4 The plaintiff was born on 26 August 1970. He was a qualified plumber. He had had considerable experience working in the building and construction industry in the north west of Western Australia. He had operated various forms of equipment. He had driven trucks and road trains. Generally he was multi skilled, as were most people who performed work of this kind in remote areas.
5 The first defendant had a construction contract at Balgo Mission in a remote part of the north west of this State. The first defendant provided cartage and construction services and utilised a road train for transport. The road train that figures in this case comprised a prime mover and three trailers. It was about 150 feet in length. The prime mover was equipped with a single bunk bed.
6 On 9 July 1992, Stewart Grahame, a cartage contractor and construction worker of more than 20 years experience, and the plaintiff, set out in the road train from Cotton Creek near Port Hedland for Balgo Mission, a distance of some 1400 km. The trip was expected to take about three days and two nights. The plaintiff had previously accompanied Mr Grahame as co-driver and assistant on many such trips in Western Australia.
7 Other than knowing in a general sense that the plaintiff was travelling on the road train with Mr Grahame to Balgo Mission and would be sleeping in his swag at overnight stops, the first and second defendant did not know day to day details. Mr Grahame said he was employed by the first defendant and paid by the second defendant (T159) as a truck driver. His role was to transport equipment and materials from job to job. The plaintiff sometimes accompanied Mr Grahame as co-driver. Mr Grahame was the senior man.
8 It seems to me in all the circumstances that Mr Grahame was the representative or agent of the first and second defendants, for all intents and purposes, and therefore his knowledge should be that of the defendants.
9 As it left Cotton Creek the road train was hitched up with three trailers. It is not clear how heavily laden each of the trailers was, or what was the nature of the cargo, save to say that one trailer, either the second or third in line, was carrying a tip truck and a back hoe tractor digging machine.
10 Exhibit A is a mock-up of that particular trailer loaded with a tip truck and a front end loader. The tip truck in the photograph was not the same as the tip truck that was involved in this incident. The tip truck involved in the incident was smaller with a single rear axle.
11 Nevertheless, the photograph conveys the general appearance and set up of the load on that trailer. However it is not a reliable guide as to dimensions and particularly as to the height of the top of the tip truck above the trailer and ground level.
12 Nor is Exhibit A of any use concerning the question of whether there was any unused space on the floor of that trailer. The plaintiff said that there was no space for sleeping on the floor of the trailer upon which the tip truck and back hoe were being carried. Pieces of timber and steel were laying about, available spaces having been filled with small goods.
13 On the evening of 9 July 1992, having travelled from Cotton Creek to Port Hedland, the plan was that the road train would go to and rendezvous with other vehicles at the Tanami turn-off 17-20 km out of Halls Creek. The occupants of the various vehicles were to camp there for the night and leave for Balgo Mission at dawn on 10 July 1992.
14 The road train needed refuelling when it arrived. Having radioed ahead and requested the road house in Halls Creek to remain open Mr Grahame and the plaintiff drove past the turnoff and on into Halls Creek to refuel. They then returned to the camp at the turn-off to spend the night before setting off early next morning.
15 Apparently there were some people in the vicinity, camping and making noise, but there had been no difficulty with them.
16 Having returned, refuelled, from Halls Creek the road train was parked off the track. Mr Grahame and the plaintiff together with several, perhaps four or five other men, sat around the camp fire and consumed some refreshments. According to the plaintiff he drank about two cans of Swan Gold beer. This was at around midnight to 12.30 am on 10 July.
17 All the men then decided to retire for the night. Three of them rolled out their swags by the camp fire intending to sleep there on the ground.
18 Mr Grahame, with his 16 year old son who was also accompanying him, slept head to toe in the single bunk in the prime mover.
19 The plaintiff had his swag with him. This was his practice when accompanying Mr Grahame on long distance haulage trips. He knew he would not be sleeping in the bunk in the prime mover. He knew he would have to find somewhere else to sleep either on the ground or somewhere on one of the trailers of the road train. He had done so on many occasions. It was common practice for long distance truck drivers in the north west to camp by their trucks in their swags when rest was required. Swags were carried for that purpose.
20 Occasionally accommodation would be obtained at a road house or motel if the need to stop and rest coincided with a settlement, but again, given the distances between places like that and the distance required to be travelled, such coincidence was infrequent. It was common for drivers involved in the industry to make a camp off the track somewhere near the rest stop.
21 Camping out in the open in a swag was something that some people enjoyed doing more than others. According to some witnesses there was a concern about snakes and scorpions. According to another the risk of being invaded by ants was the only concern. One witness spoke about once being awoken by the attentions of a wild pig.
22 On the night in question as I have mentioned, at least three men rolled out their swags and slept on the ground around the camp fire.
23 Between about six weeks and three months previously, when the road train had stopped overnight in Halls Creek outside the roadhouse, Mr Grahame's brother-in-law, one Ken Lindsay, rolled out his swag and went to sleep "under or on the truck" (T160). In the early morning whilst he was asleep Mr Lindsay was assaulted by an unknown person . He was struck on the head with a bottle. It was allegedly an assault committed by a drunken aboriginal person passing by.
24 The plaintiff said that he was present on that occasion and the event had some significance for him. There was no evidence that such an event had happened to anyone before. But the plaintiff remembered the event and decided on this night to take his swag and climb up into and sleep in the back of the tip truck being carried on one of the road train trailers. He used a torch to assist him. The tip truck was empty. It was a completely safe place to sleep, the back having four steel sides. It was akin to a gigantic steel "safe cot". Nobody could possibly roll out of their swag whilst asleep in the back of the tip truck.
25 The plaintiff's only recollection is of commencing the ascent to his lofty sleeping place. His next recollection is waking up in the Halls Creek Medical Centre.
26 Mr Grahame's evidence relating to the plaintiff's decision to sleep in the tip truck, in cross-examination, commences at the bottom of T169. Mr Grahame placed some significance upon the fact that he and the plaintiff had arrived at the Tanami camp site in darkness. They were not therefore able to orientate themselves reliably with the features of the camp site. Mr Grahame put it this way when asked about the men sleeping near the fire: