Stillwell Trucks v McKay; Stillwell Trucks v TNT

COUNSEL : Appellant - ACA Bridge SC/I McLachlan Respondent - CRR Hoeben SC/RS Sheldon SOLICITORS : Appellant - Hunt & Hunt Respondent - Ebsworth & Ebsworth CATCHWORDS : NEGLIGENCE - no question of principle Makita (Australia) Pty Limited v Sprowles [2001] NSW CA 305 C Van de Ley NV v Bamfords Ltd (1963) RPC 61 Short v Barrett (CA unrep 5/10/90) Aardvark Security Services Pty Ltd v Ruszkowski (1996) 13 NSW CCR 1 CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 Piening v Wanless (1968) 117 CLR 498 Nominal Defendant v Halsbauer (1967) 117 CLR 448 DECISION : In each appeal; Appeal dismissed; Appellant to pay the respondent's costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40752-3/01 CL 9076/97

HANDLEY JA BEAZLEY JA CAMPBELL AJA

STILLWELL TRUCKS PTY Limited v KEVIN MCKAY and STILLWELL TRUCKS PTY Limited v TNT AUSTRALIA Limited

TNT contracted for the appellant to extend the wheel base of a prime mover to increase its capacity. The day after the prime mover was returned to TNT it rolled over while rounding a corner on the Pacific Highway. The driver sued the appellant for personal injuries and TNT sued for property damage and other losses. The trial Judge found that the prime mover rolled over because of a failure in the suspension which caused the air bags to deflate and that this was the result of faulty work done by the appellant. The trial Judge found for the driver and TNT and awarded $568,490.57 and $510,144.16 respectively. The appellant challenged the trial Judge's findings on liability and damages. HELD: The trial Judge's findings could not be disturbed. ORDERS (1) Appeals dismissed. (2) Appellant to pay the respondents' costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40752-3/01 CL 9076/97

HANDLEY JA BEAZLEY JA CAMPBELL AJA

STILLWELL TRUCKS PTY Limited v KEVIN MCKAY and STILLWELL TRUCKS PTY Limited v TNT AUSTRALIA Limited

3 CAMPBELL AJA: This is an appeal from a judgment of Judge Gibb delivered in the District Court on 14 September 2001. 4 The judgment dealt with two actions which were, by consent, heard together with the evidence in one to be evidence in the other. In the first action framed in negligence Kevin John McKay (McKay) sued Stillwell Trucks Pty Ltd (Stillwell) in respect of personal injuries. In the second action framed in negligence and breach of contract TNT Australia Ltd (TNT) sued Stillwell for property damage and other losses including workers' compensation payments made to McKay. Judge Gibb found a verdict for McKay and entered judgment against Stillwell in the sum of $568,490.57. Her Honour also found a verdict for TNT and entered judgment against Stillwell in the sum of $510,144.16.

5 It is convenient to say that there was no finding of contributory negligence against McKay and that nothing turns in this appeal upon the inclusion of a claim for breach of contract in TNT's action.

6 The appeal is in respect of liability in both actions and in respect of damages in McKay's action.

7 TNT was the owner of a Ford Louisville prime mover with a standard wheel base of 4,700 mm. Increasing the wheelbase to 4,850mm, another standard length, would increase the load the prime mover and trailer could lawfully carry. TNT engaged Stillwell to carry out that work. 8 From the tendered records it would seem that the prime mover was received by Stillwells at 6.03pm on 7 September 1994. Mr Harradine, who did the mechanical work, could not recall how long the prime mover was at Stillwells but said that he would expect a vehicle brought in for this type of work would be in the workshop for less than two days. 9 Mr Harradine carried out the modification work. He had done about 20 such modifications of Louisville prime movers by that time. I come later to discuss the work and its surrounding circumstances. 10 Mr Williams, an employee of TNT, picked up the vehicle from Stillwells on a date which Mr Bridge SC put in his written submissions as being 14 September 1994 immediately after the reassembly of the chassis. Mr William's evidence is broadly consistent with this. He drove the prime mover, without a trailer, to TNT's depot at Kempsey. He did not observe any abnormal behaviour on the part of the prime mover during that journey. 11 The discrepancy between the time from 7 September 1994 to 14 September 1994, on the one hand, and Mr Harridan's reference to two days may be explained by evidence which he gave that the records were at times inaccurate. It is not disputed that the vehicle left Stillwell's on the day before the relevant accident occurred. 12 At about 9pm on Thursday 15 September 1994 McKay attended the Kempsey depot of TNT and conducted a routine inspection of the vehicle before setting out for Sydney. The attached Barker platform trailer was loaded with a container which contained cartons of Milo. 13 At about 9:30pm McKay left the depot travelling with a truck driven by Mr Hudson and another driven by Mr Power. Of the truck McKay said: The vehicle seemed to me to be normal, it's just a little bit lighter in the steering, but that could be for tyre pressure or anything. I didn't notice anything unusual, no.

14 At about 11:15pm the truck was on the Pacific Highway heading South about 5km south of Nabiac when it approached a right hand bend after a decline in the road, turned over and slid along the road and verge injuring McKay and damaging the prime mover, trailer and load.

15 McKay, who Judge Gibb accepted as truthful and reliable, described what happened in the following passage taken from the judgment:

Q. Perhaps in your own words, can you explain as you were going up towards I think the crest of the hill, it's a slight incline as you described, what sort of speed were you travelling at there?

A. 85 to 90 kilometres an hour. ... A. As I came over the crest of the hill and started down the decline slightly, the truck seemed to give a little bit of a fishtail, a bit of a kick. I thought that I might have hit a patch of diesel oil or something on the road but the road was dry, there was no rain, it was a good road, and I never seen anything. It just gave a slight kick on the end, like .... (it had?) hit something slippery on the road, and I immediately took my foot off the accelerator because I didn't know what it was and the truck started to steer slightly to the left. I didn't touch the brakes because I didn't know what it was - that it definitely seemed like there was something mechanical. I was a bit reluctant to try and touch the brakes in case I caused a jackknife cause I didn't know what it was, so I had my foot off the accelerator and let the jake (engine compression) brake slow the vehicle down as I came down to the bottom of the hill. As I came down to the corner it started to steer off to the left. ... ...the whole unit, your Honour. The prime mover was steering the vehicle off to the left. It felt to me, myself, like it was an axle out of alignment and because I didn't know what it was I just kept my foot off the brake and let the vehicle slow down to the (right hand) corner. As I got to the corner the steering got lighter and I couldn't get around the (right hand) corner.

Q. When you say the steering got lighter, does that mean you had less control? A. Yeah, I had less control of the vehicle. I couldn't steer it back onto the road. I was trying to steer it back onto the road and I wasn't having any success. ... I got off onto the verge of the road into the grass section and I heard somebody (over the CB radio) saying, "Check out the sparks" or something to that effect which I thought they were referring to my vehicle, and the next minute it decided to lay down (capsize). ... It rolled over to the passenger side, the left-hand side. Q. ... Did it all roll together. A. The whole lot went together. Judge: Does that mean that the engine part and the trailer rolled equally or one went first. To tell you the truth, I wasn't looking but I would say the trailer or the prime mover started to go. It just went over in one piece. Traditionally it's just usually the trailer that starts to go.

16 Judge Gibb accepted that the truck rolled over because a rose joint at the upper end of an extension arm failed. This allowed the air bags which formed part of the suspension system to deflate leading to the roll over whilst the vehicle was in the corner.

The Judge accepted: ".... that, in the course of its modification works, when it had exclusive control of the Ford Louisville LTS prime mover, the defendant (through its agents or employees) (by act or omission) negligently:- caused or permitted damage to the rose or ball joint or (sic) the extension arm/levelling rod; or inadequately or improperly secured, attached or re-installed the extension arm/levelling rod, such that the extension arm/levelling rod came adrift by about a day later - on the evening of the 15 September 1994 - as Mr McKay drove the Ford Louisville LTS prime mover pulling the laden trailer. Without that negligence, the extension arm/levelling rod would not have come adrift. The negligence was thus causative of the capsize".

17 It was on the basis of these findings that the Judge entered the judgments the subject of the present appeal. Grounds of Appeal as to Liability

18 The Grounds of Appeal as to Liability are as follows: 1 Her Honour was in error in finding that during the course of any work performed to the front suspension of the Prime Mover by the Appellant the Appellant damaged the upper rose joint on the height adjuster extension arm.

2 Her Honour was in error in finding that in the event that there was any such damage, the Respondent had proven on the balance of probabilities that any such damage was a materially contributing cause of any failure of the upper rose joint on the height adjuster extension arm.

3 Her Honour was in error in finding that the failure (if any) of the upper rose joint on the height adjuster extension arm was, in any event a materially contributing cause of the accident.

4 Her Honour was in error in finding that any such damage to the height adjuster extension arm occurred in circumstances constituting liability in negligence or breach of contract on the part of the Defendant.

5 Her Honour was in error in finding that any act or omission of the Respondent (sic) (whether related to the height adjuster extension arm, the fitting thereof or otherwise) occurred in circumstances constituting liability in negligence or breach of contact on the part of the Defendant.

6 Her Honour was in error in accepting the evidence of Mr Geoff Senz (a witness called by the Respondent(s) as an expert) upon the basis that the witness did not satisfy the requirements for the expression of an expert opinion as required by Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305.

7 Her Honour was in error in rejecting the evidence of Mr Michael Griffiths (an expert called by the Appellant) upon the grounds that:-

The opinion of Mr Griffiths was preferable to those of Messrs Axup and Senz and ought to have been accepted by Her Honour;

Her Honour's conduct during the course of the evidence of Mr Griffiths and Her Honour's reasoning in rejecting such evidence in her judgment demonstrated that Her Honour failed to use at all or palpably misused her advantage.

8 Her Honour's conduct during the course of the trial and Her Honour (sic) reasoning in rejecting all evidence adduced by or favourable to the Appellant on the issues upon which Her Honour determined liability while accepting all evidence adduced by or favourable to the Respondent on the issues upon which Her Honour determined liability demonstrated that Her Honour failed to use at all or palpably misused her advantage to the extent that the whole trial miscarried.

9 Her Honour was in error in finding that the principle of res ipsa loquitur:-

(a) Had any application to the facts of the matter, and

(b) Provided any basis for determining liability in favour of the Respondent.

10 Her Honour was in error in finding in favour of the Respondent.

19 It is convenient to follow the order of the judgment below and to deal first with the issues relating to the immediate cause of the roll over itself. Although there is some overlap these issues involve principally a consideration of grounds 2, 3, 6, 7 and 8. 20 The view as to the immediate cause of the roll over which was accepted by Her Honour was substantially dependent upon the opinions of Mr Axup, an expert who had examined the truck and the crash site for TNT and Mr Senz, an expert engaged to express an opinion by McKay's solicitors. 21 However, the evidence of McKay and Mr Power, both of whom the Judge accepted after seeing and hearing them as truthful and reliable witnesses, played a significant part in the rejection of other theories as to causation advanced at the trial. 22 The Judge did not accept that a broken Z leaf spring upon the trailer was the cause. In part that conclusion depended upon acceptance of McKay's evidence that he could tell that a malfunction occurred at the rear of the prime mover not in the trailer. This explanation, that is the broken trailer spring, was one favoured by Mr Griffiths, an expert called by the appellant, later in the trial. Mr Griffiths' primary contention was that McKay had been driving at an excessive speed and this theory formed much of the appellant's case. The Judge accepted the evidence of McKay that he was not driving at an excessive speed. That evidence was supported by evidence from Mr Power and also evidence of a scientific nature from Mr Axup and Mr Senz to which it is unnecessary to go. 23 I should add that reference is made in the appellant's written submissions to other conduct of McKay being failure to keep a proper look out, annoyance with a driver who was following close behind or failure to keep the truck on the bitumen. It is sufficient to say that none of these matters were made out or, in the end, pressed as distinct from the question of speeding. 24 Mr Bridge of Senior Counsel, who appeared with Mr McLachlan of Counsel for the appellant, very properly conceded that it would be difficult to challenge the Judge's finding that McKay was not speeding. Although not so clearly, I take him to also concede that the finding in relation to the Z leaf spring would be difficult to displace. 25 The substantial thrust of the appellant's submissions on this issue was that the factual foundation was not available upon which Judge Gibb could draw, as the two experts did, the inference that failure of the rose joint caused the roll over. 26 To examine this issue it is necessary to go to the evidence of Mr Axup and that of Mr Senz. I deal later with a submission, which I do not accept, that the evidence of Mr Senz should not be regarded as that of an expert. 27 Having regard to some rather uncertain use of the names of parts at the trial it is appropriate that I first set down a short description of the mechanism of which the rose joint and extension rod forms part. 28 The prime mover was fitted with a Hendrickson HA Series suspension which contained four air springs (bags) designed to counteract the effect of load on the vehicle by being inflated or deflated as appropriate to keep the vehicle at the same height. 29 The amount of air in the bags was controlled by a single height control valve mounted on the chassis rail. The valve was operated by a levelling arm, which is lightly constructed being only 2mm thick. From one end of the levelling arm, connected to it by a rose joint, an extension arm (or rod) establishes a link to the suspension at the base of the nearside rear air bag to which it is connected by another rose joint. The extension rod is about 8mm in diameter and is also lightly constructed. As the chassis moves up and down the levelling arm lifts or falls thus operating the valve. It was not disputed that the extension rod and the levelling arm were fragile. Mr Senz described the extension rod as 'very fragile'. 30 Mr Axup, a former Chief Superintendent within the Traffic Department of the Victorian Police Force, with both practical and academic experience of accident investigation was accepted by Judge Gibb as qualified to give expert evidence in the area in which he claimed to be able to do so. She described him as an honest and professional witness who did his best to provide disinterested, expert assessments and to consider the data available to him objectively and professionally. She noted that she accepted Mr Axup's evidence and opinions. 31 In the appeal Mr Axup's qualifications as an expert witness were not challenged. 32 Engaged by TNT he attended the scene of the accident on 17 September 1994 and again on 18 September 1994. He also inspected the prime mover and trailer which had been moved from the site. A number of photographs were taken. In a report of 15 September 1999 he rejected the view that the roll over was due to excessive speed and put the view that the accident had happened either because the rear suspension of the prime mover was misaligned at the time of the rebuilding or failed between the time of leaving Kempsey and arriving at the scene of the accident. 33 Mr Axup strongly recommended that the drive axle group and suspension system should be examined by a mechanic totally conversant with the Hendrickson air bag suspension. Unfortunately, this was never done and the matter falls to be resolved without the advantage of such a report or the physical parts in question. 34 Mr Axup did, however, identify a failure in the levelling rod and lever attached to the suspension system. Judge Gibb was satisfied that he was confident that there had been a failure and that that failure had preceded the capsize. 35 Whilst the appellant's submissions tended to concentrate on alleged deficiencies in Mr Senz's evidence as to the failure of the upper rose joint, as Mr Hoeben of Senior Counsel, who appeared with Mr Sheldon of Counsel for the respondents, pointed out Mr Axup had given evidence to similar effect. Differences of nomenclature are of no significance. 36 As the Judge found both Mr Senz and Mr Axup noted that the extension arm/levelling rod was relatively frail and that it appeared not to have been damaged in the capsize, although far more robust beams and struts in the vicinity had been sheered or distorted. From this they concluded that the extension arm/levelling rod was not functioning properly before the capsize. 37 During cross examination by Mr Royle Mr Axup identified in photographs marked 35 and 37, which he had taken of the wreck, part of the levelling (extension) rod. He gave evidence:- Sorry ma'am, if - immediately above this joint here, in terms of the photographs, but actually below it in terms of the physical truck, there is a small rod, a straight rod, which runs up, and then is obscured by the chassis rail.

A. Yes, it's almost vertical, ma'am. That's part of the suspension of the truck. It's part of the levelling mechanism and that's part of the levelling mechanism.

Q. Royle: How is that rod connected to the levelling mechanism?

A. It's connected by a small joint to the levelling lever, which adjusts the air pressure in the . . .

From your observation of the truck and from the photograph are you able to say certainly that at that time, whether or not that rod was still connected to the rod, by means of the joint that you described? A. No sir, it wasn't. One of the other photographs, photograph 35.

A. Ma'am, in behind this circular washer. I'm sorry, sir, in here on the chassis rail.

Royle: Can I go up near the witness box your Honour? This is pretty important.

Her Honour: I can see, so long as he is angled towards me. He had his back between me and the photograph.

A. Just in under here, ma'am, there's what appears to be the end of the joint, the little joint which connects to the lever, the height adjustment lever.

A. There's a line, a hose, ma'am, which runs from the top of the chassis rail and it's the most forward of those, this one here.

A. Yes ma'am. Just in between it the large circular washer, you can see in behind there what appears to be or it is the little joint off the levelling rod.

Q. So in a perfect world, the levelling rod would be sitting on the top of that.

A. That one which is visible and the other one is supposed to join to that. That's part of the level. Part of the levelling mechanism for the system. 38 Mr Axup gave evidence that if the levelling arm is disconnected from the levelling (extension) rod the mechanism which tells the system whether there should be more or less air pressure is no longer effective. 39 He gave the following evidence: Q. I think you said yesterday that the levelling rod should normally be connected to; I think you described it as a joint.

A. There's a - there should be a joint there on the lever, which is that there, and that appears to be the joint there. . . .

Q. Then you've marked another joint on photograph 35, which you've described as "rose joint behind line".

A. That appears to be the top end of that rod in 37, with the rose joint on it, which should be attached to that lever. 40 Mr Axup then gave evidence the general effect of which was that he considered that the extension rod was not connected at both ends at the time of the roll over as it was not damaged - as a matter of observation - whereas much more substantial components were. 41 The evidence of Mr Axup amply supports the conclusion the Judge drew to which I have referred above. 42 Mr Senz, an Automotive Consultant, Member of the Institute of Automotive Mechanical Engineers, Associate Member of the Society of Automotive Engineers Australia with extensive experience in technical advice and in respect of the maintenance and behaviour of motor vehicles, was accepted by Judge Gibb as qualified to give expert evidence in respect of the issues arising in the matter. 43 He was not engaged by McKay's solicitors, it would appear, until late 1998 or early 1999. He did not see the prime mover or trailer in their damaged state although he inspected the prime mover repaired and in operation in January 1999. Mr Senz had available to him Mr Axup's report and photographs. 44 In his report of 19 February 1999 Mr Senz said: It is not unreasonable to suggest:- · McKay's account of the events can be substantiated. · The upper rose joint on the suspension height adjuster extension arm failed and caused the accident rather than excessive speed. · Stillwell Trucks recently worked on the suspension height adjuster during their modifications. 45 Despite the somewhat qualified language Mr Senz made it clear, in evidence, that he believed that the failure of the rose joint was the probable cause of the roll over. 46 Apart from its consistency with the events which occurred Mr Senz concluded that the rose joint had failed by reference to a number of photographs of which the main ones were taken by Mr Axup. 47 Photograph Ford 4, taken by Mr Senz, shows the levelling arm and extension arm or rod as discussed in my earlier description of the mechanism. Mr Senz comments in the annotation that although the components are lightly constructed they do not normally take heavy loads but could be easily bent if fouled or over stressed. 48 Photograph Ford 5 shows the mechanism with the upper rose disconnected and the annotation notes that the extension arm would fall down once that occurred. 49 Photograph Axup 35 was taken by Mr Axup at the scene of the roll over. Relevantly the annotation reads: This photograph however also shows the outer end of the height adjuster valve's levelling arm. By zooming in on the photograph we see what appears to be the rose joint ball. The end of the levelling arm is sitting in about the same position as shown in photograph "Ford 5". Despite the limited view the levelling arm shows no sign of twisting or distortion that might suggest it were overloaded or damaged in the accident. Although the photographs taken by Axup and myself don't show it clearly but there is a considerable clearance around the height adjuster levelling and extension arms. During the accident this clearance would increase as the chassis rail moved away with the collapse of the track rod. If we examine the levelling arm shown in photograph "Ford 5" we can see that it is rather flimsy in appearance being a thin piece of steel. Weakness of the levelling arm is critical to the cause of this accident because if the joint failed without bending the levelling arm then the failure occurred prior to the suspension collapse. In short the joint failed while the truck was in the corner and let the truck roll over by deflating the suspension. 50 Mr Senz goes on by way of summary to say: Close examination of the photograph near the damaged washer shows the height adjuster levelling arm rose joint failed prior to the accident. 51 Photograph Axup 37, also taken by Mr Axup, shows amongst other things a small section of the height adjusters' extension arm. The annotation reads: The arm is angled to suggest it's still connected at the bottom end and appears as though it has not been bent, although we can only see the mid section. Since the arm is relatively small in diameter compared with its overall length it will be very vulnerable to buckling therefore if the middle is straight it is highly probable the arm is straight. 52 Mr Senz concluded that the adjuster extension arm had fallen down behind the chassis without becoming bent. It is clear that that fact, in his view, supports a failure prior to the roll over. 53 I deal later with the possible corroboration of the absence of damage to the levelling arm and extension rod to be drawn from repair parts lists. 54 As Mr Hoeben pointed out Mr Griffiths' comment in his report as to what can be seen in Axup 35 is not a complete denial. He says: I was not able to positively identify the object as a rose joint ball. . . There is no substantiation in the photograph that the object Senz points to is the rose joint ball. Even if it is the rose joint ball, there is no substantiation that the rose joint failed. 55 Mr Griffiths accepted that the linkage was not intact, however, his position was that there was no evidence of when it broke. 56 Mr O'Keefe gave evidence that he did not see in photograph 35 anything resembling MFI 53 or any part of MFI 53. That MFI, which was tendered, was an extension rod with rose joints at each end. 57 As to O'Keefe's evidence on this point Judge Gibb said that he was neither disinterested nor testifying as an expert. 58 In her judgement Judge Gibb said: In submission the defendant's senior counsel noted that the extension arm/levelling rod had not been replaced as part of the repairs after the accident, from which it could be inferred that the rod had not been damaged in the accident. Mr Bridge SC also submitted that: There was no reference to the height adjuster extension arm being repaired or replaced by Buckley Truck Repairs, the business which carried out the repairs to the prime mover (Exhibit G). The evidence is that one would expect there to be such a reference in the repair quotation.

Quite so. The plaintiffs urged that the same inference be drawn - and I do draw that inference. The extension arm/levelling rod were (or, if one piece, was) not damaged in the capsize.

Mr Senz and Mr Axup -whose respective opinions I accept - proffer the following logic. · The extension arm/levelling rod is required to be connected at both end (sic) to function properly. · The extension arm/levelling rod would have been damaged in the capsize had it been under any pressure. · It would have been under pressure if it was connected at both ends. · The extension arm/levelling rod was not replaced after the accident; therefore it was not damaged in the accident. · Therefore, good condition of the extension arm/levelling rod after the accident is proof that before the capsize it was not under pressure and therefore not connected at both ends (and therefore that it was not functioning properly).

I accept that reasoning - and that conclusion. It does not, of course, explain how - by what mechanism - the extension arm/levelling rod ceased to be connected. Mr Senz says that the same conclusion is demonstrated by the air bags having deflated before the accident. That, he says is a consequence of the failure of the extension arm/levelling rod caused by it having come adrift at its top anchor point. The air bags deflated before the accident: ergo the rod was adrift before the capsize. I accept Mr Senz' opinion in that respect. I find that the extension arm/levelling rod had come adrift from the upper anchor point - at about the rose joint - before the capsize: the failure of the relevant point of contact therefore preceded the capsize. 59 I should observe that the non replacement of the extension arm/levelling rod was not the only basis upon which the Judge had found that the parts were not damaged in the roll over. She accepted the opinions of Mr Senz and Mr Axup that inspection of the photographs showed that to be the position. 60 Mr Senz did not rely upon non replacement in his reports. Mr Branson in cross examination took Mr Senz to a note he had written upon the list of parts which appears to have been made available to him with his first instructions. On one page he had noted "no air valve". He gave evidence: Q. For what reason did you write that on that copy document. A. I was looking to see whether or not the height adjustor valve for the suspension had been replaced.

Q. For what reason were you doing that. A. If the rose joint had failed from overloading brought about by the accident, then it is a reasonable chance that an air valve would be replaced. ... A. I was not able to find the - a new air valve in the parts list.

Q. Did you draw any conclusion from that, or not, please. A. Well, either it wasn't replaced and the old valve was put back on, or they had not put it on the quote. ... Q. Did you or did you not come to any view, based on the absence of any record in the quotation of reference to repair of air valve, as to how this affected any opinion that you have about the capsize. A. Well, it supported the view that the air valve was not damaged during the accident. 61 A difficulty arises in that Exhibit G includes a list of "additional parts on re-inspection". On that list there is an item "Air Height Control Valve". 62 Mr Bridge submits that, having regard to the note Mr Senz made, that must be a different valve. That argument depends upon Mr Senz having had the additional list when he made his note and that is by no means clear. 63 Mr Hoeben referred to the item in Exhibit G and said:- ...For what it's worth your Honour...there is a reference at item 8 to the air height control valve but which one doesn't know but that's the thing that sits on top. 64 Mr Bridge takes the position that the air valve referred to in that exhibit is not the one in question and Mr Hoeben appears to accept that that is not known. The question was not explored at the trial and must be regarded as unclear. 65 It is agreed that there is no reference to levelling arms, extension rods or rose joints in the list. Having regard to Mr Senz's note it occurs to me that the items might be regarded as part of an assembly and referred to as such for replacement purposes. This, however, is unclear especially as the parts list is very detailed. 66 As I have pointed out Judge Gibb's finding as to the failure of the rose joint did not depend upon the question of non repair. 67 In my view no ground has been shown for interfering with Her Honour's findings of fact as to the immediate cause of the roll over. 68 Ground 6 was referred to by Mr Bridge as the Makita Point. I doubt that the points sought to be made in the submissions derive any particular support from that decision, however, it is appropriate to refer to the statement of Heydon JA (2000-2001) 52 NSWLR 705 at 731 where he said: The basal principle is that what an expert gives is an opinion based on facts. Because of that the expert must either prove by admissible means the facts upon which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. 69 Here Mr Senz has given direct evidence that the photograph shows a rose joint. It is not to the point, so far as admissibility goes, that there may be other evidence relevant to the issue. 70 It was put in the written submissions that the use of other components and their position to assist in identifying the component in issue amounted to speculation and not expert opinion. Accordingly, it was put, Mr Senz's evidence should have been rejected as relying upon deductive "logic" which amounted to speculation. 71 In C. Van de Ley N.V v Bamfords Ltd (1963) R.P.C. 61 Lord Reid said at 71: Lawyers are expected to be experts in the use of English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter of evidence. Where the evidence is contradictory the Judge must decide but the Judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witness appears to be most worthy of acceptance.

The case is not directly in point, because it was a patent case concerning a hayrake. The issue was anticipation and as Lord Reid had said: The question was what the eye of the man with appropriate engineering skills and experience would see. 72 Nonetheless, the passage gives guidance on a wider basis. Certainly Meagher JA so considered when in Short v Barrett (CA, unreported, 5 October 1990) he made reference to part of the passage in dealing with the use made by a trial Judge of photographs in an occupier's liability case. 73 In my view the use of other components in a photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification. 74 Mr Senz relied in part upon a diagram, which is exhibited, of a HAS series Hendrickson suspension whereas the vehicle was fitted with a HA series suspension. No significant difference was suggested other than that the rose joint was of a different type, a circumstance which it was conceded on the hearing before this Court was of no importance. 75 Mr Senz also relied in part upon his observations of trucks and their suspensions as he drove about his affairs. It was put that such observation was not a proper basis for an expert opinion as to which type of extension rod was fitted to the prime mover. As I have mentioned this issue was in the end of no significance. In any event I consider that appropriate observation by a suitably qualified person may well properly found the expression of an expert opinion. 76 The written submissions contain a general assertion that "the evidence offends numerous prerequisites of the law relating to admissibility as stated in Makita...…… Her Honour erred in accepting the evidence of Mr Senz......upon the basis that he did not satisfy the requirements to enable him to proffer an expert opinion". 77 I have dealt with the specific matters raised in the submissions both written and oral. As to this assertion I am content to make the general observation that I have read the passages of transcript relied upon and do not accept that Judge Gibb erred in accepting Mr Senz's evidence as that of an expert. She found, as on the evidence she was entitled to do, that Mr Senz had "relevantly expert opinion within the field of specialised knowledge constituted in training, study and experience". 78 It is convenient to deal with grounds 7 and 8 together. In the written submissions the second of the two substantive bases upon which the findings on liability were challenged was expressed as follows: Her Honour's conduct during the course of the trial coupled with Her Honour's reasoning as displayed in her judgment in rejecting all evidence favourable to the appellant but accepting all evidence unfavourable to the appellant demonstrated Her Honour either failed to use, or palpably misused her advantage to the extent that the trail miscarried. 79 Before turning to the more detailed submissions which dealt with this assertion and related matters it is relevant to note that no application was made to Judge Gibb to disqualify herself on the basis of bias or otherwise. 80 Further, whilst reference is made to the tone used by Judge Gibb in relation to a number of criticisms of her conduct of the trial, there was no evidence from Counsel or his instructing solicitor nor was the tape recording of the evidence tendered (See Aardvark Security Services Pty Ltd v Ruzkowski (1996) 13 NSWCCR 1 per Handley JA at 17). 81 Before considering the criticisms made in respect of the Judge's treatment of individual witnesses it is appropriate to make three observations of general application to my conclusions on this aspect of the appeals. 82 First, it is clear that the Judge took into account her observations of the witnesses whilst they gave, in most cases, quite lengthy evidence. The principles laid down in cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 are applicable. Indeed this is accepted in the way the relevant grounds of appeal are framed. 83 Second, other Judges may have used more diplomatic language than Judge Gibb in expressing conclusions as to credit, however, this is a matter of style and not error. 84 Third, it is not correct to assert that the Judge accepted everything put for the respondents and rejected everything put for the appellant. 85 For example the Judge rejected the theory advanced by Mr Foster that the rear axle had been misaligned at the time of modification. 86 The Judge accepted Mr Axup and Mr Senz in terms I have set out. She had commented upon their failure to note the breakage of the Z leaf spring, however, considered that their credit remained intact. No doubt the Judge was assisted by the way in which each witness responded to the lengthy and rigorous cross-examination which took place. 87 Judge Gibb found Mr Griffiths, the expert witness called by the appellant, to be partisan, evasive and unimpressive. She also observed that he was very reluctant to concede anything that might be against his client's interests in cross-examination. 88 My reading of the relevant portions of the evidence does not incline me to the view that the Judge misused the advantage of seeing and hearing Mr Griffiths rather to the contrary. 89 I do not consider it necessary to traverse the evidence as a few examples will suffice. 90 Mr Griffiths in his second report criticised the method by which Mr Axup had calculated the critical speed for the semi-trailer on the corner, yet when challenged in cross-examination he agreed that the method was an acceptable one. 91 His own calculations as to the critical speed produced a result significantly less than that of Mr Axup supporting his theory of excessive speed. Cross-examination established that the figures he used put the centre of gravity of the vehicle at an untenably high point. 92 Mr Griffiths later embraced the theory that the most probable cause of the accident was the fracture to the Z leaf spring on the trailer. 93 To overcome the difficulty in this theory that McKay said that the problem arose at the rear of the prime mover Mr Griffiths asserted that the driver would not be able to distinguish where it occurred. 94 This was not the view of McKay, a very experienced driver who had experience of trailer roll overs and of Mr Axup who considered that an experienced driver would be aware of such a matter. 95 Mr Griffiths, as the Judge found, had no relevant experience in driving vehicles of the type involved and did not hold a heavy vehicle licence. 96 Mr Griffiths dealt in cross-examination with some difficulties in relation to his first report by asserting that he had written it as "reactive" to Mr Axup's report, a matter which does not appear from the report. 97 Mr Griffiths concluded in his second report that he had seen no evidence of the suspension collapsing before the accident. 98 However, as Judge Gibb noted: Mr Griffiths proceeded on the basis that David Axup's inspection of the truck and photographs did not record evidence of "grinding" style marks on any components which could have explained sparks allegedly observed by other drivers. In that Mr Griffiths was in error - as he ultimately conceded. Mr Axup's report contained a simple textual and photographic explanation. 99 Sparks were observed by another driver which Mr Axup explained as likely to have come from the mudguard being pushed down onto a tyre as the suspension collapsed. He considered that marks on the tyre he found supported that view. 100 In re-examination Mr Griffiths, in the Judge's view, further reduced his credibility by introducing an alternative theory in respect of the sparks which in cross-examination he agreed was speculative and at odds with Mr Axup's photographic record. 101 A reading of the cross-examination of Mr Griffiths, in my view, shows a reluctance to deal directly with the questions put to him. Whether that was an inherent trait or reflected his approach to the case is very much a matter of impression. 102 I shall come to more matters relating to Mr Griffiths in dealing with other grounds, however, I consider that the allegation that the Judge misused her advantage in respect of Mr Griffiths is not made out. 103 Judge Gibb found Mr O'Keefe, the appellant's workshop foreman, an unimpressive witness who failed to bring an objective mind to the task. The written submissions put that this was inconsistent with her conclusion that he sought to be an honest witness. There is no necessary inconsistency between these two concepts. The Judge noted that Mr O'Keefe simply assumed that the work would have been done properly. She pointed out that he did not know what was done with the relevant vehicle. 104 Mr Harradine was also considered by the Judge to be an unimpressive witness who failed to bring an objective mind to the task. He, she considered, relied upon his faith in the job having been dealt with in accordance with the usual practice and was in obvious error as to the completion of signatures and verifications which were not as he expected to find. 105 The Judge found that Mr Harradine was honest in what he said but that his omissions were at the contrived end of the scale, rather impairing his apparent frankness and that he was very reluctant to concede anything that he considered might be adverse to the appellant's interests. 106 Judge Gibb ascertained, when Mr O'Keefe gave evidence, that he and Mr Harradine had in the early days of the trial inspected a vehicle they believed to be the relevant one. She considered that the non disclosure of this fact, as she put it, raised significant concerns about his degree of frankness. 107 Mr Bridge had not lead from Mr Harradine, not considering it relevant at that stage, the fact of the inspection and no other questions were asked of him calling for its disclosure. In these circumstances I do not think that the Judge was entitled to use the omission as she did in her evaluation of Mr Harradine's credit, however, when other factors are taken into account, together with the conceded limitations on the evidence Mr Harradine was able to give, I do not consider that the error had any significant effect. 108 Mr Bridge put that Judge Gibb was not entitled to find each of Constable Stringer and Mr Smith singularly unimpressive witnesses of very little credit. 109 Constable Stinger and Mr Smith, an RTA Officer, had attended the scene. They both obviously had a preconception that excessive speed was the cause of the roll over. 110 Mr Bridge said in address that the Judge was perfectly entitled to consider them mistaken and clearly wrong. He conceded that he could not reinstate them and did not try. He did, however, put that the Judge's conclusion as to the witnesses, as expressed by her, was an example of the way in which the Judge has "blackened all of the witnesses called by or on behalf of the defendant". 111 I have earlier commented upon the language used in dealing with credit. In view of the concession made by Mr Bridge I do not need to examine the evidence of these witnesses further, beyond observing that the Judge commented, with convincing illustration, upon the reluctance of Mr Smith to make appropriate concessions. 112 The written submissions draw attention to the fact that Judge Gibb accepted McKay as an honest and straightforward witness despite the fact that "he may have been rather less than frank in the steps taken to obtain and maintain his Western Australian driver's licence". The Judge clearly considered this essentially peripheral matter and then reached her conclusion as to McKay's credit having heard and seen him in the witness box over an extended period. 113 The written submissions note that Judge Gibb accepted Mr Power's evidence as, amongst other things, corroborative as to speed and that she found him an honest witness. This despite the fact that he had earlier made a statement that his truck was 400 metres behind McKay's at the time of the accident. Mr Power gave evidence which, having seen and heard him, Judge Gibb accepted established that the statement was wrong. 114 The Judge set out in her judgment in considerable detail how she assessed the witnesses, those she accepted in part or in whole, and those she did not. Taken as a whole I do not consider that there can be demonstrated any failure to use or misuse of the advantage of the trial Judge. 115 It was put in the written submissions that Judge Gibb conducted the trial as an inquisitorial rather than an adversarial process and that as a result the trial miscarried. 116 Mr Bridge supported that contention by reference amongst other things, to the number and nature of questions asked by Judge Gibb during the course of the trial. 117 During the cross-examination of Mr Harradine by Mr Sheldon he asked 229 questions and Judge Gibb asked 75. When Mr Royle cross-examined he asked Mr Harradine 75 questions and the Judge asked 27. 118 The matter to which Mr Bridge went in some detail was the cross-examination of Mr Griffiths. During Mr Royle's cross-examination he asked 359 questions and Judge Gibb asked 221. During Mr Sheldon's cross-examination he asked 381 questions and Judge Gibb 7. During the whole cross-examination 740 questions were asked of which the Judge asked 228. 119 Mr Bridge submitted that the Judge had taken over the conduct of the cross-examination. 120 We were supplied with a list of the transcript references upon which Mr Bridge relied and I have read all of them. Mr Bridge dealt specifically in address with a number of the passages and I shall go briefly to some of them. 121 Before I do that I make the observation that a reading of the references left me with a firm impression that it was indeed difficult to get Mr Griffiths to deal directly with the question being put to him. The general nature of the questions were attempts to ascertain Mr Griffiths' position on particular issues or questions rather than any attempt to press a particular view or position upon him. 122 A number of questions put by Mr Royle were followed by a question from the Judge: Q. Mr Griffiths, simple question, did you have more information about the modification. A. Yes, I did. 123 On the basis of what had gone before I see no proper objection to that question. 124 There was a passage in the cross-examination dealing with an issue relating to the question of sparks in which Judge Gibb asked some 21 questions and also interrupted Mr Griffiths on a number of occasions. Whilst it is clear that the Judge was endeavouring to obtain Mr Griffiths' view on the probable cause of the sparks and the sequence of events, I am of the view that the Judge would have been better advised to have been more limited in her intervention at this point. 125 At one point the Judge asked: Q. Mr Griffiths you're going to have to pick a fence and sit on it, that the suspension collapsed before, during, after or don't know. A. Just before or during, considering that in isolation. 126 This hardly sounds an appropriate question to an expert, however, it is understandable in a context where there were a limited number of possibilities and it was proving difficult to get Mr Griffiths to make clear which one he favoured or whether his position was that he did not know. 127 Mr Bridge criticised a statement by the Judge "Mr Royle, I think by the end of this we're all going to be confused, I think you're going down Mr Griffiths' path, one at a time please". 128 This observation was made, however, after Mr Royle had asked a wrapped up type question which did not assist to clarify matters. His question involved a number of concepts just as did the preceding answers by Mr Griffiths. 129 As I read these passages the Judge was trying to get both Counsel and witness to simplify and clarify their questions and answers. I consider that, in the context, she was entitled to do that. 130 Soon after this exchange the following occurred: Bridge: I accept that, your Honour. Could I raise one other matter? I am reluctant to do so but we're having your Honour asking a lot more questions than Mr Royle. Now, Mr Royle and Mr Sheldon, without being too overly pleasant to them, they are more than capable of doing so. Her Honour: They are quite competent to run their own case. I am having extraordinary difficulty in understanding the answers I'm getting. Bridge: I just raise the concern. Royle: I can indicate for my part I am more than happy for your Honour to ask the questions if it brings to light the evidence in your Honour's mind better than I asking the questions. I just indicate that. 131 Mr Bridge thus did raise with the Judge the issue of the number of questions but he did not suggest any other vice in them. It is not to the point that Mr Royle did not object. 132 Mr Griffiths was asked a question based upon a number of assumptions. The question referred to the suspension and collapse. I should have thought that was, in the context, clear enough; however, Mr Griffiths supported by Mr Bridge sought clarification and the Judge said: Her Honour: "Collapsed" means broken, not there, smashed, stolen and any other verb you care to intersperse. We will come back to how it happened. I don't think Mr Griffiths had any difficulty with the word "collapsed", did you Mr Griffith? We are not asking how, we are asking fact, you don't have any difficulty with the word "collapsed"? 133 As Mr Bridge put the observation was not courteous. It no doubt expressed a measure of, in my view not unjustified, exasperation. 134 The same assumptions were put and there was an unfortunate fault in the recording equipment. The Judge said after resumption and a brief account of where the evidence had got to: Now, it may be that as a matter of fairness Mr Griffiths should see the transcript before he goes anywhere further on assuming the same four, because I suspect Mr Griffiths' recollection may have been a trifle distracted of late. So unless you are to (take) a more simple path, we might resume tomorrow with the transcript, so that Mr Griffiths can find out what the four assumptions were before he was sirened out. 135 It is common place for a Judge to form the view that a witness, particularly during cross-examination, is beginning to tire and become distracted and there is nothing I can see worthy of criticism in the Judge's actions at this point. There was some speculation as to the reference to "sirened out". I think it clear enough that the Judge was referring to the interruption of recording whilst Mr Griffiths was giving his answer. Indeed the transcript records the use of a new tape thereafter. I would think it likely that there had been an audible warning of completion of the earlier one. 136 Complaint is made of the warning given by the Judge to Mr Griffiths, in unexceptionable terms, of the consequences of still being under cross-examination. There is no substance in this complaint. 137 During some cross-examination relating to the calculation of critical speed the Judge asked a question: Her Honour: I thought Mr Axup had used a different model, and we went down this discussion yesterday, it was delightfully short because you said he had used a different approach and it was a perfectly respectable approach. 138 Mr Bridge put that the reference to "delightfully short" was gratuitous. This is to misunderstand the reference. The Judge was referring to the short and simple method of calculating critical speed used in Mr Axup's report as contrasted with the considerable more complicated calculation favoured, initially at least, by Mr Griffiths. 139 Judge Gibb did press Mr Griffiths for an answer in relation to an aspect of the method of calculation in the following passage: Q. Mr Griffiths, when you wrote that report did you then hold the view that you told me about yesterday morning, that it was a perfectly respectable approach that Mr Axup had taken, albeit that you had used a different variable? A. What I said was, and I don't recall my exact words . . . Q. Did you hold the view, yes or no? A. What I was trying to say was that it's an alternative way of approximating things . . . Q. Did you hold the view or not then? A. It's an acceptable alternative . . . Q. Mr Griffiths I will ask you only once more, did you hold the view then or not?

OBJECTION (BRIDGE). CROSS EXAMINING WITNESS. Q. Mr Griffiths, in October 1998, what view did you hold? A. I held the view that the proper way to do this was to do a computer model, and to obtain all the variables and to work out a speed in a dynamic sense. 140 When Mr Bridge objected the Judge did alter the form of her question, however, in neither case did she seek to force a view upon Mr Griffiths. 141 In oral submissions Mr Bridge pointed to an occasion on which Mr Royle, Counsel for McKay, asked Mr Griffiths would he care to do an exercise in calculation which had been referred to. Mr Griffiths said that on the spot he would not. The following occurred: Her Honour: Mr Griffiths may need a calculator. Do you have a calculator and a pen and paper. A. I think I have. I don't know. . . . . . . . . Her Honour: Do you have some pen and paper and whatever you need, Mr Griffiths. If were going to do maths on the spot you might well have your bits of paper. A. Look, I don't think it's reasonable to ask me to do that here. I'll do it during the lunchtime break or something. 142 Mr Royle pressed the matter, Mr Bridge put that it would be oppressive to force Mr Griffiths to do the calculations in the Court environment and the Judge offered an adjournment for them to be done. 143 There is nothing unusual in an expert doing calculations in the witness box. So far as appears from the transcript, there is no reason to consider that the Judge was not being helpful rather than difficult. 144 During Mr Sheldon's cross-examination there were very few questions from the Judge. It may be that by then the Judge had a sufficient understanding of the position taken by Mr Griffiths upon the relevant issues. It may be that Mr Sheldon had learnt from Mr Royle's difficulty and asked shorter and more direct questions of Mr Griffiths. Whatever the explanation the absence of questions hardly supports Mr Bridge's contention that the Judge had taken over the cross-examination. 145 Mr Bridge relied upon the principles discussed in Aardvark Security Services Pty Ltd v Ruszkowski (1996) 13 NSWCCR 1 a case which, amongst other things, dealt with allegations of excessive and inappropriate questioning by the trial Judge. Handley JA said at 18: It is desirable that the trial Judges, as a general rule, should refrain from cross-examination as opposed to mere clarification of existing evidence, until after the witness has completed his or her evidence-in-chief and been cross-examined by the Counsel or solicitor appearing for the other party. Judicial restraint during evidence-in-chief and cross-examination will minimise the risk of the trial miscarrying and the Judge being seen as apparently biased.

Mahoney JA said at 14: It was submitted for the appellant that the trial had miscarried because the trial judge had interfered excessively in the questioning of witnesses. What a judge does during the course of the examination of witnesses will depend upon considerations such as the need to clarify answers, remove obscurities, and the like and the need to ensure the fair conduct of the trial. A Judge must, of course, remain conscious of his role of judge and the need to preserve both the substance and the appearance of what that involves. Ordinarily, justice will be more likely to be achieved if the questioning of witnesses is left to the parties. But circumstances may arise in which it will be appropriate that the judge intervene in the questioning or that he himself ask questions. Witnesses may become confused or overborne or otherwise evidence may be given which, from the transcript alone, may be misleading or, at least, not give a true picture of the effect of what was said. I would not exclude the possibility that, subject to appropriate limits, a judge should intervene to ensure that the trial proceeds justly and will be seen to have done so.

Experience suggests that ordinarily this may best be done at the end of the examination of a witness. But circumstances may require that the judge intervene or ask questions at other times. Kirby P, who was in the minority in considering that a new trial should be ordered, said at 9:

It is a matter of judgment as to when a judge crosses the line which divides permissible case management and desirable disclosure of tentative thinking from such undue interference as creates a real danger that the trial becomes unfair. Cf E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA). In this case that line was crossed. The questions were far too numerous; inappropriately asked before the representatives of the parties had had the opportunity of leading or questioning witnesses; asked in a form, frequency and consistency which suggested the direction to which they were targeted; and in at least one case, asked in terms that involved a plain departure from the neutral performance by the judge of his judicial functions. 146 Without going to the facts of the matter it can be said that the Judge's questions in that case had a clear direction in favour of the applicant. The Judge asked one quarter of all questions in the trial. On one occasion the Judge commenced a question with the words "I am telling you...". Yet the majority did not consider that a new trial should be granted. 147 I do not consider that Judge Gibb's questions displayed a direction in favour of either party, nor were they, so far as the transcript discloses, hostile or destructive. Whilst some did show a measure of exasperation I consider that the Judge was essentially seeking clarification in order that she might understand the position the witnesses, in particular Mr Griffiths, adopted in relation to the various issues. 148 I do not agree with Mr Bridge's submission that Judge Gibb had conducted the cross-examination of Mr Griffiths and "not getting the answers she wants" used it as a basis for destroying his credit. The Judge sets out in her judgment in detail why she does not accept Mr Griffiths and those reasons go far beyond the field of his answers to her questions. I find them convincing. Likewise I do not agree with the submission that the number of questions made the trial in part inquisitorial rather than adversarial. 149 In my judgement the appellant has failed to establish that the Judge's interventions deprived it of a fair trial, resulted in her taking over the case for the respondents, or caused a reasonable apprehension of bias. I would reject these grounds of appeal. 150 Mr Bridge relies upon two passages in the judgment relating to the conduct of the trial as supporting "a feeling of disquiet in respect of the view that Her Honour has taken of the whole of our case".

The first passage is as follows: The defendant's lead counsel for the first half of the case was Mr Branson QC. He cross-examined the plaintiff's witnesses at length and engaged in lengthy and explosive court room theatrics, including a day long adjournment application. He expounding at length about prejudice claimed to derive from the plaintiff TNT Australia Limited's failure to produce originals of photographs in answer to a call made in the early days of the hearing. For the reasons dealt with in my separate judgment on the adjournment application (on day 7 of the hearing, 23 May 2001), I found that the position was otherwise, and the relevant photographs had been produced earlier. As it turned out later, remarkably similar photographs were contained in a subpoena packet produced in respect of a witness called by the defendant. That packet was present in the courtroom at all relevant times, and the relevant photographs were later tendered by the defendant. It also transpired that other photographs from the same source had been provided by the witness (Mr Smith) directly to the solicitor for the defendant on about the fourth day of the hearing but were mislaid in the solicitor's hands until very late in the hearing. It was followed by the observation:-

The defendant's replacement lead counsel, Mr Bridge SC, attended from 28 May 2001. He took a refreshingly direct, expeditious and professional approach to his task, and made concise and helpful written and oral submissions. But by then the factual issues had been canvassed at some length. The second passage is as follows:

I note that the defendant's pleading conceded no ground, and in opening address contested every issue and engaged in vigorous cross-examination and debate. The defendant retained fresh senior counsel starting from the third week. That involved a dramatic change in the style of presentation, approach to cross-examination, answers to calls for productions of documents, and indeed, volume and courtesy.

Without making any criticism of the conduct of the case by the very competent senior counsel retained late in the piece, and who conducted the balance of the case with some expedition, the hearing of the case was greatly protracted by days of cross-examination of the plaintiff's expert witnesses in the first two weeks. 151 There are two aspects to the criticisms appearing from these passages. One deals with the expenditure of time incurred by the appellant's approach to the conduct of the matter. The second refers in critical terms to the behaviour of Mr Branson. 152 As to the first aspect the last passage, coming as it does in the section of the judgment headed "costs", can properly be seen, in part, as providing assistance to a cost assessor. 153 Apart from that, a Judge is entitled to comment adversely upon unduly protracted conduct of a trial with the consequent expenditure of time and money and importantly, the loss of Court time that would have been available to other litigants. The attitude of the appellant in refusing to accept that it owed a duty of care to McKay until Mr Bridge took over the conduct of the case sufficiently illustrates an obstructive approach to the resolution of the dispute upon which Judge Gibb was entitled to comment. 154 If precedent is needed, in the patent case to which I referred earlier Lord Reid said at 77: My Lords, I cannot conclude without drawing attention to the over-elaboration of the preparation and presentation of this case. 155 As to the second aspect Mr Hoeben referred us to a number of passages which he submitted lead to a conclusion that Mr Branson's behaviour had been intemperate and that he appeared to have been trying to intimidate the Judge. I should refer briefly to two of them. 156 Six photographs taken by Mr Senz were admitted over Mr Branson's objection. Mr Royle then sought to approach the witness, Mr Senz, with the photographs. With omissions the transcript then reads: Branson: I object to further evidence being led from this witness. Her Honour: We'll find out what the question is first, Mr Branson. Branson: You Honour, the rules provide that . . . Her Honour: We'll find out what the question is first, Mr Branson. Royle: I show you in particular, first, photographs numbered 3. . Branson: I object to this line of questioning, your Honour. Will your Honour hear me, or not? Her Honour: Mr Branson, we haven't got to a question. I've already ruled, we'll come back to the question. Branson: I object to that question. It's showing the witness a photograph that's part - your Honour knows we did not have these original photographs in this Courtroom until Monday. Her Honour: Please don't raise your voice at me, Mr Branson. Branson: This is procedurally unfair to us. Her Honour: Please don't raise your voice at me, Mr Branson. Branson: I protest about it, your Honour. Her Honour: Objection noted. Branson: Your Honour, we're going to have to test these rulings . . . Her Honour: You're welcome to do that. Branson: . . . because the way this case is going, your Honour, it is miscarrying. We are being prejudiced, in fact, by what is happening in the witness box now. Her Honour: Thank you, Mr Branson. Branson: Will you direct that that be recorded, please. 157 There was a further interchange between the Judge and Mr Branson which, in part at least, showed them to be at cross purposes as to the distinction between recording evidence and transcribing the recording. Then the transcript continues: Her Honour: As noted at the beginning of the trial, there is a direction that there be a full transcript. Branson: Is your Honour refusing to give that specific direction? Her Honour: Mr Branson, we've been down this path. Branson: No, we haven't, your Honour. Her Honour: I have made a direction that there is a full transcript. If you wish - if you take exception to the content of any transcript you are welcome to raise the point at the time. There is a direction which applies equally to all counsel and all evidence, that it be recorded. I do not make express separate directions in respect of each counsel. If there is something omitted from the transcript, please identify. It will immediately be produced. Branson: Your Honour is not acceding to my request. I direct that your Honour have this noted now, specifically: that I have asked that your Honour direct the transcription department to note that my objection to this line of questioning is based on procedural unfairness and that your Honour has refused my application to stop Mr Royle from proceeding with this line of questioning. I asked that your Honour direct specifically that that be transcribed in this evening's transcript. 158 The use of the words "I direct" may have been a slip, however, even if that were so the whole incident supports Mr Hoeben's submission. No steps were taken then or later to "test these rulings". 159 A similar impression emerges from a later incident in which Mr Branson appears to give a direction to a Court Officer contrary to that just given by the trial Judge. 160 Mr Sheldon had indicated that he did not intend to lead evidence from Mr Foster but had him available pursuant to an undertaking. The following occurred: Her Honour: Mr Branson, do you want him for cross-examination, if he is not an appropriate witness. A matter for you; if you want him for cross-examination, he's yours. Mr Sheldon is not leading anything from him. Branson: Your Honour, the letter of 19 October 1994 . . . Her Honour: That was admitted on the basis Mr Foster was available for cross-examination. That was the objection, it was ruled. It's in. Branson: No, no. No, no, no. It was admitted on Mr Sheldon's undertaking to call him as a witness in his case. That's on the transcript your Honour. Her Honour: As a matter of fact, it's not but, Mr Sheldon, I suggest you put Mr Foster in the witness box right now. Sheldon: Thank you, your Honour. Her Honour: As a matter of fact, it's not, but we won't worry about that. Branson: I'll give you the reference. Her Honour: Mr Sheldon, can we have Mr Foster in the witness box. Branson: You've contradicted me and I'll set the record straight once again, not for the first time in this case either. Her Honour: I'll accept my friend's undertaking to call Mr Phil Williams and Mr Steve Foster. Your Honour noted my objection. That's it. Mr Foster, please be in the witness box. I was reading from Mr Branson's comments in relation to that document. Branson: Could you just pause, please, officer, I'm on my feet, your Honour, addressing you. Her Honour: Thank you Mr Branson, the witness is being sworn in. STEPHEN MICHAEL FOSTER (12:18PM) SWORN AND EXAMINED Her Honour: Q. Thank you, Mr Foster, please be seated. Mr Sheldon, the witness is now available in the witness box. Branson: I'm on my feet your Honour, I will not encounter from you any more discourtesy to me as senior counsel. Now permit me to read on to the record what I wish now before this witness commences evidence. Her Honour: What ever you like, Mr Branson. Whilst you're finding it we will have the witness's details, please. Mr Sheldon, so that we don't waste too much time, please begin. Sheldon: Thank you, your Honour. Q Could you tell me your full name please, sir A Stephen Michael Foster. Branson: I object in the most strenuous terms to your Honour's discourtesy to me. Her Honour: Mr Branson, if you . . . Branson: Errant discourtesy to me. 161 Subsequently, Mr Branson did read a passage from the transcript relevantly in the same terms as the Judge had said. 162 What so agitated Mr Branson is not readily apparent, however, his response to it was quite intemperate and, as I have said, supports Mr Hoeben's submission. 163 A passage of transcript I came upon is short but telling. 164 The Judge ruled that Mr Senz should be allowed to continue an answer, albeit the cross-examiner was contending that the reply was not responsive. 165 Such a situation is common, Mr Branson's response was, at least in my experience, unique. He said: I'll sit down while he's being non-responsive and I'll stand up when he's being responsive. 166 In the absence of an apology and the transcript does not show one, it would not have been surprising if the change of Counsel had occurred sooner. 167 In the circumstances I do not consider that the Judge can be validly criticised for commenting in her judgment upon the conduct engaged in by Mr Branson in the Court over which she was expected to preside. 168 Moreover, there is nothing in the long and detailed judgment to suggest that Judge Gibb's reasoning or judgment were in any way affected by matters arising from Mr Branson's conduct. Just as, it might be said, there is nothing to suggest that the judgment was affected by the complimentary remarks she made as to the way in which Mr Bridge completed the case. 169 I turn now to the issue of how the rose joint came to fail and whether the appellant had any relevant responsibility for that failure. Although there is some overlap these issues involve principally a consideration of grounds 1, 4, 5 and 9. I have dealt with the grounds directed to the acceptance of Mr Senz as an expert and as to the conduct of the trial including the acceptance or rejection of the evidence of witnesses on the grounds of credit. 170 A further preliminary issue remains to be dealt with in that Mr Bridge has submitted that the cases were not put on the basis of "inadequately or improperly secured, attached or re-installed the extension arm/levelling rod such that the extension arm/levelling rod came adrift...". His contention was that, having regard to the way the cases were conducted, the only available basis of a finding of negligence or breach of contract was damage to the rose joint. 171 Mr Bridge conceded that the particulars given were wide enough to cover the way in which the Judge approached the matter but put that they had been limited by the way the cases were presented. 172 If his contention is correct the appropriate remedy would be a new trial provided it appeared that some substantial wrong or miscarriage resulted (Supreme Court Rules Pt 51 r 23). 173 Mr Harradine had given evidence-in-chief that the modification process included the removal of the air valve from the chassis. He did not claim to recall the actual work done on the Louisville. However, he said that the usual procedure was to undo the nut at the bottom of the extension rod, which attached it to the suspension, unbolt the valve from the chassis and "take this whole thing out as an assembly". 174 The assembly would be the air valve, the levelling arm still joined by the upper rose joint to the extension rod and the rod itself including the lower rose joint. 175 In cross-examination Mr Sheldon took Mr Harradine to the re-assembly process. The following evidence was given: Q. … when it comes time to reassemble the truck with the extended wheel base, there is a sequence, as you've told us, is that the truck gets to a point at which it's ready to be tested. Is that right? A. Yes. Q. And that process includes reconnecting the extension arm to the height-control valve, doesn't it. A. No. Q. It doesn't? It involves connecting the threaded extension arm to the bottom plate of the suspension assembly. Is that right? A. Correct. . . . Q. … you have to do a nut up on the bolt which is at the end of the extension arm, don't you. A. Correct. Q. And can I ask you: is the process from beginning to end one in which you have to refer to any manual from time to time? A. No. Q. When it comes time to reconnect the extension arm, there are, are there not, manufacturer's guidelines as to the tension to be applied to the nuts by which the arm is reconnected. A. In a service manual, you mean, for that particular nut? Q. Yes. A. There's probably a standard value for the size of the nut, yes. . . . Sheldon: But that's not a manual to which you would refer while reassembling the suspension, is it? A. No. Q. And you would accept the possibility, wouldn't you, that you might inadvertently either over-tighten or under-tighten the nut? A. No. Q. Couldn't happen. A. No. Q. You've never over-tightened a nut. A. No. Q. Never in your time as a mechanic or as an aircraft engineer have you over-tightened a nut?

OBJECTION (BRIDGE) Bridge: Your Honour, I object to this, if only for the reason that I've detected many issues in this case, but not this particular one up until now. Her Honour: I think, Mr Bridge, it falls within the general class and is not particularly surprising in the context, unless it turns out to be a nut on a trailer. A. Not that I can recall. Sheldon: All right. Do you ever recall not tightening something sufficiently? A. No, I can't recall that, either. Q. Have you ever made a mistake in the course of your work? A. Yes, I'm sure I have. 176 This passage clearly raised an issue as to improper reassembly. An objection was taken and the Judge allowed it. 177 From thereon, whatever may have been the position before, there could be no doubt that it was an issue. Mr Harradine was available, Mr O'Keefe had not yet been called and Mr Griffiths, the appellant's expert, had ample time to consider the question before being called upon to give evidence. 178 An application could have been made to recall Mr Senz or Mr Axup for cross-examination on the point if it were thought that would assist the appellant's case. 179 Judge Gibb noted that Mr Sheldon's submission included the allegation "that damage done to the ride height arm adjuster or its improper re-installation were a cause of the roll over". She observed: The plaintiff's allegations of negligence, however, is framed rather more broadly that (sic) the defendant's submissions would seek to recast it.

It is clear that the submissions of Mr Sheldon primarily focused upon the probability of damage to the part, however, the above mentioned passage shows improper re-installation was also relied upon. 180 It was submitted that the issue was not put in terms to Mr Harradine and Mr O'Keefe. Its import was, in my view, sufficiently raised with Mr Harradine and the issue was thereafter clearly available to be dealt with by Mr O'Keefe if it were thought appropriate. As Mr Hoeben pointed out, neither was in a position to give evidence as to what was done with the actual vehicle as apposed to usual practice. 181 A question does arise in that on Mr Harradine's account of the usual practice, the upper rose joint was not disconnected. However, Mr Senz had given evidence that an alternative method of disassembly, indeed the one he preferred, would be to undo both ends of the extension rod. In these circumstances I consider this question is one to be dealt with on the substantive issue of negligence rather than on the present issue. 182 I consider that the issue of improper or inadequate reassembly was sufficiently raised and I would not order a new trial. 183 In order to consider Judge Gibb's conclusion as to the appellant's negligence in respect of the failure of the rose joint it is necessary to go in some detail to her judgment. That judgement collects much of the relevant evidence. 184 The Judge commenced her consideration, substantially, of this issue with a quote from Mr Bridge's submission as follows: Mr Bridge SC, the defendant's senior counsel, submitted that: (e) Furthermore, there is simply no physical evidence at all that the upper rose joint on the height adjuster extension arm was damaged (assuming it was damaged) during the course of the work [at the defendant's premises]...The only "evidence" adduced in support of the Plaintiffs' cases in this regard is simply some speculation made by Mr Senz, having dismissed excessive wear and manufacturing error as relevant factors... ...there is no evidence that the upper rose joint on the height adjuster extension arm was damaged during the course of its work on the prime mover. However, assuming this to have occurred, it is altogether another matter to suggest that any such damage was a materially contributing cause of any failure of the upper rose joint on the height adjuster extension arm. (Of course, all this assumes that there was in fact a failure of the upper rose joint on the height adjuster extension arm. There is no evidence which would entitle the Court to make a finding on the balance of probabilities on this issue.) But as to whether any such damage was a materially contributing cause of any failure of the upper rose joint on the height adjuster extension arm, it again needs to be borne in mind that there is no evidence as to the nature of any such damage said to have been caused by the Defendant. Indeed, the failure to have the relevant components properly analysed immediately following the accident has been commented upon by each Plaintiffs' expert (275, 473-474). Instead, the Plaintiffs once again rest their cases on speculation on the part of Mr Senz, who believes that as a consequence of the modifications, the socket on the upper rose joint was "split" (page 440) or "cracked" (page 261). Mr Axup does not support him on this issue. 185 After noting that there was no direct evidence of the damage having occurred whilst the prime mover was at the appellant's premises, the Judge observed that it was the submission of the plaintiffs that she should so infer and that Mr Senz had expressed his opinion on the issue. 186 Judge Gibb then set out the following passage from the submission of Mr Sheldon: ...the concession by Mr Senz that something "sounds a little like speculation" does not mean that it is, in fact, speculation. In fact, the implicit criticism made of Mr Senz as to the placing of the ride height arm adjuster to one side during the process of modification is a criticism that, as the evidence unfolded, proved to be without foundation. The evidence called by the Defendant clearly establishes that this was the mode of dealing with the ride height arm adjuster during modifications. So, while Mr Senz may have been speculating as to what happened with the ride height arm adjuster during modification he was, in fact, borne out in the speculation (if that is what it was) and, indeed, the whole process in relation to this evidence would only heighten the Court's favourable impression of Mr Senz as a witness doing his best to assist the Court in the unravelling of the factual material. Similarly, the final portion of Mr Senz'(s) evidence involving cross-examination by Mr Branson QC constituted no more than a concession by Mr Senz that if Mr Branson wished to label it guess work he could do so. The reality of the situation is that each piece of the puzzle which might have otherwise amounted to a basis for criticising Mr Senz was in fact supplied subsequently and, it turns out, the only real issue remaining is whether the rose joint could have been the cause of the accident. No other explanation is offered. This is despite the fact that a number of experts have attempted to deduce what the cause of the accident was. In these circumstances one would be entitled to infer that Mr Senz was probably correct and that the only logical explanation for the failure of the ride height arm adjuster was something done during the modification process. 187 The Judge then said: I accept Mr Sheldon's characterisation of Mr Senz'(s) evidence, as I do Mr Senz'(s) evidence. Mr Senz expressed his opinion that the joint was damaged whilst the part was stored at the defendant's premises during the works. He reached that conclusion after eliminating what he considered to be the other possible explanation for damage to the rose joint and his understanding of the practical circumstances likely to surround the work at the defendant's premises. 188 She then set out the relevant passage, with appropriate omissions, from Mr Senz's evidence as follows: Q. As far as the reason for your opinion that the rose joint failed, can you indicate what possibilities there are for the rose joint failing? ... A. Basically, there are three reasons why a rose joint would fail: the first one being that it was excessively worn; the second one being that it has some manufacturing defect in it, some flaw that arose during manufacture; or the third one is - is that it - that it's been overstressed or damaged after manufacture. Q. As far as excessive wear is concerned, what is your opinion of that being the reason for this rose joint failing, that is, the subject rose joint. ... A. Considering that it's - it's only really a few hours since the suspension assembly was removed from the truck, it would be highly unusual that a severely worn component would have been put back onto the truck by Stillwells. Judge: But at this stage we're in the realms of speculation. You don't know the age of the rose joint. Is that the case? A. I don't know the age of the rose joint but - Judge: After that we're in speculation, I think, aren't we? Q. Do you know approximately how many kilometres the rose joint has been functioning as it were. ... A. Okay. From my recollection the prime mover had travelled just under 200,000 kilometres. Q. Would you anticipate at that amount of use - assuming that it's as old as the truck - that it would be worn by that time? A. I wouldn't expect it to be excessively worn. Q. Therefore, the question I put to you is, on the basis that this part was disassembled - or disconnected - by Stillwells, if it was worn and replaced in a worn state what is your opinion as to the status of workmanship in so doing? ... A. It would untradesmanlike. Q. The second opinion that you had was that it was a - I think you described it as a manufacturing fault. A. That's correct. Q. In the situation of this particular truck is that a likely thing to have happened? ... A. I don't believe a component would last that length of time with a manufacturing fault sufficient to break it. Judge Q: So if it's 200,000 kilometres old it didn't have a manufacturing defect. Is that your opinion? A. I don't believe so. Q. Can you just elaborate on what the final option was. A. Was that it was damaged whilst the vehicle was being repaired. Q In what manner? ... A. Basically the - if the ball is rotated around too far and fouls, then that could overstress the joint. Now, that can happen in a number of ways, but basically it's a case of where the - the adjustable link - it's either taken off - disconnected from the axle down the bottom and then is swung up and tied to the air-control valve and sort of air-control valve and the link remain together. It would not be difficult to have the rose joint damaged during storage. Basically the parts are usually put somewhere to one side and then other bits and pieces dropped on top of them - a little bit like the kids' toy box - and - or it's a case that the arm itself is disconnected at the top and the bottom and then put somewhere in storage and something dropped on top which pushes the ball over too far to where it fails. Judge Q: Mr Senz, that sounds a little like speculation, doesn't it? A. Well, it does. ... Q. You've described three categories - excessive wear, manufacturing error and excessive load during the work being carried out at Stillwells - or damage during the work carried out at Stillwells. In your opinion is any of those more probably than not, or is it all speculation? ... A. In view of lack of evidence of damage on - in the photograph provided by Mr Axup, I believe it's highly probable that it was damage whilst the truck was being worked on.

189 To this reference I would add that in cross-examination Mr Senz gave the following evidence: Q. The failure of the socket was as a result of something that happened to it whilst the modification work was being carried on at Stillwell trucks. A. I believe that to be the most probable solution. 190 In referring to the mechanism of possible damage Mr Senz said, also in cross-examination: ...the basic theory behind it is that when the threaded extension arm was removed the actual removal from the vehicle itself, that would be highly unlikely to cause any damage to it. It is more a case of what happens after it's become disconnected. Basically the rose joint is a pivot - a ball and socket arrangement - and shall we say just the same as any of our joints and our bones. There's limited amount of movement and if in the storage, or in that the joint is taken to over much movement, or then its bumped, it can split the socket. 191 Mr Senz had referred to the prime mover travelling just under 200,000 kilometres. Mr Bridge mentioned a figure of 200,000 kilometres in his initial address, however, in reply he observed: I will be corrected if I'm wrong but I don't recall there being any evidence at all about the performance of the prime mover for 200,000 kilometres after (sic) the accident. The evidence is totally neutral about that. 192 It is clear from the context that Mr Bridge meant "before" rather than "after". He later said: We say there is no evidence one way or the other. 193 In fact the tendered report of Mr Smith of the Road and Traffic Authority noted a speedometer reading of 161418. The difference between that figure and 200,000 is of no consequence. 194 Judge Gibb observed that the evidence of Mr Harradine made Mr Senz's reference to the storage of parts seem rather less speculative than it sounded at first. She said: What happened whilst the parts were on the bench? It was a busy workshop, with 6 vehicle bays and one wooden storage bench where parts were stored. Parts were segregated as between different vehicles, but not as between each other. Parts might be moved, or relocated. Benches on which parts were stored might be used for other work. The storage methodology was substantially ad hoc and did not preclude parts from being at various times (sic). There was no system of monitoring or precisely locating or protecting fragile parts. 195 The Judge accepted the following submission of Mr Sheldon: Mr Senz was not challenged so as to suggest that the ride height arm adjuster was incapable of being damaged during the modification process. Once it is accepted that damage to the part was a possibility, even if the usual practice was followed, the issue becomes whether the circumstances of the accident suggest that to have been the cause. If they do then inference permits the drawing of the conclusion that it probably was damaged or otherwise improperly reconnected. Mr Senz, effectively, says that the ride height arm adjustment could have been damaged during the process of extending the wheel base of the prime mover... ... The thrust of the attack in cross-examination of Mr Senz was twofold: that he was indulging in speculation, and; that the rose joint could not and would not have been damaged in the modification process. The second challenge to Mr Senz was never made good. The limitations in his approach identified in the confrontation in cross-examination were never shown to be the critical criteria which that cross-examination implied. On the contrary, taking all of the evidence there is a clear basis for concluding that the ride height arm adjuster was both capable of being damaged and that an opportunity would have arisen during the ordinary modification process whereby the arm/joint could have been damaged. The Defendant's evidence does not exclude that possibility and does not seek to, indeed, nothing in the evidence offered by the Defendant rationally tends to reduce the probability of this having happened. Clearly the Defendant had access to ride height adjusting arms: if it were to be seriously suggested that it was a physical impossibility for the part to be damaged in the modification process, such as was suggested by Mr Senz, then the Defendant had the means of proving that proposition. The absence of evidence of that type would satisfy the Court that the arm/joint could have been damaged as suggested by Mr Senz. Once the absence of evidence from the Defendant as to that issue is given due weight it becomes obvious that the challenge to Mr Senz is merely attacking him at the edges: no one is prepared to say that the arm could not have been damaged during the modification process such as to permit it to fail in the way envisaged by Mr Senz. In those circumstances his evidence as to Axup photograph 35 becomes compelling. The opening proposition is, therefore, that there was the opportunity and the means by which the ride height arm could have been damaged during the modification process. Mr Senz says that he can see it in its damaged state. No one refutes the suggestion that (a) it could have been damaged in a relevant way and (b) that if damaged in the way it could have failed as suggested. Additionally, Mr Senz says that it likely occurred prior to the roll-over because if done in the roll-over it would have been bent - as to which he can see no suggestion. The Defendant's answer to this proposition, broadly, is that there was another explanation for the accident. ... The evidence of Mr Senz, which was not contradicted in its most important aspect, namely, firstly, that the ride height control arm could be damaged in the process of lengthening the wheel base, and, secondly, that such damage could have lead to the failure of the suspension so as to cause a roll-over similar to that which occurred would satisfy the Court of the balance of probabilities that the work done by the Defendant to lengthen the wheel base was the cause of the roll-over. 196 Judge Gibb noted the submission of the plaintiffs that the appellant was negligent (inter alia) "in that the performance of the work upon the rear axle and suspension assembly was so closely followed by the failure of that assembly as to bespeak negligence in and of itself res ipsa loquitur". 197 In that regard the Judge addressed the issue as to whether the prime mover was under the exclusive control of the appellant at the relevant time (Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 at 218). 198 The appellant had argued before the Judge and argues before this Court that the prime mover had passed from such control because it left the appellant's premises on 14 September 1994 and had been driven several hundred kilometres before the roll-over. 199 However, Judge Gibb considered that the acts or omissions relied upon by the respondents by way of negligence occurred (if at all) when the vehicle was within the appellant's exclusive control. She considered that the doctrine of res ipsa loquitur or the drawing of a relevant inference as to negligence by the appellant "whilst the vehicle was under its control" was not excluded by what later occurred in relation to control. 200 That approach depends upon a finding that the rose joint was in some respect defective when it left the appellant's control. Judge Gibb clearly excluded the likelihood of damage during the short period and distance after the prime mover left the appellant's premises. 201 It follows from Mr Senz's theory that he did not consider damage during that period likely having regard to the distances that vehicles of this kind are expected to operate over the likelihood of any such damage would be remote. 202 Mr Bridge did concede in address to this Court: For example your Honour I might be in a significantly more difficult position, obviously I would be, if in fact it happened when it was being driven between Milperra and the Sydney Harbour Bridge or Gosford or something on its way back home but there's simply too much over too long a distance which could have occurred in the meantime to consider the principle applicable here. 203 In my view, having regard to the nature of the vehicle and its ordinary use, there is no real distinction between being driven to, say, Gosford or to Kempsey and some way back. 204 Judge Gibb referred to a submission by Mr Bridge which referred to alternative explanations for the roll-over. The ones enumerated related to failure of the Z leaf spring, inadvertence by the driver and excessive speed. She said: But for the reasons discussed below, each of the alternative hypothesis proffered is demonstrably unavailable on the evidence. This is not a case in which the "plaintiff is in the unfortunate position of having to rely upon deduction from circumstances for every element in the conclusion necessary for his success." Much is proven by direct evidence and expert opinion. Mr Sheldon, submitted that the argument flowed thus: The facts establish a sequence of events which comfortably give rise to the inference that some neglect or error on the part of the Defendant caused the accident. That sequence is as follows: The Plaintiff retained the defendant to work on the vehicle; There were no prior problems with the vehicle; The Defendant performed the work on the vehicle; The performance of the work necessitated the removal of parts of its rear suspension and the reassembly of that suspension; There was the opportunity for the components of the rear suspension including the ride height adjustment arm to be damaged in this process; Eliminating speed as a possible cause leaves only one of 2 possibilities: failure in the prime mover or failure in the trailer; Failure in the trailer is unlikely to have been a cause for reasons discussed; This leaves the only explanation as failure in the prime mover suspension; (a) There is an inference that, since the suspension had been so recently worked upon by the Defendant there is a connection between the failure and the occurrence of the accident; (b) The immediately preceding inference is compelling when it is noted that the Defendant has not explained how the accident could have occurred so as to eliminate a contribution from the work it did: that is to say that the inference is open to be drawn and the Defendant has not shown why it ought not be drawn. I accept that submission, and I find that the sequence of events identified in his submission is in fact proven. There is indeed an inference that, since the suspension had been so recently worked upon by the defendant, there is a connection between the failure and the occurrence of the accident. There is indeed substantial material evidence supporting the plaintiffs' contention that the modifications to the prime mover undertaken by the defendant prior to 15th September 1994 provide an explanation for the accident. The issue is whether this is sufficient to satisfy me to the requisite civil level. 205 Her Honour then undertook a review of a considerable amount of authority dealing with the application of the doctrine of res ipsa loquitur and the drawing of inferences. I discuss aspects of this issue later. 206 Judge Gibb then said: As noted I find that the suspension system failed before (and caused) the capsize. It failed when the extension arm/levelling rod came adrift. Precisely by what means the extension arm/levelling rod came adrift I do not know. When it came adrift it caused or permitted deflation of the suspension air bags. ... I draw the inference that, in the course of its modification works, when it had exclusive control of the Ford Louisville LTS prime mover, the defendant (through its agents or employees) (by act or omission) negligently: s caused or permitted damage to the rose or ball joint or the extension arm/levelling rod; or s inadequately or improperly secured, attached or re-installed the extension arm/levelling rod. Such that the extension arm/levelling rod came adrift by about a day later - on the evening of the 15th September 1994 - as Mr McKay drove the Ford Louisville LTS prime mover pulling the laden trailer. Without that negligence, the extension arm/levelling rod would not have come adrift. The negligence was thus causative of the capsize. 207 I should note that in expressing her final conclusion on liability the Judge said: The defendant breached that duty when it permitted the prime mover to depart its premises with extension arm/levelling rod and rose/ball joint damaged or improperly and inadequately secured/attached/re-installed. That defect was such that on the first journey of that prime mover with an attached trailer bearing a load, the rod became detached from the chassis and brought about a collapse of the suspension system which, in turn caused the capsize of the prime mover. I am satisfied that in each case the plaintiff has proven its allegation of negligence, and make that finding in respect of the claims brought by each of TNT Australia Limited and Mr McKay. 208 The reference to "permitting the prime mover to depart" is best understood, in my opinion, as a short form of the views on negligence the Judge had been expounding rather than as a separate allegation based upon a failure to inspect. I think this is so albeit the Judge had made a finding that the quality control process which was part of the appellant's usual practice had not taken place on this occasion. 209 Apart from matter with which I have already dealt, Mr Bridge's principal attack upon the judgement in relation to this issue was that Mr Senz's opinion as to damage to the joint was no more than speculation and that there was no evidence that there had been any failure in the reassembly work. There was not, he put, any proper foundation for an inference that the appellant had been negligent in respect of the work carried out upon the prime mover. He did not offer a competing inference as to what caused the failure of the rose joint although he did point to the distance the truck had travelled after the modification work had been carried out. 210 Mr Bridge also relied upon the absence of the rose joint, levelling arm or extension rod from the repair parts list. As to this Mr Hoeben put that the parts may merely have been left off. This is a possibility which would be consistent with the fact that Mr Senz, with his experience of what is or is not done in the relevant trade, considered damage to be the probability although aware of the position as to the repair list. 211 There is the further difficulty with this argument that it is not clear whether the air valve referred to in the further parts list is or is not the one to which the relevant parts were attached. 212 Mr Bridge submitted that the res ipsa loquitur doctrine had no application for two reasons. The first related to control. The second was set out in his submission to Judge Gibb which he relied upon before this Court. The submission said: Finally, as regards paragraph 2(i) above, the issue of res ipsa loquitur is pleaded against the Defendant. With respect, it has no application to this case. In Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 the High Court looked at the doctrine. At page 140 paragraph 43 Gleeson, CJ and McHugh, J said the following: "Where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence res ipsa loquitur is inapplicable". Applying these principles to the present case, the technical somewhat complicated evidence dealing with the dynamics of truck roll-overs quite obviously takes the occurrence giving rise to this accident outside the experience of the lay person. There are many potential causes, some technical and some not. In such circumstances the doctrine can not apply. 213 Mr Hoeben initially, did not rely upon the doctrine of res ipsa loquitur but rather put the position that inferential reasoning led to the conclusion that one or other of the two remaining possibilities considered by Judge Gibb caused the failure and that either demonstrated negligence by the appellant. 214 Subsequently, Mr Hoeben relied upon res ipsa loquitur, as an alternative proposition, in respect of the possibility of faulty reassembly the exact cause of which did not appear from the evidence. 215 I do not find it clear from Judge Gibb's judgment whether she determined that the principle in its "proper sense" applied, nor was it necessary for her to do so as she dealt with the matter on the basis of inferential reasoning of which the principle is but one mode (Shellenberg per Gleeson CJ and McHugh J at 144). 216 The Judge did deal with the submission that the appellant did not have the necessary control, essentially by accepting that the relevant occurrence was at the workshop. 217 Her Honour did not expressly deal with the submission that the occurrence of the truck roll over was outside the experience of a lay person. As stated the submission was bound to fail. For example, in Piening v Wanless (1968) 117 CLR 498 at 511 Windeyer J said: If a motor car runs off the road, that fact, standing alone and unexplained provides some evidence that the driver was negligent. 218 However, it is clear that the principle does not apply as against the appellant in relation to the roll over. 219 From her observations on the control question it may be taken that Judge Gibb would have considered the experience of the lay person to relate to the occurrences at the workshop. 220 If that were a permissible approach I would think that the experience of the lay person in modern times would be sufficient to found a conclusion that in the ordinary cause of human affairs the failure of a relevant part of a vehicle which had just been modified or repaired would be unlikely without want of care on the part of the person in the situation of the appellant (Nominal Defendant v Halsbauer 1967) 117 CLR 448 per Barwick CJ at 452-453). 221 However, I consider that the principles discussed in Shellenberg, particularly in the judgment of Gleeson CJ and McHugh J, make it clear that the relevant occurrence here was the roll over. Since the immediate cause was determined as the failure of the rose joint the doctrine had no application. Further, the plaintiffs could not rely upon unspecified negligence at the earlier time of the work being carried out on the prime mover. 222 Having regard to the approach of Her Honour it is unnecessary for me to address the issue in detail, however, I should refer to some passages from the joint judgment to support the propositions I have just stated. 223 Piening was a case in which the High Court had to consider the application of the principle in circumstances where a car had run off the road as the result of a steering failure. Gleeson CJ and McHugh J in Shellenberg at 135 quoted a passage from the leading judgment of Barwick CJ as follows: But the majority of the Supreme Court have said that the failure of the steering was the occurrence which bespoke negligence. To this there are, in my opinion, two answers. In the first place, the occurrence which had to be examined to ascertain whether it furnished evidence of negligence on the part of the driver was the accident, that is to say, the running off the road. The failure of the steering was, I think, the explanation of that occurrence. 224 They also quoted at 135 from the judgment of Windeyer J which followed upon the passage I have earlier set out: But here much more was known than that the vehicle ran off the road. The occurrence was not unexplained. That the steering mechanism had suddenly failed was not in dispute. Both sides accepted this as fact. Therefore the only way in which any place could be found for res ipsa loquitur would be if negligence on the part of the driver could be inferred from the unexpected failure of the steering mechanism. (emphasis added)

The joint judgment went on at 136: Although the emphasised passage shows that His Honour thought that running off the road was the relevant occurrence and that it had been explained, the last sentence in this passage perhaps indicates that Windeyer J, contrary to other members of the Court, also thought that the failure of the steering mechanism could be regarded as an occurrence for the purpose of this principle. But with respect we think that the view expressed by Barwick CJ is in principle the correct one. .… Once the cause of the external event is identified, the question becomes whether the plaintiff has proved that the cause was the product of negligence. ….. Definition of the occurrence will also depend upon at what level of abstraction it is defined and upon what facts and circumstances are taken into account in defining the occurrence. No doubt the occurrence may sometimes, perhaps often, be defined at particular levels of abstraction, and judges may disagree as to what are the facts and circumstances that constitute the occurrence. In the present case, for example, it is arguable that the occurrence was more concrete than we have defined it and that what we have described as the cause was in fact part of the occurrence. On that view, the occurrence was the striking of the plaintiff with a hose which had separated from its jamec coupling. ….. Once the occurrence is defined, however, we do not think that there can be an infinite regression in which each 'cause' can be traced to its cause with the result that the plaintiff can continue to rely on a claim of unspecified negligence no matter how far back down the causal chain you go. Once what can properly be described as the cause of the occurrence has been identified it is not necessary that every circumstance surrounding that cause or every cause of that cause be identified. As soon as the immediate cause of the accident is established, the focus of the case changes. The question then becomes whether that cause was the product of negligence on the part of the defendant. That is the effect of Mummery v Irvings Pty Ltd and Piening v Wanless . That the principle of res ipsa loquitur ceases to operate once the cause of the occurrence is identified does not mean that the plaintiff cannot rely on inferential reasoning to prove negligence. 225 Later the joint judgment said at 141: The fact that a plaintiff falls outside the 'proper scope' of the rule does not mean that he or she may not avail himself or herself of inferential reasoning. 226 Mr Hoeben has submitted, in my opinion correctly, that Judge Gibb did, where appropriate, proceed on the basis of inferential reasoning. 227 It is convenient to now deal with two points that arose during addresses. 228 The first was whether the rose joint would be less likely to be damaged if, as Mr Harradine said was his practice, the extension rod had been left attached to the levelling arm and the whole set aside as an assembly. 229 It seems to me that on the evidence and having regard to the nature of the joint that would not be so. 230 Mr Senz, in the passage dealing with damage to the joint which was set out in Her Honour's judgment and earlier in this judgment, deals with both methods of disassembly. He draws no distinction as to the likelihood of damage. It is after the reference to the method which involves the removal as a assembly that he observed "it would not be difficult to have the rose joint damaged during storage". 231 He refers to "pushing the ball over too far where it fails". The assembly as a whole could offer greater opportunity for leverage on the joint than the extension rod alone. 232 The second matter relates to whether there is less chance of incorrect reassembly if, as Mr Harradine said was his practice, the upper joint, which was the one that failed, was not undone during disassembly. 233 There is no evidence on the point. Mr Harradine may or may not have followed his usual practice. It was found that usual practice was not followed on the matter of quality control. I do not think it can be assumed that the upper joint may not need attention at the time of reassembly. The Henderson diagrams tendered provide a specific tightening torque for lock nuts on the assembly which would appear to apply to the joint between the levelling arm and the extension rod. Mr Harradine said that he did not consult any manual as to the required tightening torque. 234 As a matter of common sense it would seem likely that if the joint was not undone the possibility of faulty reassembly would be reduced, however, I do not think it could be said that it would be eliminated. 235 Whilst Judge Gibb accepted Mr Senz's evidence she based her conclusion upon the two possibilities which appeared to her on the evidence to remain for consideration. 236 In my view it was open to the Judge to do so. I consider that the circumstances appearing in the evidence in the matter give rise to a reasonable and definite inference that the failure of the rose joint was caused by one of the two possibilities. I consider it appropriate that the Judge drew the inferences that she did. 237 Accordingly, I consider that none of the grounds of appeal on the issue of liability have been made out.

Appeal as to Damages 238 The appellant's challenge to Judge Gibb's assessment of damages in McKay's case was set out in brief and general terms in the written submissions and was not added to in address.

The heads of damage contested were: (a) General damages assessed at $115,000 of which 60 per cent was awarded for past general damages. (b) Past economic loss assessed at $159,751. (c) Future economic loss assessed at $176,654. 239 There was also a challenge to the amounts awarded for superannuation and interest, however, these were not separately developed and were put as dependent upon a reduction in the amounts awarded under the above heads. 240 It was agreed that damages were to be assessed at common law. 241 The appellant's submissions put that an appropriate figure for general damages would have been in the order of $45,000 and had this to say as to McKay's injuries: .....leaving aside Mr McKay's laceration, the preponderance of the medical evidence suggested that Mr McKay suffered soft tissue injuries only to his neck, and less so, his left shoulder. For such injuries McKay was treated conservatively. Indeed his own evidence was that he no longer received any treatment for his injuries nor did he take any medication. 242 Accepting that the submissions also referred to Judge Gibb's findings: That, as a result of the accident, Mr McKay suffered from (a) neck and shoulder pain, which was likely to be permanent; (b) migraines headaches, which he was likely to suffer in the future; and (c) permanent tinnitus.

the situation presented in the submissions is very different from that found by the Judge and supported by the evidence. 243 Judge Gibb noted that McKay had sustained losses on two fronts. She said: He suffered a serious bodily injury as a result of which he suffered - and continues to suffer - considerable pain. He had to abandon his chosen lifestyle - as a long distance truck driver (because of the psychological consequences of the accident) and his quality of life - including in the way that he arranged his family life - has been adversely affected very significantly. 244 The Judge found that in the roll over McKay sustained serious lacerations to his scalp, pain in his left shoulder, head and neck and various cuts, bruises and grazes and a 'corked thigh'. 245 McKay was released from hospital after a few days but was still, the Judge accepted, in great pain. The pain level was significantly reduced after anaesthetic injections from Dr Lips, a pain specialist. The Judge accepted that before the injections the level of pain had been so high that McKay had been suicidal. That position is to be seen against the background that the medical experts generally and the Judge thought McKay to be prone to understatement. 246 Dr Lips considered that the scalping injury had cut nerves in the scalp resulting in disordered sensation and abnormal input into the sensor part of the nervous system producing a neurogenic pain known as Anaesthesia Doloroso. 247 The Judge found that McKay's left shoulder had been 'frozen' for some months but that with extensive physiotherapy by October 1995 he had nearly full movement back in the shoulder although pain persisted and radiated into the left arm. 248 Judge Gibb accepted the view of Dr Stenback, McKay's general practitioner, that McKay: ......has had a major neck and left shoulder injury. Such an injury will lead to disturbance of muscle imbalance around his shoulder, and such muscle imbalance quite typically leads to rotator cuff tendonitis. Many of his features are those of rotator cuff tendonitis. 249 Dr Patrick, a general surgeon, who examined McKay for his solicitors on 27 October 1995 and whose opinion the Judge accepted, reported, amongst other things: There has been a significant cervical injury of a soft tissue or ligamentous nature, but probably with some disc injury and mild right sided disc protrusion at C5/6 or C4/5 or both. There has also been a significant blunt head injury, and also significant left scapula-costal strain injury and left rotator cuff strain injury. In my opinion, Mr McKay has a permanent impairment of the neck of 24 per cent and a permanent loss of efficient use of the left arm at or above the elbow, including loss below the elbow of 20 per cent. 250 Judge Gibb accepted the view of Dr Canaris, psychiatrist, that McKay had been significantly depressed during the twelve months off work and that he would presently find life a considerable strain although, in the doctor's view, he was as well by then as he was ever likely to be. The doctor considered that McKay would be "utterly lost" without his work as he would have nothing to distract him from his tinnitus and to a lesser extent his pain. 251 The Judge said: There is no real controversy about Mr McKay's medical condition. He suffers from neck and shoulder pain that is likely to be permanent. He suffers from migraneous headaches and is likely to suffer from headaches and neck/shoulder pain in the future. He has a permanent ringing in his ears(tinnitus). His neck cracks severely - and audible (sic)- when he turns his head. His shoulder is sore all the time and makes it hard to lift anything. 252 In addition Judge Gibb accepted that McKay's hearing loss, which Dr Stylis, an Ear, Nose and Throat surgeon, found to be 20.06 per cent binaural, resulted from the accident. No express attack was made on this finding in the submissions. Dr Walker, Ear, Nose and Throat surgeon, who examined McKay for the appellant's solicitors, considered the degree of hearing loss not to be due to the accident as there was no history of head injury. The Judge considered that history to be wrong and made the finding I have referred to, no doubt founded upon McKay's evidence that his hearing was normal before the accident and Dr Stylis's view that such depressed hearing is not uncommon in head injuries, although it may have been influenced by exposure to noise. 253 McKay's evidence was that his primary problem was the tinnitus. The Judge accepted the views of Dr Bornstein and Dr Finlay-Jones, a Psychiatrist who examined McKay for the appellant's solicitors, that the tinnitus would constitute a significant impairment to McKay leading a normal life. 254 Dr Feanside, a Neurological Surgeon, who examined McKay for the appellant's solicitors in July 1998, observed: He would be unfit to return to work as a truck driver in view of his ongoing neck pain, particularly he should not undertake any heavy physical work such as loading or unloading of vehicles. 255 McKay attempted to return to driving, however, the Judge accepted that he was unable to continue in that work. He thereafter found alternative employment in a clerical capacity in Sydney. He did not enjoy that work as he had done the work of a long distance truck driver and was obliged to live away from his family without the four or five day breaks between trips which he had previously enjoyed. 256 In view of the general nature of the appellant's submissions it is unnecessary for me to go to the other medical evidence. 257 Reference was made in the submission to the fact that McKay was no longer receiving any treatment and that he did not take any medication. Judge Gibb accepted, however, that it was "highly likely" that he would require medication and physiotherapy in the future. 258 Upon the Judge's findings, which are supported by the preponderance of the evidence, the figure determined by her for general damages, in my opinion, falls within the limits that a sound discretionary judgment could reasonably adopt. 259 Judge Gibb arrived at the figures she awarded for past and future loss of earning capacity, although she did not so express it, by finding that McKay had accepted an offer of employment as a truck driver from a Mr Embery, that he would have in fact commenced such employment and continued it to the time of trial and beyond to age 65. She considered that if McKay had changed employment it could have been to one returning the same or greater earnings and that 15 per cent was an appropriate contingency allowance for, amongst other things, the possibility that things would change in the future as to employment. 260 The appellant's submissions do not challenge the calculations by which the sums awarded were arrived at, but rather the correctness of the above approach. 261 McKay had worked as a truck driver for a great many years. At the time of the accident he was driving as a casual driver for TNT and earning, it would seem, about $436 net per week. For some time prior to taking up that employment he had operated his own road train as a contractor to TNT. That operation ceased when a regular customer changed to the use of rail transport. 262 On 5 June 1995 McKay returned to some work. In October 1996 he commenced employment with ID Transport Pty Ltd performing clerical duties at a wage of $725.35 net per week. He was later promoted to a more managerial role. 263 The appellant's submission is that the claim for loss of earnings was not made out beyond 5 June 1995, it being put that after that date McKay earned as much as or more as he had earned in earlier years. 264 Alternatively, it was put that the loss of employment with Mr Embery should only be seen as loss of a chance with an appropriate allowance for that loss of a chance in the order of $20,000 to $30,000. 265 As a further alternative, it was submitted that future economic loss should be assessed on the basis of lack of capacity alone to be reflected in a very small buffer or, more consistently with principle, no award. 266 These submissions all fail if Judge Gibb's finding as to prospective employment with Mr Embery and its consequences are not overturned. 267 McKay, Mr Embery and Mrs McKay all gave evidence which supports those findings and Judge Gibb accepted that evidence. I am unable to find any proper basis for coming to a different conclusion than that reached by the Judge on this issue. 268 Reference was made to "the Plaintiff's own evidence concerning his future in the trucking industry and his past performance". However, after hearing the witnesses the Judge said: Likewise, employment in the trucking industry may or may not be precarious generally. But Mr McKay had been working in that industry continuously from when he was about 16 until the day of the accident when he was 48 - some 32 years. He enjoyed driving and for a driver of his skill level, employment was not uncertain. 269 Mr Embery gave evidence that it was very hard to get good drivers. He also gave evidence that the truck which he proposed to have McKay drive was still being operated by his business. The Judge found, as the evidence supports, that McKay is very work focused. 270 In my view the submissions made do not support a conclusion that the damages awarded in respect of loss of economic capacity were excessive or awarded in error. 271 I consider that the appeal in respect of damages should fail. Orders 272 I propose the following orders in each appeal: a. Appeal dismissed. b. Appellant to pay the respondent's costs. ******

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