rechnitzer provided several reports on behalf of Mr Cartwright. Dr John de Pont provided a number of reports on behalf of BlueScope. Dr Rechnitzer is a forensic engineer who has expertise in the fields of safety engineering, collision reconstruction, rollover, impact analysis and workplace safety. Dr de Pont is an engineer with expertise in transport logistics, optimisation, vehicle dynamics, suspension performance, vehicle stability, vehicle-pavement interaction, pavement performance, road roughness, vehicle safety, performance-based standards and research management.
2. Following a conclave between Dr de Pont and Dr Rechnitzer (together the Engineers), they produced a joint report dated 8 October 2012 (the Joint Report). The Joint Report recorded the response of each of the Engineers to questions posed by the solicitors for BlueScope and the solicitors for Mr Cartwright. The Joint Report also contained a joint agreed response to each question, where there was agreement. One of the principal complaints made by BlueScope is that the primary judge failed to have appropriate regard to the joint agreed response to several of the questions answered in the Joint Report. Accordingly, it is desirable to say something about the relevant joint agreed responses.
3. The Engineers were asked to express an opinion as to the speed required to cause the Trailer to roll over on the bend at the Accident Site, assuming there were no "load shift" (that is, relevantly in this case, toppling of the Relevant Coils inside the Trailer) and assuming a stiff suspension, which it was agreed was the kind of suspension used in the Vehicle. Dr Rechnitzer estimated the speed at which the Trailer would roll over was 71 km/hr. Dr de Pont concluded that the Trailer would roll over at a speed of 73 km/hr. The reason for the difference in estimated speeds between the Engineers was that Dr Rechnitzer used a generic value for a stiff suspension, whereas Dr de Pont used the value for the particular kind of suspension used in the Vehicle.
4. The Engineers were then asked to assume that, at the time of the accident, all of the Relevant Coils were centred on their respective pallets and the strapping or banding of the Relevant Coils was in accordance with the Guidelines, but the wedges were not in contact with the Relevant Coils or the pallets on which the Relevant Coils were mounted. Dr de Pont said that, on the basis of those assumptions, the load would shift at 119 km/hr. That, of course, also assumes that the Trailer had not already rolled at that speed, which both of the Engineers agreed would occur at a much lower speed. Once the floor of the Trailer had tilted far enough, the Relevant Coils would topple. Dr Rechnitzer, on the other hand, said that the load would shift or topple at a speed as low as 70-75 km/hr. The reasons for that difference between the respective conclusions of the Engineers are important.
5. Dr Rechnitzer proceeded on the basis that the overcoil straps used in the Relevant Container were either not tensioned at all (that is, loose) or only pre-tensioned. However, that was in contradiction to the evidence of Mr Rooney, who described the practice at the Port Kembla depot as being that the Mannway employees would tension the overcoil straps as tight as they could. It was from the assumption of loose overcoil straps that Dr Rechnitzer derived the speed of 70 km/hr, and it was from the assumption of pre-tensioned overcoil straps that he derived the speed of 75 km/hr. There was no evidence to suggest that the overcoil straps were not tensioned at all, and thus, at the very least, Dr Rechnitzer's calculation of 70 km/hr can be put to one side. The consequence is that, on the available evidence, the Engineers agreed that load shift would not occur in the absence of wedges if the speed of the Vehicle was lower than 75 km/hr. The significance of that consequence is that the Engineers agreed that the speed at which the Relevant Coils would topple was higher than the speed at which the Trailer would roll in any event. The only caveat to that statement is Dr Rechnitzer's speculation about possible "eccentricities" in the loading of the Relevant Coils, which are discussed below (see [94]ff).
6. The next assumption that the Engineers were asked to make was that the Relevant Coils were strapped or banded in accordance with the Guidelines and that all the wedges were in contact with the Relevant Coils or the pallets on which they were mounted. Dr Rechnitzer considered that the load would not shift unless the Vehicle was travelling at a speed of between 106 km/hr and 128 km/hr. Dr de Pont considered that the speed required to cause the Relevant Coils to topple, that is to say, for the load to shift, was at least 144 km/hr. However, Dr de Pont repeated that the Trailer would roll on the bend at the Accident Site if travelling at 73 km/hr or faster.
7. The Vehicle carried a GPS log apparatus, which recorded distance travelled, speeds in excess of the relevant speed limit and times when the Vehicle was stopped and when it was moving. On the day in question, the apparatus recorded a speed of approximately 43 km/hr at 12:25:35 pm, 48 km/hr at 12:26:03 pm and 60.398 km/hr at 12:31:04 pm. The Engineers agreed that the last reading appeared to be the last valid speed reading made by the apparatus before it lost its satellite signal and that that speed reading was accurate. Both agreed that that may be a correct readout of the Vehicle's speed during the accident. The Engineers further agreed that GPS systems are usually accurate to within 1 km/hr or so, although they were not able to comment specifically on the GPS system fitted to the Vehicle, as its specifications were not available.
8. However, they also agreed that that did not mean that the accident occurred at exactly 12:31:04 pm, but rather that the accident occurred at some time between the previous reading at 12:26:03 pm and 12:31:04 pm. Specifically, they agreed that the accident was likely to have occurred within one minute of 12:26:03 pm. They also agreed that, based on the two speed readings at 12:25:35 pm and 12:26:03 pm, the Vehicle would have travelled approximately 382 metres in the 30 seconds after 12:25:35 pm.
9. The Engineers were then asked to assume that the Vehicle was travelling at approximately 55 km/hr as it approached the bend at the Accident Site. They were also asked to assume that there was a loud bang at the rear of the Vehicle and that the Trailer then commenced tipping and eventually tipped over onto its side. They were asked whether, on those assumptions, the accident was consistent with any of the Relevant Coils toppling within the Relevant Container, thereby causing the Trailer and Vehicle to tip over onto its side. Both Engineers agreed that, based on the information that they had about the load and the Vehicle, the lateral forces would not have been great enough to cause the load to shift if the Vehicle was travelling through the bend at 55 km/hr. They also confirmed that, if the Vehicle travelled through the bend at a speed of 71-73 km/hr, the Trailer would become unstable and roll over without any load shift occurring. Both of the Engineers agreed that, if the wedges were not in contact with the pallets of the Relevant Coils, as specified in the Guidelines, the rollover stability of the Relevant Coils would have been reduced.
10. Both Engineers agreed that deformation of the Relevant Container on the driver's side was consistent with the Relevant Coils having toppled. However, they also agreed that there was no way of determining, from that damage, whether the toppling occurred before or after the Trailer started to roll.
11. The Engineers were also asked whether the Relevant Coils could have shifted prior to the accident, given that, on the journey to the Accident Site from the point where the Relevant Containers were loaded on to the Trailer, the Vehicle had to go through a number of corners that were at least as sharp as the bend at the Accident Site. Dr Rechnitzer expressed the opinion that it was possible for the load to have shifted in stages during the trip. Dr de Pont expressed the opinion that, with the load restraint system that was in place, the load shift would not have occurred at speeds below rollover speed, that is, 71-73 km/hr, being the speed at which the Trailer would have begun to roll over in any event.
12. Mr Cartwright's evidence as to the speed at which he was travelling when the Trailer capsized involved some inconsistencies. Mr Cartwright told the police the day after the accident that the Vehicle was travelling at about 60 km/hr as he neared the intersection of Carwar Avenue, but that he rounded the bend immediately before the Accident Site at about 50 km/hr. Mr Cartwright said in his evidence-in-chief that he was travelling at 55 km/hr. In cross-examination, he said that the speed might have been 5 km/hr faster or slower. That gives a possible speed of between 50 km/hr and 60 km/hr. However, he then retracted that degree of uncertainty and asserted that he had a clear recollection that his speed was 55 km/hr a few seconds before the accident. He said that that had always been his recollection and that that was the speed that he had told the police who interviewed him following the accident.
13. Mr Cartwright also gave evidence about what he believed to be a safe speed to take the bend leading to the Accident Site. He agreed in examination-in-chief that the corner was too sharp to drive through at 70 km/hr. He said that his usual practice was to take the turn at 55 km/hr, give or take a couple of km/hr, and that 65 km/hr was the upper limit of a safe speed for this corner. Dr Rechnitzer, in his third supplementary report, said that he shared Dr de Pont's opinion that a safe speed would be 55 km/hr or perhaps as low as 45 km/hr.
14. It is clear that both of the Engineers agreed that, if the Vehicle was travelling at 71-73 km/hr or faster, the Trailer would roll on the bend at the Accident Site before the load would have shifted or toppled, even assuming that the Guidelines had been complied with. The load would not have shifted and toppled when the Vehicle was travelling at a speed of 55 km/hr, even if the wedges were not in contact with the pallets on which the Relevant Coils were mounted. Therefore, BlueScope contended, the Vehicle must have been travelling well above 55 km/hr. BlueScope complains that the primary judge failed to have regard to the agreement between the Engineers as to the speed at which the Trailer would have to be travelling before it would roll over on the bend at the Accident Site.

Mr Cartwright's notice of contention and possible "eccentricities"

1. In a notice of contention filed on 19 June 2014, Mr Cartwright contended that the primary judge should have found that the configuration of the load and restraint system was such that there was load shift, without effective wedging, at a speed lower than 70 km/hr and should properly have drawn an inference that the capsizing of the Trailer, when travelling at a speed lower than 70 km/hr, was due to a defective restraint system and no effective wedging. Mr Cartwright asserted that BlueScope knew or ought to have known that coils would be vulnerable to tipping because of the natural "eccentricities" that might occur, such as pallets being placed slightly off-centre within a container. The term "eccentricities" originated in the evidence of Dr Rechnitzer.
2. Mr Cartwright says that an inference should be drawn that there must have been eccentricities, such as:

• The off-centre placement of the Relevant Coils on their pallets;
• The distance between the bearers or struts under the pallets being narrower than it should have been;
• The bearers or struts under the pallets being not equally placed relative to the centre of the pallets; and
• The off-centre placement of the pallets in the Relevant Container. He says that contact between the wedges and the pallets on which the Relevant Coils were mounted would have prevented the toppling of the Relevant Coils, even with such eccentricities. Therefore, he contends, the absence of contact between wedges and pallets was the cause of the accident. Accordingly, he says, there was a causal connection between the capsizing of the Trailer and the failure by BlueScope to warn Mannway of the added timber runners, which failure, he says, was a breach of the duty owed to him by BlueScope.

1. Mr Cartwright's proposition appears to be that, since some of the evidence (namely, the GPS evidence and Mr Cartwright's own evidence) suggests that the speed of the Vehicle was not greater than 70 km/hr, there must have been some eccentricities in the packing of the Relevant Coils in the Relevant Container, in addition to the absence of contact between wedges and pallets, which together resulted in instability of the load. He accepts that there was no breach of duty on the part of BlueScope or Mannway in relation to such possible "eccentricities". However, he says, the lack of contact between wedges and pallets, coupled with such eccentricities, was the cause of the Trailer's capsizing.
2. It was common ground between the Engineers that the Trailer would not have capsized if travelling at less than 71-73 km/hr, assuming that the wedges were not in contact with the pallets or coils, but the Guidelines were otherwise complied with. Mr Cartwright says that, therefore, for the Trailer to have capsized when the Vehicle was travelling at less than 71-73 km/hr, there must have been some eccentricities in the packing of the Relevant Containers, in addition to the absence of contact between wedges and pallets.
3. Mr Cartwright contends that, on the assumption that the wedges were properly in contact, there was no other explanation for the capsizing, assuming that the Vehicle was travelling at 55 or 60 km/hr. If the wedges were in proper contact, the Trailer would not, simply by reason of eccentricities, capsize at 55 or 60 km/hr. He says that he does not have to point to any particular eccentricity or combination of them, but that an inference is open that there were almost certainly such eccentricities. Such eccentricities should be presumed from the method of packing and restraint prescribed in the Guidelines.
4. Mr Cartwright readily accepted that there was no actual evidence of the existence of any of the postulated eccentricities; rather, their existence was to be inferred given the fact that there was no other apparent explanation for the Vehicle to have rolled over at a speed lower than 71-73 km/hr. That is, Mr Cartwright says that the existence of these eccentricities, in some unspecified combination and in some unspecified degree, is the only available inference given that the speed that the Vehicle was travelling at the time of the accident was, according to the GPS evidence and Mr Cartwright's evidence, no faster than 61 km/hr.
5. In written submissions to the primary judge, as repeated in oral argument before this Court, Mr Cartwright referred to eccentricities in the context of causation. It was not suggested at any stage that the possibility of such eccentricities had a bearing on BlueScope's duty of care. That is to say, it was not suggested that BlueScope's system of packing and restraint, as encapsulated in the Guidelines, was defective insofar as it did not accommodate variations (beyond the minor) of the placement of loads in their container. Certainly, the Guidelines did not require that every placement of an object (such as coils on their pallets) be done within a millimetre of accuracy.
6. One of the difficulties with Mr Cartwright's submission was that he was unable to identify with precision the degree to which the eccentricities existed. Counsel for Mr Cartwright said that the smallest amount of variation that could have contributed to load shift in the Relevant Container was 75 millimetres. However, even that degree of eccentricity was unlikely to have escaped the notice of the Mannway employees. Dr de Pont said that it would be "obvious", once the coils were lined up, if one was off-centre in relation to its pallet. If a coil was off-centre on a pallet by even 10 millimetres, that would result in 20 millimetres of pallet showing on one side, which, he said, would be obvious. He said, furthermore, that a variation of 75 millimetres would be "quite a long way to be off-centre". Moreover, even Dr Rechnitzer accepted that, if the Vehicle was travelling at 55 km/hr, and if the wedges were ineffectively placed, and if there was an eccentricity of 75 millimetres, that speed would still not be fast enough for the load to shift or topple.
7. Having observed the pallets after they were returned following the accident, Mr Rooney observed nothing out of the ordinary, although the condition of the Relevant Coils and the Relevant Container after the accident would not enable him to observe any eccentricities that might have been present. By the time the Relevant Coils had been returned to the Mannway depot, they were horizontal and were no longer on their pallets. He did, however, confirm that the diameter of the Relevant Coils was no greater than the width of their pallets and that the runners were in their normal position. That indicates that there was no protruding of any of the Relevant Coils over the edge of its pallet. However, that is not necessarily inconsistent with some degree of eccentricity consisting of one of the Relevant Coils not being perfectly centred on its pallet. Having said that, there was simply no evidence of any relevant eccentricity. The possibility of some such eccentricity was entirely speculation on the part of Dr Rechnitzer.
8. Dr Rechnitzer initially postulated eccentricity only to the extent that one of the Relevant Coils may not have been centred on its pallet. As I have said, in Dr de Pont's oral evidence before the primary judge, he indicated that such an eccentricity, of up to 75 millimetres, would have been clearly apparent to any of Mannway's employees responsible for packing the Relevant Container. Indeed, Dr de Pont said that "any eccentricity more than a few millimetres is immediately obvious", and that a variation of 75 millimetres would be "very obviously a long way off-centre", although he could accept that a variation of 10 millimetres may not be readily observable. Those opinions were based on the fact that the pallets on which the two 7.3 tonne coils were placed were only 40 millimetres wider than the coils themselves, and so, assuming perfect placement, there would be only 20 millimetres spare on either side.
9. That opinion of Dr de Pont led Dr Rechnitzer to suggest that there may have been other eccentricities, such as the unequal placement of the bearers relative to the centre of the pallets that they were supporting. However, he was unspecific about such eccentricities, of which there was no mention in his earlier reports and of which there was no evidence. There was no exploration at the trial as to how such eccentricities might occur or the size or degree of them, and no findings were made by the primary judge that would support the existence of such eccentricities. The hypothesis advanced by Dr Rechnitzer, and sought to be supported by Mr Cartwright, must therefore be rejected. That conclusion draws further strength in circumstances where the accuracy of the evidence suggesting that the Vehicle was travelling at 55-60 km/hr, on which speed Mr Cartwright's series of inferences relating to "eccentricities" depends, cannot easily be accepted, as I conclude below.
10. Clearly enough, there was a departure from the Guidelines insofar as, when the Relevant Container was loaded at Mannway's premises at Port Kembla, the wedges were not in contact with the pallets on which the Relevant Coils were mounted. However, the Engineers agreed that, even if the wedges were not in proper contact, there would have been no load shift unless the Vehicle was travelling around the bend at the Accident Site at a speed in excess of 70 km/hr. Furthermore, the Engineers agreed that, in the absence of load shift, the Trailer would have rolled in any event once the Vehicle reached a speed of 71 or 73 km/hr, and that once the Trailer floor had tilted far enough, the Relevant Coils would topple.
11. As I have said above (at [91]), Mr Cartwright's evidence about the speed at which he was travelling at the time of the accident was inconsistent. His final position was that his speed was 55 km/hr a few seconds before the accident. Both of the Engineers, however, agreed that he was travelling at, at least, 60.4 km/hr, being the last recorded speed of the GPS apparatus, at the time of the accident. Dr de Pont stated in his evidence before the trial judge that that speed was less than the actual speed of the Vehicle when the rollover started, and although Dr Rechnitzer did not agree with that proposition, he accepted that it was a possibility.
12. That speed of 60.4 km/hr was recorded at 12:31 pm, and the previously recorded speed, at 12:26 pm, was 48 km/hr. Both Engineers agreed that the accident is likely to have occurred within one minute of 12:26 pm. Dr de Pont said that the speed of 48 km/hr appears to have been the speed of the Vehicle as it reached the top of the hill before the 300 metre steep descent to the Accident Site. Dr de Pont said that the Vehicle could easily have reached 70 km/hr within less than a minute, if it started at 48 km/hr at the top of the hill. It would not be surprising if the Vehicle were travelling at or above the speed limit of 70 km/hr by the time it reached the Accident Site, given that Mr Cartwright had exceeded the speed limit a number of times earlier in the very same journey.
13. In light of that evidence and the lack of certainty on the part of Mr Cartwright, there is considerable doubt as to the speed at which the Vehicle was travelling when the Trailer capsized, and it is certainly not at all clear that Mr Cartwright was travelling at 55 or 60 km/hr. The primary judge made no finding as to the speed. If the Vehicle was travelling at 71-73 km/hr (and, relevantly, in excess of the speed limit applicable at the Accident Site), that would be sufficient to result in the Trailer's capsizing.
14. Moreover, the evidence to which the trial judge attached considerable importance is in truth equivocal. The "loud bang and a thud" felt and heard by Mr Cartwright could have been the result of the Relevant Coils hitting the side of the Relevant Container as the Trailer rolled (or, more specifically, after it began to roll), as opposed to being, as the trial judge found, an indication that the load shifted before the Trailer began to roll. Dr de Pont expressed the opinion that the Trailer may have slowly (and, initially, imperceptibly) begun to roll, and that, once the Trailer had reached a certain angle, the Relevant Coils would have toppled and fallen with it. That would explain the order of Mr Cartwright's two observations. Dr Rechnitzer, although he appeared not to agree with Dr de Pont's analysis, said that the toppling of the Relevant Coils and the capsizing of the Trailer would have been "quite a rapid movement" that could be consistent with Mr Cartwright's description of the accident. That suggests that it may not have been possible for Mr Cartwright to draw a clear temporal distinction between the two events.
15. In those circumstances, Mr Cartwright has failed to establish, on the balance of probabilities, that eccentricities or improper or incorrect packing (namely, of the wedges) caused the Trailer to capsize. Even if the failure to warn Mannway of the change in the construction of the relevant pallets was a breach by BlueScope of a duty owed to Mr Cartwright, the accident that gave rise to Mr Cartwright's injuries would not have occurred unless the Vehicle was travelling at a speed in excess of the limit applicable at the Accident Site.

Scope of BlueScope's duty to Mr Cartwright

1. The primary judge rejected BlueScope's contention that it was not in breach of the duty owed to Mr Cartwright, having regard to the fact that the transport of coils of such dimensions and weight as the Relevant Coils was a highly dangerous activity, calling for extreme care on the part of all concerned. Her Honour had regard to the fact that BlueScope insisted on adherence to the Guidelines, including the specifications for wedges, that BlueScope delivered pallets that differed from those previously delivered, insofar as they had the additional runners attached to them, and that BlueScope omitted to notify anybody at Mannway of that difference. Her Honour considered that it was foreseeable that Mannway's workers would not notice the additional runners on the pallets.
2. The primary judge also considered that it was foreseeable that Mannway's employees would not appreciate the significance of having wedges not being in contact with the pallet or with the coil where it protruded. However, in the light of her Honour's earlier finding (at [42]) that it should have been obvious to Mannway's employees that the purpose of the wedges was to restrain movement and that that purpose could not be achieved unless contact was made between the wedges and either the pallet or a protruding coil, it is difficult to see why Mannway workers would not appreciate the significance of such contact.
3. The instruction in the Guidelines was that "wedges are forced under the side of each coil, this may be against the pallet or the coil when it protrudes beyond the pallet" (emphasis added). The primary judge considered that that provision of the Guidelines did not place particular emphasis on the need for physical contact. Her Honour had regard to the fact that the system designed by BlueScope was, to its knowledge, to be implemented by labour-level employees of Mannway. Her Honour considered that the Guidelines were insufficiently clear to draw the attention of employees to the purpose of the wedges and the importance of contact between the wedges and the pallet or coil. Her Honour concluded that it was foreseeable by BlueScope that those workers would not appreciate the full significance of the instruction in the Guidelines.
4. The primary judge considered that the fact that Mannway also owed a duty to Mr Cartwright did not alter the fact that BlueScope itself, by its own acknowledgement, owed a duty directly to Mr Cartwright. Her Honour considered that, in maintaining control over the method of packing, BlueScope disentitled itself from relying upon the separate duty that Mannway owed to Mr Cartwright and was not relieved of that duty.
5. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind that they owe to their employees, although, in some circumstances, a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe (Leighton Contractors Pty Ltd v Fox [2009] HCA 25; 240 CLR 1 at [20]). If a principal fails to engage a competent contractor, it may not avoid liability for the negligent failure of the contractor to take reasonable care to adopt a safe system of work. However, provided that the principal retains a competent contractor, and the relevant activity is placed in the contractor's hands, the principal is not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or by those with whom the sub-contractor has subcontracted (Leighton Contractors v Fox at [59]).
6. An entity that organises an activity involving a risk of injury to those engaged in the activity is under a duty to use reasonable care in organising the activity to avoid or minimise that risk. Such a duty is imposed whether or not the entity is under a further duty of care to servants employed by it to carry out that activity. The duty arises simply because the entity is creating the risk. However, the duty is more limited than the duty owed by the entity to an employee. The duty does not extend to retaining control of working systems, if it is reasonable to engage the services of independent contractors who are themselves competent to control the system of work without supervision by the principal entity. The circumstances may be such that the entity will be obliged to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors, if confusion about those areas gave rise to a risk of injury. However, once the activity has been organised, and its operation is in the hands of apparently competent independent contractors, any negligence of the independent contractors, within the area of their responsibility, is not the vicarious responsibility of the principal entity. If a principal entity takes reasonable care in the retainer of independent contractors who are competent to control their own systems of work, in retaining a supervisory power (where appropriate) and in defining the contractors' respective areas of responsibility, the principal entity will not be liable for damage caused merely by negligent failure of an independent contractor to adopt or follow a safe system of work, either within the area of responsibility of the contractor or in an area of shared responsibility (see Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at 47-48).
7. When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. For example, a motorist may reasonably assume that other road users will be reasonably careful. On the other hand, it is sometimes reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent. The obviousness of a risk and the remoteness of the likelihood that other people will fail to observe and avoid it may be factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, then there would be little room for the doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration (Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 9; 221 CLR 234, at [35]-[37]).
8. The admission by Mannway of breach of the duty that it owed to Mr Cartwright incorporates an admission that Mannway knew or ought to have known that the wedges were not in contact with the Relevant Coils or the pallets on which they were mounted, with the consequence that Mannway knew or ought to have known that the lack of contact gave rise to a risk of injury to Mr Cartwright.
9. The concession by Mannway, that it knew or ought to have known that the wedges were not the size required for the pallets in question, highlights that BlueScope's duty did not extend to warning Mannway of the inadequacy of standard size wedges by reason of the additional runners under the pallets. It was physically possible for Mannway's supervisors to do whatever their job required them to do, which included checking the wedges. Mannway had an obligation to pack the Relevant Coils in the Relevant Container and there was no confusion between Mannway and BlueScope as to who had that obligation. Mannway was an otherwise competent supervisor that did not need BlueScope looking over its shoulder.
10. Mr Cartwright's submissions, taken to their logical conclusion, would require BlueScope to have its own employees on site at Mannway's depot to supervise Mannway in everything that it did. That would effectively equate BlueScope's duty with that of an employer, which BlueScope clearly was not, in relation to Mr Cartwright.
11. Even if Mr Cartwright were able to establish that there were eccentricities present, it is not possible to say whether such eccentricities arose because of the conduct of BlueScope or the conduct of Mannway. Even assuming that the conduct of either of them amounted to negligence, Mr Cartwright's claim against BlueScope must fail unless he is able to establish, on the balance of probabilities, that BlueScope was negligent before BlueScope can be held liable for his injuries. It is not sufficient to say that one of two defendants must have been negligent and that either of them may have been negligent. A plaintiff must be able to point, on the balance of probabilities, to the particular defendant who was negligent (see Kilgannon v Sharpe Ross Pty Ltd (1986) 4 NSWLR 600 at 617E-G, 625B and 628C).
12. There was no suggestion in the present case that the circumstances made it necessary for BlueScope to retain and exercise a supervisory power over the performance by Mannway of its obligations under its retainer from BlueScope to pack coils into containers and transport them to Port Botany. There was no suggestion that BlueScope failed to prescribe the areas of responsibility of Mannway such that there was confusion about areas of responsibility that might involve a risk of injury.
13. Mr Cartwright says that there must have been a load shift of the Relevant Coils that would have been prevented by wedges if they had been in contact with the pallets on which the Relevant Coils were mounted. He says that the wedges would have been in place had BlueScope provided a warning that the pallets in the present case were different and that further steps needed to be taken either to remove the additional runners or to increase the size of the wedges.
14. In all of the circumstances, I do not consider that the evidence supports a conclusion that BlueScope was in breach of its duty to Mr Cartwright. It specified in unequivocal terms in its Guidelines, which Mannway was bound by the Transport Contract to follow, that the wedges were required to be in contact with a coil or the pallet on which the coil is mounted. In particular, the use of the word "forced" in the instruction about the placement of the wedges renders it clear, contrary to the finding of the primary judge, that physical contact was to be made between the wedge and the pallet or coil. BlueScope was entitled to expect that its competent independent contractor would comply with those detailed instructions contained in the Guidelines. I consider that the primary judge erred in concluding to the contrary.

Apportionment and the cross-appeals

1. In the light of the conclusions I have reached above, no question of apportionment between BlueScope and Mannway arises. Mr Cartwright must be held entirely responsible for his injuries.
2. In the course of the hearing of the appeal, it became apparent that, if BlueScope's appeal were to be allowed and a verdict were entered in favour of BlueScope, the question of Mannway's liability to Mr Cartwright would need to be reconsidered. That prompted a cross-appeal by the Insurer and a second cross-appeal by Mr Cartwright.
3. In its cross-appeal, the Insurer sought the grant of an extension of time and orders that the judgment against the Insurer and the orders for costs be set aside. In lieu of those orders, it sought an order that judgment be entered in favour of the Insurer on Mr Cartwright's claim or, alternatively, that there be a new trial on all issues as to liability. The grounds of appeal are that the primary judge erred in finding that any breach of duty of care on the part of Mannway caused Mr Cartwright's injuries and that her Honour failed to give any or any sufficient reasons for that finding.
4. In the second cross-appeal, Mr Cartwright sought leave to file a notice of cross-appeal out of time and an order that, if BlueScope's appeal is allowed, there should be judgment for Mr Cartwright against the Insurer for the full amount of his damages. The ground of Mr Cartwright's cross-appeal is that, on the assumption that BlueScope has no liability to him, the primary judge erred in apportioning 15% of liability to the Insurer, rather than 100%.
5. Neither of the cross-appeals raises any new factual or legal issue beyond those raised by BlueScope's appeal. Both are predicated upon BlueScope's appeal succeeding, although it ought to have been apparent when BlueScope's appeal was commenced that the success of the appeal would have consequences as between Mr Cartwright and the Insurer.
6. The conclusion reached above is that the cause of Mr Cartwright's accident was his travelling around the bend leading to the Accident Site at a speed that was excessive, having regard to the nature of the roadway, the nature of the Vehicle and the load. In the light of that conclusion concerning causation, there does not appear to be any alternative but to allow the Insurer's cross-appeal and to dismiss Mr Cartwright's cross-appeal.
7. While Mr Cartwright's statement of claim alleged that Mannway was negligent in a number of respects, the only respect that appears to have been pressed is the inadequacy of the packing of the Relevant Coils, and specifically the lack of contact between the wedges and the pallets on which the Relevant Coils were mounted. It follows from the conclusion reached above that the accident was not caused by any such inadequacy of packing, but excessive speed. In those circumstances, there is no basis for ordering a new trial on liability.

Conclusion

1. It follows that BlueScope's appeal and the Insurer's cross-appeal should be allowed. The orders of the primary judge should be set aside. In lieu of those orders, there should be a verdict and judgment for BlueScope and the Insurer. Mr Cartwright should pay the costs of BlueScope and of the Insurer of the proceedings before the primary judge. The second cross-appeal should be dismissed.
2. BlueScope has been entirely successful in the appeal. Mr Cartwright and the Insurer should pay BlueScope's costs of the appeal. Mr Cartwright should have a certificate under the Suitors' Fund Act 1951 (NSW).
3. While the Insurer has been successful in its cross-appeal, it did not file the cross-appeal until after the hearing of BlueScope's appeal had begun. The same observation can be made in relation to Mr Cartwright's cross-appeal. Mr Cartwright has been unsuccessful in relation to both. Nevertheless, both cross-appeals were, in a sense, defensive. The appropriate course is to make no order as to the costs of either of the cross-appeals.
4. However, there has been no argument as to costs. If any party wishes to make any submissions as to costs contrary to the orders proposed above, that party should file and serve submissions within seven days from today and any other party affected by the orders proposed in such submissions should file and serve written submissions in response within fourteen days from today. If no submissions as to costs are filed, BlueScope should, within fourteen days from today, bring in short minutes to give effect to these reasons.

Appendix 1 (375 KB, pdf) Appendix 2 (60.0 KB, pdf)

Amendments 27 February 2015 - Addition of Appendix 1 and Appendix 2 03 March 2015 - [2] The word "appellant's" amended to read "first respondent's"; the word "appellant" amended to read "first respondent". 03 March 2015 - Representation - "D Talintyne" amended to read "D Talintyre" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2015