Finding of negligence
8After considering the circumstances in which the accident occurred, the trial judge described what happened in the following terms at [17]:
"In the incident in question, after the plaintiff had guided the tips of the extended forklift tynes into position for Mr Barnes, so that the load was engaged on the tips, Mr Barnes moved the forklift truck out of the container and [the plaintiff] stood on the ground on the right-hand side of the forklift, in a position about 2 feet away from the ramp. The forklift truck then reversed down the ramp with the load resting by force of gravity on the tips of its tynes rather than up against the apron guard adjacent to the mast of the forklift. The plaintiff stated that whilst this reversing manoeuvre was taking place, the load of cartons shifted on the tynes, and moved over to the right. In these events, the bottom carton collapsed, leading to the cartons toppling towards the plaintiff. In this way, both cartons fell off the tynes. In this way, the boxes fell upon him without prior warning, and crushed him."
9Although this description was criticised, in substance it reflected the evidence. The appellant noted, correctly, that the plaintiff's description had an element of reconstruction, rather than observation: Tcpt, 21/02/11, pp 62-63. It also challenged the finding that the bottom carton collapsed before the top (heavier) carton shifted and toppled off the forklift. However, whether the toppling was caused by the movement of the heavier carton or the collapse of the lower smaller carton was unclear. In the event, neither of these points was significant.
10When considering the issue of negligence, the trial judge asked whether the driver of the forklift was negligent. He held there were breaches of the duty of care owed by the appellant, some of which were direct negligence and some of which depended on vicarious liability based on the negligence of the driver. The judge identified seven breaches at [69]. The appellant submitted that some of the breaches were not pleaded, some were not supported by the evidence and some did not appear to have been relied on in the ultimate finding of negligence. It is convenient to restrict the inquiry to those matters which appear to have been relied on as causally linked with the injury. The judge made the following findings in that regard:
"71 From a causative perspective, of these confluent causes of the incident, the one that stands out as the pivotal causative event is the act of commencement and continuation of driving of the forklift in reverse, down a ramp at an angle to the ground, with its unsecured top heavy load perched towards the end of its tynes rather than at the more stable carrying position adjacent to the apron at the mast end of the tynes.
72 In my view, on a commonsense analysis, that action altered the inertial or gravitational force of the load, thus causing it to overbalance, collapse and fall onto the plaintiff. In my view, this was a fundamentally unsafe manoeuvre. The resultant injury to the plaintiff need not have occurred if commonsense was applied to beforehand secure the load, place it into a more stable position near the mast, to not drive the forklift until it was so secured, and even then, warn the plaintiff to stand clear."
11In broad terms, these findings appear to reflect the following conclusion set out at [69]:
"Fourthly, [t]he manoeuvre carried out by Mr Barnes in reversing the forklift down the ramp, without first ensuring that the load was checked as being stable and secure on the tynes against the apron of the mast, was an inherently risk-laden exercise that exposed the plaintiff to foreseeable injury.... Sixthly, the plaintiff was not advised by his supervisor, or by some other responsible employee, that he should stand clear during the unloading manoeuvre."
12Having made the findings set out above, the trial judge then referred to the expert opinions of a safety engineer and ergonomist: at [75]. However, that evidence does not seem to have supplied further grounds for the conclusion as to liability, rather than support for the causative factors identified above. That inference appears from the subsequent findings in relation to the issue next addressed by his Honour, namely whether the injury occurred during the use or operation of a motor vehicle, for the purposes of the Motor Accidents Compensation Act. In addressing that issue he stated at [81]:
"I have already stated my finding that the cause for the load falling onto the plaintiff from the tynes of the forklift was that the load had not been secured or stabilised before the forklift was put in reverse motion and driven. In my view, the decision to drive the forklift in those circumstances, and to continue to drive it down the ramp, necessarily involved fault on the part of the driver .... Given that the owner of the forklift was the employer of the driver, this necessarily means that the owner was vicariously liable for the driver's fault."
13The appellant's challenge to the finding of negligence was based on the proposition that, although it was open to the judge to find that the load was unstable and insecure, based on the events which occurred when the load toppled off the forklift, there was nothing known to the appellant, its driver or the plaintiff prior to the accident, as a result of which they were aware, or ought reasonably to have been aware, of the risks involved. Accordingly, there had been no failure to take reasonable care for the safety of the plaintiff.
14With one qualification, the reasons given by the trial judge provided no persuasive answer to that criticism. The qualification derives from the reports of Mr David Dubos, the safety engineer, and Mr Rick Rech, an occupational health and safety officer with the CFMEU who claimed "many years of training and assessing forklift operators as a WorkCover Inspector in the safe use of forklifts". Mr Rech stated that "[t]he driver should have been aware of the dangers associated with engaging and lifting unstable loads and loads which are multi stacked". Whether the load was known to be "unstable" before it collapsed was in dispute. However, Mr Dubos made the following statement in his report, admitted without objection (Tcpt, p 5):
"I understand that the pallet was made from plastic and was not as strong as plastic pallets being used generally in Australia. It has been stated that TVH Australasia was constantly having problems with the pallets breaking and cracking. It is apparent they were designed for storing products and not for transporting products. When loaded with heavy boxes, and the pallet was lifted using forklift truck, the pallet would bow and make the load unstable. All Australian branches of TVH had complained to TVH management generally about the pallets up to the time of the Plaintiff's accident, but no action was taken by TVH."
15Although the last opinion was clearly hearsay, it found some support elsewhere in the evidence. The appellant called Mr Louis, who was the plaintiff's immediate superior at the time of the accident. Mr Louis held a forklift driver's licence. Counsel for the appellant led from him the evidence that Mr Barnes did not have a licence at the time of the accident: Tcpt, 22/02/11, p 76 (30). Of far greater importance was his evidence as to the experience of prior shipments of forklift parts, which the appellant imported from Belgium. The following evidence was given at Tcpt, pp 77-80:
"Q. Did you have personal experience before this incident with one of those similar containers of the goods within them moving?
A. Yes.
...
They just sat on pallets and with - coming across on the ships, the movement of the container, and they would just, like, integrate with each other. They'd just slide around on the pallets.
...
Q. You've mentioned pallets now, Mr Louis. Can you describe ... the pallets you're talking about?
...
A. They were a plastic structure.
...
Q. Did these plastic pallets have a wooden bottom like those CHEP pallets?
A. No.
Q. ... Was there some feature of the plastic pallets before this incident occurred that gave you cause for concern?
A. They break and we have seen them come across broken in the containers.
Q. Did they have any other tendency other than breaking?
A. Flexibility when you lift them.
...
Q. Did you notice that phenomenon about these pallets?
A. Yes, when I picked it up, it flexed. I put it back down and spread my tines further apart.
...
Q. Let me ask you about the load, Mr Louis. In the past when you dealt with these arrivals from Belgium, were the boxes secured together?
...
A. No.
Q. Were the boxes covered in any sort of material?
A. There may have been a plastic wrap, but it was not shrink wrap. [They] might have some form of wrapping but nine times out of ten it was broken due to the load moving.
...
Q. Did you have cause to complain to your employers about these pallets that you've told us about?
A. Several occasions.
Q. What was the nature of your complaint?
A. Cracking in transit, breaking, causing the parcel to fall off the loads and just a mess in the container when we get there.
Q. What was done about it?
A. Nothing."
16This material constituted ample evidence, from a witness called by counsel for the appellant, supporting the conclusion that the appellant was in fact aware of the risks associated with unloading the containers. It is not in dispute that Mr Barnes did not have the experience as a forklift driver that Mr Louis had. Nor is it in dispute that the plaintiff was given no instruction as to the known risks of an activity in which it appears he had not participated in the past.
17The evidence supported a finding of negligence on a basis which was not pleaded with any particularity and which differed from that upheld by the trial judge. The evidence itself was not in dispute and the findings which may fairly be based upon it can hardly be challenged by the appellant, given that the evidence was adduced from its witness.
18No doubt because the issue as to the liability of the appellant in negligence only squarely arose in the course of argument in this Court, no objection was taken to the reliance by the plaintiff on the evidence of Mr Louis. Nor was any objection taken to the absence of a notice of contention in support of an appropriate finding. Rather, the appellant contended that Mr Louis' evidence related to problems which had arisen on prior occasions and was therefore irrelevant in the absence of any indication that a similar problem existed with respect to the container being unloaded at the time of the accident: CA Tcpt, 09/03/12, p 46 (35)-(45) and p 48 (45)-(48). However, the evidence set out above supports the conclusion that the appellant knew, or at least should reasonably have been aware of the problem and should have notified an inexperienced forklift driver as to what steps to take to avoid an accident arising while unloading possibly unstable packages which may have shifted in the container during the long sea voyage. It should have warned the plaintiff in similar terms as to the known risk.
19It may seem odd that such evidence was led by the appellant. However, the appellant took at least two strategic decisions in running the case. First, although there was an argument as to contributory negligence at trial, that was abandoned on appeal. An assertion of contributory negligence on the part of the plaintiff ran the risk of inconsistency with the proposition that there was no reason for the forklift driver (or the plaintiff) to anticipate any danger in respect of the circumstances in which the accident arose.
20The second strategic decision was to focus on the immediate or predominant cause of the accident. If that cause were not the use or operation of the forklift, but some prior failure in establishing a safe system of work, the appellant would avoid liability under the Motor Accidents Compensation Act. Because the plaintiff had not brought proceedings for work injury damages, he could not recover for the absence of a safe system of work. To explain the basis for this position it is necessary to turn to the second major limb in the appellant's case.