Sutton v Container Handlers Pty Ltd [2000] WADC 254

Sutton v Container Handlers Pty Ltd [2000] WADC 254 - WADC 2000 case summary — Zoe

[34]

1 NISBET DCJ: On 12 March 1998 the plaintiff was a crane driver employed by Brambles Australia Ltd at Port Hedland. Brambles had secured a contract for one of its cranes to undertake some work at a place in the interior of the north-west of Western Australia known as Camp Tracey which is located approximately 90 kilometres from Telfer. At Camp Tracey the plaintiff was to load three or four uranium containers on to a truck and when that task was complete he had further instructions to take his crane to the Nifty Strikes Copper Mine where he was to assist in a shutdown. This journey into the remote outback of north-west Western Australia could not be undertaken by the crane by itself and the plaintiff's employer contracted for the crane to be transported to Camp Tracey and then to Nifty by a firm known as Coleman's Transport. The plaintiff was to accompany the crane. Coleman's provided a Scania prime-mover to which was attached a Lusty Alison low loader. The driver of the prime-mover and low loader was Jason Reiball. The plaintiff met him for the first time on the morning of 12 March 1998 and assisted him in loading his crane on to the low loader for the journey. Leaving Port Hedland the plaintiff and Reiball travelled along the Marble Bar road then the Woodie Woodie Road and the Telfer Road to Telfer where they then branched off to Camp Tracey.

2 During the course of this journey a mechanical difficulty arose which necessitated the crane being taken off the back of the low loader and proceeding under its own power to Camp Tracey. The road was very bad and on occasions the crane had to tow the prime-mover and low loader. Eventually the plaintiff, Reiball and their machines arrived at Camp Tracey late on the night of 12 March 1998.

3 The next morning, 13 March 1998, the plaintiff completed his work loading the uranium containers and set off for Nifty retracing in part the journey of the previous day on the road back to Telfer, the crane again towing the prime-mover and low loader. At Telfer the crane was reloaded on to the low loader and the journey to Nifty recommenced, the party arriving there at about 5 pm where they unloaded the crane. The next day, 14 March 1998, the plaintiff operated his crane but the work ran out sooner than anticipated and the plaintiff received instructions to leave the crane at Nifty and return with Reiball to Port Hedland, Reiball in the mean time having arranged a back load. The plaintiff then accompanied Reiball to Port Hedland setting off from Nifty on the morning of 15 March 1998. Around midday Reiball brought his prime-mover and low loader to a halt in order to carry out an inspection of the vehicles. This was his usual practice and it had been undertaken previously when the first mechanical fault that I described was observed. It was an exceptionally hot day as can be imagined at that time of the year. During the course of this inspection the plaintiff observed smoke and fumes coming off one of the rear wheel hubs of the low loader. He said there was a lot of grease everywhere and the wheels "were sort of out of shape, so it looked pretty serious. I told Jason." The plaintiff identified the wheel in question as the third from the rear of the low loader.

4 After Reiball inspected the wheels he decided that both would have to come off and that they would have to chain the axle up before setting off again. Those with a mechanical bent will know immediately what was entailed in this operation. If the wheels were removed from the axle there would be no support for the axle which would fall and drag and accordingly it had to be lifted up and secured in some way. The wheels on the other end of the axle would of course continue to operate.

5 The plaintiff deposed that Reiball told him to get some chains in order to chain up the axle after the wheels had been taken off or alternatively the jack, he could not quite remember, but he did proceed to take some equipment from a tool box at the back of the prime-mover. He found this too hot to handle because of the temperature and he had to put on some gloves so that he could handle the equipment. He assisted Reiball to remove both wheels after which Reiball put a chain through the top of the deck of the low loader to which were attached two hooks on the ends of the chain so that the chain formed a loop over the top of the low loader with both hook ends dangling towards the ground, the idea being that when the axle was jacked up the hooks would connect with each other to form a cradle to hold the axle. During this procedure it became evident that the chain was not long enough. The plaintiff and Reiball were having a great deal of difficulty getting the hooks to meet. Reiball was working somehow or other inside the framework of the low loader so it might be imagined that he was in an area between where the two sets of wheels where either end of the axle would be located. The plaintiff was located in the wheel hub area of the low loader in the space where the wheels were. Whilst the plaintiff could not see what was happening Reiball was jacking up the axle while the plaintiff was trying to connect the hooks of the chain ends together. This manoeuvre is best understood by looking at the photograph exhibit P3. This depicts the hub attached to an axle going through the chassis of the low loader. Reiball was on the other side of the chassis which obviously obscured the plaintiff's view of him and what he was doing. One next needs then to imagine the chain ends hanging from the top of the photograph coming down either side of the axle so that they would go under the axle and hook up and form the cradle I have already described. The plaintiff was squatting in the area depicted between the axle hub and the wheel hub arch to the left of the axle hub numbered 4 on exhibit P3. The plaintiff was in the area that is generally depicted by the numbers 1, 2, 3 and 5 on exhibit P3.

6 As might well be imagined this was a difficult task in very difficult conditions. It was a blistering hot day in the outback of the north-west of Western Australia on a rough and sandy road in inhospitable terrain with no prospect of help arriving. The plaintiff and Reiball were obliged by their circumstances to do the best they could. As can be readily imagined when one looks at exhibit P3 the plaintiff was in a very precarious position. The plaintiff was unable to get the ends of the chain to connect and advised Reiball who told the plaintiff "he would have another go at jacking it to try and get it up higher". The plaintiff thought he could hear Reiball jacking up the axle when he said:

[36]

7 At my request the plaintiff marked exhibit P3 with a cross where he believes his hand was when it was trapped. Looking at the cross it is easy to see now how this accident happened. The plaintiff crouched low in the wheel hub arch in a difficult position steadying himself with his left hand against part of the low loader chassis marked with the cross has not realised that the trail arm assembly of the axle which protrudes through the chassis was near his hand and furthermore would not have realised that it was connected to the axle so that if the axle dropped, so did the trail arm assembly. In a most unfortunate accident this is what occurred. The axle slipped off the jack and the trail arm assembly connected to the axle dropped on to the chassis trapping the plaintiff's hand and causing what the plaintiff's counsel accurately described as "a brutal injury" to the plaintiff's left hand.

8 The plaintiff went on to testify that as he was the person asked by Reiball to fetch some of the equipment necessary for jacking up the axle of the low loader he was able to see what equipment had been supplied for emergency roadside repairs. He did not see any blocks of timber, planks, wedges or other apparatus such as may have been used by Reiball to steady the jack that is to say to ensure that it was on a stable surface, unlikely to slip, before the jacking operation commenced. Additionally he said there were no longer chains than that which was being used in an attempt to lift up the axle nor was there any other jack that he could see apart from the very simple bottle or bell shaped jack that Reiball used. There was no heavier jack of the type that one frequently sees in mechanical workshops such as are depicted in exhibit P5 and described as trolley jacks (those shown on p 2) - the jack being used was similar to that being depicted on p 1 of exhibit P5.

9 It is out of these circumstances that the plaintiff claims damages for negligence against the defendant as a principal and against the defendant as being vicariously liable for the negligence of Reiball, the particulars of which are pleaded a para 11 and para 10 respectively of the statement of claim. It seems to me that it was entirely foreseeable that an injury of the type sustained by the plaintiff could be sustained by persons attempting to effect emergency roadside repairs to a vehicle such as this low loader. A prudent employer in the position of the defendant should have properly equipped its vehicles for the carrying out of emergency roadside repairs to the wheels and axles of its low loader. The occasional necessity to change tyres and wheels is a well enough known phenomena to anyone who has ever driven a vehicle let alone to a company engaged in heavy haulage transport and it should have provided its servant Reiball with sufficient equipment to enable the task to be carried out in safety. Sufficient equipment in my opinion would involve first and foremost a trolley jack of sufficient lifting capacity that it could lift an axle of the prime-mover and the low loader. Additionally, braces or supports should have been provided so that the axle was at all times supported. Next planks or blocks should have been provided so that the trolley jack was on a secure footing. Further, chains of sufficient length should have been provided.

10 Additionally it should be recorded that at the time when the crane was put on the low loader the plaintiff observed difficulty in the hydraulic power unit of the low loader. The hydraulic power unit ordinarily enables the tray of the low loader to be lowered and raised and if it was in proper working order, the method of chaining up this axle employed by Reiball would undoubtedly been different. The tray could have been lowered towards the axle and from its lowered position chains or other securing linkages employed to attach the axle to the tray and then the hydraulic power unit used to lift the tray and axle together but it would appear, and a fair inference available from the evidence is that this was not in good working order and condition. As to the negligence of Reiball, it should first be noted that he was not called to give evidence by the defendant and there was no evidence offered to the Court that he was unavailable to give evidence. Accordingly, it appears to me that I may more readily draw inferences against Reiball or alternatively can more readily infer that his evidence would not have assisted the defendant: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. In my opinion the evidence of the plaintiff makes manifest Reiball's negligence. As the person in charge of the operation he should first of all have instructed the plaintiff to get out of the position that he was in and only to attempt to connect the chains if it was safe for him to do so. Next he should not have used the jack in question without first insuring that it was able to be used on a firm stable footing and that it could get sufficient purchase on an appropriate part of the axle that would prevent it from slipping. He should not have commenced to jack the axle without insuring firstly that the plaintiff was in the clear. Again, I think it reasonable to infer that had Reiball inspected his emergency repair equipment with the prime-mover and low loader before setting off on the journey he would have ascertained that he did not have sufficient equipment to effect any emergency roadside repairs with wheels and tyres and the like and he should have requisitioned the appropriate materials from his employer.

11 Up to this point I have been using the terms "negligence" as an adjective to describe the acts and omissions of the defendant and Reiball, not in the sense of it being a perfected cause of action for which there needs first be found a duty of care for there is a question here of whether or not the defendant owed the plaintiff a duty of care. There is no difficulty in finding a duty of care owed by the defendant to its servant Reiball, but was a duty of care owed by the defendant to the plaintiff? The difficulty in answering this question in Australia in recent years has been the High Court's examination of the notion of proximity as being the touchstone "of the circumstances of which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another ..." per Deane J in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 584-5. Proximity was thought by Brennan J to be an unsatisfactory expression or yard stick by which the existence of a duty of care could be ascertained because of its lack of conceptual precision: Jaensch v Coffey supra at 574, 575 and again in San Sebastion Pty Ltd v The Minister Administering Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 162 CLR 340 at 368-9. The High Court's struggles for conceptual exactitude in defining the existence of a duty of care are exemplified by its decision in Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330; 151 ALR 147 where Kirby J said (at ALR 212):

[38]

12 It would seem that the position long urged by Brennan CJ that the categories of cases in which duties of care were found should proceed incrementally and not be reference to some broad brushed formula represents the present state of development of this difficult area. In Pyrenees Shire Council Kirby J recognised the fundamental problem facing lawyers and courts in being able to provide consistent advice in this area among a series of conflicting authorities and urged the adoption of a three stage test which has much to commend it. In the same case he recognised the requirement for lawyers to be able to argue by analogy from duties of care found to exist in previous authorities.

13 Such is the case here.

14 It seems to me that the duty of care owed by the defendant to the plaintiff in this case is analogous to the rescue cases which emphasise that the duty of care owed to the rescuer is not a derivative of a primary duty owed to someone else but a separate duty arising out of the circumstances of the case: See for example Chapman v Hearse [1961] SASR 51 affirmed in the High Court at [1961] HCA 46; 106 CLR 112. In a situation where the defendant entered into a contract with the plaintiff's employer to transport both the plaintiff and his machine over a long distance on poor if not unmade roads in circumstances in which mechanical breakdown was entirely foreseeable it was likewise entirely foreseeable that the plaintiff would act in aid of the defendant's employee Reiball. It would be quite unforeseeable that the defendant could expect that the plaintiff would go and sit under a tree reading a book whilst Reiball attended to necessary repairs alone and unaided. The relationship of the plaintiff to the defendant was that the plaintiff was the defendant's passenger and the circumstances of their journey were such that the defendant owed the plaintiff a duty of care. That duty was breached by the conduct of the defendant and its employee Reiball in the circumstances I have already found and accordingly the plaintiff's claim for damages in negligence against the defendant must succeed.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (68 paragraphs)

Sutton v Container Handlers Pty Ltd [2000] WADC 254 (17 October 2000)

Parties

Legislation Cited (3)

Cases Cited (16)