Circumstances of the accident
10 The following facts were found or clearly established in the evidence.
11 The accident occurred at about noon on 14 February 1996. The weather was fine.
12 Emoleum was conducting road resealing operations on the Hume Highway, at a point known as Conroy's Gap. Two of the three lanes of traffic were closed to enable them to be resealed. The third lane (to the west) was being shared between northbound and southbound traffic that alternated as directed by traffic controllers. The controllers were positioned at each end of the single lane and communicated with each other by two-way radio. The path to be followed by traffic as it entered, proceeded along and exited from the single lane was marked by "witches' hats".
13 The resealing work involved specialised vehicles spraying the existing sealed service with liquid bitumen, specialised heavy trucks spreading crushed aggregate and specialised road-rolling or compacting machines. There were approximately 18 people working on the site on the day of the accident. These included the drivers of three other trucks similar to Baker's and the drivers of two or three "multi-rollers".
14 There was a representative of the Road and Traffic Authority (RTA) whose function appears to have been to ensure that the work was done in the right location and generally according to RTA specifications.
15 The resealing work was supervised by Mr Edwards, Emoleum's asphalt foreman. His duties were to supervise the employees and subcontractors involved in the resealing work at the particular site. He had worked for Emoleum for 17 years. Work commenced at about 8.30am with him assigning men to different tasks, starting with the marking out of the portions of roadway to be closed off with witches' hats. It would appear that the specialised trucks were operated at the site by owner-drivers under sub-contract to Emoleum. It is however clear that they worked under Edwards' general supervision (see eg Black 90, 116); and, in the case of Baker, under his direct supervision in so far as Edwards operated the spreader at the back of Baker's truck.
16 Baker was a self-employed truck driver who owned and operated a spreader truck that laid aggregate. It was between six and seven metres long. The spreader box at the rear projected an extra six inches on either side beyond the tray. When aggregate was being spread, the truck followed another truck that sprayed liquid bitumen. Baker's truck would be driven in reverse, laying a carpet of crushed aggregate over the sprayed surface. By proceeding in reverse it avoided disturbing the applied liquid bitumen with its tyres before the aggregate had been laid on it. The flow of aggregate onto the sprayed bitumen was controlled by two persons operating gates at the rear of the truck.
17 Those persons could communicate with Baker by an intercom system operating between the driver's cabin and the rear of the truck. Any necessary instructions as to the speed and direction of the reversing truck could be conveyed through that intercom system. People on the back simply had to speak to be heard by Baker: Baker had to press a button in the cabin to speak to them (Black 111-112). Baker said that the intercom was used to let the driver know what was happening (Black 119) and "where there is trees or power lines as a safety issue" (Black 111). This intercom system had been installed by Emoleum and was maintained at Emoleum's expense (Black 122).
18 On the day of the accident resealing work was being done over 800 metres of roadway. The two men operating the spreader box at the rear of Baker's truck were Mr Edwards and Mr Winner, another employee of Emoleum.
19 There were three "flagmen", Mr Michael Moy who was the senior man, his son Marcus and the deceased. The deceased was aged 22.
20 The flagmen had completed an RTA approved course and had a ticket in traffic control. They were employed by ELS, which was based in Gundagai and managed by Mr Chris Smith. Mr Smith had conducted the course, which took about 3-4 hours (Black 135).
21 At the beginning of the day, the flagmen laid out the witches' hats that designated the open lane and the way that traffic tapered into it from the north and south. When resealing work commenced, a flagman was positioned at either end and there was one in the centre whose purpose was to slow down traffic. Mr Moy snr had been the southern end flagman until shortly before the accident. The flagmen were rotated in location throughout the day.
22 The flagman also worked at the site under the general supervision of Mr Edwards (Black 137, 154-155, Red 46). They received no safety briefings from Emoleum (Black 127, 135).
23 The accident occurred not long after Baker had finished spreading a run at the northern end of the works. The judge found that Edwards told Baker to reverse down to the start of the job at the southern end to get ready for another northern run (Red 42M). Baker reversed down the eastern laneway over work that had been resealed that day or the day before (Black 110). He stopped his truck at Edwards' direction to enable Edwards to get out near his utility parked at the southern end of the roadworks close to the eastern laneway. Edwards and Winner got off the back of Baker's truck.
24 Baker continued to reverse another 15-20 metres to where he hit the deceased.
25 The traffic was moving north in the available lane at the time of the accident. The collision occurred in the eastern lane, which meant that the deceased must have walked across from the western to the eastern lane (Black 121) after releasing the long line of northbound traffic (Black 153).
26 Although the police were promptly called to the site there was no evidence about its exact location vis a vis the place where the deceased would have been standing when directing traffic. The plan roughly-drawn by Baker in the witness box (Blue 145) was not to scale. Baker said that the accident was very nearly at the southern end of the area that the traffic controller had marked out on the day of the accident, and he agreed that it was where you would expect a traffic controller to be (Black 100-1). There was evidence from Mr Moy snr that suggested that the accident was considerably closer to the tapering of the line of witches' hats than indicated in Baker's sketch (Black 130).
27 Baker was called as a witness by the plaintiffs. He described the accident from his perspective, admitting that he could have done more to prevent it happening.
28 Baker's evidence, accepted by the trial judge, was that Edwards asked Baker to drop him at his utility and turn around. He reversed down to the utility with Edwards and Winner at the back of the truck. Edwards advised or told him to "find a safe spot to turn around and get ready to start the next lane". Winner got off at the same time as Edwards (Black 118). Baker testified that after he had reversed past Edwards' utility there was no one around to signal him. He explained that he could not see out the back of his vehicle and could only avail himself of that degree of visibility that was provided by side mirrors on either side of the truck (Black 94).
29 Baker's truck was capable of being driven forwards, and it was a matter of choice that he always drove it in reverse (Black 110). He said that the truck was always in reverse at the site (Black 94), giving the somewhat cryptic explanation that "the rollers were up the top, in front of me" (Black 91). The truck had reversing lights and a warning beeper/horn.
30 There was still half a load of aggregate on Baker's truck when Edwards and Winner were dropped off near Edwards' parked utility (Black 118). The direction to reverse down to a "safe spot" for turning was given because of the practice of not twisting the tyres on recently laid roadway, as this section was (Black 102, 118, 156-7). The particular spot was a parking bay that had been used before on the day of the accident (Black 112). On the previous occasions Edwards had stayed on the back of the truck as it reversed down, turned and came back up to the north (in reverse) (Black 112-113. See also 134). The apparent purpose of dropping Edwards off on the occasion immediately before the accident was to enable him to move his utility to a different spot near where the next spreading run was to take place, where he would get back onto the truck (Black 120, 124, 125).
31 Baker had observed the deceased when he started his last reversing movement. He knew that the deceased was somewhere behind him but that he had lost sight of him. He could not see through the back window of the cabin, but had to use the side windows and rear mirrors (Black 94). He agreed in cross-examination that he did not stop and check (although he could have), but watched behind him using both mirrors. He could have enquired as to his whereabouts using CB radio contact with the traffic controllers, but he didn't do so. Unfortunately he did not see the deceased before the passenger side rear of the truck and passenger side wheels had passed over his body (Black 106-9). Baker's mirrors only showed a person fully behind his vehicle "a long way behind" (Black 108). There was a significant blind spot, as indicated in a drawing he made when interviewed by the police shortly after the accident (Black 109, Blue 146).
32 The reversing lights and beeping horn were operating on Baker's truck. This was, however, a generally noisy worksite. Mr Moy said that "it's just beeping all day long and you just automatically shut them out" (Black 155. See also Black 133). How the deceased came to be struck remained a matter for inference or speculation. Indeed, there was no evidence clearly explaining why the deceased was at the point where the accident occurred.
33 Baker said that he had reversed in this particular fashion at the site before, and that he had never been told not to (Black 110). Moy's evidence was to similar effect (Black 134). Baker's conversation with Edwards at the point where Edwards was dropped off was in fact an implicit direction to continue reversing down to the "safe spot", made in a context where Baker would (to Edwards' knowledge) be doing so without the advantage of having someone standing at the back of the truck who could see clearly and communicate with him, if necessary.
34 Emoleum did not dispute that it owed a duty of care to the deceased arising from its position as the entrepreneur controlling the various activities at the site.
35 Dent DCJ found in effect that Emoleum was in breach of its duty of care by reason of the system of work that it permitted and the instruction given by Mr Edwards. His Honour reached this conclusion in a context where Edwards was not called as a witness, nor was his absence explained (cf Jones v Dunkel (1959) 101 CLR 298).
36 The nub of the reasoning as to Emoleum's negligence was as follows:
[Baker] was driving pursuant to an instruction [from Edwards] to reverse further down the hill to a point where he could safely turn the vehicle around and reverse it back up the hill. This was being done to Mr Edward's knowledge without the benefit of anybody on or at the rear of his vehicle spotting for him.
It is trite knowledge conforming with the experience of mankind that driving a vehicle backwards, or driving with the driver's vision obstructed, poses special dangers, and the awareness of those dangers is reflected in the Regulations for Traffic. Regulation 90(1)(b) decrees that a driver on a public street "shall not cause the vehicle to travel backwards for a greater distance or time that may be required for the safety or convenience of any person". Schedule (f) to those Regulations, Clause 73, prescribed the ideals that rear vision mirrors are to meet up to. Regulation 119(a) deals specifically by way of prohibition that driving a vehicle on a public street that is so constructed, etc as to prevent the driver to have a sufficient view of traffic on either side of the vehicle, and all directions in front of the vehicle, to enable him to drive the vehicle with safety.
….
I am satisfied from the evidence of Mr Baker that driving in reverse without a spotter on the intercom system at the rear of the truck, or without a walking offsider, was a permitted practice at this work site, and in my judgment an essentially dangerous practice, and that what happened to the deceased in the circumstances of the subject accident was an accident waiting to happen.
….
The work performed by the deceased and by Mr Baker was work that could as readily be done by employees, given that heavy vehicles were moving about the work site at the same time as pedestrian employees were on it and about it. There was a risk of injury to the pedestrian employees, and there was a need for [Emoleum] to give instructions as to when and where the work was to be done and to co-ordinate the various activities. The permitting, and in this case requiring the driver of a heavy vehicle to drive in reverse with limited vision to his rear available form the side mirrors only of the vehicle, required the establishment of a system of either spotters advising the driver reversing his vehicle, and/or the effective communication to a person liable to be or in fact in the intended path of the reversing vehicle, of a warning to get out of its way. Such a system was not adopted and given the fact that all parties at the site were equipped with two-way radios, and that Mr Ian Thomas Edwards and another were potentially available to act as spotters for Mr Baker whilst proceeding in reverse, there existed a reasonably practicable alternative safer system for the system of work otherwise in place. This failure to act on the part of [Emoleum] was in my view a negligent omission on its part, and it caused the injury and death of the deceased, and was a breach of duty of care to the plaintiffs.