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

Le v Brown, Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown - [2019] NSWSC 88 - NSWSC 2017 case summary — Zoe

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

[4]

Parties

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").
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.
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.
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.
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.
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.
In these proceedings, the issue of granting Brown leave to proceed against QBE pursuant to section 6(4) of the 1946 Law Reform Act in order to pursue QBE as the public liability insurer of ENG, in circumstances where Brown had failed to obtain the necessary leave of the Court prior to the commencement of the hearing, was considered and reserved, to be dealt with in this judgment.
Although s 6(4) of the 1946 Law Reform Act was repealed with effect from 1 June 2017, it remains the applicable section in these proceedings because they had been commenced before that date: see s 12 Civil Liability (Third Party Claims against Insurers) Act 2017.

[5]

Separate Questions for Determination

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?
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.
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.
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.
Counsel for the first defendant also indicated that the first and third defendants, together with Zurich, had reached an agreement with the remaining plaintiffs, whereby liability was admitted by those defendants with the damages in respect of each of the plaintiff's claims to be assessed. Consent orders to that effect were also filed in Court on 10 May 2017 with the proviso that the consent orders or any consent judgment would not be entered until further order.
Lastly, counsel indicated that Brown, Zurich and Futurewood had reached agreement whereby the cross-claims between them were to be dismissed with no order as to costs.
As a result, this judgment deals with the separate questions which relate to the apportionment of liability, if any, between the defendants and the remaining cross-defendant, and to whether QBE is liable under the Policy for any claim against ENG. To elucidate these issues, it is convenient to examine the pleadings filed in these matters.

[7]

Statements of Claim and Defences

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.
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.
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.
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."

[8]

Cross-Claims

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.
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.
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.
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.
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.
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) …."
In reply to this defence, Futurewood and Brown seek to argue that the exclusion in clause 5.20 of the Policy does not apply to ENG due to the operation of the exception contained in clause 5.20(c) of the Policy. In this judgment, it will be convenient to refer to clause 5.20 of the Policy as "the exclusion clause" or as "the exclusion". Clause 5.20(c) will be referred to as the "exception" or the "carve out". Such an argument requires Futurewood and Brown to demonstrate that the compulsory third party insurance policy established by s 10 of the Motor Accidents Compensation Act does not provide indemnity to ENG because ENG is neither an owner or driver of the Freightliner, as required by that section.
In the alternative, Futurewood and Brown submit that ENG is vicariously liable for Brown's conduct, and that ENG's liability is not covered by the compulsory third party insurance policy because ENG was not the owner of the Freightliner. Therefore, the exception to the exclusion arises and QBE is obliged to indemnify ENG for any damage caused by its negligence.

[11]

Key Players

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.
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.
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."

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".
The practice of packing containers with Futurewood's product was overseen by Xue in China. The relationship between Xue, and Hohecotech was not explored in the evidence.
As I have just noted, the company which in fact manufactured Futurewood's product was Hohecotech. It was also responsible for loading Futurewood's product into shipping containers in Shanghai, China, for transportation to various ports in Australia. Once loaded with Futurewood's products, the containers were locked and seals were applied to them. Those seals were intact on the Container at the time of the Rollover.
A company by the name of Cargo and Logistics Management Pty Ltd ("CALM") performed the function of freight forwarder for Futurewood in China. CALM was responsible for procuring empty shipping containers in China, and supervising the customs clearance of that container through China to be placed on a ship for carriage to a nominated port in Australia. CALM also contracted with ENG. It was through this contracting relationship that Futurewood was introduced to ENG and thereby contracted with ENG for ENG's services in Australia.
Futurewood also used an international freight forwarder and customs broker, namely, Bell Toll Logistics ("BTL"). BTL was contracted by Futurewood to book space on shipping lines to move loaded containers (containing Futurewood's products) from the port in Shanghai to ports across Australia. BTL was also responsible for preparing and lodging customs declarations relevant to the containers containing Futurewood's products and thereby enabling the release of the relevant container from customs in Australia.
BTL paid the wharf charges to the stevedore and customs fees, which were then billed to Futurewood. Mr Salvo Salanitri ("Salanitri"), manager of the Victorian branch of BTL, gave the following evidence in a statement which was admitted without objection: "When the container is ready to be collected from the wharf, we send the shipping lines release (called a delivery order) to Futurewood's nominated road transport company and that carrier arranges collection of the container from the wharf and delivery as per Futurewood's requirements. The carrier bills Futurewood for the services they perform. With respect to [the Container] Futurewood selected BTL to book space on a shipping line to move the container by sea from China to Australia. When the container arrived, BTL sent the relevant docs and information regarding pickup to Futurewood's nominated transport company to deliver the goods by road, namely ENG Haulage Contacting Pty Ltd. BTL had no involvement with the transportation of the container for Futurewood."
ENG were engaged by Futurewood to transport the containers containing Futurewood's product from Port Botany to ENG's warehouse at Moorebank from 2011 up until 23 March 2012. At that warehouse, the containers would be unpacked and the packs of Futurewood products organised for local distribution. However, after that date, Futurewood changed the provider of its warehousing from ENG to Hilbon Transport Pty Ltd ("Hilbon"). The effect of this change was that ENG continued to pick up Futurewood's containers from Port Botany, but would transport the containers to the warehouse of Hilbon at Wetherill Park for unpacking and local distribution. Occasionally, as in the circumstances here, the Container was held overnight or temporarily at ENG's warehouse at Moorebank. It was not opened or unpacked.
In cross-examination, Elms accepted that the contents of an email sent by Generakis on 20 February 2012 to himself and Major with the subject line "schedule of rates", set out all of the relevant terms of the contract between Futurewood and ENG: "AS REQUESTED TRANSPORT-WHARF-YARD~DEHIRE=$400.00+10%FUEL+GST UNPACK 20FT-S250.00+GST TIMSLOT-$20.00+GST PICK FEE $35,00+GST STRAPPING FEE$20.00 +GST RENTAL FOR 150m2=$350.00 per week+GST"
Hilbon was a small transport company contracted by Futurewood to transport Futurewood's product to Futurewood's customers in Australia. Hilbon possessed a warehouse in Wetherill Park. After, containers filled with Futurewood's product were transported to Hilbon warehouse in Wetherill Park from Port Botany by ENG, Hilbon would then locally distribute Futurewood's product.

[13]

Practice of Loading Containers Generally with Futurewood's Product

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.
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.
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.
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.
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.
Dunnage bags would then be placed in all accessible places (if there were any) in the containers and inflated. If it was not possible to insert dunnage bags into the gaps, cardboard boxes would be placed into those gaps, particularly between the container doors and the payload.
During or after the packing, Ally, or her fellow employees, would take pictures of the packed container and send them via email to Elms and Generakis, to confirm that Futurewood's product had been properly loaded into the container. Other pictures of the floor of the container (to show that it was undamaged) and the container number would also be included in that correspondence.
This standard procedure is confirmed in the correspondence between Elms, Generakis, Xue, Ally and Major, to some of which I will now refer.
In an email from Ally to Elms, Major and Xue sent on 29 April 2012, Ally wrote: "Hi,David, We loaded your #Container 101,102,103 yesterday, please kindly refer to the attached loading pictures…"
Attached to that email were 13 images. The first image depicts five packs of Futurewood product stacked upon a trolley-like structure with red wheels. The fifth image depicts a container with its back doors open. One column of stacked product has already been loaded into the container. The second column is in the process of being loaded into the container. Further images indicate that the stacks of product are approximately five stacks deep and six stacks high, and they are being loaded into the container with the assistance of a forklift.
In this example container, the thirteenth picture shows that empty but constructed cardboard boxes have been placed between the stacks of product and the back door of the container.
Further images also portray the loading of a container with stacks of Futurewood's product. The photos demonstrate that individual packs of product were separated by wooden planks. The tower of product depicted is clearly not straight in one image. The final image shows the back of a container with the doors open. Two columns of product can be seen, with one dunnage bag between them. There are also numerous cardboard boxes which appear to have been or are intended to be placed between the two columns of product and the back doors of the container.
The use of cardboard boxes as a means of preventing movement of the load in the container can also be seen in images date stamped 4 February 2012 which are attached to an email dated 6 February 2012, sent from Ally to Elms, Major and Xue.
Additional images of the loading process attached to an email sent by Xue on 27 August 2011 to Elms, with Major and Ally copied in, attached images of the container-loading process. Apart from what has already been described, these images indicate that once the stacks of product were loaded into the containers, the (deflated) dunnage bags were inserted into gaps between the edges of the towers of Futurewood product and the inside walls of the container, or between the two stacks. Then the dunnage bags were inflated manually by employees or agents of Hohechotech. No images showed dunnage bags being put in place at the end of the container away from the doors, and (necessarily) prior to the loading of the stacks of product.
The process of manual inflation of dunnage bags is also depicted in images attached to Ally's email dated 27 February 2012 to Elms, Major and Xue. More photographs attached to this email appear to depict an employee or agent of Hohecotech welding the metal wheels of the trolleys upon which the parcels of Futurewood product were stacked to the floor of the container.
The general practice which I have described from the tendered photos was confirmed by Elms, whose evidence was that "the practice was that the factory would fit air bags where practical between any gaps that were in the load". He also gave evidence that, since the air bags were added after the load was packed, some areas where there were gaps could not be blocked by air bags because they could not be reached, e.g. if the load was too high or if there was no room to physically get inside the container. In those circumstances, Elms stated that the air bags would be put "at the door end" of the container, which was easily accessible.
I note here that all of the photographs which are in evidence demonstrate that all of the containers were tightly packed. If there had been any gaps, they would have been extremely difficult to reach. This explains the presence of cardboard boxes blocking the space between the load and the container door in several images.
The practice of welding the chocks upon which the product was stacked into place on the floor of the container was also confirmed by Elms in his oral evidence. In cross-examination, Elms gave evidence that the methodology of welding the metal chocks to the floor of the containers was the product of a meeting between himself, Major and several members of Hohecotech, including Mr Hong, who Elms understood to be an engineer.
The agenda of that particular meeting was to: "improve the method of loading and unloading the container" and to "assist in keeping the load secure during transit".
Correspondence between Generakis, Elms and Ally demonstrates that the general loading practice occasionally caused damage to the contents of the containers and the loading mechanisms.
For example, in an email from Generakis sent on Tuesday 15 March 2012, Elms wrote: "Chris, 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 broke timbers etc. and let me know that they have been received and are all good? …" (sic)
A further example is contained in an email sent by Ally from Hohecotech 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, the flooring have already damaged (please check the attached picture named by #Container 102(1), we have already put one square steel to cover the hole, so when you pull them out of this container, please pay more attention. 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)
Emails sent between Elms, Generakis and Major on 14 December 2011 also indicate that some of Futurewood's product had been damaged while in the container.
Finally, in an email to Elms sent on 14 February 2012, Generakis wrote: "THE FLEX IN THE PACKS WITH ALL THAT WEIGHT SITTING ON TOP OF EACH OTHER WOULDN'T BE GOOD." (sic)
Elms gave evidence that it was in Futurewood's interest to pack the containers so that the product was not damaged: "These goods are pretty much finished goods, so basically when they're being sold they're not being in any way worked or sanded, or painted afterwards, so if they move around inside the container and get damaged, then they commercially lose their value … so obviously the primary aim of the packing of the container was to make sure that the goods could be … placed into the container easily, removed from the container easily and obviously not move around whilst they were inside the container."

[14]

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

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.
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.
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.
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.
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.
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".
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.
A Commercial Invoice and Packing List issued to Futurewood from Huangshan dated 25 May 2012 relating to "Container #106" shows that the Container was packed with several different varieties of plastic composites and aluminium alloy profiles, and also contained several plastic and stainless clips.
The Packing List records the total gross weight of the contents of the Container as 19.753 tonnes, and the total net weight of the contents of the Container as 19.196 tonnes.
A Container Weight Declaration with the Huangshan company name at the top of the document included the following table, signed and dated 5 June 2012: CONTAINER NO. HJCU8368820 CARGO WEIGHT (KGS) 19753.00 CONTAINER TARE WEIGHT (KGS) 2000 TOTAL PAYLOAD WEIGHT (KGS) 21753.00 TOTAL NO. OF PACKAGES 48

[16]

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"
The estimated time of arrival of the Container to the port of discharge in Sydney was Saturday 23 June 2012.
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."
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.
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.
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. …"
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…"
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.
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)"
On the same day at 10:14am, Generakis sent an email to Elms, in which he said: "OK WILL GET BOX TOMORROW AND DELIVER"
The word "box" is a common term used to refer to a shipping container.
It seems clear from this exchange, and the absence of any suggestion that a fee was paid to DP World for extended storage at the dock, that the Container was collected by ENG from Port Botany on or before Wednesday 27 June 2017, the day before the Rollover occurred. The records of DP World show that, in fact, the Container was collected and left Port Botany on 26 June 2012: see [112].
However, the evidence did not address the identity of the driver, employed by ENG, who actually collected the Container from Port Botany and drove the loaded Freightliner to Moorebank. Brown, who was driving the Freightliner at the time of the Rollover, was not called to give evidence. It is not possible to conclude that he was the driver at the time the Freightliner left Port Botany.

[17]

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

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.
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.
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.
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.
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.
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.
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.
In relation to the Container loaded onto the Prime Mover, Hanley gave evidence that a search of DP World's records which he conducted revealed that the Container was not noted as grossly overweight by DP World's exit gate log. This means that there would not have been a second notification to the driver before he drove out from the port area at Port Botany.
Hanley also noted the date of departure of the Container to be 26 June 2012, the BAT of the Freightliner was 83X, and the registration number of the Prime Mover as BE33XV.
The text messages to which reference is made at [115] below, indicates that it was ENG's practice to inform its drivers, via text message, of the relevant characteristics of the load being transported by the driver, namely, the container number, the location to which the load is to be delivered, the weight of the load, and the relevant contact person at the destination. That information was available to ENG from its receipt of various copy shipping documents, and the docket given to its driver when the Container left DP World at Port Botany.

[18]

Movement of the Container after Leaving Port Botany

The evidence about what happened to the Container between when the Freightliner left Port Botany and the Rollover is minimal.
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.

[21]

Inspection of the Container after the Rollover

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.
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.
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."
Scott also observed a series of load securing points along the side of the floor, which had not been used.
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".
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.
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.

[24]

Weight of the Freightliner

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.
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.
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.
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.
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.
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.
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.
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. .

[26]

Conclave Report

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.
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:
What matters can you agree on regarding this accident and the factors that contributed to its occurrence?
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).

[27]

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.

[30]

Packing of the Container

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.
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.
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.
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.
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."
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."

[32]

Transportation of the Container by the Freightliner

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.
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.
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.
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."
Messrs Wilkinson, Jamieson and Larsen agreed. Again, in light of their unanimity, I also accept this expert evidence.
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.

[33]

Securing of the Load in the Container

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.
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.
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.
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.
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.
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.

[34]

Speed at which the Freightliner was Driven

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.
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.
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."
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".
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.

[37]

When did the Payload in the Container Shift?

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.
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.
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.
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.
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.

[38]

Cause of the Rollover

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.
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.
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.
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.
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).
When questioned by counsel for QBE, Robertson said that whether the payload moved during the curve was dependent upon the lateral centrifugal force on the Freightliner as it navigated the curve. Given the characteristics of the corner on which the rollover occurred, Robertson said that the "slip value" of the payload would be reached before the Freightliner's SRT was reached. Hence Robertson's opinion was that the load shifted as a result of the Freightliner navigating the curve and before, but not as a result of, the Rollover itself.
Robertson then provided the following explanation, the end point of which was that, in his opinion, it is equally probable that the Freightliner would have been right at its SRT while Brown was navigating the curve: "As the truck enters the curve, it goes through what's called a spiral transition, so it's not going from a straight line to a curve instantaneously. As you increase the steering it starts to curve tighter and tighter. At the same time, to counteract that effect engineers design the road with a camber or a banking so as to help counteract that centrifugal force. And this corner has quite a substantial camber through the middle part of the curve, so that camber is helping to hold this load and I believe we are now at the point where … the load is almost at the point of slipping but the lean on the curve is helping to hold that. And approximately the area where I believe the trailer has rolled over which matches the police skid marks, is where that cross wall of the road actually flattens out to allow the other road to join it. And I believe that the most likely scenario is that the load was in the middle or on one side. Most likely that it was in the middle and that as it's just been holding on because of that steep cross fall and then at mid corner as that cross fall disappears below the truck, the load has then shifted. Would it get shifted if the load hadn't moved? It would have been touch and go. I think my calculations showed it was just on or about the limit."
Wilkinson agreed with Robertson.
Larsen was of the opinion that it was "highly likely that [the payload of the Container] wasn't in the middle [of the Container], because it would have been subjected to accelerations that would cause it to move from one side to the other". Instead, it could have been "at the left or the right … of the [Container]". Hence, he concluded that the payload would have been "probably in some sort of dishevelled state at the front … but I don't believe that the forces that it encountered on the road or at sea before then would have collapsed the air bags".
Based upon these calculations, Larsen asserted that the SRT of the Freightliner due to payload shift may have been somewhere in between 0.29g and 0.35g, and not necessarily at 0.29g, as soon as the payload shifted.
On this issue, I prefer the evidence of Robertson, with which Wilkinson agreed, to that of Larsen. Larsen's conclusion as to the "dishevelled state" of the payload does not seem to be based on any certain facts or evidence - rather it is more on the nature of speculation. When the Freightliner left Port Botany, I am satisfied that it was not grossly overweight, and had the payload not been balanced, the driver would have been unlikely to have continued the trip. Again, even though Brown was not called, there is nothing to suggest that he in fact noticed the load to be unbalanced. On the contrary, if it had been, I would have expected him to have slowed down considerably on entering the left-hand curve.

[39]

Contribution between Joint Tort-feasors

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."
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".
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.
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".
In considering whether there has been a breach of duty by any of these parties, the following sections of the Civil Liability Act are applicable: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. … 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
No party suggested that these proceedings required the Court to consider the exceptional case provision for causation under s 5D(2). Its terms can be put to one side.

[40]

Brown's Cross-Claim against QBE

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.
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.
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.
Counsel for Brown submitted that, assuming that it is established that the plaintiffs have suffered personal injury, a proposition which was unchallenged in these proceedings, Brown is properly characterised as a tort-feasor liable in respect of the damage. This was due to the fact he travelled at an excessive speed and embarked upon driving the Freightliner without knowing the gross weight of the Freightliner, including the gross weight of the Container, and without knowledge of the manner in which the Container had been packed.
Counsel pointed to the text message sent by ENG to Brown at 11:32 on 28 June 2016, which detailed the weight of the Container, and submitted that I would draw an inference that Brown did not know the weight of the Container before he embarked on transporting it to the premises in Moorebank. As a result, counsel argued that I would find that this evidence supported a finding of negligence on the part of both Brown and ENG. As I have earlier found, there is no evidence that Brown was aware of these details prior to the Rollover. I conclude that he was not. In reaching that conclusion, I do so confidently in light of the absence of Brown as a witness in the proceedings.
It is well accepted that a driver of a vehicle has a duty to control the speed and direction of his or her vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events: Manley v Alexander [2005] HCA 79, (2005) 80 ALJR 413 at [11] per Gummow, Kirby and Hayne JJ. Counsel for Brown submitted that I would find that this duty is informed by the Chain of Responsibility legislation. According to s 5(1)(c), Brown would be a joint tort-feasor by reason of his driving at an excessive speed when he had insufficient knowledge of the weight and manner of loading of the Container.
The principle in Manley is not an absolute one, as the comments of Tobias AJA in Egan v Mangarelli [2013] NSWCA 413; (2013) 65 MVR 480 show: "148 In my opinion the application of the general statement of principle at [11] of Manley is dependent on the facts of the particular case. What is required is "reasonable attention" to what is happening on and near the roadway. Relevantly on the facts of Manley it required attention to what lay ahead of the defendant's vehicular path. … 150 Furthermore, Manley does not require guesswork on the part of the driver. Reasonable attention to what is happening on and near the roadway requires a factual matrix against which the relevant standard of care can be applied but which, as the experts acknowledged, was missing in the present case."
Gleeson JA (with whom Leeming JA and Davies J agreed) in his judgment in Boateng v Dharamdas [2016] NSWCA 183; (2016) 77 MVR 151, has drawn attention to the obligation of a driver, describing it in this way: "74 In Marien v Gardiner [2013] NSWCA 396; 66 MVR 1, Meagher JA (Macfarlan and Emmett JJA agreeing) summarised the principles concerning the duty of care a driver owes to other road users, and those relating to breach of duty by reference to s 5B of the Civil Liability Act. This summary was affirmed in Warth v Lafsky [2014] NSWCA 94 at [55] (McColl JA, Preston CJ of LEC and Tobias AJA agreeing) and Johnston v Stock [2014] NSWCA 147 at [26] (Barrett JA, Meagher and Ward JJA agreeing). In short, the driver of a motor vehicle owes a duty of care to other road users, including pedestrians, to take reasonable care for their safety having regard to all of the circumstances with which the driver is confronted: Marien v Gardiner at [33]. 75 The question of whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: Civil Liability Act s 5B(1). 76 Meagher JA continued in Marien v Gardiner (at [35] - [37]) as follows: [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path". [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision. 77 … 78 It has also been said that motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 at [28] (Hodgson JA, Beazley and McColl JJA agreeing)."
The question of substance is therefore whether Brown breached his duty to other road users by driving the Freightliner at a speed of no less than 45kmh around the curve, and doing so without first satisfying himself about the gross weight of the Freightliner (including its load) or whether the payload within the Container was adequately secured. The risk of harm that arose from these circumstances was the risk that the Freightliner would experience a rollover and cause harm to other road users.
Brown will only be found to have acted negligently if the risk of a rollover was foreseeable and not insignificant, and if a reasonable person would have taken the precautions described above.
Hence, the issue is whether a reasonable person in the position of Brown would have driven at a slower speed when navigating the intersection between the Cumberland and Hume Highways, or made inquiries about the gross weight of the Freightliner or whether the Container's payload was secured before he left ENG'S warehouse at Moorebank. I am well satisfied that a reasonable person would have done so.
The evidence of Mr Larsen during the expert conclave was that Brown was driving much too fast in the circumstances in which he did, because the Freightliner would have been "right on the limit of rolling" when Brown drove it around the bend. Mr Larsen opined that, in order for the risk of rollover to be avoided, a driver of a heavy vehicle such as the Freightliner should "apply a safety factor of two" between the speed of travel and the risk of rollover. Mr Larsen's calculations indicated that such a safe speed for Brown driving the Freightliner around that bend was 30kmh. The other experts agreed. I am satisfied from this evidence, which I noted at [173]-[177] above, that Brown drove too fast and was negligent in so doing. His speed around the curve was excessive to an obvious and marked extent. He was travelling at about 50% above a safe speed. In my view, a reasonable person experienced in driving a loaded Freightliner would know, or else ought to have known that the speed was excessive. Brown was clearly negligent in this respect. There was no dispute that the excessive speed of the Freightliner was causally related to the Rollover.
This conclusion about Brown's negligence has the consequence that the owner of the Prime Mover would be equally liable as a tort-feasor. It is a matter of long-standing authority, that the driver of a commercial vehicle engaged on the owner's business is the agent of that owner whether an employee or not. This was described in Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 by Gleeson CJ as a "… familiar feature of modern litigation" at [6]. See: Soblusky v Egan [1960] HCA 9; (1960) 103 CLR 215 at 231 per Dixon CJ, Kitto and Windeyer JJ; Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 6789 per Brennan J.
No-one submitted that this conventional principle ought not to be applied here with respect to any liability of Zurich which stands in the shoes of the Shark Group. The liability of Brown and Zurich is co-ordinate and identical - both are liable for, and only liable for, the conduct of Brown. No different position is to be reached when considering the claims they each make. In those circumstances, Zurich's claim rises and falls on Brown's claim and does not need to be separately analysed.
It is also a matter of common sense that driving a heavy vehicle with a heavy load on a public road is an activity which requires a significant level of attention to the particularities of that vehicle, such as its weight and the manner in which its payload is secured. This is made clear (if any clarity is needed) by the provisions of the Road Transport (Mass, Loading and Access) Regulation 2005 (NSW) ("Mass, Loading and Access Regulation"), which was applicable on 28 June 2012.
Part 2 of the Mass, Loading and Access Regulation is entitled "Mass, dimension, loading and other requirements for heavy vehicles". It prescribes the weight limitations which apply to different forms of vehicle depending upon various factors such as axle groupings or how the vehicle can be characterised.
Part 5 of the Mass, Loading and Access Regulation is headed "Mass, dimension, load and other requirements applicable to all vehicles". Sections 61 and 62 of that Part provide: "61 Load requirements (1) A load on a vehicle or a trailer must not be placed in a way that makes the vehicle unstable or unsafe. (2) A load on a vehicle or a trailer must be secured so that it is unlikely to fall or be dislodged from the vehicle. (3) An appropriate method must be used to restrain the load on a vehicle. 62 Driver to have sufficient control A person must not drive on a road or road related area any motor vehicle: … (c) if the person is prevented from safely driving or controlling the vehicle or any trailer or other vehicle attached to the motor vehicle by reason of the weight or dimensions of the loading or equipment of the towing vehicle or trailer or other towed vehicle or the manner in which the loading or equipment is placed on or attached to the towing vehicle or trailer or other towed vehicle."
The provisions of these Regulations inform what a reasonable person in the circumstances of Brown should have done by way of a response to the foreseeable risk of rollover. Clearly, in order to minimise that risk, the gross weight of the Freightliner should have been a central consideration in the decisions which Brown made about the way in which he drove the Freightliner.
By driving the Freightliner at an excessive speed when he did not know the laden weight of the Container, Brown failed to consider the impact of that unknown weight upon the SRT of the Freightliner. As a result, he failed to take into account the foreseeable risk that, if the laden Container was in breach of the applicable mass limits, the Freightliner would have a lowered SRT and would therefore be more likely to experience a rollover, which could foreseeably cause death or injury to other road users.
Similarly, Brown's ignorance of the way in which the Container's payload was secured, demonstrates a failure to account for the foreseeable risk that an unsecured payload within the Container could lead to a drop in the SRT of the Freightliner as it navigated a curve, leading to rollover. Hence, Brown breached the duty that he owed to other road users to respond to that foreseeable risk of injury.
In light of the matters articulated above, I find that a reasonable person in Brown's position would not have driven at 45kmh when he or she did not know the weight of the vehicle that he or she was driving, or whether the vehicle's payload was properly secured. A reasonable person would also have inquired of his or her employer about the nature of the load that he or she was transporting in order to make the appropriate choice about the speed at which to drive the vehicle.
On the issue of factual causation, counsel submitted that Brown's negligence was causally significant in the occurrence of the damage which resulted from the rollover because, had Brown known that the Freightliner was overweight, or that the payload was inadequately secured, he would not have left ENG's premises, at all. As a result, Brown argued that his further breach was a necessary condition of the harm suffered by the plaintiffs, as required by s 5D of the Civil Liability Act.
Plainly, that causative link is made out, since if Brown had not driven the Freightliner upon which the Container was loaded out of ENG's premises at Moorebank, the rollover would not have occurred and the plaintiffs would not have suffered harm. As well, if Brown had not driven as fast as he did around the curve, the Rollover would not have happened.
For all of these reasons, I am satisfied that Brown is a joint tort-feasor for the purposes of s 5(1)(c) of the 1946 Law Reform Act.
The second limb which Brown must satisfy is that ENG is 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".
Counsel for Mr Brown submitted that ENG ought be held to be a tort-feasor due to a failure to act upon its knowledge of Futurewood's practice of inadequately securing its product when transporting it in shipping containers. Counsel also particularised ENG's negligence as a failure to inform itself of the loaded weight of the Container, because if ENG had known or appreciated the gross weight of the Container, it should not have permitted it to be loaded onto the Trailer which was selected, or to have allowed the Freightliner to have left its warehouse and drive on the public road.
Counsel for Mr Brown further pointed to the fact that ENG had available to it information which would have permitted it to accurately ascertain the gross weight of the Container. According to Counsel, the available information came as a result of the Freightliner moving through the Weigh-In Motion Technology which was available at DP World at Port Botany, and by reason of the tare weight of the Trailer and the Container and the weight of the Prime Mover being readily available from the shipping documentation of which ENG was in possession.
In relation to the question of factual causation between ENG's negligence and the Rollover(which is challenged by QBE) Brown and Futurewood drew the Court's attention to the decision of Basten JA (Beazley JA agreeing) in Elbourne v Gibbs [2006] NSWCA 127 at [74]-[76], where his Honour said: "…From these examples, three broad propositions can be derived. First, where there are multiple 'effective' causes of an event, of which only one involves a breach of duty, causation may nevertheless be established, so long as the breach of duty makes a 'material contribution' to the harm suffered. Secondly, the fact that the breach of duty is a cause in the sense noted, may not be sufficient to establish liability; the degree of connection must satisfy the policy underlying the legal attribution of responsibility. Thirdly, and consequentially, care must be taken to assess causation in its particular statutory or other legal context. Even within general law principles relating to tort, the underlying purpose of the particular assessment must be borne in mind. Where it is demonstrated that a defendant has breached a duty owed to a plaintiff, and harm has followed … it is clear beyond doubt that the burden of establishing causation lies on the plaintiff. On the other hand, in some circumstances the law has accepted that an inference of causation will arise from the existence of a temporal connection, together with other slender support. Thus where medical science is unable to confirm or deny a causal connection between exposure to a potentially harmful agent and a particular medical condition, courts have been willing to infer on the basis of 'common sense' that a connection is established on the balance of probabilities."
By reference to Basten JA's remarks, Brown and Futurewood submitted that the facts of this case reveal a scenario where, even if there is uncertainty between the causes of the rollover (which they do not concede), each of the failures of Brown, Futurewood and ENG to take reasonable precautions against the risk of rollover, can be said to have made a "material contribution" to the rollover. They further submitted that this case is a case where the Court would draw an inference of causation between each of the factors, arising from the existence of a temporal connection, together with the support of the expert evidence.
Brown and Futurewood also drew attention to the comments of the majority (French CJ, Gummow, Crennan and Bell JJ) in Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, where their Honours said at [20]: "Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm." (Footnotes omitted)
It is convenient to consider the question of whether ENG is a tort-feasor a little later, after concluding whether Futurewood is a joint tort-feasor.

[41]

Futurewood's Cross-Claim against QBE

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".
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.
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.
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.
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? …"
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)
I infer from this correspondence and in the absence of any evidence to the contrary, that Futurewood knew that its product could be and was being damaged in the containers as it was transported, and that this damage must have resulted from the product moving around in the containers because the securing of the load was inadequate. I also note, despite David Elm's evidence that he was not aware of the regulations with which he was required to comply in regards to load restraint, a reasonable person in his position should have been aware of those regulations and should have sought to comply with them.
As a result, there is no doubt in my mind that a reasonable person in Futurewood's position would have sought to restrain its load adequately when it was being transported in containers. If restrained adequately, then the load ought not to have shifted.
When the container was opened, there were only three dunnage bags observed. None of these were at the far end of the container (i.e. distant from the loading doors). As well, sometimes cardboard boxes were inserted into gaps instead of dunnage bags being used, although this does not seem to have been the case for the Container.
I accept the evidence of Scott set out at [118] above and that of Notaro set out at [120] above, about the state and extent of the load restraints in position in the Container. Clearly they were not adequate because the load could move within the Container, and not all gaps were adequately filled with dunnage bags, including at the far end of the Container which should have had a dunnage bag placed there before, or else during the loading process.
As I have explained at [167]-[172], I accept the evidence of Messrs White, Robertson and Wilkinson that the load was not packed or secured in accordance with a range of nominated guidelines. In my view, these guidelines represent a reasonable norm for packing and securing a load, by reason of their widespread application and implementation. A failure to comply with them in this case constitutes a failure by Futurewood to act reasonably.
Futurewood's packing of the Container was negligent, thereby allowing the load to shift and not be adequately restrained.
Futurewood further submitted that its failure to take proper precautions against the risk of load shift in its containers was causally related to the damage caused by the Freightliner rollover in terms of s 5D(1)(a) of the Civil Liability Act.
This argument was resisted by QBE. Accepting the inference which arises from the laws of physics that the load must have shifted, QBE submitted that the evidence did not permit me to conclude that the shifting of the load occurred at a time or with an effect which materially contributed to the Rollover of the truck.
In this regard, QBE pointed to the evidence of Larsen, which was to the effect that the load shift would have reduced the SRT of the Freightliner to anything between 0.29 and 0.35g. This in turn would only have reduced the speed at which the Freightliner could safely be driven, without rolling over, by 2kmh. QBE argued that a difference in driving speed of 2kmh was not materially or causally significant.
Counsel for QBE also highlighted the expert evidence given by Mr Robertson who, QBE submitted, was unable to say whether the Freightliner tipped because of load shift or because of the Freightliner's excessive speed. QBE submitted that this evidence was consistent with there being no identifiable cause as between the two possible alternative causative factors of the Rollover.
Hence, other than by reducing the safe driving speed of the Freightliner by the identified small amount, QBE submitted that the load shift could not affirmatively be characterised as having a causal relationship with the Rollover. Therefore, the Court should not be satisfied that Futurewood's failure to secure the load was a necessary condition of the harm caused to the plaintiffs.
QBE also maintained its submission that the load could have shifted whilst the Container was in the ship and before it landed in Sydney. However, as I have earlier found, I do not accept this submission. Had the load shifted whilst the Container was at sea, I am satisfied that the imbalance of the load would have been detected by the driver of the Freightliner upon loading at DP World at Port Botany and during the transport of the Container to ENG at Moorebank. There is no evidence that the driver noticed anything untoward. As well, once he commenced driving the Freightliner on 28 June 2012, including travelling around left-hand and right-hand corners, Brown would have noticed any imbalance. There is no evidence that this was so. I repeat my earlier expressed satisfaction that the load did not shift at sea, or at any time prior to the Freightliner entering the start of the curve where the Rollover occurred.
I now turn to the expert evidence. The experts were unanimous in their joint opinion that Brown was driving the Freightliner at an excessive speed. However, there was no consensus among them as to whether the Rollover was 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.
The experts agreed that, assuming that the payload in the Container was secured, the Freightliner had an SRT of 0.35g. However, Robertson gave evidence that based upon the friction coefficient of the "slippiest layer" of the payload in the Container being 0.16g, the payload would begin to move inside the Container once it experienced a sideways force greater than 0.16g.
Larsen's evidence was that the sideways forces operating on the tyres of the Container would have reached a force of 0.16g if the Freightliner was travelling at a speed of 30kmh or more around the corner. Therefore, the payload in the Container would have begun to shift when the Freightliner travelled at or above this speed as it navigated the corner.
As the Freightliner approached the corner at the intersection, having been travelling in a straight direction, it commenced to slow down. I accept Dr White's opinion (with which the other experts did not take issue) that when the Freightliner approached the curve it was travelling in 7th low gear which meant that it was travelling at about 56kmh. The speed at the point of Rollover was not less than 45kmh, as the parties agreed.
It follows that as the Freightliner entered the curve, and sideways forces acted upon its load, those forces must have exceeded the coefficient of friction of 0.16g because the Freightliner's speed was above 30kmh. This had the effect that from an early point in the curve, and prior to the Rollover commencing, the load was shifting laterally and probably in a forward direction as well. This shift was likely to be, in my view, a destabilising factor in the behaviour of the Freightliner as it continued around the curve.
In his report, Dr White opines that Brown took his foot off the accelerator of the Prime Mover when the telematics data registered the vehicle speed as 61.2kmh. From that point on, the speed of the Freightliner decreased to 53.9kmh, at which point Dr White's concludes that Brown applied the brakes to the Freightliner, whereupon the speed of the Freightliner decreased to 45.1kmh. It is at this point that the Rollover occurred.
I am satisfied from, particularly, the expert evidence of Messrs Robertson and Wilkinson that the payload in the Container shifted as the Freightliner entered the curve at its then speed which was well above 30kmh. At its entry speed, the lateral forces exceeded the force at which the payload would be stable, and so it moved laterally and probably forward. The expert evidence, which I accept, also permits me to infer that the consequent destabilisation of the payload within the Container reduced the SRT of the Freightliner by a measure significant enough to play a causative roll in the Rollover. QBE has not persuaded me that a 2kmh speed alteration to reduce the SRT of the Freightliner had no causal effect on the Rollover. I accept the evidence of Messrs Robertson and Wilkinson that the truck was on the verge of rollover if the load was secured as it entered the corner. It was the shifting of the load which, I am satisfied, either initiated or else materially contributed to the happening of the Rollover.
As a result, I find that Futurewood was a "tort-feasor" within the meaning of s 5(1)(c) of the 1946 Law Reform Act, and therefore that Futurewood is entitled to a contribution from QBE if it can established that ENG is also a tort-feasor.
With respect to its claim against ENG being a tort-feasor who is, or would if sued have been, liable, counsel for Futurewood adopted the submissions of counsel for Brown.
Futurewood also submitted that, given the history of prior dealings between ENG and Futurewood, and given that ENG did not know how low or high the centre of gravity of the payload in the Container was, ENG should have contacted Futurewood and requested permission to open the Container. Had ENG done so, it could have assessed whether the payload was adequately secured, or requested permission to remove the payload from the Container and to transport it by alternate means. As well, Futurewood submitted that ENG should not to have allowed the Freightliner to be driven on the road.

[42]

Was ENG a Tort-feasor?

QBE accepts that the plaintiffs in each of the proceedings suffered personal injury and that they have a lawful entitlement to claim damages.
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.
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.
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.
The terms of that contract between Futurewood and ENG as constituted by the email of 20 February 2012 are outlined at [50] above.
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. "
It further submitted that even if it is assumed that the load was in breach of the maximum weight restrictions established by the Road Transport (General) Act, that fact alone could not be said to be causative of the accident even if, which is not necessarily the case, the particulars of the criminal offence coincided with a breach of common law duty: Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427.
While QBE accepted that ENG had, on one or two occasions, unpacked the containers which were packed with Futurewood's product, counsel submitted that it would not be appropriate to extend ENG's duty to provide services which it had not undertaken to provide.
In this regard, QBE argued that ENG's previous experience unloading the containers which contained Futurewood's product (i.e. that the product was "very hard to get out") did not take into account the particular reason why the payload in the Container shifted and caused the Freightliner to roll. QBE further argued that there was no evidence that ENG knew or ought to have known of the risk created by insufficient load restraint, in circumstances where the friction between the loads represented a potential risk for instability.
Moreover, QBE points to the alteration in ENG's role as a mere carrier of Futurewood's product, and submits that there was no evidence that ENG knew or ought to have known that the Container was loaded in the same or similar manner as on the previous occasions. QBE further argues that even if ENG is imputed with knowledge of the packing of the Container by reason of past experience, such knowledge could not establish that ENG was aware of the relevant risk of harm.
QBE's principal arguments on this issue are centred upon whether or not a reasonable person in ENG's circumstances would have: 1. told Futurewood that its method of loading the containers carried a risk of rollover; 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; 4. instructed Brown to take additional care to travel more slowly than normal, not exceed 35kmh when travelling around curves in roads such as the curve where the subject accident occurred, and/or to brake gradually whilst travelling in a straight line and before entering curves such as the subject curve.
Generally speaking, QBE submits that ENG was not responsible for checking the manner in which the payload in the Container was secured - that this was the responsibility of Xue and the agents and employees of Hohechotec, and that such a role was not provided for in its contract with Futurewood - and, in any case, that it could not have done so in June 2012, because it did not have authority to open the Container. It further submitted that ENG's previous experience with unpacking Futurewood's containers could not have alerted ENG to the risk of rollover posed by inadequate load restraint.
I am not convinced by these submissions. While I accept that ENG was not responsible for the packing of the Futurewood's containers, ENG's prior experience with several containers of Futurewood's product (all of which were packed in the same way) meant that a reasonable person in ENG's position would have assumed that the Container which was involved in the Rollover was likely to be packed in that same (possibly inadequate) manner.
Regardless of whether a reasonable person in ENG's position would have made such an assumption, at the very least, a reasonable person would have made contact with Futurewood to find out how the Container's load had been restrained, and to obtain an assurance that it was properly packed and secured. In the circumstances of this case, a mere assumption on the part of in ENG that the Container was adequately secured was insufficient to discharge its duty.
Moreover, it is not sufficient for ENG to submit that it did not know of the risk created by insufficient load restraint in circumstances where, the stability of the payload depended upon gravity and the friction between the packages represented a potential risk. The question is one of objective reasonableness, namely what were the precautions which a reasonable person would have taken in the circumstances. The circumstances demonstrate that ENG was well aware that Futurewood's products had a history of being inadequately packed in their containers. A reasonable person in ENG's position, as an experienced transporter of heavy vehicles, ought to have known that a poorly secured load within a container brought about a foreseeable risk of load shift within the container, which could cause a vehicle such as a Freightliner to become unstable and to roll over when rounding a curve.
I am satisfied that a reasonable person in ENG' position, in circumstances where it was unsure as to how the Container was packed, and in light of the significant weight of the Container, would have at least inquired of Futurewood as to the manner of packing of the Container. This enquiry would have been easily made and easily responded to: all Elms had to do was to forward the email sent to him by Ally to which was attached the pictures of the packing of the Container to Generakis.
Finally, QBE did not submit that the risk of the Rollover was not insignificant. It clearly was. As a result, I am satisfied that the provisions of s 5B have been made out in relation to ENG.
I also add that I accept Brown and Futurewood's submissions that the expert evidence and the temporal connection between the load shift and the Rollover allows me to draw the inference that ENG's failure to take reasonable precautions (either by informing itself as to the restraint used in the Container and taking action to correct any inadequacies, or by instructing Brown to drive more cautiously and at a slower speed around corners) was a necessary condition of the Rollover. In addition, I am persuaded by Brown and Futurewood's submissions, that ENG's negligence was necessary to complete the set of conditions which were jointly sufficient to account for the occurrence of the harm, namely, the combination of Brown driving the Freightliner at an excessive speed and the unsecured load in the Container.
QBE's second submission resisting a finding that ENG be characterised as a tort-feasor was that ENG's failure to take the relevant precautions, such as inquiring as to how the Container was packed, and adjusting its manner of transporting it accordingly, or, having made such inquiries, instructing Brown in the manner that he should have driven the Freightliner, could be causally related to the Rollover.
I have found at [259]-[263] above that the payload in the Container shifted as the Freightliner began to navigate the curve in the highway. This shift reduced the SRT of the Freightliner, which, when combined with the excessive speed at which Brown was navigating the curve, caused or materially contributed to the Rollover. The background to this finding is that the expert evidence was that, if the load had been secured and in the middle of the Container, the Freightliner would have been on the edge of rolling over. The result of my finding is that the fact that the payload was inadequately secured was causally related to the Rollover.
My conclusion, therefore, is that had ENG not been negligent, the Rollover would not have happened.
For example, if ENG had made the relevant enquiry, and had found out that the payload was inadequately secured, a reasonable person in ENG's position would have requested permission to open the Container and to secure the payload properly or else, refused to transport the Container. Or, a reasonable person in ENG's position would have, as was suggested by Robertson, unloaded the payload from the Container and transported it on a flatbed truck, with appropriate load securing. In such circumstances, the load would not have shifted. Robertson described this as the "common industry first line of defence".
A further example of this is that if ENG did not know how the payload was secured in the Container, and it did not make such an enquiry of Futurewood, a reasonable person in ENG's position would have instructed Brown to drive the Freightliner cautiously around corners at a lesser speed, to reduce the risk of rollover.
The expert evidence was that Brown was driving the Freightliner too fast (45kmh), and that even if the load was restrained, it would have been at the point of tipping over at that speed. Larsen nominated a speed of 30kmh which included a safety factor of two, which he considered was necessary to eliminate the risk of rollover. Larsen also opined that the payload would have started to shift as soon as the Freightliner travelled at a speed above 30kmh on the curve, reducing the safe driving speed down to 42 or 43kmh.
Based upon these calculations, if ENG had instructed Brown to drive carefully around corners at a low speed of, for example, 30kmh, the unrestrained load would not have shifted and the SRT of the Freightliner would not have been reached. In those circumstances, the Freightliner would not have rolled over. Therefore, I am satisfied that ENG's failure to take the relevant precautions was causally related to the Rollover, and hence in that way s 5D(1)(a) of the Civil Liability Act is satisfied.
QBE's third and final submission was that, given ENG's contractual relationship with Futurewood, it would not be appropriate to extend ENG's scope of liability to the extent that ENG was responsible for the harm caused by the negligent packing of the Container by another party.
This submission fails on several grounds. First, while I accept that ENG's contractual obligations did not extend to requiring it to check that the payload in the Container was adequately secured, ENG cannot point to those circumstances as exonerating it from taking the precautions that a reasonable person in its position would have taken. This is especially in light of ENG's previous experience, which indicated that Futurewood had not adequately secured its product in the containers which it required ENG to transport.
Second, it is in the public interest that freight transporters such as ENG take responsibility for the loads which they are required to transport. Such wilful blindness, or such a failure to inform itself about the characteristics of the load that it is transporting, demonstrates a complete disregard for the responsibilities imposed upon drivers and controllers of heavy vehicles under the Road Transport (General) Act. Such action also fails to consider the safety of other road users. In that sense, a freight transporter's duty to take responsibility for the securing of the load which it is transporting falls squarely within the common law duty of one road user to take reasonable care for other road users.
As a result, I am satisfied that it is not inappropriate for the scope of ENG's duty to include taking reasonable steps to secure the load which it is transporting, or to instruct its drivers to drive in a manner which reduces the risk of rollover in light of an absence of knowledge concerning whether the load is adequately secured.
Therefore, I am satisfied that ENG can be characterised as a "tort‑feasor who is, or would if sued have been, liable". What follows is that Brown, Zurich and Futurewood are entitled to recover a contribution from QBE pursuant to s 5(2) of the 1946 Law Reform Act, subject to the issues raised by QBE in respect of the Policy and the operation of the Employees Liability Act 1991.

[43]

Can Brown Claim Contribution from ENG?

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."
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.
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.
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."
By virtue of that statutory CTP policy, namely the words "[t]he insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle", QBE argued that Brown was indemnified under that CTP policy. That he was fully indemnified is clear and is not in issue between the parties.
By recourse to the principles of vicarious liability, QBE submits that ENG would be liable for any tort committed by Brown in the course of his employment: New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [40]. Again, it is clear, and there is no issue between the parties, that at the time of the Rollover, Brown was engaged in driving the Freightliner in the course of his employment with ENG. Therefore, Brown would have been entitled to seek an indemnity from ENG in respect of any liability to the plaintiffs.
However, Brown did not make a claim upon ENG. Rather, as the driver of a registered motor vehicle, Brown sought and was fully indemnified by Shark Group's CTP policy with Zurich. QBE submitted that pursuant to s 3(1)(b) of the Employees Liability Act, Brown is not now permitted to seek indemnity (or contribution) from ENG pursuant to s 5(1)(c) of the 1946 Law Reform Act. QBE argued that this construction of s 3(1)(b) was supported by the legislative intention to ensure that an employee is always indemnified by his employer except where the employee is otherwise entitled to an indemnity in respect of that liability.
QBE drew attention to s 7 of the Employees Liability Act which provides that that Act has effect "… despite … any other Act or law …".
One textual feature of s 3(1)(b) is that it makes no reference to contribution - it merely uses the term "indemnity". This is different from s 3(1)(a) which directs attention to the position of an employee being excused from indemnifying or paying contribution (as a joint tortfeasor or otherwise) to an employer.
By its plain text, s 3(1)(b) excuses an employer from indemnifying any employee in only one circumstance, namely, if the employee is otherwise entitled to an indemnity for that liability.
In other words, the section deals with a circumstance where an employee has the benefit of two (or perhaps more) indemnities. In those circumstances, since an employee would have no outstanding liability once provided with an indemnity, the employer is excused by legislation from providing a second indemnity.
Section 3(1)(b) says nothing about precluding an employer from being liable to contribute (as opposed to indemnify) as a joint tort-feasor to any liability of an employee to a third party for their negligent conduct. QBE however submitted that, nevertheless, by reason of the words of the section when interpreted in accordance with the legislative intention, there is an inconsistency between s 5(1)(c) of the 1946 Law Reform Act and this legislation such that by reason of s 7 of this legislation, it prevails, and contribution cannot be obtained by Brown from ENG as his employee. Accordingly, QBE submits that the cross-claim by Brown against it (as it stands in the shoes of ENG) should be dismissed.
I cannot accept QBE's submissions that there is any inconsistency of the kind identified, insofar as Brown makes a claim for contribution under s 5(1)(c) of the 1946 Law Reform Act. First, the claim articulated by Brown is in substance one for contribution and not complete indemnity. Secondly, the text of the Employee Liability Act does not support the submissions. Particularly is this so because of the terms of s 3(2), which indicate that the legislature considered contribution to be separate from and not included within the term "indemnity". Thirdly, acting upon the proper principles of statutory interpretation, there is no warrant for, in effect, inserting the words "… and contribution …" to accompany "indemnity" in s 3(1)(b). The section has effect and meaning without these words.
There is a further reason not to accept QBE's submissions. The introductory words of s 3 require a coincidence of the tort for which, here, Brown and ENG would both be liable. The only tort here which fits that description is Brown's negligence in driving the Freightliner at an excessive speed in the circumstances. But, the claim for contribution by Brown relates not to any conduct by him but to ENG's liability in negligence for its own conduct in failing to act reasonably with respect to, putting it generally, the securing of the payload, and in allowing the Freightliner, in its then configuration and at its then excessive weight, to leave ENG's yard. There is, and can be, no suggestion that Brown was concerned in either forms of this negligent conduct by ENG. Accordingly, properly understood and analysed, s 3 has no application to the claim for contribution being made because that claim relates only to a tort for which ENG is liable which is not a tort committed by Brown, its employee. That is so regardless of the fact that the tort of Brown and that of ENG jointly contributed to the loss and damage suffered by the plaintiffs.
There is no reason arising from the Employee Liability Act to preclude Brown's cross-claim. Of course, that Act says nothing about the cross-claim brought by Zurich (in lieu of Shark Group) or Futurewood.

[45]

Is QBE Liable to Indemnify ENG?

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) …"
"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; …"
"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."
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".
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".
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…"
There is no dispute that the rollover of the Freightliner occurred during the Period of Insurance, nor is there any dispute that the harm suffered by the plaintiffs falls within the meaning of Personal Injury (as defined by the Policy), nor is there a dispute that the harm was caused by an Occurrence in connection with ENG's Business (as defined in the Policy).
Argument therefore proceeded upon the basis that clause 5.20 of the Policy applied to ENG.
QBE submitted that the first part of the exclusion (clause 5.20(a)) clearly applied, because both the Trailer and the Prime Mover were registered. It also submitted that the exemption (clause 5.20(c)) also applied, because the CTP insurance could not and did not provide indemnity to ENG because ENG was neither an owner nor a driver of the Freightliner.
QBE submitted that the words of the exclusion clause are sufficient to exclude indemnity under its policy. It accepts that it bears the onus of establishing that any claim brought by ENG is caught within the exclusion: Wallaby Group Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 at [7].
QBE submitted that the exclusion is clear in grammar and expression and means that cover for any liability which arises from the use, ownership or operation of a motor vehicle which is registered or required to be registered is excluded: clause 5.20(a).
It is to be recalled that ENG, the insured, owned the Trailer which was registered and which was being used to transport the loaded Container.
I accept that clause 5.20(a) excludes any claim of the kind made upon QBE by ENG, subject to the exception articulated in clause 5.20(c) of the Policy. It is necessary to consider the terms and meaning of that exception clause which may operate to limit the exclusion in clause 5.20(a) of the Policy.
It can be readily seen that the words in clause 5.20(c)(ii) have no relevance upon the facts to the present issue. The sole question is that posed in clause 5.20(c)(i), namely that exclusion does not apply to: 1. claims for personal injury; and 2. the CTP policy does not indemnify ENG with respect to the claims.
The claims made by ENG upon QBE are for indemnity with respect to the personal injury suffered by the plaintiff. This was not challenged. QBE submitted that the claims against ENG did not fall within the "exception" in clause 5.20(c)(i), and therefore the exclusion applied because the Prime Mover and Brown or its driver were indemnified under Zurich's CTP policy.
To the extent that ENG's claim for indemnity arose out of its own negligence, which did not include the negligent conduct of Brown, QBE submitted that if one of two causes of liability (here Brown's negligence) is subject to the exclusion clause in an insurance policy, then normally a policy will be interpreted as excluding liability even if the second cause (here ENG's negligence with respect to ensuring that the load was secured) falls within the insuring clause: see The Owners - Strata Plan No.68372 v Allianz Australia Insurance Ltd [2014] NSWSC 1807; Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corporation [1974] QB 57 at 69; McCarthy v St Pauls International Insurance Co Ltd [2007] FCAFC 28; (2007) 157 FCR 402 at [80]-[81] per Allsop J (as the Chief Justice then was).
In his most comprehensive review of the Wayne Tank principle, Allsop J concluded: "114. Once one concludes that, as a matter of construction of the contract, the insurer and insured have agreed that the cover does not extend to any loss caused by a particular cause, and that the loss was caused by that cause, the policy's lack of response can be seen as evident. It is only if one concludes that the parties have agreed that the policy will not respond if the excluded cause must be the sole cause, for the existence of a concurrent and not excluded cause to be relevant. Again this is a question of construction of the policy."
It is therefore necessary to pay careful attention to the wording of the Policy and, in particular, to clause 5.20. The Policy is described as a "Broadform Liability" policy. It commonly falls within the rubric of a public liability policy. The coverage clause (clause 1.1) indicates that QBE provides cover for ENG's legal liability to pay verdicts and legal costs in respect of personal injury (and other matters) which happen during the period of insurance. QBE also undertakes to defend ENG against claims which are brought against it. There is a maximum sum for QBE's liability to ENG.
As against this very wide coverage, there are a significant number of exclusions, some of which are conditional. By way of example, clause 5.4 excludes coverage for any contractual liability unless such liability would have arisen notwithstanding the contract. Clause 5.7 excludes claims for personal injury to any employee which arises out of, or in the course of, the insured's business and any claim in respect of which the insured is indemnified by a compulsory workers compensation policy. There is no "carve out" in this exclusion.
Clause 5.14 provides an exclusion for the rendering (or failure to render) professional advice and services. This exclusion is limited by exceptions in a number of ways.
One issue is whether the exclusion relates to losses, or perhaps claims, of a particular kind, or else the manner in which liability has arisen. An examination of the Policy relevant here leads to a conclusion that the coverage clause refers to the losses confronting ENG - "… liability to pay all sums …". That liability may arise from more than one form of conduct. In other words, it may arise through more than one cause. So much is recognised by the "carve outs" to the exclusions in clauses 5.4 and 5.20.
The coverage clause and the exclusions are expressed in very similar terms to those considered in Wayne Tank, and also the McCarthy case. It is not without significance that the first basis for an exclusion in this case is expressed in quite wide terms - "… liability in respect of personal injury …" arising out of the ownership by ENG of a vehicle which is registered or required to be registered. The carve-out in its terms does not refer to registered vehicles, but rather to the compulsory liability policy described in clause 5.20(b). The use of the word "that" in conjunction with "compulsory liability policy …" in clause 5.20(c)(i) seems apt to refer only to clause 5.20(b) and not clause 5.20(a). Other carve outs refer to the clause 5.20(a) exclusion: see clause 5.20(e) for example.
It follows from this textual analysis of the Policy that each of the exclusions in clauses 5.20(a) and 5.20(b) are to be treated separately. That conclusion derives from the use of the word "or" between these two clauses. Only one of those clauses refers to compulsory insurance policies - clause 5.2(b). Clause 5.20(a) refers only to the fact of registration or obligation to register a vehicle.
The Trailer here owned by ENG was required to be registered, and it was. However, it is accepted by the parties that it was not required to be separately insured under the CTP policy contained within the MAC Act. The parties accepted that a trailer which is only capable of being towed is, whilst being towed on a public street, covered for indemnity under the CTP policy issued in respect of the prime mover. This extended coverage does not constitute a policy of the kind described in the exclusion in clause 5.20(b).
It follows from this that the exception clause 5.20(c)(i) does not operate, as discussed above, on the exemption in clause 5.20(a). The result of this analysis is that the Policy does not provide any coverage to ENG for the clause with which it is confronted in these proceedings.
This conclusion has the effect that since the claims arise from the conduct of both Brown and ENG as tort-feasors, and that each caused the Rollover giving rise to the claim, that application of the Wayne Tank principle has the result that QBE cannot be required to provide indemnity for these particular claims where one cause has been excluded from damages.
In those circumstances, the QBE policy does not respond so as to require QBE to indemnify ENG for its negligence in the occurrence of the Rollover and the claims of the plaintiffs arising from that event. Since the Policy does not respond, all of the cross-claims brought against QBE must fail. Leave ought not be granted to Brown to commence or continue proceedings against QBE.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Legislation Cited (4)

Cases Cited (36)