Connector Drilling Pty Ltd v Equigold NL (2003) WASCA 78

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107

Visic v State Government Insurance Office (1990) 3 WAR 122

Astley & Ors v Austrust Ltd [1938] HCA 34; (1999) 60 CLR 336

Austin v Bonney [1999] 1 Qd R 114

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Black v Motor Vehicle Insurance Trust [1986] WAR 32

Bond v Weeks [1999] 1 Qd R 134

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chestone Holdings Pty Ltd t/as Lord Forrest Hotel v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1998

Co-Operative Bulk Handling Ltd v Taylor & Anor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996

Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173

Foyster v Goynich [1984] WAR 80

Jones v Bartlett [2000] HCA 56; (2001) 75 ALJR 1

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Russell v Ciesielski, unreported; FCt SCt of WA; Library No 980222; 1 May 1998

State Government Insurance Commission v Oakley (1990) A Tort Rep 81-003

Wagner v Midland Junction Abattoir Board [1963] WAR 84

1 COMMISSIONER GILES: The plaintiff Mr Webber has brought proceedings against his former employer, Arimco Mining Pty Ltd (in liquidation), which is the first defendant and BGC Contracting Pty Ltd which is the second defendant and third party. He seeks damages for back injuries he suffered from two accidents that occurred while he was employed by the first defendant. The first accident was on 27 January 1995 and the second was on 20 April 1998.

2 Both accidents occurred while he was working as a dump truck driver for the first defendant, at Gidgee Gold Mine, 130 kilometres south of Meekatharra.

3 The second defendant was contracted by the first defendant to provide machinery and maintenance of that machinery to the first defendant at Gidgee Gold Mine.

4 The plaintiff has brought proceedings against the first defendant in negligence and breach of contract.

5 The plaintiff claims that the second defendant owed him a duty of care to maintain the equipment to a standard which did not place him at risk of injury. That is, it is a claim based in negligence. The plaintiff further claims against the second defendant that it owed him a contractual duty as a person entitled to benefit of the contract between the second and the first defendant.

6 The first defendant claims an indemnity from the second defendant in third party proceedings which will be referred to later in these reasons.

7 The plaintiff was born on 8 December 1941. At the time of the trial he was almost 61 years of age. He was born in Victoria and left school at the age of 14. He worked as a fitter, a boilermaker, a mechanic and in the earthmoving industry. While working in Echuca in the early 70's he met his long term partner, Annie. They moved to Western Australia in 1976. She was a bookkeeper. They purchased, operated and sold several delicatessens in succession. They worked long hours and the delicatessens were very successful. They then bought a business buying and distributing shortcakes. Annie did the bookwork and the plaintiff did the transporting. Unfortunately this business did not prosper. Annie returned to office work and the plaintiff decided to return to the earthmoving business. He and Annie had initially bought a unit together, and then moved into a house in Hamersley where the plaintiff was still living at the time of the trial.

8 The plaintiff found work immediately as an operator with Bellways at the Nevoria Gold Mine at Marvel Loch. He operated excavators, bulldozers, graders, loaders and other equipment. He worked at this mine, for about three years including as a leading hand. He was working 12 days on and two days off, between 10 and 12 hours a day.

9 From Marvel Loch he was transferred to the mine site at Mount Magnet. He worked there also for the same employer, Bellway, for about 12 months. In about 1987 he left Bellway and obtained employment with Cyprus Gold which was at the time operating Gidgee Gold Mine.

10 In June 1988 Gidgee Gold Mine was taken over by the first defendant. The plaintiff was appointed as leading hand with significant supervisory responsibilities. He had approximately 30 men under his supervision.

11 Sadly, in June 1990 Annie was diagnosed with cancer. She died in December 1990. The plaintiff said that his work deteriorated between June and December while Annie was ill. However, he felt he was able to cope with the job. After Annie died the plaintiff was demoted from leading hand to the position of plant operator. While his wages continued at the previous level, he was no longer in a supervisory position. One of the workers who had previously been under his supervision was promoted to leading hand.

12 The plaintiff described his duties as dump truck driver at the time of both accidents in considerable detail. This evidence was supported by several other witnesses photographs and a mud map of the site which were exhibits. The ore was extracted by an open cut mining operation. The mine consisted of several pits, each shaped like an inverted cone with a circular road running down to the bottom of each pit. In the morning the workers were taken by road from the camp to the "go line", where the dump trucks were located. The drivers then conducted a basic safety check of the dump truck that they had been allocated, and then drove to the bottom of the pit where excavators loaded ore onto the back of the truck. The roads on the way down to the bottom of the pit were in relatively good condition. The floor of the pit however was often very rough and pitted. The load was dumped at various locations at the mine, depending on the nature of the ore.

13 The first defendant aimed to move as many loads out of the pit as possible every day. The plaintiff described the work as psychologically taxing although the operation of the dump truck itself was not physically difficult because they are highly automated.

14 In addition to the accidents the subject of these proceedings the plaintiff suffered a number of other incidents which had led to back pain. The first of these was on 24 September 1989 at Gidgee Gold Mine. The plaintiff was lifting 20 litre cans of water onto a catwalk to refill a radiator of an excavator on which he was working. He said it felt like a tear in a muscle. He worked for the rest of the day but then had some time off and some treatment. He went to Dr Adonis in Perth who was the first defendant's doctor. He recalled being off work for a week or 10 days. He then returned to work.

15 The next incident occurred in May 1992. The plaintiff had lifted concrete slabs at home. He said that "it sort of flared up the back a bit". He described it as a tearing, searing pain in his lower back. He had a few days off from this incident and then returned to work. There was also an incident of back pain in 1997 which also resulted from lifting paving slabs at home.

16 Based on the evidence the chronology of the incidents leading to back pain is as follows:

17 Liability is admitted by the first defendant for the 1995 accident. However the first defendant does not admit that the 1995 accident caused the plaintiff's present condition.

18 On 27 January 1995 at Gidgee Gold Mine the plaintiff was driving a dump truck at the bottom of the pit. The truck was being loaded by an excavator being operated by another employee of the first defendant. While the excavator was loading the truck, the driver of the excavator permitted the full bucket of the excavator to strike the plaintiff's truck throwing it sideways. The plaintiff was thrown sideways in the cab injuring his back. He had five weeks off as a consequence of this accident returning to full duties on 3 March 1995.

19 Mr Webber's recollection at trial was that his recovery had been swift and that after the 1995 accident he had been largely without back pain until the 1998 accident. He did however withdraw somewhat from this position when his answers to interrogatories which he had sworn in October 1999 were put to him. In these interrogatories he had deposed to "ongoing lower back pain" after the 1995 accident and that at the end of each two-week shift his back pain "increased to the point where I found it very difficult to continue. I was able to continue working however because of the week rest."

20 On the basis of this evidence I conclude that the 1995 accident did cause the plaintiff ongoing back pain, up until 1998, but it was not severe enough to incapacitate him for work.

21 In order to describe the 1998 accident, it is necessary to identify the various dump trucks used at the mine. The second defendant hired seven Komatsu haul packs (dump trucks) to the first defendant for use at the Gidgee Gold Mine, and a satellite mine some distance away. The drivers used the labels "RD21", "RD22" and so on up to "RD27" respectively to describe them. "DT" (ie dump truck) 21 to DT27, or sometimes, simply D1 to D7 were also used, particularly by the second defendant's mechanics. Fortunately, RD21 was the same vehicle as DT21 and D1 and so on. For consistency, I shall use the initials "RD" to describe the respective trucks.

22 The facts surrounding the 1998 accident are highly controversial between the parties. On 20 April 1998, the plaintiff was driving RD23, conveying loads of ore from a pit. He adjusted the driver's seat to his weight before starting the vehicle in accordance with usual practice. This was done by twisting a knob near the front of the seat. He noticed after about the second load, that the seat was "bottoming out". That is, the seat's suspension was not cushioning his ride, and when the truck hit a bump or depression in the ground his seat hit the bottom of its normal travel with a hard impact, jarring his body and his spine. He tried to further adjust the seat but the seat continued to bottom out.

23 The plaintiff said he started to experience some back pain during the shift but did not consider it serious enough to stop working. He says he contacted the workshop of the second defendant by two-way radio. This was after he had started to feel a twinge in his back, but nothing too severe. He could not recall to whom he spoke when he made the radio call. He says he was advised to keep on working and the mechanics would have a look at it after the shift. By halfway through the shift he had started to feel back pain quite badly, but he continued, and finished the shift.

24 Before leaving the truck at the conclusion of the shift he says he noted the defect on the Mine Fleet Operators Log Sheet, or the "daily log sheet". It was only after he had had a shower that his back became much worse and he then mentioned it to the leading hand, the shift supervisor and the on site "medic". He completed an incident form the following day.

25 The plaintiff did two days work following this time, assisting with shot firing. This was because his back pain was not considered to be an emergency and there were no flights going out until the end of the week when his week off commenced. He then returned to Perth and has not worked since.

26 The plaintiff was taken to task by the second defendant during the trial about his description of the malfunctioning in the seat. Paragraph 7 of the plaintiff's statement of claim states:

"On 20 April 1998 the plaintiff was driving a dump truck with a rigid seat over rough ground in the course and scope of his employment with the first defendant when he suffered pain and injury."

Particulars in par 9.1 of the statement of claim included the allegation that the first defendant had:

"caused, allowed or permitted the plaintiff to operate the dump truck which had a rigid seat with inadequate suspension."

27 It was put to the plaintiff by the second defendant's counsel that the "bottoming out" of the seat he described at trial was not in fact a rigid seat as described in his statement of claim, but indeed the opposite. The second defendant submitted that this difference between the plaintiff's evidence at trial and his statement of claim threw his account of the 1998 accident into question.

28 There are a number of relatively contemporaneous documents which record the accident. These include the daily log sheet for RD23 completed by the plaintiff, dated 20 April 1998 which bore the handwritten notation by the plaintiff "Seat stuffed. Park brake not holding". This document and the provenance of the notation is highly controversial. It will be discussed later in this judgment.

29 Evidence was also given that the seat's suspension was tested by the second defendant's Maintenance Supervisor on 21 April 1998. There is also a maintenance record card maintained by the second defendant which shows that the seat was changed out of the truck and the park brake adjusted, on 21 April 1998.

30 There is also an Incident Report Form completed by the plaintiff on 21 April 1998. The plaintiff recorded "back pain after operating RD3 truck which has rigid seat. Seat weight adjustment not working" under the heading "Brief description of incident". Under the heading "Detailed description of accident" the plaintiff wrote, "I suspect the constant pounding from rigid seat has flared up back injury."

31 While the statement of claim may have been clearer, I do not think the first or second defendants themselves were in any doubt as to the nature of the plaintiff's complaint about the seat at the time of the accident. Their own witnesses were extremely familiar with the phenomenon of "bottoming out" and readily recognised the term. Moreover, the evidence, including that which showed the seat was tested for inadequate suspension the following day strongly suggesting a complaint was made at the time about the seat bottoming out. I accept the plaintiff's account of the malfunctioning seat.

32 The "Mine Fleet Operators Log Sheet" for the day of the accident (also known as the daily log sheet) was highly controversial in this case. It is appropriate I deal with it at this juncture. A book of these sheets was kept in the cab of each truck. A new sheet was commenced and completed on every shift by the operator or operators driving the vehicle during that shift. The daily sheet was kept in triplicate, with self-carbonation between the three sheets. The top copy was white, the second copy was pink and the third copy was yellow. The sheet recorded hours of operation of the vehicle taken from the vehicle's time clock, work location details including the name of the pit, load details, a chart where the operator recorded the "pre-set check list" and spaces for recording "Machine Defects" and "Machine Defects Rectified". A separate sheet was kept for the day shift and the night shift. If, as was common, more than one driver operated a particular vehicle during a shift, the first driver filled in some details on the sheet and the second driver completed it.

33 At the conclusion of a shift, the top white original was torn out by the driver who handed it to the leading hand, who passed it onto Mr Douglas Heales who was employed by the second defendant as Maintenance Supervisor. He discussed them, if necessary, with the first defendant's supervisors, directed maintenance to be carried out as required and sent the log sheet by facsimile to the offices of the second defendant in Hazelmere in Perth. The original white top sheets were filed in the second defendant's workshop at Gidgee, and then sent to Hazelmere after a period of time. No-one could say what ultimately happened to the pink and yellow copies left in the book, which remained in the cab. It appears that over time these documents were lost or destroyed.

34 The court did have before it facsimiles of the white originals for various dates, including 20 April 1988, which had been received at the Hazelmere office of the second defendant. It was apparent that these were the actual facsimiles received in the Hazelmere office, because they had facsimile imprints on them recording time and date of transmission and bore a red inked stamp of the word "Posted", which according to the evidence of Ms Ann Rose, she stamped on the forms as their details were entered by her on the second defendant's computer.

35 The court had two versions of the Mine Fleet Operator's Sheet for RD23 completed on the plaintiff's shift for 20 April 1998 (the day of the 1998 accident). The first, bearing Mr Webber's note about the seat which is mentioned above did not have the "Posted" stamp on it. The evidence was that the second defendant's solicitors had obtained this version from their client at some time prior to the trial. It was clearly a photocopy. It bore no facsimile machine imprints. The letters, numbers and other marks on the first and second versions are identical, except in one important respect.

36 The first version of the document has a note under the heading "Machine Defects" as follows: "Seat stuffed. Park brake not holding." This note was made by the plaintiff. The second version of the form which was faxed to the second defendant's offices in Hazelmere by Mr Heales contained no such note. This was most curious, given that one was supposedly a copy of the other.

37 It was suggested by the second defendant that the plaintiff went back to the truck some time after the shift and had added in the notation regarding the seat defect. Implicit in this suggestion is that the second version of the form was a copy of either the pink or yellow form, which the plaintiff had allegedly altered some time after he left the truck on the day in question.

38 If true this would reflect very poorly on the plaintiff's credibility. It might in fact suggest that Mr Webber concocted the account of the malfunctioning seat and endeavoured to create a documentary record to support his story.

39 There is other evidence that Mr Webber complained about the seat on that day. He gave evidence that he had called in on the two-way radio system to the second defendant's workshop to report the defect after about the second load. He said that he was instructed to keep on driving the vehicle and the workshop mechanics would look at it later. Mr Hoffman said that this was a likely response to such a call. I accept Mr Webber made the two-way radio call and his account of that conversation.

40 The real indication that Mr Webber made a contemporaneous note on the daily log was that on 21 April 1998, the following day, the seat was removed from RD23 and the park brake adjusted by Mr Hoffmann, a mechanical fitter employed by the second defendant. The only way the workshop would have known of a complaint about a defect was via the top white copy of the daily log sheet, which was handed to the leading hand at the end of the shift.

41 Mr Hoffman gave evidence. He could not recall anything about the day in question. He completed his own daily time sheet for 21 April 1998 which records on that day that he performed one hour's work on RD23. The notation in respect of that vehicle on his time sheet for that day read "Fit new seat (1 hour)".

42 Mr Hoffman stated that the daily time sheets were "not 100 per cent gospel". They were simply to indicate to the employer in a general way, the daily activities of the employee. He said that minor jobs tended not to be noted. Sometimes the hourly estimates recorded did not actually reflect the actual hours worked. However there was in my view no other reasonable explanation for the note made by Mr Hoffman, other than to record the fitting of a new seat, after the receipt of the daily log sheet with the plaintiff's complaint about the seat and the park brake.

43 I am unable to solve the mystery of why there are two different versions of the daily log sheet, one recording the malfunctioning seat and the other not. The passage of time has meant that the evidence which might help to solve it is simply not available. However, I do not accept that the plaintiff returned to the truck and made a further notation on the pink or yellow versions of the daily log sheet to support his claim. This is because I believe his denials when this was put to him. Moreover, it is clear from the evidence that a report of the seat malfunctioning was made to the second defendant's workshop probably by means of the second version of the log sheet. This is the only reasonable explanation for why the seat was changed and the park brake adjusted the following day.

44 Mr Hoffman confirmed the impression I gained from other witnesses that there was tension between the drivers and the mechanics concerning the genuineness or otherwise of complaints about the dump trucks' operations. This was, in part, illustrated by his evidence that the documents filled in by the operators recording defects in the dump trucks were termed colloquially "grizzle sheets". His evidence tended to suggest that the reason that the documents had this rather unflattering description on the part of the mechanics was because mechanics thought that many of the complaints of the operators about machine defects were not genuine. I shall explain the significance of this later in these reasons.

45 Mr Matthew Molloy also gave evidence.

46 He was an actuary who prepared a report concerning the plaintiff's lost superannuation entitlements.

47 I shall return to the substance of his evidence when I make findings concerning damages.

48 Mr Peter North was called by the plaintiff. He owns Frontline Transport, a trucking company which transports freight from Perth to Kununurra and interstate destinations. The business employs truck drivers. They earn between $1,000 and $1,400 a week net plus superannuation. His company had no positions available at the time of the trial but employed truck drivers from time to time. These included older drivers. He gave the example of a 65-year-old driver who was diabetic who managed interstate journeys. He regarded someone who had been working the hours that Mr Webber had been working prior to the accident as employable. His company's drivers only drive up to 14 hours a day, due to safety considerations.

49 Mr Trevor Whitehead was called by the plaintiff. He first met the plaintiff at Gidgee Gold Mine in about 1995. He has spent about 15 years in the mining industry plus five years working in road trains. When he first went to Gidgee, Leighton Contractors had the contract for supply of equipment and maintenance. He was still there when the second defendant took over and he left three or four weeks after that. He left Gidgee because he was told that "they were going down the chute" so he moved on to Mount Magnet as a grader operator. He says he wouldn't work for less than $1,000 per week net. Depending on the kind of equipment he was working on he could earn anything from $1,000 to $1,300 net per week. He had never had any trouble obtaining work since leaving Gidgee, and had regularly refused offers of work.

50 Mr Whitehead usually worked on the excavator that loaded the back of the truck that Mr Webber was operating on, although not on the day of the accident in 1995.

51 He said Mr Webber was a good deal more skilled and experienced than he was, saying that "he (Mr Webber) taught a lot of people". He had recommended the plaintiff for a job. He described the nature of employment in the industry as being one where one worked for an operator while it held a particular contract, until the contract ended. His present employer, Hampton Transport, had employed him on four different occasions over fairly lengthy periods.

52 Mr Christopher Kirkpatrick was called by the second defendant. He was 51 years old at the time of the trial. He worked as a plant operator at Gidgee Gold Mine between January 1997 and March 1999. He drove the truck RD23 on the morning of the day shift on 20 April 1998.

53 He confirmed the plaintiff's evidence about the process of the pre-start check and the need to adjust the seat prior to operating the vehicle. He recognised the plaintiff's description of "bottoming out" and agreed that this would create difficulties for the operator. His recollection was that the seat in RD23 was fine for the first part of the day shift.

54 In his view, a bottoming out seat causing pain was a safety issue that would justify contacting the leading hand or the supervisor and having the truck attended to in the pit by the fitters, or parked up and another truck being used. He had no recollection of whether there were other trucks available during that time.

55 He said that the supervisor could not tell an operator to continue operating a truck under dangerous conditions because of what he called the "guidelines of the duty of care rule". However, he did agree that if neither the leading hand nor the pit supervisor were available, established practice was to contact the maintenance crew directly and to follow their instructions. However, he said it was ultimately up to the operator to decide whether to keep on driving or not.

56 He described the plaintiff as "consistent" in his work and having the same standard of work as he had. Mr Kirkpatrick had been employed continuously since leaving Gidgee Gold Mine in 1999. He had earned between $65,000 and $75,000 per annum gross plus superannuation. He agreed that the plaintiff had been in mining a lot longer than he had and that experience was a distinct advantage in obtaining work.

57 Mr O'Leary was called by the second defendant. He worked for the first defendant at Gidgee Gold Mine from 1996 to June 1998, principally as a shotfirer but occasionally driving dump trucks. He had no independent recollection of the particular day in question and could only base his evidence on the documentary records.

58 The details on a daily log sheet for the night shift for 20 - 21 April 1998 completed by Mr O'Leary, tend to suggest that he may have operated the same truck (that is, RD23) on the night shift which the plaintiff had operated during the day. This was not entirely clear because the copy of the log sheet which was available was not of a very good quality. However, based on the readings recorded on the log sheet for the hourly operation of the truck, it is certainly possible that he drove RD23 on that night.

59 He confirmed that he had made no record of any defect in the seat when he took over the truck he drove that night.

60 He said that if a seat was bottoming out he would report it to the leading hand by radio, and record it on the log sheet. He could not remember if any spare trucks were available on the go-line at the time. He confirmed that as an alternative to contacting the supervisor he could contact the BCG workshop by radio when there was a mechanical problem with the truck he drove that night.

61 Mr O'Leary only had a vague recollection of the process of keeping the daily log sheets. However, he agreed that on some occasion the marks on the carbon copies might not necessarily come through on the second or third pages of the daily sheet.

62 The fact that Mr O'Leary appears to have driven RD23 immediately after the plaintiff and recorded no defect in the driver's seat is put as evidence supporting the proposition that there was no defect in the seat when the plaintiff was driving the vehicle. I do not accept it as such. I am not convinced to the requisite standard that Mr O'Leary was driving the same truck. In any event, the evidence was that the same seat sometimes behaved differently with different drivers. Some were heavier than others. Sometimes the driving conditions in the pits were different. In short Mr O'Leary's evidence did not sway my view that the plaintiff was injured by a malfunctioning seat.

63 Mr Douglas Heales was called by the second defendant. He commenced work for the second defendant at the Gidgee mine site in January 1998. At the date of Mr Webber's accident in April 1998 he was the Maintenance Supervisor. He is a diesel mechanic having commenced his trade qualification in 1968. He has worked on truck seats since 1972. At the time of the trial he was still employed by the second defendant.

64 Mr Heales' responsibilities were to supervise the maintenance of the equipment at the Gidgee site. He also performed the same task in respect of a satellite mine site about 58 kilometres south of Gidgee.

65 Mr Heales gave evidence concerning the servicing routine for the dump trucks. This constituted a 250 hour service, a monthly service, and the daily walk-around inspection by the operator prior to taking over the vehicle.

66 He confirmed that the means of communicating to him about a defect in a vehicle was generally through the daily log sheets which were handed to him every morning by a supervisor of the first defendant.

67 He also received verbal notice directly by way of a two-way radio from drivers concerning some faults.

68 It was apparent from Mr Heales' evidence that there had been disagreements between the supervisors of the first and the second defendants concerning taking trucks out of service for maintenance. His evidence was that on occasions, the first defendant had asserted that its supervisors should make the decision rather than that of the second defendant. This appeared to be as a consequence of the first defendant's focus on maintaining levels of production and the need to avoid reduction in production that resulted from taking vehicles out of service.

69 Mr Heales' evidence was somewhat unclear concerning who in his view had the authority to withdraw a truck from service because of a defect. It was his view that it was not his role, nor that of the second defendant's other employees who were the mechanics who worked under his supervision.

70 There was tension between the first and second defendants about the first defendant's employees' use of the vehicles. Mr Heales spoke about the excessive weight of some of the operators which in his view was causing difficulties with the seats. He also referred to drivers not "driving to conditions".

71 Mr Heales made it clear that the seats in the dump trucks were a fairly constant source of concern to both the first and second defendants.

72 Mr Heales gave evidence concerning the suspension of the dump truck seat which includes a spring coil and damper mechanism. He said that on occasions a seat only lasted one shift. It was usually the damper that would fail. He kept a spare stock of dampers in the workshop for this purpose. The cost of seats that were broken by heavy drivers was charged to the first defendant.

73 Mr Heales was not always at the maintenance workshop, because his duties included supervision of mechanics at the satellite mine. He supervised a number of diesel mechanics, including Mr Hoffman.

74 Mr Heales confirmed that the daily log sheets were brought to him every day by a supervisor of the first defendant. This generally happened between 6.00 and 7.30 am when he conferred with the supervisors of the first defendant to arrange any repairs. He said this was usually not a problem because there were spare trucks although he could not say what the availability of spare trucks was at the date of Mr Webber's accident.

75 Mr Heales said that the top copy of the log sheet was then sent by facsimile by him to the second defendant's office in Hazelmere to Anne Rose or later, somebody called Sonia. There were problems with this, because the facsimile machine sometimes picked up two or three sheets at the one time thereby obscuring the sheets underneath the top sheet. He sometimes had to re-fax log sheets because of this problem. After the sheets had been faxed to the Hazelmere office he said he put the white copy in an archive box. He was unsure as to what happened to those documents when the mine closed. He had no idea what happened to the pink and yellow carbon copies. He never saw them.

76 Mr Heales recalled the complaint by Mr Webber in April 1998 concerning the seat in RD23. He said that when it was brought to his attention he wound the weight adjustment to the load rating to fit his weight and then "flopped" onto the seat. This was the test learned over years of working in the mining industry to determine whether a seat suspension was working properly. He agreed that this was not testing the seat in operating conditions, because it was performed at the time when the dump truck was stationary. He confirmed that the floor of the pit was often extremely uneven and said that he had seen a truck with "all six wheels in the air" as a consequence of travelling over rough ground. He had never checked the maintenance manual or any other document regarding testing faults in the seats.

77 Mr Heales said that he could not find anything wrong with the seat that Mr Webber had complained about. In order to "keep people happy" he arranged to swap the seat in RD23 with a seat in another vehicle. He also said there were no complaints about the seat which had formerly been in RD23 despite the fact that no repairs had actually been carried out on the seat. He said it took between three and four hours to change a seat.

78 Mr Heales confirmed that the maintenance record for April 21, 1998 showed the seat in RD23 was changed with another seat, and that the park brake was fixed.

79 He agreed that there were other reports of seats in the dump trucks bottoming out, before and after Mr Webber's accident, where there was no record of any maintenance action having been taken. Mr Heales said that swapping the seats was practised throughout the mining industry and agreed that it was probably not a good idea. He also agreed that the safety record of truck maintenance at the time was "pretty ordinary".

80 Mr Hoffman confirmed Mr Heales' evidence that swapping seats between trucks was a common practice in the industry. He also agreed with Mr Heales that flopping onto a seat was an adequate method of determining if the suspension was functioning or not. He went as far as saying that of the approximate 200 truck seats which he had changed in his career only five to 10 of them had been in his opinion, genuinely defective. He confirmed Mr Heales' evidence that changing seats between trucks in these circumstances was done to keep the operators happy. Mr Hoffman said that a number of genuine defects could in fact occur with a dump truck seat including the spring clip on the weight adjustment being "known to seize up on occasion".

81 As the provenance of the two versions of the daily log sheet were so controversial, the second defendant called a number of witnesses who gave evidence regarding document management and storage by the second defendant.

82 These were Ms Anne Rose, who worked for the second defendant in April 1998 in its Hazelmere office and her successor Ms Sonia Exell. They received the facsimiles of the daily log sheet from Mr Heales at the mine. The second defendant also called Mr Phillip Baker, Plant Asset Manager and Mr Lewis, Heavy Haulage and Plant Hire Manager.

83 It was clear from this evidence that the second defendant had made all reasonable searches for additional documents and that they had either been lost or destroyed.

Findings concerning the accident and reporting the accident

1. The plaintiff drove dump truck RD23 on the second part of the day shift on 20 April 1998.

2. The driver's seat in the truck began bottoming out at the end of the second load.

3. The plaintiff contacted the second defendant's workshop by two-way radio and was told to keep working.

4. The plaintiff recorded "seat stuffed" on the daily log sheet. This sheet was handed to the second defendant's employees, who changed the seat with a seat from another truck on the following day.

5. For a reason not able to be determined the sheet with the notation on it was not faxed to the Hazelmere office of the second defendant, but another version, minus the report of the defect was.

6. The plaintiff did not falsify or add to the log sheet after the event to bolster his claim.

84 Mr Webber has been seen by a number of medical practitioners since the early 1990's.

85 The plaintiff's own general practitioner is Dr J E Koleits, who wrote two reports and gave evidence. It was unclear when the plaintiff first consulted him but the plaintiff has seen Dr Koleits for a variety of medical matters since at least 1992.

86 The plaintiff consulted Dr Koleits on 12 May 1992, after the incident when he lifted some concrete slabs at home resulting in lower back pain. He had also been seen by a chiropractor regarding this incident. Dr Koleits examined his back which "appeared to be okay, but Mr Webber complained that there was associated pain". Dr Koleits gave the plaintiff a small quantity of Feldene (a non-steroidal anti-inflammatory agent). He did not see the plaintiff again in respect of that or any other back pain until after the incident in April 1998.

87 In Dr Koleits' view the incident of May 1992 was a "fairly minor sort of thing", which settled down "very nicely".

88 The plaintiff did not see Dr Koleits in respect of any back pain in 1995 or 1997.

89 The plaintiff also consulted Dr Adonis, described by some as "the company doctor". Dr Adonis is a general practitioner of 37 years standing. He has an interest in occupational medicine, and the first defendant referred many of its employees to him. The plaintiff first saw Dr Adonis on 31 January 1995 following the 1995 accident, which is the first accident the subject of these proceedings. There was little in Dr Adonis' reports or his evidence concerning the 1995 accident. He said in his report of 15 December 1997 that in January 1995 the plaintiff suffered a whiplash type incident causing both lumbar and cervical symptoms. He also noted x-rays dated January 1995 indicated degenerative changes to his back.

90 Dr Adonis said:

"On balance, Mr Webber should have recovered from the original accident of January 1995, and his symptoms can be attributed to the fact that he has a degenerative back condition which is aggravated by the work he performs as an Operator."

91 Dr Adonis' evidence was that after the 1995 accident, the plaintiff consulted him in February 1997 when the plaintiff had reported to him that the back pain from which he was complaining in January 1997 had improved considerably. He advised the SGIO at that time that there was a "small permanent loss of function of the lower back as a result of the (1995 injury)".

92 He suggested a 5 to 10 percent permanent disability had occurred. This report was written immediately prior to the 1998 accident.

93 Dr Adonis also saw the plaintiff on 24 April 1998 and wrote a report dated 30 April 1998. He reported that the plaintiff had attended his surgery on 24 April 1998 appearing extremely upset. The plaintiff told him about the rigid seating arrangement and his back becoming sore.

94 At that time the plaintiff was complaining of low back pain with pain radiating into the left leg. The plaintiff was walking with some restriction and was obviously in discomfort. His examination notes recorded: "Gross restriction of back movement, particularly with extension, and there was evidence of facet joint dysfunction at several levels of the lumbar and lumbosacral region."

95 His view at the time was that the plaintiff had evidence of gross facet joint dysfunction in the lumbar and lumbosacral spine with possible discogenic pathology. Dr Adonis wrote a further report repeating this advice on 28 May 1998, and urging that independent specialist advice be obtained as a matter of urgency.

96 In his evidence, Dr Adonis said that the plaintiff had evinced a keenness to return to work although this appears to have changed over time particularly after the May 1998 accident which, in the view of Dr Adonis "changed his ability to believe that he could manage his work duties". It was Dr Adonis's opinion that the degenerative changes in Mr Webber's back as shown by recent x-rays would tend to suggest that he would have had to have given up truck driving in any event even had he not suffered the two accidents in the first defendant's employment. However, he did also agree that degenerative changes in the spine can be asymptomatic.

97 Mr Barrie Slinger, orthopaedic surgeon, who practises in the area of spinal surgery provided three reports and gave evidence.

98 Mr Slinger was of the view that the plaintiff was suffering from a degenerative condition of the spine which was very common in the population, particularly among manual workers. There was no evidence of any neurological impingement in the plaintiff's spine. However, he thought that the accidents in 1995 and 1998 constituted an aggravation of that degenerative condition making it symptomatic. He did not believe that the low back sprains of 1992 and 1997 were significant. This was because the plaintiff's symptoms had resolved after each of those incidents.

99 Between the various dates upon which he examined the plaintiff, there had been fluctuation in his symptoms. However, Mr Slinger was of the view that the plaintiff remained unfit to return to his previous employment and any employment, which would involve driving for prolonged periods, for example, as a truck driver or courier. He was also of the view that in the absence of the events of 1995, 1997 and 1998 it is likely that the plaintiff would have been able to work until retirement age in his pre-accident employment as a leading hand/truck driver.

100 He believed that the exacerbation of some of the plaintiff's symptoms in 2001 and 2002 were due to the ongoing progressive degeneration of his back against a background of residual symptoms from the 1998 accident.

101 It was put to Mr Slinger that the shotfiring activities in which the plaintiff was engaged in the two days after the 1998 accident may have been the cause of his symptoms at that time. Mr Slinger thought it was most likely that the cause of the symptoms in 1998 was in fact the malfunctioning seat. He pointed to the plaintiff's description of the shotfiring activities, included dropping the boxes of powdered gel, rather than bending to place them on the ground. This was an indication that by then the plaintiff was suffering back pain.

102 Mr Paul Bannan, neurosurgeon, gave evidence and provided two reports dated 7 July 1998 and 4 April 2002.

103 He was of the view that the plaintiff had ongoing degenerative changes to his lumbar spine which became symptomatic as a consequence of the accident in July 1998.

104 He saw the plaintiff on 7 July 1998 following the accident and said that at that time the effects of the work accident had faded and the plaintiff was down to "baseline" pain.

105 He also believed that the direct effect of the 1995 incident had worn off in 1998.

106 Mr Bannan said the most the plaintiff could do would be light duties as a security guard for 10 - 20 hours per week. In Mr Bannan's view, the plaintiff had deteriorated between 1998 and 2000. He described the plaintiff as having "a degenerate lumbar spine and his pain is originating from his degenerate lumbar spine".

107 He did not believe that the plaintiff would have continued to work in a full time capacity as a truck driver irrespective of the accidents in 1995 and 1998.

108 Mr Bannan said that there was no scientific way of apportioning the pain currently suffered by the plaintiff between his degenerative back pain and pain resulting from the accident.

109 A summary of my findings based on the medical evidence is as follows:

1. The plaintiff has had degenerative changes in his lumbar spine the onset of which preceded the 1995 accident.

2. There is no evidence of disc herniation or nerve impingement.

3. The type and extent of degeneration of the spine suffered by the plaintiff may remain completely asymptomatic in some individuals, either for a long period of time or permanently.

4. In the plaintiff's case, various incidents have made his degenerative spine condition symptomatic, resulting in back pain. These incidents include the 1995 accident. This exacerbation resolved quickly, over a two-week period leaving ongoing but manageable pain, but not incapacity for work.

5. They also include the 1997 incident which occurred while Mr Webber was working in the garden. This also resolved quickly.

6. However, the 1998 accident resulted in a major exacerbation of the plaintiff's degenerative condition and led to permanent incapacity for work.

7. Mr Webber will never return to employment as a truck driver, as a consequence of the 1998 accident.

8. Had it not been for the 1998 accident the plaintiff would have continued working as a truck driver.

9. Taking a commonsense approach, a further incident or incidents exacerbating the underlying condition may well have occurred between 1998 and the plaintiff's retirement. Simply the effluxion of time and the plaintiff's prior history of back injury makes this a distinct possibility.

Cause of plaintiff's back pain and incapacity - 1995 or 1998 accident or both?

110 The first defendant does not admit that the 1995 accident caused or contributed to the plaintiff's current injury.

111 The plaintiff has had a number of insults to his back since 1992. That in 1995 was clearly a serious one. I say this simply because it resulted in the plaintiff having to take five weeks away from work.

112 The plaintiff in my view has always had a robust work ethic. His history demonstrates a determination to work, and a preparedness to return to work after accidents. He genuinely enjoyed his work.

113 I find that the plaintiff is an honest, hardworking person, who fully intended to work to the age of 65. I believe entirely his account of the first and second accidents.

114 The first defendant suggested that the plaintiff became disenchanted with work after the death of his partner in 1990, and his subsequent demotion from leading hand to operator. Doubtless, Annie's death was devastating for the plaintiff. He was annoyed that the first defendant saw fit to demote him. There was also some slight evidence that the plaintiff was unwilling to move to night shift, a change which was apparently being contemplated. However, I do not think any of these events led to the plaintiff fabricating the 1998 accident, or exaggerating its consequences in order to secure his early retirement.

115 I believe the plaintiff's account of all the relevant events, including the malfunctioning seat on 20 April 1998 resulting in severe back pain.

116 The evidence suggests quite strongly that the plaintiff's back pain from the 1995 accident was still continuing at the time of the 1998 accident, but was manageable with medication. It was certainly not causing him an incapacity at that time.

117 Did the 1995 accident cause an underlying weakness which increased the probability or seriousness of the 1998 accident? This was agreed to be a theoretical possibility by Mr Slinger, but there was simply no evidence to support this theory, in this case.

118 In my view there is no evidence supporting a conclusion that the 1995 accident caused or contributed to the plaintiff's current incapacity. I consider the plaintiff's current incapacity for work to have been caused by the 1998 accident.

119 I now turn to consider the plaintiff's allegations of negligence on the part of the first and second defendants.

120 The plaintiff alleges that on the morning of 20 April 1998, prior to him driving RD23, a faulty seat had been taken out of another truck, RD25, and placed in RD23

121 There was no single piece of evidence which led ineluctably to this having occurred. A finding, if it is to be made, must be by inference and deduction. Therefore it is necessary to consider all the relevant evidence very closely.

122 The evidence relevant to this allegation is contained in the following sources:

(ii) the BGC plant daily time sheets ("the daily time sheets");

(iii) the BGC plant's mechanic maintenance record cards ("the record cards");

(iv) the oral evidence of Mr Douglas Heales, Maintenance Supervisor of the second defendant; and

(v) the oral evidence of Mr Michael Hoffman, qualified diesel fitter employed by the second defendant as a mechanic.

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:

1. The seat in RD25 was clearly giving considerable trouble in April 1998, prior to Mr Webber's accident, as evidenced by several daily log sheets.

2. The seat in RD25 was worked on on 15 April 1998 and then removed on 20 April 1998, as shown by its record card.

3. Prior to Mr Webber's accident, RD23 was in the workshop on the morning of 20 April 1998 for sufficient time for the seat to be taken out of that truck and to be replaced with another seat, as evidenced by the daily log sheet for RD23 for 20 April 1998.

4. The swapping of seats about which there had been a complaint, between trucks, without repairing those seats, was a common practice of the second defendant, as confirmed by Mr Hoffman and Mr Heales.

144 I have not arrived at this conclusion lightly, but after an exhaustive examination of the evidence. Not all the relevant documents are available, and their absence may denote a number of different explanations, some exculpatory of the defendants. However, in my view the preponderance of evidence is in favour of the finding, notwithstanding the fact that the evidence is also capable of being construed in a different way (Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [104]).

145 The swapping of seats between vehicles in response to a complaint deserves mention. This seems to me to be a very odd practice. It involved considerable time, labour and heavy equipment. It was said to be done to "keep people happy" and to be seen to be doing something about their complaints. However, as the drivers appeared to rotate between trucks, there would be no way of ensuring that the driver who complained of a seat would not find him or herself driving on the same seat in another vehicle the following day. In short, it seems to be a fairly inexact means of "keeping people happy".

146 However, the evidence of the practice was overwhelming and not challenged. It certainly goes a long way to support the contention that the seat taken out of RD25 on 20 April 1998 was put in RD23. That, together with RD23 being in the workshop for more than three hours that morning strengthens that belief.

147 The first defendant contracted with the second defendant to provide it with equipment and to maintain that equipment.

148 The contract provided a number of terms relevant to safety of equipment, and personnel of the first defendant. It included a clause obliging the second defendant to "... at all times carry out its obligations with the highest possible regard to the safety of all personnel at the site." (Clause SC 2(a).)

149 The contract imposed stringent responsibilities on the second defendant to keep equipment safe and to employ safe practices in maintaining equipment.

150 The first defendant as the plaintiff's employer had a non-delegable duty to see that reasonable care was taken of the plaintiff's safety. Speaking of this duty the High Court said:

"That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor. ...

In the result the respondent's duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work." (Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 688 - 689.)

151 As explained by the High Court in Schellenberg v Tunnel Holdings Pty Ltd (supra), while onerous, this duty does not extend to providing for a no-fault regime of compensation (see Kirby J at [101] to [104]).

152 The Western Australian Supreme Court in Connector Drilling Pty Ltd v Equigold NL (2003) WASCA 78, held that the effect of the dicta in Kondis is that:

"A non-delegable duty is essentially one in which there is a departure from the basic principles of liability and negligence, by substituting for the duty to take reasonable care one to ensure that reasonable care is taken." (At [11].)

153 What must follow from this recitation of the case law is that the first defendant could not, by contract or otherwise, avoid liability by delegating to the second defendant its duty to take reasonable care of the safety of the plaintiff.

154 Was the second defendant negligent in simply swapping the seat from RD25 to RD23 in response to a complaint from a driver of the seat "bottoming out", rather than repairing or replacing the seat? In my view, it was. There had been repeated complaints about the seat in RD25. In a pit as rough as this mine it was entirely foreseeable that a back injury would result from inadequate suspension in a driver's seat. This "musical chairs" approach was bound to eventually result in an injury to a driver.

155 The second defendant had alternative means available to it. It could have repaired the seat, by replacing the shock absorber. It had spare shock absorbers in its workshop. It could have replaced the seat with a new or reconditioned seat. Indeed there was a reconditioned seat in the workshop at the time. While undoubtedly there was a cost involved, in time and materials, the likely injury to a driver could be extremely severe. Moreover the swapping of seats itself involved considerable expenditure of time and resources.

156 The second defendant says that most drivers' complaints about seats were thought by them to be baseless. However, their rough and ready "flop" test was not done in operating conditions and had been devised by the mechanics themselves without reference to the manufacturer's instructions. Their assumption was based on inadequate information.

157 The other act which contributed to the plaintiff's injury was the instruction by the mechanic employed by the second defendant for him to keep on driving the truck, rather than bringing it in. This arose from the lack of any established protocol, rule or guideline which was communicated to drivers or enforced by either the first or second defendants to permit an operator to bring in a truck to be repaired, in the event of a defect which could result in injury to the driver.

158 The policy of the first defendant was to insist on its supervisors' right to determine if a truck was to be removed from service for maintenance. This was clear from Mr Heales' evidence, which was not challenged or contradicted.

159 However, the operators were not made aware of this policy. The court was informed by a number of different operators and mechanics of different opinions as to who they thought had the authority to order a truck out of service. The plaintiff calling the second defendant's workshop for advice, rather than his own leading hand, seems entirely reasonable, when considered in this context.

160 This failure to provide a clear line of communication between the operator and the supervisor to facilitate the removal of a defective truck out of service is a failure of the first defendant. This is not through the effect of its non-delegable duty but one directly attributable to the first defendant, which had overall control of the site, and overall responsibility for its employees' safety.

161 It was entirely foreseeable - indeed predictable - that the lack of such a system would eventually lead to an injury.

162 Had there been a properly enforced system the plaintiff would not have been injured so badly.

163 It is necessary to make an estimate of the extent to which each negligent act or omission contributed to the plaintiff's injury and incapacity.

164 This is a highly artificial exercise. It requires a determination of how badly the plaintiff would have been incapacitated had he been directed to take the truck out of service immediately after his radio call to the workshop.

165 Doing the best I can with the evidence available, I apportion 50 per cent to the negligent placement of the seat by the second defendant and 50 per cent to the first defendant's failure to have a safe system of withdrawing defective trucks from service.

Contributory negligence claim against plaintiff

166 The first defendant claims that the plaintiff contributed to his own injuries by failing to "immediately or within a reasonable time report the alleged problems with the seat of the RD3 dump truck to the defendant."

167 The plaintiff did in fact report the problem with the seat within a reasonable time. He did so, not to the first defendant, but to the second defendant. This was in accordance with one of the accepted practices at the time. He was told to keep working and did so. I find nothing in this conduct which is negligent on the plaintiff's part.

Plaintiff's claim against second defendant in contract

168 As I have found against the first and second defendants in negligence it is not strictly speaking necessary to rule on this part of the claim.

169 I do observe however, that the doctrine in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 does not go as far as is suggested by the plaintiff.

170 The contract between the first and second defendants did not name the plaintiff or a class of persons to whom the plaintiff belonged as a person or persons intended to be beneficiaries of the contract. This point was dealt with in Visic v State Government Insurance Office (1990) 3 WAR 122 in which Seaman J made the boundaries of Trident v McNiece very clear.

The first defendant's counterclaim against the plaintiff

171 The first defendant claims that the plaintiff breached implied terms of his employment contract by failing to notify the defect in the seat to the first defendant, or the second defendant.

172 I have found that the plaintiff did notify the first defendant (by means of the daily log sheet) and the second defendant (by a radio call to the workshop) of the defect in the seat.

173 His notification of the first defendant by the daily log sheet submitted after the shift may be said to have been too late, as it was after the damage was done.

174 However, as already observed there was no evidence of any established procedure of the first defendant for notification of faults during a shift and that evidence there was, differed between individuals. There was certainly insufficient evidence to support the implication of a contractual term into the contract of early notification of faults directly to the first defendant.

First defendant's claim against second defendant/third party

175 In the event of it being held liable the first defendant claims an indemnity from BGC (named as both third party and second defendant in the proceedings) or a contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947.

176 As already noted, the first and second defendant had a contract pursuant to which the second defendant agreed to provide and maintain mining equipment to the first defendant at the mine.

177 Special Condition 7 of the contract provided:

"(a) The Contractor shall be solely liable for and indemnify and keep indemnified the Principal and its directors, officers, agents and employees (hereinafter called "the Indemnities") against all claims, damages, demands, losses, costs, liabilities, suits, actions, expenses or proceedings of whatsoever nature whether arising under any statute or at common law arising out of injury to (which shall include illness) or death of any person (including the indemnities) whomsoever arising out of in the course of caused by the execution of the Works under the Contract or other obligations hereunder directly or indirectly associated herewith and damage to or destruction of any property real and personal (including property of the Indemnities and the Contractor and the officers, agents and employees of the Contractor) caused directly or indirectly by:

(ii) the presence of the Contractor including any of its officers, agents employees or Subcontractors on or about the Site regardless of the negligence of the Indemnities except where such injury, death, damage or destruction is the result of the sole negligence of the indemnities."

178 As the second defendant points out, the indemnity is not relevant unless liability is visited on the first defendant.

179 Liability has been visited to the first defendant both directly and via its non-delegable duty.

180 Special Condition 7 is quite clear. Its effect is that the second defendant must indemnify the first defendant against any award of damages to the plaintiff arising out of the injury caused to the plaintiff from the negligent placement of the seat.

181 In addition of course there is the negligence directly attributed to the first defendant in failing to provide for a safe system providing for defective trucks to be taken out of service. Notwithstanding the broad terms of Special Condition 7 I do not consider this failure as arising out of or in the course of or caused by the execution of "the Works under the Contract or other obligations hereunder directly or indirectly associated herewith ...". It was a managerial failure of the first defendant itself.

182 I have apportioned 50 per cent each to each of the first and second defendants.

183 I will order, therefore, that the second defendant indemnify the first defendant to the extent of 50 per cent of the award to the plaintiff.

184 As mentioned before, Mr Molloy, an actuary from Mercer Human Resource Consulting, provided reports dated 8 October 2002 and 28 October 2002. Instead of relying on the standard formulae propounded Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192 the plaintiff's solicitors instructed Mr Molloy to calculate the plaintiff's lost superannuation benefits on the basis of the expected lost value of his superannuation contributions on an actuarial (risk assessment) basis.

185 Criticism was levelled against Mr Molloy's methodology by counsel for the first defendant. In particular, his reliance on a figure estimating future returns to invested superannuation funds which had been suggested by a group of Mercer fund investors, was questioned. As the background and qualifications of these individuals were unknown, their estimates were potentially unreliable.

186 I do not accept these criticisms. Mr Molloy's opinion was in my view, well-reasoned, and set out clearly the assumptions which underpinned his analysis. These assumptions appeared to be reasonable and were not challenged by competing expert opinion. I see no reason why I should not adopt Mr Molloy's approach while considering loss of the plaintiff's superannuation benefits.

187 The plaintiff was injured in two accidents, one in 1995 and one in 1998.

188 While liability is admitted for the 1995 accident, the effect of the threshold in s 93D of the Workers' Compensation and Rehabilitation Act 1981 disentitles the plaintiff from an award for that accident.

189 I do not think the 1995 accident contributed in any way to the occurrence of the 1998 accident, nor to the plaintiff's resulting pain and incapacity.

190 The plaintiff's pre-existing degenerative condition of the spine requires some comment. Absent the second accident it may have remained asymptomatic for some time or permanently. There is no scientific or reliable means of determining the chance of this occurring. However, I think it possible that it would have become symptomatic to a disabling extent before the plaintiff's retirement.

191 The plaintiff suffered a number of insults to his back between 1992 and 1998 all of which he had overcome with little or no time off work. As he grew older however, it is possible that the aging process or simply the further exposure to driving over rough ground would render the condition symptomatic to the extent that he could not work. I propose to make a deduction for contingencies for this factor.

192 The plaintiff's employment with the first defendant would have come to an end in late 1998. He would have been 57 years of age. The evidence was that he would have been employable as a truck driver. This finding may be surprising to some, given the well-known difficulty older people experience in obtaining work in many occupations. However, I am obliged to base my decision on probative evidence, not commonly-held but untested assumptions. The evidence of Mr North, Mr Whitehead and Mr Kirkpatrick all pointed to the plaintiff being eminently employable (absent the 1998 accident) and I so find.

193 The evidence was that experienced truck drivers earned $1,000 net per week. This was not challenged in cross-examination, or contradicted by any other evidence.

194 The plaintiff has a partner with whom he may wish to enjoy his retirement. He has worked in demanding jobs all his working life, and I think it more likely than not that he would have retired at the age of 65, in December 2006, if he had not been forced to do so earlier than this by an exacerbation of his spinal condition.

195 Following the 1998 accident, the plaintiff received weekly payments of $10,805 net with the Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component agreed at $4,344.

196 The first period of the plaintiff's past loss of earning capacity is calculated as follows:

20 weeks (17 August 1998 - 31 December 1998) x $691 = $13,820.

197 Further past economic loss to date of trial is calculated as follows:

198 Total past economic loss is therefore $214,625 plus interest of $27,108.

199 Future economic loss is calculated on the basis of the multiplier for four years of remaining working life of 186.2. Applied to the net earnings figure of $1,000 per week provides a total of $186,200.

200 There was some evidence of the plaintiff having a retained capacity for part-time work.

201 No evidence was put before the court as to the availability of such work to a person of the plaintiff's age and background. These are matters for the defendants to prove. I do not consider his work prospects to be at all bright. I therefore do not make any deduction for that factor.

202 On the basis of Mr Molloy's evidence I award the plaintiff $14,338 for past loss superannuation and $1,935 in interest.

203 On the same basis I award him $28,457 in future superannuation entitlements including interest.

204 As indicated above, I will make a deduction from the plaintiff's award for future economic loss (including future lost superannuation benefits) to take account of the possibility of him having to stop working as a consequence of another disabling back injury before retirement. I make a deduction of 15 per cent for this factor.

205 Past medical expenses are agreed at $7,423.

206 Future medical expenses are awarded at $17,300, being for the costs of medication Oruvail, Panamax, Panadeine and Forte and fortnightly physiotherapy.

207 Past assistance for lawn moving is awarded at $180, and future assistance at $4,500.

208 At the time of the trial, the threshold pursuant to s 93D of the Workers' Compensation and Assistance Act 1979 was $130,609. The award for future economic loss exceeds that amount.

209 As previously noted, I have attributed 50 per cent of the responsibility to the actions or omissions of each. Accordingly, I shall order that each should bear the costs of the plaintiff's award equally.

Interest on past lost superannuation benefits $1,935.00