Over the last two weeks there has been a marked problem with your driving; from bogging your truck which caused substantial damage to the truck, to a broken tail shaft. Your driving performance will be monitored and you will be sent for driving training and assessment with our Driver Trainer, Mr Chris Wells."
By May 1998 Boral was on notice that there had been a problem with Mr Whitehead's driving which required monitoring, assessment and training. It is not clear that this occurred.
9 Judge Sidis said the issues to be determined in the case were as follows:
"1. What caused the truck which the plaintiff was driving to overturn? The options being:
(a) The negligence or contributory negligence of the plaintiff by driving at excessive speed in the circumstances; or,
(b) The negligence of the first defendant in loading coal unevenly into the double trailers of the trucks; or,
(c) The negligence of the second defendant in providing an unsafe system of work for the plaintiff in that it did not adequately train him in the operation of the truck which he was driving, or that it did not adequately instruct him as to the conditions of the route which he took at the time of the accident, or that there was an absence of speed warning signs which would have alerted the plaintiff to the need to take extra caution at the point where his truck overturned.
2. There arises an issue that, if I find more than one of those parties responsible for the plaintiff's injuries, I have to determine the proportions in which liability is to be dealt with.
3. The claim brought against the first defendant is to be determined on Common Law principles. As against the second defendant I have to take into account the provisions of the Workers' Compensation Act 1987.
4. There are mutual cross-claims between the first and second defendants and in addition the second defendant has claimed against AMP General Insurance Limited as its third party insurer, pursuant to the Motor Accidents Act 1988. This raises the issue of whether the accident was the result of the fault of the owner or driver of the motor vehicle in the use or operation of the motor vehicle."
The causal link between negligence and injury is not mentioned. Paragraph 2 suggests it was assumed.
10 The claim against Muswellbrook was to be determined on common law principles. The claim against Boral required consideration to be given to the provisions of the Act.
11 Mr Whitehead held the necessary licence to drive a heavy vehicle and had had experience in truck driving in England before coming to Australia. Judge Sidis thought that his experience in England had been limited to non-articulated vehicles but he gave evidence that he had experience taking single trailers across the water to France and Spain though not on a regular basis. He said: "You don't have B-doubles or road trains in England or Europe." Her Honour said:
"Initially the plaintiff was employed as a semi-trailer driver, that is driving a truck which comprised a prime mover with a single trailer. He was trained in May 1996 to drive the B-double vehicle, that is a prime mover with two trailers. His training comprised one day of driving B-double trailers with side tipping bins. According to the plaintiff he had driven B-double trailers for short periods between 1996 and 1998 but he mainly drove the semi-trailer type truck. He agreed that he had driven a B-double trailer with bins of a different type to that which he was driving at the time of his accident for most of June 1998. He also agreed that he had driven a truck with a B-double trailer of the type which overturned for most of July and up to the date of his accident. He stated however that the first time that he had driven this particular type of B-double trailer on the route upon which the accident occurred was on 12 August 1996, the date of his accident."
12 This statement was partly inaccurate. Mr Whitehead said that the B-double trailer he was driving for most of June 1998 had bins of the UBTS configuration on trailers that were attached to the prime mover at the time of the accident. For most of July he was driving the prime mover Fleet No 5409 which was involved in the accident. On the night in question his shift began at 4 pm on the afternoon and would have continued until 4 am the next morning. He had not driven prime mover Fleet No 5409 with the UBTS configuration on the ICI Haul Road before that shift. However, during the shift he had delivered two or three loads using this prime mover and the UBTS configuration over the road without incident.
13 Judge Sidis described the loading procedure. The drivers of the trucks lined up at the stockpile and moved along in line to be loaded by front-end loaders driven by Muswellbrook's employees. The truck drivers waited until their vehicles were loaded and took no part in the loading operations.
14 On 12 August 1998 the load operators were loading from the right. Mr Whitehead said he noticed that the load operators were loading the coal into the left-hand side of the vehicles rather than into the centre. He said he complained through his CB radio to Keith Goodbun, a senior Boral employee. The purpose of his complaint was to seek to have the coal operators amend their behaviour and load into the centre of the trailers. According to Mr Whitehead there was no change in the method of their operations. He said he was not able to see from the ground or from his position in the cabin the manner in which his own trailers had been loaded because the tops of the bins were high off the ground. Evidence from a fellow employee, Anthony Mark Waters, who was working as a truck driver at the time of this accident, made it clear that there was no ladder available by which Mr Whitehead could have climbed up to view the state of his load and whether or not it was unevenly loaded.
15 Mr Whitehead drove from the loading area to the weighbridge where it was noted that his load was slightly underweight but not sufficiently so to require that he return to the stockpile to be topped up. He then left the site of the mine and travelled towards the coal loader. He travelled over a fairly rough road onto the New England Highway and then in due course turned left from the New England Highway into Pikes Gully Road. He was unable to cut the corner because of the position of some trees at the turn. There were no warning signs or speed advisory signs at the site of his accident. He had been given no instructions concerning the minimum speed at which he should travel through the left and then the right-hand bend in order to access the ICI Haul Road. He had no warning the truck was about to roll over before it rolled except that he heard a creaking or cracking noise immediately before it did so.
16 Mr Waters gave evidence about the loading method and problems relating to uneven loading. He said there were means of knowing whether the load was uneven. A colleague in a line might warn a driver through the CB radio that his load was uneven. On occasions the loader operators themselves might advise a driver. Dennis Frederick Day, a former plant operator employed by and called by Muswellbrook to give evidence, confirmed that on occasions he informed the driver that his load was uneven. Finally it might be possible to detect an uneven load through the behaviour of the truck itself which would display characteristics of instability or not running true on the road. The unevenness could be rectified by applying brakes or by tipping the vehicle or, in most cases, by climbing a ladder to the bins and redistributing the load by means of a shovel. Mr Waters agreed that the load might also settle during the path of travel from the mine to the terminal.
17 The coal, which was being loaded, was granular and not in large lumps. Mr Waters said if it was wet it stuck together "like glue" and it then became very difficult to move the load if it had been placed unevenly in the trailers. Mr Waters said that it had rained for about one and a half weeks before 12 August 1998 and the coal that was being loaded on that date was very wet. On 12 August at the time of the accident it was fine and dry.
18 Mr Waters also said that he spoke to Mr Goodbun as well as Russell Brown, a shift foreman, and by CB radio at least three times to each of the two loader operators. He said he asked them to load the coal into the centre of the trailers and they told him they would see what they could do. The situation did not improve. Boral's rules required the drivers to contact a supervisor if they were concerned about the stability of their loads. Mr Waters said that on complaining to Mr Goodbun he was told that he would have to keep going.
19 Mr Goodbun was not called to give evidence and there was no explanation for his absence from the court which the trial Judge regarded as significant.
20 Muswellbrook called one of the two loader operators, Grahame Newton, who said although he remembered the night in question he did not remember any complaint having been made. He said he did receive occasional complaints concerning the unevenness of loading and would work with the drivers on it. He said that a number of complaints on one night would be unusual. He agreed that if a load was uneven it could cause instability in a truck and therefore a complaint would be justifiable. Mr Day insisted he had received no complaints that night and said he had never received any complaint in the course of twenty-nine years in Muswellbrook's employment. He said that the CB radios used by the drivers and the loader operators were consistently used by the drivers talking "a lot of rubbish" and he did not listen to those conversations.
21 Mr Whitehead said that he noticed no instability on the journey between the loader and the site of his accident and that the characteristics of his truck had been the same as on the two or three previous trips that night. The only difference was that on the occasion of the accident he heard a noise when the truck rolled over. According to Mr Waters, movement of a load can make a creaking or clunking noise whether the load is wet or dry. Mr Whitehead was asked whether he came out of Muswellbrook's premises knowing that the load had been improperly put into his trailer. He responded: "No, I didn't know it was put all to one side".
22 Muswellbrook's position was that the speed of travel was the critical factor in causing the accident. The truck carried an onboard monitoring system which recorded the speed. At the time of the accident the speed of Mr Whitehead's vehicle was at 30 or 31 kilometres an hour. The evidence was that a difference of one or two kilometres an hour in a situation such as the one in which Mr Whitehead found himself could be critical to the difference between the safe negotiation of a bend in the road and catastrophe. Mr Whitehead said:
"Most people don't go by speedometers ……they know the speed they are going by the gear that they are in, and I was in the right gear that I thought that I'd changed - I had the same gear at the same time on all the previous loads to go round the corner."
23 Boral undertook an investigation. As a result it formed the view that Mr Whitehead took the right-hand bend at excessive speed. When he returned to employment on 7 October 1998 he was handed a letter of termination (Exhibit K) in these terms:
"An investigation was conducted to determine the root cause of the accident. This investigation included controlled speed tests and analysis of information from computer generated reports from the Fleetcom on board monitoring system, vehicle maintenance logs and interviews with mechanical staff and senior company drivers, an independent mechanical inspection and statements from you with regard to the accident.