Le v Brown, Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown

1.                    Zurich Australian Insurance Limited (D2)
                      Futurewood Pty Ltd (D3)
                      QBE Insurance (Australia) Limited (X-D)
   

Representation: Counsel: R O'Keefe (D1, Substituted D2) B Hull (D3) M McCulloch SC and R Perla (X-D)

Solicitors: Vardanega Roberts Solicitors (D1, D2) Holman Webb Lawyers (D3) Gillis Delaney Lawyers (X-D) File Number(s): 2014/271370; 2014/347492; 2014/358521; 2015/172536; 2015/263637 Publication restriction: Not applicable

Introduction

1. The claims of the plaintiffs arise out of a collision which took place at 10:40am on 28 June 2012 between a Freightliner motor truck registration number BE33XV ("the Freightliner") and several other vehicles. The collision occurred at the intersection of the Cumberland and Hume Highways at Liverpool, New South Wales.
2. The Freightliner comprised a Prime Mover with registration number BK79QI ("the Prime Mover"), and a Steelbro side-loading trailer, registration number U12531 ("the Trailer"), upon which was secured a shipping container with an International Shipping Number ("ISO") HJCU8368820 ("the Container"). The Container was packed with wood and plastic products ("the payload") which were stacked inside the Container on a trolley mechanism, with the addition of three dunnage bags as load restraint at the rear of the Container. As the Freightliner was negotiating a left-hand turn from the Hume Highway into the Cumberland Highway, it rolled on to its right-hand side, crushing the occupant of a nearby vehicle and colliding with several others ("the Rollover").

Parties

1. The fourth plaintiff, Ms Rachel Monica ("Monica"), is the wife of Mr Manoj Kumar Masih ("Masih"), who was the occupant of the vehicle which was crushed by the Freightliner. Masih died as a result of his injuries, and Ms Monica brings her action as a close family member of Masih pursuant to s 30 of the Civil Liability Act 2002 (NSW) ("Civil Liability Act").
2. Ms Thi Le Le ("Le"), Ms Cindy Xuan Vy Nguyen ("Nguyen") and Mr Van Diep Tran ("Tran") (the first, second and third plaintiffs) were travelling in a vehicle behind the Freightliner when the Freightliner rolled over. They sustained injuries when their vehicle collided with the Freightliner. Mr Stephen Huggett ("Huggett"), the fifth plaintiff, was injured when the Freightliner collided with his vehicle.
3. The driver of the Freightliner at the time of the Rollover was the first defendant, Mr Edwin Brown ("Brown"). The second defendant, Shark Group Pty Ltd ("Shark Group"), was the owner of the Prime Mover. Since Shark Group had been placed into voluntary administration by the time that proceedings were commenced in 2014, Zurich Australian Insurance Limited ("Zurich"), was substituted for Shark Group as a defendant, and is sued in its place as the compulsory third party insurer.
4. The third defendant, Futurewood Pty Ltd ("Futurewood") was the proprietor of the payload which was loaded into the Container. The payload originated in China, where Futurewood contracted with a Chinese company, Huangshan Huasu International Co ("Huangshan"), to manufacture the products and then to pack the Container with them. Another associated company in fact carried out that work. It is unnecessary to differentiate between them in this judgment.
5. Once the Container was packed in China, it was loaded onto a shipping vessel and transported to Australia, where it arrived at premises known as "DP World" at Port Botany on 22 June 2012. The Container was to be transported by road by ENG Haulage Contracting Pty Ltd ("ENG") from Port Botany to premises in Moorebank and subsequently to Wetherill Park. The first defendant, Brown, was an employee of ENG, and ENG was the registered owner of the Trailer.
6. During the period 17 June 2012 to 17 June 2013, ENG held a policy of public liability insurance ("the Policy") with the second cross-defendant, QBE Insurance (Australia) Limited ("QBE"). Since ENG is a company under external administration, Futurewood applied for, and was granted leave by the Court pursuant to section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("1946 Law Reform Act") to pursue QBE as the public liability insurer of ENG.

Separate Questions for Determination

1. On 10 May 2017, I ordered, with the consent of the parties pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005, that the following issues be heard and determined prior to all other remaining issues, if any, in the proceedings: 1. is Edward Brown a tort-feasor liable to the plaintiff in respect of personal injury damages which the plaintiff suffered as a result of a tort on 28 June 2012? 2. is Futurewood Pty Ltd a tort-feasor liable to the plaintiff in respect of personal injury damages the plaintiff suffered as a result of a tort on 28 June 2012? 3. is ENG Haulage Contracting Pty Limited (ENG) a tort-feasor which if sued by the plaintiff would have been liable to the plaintiff in respect of the same damage that Mr Brown and/or Futurewood are liable for? 4. what is the just and equitable amount of contribution for which ENG is liable, having regard to the extent of ENG's responsibility for the personal injury damage suffered by the plaintiff as a result of the tort? 5. can Mr Brown and/or Futurewood enforce a charge on insurance moneys against QBE Insurance Australia Limited pursuant to s 6 of the 1944 Law Reform Act insofar as ENG is determined to be responsible for the personal injury damages suffered by the plaintiff as a result of the tort?
2. The key factual issue which falls for determination is why the Freightliner rolled, and how liability for that Rollover, if established, is to be apportioned between Brown, Zurich (standing in the shoes of the Shark Group), Futurewood and ENG.
3. The answer to this question is inextricably linked to three factors: first, the speed of the Freightliner as it approached and negotiated the left-hand curve between the Hume and Cumberland Highways; second, the manner in which the payload in the Container (the wood and plastic products) was secured and behaved; and third, the impact of those first two factors on the static rollover threshold ("SRT") of the Freightliner, where a vehicle with a low SRT is more likely to roll over than a vehicle with a higher SRT.
4. On 10 May 2017, the first day of the hearing, counsel for the first defendant indicated that the proceedings in relation to the fifth plaintiff, Huggett, had completely settled. Consent judgment was filed in Court on 10 May 2017, with the proviso that the consent judgment would not be entered until further order.

Evidence

1. Surprisingly little oral evidence was called at the hearing. The first defendant, Brown, was not called either in his capacity as the first defendant, or by ENG in his capacity as their employee. Brown would have known a great deal about the factual matrix surrounding and leading up to the Rollover. No explanation was proffered for his absence.
2. Evidence relating to the receipt and despatch of the Container from Port Botany, including the systems in place, was called from Mr William Hanley, by counsel for Brown. As well, Mr Joe Notaro ("Notaro"), an RMS investigator, was called to give evidence about facts identified during his investigations. Mr Dandecke ("Dandecke"), an employee of Zurich, was also called to give formal evidence.
3. Counsel for Futurewood called its principal, Mr Elms ("Elms").
4. QBE, insofar as it sought to resist ENG's liability as a tort-feasor, called no witnesses at all. In particular, Mr Chris Generakis ("Generakis") who had knowledge of the range of factual matters canvassed in the evidence and, as well, the way ENG's operations worked, was not called.
5. Although ENG was not in business at the time of the proceedings, no reason was proffered by QBE as to why he was not called to give evidence. No reason was proffered as to why any other principal or senior employee at ENG in 2012 was not called. I infer that no evidence which could have been given by Generakis would have assisted the case being put forward on behalf of ENG by QBE insofar as QBE sought to argue about matters of fact, and inferences to be drawn from the evidence, relating to the conduct of ENG, and the conclusion urged on the Court that ENG was a joint tort-feasor.

Statements of Claim and Defences

1. Broadly speaking, the plaintiffs pleaded that the defendants owed the plaintiffs a duty of care, that this duty was breached, and that the defendants were therefore negligent. This is admitted by the defendants, as is the entitlement of the plaintiffs to recover damages.
2. In a Further Amended Defence filed in Court on 10 May 2017, Brown admits that: 1. he owed other road users a duty to exercise reasonable care while driving the Freightliner along the Cumberland Highway; 2. the injury and death occurred as a result of his breach of its duty (his negligence) to the plaintiffs by: 1. driving too fast in the circumstances; 2. failing to take into consideration the fact that a load may move whilst in transit and drive accordingly; and 3. failing to brake or slow his vehicle sufficiently before entering the intersection.
3. Zurich, as the insurer of the Shark Group, is in an identical position on those issues as is Brown. They were both represented before the Court by the same counsel, and advanced identical submissions. No doubt this is because of the provision of the third party policy of insurance contained in s 10 of the Motor Accidents Compensation Act 1999 which provides insurance for the owner of a motor vehicle and also the driver of the vehicle.
4. In an Amended Defence filed in Court on 10 May 2017, Futurewood admitted that: "(1) It owed a duty of care to the plaintiffs and Mr Masih to: (a) take all reasonable steps to ensure the Container was properly loaded; (b) take all reasonable steps to ensure the Container could be safely transported upon the Trailer; (c) take all reasonable steps to ensure that the importation of timber by it was undertaken in a safe manner; (d) ensure that the systems of work designed, specified and/or supervised by it for the importation of timber to Australia did not expose persons such as the plaintiffs to an unnecessary risk of injury; (2) Mr Masih's death occurred, and the plaintiffs were injured, as a result of Futurewood's breach of its duty by: (a) failing to ensure the timber was properly loaded within the shipping container; (b) failing to devise, supervise and maintain a safe system for the loading of timber in the shipping container; (c) failing to take any or any adequate steps to properly secure the timber within the shipping container to prevent movement of the timber within the shipping container whilst in transit; (d) failing to use sufficient air bags within the shipping container to prevent the timber from moving within the shipping container; (e) failing to use any or any proper means of restraint to ensure the loaded timber did not move during transit; (f) failing to inspect the shipping container once it had been loaded to ensure: (i) it was correctly loaded; (ii) the load would not move whist the shipping container was being transported. (g) failing to take any or any adequate steps to ensure the loading of the shipping container complied with International and Australian standards applicable to the loading of shipping containers for importation to Australia; (h) permitting the transport of the shipping container when it was unsafe to do so; (i) failing to inspect the loading of the shipping container before it was loaded onto the trailer connected to the motor vehicle."

Cross-Claims

1. A number of cross-claims were filed between the defendants. However, as has been noted, the cross-claims as between Brown, Zurich and Futurewood have been settled by consent with no order as to costs.
2. The remaining cross-claims are the first and second cross-claims brought by Futurewood and by Brown against QBE based upon a charge said to exist pursuant to s 6 of the 1946 Law Reform Act in respect of ENG's liability for the injury caused to the plaintiffs by the Freightliner rolling over.
3. By a Further Amended First Cross-Claim dated 8 May 2017 and filed by Futurewood in Court on 10 May 2017, Futurewood pleaded that, if the method of loading the container is held to be a cause of the rollover, ENG knew or ought to have known that the container was not loaded satisfactorily, and that this circumstance gave rise to a risk of harm which was not insignificant.
4. In these circumstances, Futurewood pleads that a reasonable person in the position of ENG would have: 1. told Futurewood that its method of loading the containers had that risk of harm; 2. refused to transport Futurewood's containers unless the contents were securely loaded; and 3. instructed drivers to drive at a very low speed of less than 35kmh, around corners.
5. The Further Amended First Cross-Claim filed by Brown against QBE is, for all intents and purposes, the same as the further Amended Second Cross-Claim filed by Futurewood against QBE.
6. In its defence, QBE admits that it provided insurance to ENG but points to an exclusion contained in clause 5.20 of the Policy, which reads: "5. When you are not covered The following Exclusions will apply to this policy. This policy does not cover liability in respect of: … 5.20 Vehicle: Personal Injury or Property Damage arising out of the ownership, possession, or use by You of any Vehicle: (a) which is registered or which is required under any legislation to be registered, or (b) in respect of which compulsory liability insurance or statutory indemnity is required by virtue of any legislation (whether or not that insurance is effected). Exclusions 5.20(a) and 5.20(b) above do not apply to claims: (c) for Personal Injury where: (i) that compulsory liability insurance or statutory indemnity does not provide indemnity; and (ii) the reason or reasons why that compulsory liability insurance or statutory indemnity does not provide indemnity do not involve a breach by You of legislation relating to Vehicles; [or] (d) …."

Interlocutory Decisions

1. On 22 February 2017, McCallum J refused leave to Futurewood to serve an expert report prepared for it by mechanical engineer, Mr William Bailey: see Le v Brown [2017] NSWSC 162.
2. On the day the judgment was delivered, there was a brief exchange between counsel for Futurewood and McCallum J, where counsel for Futurewood indicated that he would be applying to amend his client's cross-claim, but that the amendment would not be significant. Her Honour granted leave to amend the cross-claim and reserved to any party affected by it, the right to object to its filing.
3. On 8 May 2017, QBE objected to the filing of the Further Amended First Cross-Claim by Notice of Motion filed 2 May 2017, and sought orders striking out various paragraphs of the Amended First and Second Cross Claims filed by Futurewood and Brown.
4. In an ex tempore judgment that I delivered on that day, I held that the interests of justice required me to permit the amendment which was sought. Accordingly, I granted leave nunc pro tunc to Futurewood to file its Amended Statement of Cross-Claim in the form in which it was filed on 23 February 2017: see Le v Brown; Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown [2017] NSWSC 632.

Relevant Facts

1. As has been outlined above, the key issues are the speed at which Brown was driving the Freightliner, the way the load in the Container was packed, and whether either one or both of these factors can be said to have caused the rollover. It is therefore necessary to set out the evidence which was called in relation to the packing of the Container, including each party's knowledge of how the Container was packed on the relevant occasion, the Container's journey from China to the site of the rollover, and evidence which was lead about the nature and weight of the Freightliner and its compliance with the regulations made under s 67 of the Road Transport (General) Act 2005 (NSW).

Key Players

1. Generakis and Mr Nick Fountoulis ("Fountoulis") were directors of ENG in June 2012. Generakis is featured in all of the relevant correspondence between ENG, Futurewood and Huangshan. To the extent that Generakis was informed about or had knowledge of any matters, I am satisfied that ENG also knew of those matters. He was, in all relevant respects, one of the directing minds of ENG.
2. Mr David Elms ("Elms") is the director of Futurewood and a founding principal of the business along with his associate, Mr Gilbert Major ("Major"). Elms gave evidence that he and Major "travelled as a team" and that he relied upon Major's advice, but not exclusively. Any information known to Elms amounted to knowledge held by Futurewood, having regard to the role performed by Elms.
3. Mr Jacky Xue ("Xue") was engaged either as an employee or agent by Futurewood to provide overseas marketing and product development services. A document entitled "Engagement Letter" written by Elms, dated 1 July 2010, signed by Xue and bearing the Futurewood logo, reads: "Xue will be responsible for the entire process of order placement through to manufacture and shipment. Xue will oversee the business in China and;

• Assist Futurewood in determining Company's overseas marketing objectives, Company's points of differentiation and the appropriate marketing call to action.
• Handle all overseas client escalations from local office in Australia.
• Assist Futurewood in developing their customized products including recommendations and assistance with production, quality & packaging.
• Visit overseas clients to demonstrate use of products, show samples and take orders
• Arrange a schedule of visits to major potential overseas buyers by contacting people and making appointments
• Establish customers' needs and explain and demonstrate products to them, which may involve providing technical descriptions of products and how they may be used
• Quote and negotiate prices and credit terms
• Schedule conferences & trade fairs for Directors/Australian company representatives for exhibiting and marketing current & new products overseas."

1. The Futurewood products were manufactured for Futurewood, and packed into containers by a Chinese company associated with Huangshun: Huangshun Huasu New Material Science and Technology Co Ltd. It referred to itself as "Hohecotech". The employee who principally communicated with Futurewood was Ms Lili Zhang, who referred to herself in her emails as "Ally".

Definitions

1. It is appropriate to include some definitions of terminology specific to the transport industry which will be used in these reasons:

• gross weight: the total weight of the vehicle and its payload including the container;
• payload: the load that is being transported by the vehicle within the Container;
• dunnage: loose wood or matting used to keep cargo in position and without moving within containers. Sometimes bags filled with soft filling, or else air are used, and are known as dunnage bags;
• SRT or Static Rollover Threshold: The imaginary resistance of a vehicle to having a wheel lift off the ground. It is calculated on the basis that the Container and the payload in it is centred on the trailer and is secured. Factors taken into account in that calculation are the speed or forward momentum of the vehicle, the camber of the curve which the vehicle is navigating, and the radius of the curve;
• tare weight: the weight of the vehicle without any load on it.
• gluts: sacrificial timber used to support packages of products, thereby preventing the package resting directly on other packages of timber products or on the floor.

Practice of Loading Containers Generally with Futurewood's Product

1. Elms gave evidence that there was a "standard procedure" for the packing of the containers which he, Major and Xue put in place following three events: first, observations which they made about factories which did not pack containers well; secondly, advice which Major gave Elms about which factories he believed did or did not pack containers well; and thirdly, meetings between Major, Elms, Xue and employees of the factory which manufactured Futurewood's product.
2. In short, the containers would be loaded with Futurewood's product by the agents of Futurewood, relevantly in this case, Hohecotech and its employees. This was to be overseen by Xue. Elms gave evidence that he did not know whether Xue had any formal qualifications, such as that of a civil engineer, or any training in relation to the system of, or the use of load restraints within a shipping container. Elms did not provide any such training to Xue, and such training was not a minimum qualification for his job. Elms also gave evidence that he himself did not have any training in packing or transporting containers. I am satisfied that Xue did not have any study, training or experience on the topic of load restraint systems, except that which he learnt from practical observation as an employee or agent of Futurewood.
3. I also pause here to note that it was Elms' evidence that as at June 2012, he did not appreciate that consignors of freight within shipping containers were obliged to follow load restraint guides published by the National Transport Commission, nor did he have any understanding of Futurewood's obligations under the Road Transport (General) Act in relation to providing safe load restraint.
4. Elms confirmed in evidence that Futurewood was prosecuted and convicted for failing to provide adequate load restraints for its products within containers following the Rollover. A Court Attendance Notice issued to Futurewood and dated 19 June 2014, illustrates that Futurewood was prosecuted by Notaro on 21 July 2014 for breaching a load restraint requirement under s 53(1) of the Road Transport (General) Act.
5. Elms gave evidence concerning the method of packing the containers with Futurewood's products. He described that packs of the product would be stacked on top of each other to form the one column or tower of product. Each pack would be separated by wooden slats "to stop the gluts from the packs above marking the boards … in the pack below". This is confirmed by photographs referred to below. The packs were not tied or in any way secured to each other but simply rested on the pack below, although separated by gluts and the wooden slats.

Loading and Transport of the Container from Shanghai to Port Botany and Collection from Port Botany

1. On Monday 4 June 2012, Shannah Wang ("Wang") sent an email to Elms, copying Major, Xue and Ally, attaching pictures of "Container 106". The attached picture depicted a blue container with its back doors open. Inside the container are two columns of product, each column stacked upon a metal trolley with red wheels on its base. Each column contains five bundles of product, which are separated by a brown material.
2. Three dunnage bags are visible: one between the left side wall of the container and the first column of product; one between the two columns of product; and one between the second column of product and the right side wall of the container.
3. An email sent by Xue on 12 June 2012 to Ms Kristie Johnson ("Johnson"), an employee of BTL, which was also sent to Elms, contains the subject line "Container - 106 - Sydney: HJCU8368820". The body of the email contained a request for Johnson to check the clearance documents for the container, which are attached to the email. The clearance documents refer to the Container by its container number.
4. This email permits an inference to be drawn, which I do, that the photographs attached to Wang's email to Elms on 4 June 2012 of "Container 106" were photographs of the Container ("the Container") which was involved in the Rollover.
5. Generakis of ENG was not copied into this email. As a result, Elms' evidence was that the documents attached to that email (being the clearance documents from On Time Shipping Line Limited, Huangshan's Commercial Invoice addressed to Futurewood, Huangshan's packing list, and Huangshan's Packing Declaration and Container Weight Declaration) would not have been sent to ENG, at that time.
6. Xue's email of 12 June 2012, attaching the clearance documents for the Container indicated that Huangshan was the shipper of the Container, which contained 48 "packages" with a gross weight of 19.753 tonnes. The "packages" are described as "plastic composites profiles; aluminium alloy profiles". Futurewood is recorded as the "Consignee" and ENG is nominated under the category "Notify Party".
7. On Time Shipping Line Limited is noted as the carrier, and the clearance document lists the YM Antwerp as the vessel transporting the Container, which was due to depart Shanghai for Sydney on 5 June 2012.

1. On Wednesday 20 June 2012, Robert Santamaria ("Santamaria"), Import Cartage Coordinator of BTL, sent an email to Generakis, Elms, and Major. In that email, Santamaria attached a document entitled "FCL FCL Sea Arrival Time Slot Request" for Generakis' consideration. That document was dated 20 June 2012 at 10:12am.
2. The "Slot Request" refers to the Container by its container number, and confirms that the Container is filled with "plastic composites profiles & alumi" (sic), that the container was loaded in Shanghai, China, that the consignor is Huangshan and that the consignee is Futurewood.
3. The document further records the following information: CONTAINER SEAL TYPE WEIGHT (KG) GROSS W.(KG) VOLUME (M3) HJCU8368820 150857 20GP FCL 19753 22053.000 20

1. Through the receipt by Generakis of this email, it is clear that ENG was made aware of the contents of the Container, its weight, and the other matters recorded in the "FCL FCL Sea Arrival Time Slot Request"
2. The estimated time of arrival of the Container to the port of discharge in Sydney was Saturday 23 June 2012.
3. Santamaria then sent a further email to Generakis, Elms and Major on the morning of Friday 22 June 2012 informing Generakis: "Please find attached EDO for container HJCU8368820, container is now CLEAR and ok to deliver."
4. Attached to that email was a document headed "HANJIN SHIPPING: IMPORT DELIVERY ORDER" and dated 21 June 2012 at 11:04am. The document was addressed to "The Import Manager, Bell Total Logistics (FF-SYD)" and identified the Container by its number HJCU8368820.
5. The document indicated that the goods would be available for collection at DP World Port Botany and that the weight of the Container was 19753kgs. Again, through this email, ENG had knowledge of the weight and volume of the Container.
6. A further email from Elms to Michael Bonaccorso ("Bonaccorso"), an employee of Hilbon, with copies to Generakis, Major and Suzi Cannistraro ("Cannistraro") dated Friday, 22 June 2012 at 9:19am, read: "Michael, Chris from ENG will be delivering the next container #106 of stock early next week. He will confirm the delivery with you based on the time slot etc. I have attached the PO showing the stock that is in the container. …"
7. Attached to that email was a document entitled "Purchase Order" and dated 17 February 2012. Futurewood's logo is present in the top left hand corner of the document. The Purchase Order indicates that the supplier is "EcohTech" and "Container #106", and the address to which the Container is to be shipped is provided as: "Hilbon Transport Pty Ltd C/- 7 Frank Street Wetherill Park NSW…"
8. The document then lists the products packed into the Container, including a description of each item and the quantity of the item included in the Container.
9. On Tuesday 26 June 2012 at 10:00am, in response to a query from Elms, Santamaria sent him an email, copying in Generakis. The subject line of the email was "RE: Container #106". In his email, Santamaria said: "Container is available from wharf. Last free day is tomorrow 27/6. EDO was sent Friday 22/6 and container is clear, ok to deliver (email attached)"

Loading of the Container onto the Prime Mover at DP World, Port Botany

1. Mr William Hanley ("Hanley"), the operations supervisor at DP World at Port Botany, gave evidence that DP World ran a stevedoring operation for shipping containers at that premises, whereby containers would be removed from ships onto the dock at Port Botany and then loaded onto road transport to be delivered to various places across New South Wales.
2. Hanley gave evidence about the processes in place at DP World regarding the weighing of the road transport combinations (including their containers) before the combinations left DP World, and the means by which a driver would be informed of the weight of their combination.
3. DP World utilised "Weigh In Motion Technology" in connection with the road transportation of containers. This is a system which gives an indicative weight for axle groupings on a road transport combination once it has driven over and been detected by the technology.
4. Once the measurement has been taken, the measurement appears on a static screen which is visible to the driver of the vehicle. If the driver is not content with the nature, including the overall weight, of their load, the driver has the option to return to DP World loading area and to correct the load. If not, the driver can elect to proceed to the exit gate.
5. At the exit gate, the driver is provided automatically with a paper docket from a console. The docket contains the terminal identifier for the vehicle, known as the "BAT" number, being the Maritime Security Industry Card Number which identifies the driver of the vehicle, the container unit identified as having been loaded onto the combination, the ISO identifier, the indicative weights of the combination by axle group and the gross weight of the combination.
6. At the gatehouse of the premises at DP World, the data from the Weigh In Motion Technology is collected by DP World to determine whether any of the combinations which had been measured by the technology were grossly overweight. If this did occur, DP World would bring the fact of the grossly excessive weight of the combination to the attention of the driver a second time, the driver having already been notified by the docket system.
7. I am satisfied that this system was in operation at the time the Container was collected by ENG from Port Botany. ENG's driver was provided with information regarding of the weight of the Freightliner and Container and its distribution across the Freightliner's axles.

Movement of the Container after Leaving Port Botany

1. The evidence about what happened to the Container between when the Freightliner left Port Botany and the Rollover is minimal.
2. However, from the available evidence including Hanley's oral evidence, the dates concerned, the location of ENG's warehouse at 366 Newbridge Road, Moorebank, the histories which expert witnesses were asked to assume (in respect of which no limitation of use was sought or applied for pursuant to s 136 of the Evidence Act 1995), and the contents of the Court Attendance Notice issued by the RMS to Futurewood, I am well satisfied, including by inference, of the following facts: 1. when the Freightliner left Port Botany, nothing of the identity of the driver, the nature, type or registration of the trailer attached to the prime mover was revealed by the evidence; 2. the Freightliner and the Container left Port Botany at an unidentified time on 26 June 2012, and was driven to the ENG warehouse at Newbridge Road, Moorebank; 3. the Container remained at the ENG warehouse until shortly before the Rollover on 28 June 2012; 4. whether this Container was offloaded whilst at ENG's warehouse from the trailer used to transport it from Port Botany is unknown. However, it is clear that the transport allocator at ENG's warehouse allocated the task to drive the loaded Freightliner to Brown on the morning of 28 June 2012. That allocation was notified (or else confirmed) to Brown by a text message at 10.12am which read: "ENG: LOAD 20' HJCU8368820 TAKE TO HILBON TRANSPORT 21 FRANKS ST WETHERILL PARK (ENTER VIA KELLOWAY PL) 1. ENG had not by that time either opened or inspected the Container. At the time the Container left ENG's warehouse, the seals attached in China remained intact; 2. Brown was not informed until after the Rollover what the weight of the Container was. The first information he received was a text message at 11.32am (which was after the Rollover) which said: "ENG: CWD: HJCU8368820 WGT: 21.6t DATE: 26/06/2012. SHIPPER: FUTURE WOOD 21 FRANK ST WETHERILL PARK ATTN DAVID ELMS PH: [PHONE NUMBER] 1. Brown did not receive any information about the Container, including the nature of the payload and how it was packed, , other than its identification number prior to leaving the ENG warehouse; 2. Brown was driving the loaded Freightliner from ENG's warehouse at Moorebank to the warehouse of Hilbon Transport at 21 Franks Street, Wetherill Park when the Rollover occurred; 3. during that journey and the Rollover, the Container was not dislodged from the trailer to which it was affixed, rather the whole of the Trailer, Container and Prime Mover rolled over; 4. the distance travelled along the Hume Highway after joining it, and prior to making the left-hand turn onto the Cumberland Highway, was not specified in the evidence but general geographical knowledge of the principal roads in Sydney suggest that after joining the Hume Highway and before the start of the curve the distance was likely to be in the order of 1km, along the generally straight multi-lane Hume Highway; and 5. Brown received no instructions as to the manner of driving the Freightliner.

Crash Investigation: Agreed Facts

1. It should be noted at the outset that an Agreed Statement of Facts which was tendered by Futurewood, Brown and Zurich during the hearing, accepted the following: 1. that the tare weight of the Freightliner was 8.82 tonnes; 2. that the tare weight of the Trailer was 12.180 tonnes; 3. that the unladen tare weight of the combination vehicle was 8.82 tonnes + 12.180 tonnes = 21 tonnes. This weight was confirmed as correct by Roads and Maritime Services ("RMS") officers on 28 June 2012; 4. the maximum permitted (general limit) on NSW roads for this combination was 42.5 tonnes so that the heaviest laden container that could be legally carried by the Freightliner was 42.5 tonnes - 21.0 tonnes = 21.5 tonnes; 5. the declared weight of the payload (according to the packing slip) was 19.753 tonnes, and the tare weight of the Container was marked on the outside of the Container as 2.24 tonnes, giving a declared laden container weight of 21.993 tonnes; 6. the combined weight of the Freightliner and the Container was therefore 21.993 tonnes + 21.000 tonnes = 42.993 tonnes; 7. the actual weight of Container and its payload was calculated by officers of the RMS on 28 June 2012 to be 22.990 tonnes (that is, 997kg heavier than the declared weight of the payload and the tare weight of the Container outlined at point (5) above); and 8. the actual weight of the Container and its payload, together with the actual weight of the Prime Mover and the Trailer, was calculated by RMS officers on 29 June 2012 to be 43.9 tonnes, which exceeded the maximum permitted general limit of 42.5 tonnes by 1.4 tonnes.
2. QBE, by its counsel, agreed with these facts.

The Scene of the Rollover

1. The unchallenged evidence of Barrie Scott, an investigator with the Investigation and Accreditation Unit of RMS, was put before the Court by his statement.
2. Mr Barrie Scott attended the site of the Rollover on 28 June 2012. He took a number of photographs of the crash scene, including some which depict a blue container with white lettering on its side depicting the identifier "HJCU 836882 0". This is the Container.
3. One photograph records the Trailer and the Prime Mover being returned to an upright position. Scott observes in the description of that photograph that the Container has separated from the Trailer. A second photograph depicts an unbroken seal, number SIPGZCT150857, securing the doors of the Container prior to being opened by police. This evidence established that the Container had not been opened prior to or during the Rollover. This seal number is identical to that recorded on the Slot Request document referred to at [90].
4. Notaro, an investigator with RMS who attended the scene of the Rollover and was involved in subsequent investigations into the accident, confirmed that a seal attached to the doors of the Container had to be broken before the Container could be opened. Present at the time the seal was broken were police, two of Notaro's colleagues from RMS, and a representative of ENG.
5. During his subsequent investigations, Notaro interviewed Fountoulis, an employee of ENG responsible for running ENG's warehouse and supervising the drivers. Fountoulis indicated to Notaro that he was empowered to "take care of things" in the absence of Generakis, the principal of ENG.

Inspection of the Container after the Rollover

1. Several photographs taken by Scott illustrate the state of the load once the container had been opened after being removed from the site of the Rollover and transported to RMS premises.
2. The photographs show that, when viewed from the back of the Container with the Container doors open, the load was separated into packs which were wrapped in a dark-coloured material. Those packs were then stacked into two columns, with a material which seems to be timber serving as a horizontal barrier between each bundle.
3. In the photographs, the two columns of bundles are leaning to the left hand side of the container as viewed from the back. Scott said: "I noticed that the lower portion of the load was displaced and against the wall on the right side while the upper portion of the load was against the left side of the container wall. The load consisted of 11 packages of a timber type product tagged as Future Wood, Clever Deck, Wood Composite Decking plus a small amount of steel box tube and some sundry items. … None of the load was secured within the container. The load was placed on a frame that was on wheels. There were no straps holding the load to the framework or the framework to the container. There was a series of steel 'U' sections welded to the floor of the container that appeared to be where the wheels were supposed to sit. Some of these "U" sections were bent over."
4. Scott also observed a series of load securing points along the side of the floor, which had not been used.
5. Giving evidence on the loading mechanism used in the Container, Notaro said that: "there was a metal contraption that had wheels and it … should have been contained with a chocking system, but the metal frame had moved out of that chocking system".
6. Notaro confirmed that a similar metal contraption was present beneath both stacks of product in the container, and that in both instances the frame had moved out of the chocks.
7. When taken to Barrie Scott's photographs depicting the state of the Container once opened, Notaro identified the presence of several dunnage bags inside the Container. Notaro gave evidence that the purpose of a dunnage bag is to prevent movement of the load within a container by filling up any empty space within the container. Notaro observed that there were three dunnage bags within the Container. He did not observe any more dunnage bags when the contents of the Container were unloaded at a later time.

Ownership of the Prime Mover and Trailer

1. A certificate issued in accordance with section 257 of the Road Transport Act 2013 established that the Prime Mover was operated by Shark Group and was registered to that company as the owner as at the date of the issuing of the certificate, on 16 October 2013.
2. Investigations conducted by Notaro revealed that the registered owner of the Trailer was ENG. These matters are not in dispute.

Testing of the Prime Mover

1. Mr Graeme Lawrie ("Lawrie"), a crime scene officer with the Engineering Investigation Section of the New South Wales Police and a licensed Motor Mechanic, examined the Prime Mover and the Trailer after the Rollover. Lawrie concluded that the accelerator system of the Prime Mover was operating correctly prior to the collision. He found that, while the steering, suspension and braking systems of the Prime Mover and Trailer required repair, their present state did not contribute to the collision. He also concluded that, although the tyres fitted to the nearside rear axle of the Trailer were due for replacement, their state did not contribute to the collision.
2. Lawrie concluded that there was no mechanical defect or failure with the Freightliner that may have been a contributing factor to the collision. This conclusion was not challenged.

Weight of the Freightliner

1. Although the weight of the combination was agreed between all of the parties, it is necessary to examine the evidence of the weight, although briefly.
2. The clearance documents attached to Xue's email to Johnson of 12 June 2012 indicated that the Container contained 48 "packages" with a gross weight of 19.753 tonnes.
3. A weighbridge docket dated 19 June 2012 from the Southern Cross Truck Terminal in Chipping Norton, indicated that on that date, the tare weight of the Prime Mover and the Trailer was 20.96 tonnes, with their gross mass being 28.42 tonnes.
4. Mr Domenick Gerace ("Gerace"), an authorised officer pursuant to s 121 of the Road Transport (General) Act, weighed the Freightliner on 28 June 2012. The total gross mass of the Freightliner was calculated to be 43.00 tonnes. The total gross mass of the Freightliner without the Container was calculated to be 20.10 tonnes. Hence, the weight of the Container was determined to be 22.90 tonnes.
5. The Freightliner was then weighed, and its weight was determined to be 21.00 tonnes. Therefore, the gross vehicle mass for the Freightliner was calculated to be 43.90 tonnes.
6. Mr Greg Muirsmith ("Muirsmith"), the Engineering Manager for Steelbro NZ Ltd in July 2012, the manufacturer of the Trailer, was requested by RMS to provide information about that trailer. Steelbro NZ Ltd's records indicated that the tare mass of the Trailer as weighed at the date of manufacture in July 2007 was 12.18 tonnes.
7. Documents from Mercedes Benz Australia Pacific Pty Ltd recorded that the Prime Mover, as produced by Mercedes Benz, had a total weight of 8.374 tonnes including factory supplied fuel, when weighed at the Mercedes plant at the time of manufacture.
8. Whilst the parties agreed on these issues, this evidence is relevant to show that all of the information about the weight of the Prime Mover, the Trailer, the Container and the payload was readily available if any company or individual sought to inform themselves of those facts. .

Expert Opinion

1. Five experts were engaged by the parties to provide expert reports on the Rollover. Each expert was a qualified engineer with a relevant specialisation. I am in no doubt that each expert had specialised knowledge based on their training, study or experience which entitled them to express the opinions which they did: s 79 Evidence Act. No submissions to the contrary were received. The experts were:

• Mr Michael Robertson: Managing Director and Engineering Manager of Engistics Pty Ltd., produced five reports, dated 28 June 2012, 20 August 2012, 30 November 2012, 27 April 2015, and 22 July 2016 ("Robertson");
• Mr Trevor Wilkinson: Director and Principal Engineer of Engistics Pty Ltd., , prepared a report dated 28 June 2012 ("Wilkinson");
• Mr Richard Larsen: Principal of Loadsafe Australia Pty Ltd; prepared a report dated 23 February 2015 ("Larsen");
• Mr John Jamieson: Principal of Jamieson Foley & Associates Pty Ltd, Consulting Engineers; prepared two reports, dated 14 November 2015 and 10 February 2017 ("Jamieson"); and
• Dr Tim White: Employee of T.R. White Forensic Mechanical Engineers Pty Ltd; provided a report into the rollover dated 24 February 2015 ("White").

Conclave Report

1. White, together with Messrs Robertson, Wilkinson, Larsen and Jamieson participated in an expert conclave on 17 March 2017, in which they were asked to provide responses to questions posed by the parties. A Joint Report which responded to those questions was prepared on that day.
2. Much was agreed by the experts in the Joint Report. Relevantly, the contents of the Joint Report are as follows: QUESTIONS PROPOSED BY DEFENDANT BROWN FOR EXPERT CONCLAVE Question 1 and 2:
3. What matters can you agree on regarding this accident and the factors that contributed to its occurrence?
4. What matters do you disagree on regarding this accident and the factors that contributed to its occurrence? Answer: The experts concurred that the load was inadequately secured and may have been in breach of the regulations. In Mr Robertson's opinion, the load was in breach of the regulations. In Mr Wilkinson's opinion, the load adversely affected the prime mover's stability Question 3: Was the container packed and secured in compliance with national and internationally recognised guides or requirements for packing a container safely for transportation? Answer: In Dr White's opinion, the container was not packed and secured in compliance with nationally recognised guides. In Mr Robertson's opinion, it did not meet the requirements of either the Australian Guide or the Container Transport Union Guidelines for Marine Transport. Mr Wilkinson agreed that it didn't meet Australian and international guides Question 4: When is it likely (more probable than not) that the load of plastic products within the container shifted within the container? Answer: In Mr Robertson's opinion, it was impossible to say with any surety when the load moved and where it moved, but judging by the lack of damage to the packaging, it was unlikely to have shifted at sea. Mr Robertson's further opined that it was very unlikely the movement occurred in the marine environment because it would be a repetitive movement. Mr Jamieson and Mr Larsen did not agree with Mr Robertson's opinion. In Mr Jamieson and Dr White's opinion, it could not be known when the load of plastic products within the container shifted. In Mr Robertson's opinion, had the load shifted before the corner there was a high probability that the truck driver, or others, would have noticed an imbalance in the load when first loading it on to the truck. Mr Wilkinson did not know exactly when it happened, but that it either moved to or was actually on the right-hand side at that point. Mr Larsen agreed with Mr Wilkinson except that in Mr Larsen's opinion, only the front of the load would have moved to the right-hand side and not the rear of the load which was restrained by inflatable dunnage bags. Question 5: If the load of plastic products within the container shifted when the prime mover and the trailer was travelling through the corner just prior to the accident scene, is it probable that load shift had a "battering ram" effect? Is this quantifiable? Answer: There was no consensus amongst the experts that the battering ram effect was probable. Mr Robertson considered it probable that the dynamic movement of the freight would have been a significant destabilising factor. Mr Wilkinson concurred. Mr Larsen did not consider it possible that the battering ram effect took place as a dynamic impact. There was no evidence to show that the load impacted on the container wall. Dr White opined that the duration of application of any possible 'battering ram" forces would have been so short as to make the effect of such forces negligible Question 6: What were the likely speed(s) of the prime mover and trailer as it approached the scene of the accident and at the time that the container began to fall from the trailer? Answer: There was consensus among the experts that the point of initiation of the rollover was approximately 45 kilometres an hour. In Dr White's opinion, assuming it took between two to three seconds for the trailer to roll and then pull the prime mover over, counting back two or three seconds from this (and taking into account the 'resolution' of the DDEC data), the speed was somewhere between 45.1 and 53.9 kilometres an hour. Question 7: During the period that the prime mover was in motion along the Hume Highway and turned on to the Cumberland Highway, was Edwin Brown travelling at a reasonable speed, assuming that he was unaware of the contents of the trailer and the means by which they had been secured, and that he believed that the contents of the container were not likely to shift during normal operating conditions of the prime mover. Answer: There was consensus that the driver wasn't travelling at a reasonable speed. Question 8: Please consider each of the expert reports provided to date and consider whether the prime mover and the side-loader rolled due to inadequate load restraint leading to load shift or due to the speed at which the driver was travelling or a combination of the two? Answer: There was no consensus amongst the experts. In Dr White's opinion, load restraint was not a material consideration when compared to speed. In Mr Robertson's opinion, it was a combination of inappropriate speed and a lower than normal margin for error because of the load shift in the vehicle and inappropriate loading and/or load shifting in the vehicle, and that there was a substantial drop in stability because of poor loading practices which did not comply with the NTC Guidelines. In Mr Wilkinson's opinion, according to the evidence presented, the speed was close to a rollover speed and the poor load restraint was the tipping point. In Mr Larsen's opinion, the vehicle was going too fast for the way the combination was loaded. In Mr Jamieson's opinion, the driver entered the corner perilously close to the rollover threshold, irrespective of the configuration of the load. Question 9: Was there any other factor arising from a breach of road rules or regulations (in addition to speed and load shift) that also contributed to the rollover such as the use of a side-loading trailer Instead of a skel trailer or the overloading of the prime mover and trailer? Answer: The experts agreed that overloading was a definite breach and would have contributed to a small extent and that over-mass was a breach. The experts agreed that if the driver wasn't informed of the actual mass, that was another breach of the chain of responsibility. The use of the side-loading trailer contributed to the crash and it was a breach of duty not to have checked that a side-loader could legally and safely carry that weight. Question 10: What is the lowest speed at which a rollover of the prime mover, side-loading trailer and shipping container was likely to occur at the corner where the accident occurred? Answer: Mr Robertson conducted a whiteboard presentation for the expert panel and Dr White prepared the following table: Static Rollover Threshold of the combination of trailer: 0.35 Crossfall of the road: 5 per cent The speed is 49.0 km/h for a turn radius of 47m (the apparent radius of the tyre mark). The speed is 46.2 km/h for a turn radius of 42m (the radius if the driver "cut" the corner somewhat). The speed is 43.4 km/h for a turn radius of 37m (the radius of a centre line of Lane 2).

1. The experts concurred that it was not appropriate to answer most of the following questions without being given more time and the ability to technically investigate the facts further on the basis of the evidence. FUTUREWOOD QUESTIONS FOR EXPERT CONCLAVE IN RELATION TO THE DRIVER, MR EDWIN BROWN: Question 1: Do you agree with Mr Robertson's calculation that in the absence of the load shifting and assuming the centre of gravity of the load was not displaced laterally, the Static Rollover Threshold ("SRT") of the subject vehicle would not have exceeded 0.35g? If not, why not? Answer: The experts agreed that the numbers seemed reasonable but that they had not been mathematically checked individually. Question 2: What was the probability that the trailer commenced to roll over before the drive tyres on the prime mover lifted from the pavement? Answer: There was consensus amongst the experts that it was almost certain the trailer wheels commenced to lift before the wheels of the prime mover lifted off the pavement. Question 3 (a), (b), (c): Look at the police survey plan prepared by SC Kyrlakopolous, made on 28 June 2012, titled "Cumberland Highway, Liverpool. Answer: The experts were unable to answer these questions 3(a) to 3(c) as answering them would require a detailed engineering assessment. Question 3(d): Look at Table 1 below (which sets out the speed of the prime mover at 1 second intervals per the DDEC record in Dr White's report). The speeds have been converted to metres per second and the cumulative distance travelled has been calculated in 1 second intervals prior to the first tyre of the prime mover lifting from the roadway. What was the speed of the semi-trailer at the start of the curve? Answer: In Dr White's opinion, the speed of the semi-trailer … at the start of the curve was between 45.9 and 53.9km an hour. In Mr Robertson's opinion, the speed of the semi-trailer at the start of the curve was between 45.9 to 49.9kmh Questions 4, 5, 6 … Answer: Not answered by the experts. Question 7: The DDEC records analysed by Dr White show that the prime mover had gear "7th low" selected when approaching the curve, when rounding the curve and when it rolled over. Look at Figure 3 of Dr White's report. At what speed would the semi-trailer be travelling in gear "7th Low" assuming the driver was maintaining appropriate engine speed? Answer: In Dr White's opinion, a reasonable minimum engine speed would be 1500 RPM and that that could translate to a road speed of approximately 56 kmh. The experts deferred to Dr White's opinion. In Relation to the Freight Forwarder in this case: ENG Haulage Contractors Pty Limited Questions 8, 9 , 10: Answer: Not answered by the experts. Question 11: If so: Question 11.1: Do you agree that the total weight of the load, the container, the side-loader trailer and the prime mover was approximately 42.993 tonnes? Answer: The experts concurred, based on the Information supplied by the RMS, that the total weight of the load, the container, the side-loader trailer and the prime mover was approximately 42.993 tonnes Question 11.2: Was it appropriate for ENG to allow this loaded container to be carried on NSW public roads on this combination of side-loader and prime mover? If not, why not? Answer: The experts agreed that it was not appropriate for ENG to allow this loaded container to be carried on NSW public roads on this combination of side-loader and prime mover. Question 11.3: Was there a more appropriate combination for this container and load to have been carried? Answer: Mr Wilkinson indicated that the experts were not privy to knowledge of the overload. Questions 12, 13, 14, 15, 16, 17 … Answer: Not answered by the experts.

Evidence in Joint Session

1. It is now convenient here to note the relevant opinions expressed in the course of the joint session.
2. Dr White did not participate in the evidence given by the experts in the joint evidence session due to other commitments. He was not required for separate cross-examination by any party

The Trailer

1. In relation to the Trailer, Larsen gave evidence that if he could choose between loading the Container onto a higher trailer or a lower trailer, the lower trailer would be more suitable, because the Container would have a lower centre of gravity and would therefore be more stable. All the other experts agreed with this opinion. Jamieson opined, succinctly, "the lower the better".
2. Robertson gave evidence that a skeleton or "skel" trailer is normally used to transport heavier loads, since skel trailers are typically lighter in weight than other types of trailer, including the side loading trailer in use during the Rollover.
3. In contrast, he said that the Trailer used to transport the Container which was involved in the rollover on 28 June 2012 was a side-loader trailer fitted with two lifting devices at the front and back, which is a heavier type of trailer more commonly used so that the trailer can be unloaded without a crane or forklift.
4. All of the experts agreed that the side loader trailer which was used to transport the Container was commonly used in the haulage business in Australia.

Packing of the Container

1. Robertson gave evidence that, in preparing for his report, he examined the Container, the Prime Mover, and the Trailer, and visited the scene of the accident.
2. Wilkinson was also in attendance with RMS officers to observe the unloading of the Container. Wilkinson said that the only load restraint which was found in the Container were three dunnage bags.
3. He agreed that there were two side-by-side "towers" or stacks of packages, each of which was on a metal trolley, that were placed into the Container. Those loads consisted of wrapped bundles of Futurewood's product placed vertically on each trolley and separated from each other by layers of timber and plastic packing material.
4. Robertson added that the metal trolleys were then wheeled into a U‑shaped channel across the width of the Container which had been welded to the floor of the Container. The wheel was not welded to that channel, but simply relied upon being in the channel to prevent movement forwards and back. The channel, however, did not prevent movement from side-to-side.
5. As a result, the only forces preventing the load moving within the Container were the dunnage bags and friction between the packages themselves and also the trolley and the channel. Robertson also added that, longitudinally, the wheels of the trolleys would stop the base piece of product from moving in and out, however: "… every layer above that was free to slide longitudinally … depending upon friction only, and for sideways movement it was purely friction only outside of the end with the airbags, So the other end was free to slide side to side depending on the friction."
6. In answer to a question about the appropriate action where a professional in the transport industry (ENG) knew or ought to have known that a load was unrestrained (or inadequately restrained) within a container, Robertson nominated the following as the appropriate course of action: "His action would be to fix the problem by wedging it [the load] and also he has a responsibility under the chain of responsibility, to notify the offending party that he knew or thought that the way how he had done it was inappropriate and fix it for future trips."

Knowledge of the Weight of the Freightliner

1. Robertson agreed that the total weight of a freightliner is the aggregate of the tare weight of the prime mover, the tare weight of the trailer, the weight of the empty container and the weight of the payload, subject to variations in the weight of the Freightliner caused by the volume of fuel in the fuel tank. He agreed that the first three of those matters were readily observable on the vehicle component parts, and that the declared weight of the container was normally set out in the relevant shipping documents.
2. Jamieson added that the only "missing link" (or unknown) in the knowledge of the driver of the Freightliner, is the weight distribution of the payload of the container.
3. Larsen added that the declared weight of the container is something that is put on by the consignor of the goods, and is not the subject of weighing. Therefore, the declared weight is not always correct, although of course that conclusion depended upon each individual case.

Transportation of the Container by the Freightliner

1. During the evidence, the Court asked the experts what a transport company in the position of ENG (that is, knowing the weight of the Container, and making the decision as to the appropriate trailer on which the container would be loaded) could do about a container the contents of which were incorrectly packed.
2. Robertson opined that if the transport company had a suspicion that the container was not correctly packed, the company should advise the consignor (in this case, Futurewood) that the practice needed to change, and that, for the time being, the payload would need to be unloaded from the Container and delivered, perhaps in individual packs, on a flatbed truck, with appropriate load securing. Robertson described this as the "common industry first line of defence". The other experts did not disagree. In light of the unanimity of the experts on this aspect, I accept this evidence.
3. The Court then asked the experts what a transport company ought to do if they knew that the weight of the trailer and prime mover combination exceeded the maximum limit applicable on public roads in NSW.
4. Robertson's response was: "… [the transport company] should contact Futurewood and ask why the container needed to be on a side loader type trailer … And advise that it's not legal to put that on a side loader trailer because of the mass of the container and it is not wise to put it on a side loader container because of the height of the thing either, in which case they would have to organise for a lower deck and lighter trailer to keep the mass under the weight, the legal limits. But that would require Futurewood to arrange a large forklift or crane to unload the container at its end. The other alternative is to unpack the box and deliver the goods separately."
5. Messrs Wilkinson, Jamieson and Larsen agreed. Again, in light of their unanimity, I also accept this expert evidence.
6. Messrs Robertson, Wilkinson and Jamieson agreed with the proposition that, as the Freightliner left the yard of ENG, the driver of the Freightliner was a person responsible, under the chain of authority, for determining whether he or she may lawfully drive on the road, as, clearly, was ENG which gave instructions permitting the Freightliner to leave the yard, and drive to Wetherill Park.

Securing of the Load in the Container

1. Robertson and Wilkinson expressed the view severally that the load was not properly restrained in accordance with appropriate domestic and international standards or indeed as a matter of common sense. Jamieson deferred to the opinions of Robertson and Wilkinson.
2. Larsen expressed difficulty with that proposition given that the applicable regulations permit a certain amount of movement in the centre of mass of a load, something which is particularly applicable to fuel tankers, which carry a load which has a moving centre of mass. Larsen said that if there had been an 80mm shift in the load, such a shift would have been equivalent to the shift that can be expected in a fuel tanker, and which is therefore acceptable. On the other hand, if the whole load had shifted, such a shift would not be acceptable.
3. When asked what he would have suggested to improve the restraint system employed by Futurewood in relation to its containers, Larsen said that he would have recommended a completely different system of restraint - essentially removing all gaps between the load and the container.
4. Robertson said on this issue that 30 dunnage bags spread evenly along the gaps in the Container would have been necessary to secure the load in the Container.
5. On this point, Larsen added that the practicalities of that requirement were complex, since, as was foreshadowed by Elms in his evidence, it is not always possible for a person to fit themselves into the gaps in the containers. As a result, Larsen opined that timber would be a more appropriate cushion in the gaps, because it would be more easily inserted and held in place, thereby restraining the load appropriately.
6. Although Larsen's acceptance of the inadequacy of the manner of securing of the load seemed less enthusiastic than his fellow experts, I was left ultimately with the clear impression that he did not seek to defend the restraint system in place as being at all adequate. In fact, he advocated for an entirely different system. I accept the evidence of all of the experts on this topic, the effect of which was that the restraints in place to prevent the payload moving were inadequate and that the load was negligently packed and restrained.

Speed at which the Freightliner was Driven

1. All of the experts agreed that the Freightliner was travelling at approximately 45kmh at the time of the Rollover. Having regard to that speed, all of the experts agreed that Brown was driving too fast.
2. Robertson applied the proviso that if the driver did not know that the load was poorly restrained, the driver's judgment of the appropriate speed of travel may have been affected. I do not think that this adds anything of substance to the previous conclusion about excess speed.
3. Larsen noted that, taking into account the range of factors, such as the various loading configurations within the Container or the various aspects of the load which may have shifted, there was a range of SRTs between 39kmh and 45kmh. In this context, Larsen noted: "Now my belief is that if the vehicle was travelling at any of those speeds … the vehicle would have been right on the limit of rolling and I don't think it's okay for a combination vehicle to be travelling at that speed next to me on the road. So I believe that the driver needs to be travelling with a safety margin and in engineering we tend to sort of use a safety margin of 100% with things. You know, we sort of have a safety factor of two."
4. Factoring in forces of lateral acceleration and the forces operating on the load, Larsen opined that: "the appropriate speed with an appropriate factor of safety around that corner would have been of the order of 30 kilometres an hour".
5. Jamieson wholeheartedly concurred with Larsen on this point. Wilkinson did not differ from the speed proffered by Larsen either. Robertson agreed with the principles expressed by Larsen, but added that, for a driver of a prime mover, there is no "feedback loop" for the driver about the driver's proximity to the SRT. Again, I do not think that this qualification derogates from the fact that a safe speed for the Freightliner to travel around the curve was about 30kmh, but Brown drove around the curve at about 45kmh.

Chain of Responsibility Legislation

1. The experts referred to the legislation as being of importance in identifying the roles and responsibilities of various parties.
2. Jamieson included in his report of 14 November 2015, an extract from the Heavy Vehicle Driver Handbook, a handbook published by the Roads and Maritime Services, as follows: "The Heavy Vehicle National Law (NSW) requires all parties in the supply chain to take all reasonable steps to prevent fatigue of heavy vehicle drivers. For example, this means that:

• Drivers must stop the vehicle if feeling tired or fatigued.
• Operators and schedulers must plan when drivers can take a rest,
• Trading managers must take steps to ensure queuing is managed properly.
• Contracts must not be prepared that require drivers to break the law. Parties in the supply chain include the:
• Employer of the driver of the vehicle.
• Prime contractor of the driver.
• Operator of the vehicle.
• Scheduler of goods or passengers for transport by the vehicle, and the scheduler of its driver.
• Consignor of goods for transport by the vehicle.
• Consignee of goods for transport by the vehicle.
• Loading manager of goods for transport by the vehicle,
• Loader of goods on to the vehicle.
• Unloader of goods from the vehicle."

1. Jamieson gave evidence that he considered that those principles were reasonable and appropriate, now and in 2012, at the time of the Rollover.
2. Larsen concurred, observing that "they're well-established principles that have been around since the Chain of Responsibility legislation came in". Larsen affirmed that it was a "common approach around Australia" and that consistent legislation was enacted in every Australian state.
3. All of the experts acknowledged that they had worked upon the presumption that ENG was covered by the Chain of Responsibility legislation.

The SRT of the Freightliner

1. All of the experts agreed that the SRT of the Freightliner was 0.35g, assuming that the payload was stable. Amongst other things, this calculation takes into account the centre of gravity which will be higher on a side-loading trailer, than if a skel trailer is being used.

When did the Payload in the Container Shift?

1. Robertson opined that, because the payload was not secured, the payload would begin to slide at the friction coefficient of the slipperiest layer of Futurewood product, which was 0.16g. That is to say, if the payload of the Container was subject to a force of 0.16g in any direction through the tyres of the Trailer or the Prime Mover, there would not be enough friction to restrain the payload relative to the Container. In such circumstances, the payload would begin to move within the Container, where spaces existed which permitted movement.
2. Counsel for QBE asked the experts whether they saw any evidence which indicated anything more than the possibility that the payload had shifted before the Prime Mover began to navigate the left-hand turn at the intersection of the Cumberland and Hume Highways.
3. Robertson opined that, before the Rollover, the payload moved to the right‑hand side of the Container as viewed from the back doors. This opinion was based upon the friction coefficient between the payload, which was calculated by Wilkinson to be 0.16g, and by application of the basic laws of physics, to the vehicle and the Container as it travelled through the curve.
4. According to Larsen, the sideways forces operating on the tyres of the Container would have reached 0.16g when the Freightliner reached a speed of 30kmh and it was travelling other than in a straight line. Therefore, Larsen concluded that the payload would have begun to shift once the Freightliner's speed exceeded 30kmh. It needed to be travelling around the corner for that to occur.
5. It was also put to the experts that, ignoring the laws of physics, the physical evidence available from the Rollover (that is, the deflation of two of the three dunnage bags in the Container) did not permit the experts to determine that the load had shifted during the Rollover, as opposed to before the Rollover. That must be so since the damage to the dunnage airbags simply indicates that, at a point in time, the payload must have shifted to the right side of the Container with sufficient force to cause the dunnage bags to deflate. Very little is to be deduced from this evidence on the question of when the payload moved, as it unquestionably did.

Cause of the Rollover

1. Larsen opined that, since, having regard to the fact that the payload was only secured to a friction coefficient of 0.16g, the payload would begin to shift in the Container once the speed of the Freightliner exceeded 30kmh on the curve, the cause of the Rollover was the excessive speed of the Freightliner when it entered the left-hand turn from the Hume Highway into the Cumberland Highway. Jamieson agreed. Put differently, had the Freightliner travelled around the curve at or below 30kmh neither the friction coefficient nor the SRT would have been exceeded. It follows from this that the load would not have moved, and the Rollover would not have happened.
2. Wilkinson stated that it was his opinion that the Freightliner would have been on the verge of rollover if the payload had been secured and in the centre of the Container. He said that the Freightliner would not necessarily have rolled over without payload movement.
3. Robertson proffered the following view, giving four alternatives: 1. the payload did not shift before the corner, but as the Freightliner navigated the corner, the payload shifted to the right-hand side of the Container, resulting in the SRT being reduced from 0.35g to 0.29g, ignoring any battering ram effect; 2. the payload previously shifted to the left-hand side while the Freightliner was navigating a previous corner. Robertson stated that this scenario was less likely given that the dunnage bag on the left hand side of the Container was still intact; 3. the payload previously shifted to the right-hand side while the Freightliner was navigating an earlier corner; or 4. the payload shifted during transportation by sea.
4. Robertson was unable to say which of the three alternatives numbered (1), (3) and (4) above, was correct. However, with regards to the fourth alternative, he observed that if the payload was off-centre (having shifted during the sea voyage), one would have expected the Freightliner to be at a small lean, which would have been noticed by the driver of the Freightliner after the Container was placed onto to the Trailer at DP World's premises in Port Botany. Similarly, I infer that if the payload had shifted to the right-hand side of the Container on an earlier corner, the driver ought to have been aware of the load imbalance.
5. Robertson concluded that "on the balance of probability, I think it is most likely that [the payload has] actually shifted as we've gone into the corner, mid-corner". Robertson added that the inappropriate speed at which the Freightliner was travelling was an "adding factor" to the low coefficient of friction of the payload (0.16g).

Contribution between Joint Tort-feasors

1. The cross-claimants, Brown, Zurich and Futurewood, seek contribution from QBE (as ENG's insurer) on the basis that ENG is a joint tort-feasor pursuant to ss 5(1)(c) and 5(2) of the 1946 Law Reform Act, which are in the following terms: "5 Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."
2. Section 5(1)(c) creates a right of contribution which does not exist at common law, and which is conferred only between the parties specified in the criteria of that section. The content of the entitlement and the mechanism for its enforcement are found in s 5(2): James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 per Gaudron and Gummow JJ at [24], Kirby J at [79] , which gives the Court "a broad mandate".
3. The first limb which both cross-claimants must satisfy in order to be entitled to contribution pursuant to s 5(2) is that they are able to be characterised as a "tort-feasor liable in respect of" the damage suffered by the plaintiffs as a result of the tort. "Damage" has been held not to refer to "damages" awarded by a court, but instead to refer to the injury caused by the tort-feasor's negligent act, in addition to other foreseeable consequences suffered by the plaintiff: Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ.
4. The second limb which the cross-claimants must satisfy is that ENG is also able to be characterised as a "tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise".

Brown's Cross-Claim against QBE

1. Brown brings a cross-claim against QBE in its capacity as the insurer of ENG. Brown repeats in his Further Amended Second Cross Claim filed in Court on 11 May 2017, the allegations made by Futurewood in Futurewood's Amended First Cross-Claim filed 23 February 2016 in respect of ENG's liability and QBE's liability to indemnify ENG.
2. In the event that the method of packing and restraint of the Container is held to be a cause of the rollover, Brown relies upon the following proposition to demonstrate that ENG is a tort-feasor: 1. ENG was the company who had contracted with Futurewood to transport the containers by road from Port Botany to various warehouses in the Sydney region; 2. ENG had, on numerous occasions, transported the containers to its own warehouse where the containers were unloaded; 3. ENG was, as a result of that unloading, aware of the method generally employed to load the containers, which, on those previous occasions, were loaded in the same or similar manner as the Container; 4. ENG knew or ought to have known as a transporter of shipping containers, that if the payload in a container was not secure and not capable of movement during transport, then the centre of gravity of the load could move and render the load on the truck, and thereby the truck itself, unstable; 5. it was reasonably foreseeable that if the usual method used to load the containers was employed, then there was a risk of harm, namely that the load could become unstable and the truck carrying the load could rollover and thereby endanger other users of the roads on which the truck was being driven (the "risk of harm"); 6. that risk of harm was not insignificant; and 7. in the circumstances, a reasonable person in the position of ENG would have: 1. told Futurewood that its method of loading the containers had that risk of harm; 2. refused to transport Futurewood's containers unless the contents were securely loaded; 3. instructed its drivers to drive at a very slow speed of less than 35kmh, around corners.
3. Futurewood also pleads that ENG ought to have taken the following reasonable precautions against the risk of harm: 1. to check any weighbridge or weigh in motion ticket received when the Container was collected from DP World to confirm the actual mass before loading on any trailer, especially a side‑loader trailer that has a limited weight capacity and a high centre of gravity; 2. to check the weight of a container when placing it on a side‑loader trailer to ensure the vehicle would not exceed state limits, by use of a weighbridge before the laden vehicle left the premises or by calibrated scales fitted to a forklift, or other equipment used to load containers onto the side‑loader trailer; 3. to refuse to carry the load on a side‑loader trailer; or 4. to carry the load on a skel trailer; or 5. if carrying the load by means of a side‑loader trailer, to instruct Brown: 1. to take additional care to travel more slowly than normal, and/or 2. not exceed 30kmh when travelling around curves in roads such as the curve where the subject accident occurred, and/or 3. to travel at the speed Brown nominated as being safe to travel around this corner, that is between 15 to 20kmh, and/or 4. to brake gradually whilst travelling in a straight line and before entering curves such as the subject curve, and 5. to select a gear appropriate for travel around curves such as the subject curve, before reaching the curve and not to continue in a gear that was for a significantly greater speed than could possibly be maintained through such a curve.

Futurewood's Cross-Claim against QBE

1. The contents of Futurewood's cross-claim against QBE have been referred to earlier. As with Brown, Futurewood faces the burden of establishing that it is a "tort-feasor".
2. Counsel for Futurewood submitted that I would be satisfied that Futurewood was a tort-feasor within the meaning of s 5(1)(c) of the 1946 Law Reform Act due to its failure to secure its product in a reasonable manner within the Container. Counsel relied on the fact that Futurewood was involved in the process of formulating the inadequate load restraint which was used in relation to the particular Container, and that Futurewood intended that the Container, once closed, would remain unopened throughout its transit from Shanghai to Wetherill Park.
3. The relevant risk of harm was the increased risk of the Freightliner rolling over when the payload in the Container shifted because it was not adequately restrained. As has been discussed above, this was a foreseeable risk, having regard to common sense and the laws of physics. Moreover, this risk was not insignificant, and carried the possibility of causing serious injury or death, a risk which materialised in the case of the plaintiffs and Masih.
4. Section 5B(1)(c) of the Civil Liability Act therefore requires a consideration of whether a reasonable person in the position of Futurewood would have taken the relevant precaution, i.e. to secure the load properly.
5. The documentary evidence demonstrates that Futurewood was aware that from time to time a load was not restrained properly. In correspondence between Generakis and Elms on Tuesday 15 March 2012, Elms wrote: "You should receive a delivery of 10 pallets from Ubeeco today. Can you please check these and make sure that they are all OK, not falling apart or with broken timbers etc. and let me know that they have been received and are all good? …"
6. A further example is contained in an email sent by Ally from Huangshan's International Department on 29 April 2012 to Elms, Major and Xue. Ally wrote: "By the way, we inform you that the container of #102 is not good, ... Another thing is that when we pushed left stacks, the package of the top 70S15 was broken (the end pack) due the the left stacks were very high, when you received this container, please kindly check if they are OK? If not, please let us know." (sic)

Was ENG a Tort-feasor?

1. QBE accepts that the plaintiffs in each of the proceedings suffered personal injury and that they have a lawful entitlement to claim damages.
2. However, QBE argues that the sole cause of the damage to the plaintiffs was the speed and manner in which Brown drove the Freightliner. It further submits that both Brown's and Futurewood's cases against ENG must fail because they lack the evidence to support a finding of factual causation pursuant to s 5D(1)(a) of the Civil Liability Act. QBE also puts that Brown and Futurewood's pleading that the combination of the Trailer and the Freightliner operating at, or beyond, the maximum freight capacity constituted a source of the Rollover, is not supported by expert evidence.
3. I have found above that Futurewood's failure to secure the payload in the Container was a necessary condition of the harm. The question which therefore arises for my consideration is whether ENG can be characterised as a joint tort-feasor.
4. Counsel for QBE submitted that ENG could not be so characterised. First, QBE submits that a reasonable person in the position of ENG would not have taken any of the precautions which Brown and Futurewood allege that they should have taken, because: 1. Xue, an agent (or employee) of Futurewood, was employed to pack the containers with Futurewood's product - this was not ENG's responsibility; 2. Futurewood did not rely upon ENG for advice about load restraint, since Futurewood independently obtained advice from Hohechotec, including from a person whom Elms believed to be an engineer, and others on this issue; 3. The contract between ENG and Futurewood, constituted by the email sent by Generakis on 20 February 2012 to Elms and Major, did not extend to include the provision of such advice, and could not extend to imply such an obligation.
5. The terms of that contract between Futurewood and ENG as constituted by the email of 20 February 2012 are outlined at [50] above.
6. QBE further submits that the change in the arrangement between ENG and Futurewood in March 2012, which caused ENG's role to become solely that of a carrier of Futurewood's product, further supports their argument that a reasonable person in the position of ENG would not have taken the precautions alleged, because it had no way of knowing what was inside the containers and played no role in their packing. In QBE's terms: "The factual disposition of the case is simple. ENG collected the container from Port Botany. The container was locked and sealed. ENG did not open the container or break the seal at any point before the accident occurred. It was not contracted to do so. It was not directed to do so. "

Can Brown Claim Contribution from ENG?

1. QBE submits that s 3(1)(b) of the Employees Liability Act operates to preclude Brown's cross-claim succeeding. That section is in the following form: "3 Employee not liable where employer also liable (1) If an employee commits a tort for which his or her employer is also liable: (a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and (b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability). (2) Contribution under this section includes contribution as joint tort-feasor or otherwise."
2. For the purposes of its submissions, QBE accepts that the relevant tort referred to in s 3(1) is Brown's negligence in driving the Freightliner at an excessive speed. Brown's cross-claim seeks contribution from ENG as a joint tort-feasor pursuant to the 1946 Law Reform Act, but does not seek indemnity by reference to the employment relationship.
3. Evidence was given by Alexandra Dendeade ("Dendeade"), a senior claims adviser with Zurich. Dendeade gave relevant evidence that a Compulsory Third Party ("CTP") policy number 059019984 was issued to "Shark Group Pty Ltd" with an inception date of 6 April 2011, and which was cancelled on 17 September 2012. This evidence establishes that Shark Group was the holder of a CTP insurance policy with Zurich at the time of the Rollover in June 2012.
4. The statutory form of CTP insurance in operation at the time of the Rollover is provided for by s 10 of the Motor Accidents Compensation Act, in force as at 28 June 2012 which is in the following terms: "10 Third-party policies A third-party policy under this Act is a policy that is in the following terms: Third-party Policy The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle: (a) if the motor vehicle is not one to which paragraph (b) applies - in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or (b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 - in the use or operation of the vehicle on any road in any part of the Commonwealth. In this policy, words and expressions have the same meanings as in the Motor Accidents Compensation Act 1999."

Apportionment

1. The position has now been reached in this judgment where it is appropriate to consider the question of apportionment between each of the tort-feasors of whose causal negligence I have been satisfied.
2. Section 5(2) of the 1946 Law Reform Act requires a court to fix an amount of contribution which is: "… just and equitable having regard to the extent of that person's responsibility for the damage …"
3. The Court is engaged on an evaluative exercise in which it considers the conduct of each tort-feasor and makes an assessment of the relative fault of each tort-feasor.
4. I have previously described at some length the negligence which has been found with respect to Brown and the Shark Group, who were the driver and owner of the Freightliner and Prime Mover respectively. The Shark Group were not said to be negligent in any way which differed from Brown's conduct. Any contribution which these parties made is the same. Accordingly, in apportioning contribution, it is appropriate to regard Brown and Zurich (in lieu of the Shark Group) as the one tort-feasor. In short, their fault in respect of the accident was driving at an excessive speed in all the circumstances.
5. Futurewood is held as a tort-feasor because the payload was inadequately secured, thereby permitting the load to move and materially contribute to the Rollover.
6. ENG is liable as a tort-feasor for not satisfying itself that the load was secured, and for allowing an overweight combination to be driven on the road.
7. Clearly Brown's fault contributed the most significantly to the Rollover. Futurewood, being primarily responsible for securing the payload, should bear a greater responsibility than ENG whose responsibility consisted essentially of failing to check on Futurewood's provision for securing the load.
8. Taking this into account, I would apportion the respective fault of the tort‑feasors in this way: 1. Brown and Zurich: 70% 2. Futurewood: 20% 3. ENG: 10%

Is QBE Liable to Indemnify ENG?

1. QBE pleaded in its Defence to the First and Second Cross-Claims that it has no liability to indemnify ENG by reason of clause 5.20 of the Policy, which reads: "5. When you are not covered The following Exclusions will apply to this policy. This policy does not cover liability in respect of: … 5.20 Vehicle: Personal Injury or Property Damage arising out of the ownership, possession, or use by You of any Vehicle: (a) which is registered or which is required under any legislation to be registered, or (b) in respect of which compulsory liability insurance or statutory indemnity is required by virtue of any legislation (whether or not that insurance is effected). Exclusions 5.20(a) and 5.20(b) above do not apply to claims: (c) for Personal Injury where: (i) that compulsory liability insurance or statutory indemnity does not provide indemnity; and (ii) the reason or reasons why that compulsory liability insurance or statutory indemnity does not provide indemnity do not involve a breach by You of legislation relating to Vehicles; (d) …"
2. "You" is defined in clauses 4.28(a) and (c) as: "(a) the person(s), companies or firms named on the current Policy Schedule as the Insured; (c) every director, executive officer, Employee, partner, shareholder or voluntary worker or parties shown in paragraph 4.28(a) and 4.28(b) above, but only while acting within the scope of their duties in such capacity; …"
3. "Employee" is defined in clause 4.7 as: "… any person engaged under a contract of service or apprenticeship with You, but does not include any person employed under such contract who is excluded from the definition of 'worker' under any workers' compensation legislation while working for you in connection with the Business."
4. The "Business" identified in the Policy Schedule is described as "Freight Forwarding Service". The "Insured" is described in the Policy Schedule as "ENG Haulage Contractors P/L".
5. Clause 1.1 of the Policy states that: "We will cover You for Your legal liability to pay all sums by way of compensation, and all costs awarded against you in respect of … Personal Injury … happening during the Period of Insurance and caused by an Occurrence within the Territorial Limits in connection with Your Business or Products".
6. Personal Injury is defined in clause 4.16(a) as: "bodily injury (and this expression includes death, disease and illness), disability, shock, fright, mental anguish or mental injury…"

Costs

1. I see no reason why costs should not follow the event. No other submissions were made. The effect of this is that Brown and Zurich ought pay QBE's costs of their unsuccessful cross-claim. The same order ought to be made with respect to Futurewood's cross-claim against QBE. However, the parties ought have an opportunity to address the Court on this issue.

Deferred Orders

1. There is no reason why various judgments, the entry of which the Court was asked to defer, cannot now be entered, including those affecting the plaintiffs and the cross-claim between Brown, Zurich and Futurewood.
2. It is appropriate in all the circumstances that the parties have an opportunity to consider these reasons and formulate orders which reflect them.

Orders

1. I make the following interim orders: 1. Direct counsel for all parties to confer and agree upon the Orders necessary to give effect to these reasons including any order for costs. 2. Direct the parties to provide to the Court on or before 4pm Monday 25 February 2019, those agreed short minutes of order, or else the short minutes for which each party contends where agreement is not reached. 3. List the proceedings for further directions at 9.30am on 1 March 2019 for the determination of all outstanding issues, including costs, which are not agreed.

Amendments 18 February 2019 - Typographical error - cover sheet 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: 18 February 2019