Vinidex v Thiess

COUNSEL : Mr J.L. Glissan QC/Mr K.J. Manion - Appellant Mr J. Poulos QC/Ms C. Pinkerton - Respondent SOLICITORS : McCabes - Appellant Moray & Agnew - Respondent CATCHWORDS : APPORTIONMENT OF DAMAGES BETWEEN JOINT TORTFEASORS - LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1965 - Whether it was a proper exercise of discretion, in all the circumstances and having regard to the applicable principles, to hold each tortfeasor equally liable. Held that notwithstanding the caution which should attend interference with the exercise of the trial Judge's assessment that was not the proper apportionment and the Court of Appeal should re-assess the apportionment. Held that in lieu of equal amounts the appellant should pay 20 per cent and the respondent 80 per cent. LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 A.V. Jennings Construction Pty Limited v Maumill (1956) 30 ALJ 100 Roads and Traffic Authority v Scroop & Ors (Court of Appeal - 30 September 1998 - unreported) Oxley County Council v MacDonald (1999) NSWCA 126 CASES CITED: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Wynbergen v Hoyts Corporation Pty Limited (1977) 72 ALJR 65 Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45 DECISION : 1. Appeal allowed; 2. In lieu of the orders made by Grove J:-; (i) judgment for the apellant on its cross-claim against the respondent in the sum of $537,318.40; (ii) judgment for the respondent on its cross-claim against the appellant in the sum of $134,329.60; 3. The resondent pay to the appellant any amount the appellant has paid or pays to the plaintiff on account of the plaintiff's costs beyond 20 per cent of those costs and the appellant pay to the respondent any amount the respondent has paid or pays to the plaintiff on account of the plaintiff's costs beyond 80 per cent of those costs; 4. The respondent pay the appellant's costs of the appeal and receive a certificate under the Suitors Fund Act if otherwise entitled.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40650 of 1998 SC 600030 of 1997

SHELLER JA FITZGERALD JA ROLFE AJA

THURSDAY, 30 MARCH 2000 VINIDEX TUBEMAKERS PTY LIMITED v THIESS CONTRACTORS PTY LIMITED JUDGMENT

1 SHELLER JA: I agree with Rolfe J. 2 FITZGERALD JA: I agree with the judgment of Rolfe AJA. 3 ROLFE AJA: Introduction

The plaintiff, Mr Keith Rooke, carried on business as a self-employed heavy haulage contractor. He contracted, from time to time, with the appellant, Vinidex Tubemakers Pty Limited, ("Vinidex"), for which Mr J.L. Glissan of Queen's Counsel and Mr K.J. Manion of Counsel appeared, to transport quantities of high density polyethylene pipes from Vinidex's Brisbane premises at Coopers Plains to the Mount Owen Coal Mine Project near Singleton in New South Wales. The Project was operated by the respondent, Thiess Contractors Pty Limited, ("Thiess"), for which Mr J. Poulos of Queen's Counsel and Ms C.T. Pinkerton of Counsel appeared. The pipes were manufactured by Vinidex and delivered to Thiess pursuant to a Materials Supply Agreement, which contained the following clause in relation to delivery:- "The materials shall be delivered to the mine site by the Seller and unloaded by the Purchaser at location/s designated by the Purchaser. Deliveries shall be made between the hours of 7.00 am and 4.00 pm Mondays to Fridays (excluding Public Holidays, Rostered Days Off or any other days when the site is closed) unless otherwise arranged with Thiess."

4 Each pipe was 15 metres long, 355mm in diameter and weighed approximately 300 kilograms. They were for use in pipelines within the Project. 5 On 6 July 1996 Mr Rooke agreed with Vinidex to transport a load of pipes from Brisbane to the Project. His semi-trailer vehicle was loaded with either forty eight or forty nine pipes at Vinidex's premises. They were placed lengthwise along the semi-trailer in rows of seven across it. There were six such layers, each comprising seven pipes and a seventh layer, being the top one, which comprised either six or seven pipes. Each row of pipes was secured by straps running from attachments on one side of the trailer to attachments on the other. In addition the trailer had a number of bolsters or stanchions along each side to ensure that the pipes did not roll off it. Each row of pipes was separated by flat wooden dunnage. Mr Rooke had, from time to time, requested Vinidex to use scalloped wooden dunnage with the outer edges pointing upwards thus, to some extent, cradling the pipes and further preventing their rolling sideways off the trailer, particularly when the stanchions and the holding straps were removed. However, his requests had not been met. 6 Prior to this consignment being sent Vinidex had delivered a number of truck loads of pipes from its Queensland and Victorian plants. There were usually only five rows in height and they were surrounded by gates, rather than stanchions. 7 There were several methods of unloading the pipes at the Project. One, which was described as the "string out" method, was designed to unload pipes from the rear of the trailer one at a time and generally in the line the pipeline was intended to take, thus facilitating their being joined. This was done, generally speaking, by attaching the end of each pipe at the rear end of the trailer to another vehicle behind the trailer and driving the semi-trailer forward so that the attached pipe was pulled from the trailer and fell onto the ground. This process would be repeated as the semi-trailer moved along the desired line. 8 The other method was to use a large forklift to lift the pipes from the side of the trailer and stockpile them. This involved removing some of the stanchions and it required a forklift, which could reach a sufficient height to bring the pipes over any remaining stanchions. 9 One or two days before these pipes were loaded Mr Lane, who was the Distribution Manager for Vinidex, had a conversation with Mr Elliot, who was Thiess' Site Manager at the Project. Mr Elliot asked Mr Lane if flat timber dunnage could be put between the layers of pipes, "because we are having difficulties stringing the pipe out at the back of the truck, and it will make it easier for the pipe to supplied (sic)": Black Appeal Book pp.58-59. Mr Lane agreed and said that Vinidex would organise the timber. Prior to that request timber dunnage was not used. 10 Mr Rooke drove the semi-trailer to the Project without incident, arriving on Sunday, 7 July 1996. He was met by a forklift operator, Mr Gibson, who was an employee of Thiess and who directed him to a certain place. Mr Gibson told Mr Rooke that it had rained the previous day, that he had not been out to inspect the pipeline to see if the pipes could be unloaded along it, but that he had decided to stockpile the pipes. Mr Gibson proposed that the pipes be unloaded at one place, but it was found that the forklift, which was referred to as the IT28, would not lift over the top of the stanchions. 11 Mr Gibson asked Mr Rooke to take the stanchions from one side. Mr Rooke said he would if Mr Gibson held the pipes in position with the forklift's tines in a vertical position against the load while he unstrapped each layer, so that the load could be removed layer by layer until a point was reached where the forklift could operate in the manner to which I have first referred: Black Appeal Book pp.5 and 6. Mr Rooke removed the stanchions from the off-side or driver's side of the trailer and Mr Gibson placed the forklift beside the trailer with the tines extended upwards to restrain the pipes as the stanchions had previously. Mr Rooke then rolled the pipes from the top layers onto the tines. The forklift was able to accommodate four pipes at a time in this way and Mr Gibson then drove it to the position where he wanted to stockpile them, put them on the ground and returned. The top two rows were removed without incident. 12 Mr Rooke then went to a position where he could undo the straps holding the third row. He said he presumed the forklift was in the right position securing the load. However it was not, and a pipe rolled from the trailer, struck Mr Rooke and caused him serious personal injuries. It also struck Mr Gibson, but without, apparently, any serious consequences.

The Proceedings 13 Mr Rooke, being in doubt as to the party from which he was entitled to recover damages, sued both Vinidex and Thiess. They cross-claimed against each other for indemnity or contribution to the full extent of any judgment which might be recovered against them. On 7 August 1998 Grove J held that both Vinidex and Thiess were guilty of negligence which caused Mr Rooke's injuries, and that he was entitled to damages in the sum of $746,276. He reduced this by ten per cent to $671,648 because of Mr Rooke's contributory negligence. He ordered Vinidex and Thiess to pay Mr Rooke's costs. He was of the view that Vinidex and Thiess should bear, as between themselves, responsibility for those damages in equal shares and, on each of the cross-claims, entered judgment for each of them in the sum of $335,824. He made no order for costs as between Vinidex and Thiess. 14 Vinidex has appealed against his Honour's finding on contribution on the grounds that:- (a) his Honour erred in law in apportioning damages equally between it and Thiess, in that he failed to consider or give due weight to the evidence, which indicated that Vinidex was not equally responsible with Thiess; (b) to the extent that the apportionment required by s.5(2) of the Law Reform (Miscellaneous Provisions) Act 1946, ("the Act"), involved the exercise of a discretion, his Honour's discretion miscarried; (c) his Honour failed to take into account the contract between Vinidex and Thiess and failed to deal with the matters raised by the cross-claim; and (d) his Honour erred in holding that Vinidex had not delegated its responsibility to unload to Thiess in that there was no evidence entitling him to make such a finding.

An Analysis Of His Honour's Reasons 15 His Honour commenced to consider the matter now in issue at Red Appeal Book p.36. He noted that Vinidex had argued that as between it and Mr Rooke it had discharged any duty of care and, in any event, had delegated any duty of care, which was breached, to Thiess. Further, Vinidex argued that there was contributory negligence on the part of Mr Rooke, which argument succeeded, and that it was entitled, under its cross-claim against Thiess, to full indemnity as contribution to any damages payable to him. 16 His Honour noted the concession of Mr Poulos that particularly in the light of the evidence of Mr Gibson "there would be a finding that negligence was established against" Thiess, and the further submissions in relation to Mr Rooke's contributory negligence and for a substantial contribution by Vinidex to any damages Thiess was found liable to pay to Mr Rooke. 17 His Honour referred to the contractual provision and found that it was agreed that delivery should take place on Sunday, 7 July 1996. He continued:- "There emerged from discussions between representatives of Vinidex and Thiess an expectation that the pipes would be unloaded by 'stringing out' … It ought to have been appreciated by both the defendants that exigencies at the time of unloading, for example terrain or weather might well provoke a decision to unload otherwise. It is not disputed that before loading at Coopers Plains the plaintiff made one of his repeated requests for the pipes to be cradled in scalloped timber. Mr Lane described him as a very safety conscious haulage operator. It is obvious that when restraints and strapping which would secure the load during the travel are removed, pipes lying in scalloped cradles would not roll off to the side. Vinidex did not make such cradles available in response to the request." 18 His Honour dealt with the loading of the trailer, the unremarkable nature of the journey to the Project, and Mr Gibson's meeting Mr Rooke and directing him to the unloading place. He found that Mr Gibson had not been told about the contemplation that the load would be "strung out", and he described briefly the unloading method adopted. His Honour did not accept Mr Gibson's evidence that he requested Mr Rooke to come back on the following day when a crane and driver could have been made available. He nextly turned to the system the parties adopted and, Red Appeal Book p.40 lines V to X, said:- "Both men agreed to adopt this system but I have noted already that as between Vinidex and Thiess, the contractual responsibility to unload lay with Thiess." 19 His Honour continued:- "When the load had been brought down to five tiers, for reasons which Mr Gibson cannot explain, he failed to bring the IT28 back into contact with the off-side of the load as agreed. I am satisfied that at the relevant time the plaintiff was on the other side of the vehicle."

20 His Honour turned to a meeting held by representatives of Vinidex and Thiess on 9 July 1996, the minutes of which commence at p.267 of the Black Appeal Book. They disclose that Thiess had directed the truck to the area to be unloaded and described, in terms which are now essentially uncontroversial, how the accident occurred. 21 His Honour said:- "I note that Vinidex appears forthwith to have offered scalloped timbers 'for stockpiling on site'. If available for that purpose such timber was available to fulfil the plaintiff's requests. Understandably the apparent principal concern of the meetings was to identify not only the cause of the accident but to identify suitable procedures to be instituted in order to avoid recurrence. The exclusive focus was not upon identifying negligence." 22 It is, in my opinion, important to note the full terms of the meeting. Under the heading "Corrective Action", the minutes recorded:- "All pipes to be stacked in scalloped timbers if unloaded by forklift from the side of the truck ." (My emphasis.)

The next heading was "Proposed Load Configurations". It provided that if there was to be "Side Unloading" pipes were to be stacked in scalloped timbers, and extra scalloped timbers were to be delivered to assist in stockpiling. Under the heading "Rear Unloading" it was stated that pipes were to be stacked on flat timbers. 23 In my opinion, this is a matter of significance because the uncontradicted evidence of Mr Lane was that this was stated to be the way in which it was proposed to unload this load and flat timber was specifically requested. 24 His Honour considered various expert evidence called in relation to safe loading which, if I may say so with respect, went little further than stating matters which were reasonably obvious. No doubt for this reason his Honour found it unnecessary to analyse it and he found:- ".. that the plaintiff has established negligence by Vinidex in failing to respond to his request for scalloped timbers. Irrespective of whether Vinidex expected the load to be 'strung out', scalloped timbers would have obviated the risk of side fall of a pipe if the restraints and stanchions were for any reason not in place. It ought to have foreseen that exigencies might require unloading other than by 'stringing out'." 25 He found that Thiess was negligent by:- ".. the casual act of negligence by Mr Gibson in failing to take the designated step of putting the IT28 in position to hold the load when the necessary task of removing restraints for unloading was undertaken". 26 He also found that Vinidex and Thiess were negligent in failing to adequately communicate with each other, taking the view that if there had been such communication that "should have led to the provision of suitable unloading machinery for the load as dispatched from Coopers Plains and if that were done the risk to the plaintiff would have been obviated": Red Appeal Book p.45. He rejected the argument that any breached duty of care had been wholly delegated by Vinidex to Thiess. He continued:- "It is by no means clear that Thiess informed Vinidex that they would unload by 'stringing out' and no other method. At its highest Thiess asked for timber inserts in order to enable 'stringing out' and it may have been reasonable for Vinidex to assume that this was probably what was intended, but that is far from making it reasonable to assume that it was inevitable that no other method might need to be adopted once site factors were taken into account." 27 After considering Mr Rooke's contributory negligence, his Honour expressed the view that Vinidex and Thiess could have avoided the accident altogether if Vinidex had supplied the scalloped timber as requested, and if Mr Gibson had placed the forklift in position as agreed. None-the-less he found contributory negligence in the figure to which I have referred, and concluded:- "The foregoing remarks suffice to record my findings from which I conclude that the defendants should bear as between themselves responsibility for damage in equal shares."

The Question On Appeal 28 His Honour took the view that each of Vinidex and Thiess could have avoided the accident. Vinidex would have done so if it had used scalloped dunnage. Thiess would have prevented it if the forklift had been placed in the position intended. The question for determination is whether, in all the circumstances of this case, the apportionment his Honour made was appropriate. 29 Several comments in relation to apportionment should be made immediately. First, the principles relating to the apportionment of liability caused by negligence and appellate deference to the discretion exercised by the tribunal of fact are well established: A.V. Jennings Construction Pty Limited v Maumill (1956) 30 ALJ 100; Roads and Traffic Authority v Scroop & Ors (Court of Appeal - 30 September 1998 - unreported) and Oxley County Council v MacDonald (1999) NSWCA 126. Secondly, the Court must have regard to what is just and equitable and, in doing so, it must make a comparison of the culpability and of the acts of the parties causing damage and, thus, to the relative blameworthiness and the relevant causal potency of the negligence of each party, and to the whole conduct of each negligent party in relation to the circumstances of the accident by way of comparative examination: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492; Wynbergen v Hoyts Corporation Pty Limited (1977) 72 ALJR 65; Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) and James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45. 30 The matters which, in my opinion, militate against Vinidex's being called on to share the same degree of responsibility as Thiess are that:- (a) Thiess, through Mr Elliot, had expressly requested Vinidex to load with flat dunnage; (b) the reason for this was so that the pipes could be "strung out" more easily, the obvious inference being that that was how it was intended to unload the trailer; (c) this request had been made only several days before this load was sent and, obviously, in contemplation of its being sent; (d) Mr Gibson, as his Honour found, Red Appeal Book p.39 line K, had not been told that it was contemplated that the load would be "strung out"; (e) although it may have been in the contemplation of Vinidex that unloading could be carried out from the side, that depended on weather and other conditions. Whilst there was evidence that rain had fallen on the Project, Mr Gibson had not investigated whether the pipes could be "strung out"; (f) Vinidex was not advised that there was a change of intention as to the unloading method; (g) the method of unloading was that prescribed by Mr Gibson and his participation in safely unloading was critical in the sense that it was necessary for the vertical tines of the forklift to be placed against the load to prevent unsecured pipes from falling; (h) Mr Gibson was aware that pipes would be unsecured once the straps were released; (i) the essential reason why the pipe fell was because Mr Gibson failed to place the tines of the forklift in the proper position; and (j) the contractual obligation between Vinidex and Thiess was that the pipes would be unloaded by Thiess at the location designated by it. 31 As against Vinidex the criticism was that it failed to provide scalloped dunnage, albeit in circumstances where it had been made aware that the pipes would be "strung out", and that it had failed to advise that this was a somewhat larger load than usual. It is, in my opinion, important to note in relation to the scalloped dunnage that the minutes of the meeting held after the accident record that scalloped dunnage would only be used if the trailer was to be unloaded from the side, and that flat dunnage would be used if it was to be unloaded from the rear. In relation to the failure to advise, his Honour's finding was that had that occurred Thiess should then have made provision for suitable unloading machinery. However, when the load arrived Mr Gibson, who was charged by Thiess with the obligation of receiving it, had ample opportunity to consider what should be done. It apparently occurred to him that unloading should await the arrival of a suitable crane, although his Honour found that he did not communicate this to Mr Rooke.

Non-Delegable Duty 32 It was submitted by Vinidex that it had delegated its duty of care to Thiess. In my opinion this argument cannot be sustained. Vinidex clearly had a duty to ensure that the pipes were loaded in a manner which was not likely to cause harm. In so far as it failed to use scalloped dunnage, it failed in this duty. This was part of the reason why Mr Rooke was injured. The agreement between it and Thiess did not relieve it of any such liability, but merely cast upon Thiess the obligation to unload. Thiess did not give any indemnity to Vinidex in relation to the loading or unloading procedures. Mr Glissan also argued, initially, that Vinidex should be relieved of all liability because of Thiess' breach of contract. After several formulations of the submission, which did not correspond with the pleading, the submission was withdrawn. Conclusions 33 In the present case the learned trial Judge found, correctly in my respectful opinion, that Vinidex and Thiess were both guilty of negligence, which was causative of Mr Rooke's injuries. Having reached that conclusion his Honour decided that the proper exercise of discretion demanded that each be held equally liable. In my respectful opinion that was not the correct result when one has regard to the particular facts of this case and, in doing so, compares the culpability of each, the importance of the acts of the parties causing the damage, the relative blameworthiness and the relevant causal potency of the negligence of each party. 34 I have set out the matters, which I think are relevant in considering those points. A consideration of them leads me to the view that little blame can be attributed to Vinidex. Certainly, if scalloped dunnage had been used, the likelihood is that Mr Rooke would not have been injured. Perhaps if there had been more communication from Vinidex suitable machinery would have been available. But those were relatively insignificant omissions when compared with the acts and omissions of Thiess. 35 It had directed Vinidex to load in this particular way to assist it in carrying out its contractual obligation of unloading, which it wanted to do in a particular way it found convenient. It had expressly requested the use of flat timber and, even at the site meeting on 9 July 1996, it was insisting on the use of flat timber when pipes were to be unloaded from the rear. Thiess failed to advise Mr Gibson that it was the intention to unload these pipes from the rear, and Mr Gibson failed to have adequate equipment on hand to unload from the side in the circumstances which existed. None-the-less, Mr Gibson put in place a method which, had it been adhered to, would have prevented the pipe from falling on Mr Rooke. It was his failure to properly position the forklift, which caused this to happen. 36 When one has regard to all the matters to which I have referred in the light of the applicable principles, I am led to the conclusion that an equal division of liability between the parties is so clearly incorrect as to justify this Court's intervention. In my opinion the proper division of responsibility to bring about that which is "just and equitable having regard to the extent of" the parties' relative responsibilities would be as to eighty per cent to Thiess and twenty per cent to Vinidex.

Orders Proposed 37 I propose that Vinidex's appeal be upheld and that an order be made that in lieu of the apportionment made by his Honour there be judgment for Vinidex on its cross-claim against Thiess for $537,318.40, and judgment for Thiess against Vinidex on Thiess' cross-claim in the sum of $134,329.60. 38 His Honour ordered that Vinidex and Thiess should pay Mr Rooke's costs of the action. There is no suggestion that there should be any interference with that order but, as between Vinidex and Thiess, I consider that the plaintiff's costs should be paid in the proportions to which I have referred. 39 His Honour made no order as to costs as between Vinidex and Thiess. Each has now succeeded to some extent on its cross-claim. The facts giving rise relevant to that determination were essentially those arising in Mr Rooke's claim, the resolution of the respective liabilities occupying a relatively small part of the proceedings. In all these circumstances I consider that the proper exercise of discretion is that there be no order as to the costs of either cross-claim on the hearing at first instance. 40 Thiess must pay Vinidex's costs of the appeal. 41 The orders I propose are:- (1) Appeal allowed. (2) In lieu of the orders made by Grove J:- (i) judgment for the appellant on its cross-claim against the respondent in the sum of $537,318.40; (ii) judgment for the respondent on its cross-claim against the appellant in the sum of $134,329.60. (3) The respondent pay to the appellant any amount the appellant has paid or pays to the plaintiff on account of the plaintiff's costs beyond 20 per cent of those costs and the appellant pay to the respondent any amount the respondent has paid or pays to the plaintiff on account of the plaintiff's costs beyond 80 per cent of those costs. (4) The respondent pay the appellant's costs of the appeal and receive a certificate under the Suitors Fund Act if otherwise entitled. *****

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