Employer's liability - Negligence - Breach of duty - Occupier's liability - Breach of statutory duty

Road train co-driver injured during overnight stop when fell to ground from sleeping place on load - Turns on own facts

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Occupiers' Liability Act 1985, s 2, s 5

Australian Mutual Provident Society v Chaplain (1978) 18 ALR 385

Building Workers Industrial Union of Australia v Odco Pty Ltd [1991] FCA 87; (1991) 99 ALR 735

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 1956) 96 CLR 18

March v E & M H Stramere Pty Ltd & Anor [1991] HCA 12; (1991) 171 CLR 506

Romeo v Conservation Commission of the NT (1998) 192 CLR 431

The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40

Australia and New Zealand Banking Group Ltd v Federal Commissioner of Taxation (1994) 119 ALR 727

Barrow v CSR Ltd and Midalco Pty Ltd; Peter Heys v CSR Ltd and Midalco Pty Ltd, unreported; SCt of WA; BC8801016; 4 August 1988

Brakespeare v The Northern Assurance Company Limited [1959] HCA 31; (1959) 101 CLR 661

Briggs v James Hardie & Co Pty Ltd (1989) 7 ACLC 841

Climaze Holdings Pty Ltd v Dyson & Anor (1995) 13 WAR 487

Container Handlers Pty Ltd v Insurance Commission of Western Australia [2001] WASCA 304; 25 WAR 42

Countrywide Finance Ltd v State Insurance Ltd [1993] 3 NZLR 745

CSR Ltd v Wren (1997) 44 NSWLR 463

DHN Food Distributors v London Borough Council Tower Hamlets [1976] 1 WLR 852

Fennell v Supervision and Engineering Services Holdings Pty Ltd & Santos Ltd (1988) 47 SASR 6

Hetherington v Mirvac Pty Ltd & Ors (1999) A Tort Rep 81-514

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 181 ALR 263

Hotel Terrigal Pty Ltd (in liq) v Latec Investments Ltd (No 2) [1969] 1 NSWLR 676

J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632

Jones v Bartlett [2000] HCA 56; (2000) 176 ALR 137

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Leighton Contractors Pty Ltd v Panizza; unreported; FCt SCt of WA; Library No 950562; 19 October 1995

Narich Pty Ltd v Commissioner of Pay-roll Tax (NSW) (1983) 50 ALR 417

Nelson v BHP Coal Pty Ltd (2000) QCA 505

Opossum Exports Ltd v Aviation & General (Underwriting Agents) Pty Ltd (1984) 3 ANZ Ins Cas 60-624

Peate v The Commissioner of Taxation of The Commonwealth of Australia (1964) 111 CLR 443

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

R v Kearney; ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426

Salomon v A Salomon & Co Limited; A Salomon & Company Limited v Salomon (1897) AC 22

Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324

Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd [2000] WASCA 408; (2000) 23 WAR 291

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

The Council of the Shire of Sutherland v Heyman & Anor [1985] HCA 41; (1985) 157 CLR 424

Williams v Trimview Roof Restoration Pty Ltd [2001] WASCA 414

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 76 ALJR 483

Wylie v The ANI Corporation Ltd [2002] 1 Qd R 320

Zurick Australian Insurance Ltd v Amec Services Pty Ltd & Anor; unreported; FCt SCt of WA; Library No 980139; 31 March 1998

1 FENBURY DCJ: This is an action for damages for personal injuries allegedly sustained by the plaintiff as a result of his impact with the ground following a "rapid descent" from a height of about 4-4.5 metres (12-14 feet). It is not known how the plaintiff came to be on the ground. He may have jumped. He may have fallen. The quantum of damages has been agreed and this was the trial of issues of liability only.

2 The plaintiff alleges negligence against the first and second defendants (as employer alternatively as occupier), breach of statutory duty and breach of the contract of employment.

3 Each of the defendants has issued third party proceedings against two insurance companies each of which has declined to indemnify the defendants against the plaintiff's claim. The nature of the relationship between the plaintiff and the defendants is in dispute. Was the plaintiff an employee? Or was he a subcontractor? The first third party was the public liability insurer. The second third party provided workers' compensation and common law cover. I shall firstly deal with the question of whether the defendants, or either of them, is liable.

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:

"...There's no real concern for the fellows sleeping around the fireplace, but they'd arrived there before dark and were able to see where they were sleeping, where their positions were in relation to everything else in the immediate area. We arrived there at 11.00 o'clock or thereabouts that night. You know where you are in relation to everything with your road train. There was a group of noisy people down the road that may possibly have represented some threat during the night, they may not have, but they were noisy enough to raise some concern, so I would have slept on a trailer that night."

27 At T171 Mr Grahame described the circumstances of the plaintiff's choice of sleeping place.

"...I'd seen where Bob Hunter's crew were sleeping, where their swags were unrolled and there was some noise from the people down the road and Sy said,'That's it, I'll be unrolling my swag in Shiner', which was the nickname we had for the tip truck at the time and I said 'No worries' saying to myself 'Good I know where to find you in the morning'. That was it."

28 Then the following exchanges occurred which I think are worthy of citation:

"You regarded it as an acceptable place for the plaintiff to have slept that night?---On that night, at that time, yes.

Would you agree that it carried considerable risks such as falling out, tipping out of the tray during the course of the night?---Sy is the only fellow who I know in my experience has fallen out of one. I wouldn't have thought it carried a degree of risk no.

What about climbing up and down from the ground into the tray, bearing in mind the height from the ground to the top of the tip truck rim of its back section and the sides? In other words clambering up into the dark, clambering down in the dark?---There's an element of risk in it yes. Sy was a pretty agile 21 year old. Yes there's an element of risk in climbing up any load on any semi-trailer at any time.

May his Honour take it that as far as you are concerned as effective boss of the site at the time and with an eye to approving or otherwise giving some recommendation as to sleep arrangements, you had no problem with the plaintiff sleeping in the trip truck?---No, I had no problem. I felt it was the best defensive place for him to be in the light of the crowd down the road and he was happy with that position of sleep.

Have you known other occasions in your experience when either yourself or people working with you on jobs have slept in the tray of a truck such as was loaded on the trailer here?---Many times."

29 From the above, according to Mr Grahame's recollection, it was only when the road train returned to the Tanami turn-off (after previously passing through on its way to Halls Creek to refuel) that the plaintiff decided he would sleep in the back of the tip truck. He made this decision when he became aware of the presence of noisy people camped down the road. It was a last minute decision. It seems the plaintiff would not have slept in the tip truck if there had been no noisy people nearby.

30 Obviously Mr Grahame did not know when he was in Halls Creek refuelling the road train that the plaintiff intended to sleep at height in the back of the tip truck when they returned to the turn-off. He did not know until he had returned to the turn-off after refuelling that there were noisy people down the road.

31 Mr Grahame was aware of the plaintiff retiring for the night and setting out to climb into the tip truck. He provided him with a torch. His next recollection is of hearing "shouting and screaming", at least 2 hours later. He was woken up. He went outside. He saw the plaintiff spread-eagled on the ground beside the trailer roughly below where the tip truck was located.

32 Nobody knows how the plaintiff came to be upon the ground. He was obviously seriously injured. It appears that the plaintiff had actually gone to sleep in the back of the tip truck. His swag was found there unrolled. It appeared to have been slept in. His thongs were nearby.

33 Given that it is impossible for the plaintiff to have rolled out of his swag and fallen from the tip truck whilst asleep, then the most likely possibilities seem to me to be as follows:

1. The plaintiff got out of his swag, walked in his sleep and stepped off the back of the tip truck falling to the ground or onto the trailer thence the ground;

2. The plaintiff had some need during the night to leave the tip truck and either;

(i) slipped and fell whilst climbing down or up, or

(ii) landed on the ground heavily having stepped out of or jumped off the tip truck forgetting where he was having just awoken.

34 The plaintiff was asked no questions about his sleeping habits or history. He said he had only had two cans of beer before going to sleep. He had only been asleep for about 2 hours.

35 As I have indicated it is not known how the plaintiff sustained his injury except that it is obvious the law of gravity played a major role. The plaintiff landed heavily on the trailer or the ground or both having descended rapidly from height.

36 The mechanism or dynamics of that descent may not be important. The plaintiff "descended" from height because he made his bed at height. According to the evidence the primary reason for the plaintiff choosing to sleep at height above the ground in the back of the tip truck was because he feared being assaulted during the night. According to the plaintiff that was why sleeping on the road train trailer was not an option he seriously considered, putting aside the question of whether there was any sleeping space on any of the trailer trays. He said there was no space on the tray of the trailer upon which the tip truck was being carried. He did not speak about any available space on the other two trailers.

37 As I have mentioned there was no evidence Mr Grahame knew, when he was in Halls Creek refuelling, that the plaintiff intended to sleep in the back of the tip truck some 12-14 feet above the ground. Mr Grahame was cross-examined about the practicality of parking his road train in Halls Creek and obtaining an available bed for the plaintiff at the Halls Creek Roadhouse. There were beds available at that place on the night in question.

38 At T162 Mr Grahame said that it was common at the time for people to roll out their swag and sleep on the load being carried on the trailers. This obviously reduced the risk of unwelcome visits by local fauna.

39 Mr Grahame was unable to recall whether there was any clear space on any of the trailers or not.

40 At T168 Mr Grahame said time was a critical factor. There was some urgency to get to Balgo Mission. He agreed with counsel that the nature of the work and the undertaking for the company at Balgo required prompt attendance and that "time was money". Mr Grahame explained at T168:

"...also part of linking up with others. We have to meet aircraft as they're coming in with other people, etc etc, so if you are not there within a reasonable time frame, if your ETA is not close enough you've got people landing in aircraft for example waiting around looking for you."

"Why did you elect to return to meet up with the men at the corner that is backtrack from Halls Creek? Was that to do with timing factors getting to the Balgo Mission or some other reason?---Its got a lot to do with time. It gives you a better start in the morning. You're out of town. You're 20 km out of town. You've got a group of blokes. Some of the blokes I don't know. You know, they say they're going to be ready at 6.00 o'clock in the morning under a prior agreement. Some day before you say 'you've got to be ready to roll out of town at 6 on Friday morning'. They're not. They get hung over. They want a hamburger. They want this and that. You don't get going, so it's a time factors. Too, road trains are difficult to park. They're 150 feet long. No-one likes them. They don't want them in their towns, so you're better off out of town. They don't make provision for road train parking in towns generally, so you're better off. If you've got to round up blokes from pubs and motels and things, you're better off not doing it in a 150 foot long road train."

42 There was no evidence that Mr Grahame made any enquiries of the roadhouse in Halls Creek concerning parking availability. In her proof of evidence (Exhibit N) Ruth Caroline Devenish-Meares, a former proprietor of the roadhouse, stated that the carpark at the back of the roadhouse could hold "10 road trains at one time".

43 The particulars of negligence alleged against each defendant are similar although not pleaded in the same order. The second defendant is not alleged to be negligent as an occupier. Paragraph 8 of the statement of claim is as follows:

"Particulars of the negligence and/or breach of statutory duty and/or breach of contract of employment/engagement of the first defendant.

(i) The first defendant was in breach of Section 5 of the Occupiers' Liability Act 1985 in that it failed to take reasonable care to see that the plaintiff would not suffer injury and the plaintiff relies on the allegations of negligence pleaded hereunder;

(ii) failed to provide adequate sleeping facilities for the plaintiff within the confines of the prime mover or otherwise;

(iii) failed to instruct the plaintiff not to sleep on top of the trailer or its load;

(iv) instructed and/or permitted the plaintiff to sleep on top of the trailer or its load;

(v) failed to implement and/or enforce any safe procedure for sleeping for the plaintiff during long journeys;

(vi) failed to warn the plaintiff of the hazards of sleeping on the trailer or its load;

(vii) failed to provide any safe or any adequately safe working system for the plaintiff;

(viii) the first defendant was in breach of Section 19(1) of the Occupational Health Safety and Welfare Act in that it -

(a) failed to provide and maintain work places or systems of work so far as was practicable to ensure that the plaintiff was not exposed to hazard;

(b) failed to provide instructions and training to the plaintiff so as to enable him to perform his work in a manner which would not expose him to hazards;

(c) the plaintiff relies on the allegations of negligence pleaded hereunder;

(ix) failed pursuant to Regulation 340 of the Occupational Health Safety and Welfare Regulations to provide the plaintiff with an adequate rest area."

44 By virtue of par 8(i) it can be seen that the plaintiff alleges the first defendant was in breach of the Occupiers Liability Act 1985, s 5. The claim asserts reliance upon the allegations of negligence generally pleaded. It is a little difficult to make sense of that plea. The claim was articulated by counsel for the plaintiff at T378. Counsel submitted that the enquiry was not related to the condition of the tip truck in which the plaintiff had been sleeping, "as a truck". Counsel put it:

"The enquiry is what was it being used for relevantly at the time and at the relevant time it was used to provide sleeping accommodation for the plaintiff without a safe means of access to and from the area in which he slept and that arises from providing sleeping accommodation some 14 feet above the ground without, as I say, safe means of getting up and down and that would bring it within the relevant enquiry within the Occupiers' Liability Act because it arises from the state of the premises, namely the vehicle."

45 In essence counsel submitted that because the truck was "knowingly being used as a bunk", and because it was at height above ground level without "a means of getting up and down" then it constituted a "danger due to the state of the premises".

46 By virtue of s 2 of the Occupiers Liability Act "occupier of premises" means a person occupying or having control of...premises".

47 "Premises" includes any vehicle.

48 Section 5 of the Act, paraphrasing, states:

"...the care which an occupier of premises is required by reason of the...control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises...and for which the occupier is by law responsible shall...be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

49 By subsection 2:

"The duty of care referred to in subsection 1 does not apply in respect of risks willingly assumed by the person entering on the premises..."

50 It was submitted on behalf of the first third party that the Court should follow the line of reasoning in Schmitz v Pilpel (1998) A Tort Rep 80-178 at 67, 663, a decision of the Full Court of the Supreme Court of Western Australia where the Court considered a claim by a plaintiff who fell off a ladder in a book store. There was nothing wrong with the ladder itself and the cause of her fall was that she overbalanced. After citing s 5 of that Act Brinsden J at 67, 667 said:

"Before a court comes to the question of the degree of care which is reasonable in the circumstances of the case there must of course be a danger on the premises due to the state of the premises or to anything done or admitted to be done on the premises and for which the occupier is by law responsible. The first enquiry therefore in this case is whether there was such a danger."

51 After finding that the ladder involved was not dangerous per se the Court considered that there was no danger upon the premises in respect of which the appellant was by law responsible as an occupier. The only danger which arose was through the actions of the respondent.

52 In this case there was no physical attribute of the tip truck that had any causative relevance to the plaintiff's injuries. It was an ordinary tip truck. As a bunk it would have been a safe place to sleep.

53 The fact that the tip truck was higher off the ground than it would normally be, was obvious to the plaintiff when he climbed up into it to go to sleep.

54 It seems to me that it is stretching the language to assert that the height of the trip truck, when carried on the back of the road train trailer, constituted a danger due to its state as premises for the purposes of the Act.

55 Even assuming that the defendants or either of them are "occupiers" for the purposes of the Act in that they had control of "the premises", and I have my doubts, I do not think they were guilty of negligence. This claim should fail.

56 Were I to be in error on that point then it seems to me that having regard to s 5(2) it can be asserted that the defendants were not required to show relevant care because the risk of sleeping at height was a risk willingly assumed by the plaintiff.

57 As I have indicated, for the purposes of the exercise I shall proceed on the basis that the plaintiff was employed by the defendants. That relationship of proximity gives rise to a duty of reasonable care on the part of the defendants to avoid exposing the plaintiff to unnecessary risk of injury. (Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 1956) 96 CLR 18 at 25). That is a duty which is extended to establishing and enforcing a safe system of work.

58 There are a number of factual issues that the plaintiff needs to establish before either of the defendants as employer can be found to have been negligent and therefore responsible for the plaintiff's injury.

59 It must be proven that the way the employer required the plaintiff to carry out his duties, that is the employer's work system, involved a risk of injury that was reasonably foreseeable.

60 For the purposes of this case the fact that the plaintiff was not actually performing any function of his employment, was not on duty one might say, does not matter. Sleeping "rough" was a feature of long distance heavy haulage work in the north west of this State and the plaintiff was injured during the hours of a rest stop necessitated by the demands of the job.

61 Mr Grahame, the senior man, slept in the only bunk bed in the prime mover as I have stated.

62 The plaintiff had his swag with him and the idea was that he would sleep outside the prime move wherever he wished. He could sleep on the ground, on the tray of one of the trailers, or in some appropriate place on the load of one of the trailers. It was up to the plaintiff.

63 At the time it was common, and Mr Grahame (ie the defendants) knew, for co-drivers such as the plaintiff to find somewhere to sleep on the trailer or the load during overnight stops in the bush.

64 As I have observed it is not known how the plaintiff came to be on the ground save that it is obvious he landed with force. Whatever the dynamic circumstances, the problem was that the plaintiff had made his bed 12-14 feet above the ground.

65 It is not necessary to prove that a reasonable employer placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect which intervened between the defendants' system of work and the injury.

66 There was no evidence either of the defendants knew of the plaintiff ever having slept at the degree of height above the ground he did. However Mr Grahame, the senior man, knew on that night that the plaintiff was going to sleep in the back of the tip truck albeit at the last moment. Indeed he lent him his torch to light the way.

67 Mr Grahame did not discourage the plaintiff from his plans. Indeed he thought it was a good idea.

68 I think a reasonable person in the position of the defendant (Mr Grahame) would have foreseen that the conduct complained of (say allowing people to sleep on the load and on this occasion at height) involved a risk of injury to them. (The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48).

69 In my view it was reasonably foreseeable that, sleeping at height, the plaintiff might fall and suffer injury.

70 The risk of injury was reasonably foreseeable.

71 In Romeo v Conservation Commission of the NT (1998) 192 CLR 431 at 479 Kirby J cited Mason J in Wyong Shire Council v Shirt (supra) that once it has been decided that there was a risk of injury which was reasonably foreseeable...

"it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

"Thus, it is the reasonableness of a defendant's actions or inactions, when faced with the relevant risk, which is critical in determining whether a duty of care has been breached. The question of whether the defendant has met the requisite standard of the reasonable person must be assessed on the facts of each case with reference to considerations such as those collected by Mason J in Shirt. These considerations provide a framework for determining which risks the defendant should guard against and which it can safety ignore."

73 The plaintiff must prove that there were reasonably practicable alternative ways of obviating the risk of injury.

74 No expert evidence was called on this issue but none seems to me to have been required. The issue can be determined as a matter of common sense and knowledge.

75 The plaintiff asserts, somewhat faintly, that the defendant should have provided a prime mover with two bunk beds. Alternatively, and more forcefully, it was argued that when the 150 foot road train went into Halls Creek at about midnight to refuel, Mr Grahame should have taken the opportunity and parked there for the night to enable the plaintiff to take a room that was available at the Shell Roadhouse.

76 With the wisdom of hindsight of course, it is unarguable that taking a room for the plaintiff at the roadhouse that night would have avoided the risk of injury. There was parking space at the roadhouse for the road train.

77 But to take that view seems to me to ignore the circumstances. A rendezvous point had been selected out of Halls Creek at which other vehicles had arrived for the purpose of an early start. Mr Grahame's view was that accommodating men in town made it difficult to start early because of the need to round the men up, and their inevitable last minute requests to get food and the like. Obviously Mr Grahame and the plaintiff would need to get up much earlier than otherwise, if they had stayed in town, in order to get out to the Tanami turnoff in time to set off on the journey to Balgo Mission with the other vehicles.

78 There was nothing at all unusual about this trip. Sleeping in his swag at a place of his choice was a regular feature of the plaintiff's employment. It was not until the vehicle had left Halls Creek and returned to the rendezvous point that the plaintiff became aware of the presence of a noisy group of people down the road. It was then that the plaintiff reached his decision to sleep at height. There was no evidence that Mr Grahame knew when the road train was in Halls Creek refuelling that the plaintiff intended to sleep at height when they returned to the turnoff.

79 In all the circumstances of the case it was not reasonably practicable for Mr Grahame to have stayed with the road train in Halls Creek on that night, after refuelling, and accommodated the plaintiff in the roadhouse, given the arrangements that had been made for the trip.

80 In relation to the issue of trucks with two bunk beds, clearly that would have removed the risk of injury in the circumstances. But I do not think the imposition of such an obligation upon long distance heavy haulage truck employers to provide two beds is a reasonable requirement or a practical one. Further, I think the general idea is to have a bunk bed so that driver and co-driver can alternate sleeping and driving.

81 The plaintiff must establish that the failure of his employer to eliminate the risk showed a want of reasonable care for the plaintiff's safety.

82 I refer further to observations of Kirby J in Romeo (supra) at p 480 where his Honour said:

"Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. It is here, in my view, the Courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case to accept that the risk of a mishap such as occurred was so remote that 'a reasonable man, careful of the safety of his neighbour, would think it right to neglect it'. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. ...Although a reasonably foreseeable risk may indeed give rise to a duty, it is the enquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligation. Precautions need only be taken when that course is required by the standard of reasonableness."

83 Romeo was a case of alleged negligence of a local authority in failing to fence a cliff near a tourist spot. Obviously the case differs factually from this case, however the judge's comments seem to have relevance here.

84 Put shortly I am not convinced that the failure of Mr Grahame to stop at Halls Creek and enable the plaintiff to sleep in the roadhouse, nor the failure to acquire a vehicle with an extra bunk bed instead of a single, amounted to a want of reasonable care for the plaintiff's safety. When all is said and done these sorts of trips are frequently undertaken by long distance heavy haulage trucks in the north west of Western Australia as I think I have already observed. Sleeping en route in a swag in a place of choice is something which has occurred on enumerable occasions over many many years.

85 Further, in the circumstances, there was no obligation upon Mr Grahame to forbid the plaintiff from climbing up to sleep in the back of the tip truck or to warn him not to do so. The risks of doing so were obvious. Furthermore I doubt very much indeed whether the plaintiff would have paid any heed.

86 It seems to me that the risk of injury was not significant enough in a practical sense to require a reasonable employer to guard against it.

87 In my view it has not been proved that the defendants have breached their duty as employers to take reasonable care for the plaintiff.

88 I shall deal briefly with the issue of causation. The plaintiff must prove that his injury was caused by the risk in question. It seems to me that there can be no doubt a significant cause of the plaintiff's injuries was the fact that he went to sleep at height above the ground. The height from which he fell is unknown. How he fell or what he fell on is unknown. All that is certain is that he ended up spread-eagled on the ground. However the nature of his injury, being a spinal injury, strongly suggests considerable trauma or force. The fact that he went to sleep at height was obviously causally significant to his injury, taking a common sense practical view of the matter. (March v E & M H Stramere Pty Ltd & Anor [1991] HCA 12; (1991) 171 CLR 506).

89 In my view the plaintiff has failed to prove that the defendants, or either of them, were negligent as employers.

90 In par 8 of the Further Amended Defence of the first defendant it is pleaded that the plaintiff voluntarily accepted the risk of "sleeping on top of the load on the trailer" and that therefore he is not entitled to maintain the claim - in other words a plea of volenti non fit injuria.

91 I think this issue can be dealt with briefly. Fundamental to the plaintiff's claim is the assertion that it is dangerous for a person to sleep on top of the load.

92 There was no evidence that to sleep on the load was inherently dangerous. I assume this was because it is said that to sleep on the load is so patently obviously dangerous that the Court can so conclude, and that no evidence is therefore required.

93 It seems to me that if the danger is so obvious then the plaintiff must have considered it and decided to take the risk. It seems to me that this is a case where it could be said that the plaintiff must have had full knowledge and understanding of "the danger arising from sleeping on top of the load on the trailer". He did not have to sleep on the load on the trailer. He decided to do so for the reasons that have been discussed.

94 The plaintiff also claims in par 4 of the statement of claim that it was an implied term of his contract of employment or engagement that...the defendants would exercise reasonable care for his safety and the plea takes up the particulars of failure relied upon in the negligence claim with which I have already dealt.

95 The defendants plead an implied term that the plaintiff will exercise reasonable care for his own safety amongst other assertions. Without commenting upon whether or not the claim alleging breach of contract and the assertion of an implied term has merit it seems to me the claim must fail for the same reasons as I have explained for dismissing the claim in negligence.

96 The plaintiff also alleges a breach of statutory duty and in particular lack of compliance on the part of the defendants with the provisions of the Occupational Health Safety and Welfare Act and also the regulations, as set out above. The claim is made against the first defendant in par 8 and the second defendant in par 9.

97 Counsel for the plaintiff devoted scant attention to this claim both in written submissions received by fax on 10 May 2002 and in oral submissions made at the conclusion of the trial. Indeed in the submissions, apart from stating that a claim was made pursuant to the said Act and regulations no other developmental submissions were put. Consistent with the attention allocated to this claim by counsel I think I can deal with it briefly by stating that for the same reasons that I have indicated the claim in negligence should fail, the claim for breach of statutory duty should also fail. In short, I do not think the defendants or either of them could be said to have behaved unreasonably as employers or as occupiers.

98 In the event that I am wrong in my view that the plaintiff has failed to prove negligence then the issue of whether or not the plaintiff is guilty of contributory negligence should be considered.

99 Each of the defendants pleads contributory negligence in identical terms. In par 7 of the Further Amended Defence of the first defendant, appearing at p 17 of the amended Papers for the Judge it is pleaded as follows:

"7. Further, or in the alternative, if the plaintiff was injured as alleged in the substituted Statement of Claim (which is not admitted) the first defendant says that those injuries were caused solely, or in the alternative, were contributed to by the plaintiff's own negligence.

(a) knew or ought to have known, that sleeping on the trailer or its load involved a risk of falling;

(b) failed to ensure that the place he chose to sleep was safe in all the circumstances;

(c) failed to take any, or any adequate, precautions to ensure he would not fall from the trailer or its load whilst sleeping; and

100 It was submitted that the plaintiff's election to sleep in the tray of the tip truck, being well aware of the risks in so doing, amounted to contributory negligence of significant degree because the plaintiff failed to take reasonable care for his own safety in all of the circumstances.

101 It was submitted on behalf of the plaintiff in response that there was no failure on his part to take reasonable care for his own safety such as to justify a finding of contributory negligence. In any event if there was a finding of contributory negligence then there should be no deduction of the damages because the claim was put on the basis of breach of a contract of employment or for services in addition to damages for negligence and an award of damages for breach of contract cannot be reduced for contributory negligence. (Reference was made to Astley v Austrust Ltd (1999) 161 ALR 155 and also to the provisions of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.

102 I shall not further comment upon the claim based upon breach of contract but it seems to me that the plaintiff would have displayed considerable disregard for his own safety in making his bed at such a height above the ground. This issue was not addressed at any great length, but I think that an apportionment of at least 50 per cent responsibility for his injuries could fairly and reasonably be made against the plaintiff in all the circumstances, if the issue of contributory negligence became alive.

103 In the event that my view the plaintiff has failed to prove negligence against either of the defendants is found to be erroneous, it is appropriate and desirable that the issues raised in the third party proceedings be determined.

104 The first third party is an insurance company that provided public liability cover to both the first and second defendants.

105 The second third party is an insurance company that provided workers' compensation and associated common law cover to both the first and second defendants.

106 The importance of the nature of the plaintiff's relationship with the first and second defendants on the date of the accident can readily be imagined.

107 The first third party, the public liability insurer, asserts that the plaintiff was an employee of the first and second defendants, as a group, and thus a person of a class not contemplated by the first third party's public liability policy, but specifically covered by the workers' compensation/common law insurance policy held with the second third party.

108 The second third party, unsurprisingly, asserts to the contrary. It asserts the plaintiff was a sub-contractor of the second defendant whose services were provided by the second defendant to the first defendant and relevantly therefore a member of the "public" - a person contemplated by the first third party's public liability policy.

109 The first and second defendant joined with the second third party on this point, asserting that the plaintiff was a sub-contractor engaged by the second defendant and thus the first third party was the insurer on risk.

110 It follows that the issue of whether the plaintiff was a party to a contract "of" service or "for" services, ie whether he was an employee or sub-contractor, needs to be decided. Depending upon that decision, further issues may arise.

111 The evidence on this issue comprised oral evidence of various arrangements that were made, and why, together with a large amount of documentary evidence in the nature of financial and accounting records including taxation documents, wages, books and journals, corporations law documents and the like. Following analysis of these documents each of the parties submitted that the nature of the relationship for which they contend is to be inferred from the facts.

112 The terms of whatever contract existed, if any, were never reduced to writing.

113 In detailed written submissions counsel for the first and second defendants, and the first third party, painstakingly itemised those factual findings that they asserted should be made based on the evidence. Much of the evidence was uncontroversial. It is convenient and appropriate to refer to those submissions specifically because the challenge is not so much in deciding what occurred or who took what action and the like, but more in what is to be thereby concluded.

114 Before referring to counsel's submissions I shall give a brief history of the plaintiff's employment pre-accident. As I have stated the plaintiff was born on 26 August 1970. As at the date of the accident on 9 July 1992 he was very nearly 22 years of age. The plaintiff left school at the age of 15 and commenced a 5 year apprenticeship as a plumber with a company known as Murray River Plumbing being his father's business. He became a qualified plumber, finishing his 5 year apprenticeship in 1991.

115 Murray River Plumbing was a partnership of which the plaintiff's father was the senior partner. In about 1989, Murray River North Pty Ltd was incorporated and it took over the business of Murray River Plumbing. The plaintiff became an employee of Murray River North Pty Ltd and worked for that company until July 1990. During that period the plaintiff was engaged in earth moving and truck driving. He was located in the "north west Kimberley region and deserts" (T13). The plaintiff was asked how it came about that he became involved in truck driving and he said at T13:

"When we'd finished work at one particular job, we'd drive around to another job. I'd usually go with Steve Grahame and give him a hand to drive from one job to another because the distances are so far and it was one way of getting from one job to another job as I was directed by the directors."

116 It was common ground that up until about June 1990 the plaintiff was an employee of the first defendant.

117 On 20 June 1990 the plaintiff was appointed a director of the second defendant. According to the statement of claim the second defendant was at all material times a service company the primary function of which was to provide "manpower as required by the first defendant".

118 The second defendant had no income other than moneys provided by the first defendant. It had no expenditure other than the paying of remuneration for the "manpower" it provided to the first defendant. It was as a result of the advice of the first defendant's accountant, Mr Burges, that the second defendant became involved in the first defendant's business. At T291, in evidence in chief, the following appears:

Did you have at any stage an involvement with a further company, Gaucho Pty Ltd which is the second defendant in these proceedings?---Yes I did.

What was the nature of that involvement, Mr Burges?---Basically we had some discussions at a particular point in time with Mr McLarty, Mr Greenup and Mr Howells regarding the structure of Gaucho because there was concern that there might be in the building industry potential claims against Murray River North from potentially sub-contractors so we thought and discussed it and we set up Gaucho who would employ all the labour and the sub-contractors and then would back charge Murray River North for their services and at all times the real issue was that we were trying to protect the assets of the directors of Murray River North, being Mr McLarty Mr Greenup and Mr Howells and this is one way we considered might help.

Did you then progress from those discussions to the actual setting up with your assistance of Gaucho Pty Ltd?---Yes.

In terms of direct employees and sub-contractors insofar as you understand what is conveyed by those terms, what role if any did Gaucho Pty Ltd have? - Gaucho, once it was structured, had all the necessary registrations done for the tax department, that was prescribed payments, etc, and then employed all the sub-contract labour and some of the permanent staff, but not all of the permanent staff.

How was the arrangements between Murray River North Pty Ltd and Gaucho Pty Ltd effected in accounting terms to meet the cost as may be associated with the provision of labour through Gaucho sub-contractors?---Murray River North would pay across to Gaucho a service fee to cover the costs incurred by Gaucho because it was never intended that Gaucho was to make any substantial profits because it was at all times a wholly owned subsidiary of Murray River North so if Gaucho made profits they'd only flow back to Murray River North anyway. There's no point in making any profit. It only had a sufficient fee to cover its costs."

119 It seems common ground that following his appointment as a director of the second defendant the plaintiff was employed by the second defendant. The plaintiff continued to perform precisely the same duties in his employment for the second defendant as he had for the first defendant. This continued until about August 1991 when the second defendant terminated the plaintiff's employment.

120 In November 1991, some three months later, the plaintiff resumed "with" the second defendant. He was either an employee of or a sub-contractor working for the second defendant. As I have stated, a finding is required to be made on the issue.

121 After recommencing "with" the second defendant in November 1991, the plaintiff continued until about 31 January 1992 when he ceased working for a period until recommencing on or about 8 May 1992. He had then continued until his unfortunate accident in July of that year.

122 As I have mentioned, there was a considerable amount of documentary evidence tendered in this case. At the risk of putting it too simply, the documentation would tend to support an assertion that the plaintiff was a sub-contractor of the second defendant but the realities of the relationship and the practicalities would tend to suggest the plaintiff was an employee. As I have mentioned the detailed written submissions for the opposing points of view seem adequately to me to encapsulate the state of the evidence. The factual assertions do not seem to be significantly disputed.

123 On behalf of the first and second defendants and in effect the second third party, in the outline of submissions commencing at par 6, by way of reference to sub-contractors as a whole, including the plaintiff, but also including other persons whose situation was significantly different to that of the plaintiff (for example, Stephen Grahame the truck driver, Robert Hunter the concrete contractor) the following matters were asserted in support of the proposition, namely:

"Each of the sub-contractors differed from persons engaged pursuant to a contract of service in that each sub-contractor;

(b) was not entitled to any notice period in relation to dismissal if fail to perform duties adequately;

(c) would not necessarily be retained for future contracts;

(d) was engaged on a job by job basis, and if no work - no pay;

(f) was free to take on other employment as and when they may wish so to do;

(g) was paid on an hourly basis, as reflected by the particular length of time required to discharge the duties of the job of the day;

(h) signed a tax declaration reflecting a change of "employment status" when engaged by second defendant;

(i) in relation to the plaintiff, was engaged pursuant to an oral contract, on or about 8 May 1992, which resulted in the plaintiff recommencing working as a co-driver for the first, alternatively, the second defendant, with the plaintiff having been engaged by Brian Howells;

(j) in relation to the plaintiff, expressly negotiated a change of the PPS rate from 20% to 25% to cater for his own personal requirements;

(k) required no supervision to carry out their allocated duties;

124 With some emphasis the global submission is then made that:

"The affairs of the first and second defendants, and in particular the second defendant, with regard to its engagement of sub-contractors, is recorded in business records."

125 It can be seen that the argument relies heavily upon the documentation and records of the first and second defendant.

126 The evidence upon which the first third party relies for its submission that the plaintiff was in reality an employee and not an independent contractor is helpfully itemised and summarised in par 6 of counsel's submissions as follows:

"(a) The plaintiff did not run his own business. No books of account.

(c) He was paid a regular weekly salary and not per job.

(d) He provided only his labour, which was an integral part of the group's business.

(e) He did not provide his own vehicle and was not responsible for its maintenance and repair.

(f) He did not provide any equipment such as radios, ropes, tarpaulins, blankets, torches.

(g) He could not refuse work if he was instructed to perform. There was no choice whether to accept the job or not.

(h) He was not able to delegate his work to a third party.

(i) He could not work for another transport or plumbing company.

(k) He was originally an employee of MRN. There was no significant change in his work or terms of engagement when he became a "sub-contractor" of Gaucho.

(l) The transfer of MRN's employees to Gaucho, its management arm and the labelling of the plaintiff as a sub-contractor was an administrative arrangement in order to reduce income tax, carrying little significance in categorising the relationship.

(m) While there was no actual exercise of control over the manner in which he did his work, MRN or Gaucho had the right to exercise such control.

(n) In casu, there was actual exercise of control. The employer (whether MRN or Gaucho) retained control of the allocation and direction of the transportation. He was subject to the instructions of Graeme, an employee of Gaucho.

127 In a summarising submission counsel further put it:

"Viewing the case from the 'totality of the relationship' and looking at the 'industrial and economic realities behind the contractual façade' the true status of the plaintiff was that of an employee and not an independent contractor. 'The truth of that relationship cannot be altered by putting a different label upon it.'" - and counsel then referred to authority.

128 It seems to me that from the authorities referred to the issue is to be determined by the substance rather than the form. This is so whether one looks at the "industrial and economic realities behind the contractual façade" (Building Workers Industrial Union of Australia v Odco Pty Ltd [1991] FCA 87; (1991) 99 ALR 735 at 750) or whether one focuses on the question of whether "the true relationship of the parties is that of master and servant under a contract of service"...the truth of which cannot be altered "by putting a different label upon it". (Australian Mutual Provident Society v Chaplain (1978) 18 ALR 385 at 389-90).

129 In essence counsel for the first and second defendants and the second party point to the form, and counsel for the first third party points to the substance.

130 I accept the submissions advanced on behalf of the first third party. In my view the plaintiff was in reality an employee of, at least, the second defendant. The nature of his relationship with the first and second defendant or both of them was that he was an employee, not a sub-contractor. The preponderance of the evidence points in that direction.

131 Furthermore, the plaintiff presented in the witness box as a very young 22 year old, who appeared oblivious to many of the arrangements that had been made concerning the structure of his parent's business and who, merely did what he was told in whatever fashion "they" had organised. His presentation in the witness box was consistent with employment not self employment.

132 In the result the insurance policy held by the second third party applies and it is the second third party who would be liable to indemnify the first and/or second defendants should they have been held liable as employers.

133 Counsel for the second third party immediately prior to the conclusion of the trial stated as follows (T387):

"The third parties and the two defendants have agreed that in the event of a finding of liability against both the first and second defendant, your Honour is invited to apportion liability in accordance with the Joint Tortfeasors' Contribution Act. There are no notices in the pleadings before you, but the parties would request that if there is to be a finding against both, liability be apportioned to save further proceedings."

134 Presumably counsel was referring to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.

135 I have not made any finding against the defendants and the issue only arises if there were to be a finding against both. Should my views on liability be considered erroneous and a finding be made against both then it is appropriate for me to express a view about the matter.

136 It seems to me that the second defendant was the mere "paymaster" in the scheme of the arrangements made between the first and second defendants and the plaintiff. It was the first defendant who was in reality the employer of the plaintiff. Mr Stewart Grahame was also, for the purposes of the argument, an employee of the first and second defendants and he had the day to day control of the plaintiff. But by reference to the comparative significance of the roles of the first and second defendants, that of the second defendant can only be described as minor. In my view the second defendant had no role as employer in the reality of the situation but merely as the paymaster as I have indicated. In the event of a finding against both the first and the second defendants, there should be no liability upon the second defendant to contribute to the damages awarded.