Brambles Australia Ltd (trading as Brambles Industrial Services) v Sandy & Anor

LEGISLATION CITED: Motor Accidents Compensation Act 1999 Workers Compensation Act 1987

Cruise Group Pty Ltd v Fullard [2005] NSWCA 161; CSR Ltd v Della Maddalena (2006) 224 ALR 1; Fairfield City Council v Petro [2003] NSWCA 150; Fox v Percy (2003) 214 CLR 118; CASES CITED: Francis v Lewis [2003] NSWCA 152; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; University of Wollongong v Mitchell [2003] NSWCA 94; Wyong Shire Council v Shirt (1980) 146 CLR 40.

Brambles Australia Ltd (trading as Brambles Industrial Services) - Appellant PARTIES: James Sandy - First Respondent SGIO Insurance Ltd - Second Respondent

K Rewell SC & P Frame - Appellant COUNSEL: D Kennedy SC & P Kirby - First Respondent L King SC - Second Respondent

Moray & Agnew - Appellant SOLICITORS: Bale Boshev Lawyers - First Respondent Sparke Helmore - Second Respondent

LOWER COURT FILE NUMBER(S): DC 859/01; DC 344/03

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40893/05 DC 859/01 (Newcastle) DC 344/03 (Newcastle)

HANDLEY JA GILES JA McCOLL JA

Thursday 14 December 2006 BRAMBLES AUSTRALIA LTD v SANDY & ANOR Judgment 1 HANDLEY JA: I agree with Giles JA. 2 GILES JA: Mr James Sandy was employed by Brambles Australia Ltd ("Brambles") as a truck driver. On 18 February 2000 he was driving a prime mover with a tri-axle tipping trailer, carrying a coal by-product known as ban press filter ("BPF") from a coal preparation plant to the Chain Valley Bay Colliery ("the Colliery"). He tipped the load at a stockpile area. When the trailer was at almost its maximum tipping elevation it overbalanced, and the trailer and prime mover came to rest on their near side. Mr Sandy was thrown about in the cabin of the prime mover, and was injured. 3 Two proceedings were brought against Brambles claiming damages for personal injury. In the 2001 proceedings Mr Sandy alleged that Brambles as his employer was negligent in subjecting him to an unsafe system of work. In the 2003 proceedings he alleged that Brambles as the owner of the prime mover and trailer was negligent in providing him with an unsafe or defective vehicle and/or in requiring him to use the vehicle in circumstances where it was unsafe to do so. The employment claim and the vehicle claim were subject to different damages regimes, under the Workers Compensation Act 1987 ("the WC Act") and the Motor Accidents Compensation Act 1999 ("the MAC Act") respectively, and for the vehicle claim it was necessary that Mr Sandy's injury fall within the definition of "injury" in s 3(1) of the MAC Act. 4 In its defence in the 2001 proceedings Brambles said that any entitlement to damages was subject to the regime in the MAC Act. In both proceedings it cross-claimed against SGIO insurance Ltd ("SGIO"), claiming indemnity under CTP insurance with respect to the prime mover and trailer. For cover under the insurance it was necessary that Mr Sandy's injury fall within the definition in the MAC Act, and in its defences to the cross-claims SGIO said that it did not. 5 The proceedings were heard by Sidis DCJ in August 2005. Her Honour gave judgment on 2 November 2005. 6 The trial judge held that Brambles was in breach of its duty of care owed to Mr Sandy, in failing to provide a safe system of work and in requiring him to use the vehicle in circumstances where it was unsafe to do so. She declined to find contributory negligence on the part of Mr Sandy. She held that save in one respect Mr Sandy's injury fell within the definition in the MAC Act, but that it was not a result of the driving of the vehicle but of the system of work under which Mr Sandy was required to operate the vehicle; and so that his injury did not fall within the definition. She assessed Mr Sandy's damages under the regime in the WC Act at $482,225.91, with findings for an assessment under the regime in the MAC Act should that arise. 7 Judgment for the $482,225.91 was given against Brambles but, because of the holding that Mr Sandy's injury did not fall within the definition in the MAC Act, the cross-claims against SGIO were dismissed. 8 Brambles contended on appeal that -

(a) the trial judge was in error in finding that, after initially reversing the trailer so that it mounted a kerb and a windrow of BPF and was thus out-of-level, Mr Sandy repositioned it on an apparently level area before tipping the load;

(b) even if that finding remained in place, her Honour was in error in finding that it had been in breach of its duty of care; and

(c) her Honour was in error in holding that Mr Sandy's injury did not fall within the definition in the MAC Act. 9 Brambles said that even it had been negligent acceptance of (a) would mean that Mr Sandy's injury was caused by his own mis-positioning of the trailer rather than its negligence, or at least that Mr Sandy had been significantly contributorily negligent. If (b) were accepted, it would not be liable to Mr Sandy. If (c) were accepted, it could recover from SGIO. 10 There was no appeal as to the assessment of damages.

Evidence 11 The trailer was approximately 32 feet long, with three axles at its rear each with dual wheels. When the hoist was fully extended the front end of the trailer was approximately 28 feet off the ground, and the back end of the trailer rested on the dual wheels of the rearmost axle with the other dual wheels off the ground. It was common ground that it was important that, when tipping, the whole of the vehicle and in particular the rear dual wheels of the trailer were on level ground. 12 The trailer carried approximately 27 tonnes of BPF. BPF was powdery in form, and was apt to absorb moisture causing it to be sticky so that, when the trailer was elevated, it would not always fully discharge from the trailer. This was known up to Brambles, and to Mr Sandy and other drivers, and failure of a load of BPF fully to discharge was a regular occurrence. In Mr Sandy's experience, up to about 7 tonnes had stuck in the trailer. It stuck around the hoist well at the front end of the trailer, and particularly if (as happened) it stuck on one side or the other there was increased potential for instability when the trailer was elevated. 13 In order to counter the stickiness of the BPF, sometimes a bed of coarse coal product was placed in the trailer before loading with BPF. It was left to the operator to determine whether the BPF being loaded was unsuitable or should have a bed of coarse coal; according to Mr Michael Barclay, at the time the transport manager for the coal preparation plant - "The process was if it was deemed that the material was somewhat sticky and the driver and the loader operator did not feel comfortable, they would then put the coarse reject material in to act as a liner, if you like, or a buffer on the bottom." 14 At the Colliery vehicles transporting BPF would reverse towards a stockpile and deposit their loads. The vehicle first reversed onto a spur of formed and kerbed roadway, and then onto natural ground closer to the stockpile. While the evidence was a little obscure, it seems that the trailer was not reversed up to the stockpile, but the load was tipped on the tipping area away from the stockpile and would then be stockpiled by a front end loader. Mr Sandy and Mr Barclay both referred to the front end loader pushing up the BPF into the stockpile, and to windrows from the front end loader pushing up BPF and from spillage from the bucket of the front end loader. The photographs to which I shortly refer showed BPF covering the end of the formed roadway and what had been natural ground from there to the stockpile, and windrows distant from the stockpile and as far out as the end of the formed roadway. For this to have come about, there must have been tipping of loads then picked up or pushed by the front end loader. The front end loader was also used to clean up fallen BPF and to keep the tipping area even. 15 The area approaching the stockpile was wide enough for two vehicles to stand side by side depositing their loads, but subject to any windrow affecting their position. 16 Mr Sandy was an experienced truck driver, and had been driving for Brambles since 1989 including transporting BPF in vehicles of the kind here involved. The load carried in Mr Sandy's truck on 18 February 2000 was his first load carried on the shift. He described it as "like damp powder with moisture in it". It was not placed on a bed of coarse coal material. 17 When he arrived at the Colliery Mr Sandy reversed the trailer towards the stockpile. He said that when he brought the prime mover and trailer to a halt he noticed that the trailer was "unlevel", and saw that its wheels had mounted a kerb and a windrow of BPF. From a photograph, he identified the kerb and the windrow, and said that tyre tracks visible on the windrow were the tracks of the prime mover. The kerb visible in the photograph, the whole area being covered in BPF from which it protruded, was at the end of the formed and kerbed road. 18 It is appropriate now to describe two photographs to which considerable attention was given in the appeal. They were taken by Mr Barclay when he attended the site after the accident. 19 Photograph Ex 1A, the photograph just mentioned, was taken looking from the prime mover end of the vehicle as it lay on its near side, towards the stockpile. It showed on its right the underside of the rear part of the prime mover, and beyond it wheels of the trailer as the vehicle lay on its side. Tyre tracks could be seen in front (as the photographer stood) of the rear tyres of the prime mover closer to the ground, but not obviously aligned with the tyres. In the centre of the photo was a windrow with tyre tracks up to a peak in the windrow, the extent of the windrow and any tracks beyond the peak not being visible because in dead ground left by the peak. These were the tyre tracks which Mr Sandy said were the tracks of the prime mover. To the left of the photo was the kerb of the roadway. The foreground showed BPF covering the end of the roadway and what had been natural ground, apparently all the way to a stockpile in the background although obscured by the windrow and the fallen vehicle. The photograph Ex 1A was marked with an arrow A pointing to the kerb, with an arrow B pointing to the windrow, and in the course of Mr Sandy's evidence with "TM" on the tyre tracks in front of the rear tyres of the prime mover. 20 Photograph Ex 1B was taken looking in the same direction as photograph Ex 1A, but with the photographer more distant from its subject so that the whole of the vehicle could be seen lying on its near side. The kerb could be seen on the left of the photograph, and more obscurely the windrow, and they were marked with arrows A and B respectively. What appeared to be a small heap of BPF could be seen on the extreme left, adjacent to the kerb but more distant from the stockpile than the end of the kerb, and a largish windrow of BPF could be seen on the right between the photographer and the front of the vehicle as it lay on its side. Mr Barclay said that this was where a load had been tipped before being pushed away and stockpiled, tending to confirm that loads were tipped on the tipping area away from the stockpile. Tyre tracks and a small depression could be seen in the BPF in the foreground. 21 Mr Sandy was not asked to describe with more precision the position of the trailer wheels in relation to the windrow when he first reversed towards the stockpile, or the extent of the windrow. In cross-examination he said as to the windrow in photograph Ex 1A that "you wouldn't even back a trailer over that", and he also said that before he repositioned the vehicle the trailer was leaning to the right but it overbalanced to the left (speaking from the point of view of the driver). He was not asked to explain further. 22 According to Mr Sandy, having seen that the trailer was unsatisfactorily positioned he - " … drove the truck three metres forward, put it on what I designated as being the road surface, and it was level at that point, and that's where I proceeded to tip." 23 More than once in his evidence Mr Sandy referred to driving forward about three metres and then tipping, without saying that he again reversed towards the stockpile. He marked on a copy of photograph Ex 1A, which became part of Ex O, "where the prime mover wheels were, which is there, put where the steer wheels were" after he re-positioned. Two "Xs" were marked approximately on the line of the tyre tracks going up to the peak of the windrow, but some metres more distant from the stockpile. It is hard to say from the photograph how many metres but it does not appear inconsistent with about three metres. If Mr Sandy meant by the two Xs the two front (steering) wheels of the prime mover, the front of the prime mover must have been turned though ninety degrees. Probably he meant that the X closer to the stockpile was the rear wheels of the prime mover and the X further from the stockpile was where the "steer wheels" were. That is consistent with his evidence of moving forward about three metres. 24 Even allowing for difficulties of perspective in photographs, the prime mover lying on its side in photograph Ex 1A does not appear to be three metres forward of the tyre marks in the windrow, and another photograph Ex R1 appears to have the rear wheels of the prime mover as it lay on its side level, in the sense of distance from the stockpile, with the crest of the windrow. However, this was not explored with Mr Sandy; nor was he asked more precisely how driving three metres forward affected the position of the trailer in relation to the windrow. 25 Mr Sandy denied that the tyre tracks "TM" in photograph Ex 1A were tracks of his vehicle, and said that they were the tracks of another vehicle or the front end loader and were not dual wheels. 26 Mr Sandy said that he was satisfied, by looking in the vehicle's rear vision mirrors, that the surface was "flat, smooth and level". This can not be taken literally, as there was the windrow: he must have meant that the vehicle, or more particularly the rear wheels of the trailer, appeared to him to be positioned on smooth and level ground. He engaged the trailer hoist and began to tip. Tipping meant that the wheels of the trailer moved towards the prime mover. When the trailer reached almost its maximum elevation Mr Sandy took his foot off the brake, as was normal so that the vehicle could move forward as the load discharged, and the prime mover and trailer rolled forward about a metre. The trailer then "lurched to the left and fell over". 27 There was evidence from an observer, Mr Geoffrey Jolly, through the tender of documents. He was employed at the Colliery as the mechanical engineer in charge. In a memorandum dated 21 February 2000 he said that the driver started lifting the trailer "which appeared to be lifting fairly square to the ground", and described how the trailer started to "swing towards the passengers [sic] side" as it reached the point where the two front axles came off the ground and the trailer began to move towards the prime mover, and eventually tipped over. In a statement dated 15 March 2002 he said that the trailer was being "elevated in the normal way during a dump procedure when it started to tip to the passengers [sic] side, and tipped over", and - "In my recollection the prime mover and trailer appeared to be sitting flat and even on the ground during the tipping procedure. The prime mover and trailer was close to a gutter although from my vantage point I could not see if any wheels were on the gutter." 28 Mr Jolly identified his vantage point as in the vicinity of the Final Products Bin, but there was no evidence of where that was. Mr Jolly was not called to give oral evidence. 29 Mr Barclay was told of the accident and arrived at the site about forty minutes later. He took the photographs earlier mentioned, and some other photographs. He had done some truck driving himself, and had "run a fleet of coal trucks" for a number of years, but had had limited experience of driving a vehicle of the kind here involved. 30 Mr Barclay estimated that between one-third and two-thirds of the load in the trailer had been discharged, making it plain that this was not a particularly accurate measure; between nine and eighteen tonnes of BPF, with approximation, was therefore stuck in the trailer. He said that the trailer hoist was fully extended to its fourth (final) stage. He estimated that the kerb in the photograph Ex 1A was about 15 centimetres higher than the roadway, and the windrow was about 20 centimetres above "the base level". He said that the tyre tracks beyond arrow A and at the point of arrow B were tracks of the trailer tyres, which he could identify from different tyre structures for the tyres used on the trailers and the prime movers. He was not asked about the extent of the windrow beyond the peak visible in the photograph, or about tyre tracks beyond the peak. He was asked whether he saw any other tyre tracks from the prime mover or the trailer which he could associate with the over-turned vehicle, and said that he "didn't go looking for any other tyre tracks simply because I viewed that they were the tyre tracks made by the vehicle". 31 Mr Barclay said he inspected the site generally and considered the roadway adjacent to the windrow "fine to tip that form of truck on". He said there were no big holes in it, and no particularly bad rutting and that it was a "relatively flat area suitable for tipping on". However, what he could see was impeded by the vehicle - "REWELL: Q. The question was, was there anything about the compacted part of the roadway to the right of the windrow that you could see which could cause the trailer to be uneven if it was stopped there? A. No, it wasn't clear because the truck was at that stage laying on it and there'd been materials spilt out the side et cetera, et cetera so but what I could see of that area, it was fine." 32 There was evidence of an expert nature from Dr Barry Hill, with engineering qualifications but no experience in the operation of vehicles such as the prime mover and trailer, and Dr Neil Adams, an ergonomist and safety consultant who likewise does not seem to have had experience in the operation of such vehicles. Dr Hill gave evidence by the tender of his report and orally; Dr Adams gave evidence only by the tender of his report. 33 The re-examination of Dr Hill brought out the obvious, that the "system" of the prime mover and trailer would overturn if its centre of gravity came to be outside its wheel base. This simple truth made no allowance for the complications of an articulated combination of prime mover and trailer and dynamic forces which might operate as the trailer moved towards the prime mover whilst elevating or as the prime mover and trailer moved forward when the brake was released. It was common ground that whether the surface on which the tipping was being conducted was level, and whether it had imperfections from holes, rutting or fallen BPF affected stability when tipping. Perhaps it would have been difficult to calculate from the configuration of the prime mover and trailer, on assumptions as to the load stuck in the trailer, the out-of-level necessary for the centre of gravity of the system to come to be outside its wheel base, and to make further allowance for dynamic forces, for example if the rear wheels on one side of the trailer went into a rut as the trailer moved towards the prime mover. Neither Dr Hill nor Dr Adams attempted such a calculation. 34 That part of Dr Hill's report admitted into evidence dealt with other matters. In his oral evidence he said that the trailer and prime mover would not be unstable if on a level surface, described at that point as "essentially horizontal" and "within a few degrees", and that any "difference in height" (meaning out-of-level of the prime mover and trailer) "increases the liability of the system to be, to reach an unstable position". Dr Hill said - "Q. What is the degree of cross slope that is needed before in your view the vehicle would begin to overturn? A. Based on the photographs of the truck and the relative dimensions, I would estimate between 10 and 15 degrees as being a ballpark figure." 35 Dr Adams said in his report - "If the surface over which the wheels of the tri-axle were moving had been perfectly smooth and level and unless there was some sharp sideways movement caused by Mr Sandy turning the prime mover away from the straight line, the trailer should have remained elevated without tipping to the side as it did. I have accepted from Mr Sandy's recollection and his description, including the information in his statement, that there was no sudden sideways turning of the prime mover which would cause a counteractive swinging of the elevated trailer initiating the uncontrollable tipping movement. I must therefore conclude that there was a sufficient irregularity in the surface to cause either the offside wheels to rise suddenly (and not necessarily through a very large height difference) or the near-side wheels to dip suddenly with sufficient range of movement and speed to start the lateral movement of the elevated trailer. With the bulk of the weight being in the height range of from about 12 to 32 ft above the ground (the upper two-thirds of the trailer when fully elevated) any lateral movement in the load at that height would contribute to an increasing instability as the load moved sideways and the resulting overbalancing would be virtually inevitable."

Repositioning the vehicle 36 The trial judge's summation of the evidence included that Mr Sandy believed that he had reversed over the kerb of the roadway, and therefore drove the truck forward "and reversed again" and commenced tipping; and at another point that Mr Sandy said that in its original position he had been able to see that the trailer was leaning to the right and therefore moved it forward three metres and started tipping when he was satisfied that the surface was even. So far as her Honour took Mr Sandy to have reversed again, I do not think the evidence supported it. Brambles' submissions in this Court for a time were on the erroneous basis that Mr Sandy gave evidence of a second reversal, with a lateral repositioning of the vehicle. That is not correct. Mr Sandy's evidence was of moving forward about three metres and then tipping. 37 Her Honour said - "3.15 There was a dispute between the plaintiff and Mr Barclay as to what was illustrated in Mr Barclay's photographs. Mr Barclay formed the view that the tyre track shown as crossing the wind row [sic] was that of the truck driven by the plaintiff. The plaintiff disagreed, stating that this track was of a single wheeled vehicle and not one formed by the dual wheels on the trailer of his truck. It was agreed that the overturned vehicle shown in the photographs remained in the location to which it fell after overturning. In those circumstances, the plaintiff stated, it was evident that there would have been some distance between the wind row and the nearside wheels of the truck. 3.16 The plaintiff agreed that the wheel tracks which he marked were those of his truck." 38 Paragraph 3.15 contained a misapprehension of the evidence. Mr Sandy said that the tyre track visible on the windrow in the photograph was a tyre track of the prime mover. It was a different track, the TM track, which he said was the track of a single wheeled vehicle. Indeed, her Honour's para 3.16 recognised Mr Sandy's identification of the tyre tracks of his vehicle. For some time the submissions in this Court were affected by like misapprehension of the evidence, and when the correct position was recognised did not entirely adjust to it. 39 The trial judge's findings relevantly included - "3.45 The experts agreed that instability in the trailer does occur when the following circumstances are present: (1) the surface on which the truck is standing is irregular so that the wheels are not level; (2) the hoist is fully extended; and (3) the load is uneven. Dr Adams added a further component, namely, that irregularity in the surface may cause the wheels of the truck to move and prompt the lateral movement of the elevated trailer. 3.46 The difference between the experts went to the extent of the irregularity required to create the risk of instability. Dr Hill stated a slope of 10 to 15 degrees was required. Dr Adams stated that the tipping area should be perfectly smooth and level. 3.47 The difficulty with Dr Hill's analysis was that it was based on the proposition that the plaintiff's vehicle was standing on the wind row at the time it overturned. The evidence does not support this proposition. Whilst I accept that photographic evidence may be misleading, the circumstances illustrated in the photographs are supported by both the evidence of the plaintiff and that of Mr Jolly. 3.48 Mr Jolly was an independent eye witness. He was not called by any party to challenge his account that the prime mover and trailer appeared to be sitting flat on the ground during the tipping procedure. Further, although Mr Jolly stated that the vehicle was positioned close to the gutter and he had not been able to see if any of its wheels were on the gutter, Mr Barclay conceded that there was no kerb and gutter at the point at which the trailer was positioned at the time it overturned. 3.49 The conclusion is therefore inevitable that there was some irregularity in the surface of the tipping area where the plaintiff positioned the truck. The fact that it was not readily visible to the plaintiff was confirmed by Mr Jolly. 3.50 I find therefore that the accident was the result of the following combination of factors: (1) the irregular surface of the tipping area;

(2) forward movement of the vehicle as part of the load discharged;

(4) the retention of a substantial part of the load in the area of the hoist." 40 Thus her Honour accepted that the vehicle was not "standing on the windrow at the time it overturned", and accepted the evidence of Mr Sandy in this respect. 41 Brambles acknowledged that it had to overcome the trial judge's acceptance of Mr Sandy's evidence, and submitted that it was "glaringly improbable" and was "contrary to incontrovertible evidence", being the evidence that at the time of tipping the vehicle was standing on a tipping area which appeared to be smooth and level. It implicitly accepted these requirements for appellate intervention in a trial judge's credit-based findings, without reference to the discussions in cases such as Fox v Percy (2003) 214 CLR 118, CSR Ltd v Della Maddalena (2006) 224 ALR 1 and more recently Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187. There is no occasion to attempt to contribute to the discussions in these reasons. 42 Brambles submitted that if the tipping area was, as it appeared to be, smooth and level, then the tipping operation could not have brought the centre of gravity of the system outside the wheelbase; therefore the trailer must have been out-of-level; and that the plain explanation was that it remained reversed onto the windrow, which from the estimate of Dr Hill would have provided sufficient out-of-level for overbalancing when the tipping hoist was fully extended. Mr Jolly's vantage point was unknown, it was said, and the generality of "fairly square to the ground" and "appeared to be sitting flat and even on the ground" detracted from the weight of his observation. 43 For a number of reasons, I do not think that Bramble's challenge to the fact-finding can be accepted. 44 First, Mr Sandy said that when he initially reversed the trailer it was out of level so that the trailer was leaning to the right. Assuming that the windrow continued beyond the peak visible in photograph Ex 1A, which Brambles' submissions presupposed, and was the reason why the rear wheels of the trailer were out of level, the overbalancing should have been to the right. Yet it was to the left. 45 Secondly, Mr Sandy's evidence of moving forward about three metres with the result that the trailer appeared to be level was not controverted by any clear evidence of the extent or nature of the windrow beyond the peak visible in the photograph Ex 1A, whereby moving forward would not have had that apparent result. Mr Barclay's evidence of a surface "fine" to tip on was not specific as to that part of the tipping area. Indeed, on Bramble's case the surface was not fine to tip on where the windrow lay, and Mr Barclay's evidence had to be regarded as qualified. 46 Thirdly, the submission was founded on the tipping area being smooth and level. As I have said, there was no specific evidence of its condition in that part of the area where the rear wheels of the trailer would have been if, as Mr Sandy said, he moved his vehicle forward about three metres. Apart from windrows, on the evidence of Mr Barclay there was other spillage which could create unevenness in the surface, corrugations and pot holes could be created, and the front end loader used to clean up the area could not achieve the smooth and level surface which a grader could achieve. "Smooth and level" is no doubt relative, but even if the trailer was thought to be level the evidence did not exclude some irregularity and out-of-level. 47 Fourthly, Dr Hill's estimate of a "ballpark figure" of between 10 and 15 degrees out of level was no more than estimate, and did not allow (as Dr Adams' conclusion in the passage of his report earlier set out did) for dynamic forces. On the evidence of Dr Adams, a small irregularity and out-of-level in the surface could have brought lateral movement of the elevated trailer, leading to overbalancing. 48 Thus there could have been overbalancing when tipping on what appeared to be a smooth and level surface, if the appearance was false. In any event, tipping while the trailer was out of level because of the windrow in photograph Ex 1A did not clearly account for overbalancing to the left. There was some obscurity in the evidence, but obscurity does not provide glaring improbability or incontrovertible rebuttal. It was not particularly probable that Mr Sandy, an experienced driver, would have left the vehicle in its original position, as he well knew the risk of overbalancing if the wheels of the trailer were out of level. I do not think that the trial judge's acceptance of Mr Sandy's evidence should be overturned on appeal.

Negligence 49 The trial judge said that the evidence indicated that it was "elementary and fundamental to the operation of unloading a heavy vehicle that it be done on a level surface", and that it was foreseeable to the operator of a fleet of trucks that irregularity in the surface on which the loads carried by its trucks were to be discharged would create risk; and further, that the risk was foreseeably enhanced when the known characteristics of the load were such that it did not discharge freely. 50 Her Honour found that a reasonable employer would take steps to address the foreseeable risk of instability, and that the instability in Mr Sandy's vehicle could have been avoided if Brambles had maintained a level tipping surface free of irregularities or had given specific instructions, rather than leaving it to the operator or driver, about assessing the moisture content of BPF at the time it was loaded and addition of coarse coal material. She noted that there was no evidence or submission that these measures would be unduly onerous or expensive. Hence she found breach of duty of care in the respects earlier noted. 51 Brambles submitted that an accident such as that which befell Mr Sandy was not reasonably foreseeable. First, it said that notwithstanding the propensity of BPF to stickiness it had been carried to and deposited at the Colliery for nine to twelve months prior to 18 February 2000, 25 loads per day over a five day week, without a similar accident involving BPF. (There had been three previous incidents of a truck "that we'd had roll whilst tipping", but two were when tipping on unformed ground and the other was collapse of a wall.) Secondly, it said that, if the tipping area appeared smooth and level, there was no occasion for attention to it. 52 As to the first limb of the submission, the bare figures could be misleading. It is likely that the BPF in some of the loads was not particularly sticky and that the BPF in other of the loads was on a bed of coarse coal. Mr Barclay said that a bed of coarse coal was used approximately fifty per cent of the time. Where the BPF did stick in the trailer, the quantity or location in the trailer is likely to have varied. Thus, a great many of the something like 5000 loads would not have carried particular risk, but that loads could carry risk was clearly foreseeable. 53 The trial judge accepted that absence of any prior incident was a factor to be taken into account, but observed that it was "not determinative of a claim". Her Honour referred to Fairfield City Council v Petro [2003] NSWCA 150 and Francis v Lewis [2003] NSWCA 152. In Francis v Lewis, a case of a fall on stairs, it was said at [57] that the fact that there were no recorded falls did not of itself absolve from finding breach of a duty of care, so long as the circumstances would have alerted a reasonable person to a danger posed by the defect and so long as the Court found it unreasonable to have ignored that danger. In Fairfield City Council v Petro that observation was taken up. 54 In a case such as the present absence of a prior incident arises at the point of breach of a duty of care, in determining the reasonable response to a risk in the manner described in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. Absence of incidents over a long period may support that the risk was slight and, together with other circumstances, that it was reasonable for the person under the duty of care to do no more than he did. 55 Each case must turn on its own facts. In University of Wollongong v Mitchell [2003] NSWCA 94; (2003) Aust Torts Rep 81-708 the usage of theatre seats without incident was huge, and was a factor in the reasoning of Meagher JA (at [14]) and myself (at [34]-[35]); so also was the incident-free period in Cruise Group Pty Ltd v Fullard [2005] NSWCA 161 very great. That is not so in the present case, but more important the risk if there were unevenness in the tipping area was known and appreciated, and it was a risk which could come home if there were a combination of irregularity or out-of-level and sticking of a large quantity of BPF in a trailer. Although up to seven tonnes sticking in a trailer was known, it was not said that sticking of a tonnage of the higher order in the present case (approximately nine to eighteen tonnes) was beyond reasonable contemplation. The risk could not be ignored, and the potential for injury was considerable. I do not think the incident-free period showed that it was reasonable to have ignored the risk. 56 The flaw with the second limb of the submission is that, although the tipping area may have appeared smooth and level, on the trial judge's findings it was not. It was sufficiently uneven or out-of-level that, in combination with the BPF sticking in the trailer, there came instability and overbalancing. A truly smooth and level tipping surface could have been provided, by better housekeeping instead of using the front end loader (Dr Hill agreed that a grader would usually be used and "you wouldn't get it particularly level if you used the machine with the bucket"), or as Dr Adams said by a concrete base for the tipping area although that would also require good housekeeping. 57 In my opinion, no error has been shown in the trial judge's conclusion that Brambles was in breach of its duty of care.

Injury within the definition in the MAC Act 58 The definition in the MAC Act was relevantly - " injury :

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle … " 59 Mr Sandy suffered personal or bodily injury. The trial judge found that it was caused by the fault of the owner of the vehicle, Brambles, saying - "5.10 The fault of the defendant which I have identified as the cause of the plaintiff's injury was its failure to provide conditions under which the vehicle could be safely used and operated. It follows therefore that there was fault by the defendant in the use of the vehicle which resulted in injury to the plaintiff." 60 Her Honour found that that at the time Mr Sandy was driving the vehicle, and therefore his injury was caused during the driving, but as I have indicated held that the injury was not a result of the driving of the vehicle. 61 After the trial judge gave her decision the High Court gave judgment in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 225 ALR 643 (and other reports). The plaintiff was injured when vibration generated by a forklift truck used in a container caused boxes stacked in the container to fall on him. It was held that, although the owner of the forklift was at fault, the injury was not caused by the fault of the owner in the use or operation of the fork lift. In the joint judgment of Gleeson CJ and Gummow, Kirby, Hayne and Heydon JJ it was said, the owner of the forklift being referred to as the occupier - "27. It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded.

29. The flaw in the occupier's contention that the words before "if, and only if" are to be broadly construed, while any qualification on the breadth of the definition of "injury" as a whole is to be found in the causative considerations appearing after "if, and only if", is that the contention gives no weight to the word "in" in the expression "in the use or operation of the vehicle". As counsel for the occupier accepted, "in the use" here means with respect to, as a consequence of, or by reason of the use of the forklift truck in the circumstances. That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury." (citations omitted) 62 Brambles accepted that, on the reasoning of the High Court, the trial judge's conclusion could be upheld on a different basis from that which she had employed. It submitted that there were two answers to the "apparent difficulty" confronting it. 63 First, Brambles pointed to the trial judge's specific finding of fault on the part of Brambles in the use of the vehicle, in her para 5.10 set out above. In my opinion that identified the difficulty, and did not solve it. The fault so found related back to the breach of duty of care, and was equivalent to the unsafe system of work of which the High Court spoke. On the reasoning of the High Court, the fault was not fault by Brambles in the use or operation of the vehicle. 64 Secondly, Brambles submitted that there was fault on the part of Mr Sandy in the driving of the vehicle. It accepted that this was contrary to the trial judge's finding; the fault on which it relied was that Mr Sandy commenced to discharge his load while the wheels of the trailer were not within the tipping area but were upon the kerb and windrow. For the reasons earlier given, I do not think that the trial judge's finding to the contrary should be overturned on appeal, and so this submission should not be accepted. 65 It may be observed that the submission proceeded upon a questionable construction of the definition of "injury" in s 3(1) of the MAC Act. It required that a driver's injury would fall within the definition because of the driver's own fault. It is not necessary to consider whether that could be so. 66 In my opinion, Mr Sandy's injury did not fall within the definition in the MAC Act.

The result 67 I propose that the appeal be dismissed, and that Brambles be ordered to pay the costs of Mr Sandy and SGIO. 68 McCOLL JA: I agree with Giles JA. **********

19/12/2006 - t/as amended to trading as - Paragraph(s) coversheet 19/12/2006 - typo - Paragraph(s) cversheet

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