123 According to both versions of its daily log sheet for 20 April 1998, RD23 (which was the truck) spent three and a quarter hours at the second defendant's workshop prior to Mr Webber assuming control of the vehicle and being injured.
124 It was suggested by Mr Hoffman that this need not necessarily indicate the vehicle was being worked on the entire time. It may have been awaiting the attention of a mechanic who was busy elsewhere. He had no recollection of the events of that day. However, when one considers the purpose of the daily log sheets - that is to record the productivity of the machine for that shift - I prefer the evidence of the truck as being in the workshop over Mr Hoffman's general speculation.
125 The daily log sheets have already been described in some detail. The Court had, as an exhibit, a collection of these sheets for all seven dump trucks from 6 April 1998 to 30 April 1998. Two sheets were usually completed within each 24 hour period, one each for the day and night shifts. Some were missing from the exhibit. Whether they were simply lost, or whether their absence showed that a truck was out of service was not explained.
126 The plaintiff and other witnesses employed by the first defendant gave evidence about the completion of the daily log sheets. Their purpose as the drivers understood it was to communicate with their employer as to the truck's operating problems and about the truck's productivity during the shift. They were completed by each driver at the commencement, during or as they finished their operation of the vehicle depending on the nature of the notation. That is, they were relatively contemporaneous. In my view the daily log sheets were treated as a serious and important record by the drivers and I consider them reliable.
127 The notation on the daily log sheet suggests that RD23 was in the workshop on the morning of 20 April 1998. Furthermore, the time it spent in the workshop was sufficient for the changing of a seat.
128 Daily time sheets were kept also by the second defendant's mechanics. They constituted a chart recording the mechanic's name, the date, the identity of each vehicle worked on, the nature of the work and the hours spent on each task. The Court had various time sheets for various dates between 13 April and 24 April 1998. There was no evidence concerning how many mechanics were rostered to work on any particular shift. The time sheets show that on occasions there was more than one mechanic, together with Mr Heales rostered to work on a shift. Unfortunately, the court is not aware as to whether it had a complete set of time sheets for all of the second defendant's mechanics for any particular shift.
129 Mr Hoffman was the only witness who gave evidence about the daily time sheets. In his view they were intended to show his employer that he had not, in his words, been "bludging". He filled his time sheet in at the end of each shift, from memory. He tended only to record large jobs involving lengthy periods of time. They were not in his view "100 per cent gospel". He said that the record of hours spent on particular jobs was not reliable. His own time sheets in particular appeared to be very poorly kept, compared with time sheets for other mechanics.
130 A time sheet for Mr Rumens for the night shift, dated 15 April 1998 notes that he worked for one hour on RD25. The notation is "seat u/s". He did not give evidence. However, the time sheet supported the theory that the seat in RD25 was giving trouble prior to the plaintiff's accident.
131 The only time sheet before the court for 20 April 1998 was that of Mr Hoffman. It makes no reference to work on RD25 or RD23.
132 Generally, I am unable to form a view generally as to the reliability of the time sheets, because Mr Hoffman was the only witness asked to comment on them. I do not believe Mr Hoffman treated his own time sheets as a serious record. His evidence and his time sheets confirmed this.
133 Record cards were completed by Mr Heales, Maintenance Supervisor. A card was maintained for each vehicle. The court had the record cards for RD23, RD24 and RD25, running from 1 November 1997 and spanning the date of the 1998 accident. They were not kept contemporaneously. Mr Heales made a contemporaneous note in his day book, which was not before the court and had apparently disappeared. Once or twice weekly Mr Heales copied notations from this day book onto the respective record cards. Whether they were verbatim copies or a summary was not clear on the evidence. Some of the details on these cards were conceded by Mr Heales to be inexact.
134 On 20 April 1998, RD25 was recorded by Mr Heales in his record card as follows, "Change driver's seat". He had no recollection of this having been done. The only time sheet before the court for 20 April 1998 was that of Mr Hoffman. It makes no reference to him having worked on RD25 on that day.
135 Mr Hoffman had no recollection of any of the relevant events concerning any of the trucks relevant to these proceedings, or the plaintiff's accident. His recollection of a standard procedure was in some respects quite hazy. He did confirm that the swapping of seats between vehicles was standard practice in the industry.
136 Mr Heales could give no explanation for why RD23 spent three and a quarter hours in the workshop on the morning of 20 April 1998. He could recall the plaintiff's complaint about the seat in RD23 being reported to him by Bob Brown, the first defendant's supervisor, on 21 April 1998. He recalled testing the seat and concluding that it was not malfunctioning. He also recalled directing someone (it was clearly Mr Hoffman) to remove the seat in RD23 and replace it with a reconditioned seat that was in the workshop that was due to go into another truck. He also recalled having the seat that had been in RD23 put in another vehicle and there being no subsequent complaints about it.
137 The seat in RD25 was clearly giving trouble and was reported as such by an operator, Doug Naylor, in daily log sheets on April 6, April 11 and April 14 (night shift) and April 15 (night shift) 2003. On 11 April the truck only worked for one hour. The explanation on the log sheet was "Change truck because of seat". Mr Naylor did not give evidence. He was said by one witness to be very heavy.
138 There are few other daily log sheets from RD25 than those bearing Mr Naylor's complaints, which might tell us whether other drivers were also experiencing difficulties with the seat.
139 The record card for RD25 shows its seat was "changed" on 20 April 1998. No record appears on any of the time sheets available to the court to show who did this, how long it took, what happened to the seat, or any other details. However, as we do not know if there were other time sheets for that day, it may well have been done by a mechanic other than Mr Hoffman in which case the court would simply have no record of it.
140 The record card for RD23 has no notation for 20 April 1998.
141 One explanation for the lack of any record of the reason for RD23 being in the workshop is that the purpose of RD23's sojourn in the workshop that morning was so minor that it did not warrant noting. If this is right then it would be unlikely to have had the seat changed, which on the evidence usually took between three and four hours and required two mechanics, one operating a forklift.
142 Another explanation open on the evidence (which I prefer) was that the second defendant's system of keeping the record cards and the time sheets was so haphazard that its employees simply failed to record the changing of the seat on 20 April 1998 despite it having been a major undertaking.
143 On the basis of the evidence available to me I find that on 20 April a defective seat from RD25 was removed from that truck and installed in RD23, and that it was that seat which injured Mr Webber. In reaching this conclusion I give weight to the following: