Cartwright v Bluescope Steel Ltd

Supreme Court of NSW|2012-11-19|Before: Simpson J

Judgment 1The plaintiff, Sydney Cartwright, claims damages for personal injuries sustained by him in a motor vehicle accident that occurred on the Princes Highway at Carss Park on 29 August 2007. The plaintiff sues two defendants: Bluescope Steel Ltd ("Bluescope"), and the Workers' Compensation Nominal Insurer ("the WCNI"), representing his former employer, Mannway Logistics Pty Ltd ("Mannway"). He claims that Bluescope and Mannway were, in particularised respects, negligent, and that their negligence caused his injuries. Each defendant has denied the allegations of negligence. Bluescope alleges that the plaintiff was contributorily negligent and that his own negligence contributed to his injuries. 2The claims against the defendants are governed by quite different statutory regimes, to which I will come. 3The principal issue in the proceedings concerns the cause of the accident. The plaintiff was driving a prime mover with a trailer attached, on which was a heavily loaded container. Two competing hypotheses were proposed as the cause of the accident. Bluescope claims that the accident was caused by the plaintiff driving at an excessive speed in the circumstances (an allegation the plaintiff disputes). A pleading on the part of Bluescope that the plaintiff had failed to ensure that the load and/or the container were properly restrained was not pursued. The plaintiff alleges that the accident was caused by the load in the container shifting, and that that was due to faulty systems or procedures in its packing. The WCNI supports the plaintiff insofar as his estimate of speed is concerned. It appears also to support the plaintiff in his attribution of the cause of the accident to load shift. Should it be found that load shift was the cause of the accident, a secondary (but important) question arises: was the load shift attributable to faulty (negligent) packing (in which case Mannway, whose employees were responsible for packing the containers, would bear the bulk of responsibility); or was the load shift caused by negligent instructions given to the Mannway employees (in which case Bluescope would bear the bulk of the responsibility)? The WCNI asserts that the load shift was attributable to defects in instructions given by Bluescope to Mannway with respect to the packing and restraint of the heavy load in the container. The plaintiff supports the WCNI in this respect. 4A great deal of documentary material was presented in evidence. Each individual item was given a "Tab" number, and the folders in which they were contained were paginated. I will refer to these documents by reference to these "Tab" numbers, and page numbers.

Background 5The plaintiff was born in April 1948. In 1982 he obtained a Class 5 licence, which permitted him to drive heavy vehicles, including B-double road trains and semi-trailers. In November 1999 he took up fulltime employment as a truck driver with a company he identified as "Tex Transport". In March 2007 Tex Transport was taken over by Mannway. 6Bluescope conducted a steel manufacturing operation at Port Kembla, south of Sydney. Mannway conducted a "transport logistics" business. It had a depot at Port Kembla, providing a service to customers of delivery to the Illawarra and to Sydney. It also had depots in other places, including Newcastle and Villawood. Mannway had a contract with Bluescope, for the regular transport of steel in containers from Port Kembla to Port Botany. Under the contract, Bluescope's employees delivered cylindrical steel coils from Bluescope's Port Kembla premises to Mannway's Port Kembla depot. The coils were delivered to Mannway on the back of trucks onto which they had been loaded by forklift, and stored temporarily in a Mannway warehouse. From there they were loaded (by Mannway employees) by forklift into containers, and then transported by truck to Port Botany for shipment overseas by container vessel. 7A typical task for the plaintiff was to transport these containers from Port Kembla to Port Botany. He drove a prime mover, to which was attached a trailer bearing the container. At about the time of the accident, he made this journey on average twice a day. The coils of steel varied somewhat in size and weight, but all were extremely heavy. 8Although when he was employed by Tex Transport, the plaintiff had assisted in packing the cargo into the containers, that ceased to be the case on the change of ownership of the transport business. From March 2007, when Tex Transport was taken over by Mannway, it was not the plaintiff's role to pack or load the steel coils into the containers. That task was undertaken by Mannway employees, specifically trained for the purpose. Those employees were required to load the coils in accordance with Guidelines issued by Bluescope. It will be necessary to consider this in more detail below.

The motor vehicle accident 9On 29 August 2007 the plaintiff transported one container load of coils from Port Kembla to Port Botany. He returned to Port Kembla and attended to paperwork. While he did so, a second container was loaded by forklift onto the trailer. The container was already packed with three steel coils, two of which weighed 7.2 tonnes each, the other 6.4 tonnes. The coils were of a variety known as "top hats". The container doors were closed and the plaintiff did not see inside it. He was provided with documentation that informed him that the cargo in the container was three coils, and the weight of the load. 10The plaintiff drove off, taking the route with which he was familiar, and which he had already driven once that day. It took him up the Princes Highway to Port Botany. At about 12.30pm he reached a point near Blakehurst at which the road slightly inclines uphill, and then veers to the left. At the same point, the road is "off camber". There is a sharp turn to the right at Carwar Avenue. The speed limit at that part of the road was 70kph. There was no specific regulatory or advisory sign limiting the permissible speed of heavy vehicles. There is a traffic light shortly before that intersection. 11The plaintiff was travelling in the centre of three lanes. In evidence, he said that he heard "a loud bang and a thud ..." (T 41), and "the truck started to tip". In the evening of 30 August, the day after the accident, the plaintiff was interviewed in hospital by a Senior Constable Martin. The plaintiff said that, up to the point of hearing the bang and the thud, the trip had been uneventful, and nothing untoward had occurred. There was no indication of any problem with the truck. He said: "The first indication of something happening differently was, I thought I heard a bang followed by the truck leaning to the right. The trailer was leaning first, dragging truck ..." (p 1045) Although the plaintiff had no further recollection of the accident, photographic evidence shows graphically that the prime mover and the trailer rolled over, crossed the median strip, and came to rest on the southbound lane, on their right hand sides. It appears that the vehicle came to rest at a point about 100m north of the Carwar Avenue intersection. It was accepted that the trailer, loaded with the container, lurched and rolled first, pulling the prime mover with it. 12It was common ground that the crash was likely to have occurred within one minute of 12.26pm (p 533).

Liability Speed 13The direct evidence of the plaintiff's speed was given by himself and by a witness, Mr John Currie. The plaintiff's evidence was that, immediately before the crash, he was travelling at "about 55kph". On closer questioning (in chief) he was adamant that, at that point on the road, it would be foolhardy to reach the maximum speed limit of 70kph (T 32). This was in part because he did not know precisely what was in the container, and in part because of the nature of the road conditions. The accuracy of the plaintiff's estimate of speed was very much a matter of dispute. 14In cross-examination, the plaintiff said that his use of the expression "about 55kph" allowed a tolerance of five kilometres, that is, meant "50 to 60kph". A little later, he retracted that, and said that shortly before the crash he had glanced at the speedometer, and insisted that he was travelling at 55kph, and not either 60kph or 50kph. 15In a note of the police interview in the hospital that the plaintiff signed as accurate Senior Constable Martin recorded him as saying that, as he neared the intersection of Carwar Avenue, he was travelling at about 60kph, but that he rounded the bend at about 50kph. 16The plaintiff was, in this respect, considerably supported by the evidence of Mr Currie, who was an independent witness, and who said that he was driving about 30m behind the plaintiff's vehicle, in the third of the three lanes. In his evidence, Mr Currie estimated his own speed as about 55kph, and said that he was keeping pace with the plaintiff's vehicle (which itself was travelling with the traffic). This was consistent with a statement he made to police on the evening of 29 August. In a later statement, made to an investigator, he estimated his speed at 55-60kph. 17Mr Currie's evidence was not only that he was travelling in the third lane, but also that he was directly behind, and in the same lane, as the plaintiff. Since the plaintiff's evidence was that he was travelling in the centre lane, one or other of them must be mistaken. That discrepancy makes no difference to the resolution of the speed issue. 18The plaintiff's vehicle was subject to GPS tracking which recorded its speed at stated intervals. That record was in evidence. Unfortunately, there was no evidence to explain or amplify the written record or how the particular GPS system operated. On its face, the record discloses the following:

at 12.25.16: the vehicle was stopped (I infer, at traffic lights);
at 12.25.22: the vehicle was travelling at 24.2kph;
at 12.25.35: the vehicle was travelling at 43.4kph;
at 12.26.03: the vehicle was travelling at 48.17kph;
at 12.31.04 (and thereafter at 5 minute intervals): the record shows the vehicle travelling at 60.39kph (but with no "GPS fix"). It was accepted that, by this time, the vehicle was stationary, lying on its side on the southbound lane on the road. 19The GPS record, which commences at 11.45am on that day (presumably the time the plaintiff left Port Kembla) has a number of entries showing that the vehicle was travelling at an excessive speed, the greatest of which was 111kph, at just before midday. The plaintiff acknowledged that, by reason of the applicable speed limit, specific rules governing heavy vehicles, and Mannway's internal rules, he was not permitted to drive at a speed in excess of 100kph. 20An engineer retained on behalf of Bluescope to provide expert opinion, Dr John De Pont, subjected the GPS data to detailed analysis. By a process of extrapolation, he reached the conclusion that "at the time of the crash" the speed of the vehicle was greater than 60.4kph, but he could not say by how much it exceeded that speed. The analysis of the GPS record by Dr De Pont I found very helpful. However, the analysis shows that it was based upon a series of assumptions that have not been able to be verified. Both Dr De Pont and Dr George Rechnitzer, an engineer retained on behalf of the plaintiff to provide expert opinion on the cause of the crash, made it very clear, in a joint report and in concurrent oral evidence, that they were hampered by a dearth of real information about the operation of the particular GPS system that was fitted to the prime mover. 21Mr David Sutton, the principal of Sutton's Transport Training, provided a report, in the nature of an expert's report (Tab 35). Mr Sutton has been a qualified Heavy Vehicle Driving Instructor since 2000, and holds other relevant qualifications. Mr Sutton conducted an experiment. He drove a truck, not identical, but similar, to that the plaintiff had driven, on the same road, in fine conditions. The truck Mr Sutton drove was loaded with 18 tonnes of concrete blocks, spread over the full length of the trailer. He drove the road several times, with small increments of speed. 22Mr Sutton's opinion was that where, as in the case of the plaintiff's load, there is vacant or empty space at the front and back of the trailer, the load is less stable than where, as in the case of the truck he drove, the weight "is distributed across the whole length of the truck". He considered that "reasonable and experienced" drivers are aware that centre loading calls for "an eye on camber" as excessive speed gives rise to a risk of rollover. 23After his experiment, Mr Sutton's opinion was that a speed of 50kph was "only borderline comfortable", and that an additional 5kph would not be. He considered that taking into account the truck the plaintiff was driving, the load, and the curvature of the road, a safe speed was 40kph, and that "under no circumstances" should it have been driven on the curve at 60kph, and that a speed of "60-70kph" was "way too fast for that particular corner" and was likely to cause the truck to overturn. 24There are a number of difficulties with Mr Sutton's evidence. The vehicle he was using was of a different type to that the plaintiff was driving, as was the trailer. The load was significantly different - concrete blocks. Mr Sutton gave no evidence about how the blocks were secured, if at all. As a matter of common sense, in my opinion, if the blocks were not secured to the trailer by some means, the load would be less stable and would call for a far greater degree of caution. 25Moreover, his estimate that the maximum safe speed for the plaintiff's vehicle was 40kph was simply contradicted by the past experience of the plaintiff. He was an experienced user of the road, and very familiar with it. In cross-examination, Mr Sutton agreed that accumulated experience enabled a driver to make his own assessment of a safe speed. He assented (T 217) to the question: "Q. And so that if people were to drive through there on a regular basis with a load at what has always been a safe speed, in your view that would be a safe speed to drive through at?" 26I'm satisfied that the plaintiff was not, on this occasion, driving differently from the manner in which he had regularly driven that route. The speed had been safe in the past; it was safe on this occasion, had there not been a variation in the load. 27Having regard to the speed limit, and that there are no advisory or limiting signs in respect of heavy vehicles, I cannot say that a speed of 60.4kph (or even 61kph) was, in the circumstances appertaining to the road conditions, excessive. The evidence is that it was daylight, the weather was good, and the traffic light. Mr Currie did not observe anything untoward about the manner of the plaintiff's driving. 28Curiously, the plaintiff's driving record was put in evidence in his own first witness statement. It is not good. He has a long history of offences of exceeding the speed limit. However, no attempt was made to rely on his record as tendency evidence (see s 97 of the Evidence Act 1995) and I do not propose to use it in that way. Indeed, in final oral argument, senior counsel for Bluescope disclaimed reliance on tendency evidence. 29I do not find that the plaintiff was driving at a speed that was excessive in the circumstances. Did the coils shift during transit? 30The remaining questions are more difficult. Essentially, they boil down to whether the plaintiff has established that, by reason of defective loading of the coils, they shifted position and toppled as he rounded the bend in the road, and, if so, if either or both of Bluescope and Mannway bear responsibility for that; and, if both do, in what proportions. 31It is obvious, from the weight of the coils, that their transport potentially presented risks. It was essential that they be securely fastened to prevent movement, with an eye to both the dangers of road transport, and of the hazards of sea transport. Movement of the coils in the containers could cause property damage, or serious personal injury. 32With this in mind, Bluescope devised an elaborate system of restraint. It provided to Mannway Guidelines prepared by Bluescope engineers, showing, with some precision, how the coils were to be packed into the containers, and how they were to be secured. Notwithstanding a disclaimer clause, by which Bluescope purported to present the Guidelines as "for guidance only", and to be applied in the discretion and independent judgment of those to whom they were directed, Bluescope required Mannway to adhere to these Guidelines which were, from time to time, varied or updated. Indeed, this was an express term of the contract between Bluescope and Mannway. As new versions of the Guidelines were issued, they were printed, laminated, and made available to Mannway workers. The version current as at August 2007 was dated 24 July 2007 (Tab 46). 33The Guidelines were illustrated by diagrams. The system they set out was designed to prevent movement laterally, longitudinally in the container, and vertically to ensure that the coils were firmly held to the floor of the containers to prevent "bounce" or "jump". The system was designed principally to ensure stability of the coils in the containers while at sea. At times they were referred to as the "Marine Guidelines" 34The system devised by Bluescope and presented to Mannway was best described by Mr Brian Rooney. 35Mr Rooney was, in 2007, Regional Manager for Mannway, based in Sydney but with an office in Port Kembla. Mr Rooney's evidence, not in dispute, was that it was Mannway workers who were responsible for loading the steel coils into the container. But they were required, and trained, to do this in accordance with the "detailed conditions, specifications and requirements for the packing, load restraint and loading requirements and transport" issued by Bluescope in the Guidelines. This was a term of the contractual arrangements between Bluescope and Mannway. 36When the coils were delivered by Bluescope to the Mannway depot, they were strapped to wooden pallets. Each pallet consisted of a platform or deck which was secured on planks of timber, called "bearers" or "struts". These bearers raised the platform a short distance from the ground and permitted the tines of a forklift to be inserted, and to lift the pallet and its contents from the ground. In some cases, the diameter of the coil protruded beyond the perimeter of the pallet. In others, the coil fitted wholly within the platform of the pallet. On delivery, Mannway employees used forklifts to remove the coils, still strapped to the pallets, and stored them in the Mannway warehouse until they were placed in the containers - still strapped to the pallets. This, too, was done by forklift. It was necessary, for safety reasons, that the weight of the load be evenly distributed, and the coils centred in the containers. Chalk marks were therefore placed on the floor of the containers to guide the forklift operator. A number of restraints were then placed around the coils and the pallets. This was done by labourer-level employees of Mannway, who had been trained for that purpose by a Mannway supervisor, who had himself received training from Bluescope. 37Immediately prior to the plaintiff's accident, the Guidelines (issued in July 2007) prescribed the following system: (i)at least four blocks (of wood) were nailed to the platform of each pallet to prevent the coil shifting on the pallet, and at least four straps passing through the bore of the coil affixed the coil to the pallet. (I assume that this was done at Bluescope's premises, prior to delivery to Mannway.) This had the effect of creating a single unit of the pallet and the coil; (ii)when a coil and pallet was transferred to a container, wooden wedges were then forced under the sides of the pallet, butting against the coil itself where it protruded over the edge of the pallet, or against the pallet where it did not. The wedges were then nailed to the floor of the container, which was also wood; (iii)chocks (also wood), cambered to the same angle as the wedges, were positioned to hold the wedges in place. These, too, were nailed to the container floor. There was no requirement that the chocks extend to the sides of the container, and they did not. Steps (ii) and (iii) were designed to prevent lateral movement of the coils. (iv)unless the coils were loaded to fill the length of the container, "brace stoppers", consisting of two "stoppers" were constructed for the "fore" and "aft" positioned coils - that is, those nearest the back and front of the container. These connected with the structural supports of the pallet. They were also nailed to the container floors. Where the coils were loaded to the full length of the container, two pine boards were placed across the width of the container floor, picking up the pallet and the container walls; (v)at least two steel "belly bands" were strapped around all the coils, to create a single unit of all the coils. (For this to be effective, it was necessary, where coils of different sizes were carried, that the smaller coils be at one end or the other of the sequence.) Steps (iv) and (v) were designed to prevent longitudinal movement of the coils. (vi)at least two "over coil" steel straps were fixed diagonally over each coil, where possible criss-crossing over the coils, and fastened to lug points on the container floor, along the side walls. If criss-crossing was not possible, the straps could be straight. These were then tensioned, crimped, and secured. The Guidelines did not specify any level or degree of tension required. Step (vi) was designed to ensure that the coils were firmly held down and fixed to the floor, and prevent "bounce" movement. 38It may here be observed that the system has the appearance of having been carefully designed, and generally to have been effective. That it was effective can be inferred from the fact that the plaintiff (and, no doubt, other drivers) had transported many loads of coils without incident. However, it was subject to criticism, to which I will return. Most importantly, having regard to the issues in the present case, it is obvious that, for the wedges (and therefore the chocks) to be effective, it was essential that the wedges come in direct contact with the pallet (or the coil). 39To the extent that the system can be found to have been effective, it was because there was a uniformity in the basic equipment - the dimensions of the pallets, the wedges and the chocks. The wedges and the chocks were especially cut to fit the pallets, and each other. Bluescope specified their dimensions. 40A variation occurred in what Bluescope did. It appears - the evidence is far from clear on this - that Bluescope had, or acquired, a second operating location, also in Port Kembla, which was referred to as "CRM". ("CRM" stood Commonwealth Railing Manufacturing which had occupied the site prior to Bluescope.) Coils were also transported from the CRM site to the Mannway depot. The coils carried by the plaintiff were the first delivery to Mannway Port Kembla from this site. (At times these coils were referred to as "export coils", as if they were, in some way, differentiated from other coils. This is misleading. As Mr Rooney insisted, all the coils were "export coils". The relevant distinction is between "CRM coils" and other coils.) 41Unlike other deliveries from Bluescope, these coils were loaded onto Bluescope trucks by crane. (As I mentioned earlier, ordinarily Bluescope coils were loaded onto trucks by forklift.) The use of cranes necessitated an adjustment to the pallets on which the coils were strapped. In order to allow the chains of the cranes to pass under the pallets, the pallets were elevated a little higher off the ground. This was achieved by nailing two extra pieces of timber (or "runners") to the bearers of the pallets. The extra pieces of timber were slightly recessed - again to accommodate the chains - and were not readily apparent to a casual or unforewarned observer. They may thus not have been apparent to the Mannway workers whose task it was to pack the coils into the containers and secure them. One consequence of the additional runners was that the pre-cut wedges were of insufficient height to connect with the pallets (or the coils). This was so at least with respect to the two 7.2 tonne coils on the plaintiff's truck. The evidence is not so clear in relation to the smaller coil, and it does not matter. The effectiveness of the safety system was significantly compromised. 42It was common ground that Bluescope had taken no steps to inform Mannway of the additional timber runners. It was unlikely that the Mannway employees would notice them. However, it should have been obvious to them that the purpose of the wedges was to restrain movement, and that this could not be achieved unless contact was made between the wedges and either the pallets or the coils. 43Senior counsel who appeared for Bluescope elicited from Mr Rooney evidence that pallets similarly modified had been sent to Mannway's Villawood operation, where the additional timbers had been removed before packing. I will deal with the inferences sought to be drawn from this below. 44After the plaintiff's accident, Mr Rooney conducted an investigation and provided an Incident Report, which was provided to Bluescope. Mr Rooney's report was not in evidence. Mannway went into receivership in October 2009. Many of its documents were destroyed (why the copy of the report that was provided to Bluescope was not produced was not explained). There were, however, a number of other investigations and reports that were in evidence. Bluescope also conducted investigations. A preliminary internal Mannway report (Tab 64, p 1117) dated 21 August 2007 stated that the truck had been impounded by police, and was therefore not available for inspection. However, a Bluescope report (Tab 77, undated) asserted that the "truck" had been impounded, but the trailer sent to a repairer "for checkover and repair evaluation". Mr Rooney's evidence was that the trailer was delivered to Mannway premises, as were the coils, and the pallets, the coils having been removed from the pallets. It does not appear that the trailer was ever subjected to examination with a view to ascertaining the manner in which it had been packed. 45One thing that was common to both the Bluescope and the Mannway investigation reports was the recognition that the additional timber runner on the pallets was of considerable significance. It prevented the wedges from achieving the purpose they were designed to achieve. The authors of the Bluescope reports were at some pains to point out that similarly modified pallets sent to Mannway's Villawood operation had been restored to their original condition by Mannway labourers removing the extra runner. 46In more than one such Bluescope report, it was noted that Mannway already knew about the issue and had addressed it at Villawood, but that: "... the learning had not been shared throughout [Mannway's] operations." 47I interpolate here that the evidence did not disclose how the Villawood employees came to be aware of the modification of the pallets, that is whether it was as a result of their own observation, direct advice from Bluescope, or some other means. 48On 6 September 2007 Mr Mike Robertson, the Engineering Manager of Bluescope, sent an email to various people, presumably others in the Bluescope hierarchy. He considered various "issues" arising out of the accident. Inter alia, he said: "In addition, the nailing of timbers was inadequate. Many of the nails witnessed had only penetrated the floor of the container by 10 to 13 mm (or less!). The nails simply failed in shear. Mind you, the marine guidelines don't specify the nailing details." He then considered what he described as: "Issue 4. Are the Marine Guidelines appropriate for Road (or Marine!) forces." Under this heading, he wrote: "Given the standard of the nailing, it is very doubtful that the marine system is actually capable of meeting the on road standards. Further work is needed to be sure and Mannway (Sam balestra) reports that sideways tilt tests of loaded containers showed that the system WAS adequate. Whilst I understand a Marine Surveyor has issued a certificate on the securing methods, there is significant doubt that the methods shown actually work as intended. Just looking at the Indian shipment photo received by Jon Lopac the day before this incident shows how 17 containers going to India failed enroute. In my opinion this is more likely to be a design failure than an installation one. At a minimum, some significant changes are likely to be required to the existing marine guidelines." (Tab 71) 49It will be observed from this email that Mr Robertson appears to have had access to the container, or some description of what was observed in the container after the accident. There is in evidence (Tab 39, p 669) a photograph purporting to show a timber chock with deformed nails. The source of Mr Robertson's observations, and the origin of the photograph, were not identified. 50A Mannway report of 20 September 2007, identified as "Essential Contributory Factors" to the cause of the accident the following: "· Pallets included a 50 mm extra runner underneath pallet runners · Packing timber nails failed in shear due to poor penetration (10-13 mm) into floor of container · Timber wedges did not chock against pallet rails to the extra packing underneath the pallet runners - lateral stability therefore less effective" It identified 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" (Tab 75, p 1161) 51A Bluescope report (Tab 76, undated) hypothesised that the coils may not have been packed "strictly following the Bluescope Steel imposed Container Securing Guideline" and, on that assumption, made the following observations: "A/ The timber wedges used to block the 2 off 7.2T coils did not contact the pallet boards and therefore were less effective at preventing sideways movements/toppling over of coils. (The pallets of export coils >6.5T have an additional 50 mm skid under the bearers). The wedges used by [Mannway] were the same as those for pallets without skids and therefore were not large (high) enough to contact the pallet boards. [Mannway] already knew about this issue and had addressed it at one site (by knocking off the 50 mm skids prior to loading). But the learning had not been shared throughout [Mannway's] other operations. B/ Poor penetration of nails through wedges into timber flooring of container, most likely resulted in shear failure under sideways forces. As a consequence of these assumptions the potential Contributory Factors from the BlueScope Steel ICAM: A. The BlueScope Steel 'Container Securing Guidelines' at the time of the incident did require effective blocking, but did not distinguish between different pallet sizes. B. [Mannway's] performance in Port Kembla to the Container Securing Guidelines, as supplied by BlueScope Steel to all contractors undertaking this work, was not followed by [Mannway] without BlueScope Steel's knowledge. C. The management of change processes did not capture change in mode of transport of export vertical coil (with specific pallet requirements) from shipping break bulk to containerised and road/rail to port. D. The marine securing guidelines have not historically addressed non-marine freight movements (given perceived higher marine standards apply)." (I have reconfigured the layout of the report to facilitate reading.) 52After the plaintiff's accident, Bluescope promptly issued new Guidelines (Tab 47). The new Guidelines drew attention to the issue concerning the extra timber runners, resulting in standard sized wedges not coming into contact with the pallets or the coils, and directed that, if the wedges were too low to make that contact, they be raised on an extra timber bearer (ie chock), to bring them to an adequate height. The new Guidelines further showed that, previously, the chocks had been intended to provide bracing by being nailed to the floor, and now required that the chocks extend all the way to the walls of the containers, thus using the walls as bracing points. The 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). And the new Guidelines showed that the steel straps previously did not always line up correctly with the coils, and required additional top timber braces to be added, running the length of the coils, providing "a solid and consistent base for the [steel] straps".

Expert evidence 53The circumstances of the accident were exhaustively investigated and analysed, on behalf of the plaintiff, and on behalf of Bluescope, by engineering experts. Dr Rechnitzer, who was retained on behalf of the plaintiff, provided no fewer than four reports. Dr De Pont, retained on behalf of Bluescope, provided two. Ultimately, after conferring, the two experts provided a Joint Report, which identified points of agreement and areas of disagreement. Over a lengthy period, the two gave concurrent evidence. 54Not a great deal of useful material emerged from this apparent wealth of evidence. That is not meant to imply any criticism of either gentleman, each of whom was highly qualified and sought to do what he could to resolve the issues, and assist the Court. Their task was to attempt to identify what caused the trailer to roll over, taking the prime mover with it. The problem was a significant dearth of relevant information. While the two experts gave evidence based on a variety of hypothesised scenarios, none of the scenarios could be shown to have represented the actual circumstances. For example, there was a great deal of cross-examination of the experts about the coefficient of friction, and the effect that the different values might have had on the contents of the container, as, for example, causing or allowing the pallets to slide on the container floor. But the container was long since gone, and its actual surface could not be determined. The applicable coefficient of friction remains an unknown quantity. 55A debate emerged in the reports concerning the suitability of the road signage, and whether a different and lower maximum limit applicable to heavy vehicles ought to have been posted. Since no claim is made against any relevant authority, I disregard that part of the reports. 56The coefficient of friction and the adequacy of road signage were not the only matters that were explored at length, with no result. The engineers were extensively cross-examined about the possible consequences of the coils having been packed off centre. But once the trailer tipped over, the coils were dislodged, and there was no way of knowing whether they were indeed packed off centre. It may be, had proper attention been given to that question, that deductions could have been made from remaining evidence, such as any wedges or chocks that remained nailed to the floor. But those investigations were not made when the primary evidence was available. 57In the exchange of expert reports, the two engineers debated various calculations and theories one or the other had advanced. The difficulty with this was that the calculations and theories were based on extremely limited factual underpinnings. 58I am therefore, and notwithstanding the vast engineering effort that has gone into the investigation of the cause or causes of this accident, left with very little in the way of useful expert evidence. 59I must reach conclusions based on very limited material. 60By way of preliminary, I observe that no issue emerged concerning the efficacy of the strapping of the coil to the pallets, which, I infer, occurred at Bluescope's premises. I mention this because it enables me to draw the conclusion that the strapping was effective. That means that each coil and pallet operated as a single unit. There is no question of the coils toppling from the pallets. 61The issue is therefore whether the pallets - not the coils - tilted or toppled. More accurately, whether the coils toppled or (not from) the pallets. That that happened is made a significant possibility by the undoubted failure of the wedges to come in contact with either the pallets or the coils, and afford the restraint for which they were designed. That, in my opinion, rendered the load unstable and vulnerable to tipping when subject to the lateral force of the vehicle negotiating a left bend at a speed that would otherwise have been safe. The effect of the failure of the wedges to meet the pallets is illustrated in the new Guidelines, Tab 47 (see p 823). 62The most compelling item of evidence that tipping occurred is not expert evidence, but the evidence of the plaintiff himself, which I accept. In his first description of the accident, to the police the day after, he said that he heard a bang or a thud. This was followed by the container leaning to the right. No amount of expert analysis based on hypothetical scenarios can dislodge the inferences that emerge from that fact. 63I will briefly review the conclusions and opinions of the two engineers. 64Dr Rechnitzer considered the Bluescope Guidelines to be "quite inadequate", and to have failed to "provide a reliable, engineered system". This was because they placed far too much reliance upon factors that could not be properly monitored or controlled, such as nailing the wedges and the chocks to the container floors, and left too much to individual assessment by operators. He considered nailing as a "fixing method" to be unreliable in dynamically loaded situations such as a truck where the trailer and load are subject to considerable movement and jolting. In relation to nailing he accepted the assessment of Mr Robertson (of Bluescope), that the nails failed adequately to penetrate the timber of the container floor. He also adopted Mr Robertson's opinion, in relation to a different incident (the Indian export, see [48] above), that failure of the nails adequately to penetrate was a design failure rather than an installation one. 65Dr Rechnitzer further considered that the high centre of gravity of the truck meant that the loaded semi-trailer had a "too low rollover stability threshold" (otherwise referred to as SRT (Static Rollover Threshold)). In this respect he considered that a lower "drop deck" trailer would have prevented a safer alternative. 66He considered that the Guidelines failed to accommodate the possibility of load shift caused by inadequate securing, and recommended that "bolted connections" should have been developed. 67He referred to an alternative system, known as a "Strang system", but was unsure if it were commercially available in 2007. However, he also recommended that a bolted steel frame based system holding the steel coils vertical, and blocked against the sides of the container to prevent lateral movement, together with a "tie down system", would have been effective. 68Dr De Pont took issue with Dr Rechnitzer's assessment of the high centre of gravity of the trailer. In the end, it seemed to me, this divergence was of little moment. 69Dr De Pont acknowledged (p 379) that there were a number of deficiencies in the way the load restraint system was applied. One of these deficiencies was the inadequacy in the height of the wedges. However, he considered that the deficiency could have been compensated for by the over coil straps - provided they were properly in place, and sufficiently tensioned. If the over coil straps were not adequately tensioned, they would not have contributed effectively to the load restraint and the capacity of the load to withstand lateral forces would have been reduced. 70What is not known in this respect is whether the straps were adequately tensioned. What is known is that a greater of degree of stability was provided by the new system introduced after the plaintiff's accident - by the simple expedient of placing a timber board the length of the coils over which the straps were to pass. 71In my opinion, the evidence establishes:

Bluescope's Guidelines were inadequate in a number of respects, including failing to deal with a change in the configuration of the pallets it delivered to Mannway;
Bluescope failed to inform Mannway that the 7.2 tonne coils were mounted on pallets that were constructed differently from those previously used, and could not be adequately restrained by the use of the standard sized wedges;
the system devised by Bluescope was further inadequate in providing for chocking that gained its strength from nailing to the container floor, using chocks that were of insufficient length to extend to the container walls. A safer system, as introduced after the plaintiff's accident, had the chocks extending to the container walls, thereby obtaining strength and support from the walls;
Mannway workers failed to take action to remedy the ineffectiveness of the wedges. Whether this was because they were inadequately trained and did not understand the function of the wedges, or because they simply did not notice that they did not make contact with the pallets or coils, is not known. It is difficult to believe that they did not know that the wedges did not make that contact;
the nails that were intended to fix the wedges and the chocks to the floor of the container did not have sufficient depth of penetration to achieve that purpose. As a result, the already inadequate chocks failed to restrain the heavy load. 72Both Bluescope and Mannway owed the plaintiff a duty of care. Both failed in the discharge of that duty, in the respects I have outlined above. 73Senior counsel for Bluescope argued that the duty of care which Bluescope admittedly owed him did not extend to warning Mannway employees about the existence of the additional runners on the pallets. While acknowledging the existence of the duty of care to the plaintiff, senior counsel advanced an argument that that duty was sufficiently discharged by the promulgation of its Guidelines. He placed particular emphasis on the fact that the diagrams in the Guidelines demonstrated clearly that wedges were to come in contact with the pallets (or the coils). Essential to the argument was the further proposition that Bluescope's duty to the plaintiff did not include an obligation to draw to Mannway's attention that some pallets had been modified by the extra runners, with the effect that the pallets sat higher off the ground. 74I do not accept that argument. The first incontestable fact is that transport of coils the weight of these coils was a highly dangerous activity, calling for extreme care on the part of all concerned. The second incontestable fact is that Bluescope, no doubt for good and valid reasons, insisted on adherence to its Guidelines. The third incontestable fact is that it delivered to Mannway pallets that were out of conformity with those previously delivered. The fourth incontestable fact is that Bluescope did not notify anybody at Mannway of that disconformity. 75Bluescope's duty to the plaintiff was commensurate with the risk inherent in the activity of transporting the coils. It was foreseeable that Mannway workers would not notice the additional runners on the pallets. While it might have been hoped that they would appreciate the need for the wedges to come in contact with the pallets, it was foreseeable that they would not appreciate the significance of that aspect of the Guidelines. No particular emphasis is placed in the Guidelines upon the need for physical contact. The instruction in the July 2007 Guidelines was: "Wedges are forced under the sides of each coil, this may be against the pallet or the coil where it protrudes beyond the pallet." (p 818) 76Although considerable reliance was placed upon evidence, elicited in cross-examination of witnesses, including Mr Rooney, Dr Rechnitzer and Dr De Pont, that this meant that physical contact had to be made, interpretation of the document and what it conveyed was not a matter for those witnesses. Bearing in mind that the system designed by Bluescope was, to its knowledge, implemented by labourer-level employees at Mannway, the instruction, I conclude, was insufficiently clear to draw to their attention the purpose of the wedges, and the importance of contact between the wedges and the pallets. It was foreseeable that those workers would not appreciate the full significance of the instructions. 77Senior counsel for Bluescope then sought to draw comfort from the decision of the High Court in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; 240 CLR 1. That case was concerned with the liability of principals to independent contractors. Leighton was a building company, the principal in the arrangements that there applied. Mr Fox, who was the plaintiff in the original proceedings, was himself an independent contractor ([11]) engaged by a sub-contractor to Leighton's. That is one point of departure from the present case. The plaintiff here was not an independent contractor, but an employee of a company with whom Bluescope contracted. That is perhaps the least important point of departure, because some analogy can be drawn between the position of the plaintiff, and that of Mr Fox. Mr Fox was injured as a result of the negligence of a sub-contractor and another person apparently in a similar position to Mr Fox ([3]). The Court of Appeal (Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23; 170 IR 433) found that Leighton was liable to Mr Fox for his injuries. As the High Court put it, the judgment of the Court of Appeal imposed on Leighton a duty to provide induction training to Mr Fox and his fellow independent contractors in the safe method of performing the task a sub-contractor was engaged to perform. The High Court rejected that proposition ([52]), as imposing an undue burden on a principal in the circumstances that appertained. It also rejected a narrower proposition put on behalf of Mr Fox, that Leighton's duty was to ensure that each person working on a site it controlled provided satisfactory evidence of having completed induction training. However, rejection of that proposition was not because the principle it encapsulated was wrong, but because the evidence in the trial did not permit relevant findings of fact to be made. 78Contrary to the submissions advanced on behalf of Bluescope, I do not understand Leighton to have propounded any significant new or different principle in relation to the liability of principals to independent contractors. The High Court quoted the well-known passage in the judgment of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at [47]-[48] as follows: "An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee ... [The duty] does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility." 79What is significant here is that Bluescope acknowledged that it owed a duty directly to the plaintiff. The fact that Mannway also owed a duty to the plaintiff does not alter that fact. In maintaining control over the method of packing - the working systems - Bluescope disentitled itself to rely upon the separate duty that Mannway owed to the plantiff, and to relieve itself of that obligation.

The apportionment of liability of the defendants 80As I mentioned at the outset, the liability of the two defendants is governed by different statutory regimes: Bluescope's by the Civil Liability Act 2002, Mannway's by the Workers Compensation Act 1987. Bluescope 81In written submissions provided on behalf of Bluescope, it was implicitly acknowledged that Bluescope owed the plaintiff a duty of care. That was done explicitly in oral submissions. However, it was argued that this duty was circumscribed and limited to a duty to exercise reasonable care in designing a system for transporting steel coils by truck. It was argued that the duty was that owed by a principal to an employee of a competent independent contractor (para 145). 82I note that Bluescope relied upon the disclaimer appended to the Guidelines, in which Bluescope purported to return responsibility for the packing of the coils to Mannway. However, that is inconsistent with the evidence of Mr Rooney, that Bluescope insisted on adherence to the Guidelines. Mr Rooney's evidence is confirmed by the contract between Bluescope and Mannway. Moreover, there was 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, there is no evidence that it had specialised expertise in loading and packing steel coils. In any event, the current issue is whether Bluescope owed the plaintiff (not Mannway) a duty extending beyond of that of principal to an employee of an independent contractor - and, in either case, whether it adequately discharged its duty. 83The extent of Bluescope's obligation to Mannway is a matter for apportionment should it be found that both defendants are liable. 84Certainly, system design lies at the heart of Bluescope's duty. That has added significance given the contractual requirement that Mannway pack in accordance with the Bluescope Guidelines. Bluescope's duty to the plaintiff included the proper design of the loading and packing system. It also included maintaining of the efficacy of that system when circumstances (ie the height of the pallet from the ground) changed. Once that change occurred, the discharge of Bluescope's duty to the plaintiff (to the extent that it was discharged) required notification to Mannway of that change. Bluescope failed in that respect. 85However, I accept also Dr Rechnitzer's views that, even leaving aside the change in pallet height, the system was flawed. An example is in the chocking arrangements. Just why the chocks were permitted to be less than the full width of the container, when they could have made use of the strength of the container walls, in favour of a nailing arrangement that is clearly subject to individual variation, cannot be explained. The fact that this was immediately introduced following the plaintiff's accident does not establish that Bluescope was in breach of its duty in failing to take that step before the accident, but it is evidence that it was possible, and that it was inexpensive and unburdensome. 86Senior counsel for Bluescope also relied upon what I have called the "Villawood experience" of Mannway - that is, that Mannway employees at Villawood, confronted with a similar packing arrangement, took the simple expedient of removing the additional runners. As I observed earlier, there was no evidence how the Villawood Mannway employees came to be aware of the extra runners. The evidence was that the employees who undertook the loading and packing were not high-level employees able to make discretionary or other judgments on behalf of Mannway. They were labourers. 87Senior counsel cited the decision of the Court of Appeal in Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471. The passages specifically referred to, in my opinion, contradict his argument. Spigelman CJ said; "39 In my opinion, in the context of determining what reasonableness requires, there is no scope for extending the doctrine of constructive knowledge so as to encompass all the employees of a company. To do so would be, in substance, to impose a duty on all organisations to establish elaborate systems of inquiry and investigation which are unduly burdensome. 40 Whether a principal is affected by an agent's knowledge depends upon the context ... In an agency context the issue turns on actual or ostensible authority. Analogous principles apply in the context of employees in an organisational hierarchy. 41 Whether the knowledge of a particular person should be imputed to a corporation depends on the scope of that person's employment. A person in a supervisory position ... has duties which encompass the receipt of the relevant knowledge and accordingly, could be said to have a duty to communicate and/or act upon it. That cannot be said to be the case for the other employee witnesses. 42 The test of a duty to communicate knowledge as establishing such knowledge in a corporation has been applied in a number of contexts ... 43 A felicitous description of a person whose knowledge will be imputed to a corporation is an 'agent to know' ..." (internal references omitted) 88What is here proposed is that, once it is established that Villawood employees knew that some pallets were delivered with an extra runner, then the whole of Mannway could be taken to have that knowledge. I do not accept that that is so. In any event, there is no evidence that any Villawood employees had any inkling that Bluescope was delivering similarly modified pallets to Mannway at Port Kembla. 89I reject this argument. 90Senior counsel for Bluescope concentrated attention on issues such as speed, the packing of the container, and the extent of its duty. He did not advance any argument that, by reason of provisions of the Civil Liability Act, it was not liable or that its liability was modified in any way. 91Given the absence of any substantial argument concerning the Civil Liability Act, I can deal with its provisions briefly. For the purposes of s 5B, I am satisfied that the risk of harm to the plaintiff was foreseeable, that it was not insignificant, and that, in the circumstances, a reasonable person in Bluescope's position would have taken precautions of the kind to which I have referred, and which it did subsequently take. Some of the alternatives proposed by Dr Rechnitzer would be considerably more expensive, and possibly more burdensome, than those which were immediately put into effect. Even those, however, having regard to the extent of the risk of harm, would not be disproportionate. 92There is nothing in s 5C that needs to be addressed. For the purposes of s 5D, I am satisfied that the breach of duty by Bluescope was a necessary condition of the occurrence of the harm to the plaintiff and that it is appropriate for the scope of Bluescope's liability to extend to that harm. 93Accordingly, I find that Bluescope is, within the provisions of the Civil Liability Act, liable for the injury to the plaintiff. It will be necessary then to determine whether Mannway is also liable, and, if so, in what proportions the defendants must bear responsibility.

Contributory negligence 94Bluescope maintained that the plaintiff was at least in part responsible for his injuries. The only reason it advanced for this conclusion concerns the speed at which he was driving. I have rejected the proposition that the plaintiff was driving at an unsafe speed. It follows that I do not find contributory negligence. Mannway 95For the reasons given above, I am satisfied that Mannway was also in breach of its duty to the plaintiff. Apportionment 96The primary liability is that of Bluescope. It was Bluescope who devised an inadequate system, and who compounded that inadequacy by insisting on strict adherence to it by Mannway. And it was Bluescope who altered the configuration of the pallets and failed to notify Mannway that it had done so. Bluescope again sought to invoke Mannway's Villawood experience, attributing some kind of corporate knowledge to Mannway. I can see no basis on which Mannway's Villawood employees had any duty to notify other Mannway employees at another site (which had never previously had the modified pallets delivered to it) of what they had learned and how they had dealt with it. Mannway was entitled to expect Bluescope to draw its attention to any material change in the pallets Bluescope delivered. 97I apportion 85 percent of the liability to Bluescope, 15 percent to Mannway.

Damages 98The parties have been able to reach agreement in respect of all issues concerning damages except for two. The two are the plaintiff's residual earning capacity and the age to which he would have worked before retirement. Residual earning capacity 99The case for the plaintiff, put simply, is that, realistically, he retains no capacity to earn income. That is not to say that he does not have physical capacity to undertake some work, but that, given his age (now 65) the harsh realities of the workplace are that he is in truth unemployable. 100Bluescope concedes that he had no earning capacity for a period of about three weeks following the accident, and for further periods following surgical procedures carried out in November 2007 and May 2008. 101There was no issue concerning the injuries that the plaintiff suffered. They are set out in his initial evidentiary statement, dated 18 November 2008 (Tab 10). He suffered an injury to his shoulder, for which he underwent surgery in November 2007. He also suffered an injury to his neck, which subsequently (in May 2008) required fusion of the discs at C5/C6. He also, unsurprisingly, had some psychological sequelae. He suffered other physical injuries, from which he has largely recovered. 102Initially, following the accident, the plaintiff returned to work, performing light duties for Mannway, until the date of the shoulder surgery in April or May 2008. 103Following the neck surgery, he was cleared to return to work on light duties in early August 2008, but when he presented himself, Mannway advised him that there was no position for him. He has not worked since. 104The plaintiff, not unreasonably, feels that he will never be able to drive trucks again. There are a variety of day-to-day activities he now cannot undertake by reason of physical restrictions. He also suffers a degree of depression. These all impact on his capacity to work. 105I have no doubt that the plaintiff wants to work, and that if work were available to him, he would take it. He is not a malingerer. The plaintiff is, I am satisfied, keen to obtain employment and has diligently pursued opportunities for employment, but these have come to nothing. 106There is no dispute in the medical reports that the plaintiff suffers residual pain and stiffness in the shoulder and neck, and that this will be permanent and will not improve. That, in itself, would be sufficient to disqualify him from driving trucks, even without the psychological component. 107He has undertaken vocational assessment and was, in May 2010, assessed as being suitable to work six hours per day, three days per week. However, this was subject to significant limitations in respect of lifting and other activities. 108Bluescope contended that the period during which he performed light duties for Mannway from September 2007 to April 2008 is an indication that he does have some capacity. That may be correct. Capacity is one thing. Obtaining work is another. 109In my opinion, Bluescope's position is unrealistic. Although there was no evidence presented on behalf of Mannway as to his termination, it is clear from reports following the accident that the plaintiff was a well-regarded and enthusiastic employee. He was not, however, trained for office duties, and I would infer that he was not suitable for office work. It is hardly surprising that his attempts at securing employment have had no result. The evidence satisfies me that, notwithstanding some physical capacity, the plaintiff is effectively unemployable: see Nominal Defendant v Livaja [2011] NSWCA 121 at [65]. Retirement age 110The plaintiff gave evidence that he enjoyed his work and would have continued to work until the age of 70 or even 75. His wife confirmed that he had enjoyed working, and does not enjoy the enforced idleness his unemployment has brought upon him. 111Moreover, there were in his life financial imperatives. He and his wife entered an ultimately unsuccessful business arrangement as a result of which they lost significant sums of money. His wish to restore his financial position would, in my opinion, have kept him in the workforce even if he did not derive the enjoyment from driving trucks that I am satisfied he did. 112I find that the plaintiff would have not retired before the age of 70. 113These findings having been made, the parties agreed that it would be appropriate to require or permit them to make the necessary calculations, having regard to the agreements with respect to damages. 114I direct the parties to bring in short minutes to reflect the conclusions set out in these reasons. The orders will include orders of verdicts for the plaintiff against each defendant, with an apportionment of liability of 85 percent to the first defendant, and 15 percent to the second defendant, as representative of Mannway.

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: 17 July 2013

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