White v Malco

B Toomey QC/Mr Dooley - Plaintiff MJ Neil QC/I Mescher - 1st Defendant COUNSEL : G Swinton - 2nd Defendant D Nock SC - cross-defendant C Branson QC/D Conti - cross-defendant I Faulkner - cross-defendant Adams Leyland - Plaintiff Cutler Hughes & Harris SOLICITORS : Leitch Hasson & Dent Ebsworth & Ebsworth Harris Leberman & Boyd Henry Davis York CATCHWORDS : Negligence - personal injuries - employer's duties - hire of goods - reasonably fit for purpose DECISION : Preliminary judgment

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FILE NO. - 20152/98 - White v Malco Engineering Pty Limited

HIS HONOUR: 1 HIS HONOUR: In these proceedings the plaintiff, Bruce Charles White, sued the first defendant Malco Engineering Pty Limited ("Malco") and the second defendant Skilled Engineering Pty Limited ("Skilled") for damages for personal injuries allegedly suffered in an accident occurring on Saturday 4 November 1995 at the premises of Australian Newsprint Mills ("ANM") at Albury. At the time of the accident the plaintiff was employed by Skilled but was working in the operations of Malco, to whom Skilled had hired his labour. The plaintiff was working at the premises of ANM with two employees of Malco, named Peter Dyson ("Mr Dyson") and Leslie Onody ("Mr Onody"). When he was injured the plaintiff was engaged in attempting to jump start an item of equipment, which was variously referred to in the evidence as an elevated work platform, a boom lift or a cherry picker and which, for the sake of convenience, I will refer to as "the boom lift", by using the battery of a Manitou forklift ("the forklift"), which had been positioned alongside the boom lift. During this operation the forklift started moving forwards, trapped the plaintiff's right foot thereby throwing him to the ground and then ran over part of the plaintiff's right leg, injuring the leg. 2 The plaintiff's case against Malco, succinctly stated, was that Malco owed the plaintiff duties analogous to those owed by an employer to an employee and had failed to take reasonable care to provide safe plant and equipment and a safe system of work (in particular, it was alleged that the forklift was defective) and that by reason of these breaches of duty the plaintiff had been injured, or, alternatively, Malco was vicariously liable for casual acts of negligence by its employee Mr Onody, by reason of which the plaintiff had been injured. The plaintiff's case against Skilled, succinctly stated, was that Skilled, as the actual employer of the plaintiff, was subject to the duties of an employer, which were non-delegable, that Skilled itself had failed to discharge those duties and Skilled was liable for failures by Malco to take reasonable care to provide safe plant and equipment and a safe system of work. 3 No fewer than nine cross-claims were brought in the proceedings and these cross-claims had the effect of considerably prolonging the hearing. Many of these cross-claims were based on the allegedly defective condition of the forklift or on an alleged statutory liability of a cross-defendant as being the "owner" of the forklift. In order to understand the cross-claims, it is necessary first to record a number of facts about the forklift, none of which were in dispute at the hearing. 4 Between 13 May 1993 and 31 January 1996 the forklift was registered as a motor vehicle in the State of Victoria pursuant to Victorian legislation, the registered owner being "Caddy's Timber & Hardware". It was common ground at the hearing that between those dates the registered owner of the forklift was in fact a company Syd-Fam Pty Limited ("Syd-Fam"), which carried on business at Yarrawonga in the State of Victoria under the name of Caddy's Timber & Building Supplies. The forklift had been acquired by Syd-Fam through a company Lift Truck Services Pty Limited ("Lift Truck Services"), which carried on in Albury the business of selling and servicing forklifts. An associated company Liftqip Pty Limited ("Liftqip") carried on the business of hiring out forklifts, using the same premises as Lift Truck Services. Forklifts hired out by Liftqip were serviced and maintained by Lift Truck Services. During the period that Syd-Fam owned the forklift, the forklift was serviced on a number of occasions by Lift Truck Services. 5 In August 1995 the forklift was brought back to the premises of Lift Truck Services in Albury, where it remained until 31 October. 6 In late October 1995 Malco required a forklift for use in carrying out the work it was performing at the ANM Mill in Albury. Mr Moore, a supply manager employed by Malco, telephoned Mr Hudson of "Wreckair", a company carrying on business in Wodonga in Victoria and arranged for the hire of a forklift by Wreckair to Malco. The company formerly trading as "Wreckair" is now named Prevwreck Pty Limited and it will be convenient to refer to it as "Prevwreck". 7 A purchase order dated 26 October 1995 was sent from Malco to Prevwreck for the hire of a five tonne forklift "on site Australian Newsprint Mills… from midday Monday 30/10/95". 8 Prevwreck did not have a forklift of the size ordered by Malco in its depot and Prevwreck arranged for a forklift to be hired from Liftqip. 9 On 31 October 1995 an employee of Prevwreck, Jason Harders, picked up the forklift from the premises of Lift Truck Services at Laverton and delivered the forklift to the premises of ANM. 10 The hire of the forklift by Malco continued to 9 November 1995. On 9 November 1995 Prevwreck gave Malco a "returned from hire" document. Liftqip sent an invoice to Prevwreck for the rental for the hire of the forklift and associated charges and Prevwreck sent an invoice to Malco for the rental for the hire of the forklift and associated charges. Prevwreck charged Malco a higher rate of rental than Liftqip charged Prevwreck. 11 As I have already indicated, no fewer than nine cross-claims were brought in the proceedings. Some of these cross-claims were brought against more than one cross-defendant and contained more than one cause of action. I will now list the cross-claims, not in accordance with their nominal order, but in what I consider to be a more functional and comprehensible order. 12 1. Cross-claim by Malco against Skilled (which was nominally the third cross-claim). 13 2. Cross-claim by Skilled against Malco (part of the fifth cross-claim). 14 3. Cross-claim by Malco against Prevwreck (the seventh cross-claim). 15 4. Cross-claim by Malco against Liftqip (the sixth cross-claim). 16 5. Cross-claim by Malco against Lift Truck Services (the first cross-claim). 17 6. Cross-claim by Skilled against Lift Truck Services and Liftqip (part of the fifth cross-claim). 18 7. Cross-claim by Malco against Syd-Fam (the second cross-claim). 19 8. Cross claim by Skilled against Syd-Fam (part of the fifth cross-claim). 20 9. Cross-claim by Prevwreck against Lift Truck Services and Liftqip (the eighth cross-claim). 21 10. Cross-claim by Syd-Fam against Skilled (the fourth cross-claim). 22 11. Cross-claim by Syd-Fam against each of Lift Truck Services, Liftqip and Prevwreck (the ninth cross-claim) 23 No cross-claim was brought by either Lift Truck Services or Liftqip against anyone. 24 It became apparent during the course of the hearing that it would be impracticable for me to attempt to prepare a single judgment in which I dealt definitively with all of the many issues which have arisen in these proceedings and it was accepted by the parties that I would first deliver a preliminary judgment in which I dealt with some only of the issues. The present judgment is such a preliminary judgment.

The Evidence 25 The evidence at the hearing was extensive. I will now summarise some of the more salient parts of the evidence of each witness. I have taken into account all of the evidence, oral and documentary, whether or not it is included in my summary.

Evidence in Chief 26 The plaintiff was born on 21 August 1957. He left school at the age of seventeen. He married in 1981, the marriage is still subsisting and there have been two children of the marriage, who at the time when the plaintiff gave his evidence in chief in November 1998 were aged seventeen and fifteen. 27 The plaintiff had obtained a rigger's ticket and various tickets as a crane driver. I accept that he qualified for a forklift ticket, although inadvertently the actual documentary ticket was not sent to him. At the time of the accident the plaintiff had been driving forklifts for approximately ten years. 28 Between 1988 and 1990 the plaintiff carried on his own business, contracting to do any work he was qualified to perform. 29 The plaintiff said that he had not been working full-time between 1990 and the time of the accident. He gave the following further evidence:- "Q. What were you doing? A. I was applying for work when I needed money, and mainly spending most of the my time with my children and my wife. * * * Q. What were you averaging as to the number of days a week you were working? A. Well, I would average about four days a week, but not consecutive. I may work three weeks straight seven days a week and then I will take a month and a half off and not even worry about applying for a job. Q. Did you intend to continue doing that forever? Was that the programme you were going to follow? A. No, up until my children became of age where they were getting on with their own life. I was then going to concentrate on going back to the big dollars in the major cities. Q. What, full-time work? A. No, as in similar thing, coming up to Sydney, work for three months then quit the job and go home, just get enough money to last for a few more months then go back, but I would have been putting a lot more emphasis in earning a lot more money to go towards my retirement as in I hadn't really worried about it beforehand". 30 The plaintiff gave some evidence about the kind of life he had been leading before the accident. He had been a member of a motor bike club and had engaged in many active out-door activities. He had spent a lot of time with his children. He and his wife had had a close relationship and had gone touring together. 31 The plaintiff had previously worked for Skilled on a few occasions. On the present occasion:- "Malco rung me direct and wanted to put me through a hire company and they didn't care which one, and I told them Man Power, Skilled Engineering". 32 The plaintiff began working at the ANM Mill on 30 or 31 October 1995. He worked as part of a gang or crew with Mr Dyson and Mr Onody, who, as I have previously said, were employees of Malco. Both Mr Dyson and Mr Onody, but particularly Mr Dyson, gave him instructions on what he had to do. The plaintiff was paid for his work by Skilled. 33 On Saturday 4 November 1995 the plaintiff, Mr Dyson and Mr Onody were engaged in bolting parts of an overhead steel gantry together. The plaintiff was instructed by Mr Dyson to climb a ladder. The plaintiff refused to use the ladder because it was bent and dangerous. He was then instructed by Mr Dyson to find some kind of substitute for the ladder. The plaintiff found the boom lift, which had the keys in the ignition. It was common practice on the site to use whatever equipment was available. The plaintiff brought the boom lift to a place where the three men were working. Mr Dyson then used the boom lift to fix bolts in the gantry. 34 When the plaintiff, Mr Dyson and Mr Onody were getting ready to stop work for the day, it was discovered that the boom lift could not be restarted. It was necessary to restart the boom lift, because the boom could not be left sticking up in the air. The battery of the boom lift had gone flat. The three men had "a bit of a conference to.. get another machine to try and start the boom lift". The plaintiff got the forklift, which he had used previously at the Mill and brought it over to the boom lift. 35 The plaintiff had been present, when the forklift had been delivered to the Mill. The person delivering the forklift (Jason Harders) told the plaintiff "that it was very hard to find neutral in the forklift… , so to be careful". However, the plaintiff said in his evidence:- "I hadn't found any difficulty with finding neutral, mainly because when I turned the machine off I always made sure it wasn't moving and pulled the kill switch, so it had to be in neutral". 36 The plaintiff had driven the forklift for two to three hours a day each day since 30 or 31 October, except for the last two days before the accident. He considered that the forklift was inadequate, out of date and "a terrible forklift". The handbrake was unsatisfactory. "There was no way it was going to hold the forklift if it was on a hill or anything. Also the markings on all the levers were being used for so many years… virtually impossible to see". 37 An abortive attempt was made to tow the boom lift, using the forklift and a sling. It was then decided to try and jump start the boom lift using the forklift. The plaintiff continued:- "I moved it parallel to the forklift,(the plaintiff obviously meant the boom lift) getting the wheels reasonably close together. I put the tongs down to the ground, pulled the hand brake on, made sure it was out of gear because I was jump starting a vehicle, turned the machine off with the kill pull. I hopped out, down to hook the batteries up. Les passed me some welding leads which are high - then we used some clamps to connect the batteries up and Les started the forklift up". 38 Mr Onody started the forklift, because he was asked to do so by the plaintiff. One of the clamps the plaintiff was using on the forklift battery was unsatisfactory. Mr Onody went to his tool box, which was some distance away from the forklift, to get another clamp. The plaintiff continued:- "Within about 20 to 30 seconds, I noticed the forklift actually started moving; because I had my hands on the forklift before it started moving, where the batteries were". * * * "It caught my right foot, which threw me down on the ground. I tried to pull my boot out of my foot which didn't work. It crawled up my leg at a slow pace. I screamed out. Les run over and jumped in the forklift. He was trying to stop the forklift and was unable to. He was pulling levers. He turned or someone turned the wheel, which then pinned me up against the wheel of the boom lift because when I threw myself down I spun myself around, so it would only run over my leg but when the wheel got turned it actually crawled further up onto my hip, pinned my chest and my back on the wheel of the other and at that point I thought I was going to die and then all of a sudden the wheels turned back the other way and it run over my left hand because I was actually pushing myself away, trying to get away from the wheel at the time. Then the forklift kept going and jammed up against the conveyer that we had just put in earlier, resting at that spot there". 39 The plaintiff did not lose consciousness in the accident. After the accident he was taken immediately to the Albury Base Hospital and his right leg was placed in traction. Surgery was performed to fix fractures he had sustained in his right leg. His right leg was grossly swollen for some time. 40 The plaintiff was discharged from hospital on about 27 November 1995. When he returned home, he was mobile only on crutches. For a month or so he was looked after by his wife and children, who washed him, cooked for him and put his trousers on. The plaintiff gradually became more capable of looking after himself. He was troubled by clicking in his right knee. He had difficulty in walking over rough ground or up and down stairs. The plaintiff continued:- "I have improved immensely as in I can climb up steps and I can walk across rough ground, it is just the pain that I suffer if I do a great deal of it, after". * * * "In the hip area mainly, and the lower back if I do, if I seem to do any long-distance walking". 41 The plaintiff dislikes taking medication but does take pills which assist him to sleep. 42 The plaintiff considered that the condition of his back and leg was fairly stable, although whether he has to walk with a limp varies dramatically, depending on what activity he has engaged in and whether the plaintiff has been travelling. 43 After the accident the plaintiff took part in a rehabilitation programme lasting about three months. He subsequently obtained a position as a sales person in a local Harley Davidson shop run by CJ's Big Twin Pty Limited. Between January and April 1997 he attended three days a week "training". After Easter 1997 (from 17 April 1997) and until April 1998 he worked five days a week as a sales person, earning $284 a week net. He had coped quite well with training three days a week. However, working five days a week he was in a lot of pain with his hip, lower back and knee. In April 1998 the plaintiff started working for three days a week only. 44 An incident occurred at the plaintiff's place of work, when a customer of the business assaulted the plaintiff. After the assault the plaintiff decided not to go back to work at the Harley Davidson shop. The plaintiff has not worked since. The plaintiff said:- "Up to date I have looked in the paper, but I've actually contacted no one for other work because it's hard to get somebody to employ you three days a week. There has been nothing advertised". * * * "I would work nowadays if I could work for myself, really. I don't want to work for another employer, be put in the hands of somebody else any more". 45 The plaintiff said that he would not be able to do a rigger's work or manual work "because I couldn't do heavy lifting". He would like to be self-employed "when my wife and I could run a small business, where I only have to do three days per week". 46 Before the accident the plaintiff did all of the handyman work around the house, the lawns and some of the gardening. After the accident a back room of the plaintiff's house had been rebuilt but the plaintiff son had done ninety per cent of the work because the plaintiff experienced pain after climbing, lifting and bending. Since the accident the plaintiff has done only about ten per cent of the handyman work around the house. The plaintiff said that his son did the general maintenance around the house. He said:- "He would spend two hours a day. He mainly does it on Mondays and Tuesdays because he goes to TAFE three days a week, so it would be a good 16 hours a week he would spend. * * * "Everything from cleaning the shed out, maintenance on the lawn mowers, because I have got two lawn mowers, general tidying up, going through my market stuff that I have got left and a lot of different things". * * * "He also does the lawns". 47 Since the accident the plaintiff has had the house painted and the patio and driveway of the house concreted, jobs he would have done himself if he had not been injured. 48 The plaintiff told the rehabilitation expert Mrs Ravagnani what is now being done for him by members of his family. Since the accident the plaintiff has been unable to go bushwalking or engage in other out door activities and he resigned from the motor bike club because he was unable to participate fully.

Cross-examination 49 The plaintiff was cross-examined at length by counsel for Malco. 50 The plaintiff said that the forklift had two gear levers, a main gear lever and a forward-reverse lever, which the plaintiff said had neutral and also low ("I'm 90 per cent sure"). 51 The plaintiff said that in parking the forklift alongside the boom lift:- "I put the lever between my legs, which is the gear shift, in neutral. I lowered the tongs on the ground, pulled the handbrake lever on and the other lever which is on the left-hand side (the forward-reverse lever) into neutral". 52 The plaintiff had driven the forklift about fifty feet to the boom lift and had then reversed the forklift, until it was alongside the back of the boom lift. The abortive attempt to tow the boom lift by using the forklift had then been made by means of a sling from the forklift to the boom lift. The plaintiff then relocated the forklift alongside the boom lift. The plaintiff was ninety per cent sure, although he could not remember precisely, that in this manoeuvre he had first moved forward in first gear and had then reversed the forklift. 53 The plaintiff accepted that the forklift would have been in gear, when it was moving forward and trapped his foot and then his leg. The forklift was moving very slowly and that was consistent with the forklift being in a low forward gear. For the forklift to move forward (if it was in proper working condition), the main gear lever would have had to have been in gear and the forward-reverse lever in the forward position. If the handbrake had been applied and had been operating properly, the handbrake should have stopped the forklift from moving, even if the main gear lever had been in gear and the forward-reverse lever had been in forward. 54 When the plaintiff had driven the forklift at the Mill before he had been injured, he had not had any problem with the forklift moving, when it should not have. 55 The plaintiff said that he had pulled the handbrake "all the way back.. when I used to pull it, I used to pull it as far back as it could possibly go". 56 The plaintiff was shown photographs of the forklift, in which he identified the main gear lever, the forward-reverse lever and the handbrake. 57 The leads which had been used in trying to jump start the boom lift were welding leads, approximately twenty feet long. 58 The plaintiff gave evidence that no one from Skilled had shown him any manual for forklift driving and no one from Skilled had told him that the forklift should not be started unless someone remained at the controls and that no one from Skilled had told him that one should not stand near the wheels of a forklift while its engine was running. He also said that no one from Skilled had told him to report to Skilled, if he had any safety problem with any of the equipment he was provided with. 59 The plaintiff was asked about the making of the decision to attempt to jump start the boom lift. He said it was "a group decision"… I don't know whose idea it was to use the forklift". 60 The plaintiff asked Mr Onody to start the engine of the forklift, because the plaintiff was engaged in applying the leads to the battery of the forklift and it was necessary to have the motor of the forklift running, in order to jump start the boom lift. 61 The plaintiff could not recall how Mr Onody started the forklift. At one point Mr Onody was standing on the running board or foot plate near the cabin of the forklift. From that position, Mr Onody would have had to have leant into the cabin of the forklift in order to start the forklift. After the engine of the forklift had started, Mr Onody left to get a better clamp from his tool box, because the clamp the plaintiff had was unsatisfactory and it was not possible for the plaintiff simply to hold the end of the lead with his hand on to the terminal of the battery of the forklift. 62 After Mr Onody left to get the clamp, the plaintiff did not turn off the engine of the forklift, because he was holding the welding lead and the clamp. He agreed that he could have let go of what he was holding and turned the engine off and that that would have been a safer course to adopt, than remaining where he was with the engine of the forklift running and no one at the controls of the forklift. 63 The plaintiff estimated that twenty to thirty seconds elapsed after the engine of the forklift was started before the forklift started to move but he could not be precise about the length of time which elapsed. He denied that it could have been as short as ten seconds. 64 With regard to his evidence that he had been told by the person who had delivered the forklift to the Mill that it was hard to get the forklift into neutral, the plaintiff agreed that that could have meant that either the main gear lever or the forward-reverse lever was hard to get into neutral. 65 The plaintiff gave further evidence about his practice in stopping the forklift. He said:- "I always, the way I shut the machine down I had never any trouble with the forward and reverse. The trouble I found with the forklift is the floor shift, because it had so much slop you felt if it was in gear it was in neutral and if it was in neutral it felt like it was in gear. So I depress the clutch, pull it back one click, take my foot off the clutch, then I would put the other lever into neutral and that was the way I parked the machine with the tongs on the ground, and I had the forklift sitting over night, went back, hopped in it, started up and never had a problem with it". 66 The plaintiff said:- "The four speed gear lever had a lot of slack and no markings on, where it was supposed to be sitting". 67 It was necessary to use the clutch in order to use the main gear lever but it was not necessary to use the clutch in order to use the forward-reverse lever. 68 The forklift was started simply by turning the ignition key. 69 The plaintiff had had no experience of the forklift taking some time to start moving, after the engine had been started and the forklift was in gear. If, when the forklift was started, the forward-reverse lever was in neutral, then, even if the main gear lever was in gear, the forklift should not move. 70 When it was put to the plaintiff that he might have left the forklift in gear, without knowing it, he replied:- "No, because I released the hydraulic switch, the hydraulic forward-reverse switch last and my foot was already off the clutch. I made that a practice to make sure it was in neutral. So if it was in gear, as soon as I took my foot off the clutch it should have moved forward". 71 At the time of the accident the plaintiff had no idea whether Mr Onody had any knowledge of how forklifts operated. The plaintiff simply told Mr Onody to turn the forklift on. The plaintiff did not tell Mr Onody to get into the driver's seat of the forklift or to stay near the forklift after he had started it. 72 The plaintiff was cross-examined about complaints he said he had made about the forklift to Mr Dyson. The plaintiff said he had complained to Mr Dyson about the age of the forklift and that the handbrake did not work and that he had repeated to Mr Dyson what the person delivering the forklift to the Mill had said about the gears. 73 The plaintiff agreed that, even if the engine of the forklift was on and the forklift was in gear, activating the kill switch would immediately bring the forklift to a halt. 74 At the time he gave evidence in November 1998 the plaintiff was still employed by the motor cycle shop, although he had not actually worked in the shop since about September 1998, when he had been assaulted. The employer at the motor cycle shop had been "very negotiable" on how much time the plaintiff spent walking around and how much time he spent sitting down. The job at the motor cycle shop had been "created" for the plaintiff. The main thing he did was to answer the telephone. The plaintiff was not a very good reader and "a lot of people take my manner as being rude and abrupt, which doesn't make very good telephone skills". 75 The plaintiff was asked about his work habits before the accident. He agreed that he and his wife had developed a philosophy of not being "slaves to work", that they were going to leave room in their lives for more creative and fulfilling activities than work. He had tried to work six months out of the year and have six months off. However, he claimed that, if the accident had not happened, this pattern would have continued only "until the kids were old enough". 76 The plaintiff was cross-examined by counsel for Skilled. 77 He gave further evidence about the telephone call he had received from Malco. He said:- "They said that they wanted me to continue on with the job because I was familiar, and that they wanted me to continue on with the job because I was familiar working with the crew, and that I'd have to go through a body hire company and they didn't really care which one it was". 78 The plaintiff agreed that plant and equipment at the site had been provided by Malco and that Malco employees controlled what the plaintiff did and when he did it. 79 The plaintiff could not remember the truck driver who had delivered the forklift to the ANM Mill. The plaintiff had walked over to the truck driver to take delivery of the forklift. The truck driver had not given any demonstration of the forklift. 80 The plaintiff had not known anything about the qualifications, or rather lack of qualifications, of Mr Dyson and Mr Onody in relation to forklifts. 81 The plaintiff would be able to work at a bench, if he could stand or sit, on his own terms, and also walk around from time to time. 82 The plaintiff said that because of the assault he was receiving weekly payments of workers' compensation. 83 The plaintiff was cross-examined by counsel for Syd-Fam. 84 The plaintiff said that his recollection was that he had used the forklift on two days, other than the day on which the accident happened. 85 The plaintiff could not recall who from Malco had telephoned him. He had been told in the telephone conversation that he would be doing labouring and rigging work, general helping out and operating a forklift and other machinery. 86 The plaintiff had previously in 1995 worked with Malco at the ANM Mill, "going through Skilled". On that occasion it had been Skilled, and not Malco, who had contacted him. 87 The plaintiff had gone to Skilled's office in Wodonga "seven years ago", filled out an application form and produced the trade tickets he then held. All his subsequent contacts with Skilled had been by telephone. A few days before the plaintiff attended at the Mill in October 1995 he had had a telephone conversation with an officer or employee of Skilled, in which he had said that he had a certificate to operate forklifts. The plaintiff did not discover that the document which had been sent to him after he took the test for his forklift ticket was not a forklift ticket, until some time after the accident had happened. 88 The plaintiff knew that Mr Dyson was a fitter and that Mr Onody was a boilermaker-welder. He had not seen either of them operate any of the equipment at the Mill, except that Mr Dyson had operated the boom lift. Mr Dyson was the nominated leading hand of Malco. Each morning the plaintiff reported to Mr Dyson. The duties the plaintiff performed on the site were allocated to him by Mr Dyson. The plaintiff was not given any directions about how to operate any of the machinery. Apart from Mr Onody some times asking the plaintiff to bring something over to him, Mr Dyson "had the last say in every other matter". 89 The plaintiff gave evidence about the task which he, Mr Dyson and Mr Onody were performing on 4 November. They were erecting several steel columns and overhead beams (that is an overhead gantry frame), which had been prefabricated by Malco. On the afternoon of 4 November 1995 the task was to affix bolts to the frame. The bolts were to be affixed about twelve to thirteen feet above floor level. The ladder which Mr Dyson had asked the plaintiff to use and which the plaintiff had refused to use, was a ladder belonging to Malco, which had been obtained from a container in which Malco's tools and equipment were kept. 90 After the plaintiff had refused to use the ladder, Mr Dyson had asked the plaintiff to find something else with which to continue the job. The plaintiff went looking and found the boom lift. After the plaintiff had brought the boom lift across Mr Dyson operated the boom lift for about five hours, fixing the bolts. 91 The plaintiff gave further evidence about how the accident had happened. The plaintiff was standing on the left-hand side of the forklift (if one faces in the same direction as the forklift was facing) in between the forklift and the boom lift. The plaintiff was standing with the boom lift behind him. The battery of the forklift, near where the plaintiff was, was positioned between the front and back wheels of the forklift. It was possible actually to see the battery. Mr Onody was on the plaintiff's left, on the same side of the forklift as the plaintiff. When the plaintiff asked Mr Onody to start the forklift "I was a 100 per cent sure that it (the forklift) wasn't going to move". The lead on the plaintiff's right was sparking, so that it was not making a good connection. The plaintiff could not recall whether he asked Mr Onody to get another clamp or whether Mr Onody volunteered to get a clamp. The welding leads which were used had been provided by Malco. The plaintiff agreed that "the only activity you can remember performing between when you asked Mr Onody to turn on the ignition and when the wheel ran over your foot was seeking to put one of the leads on to the right hand battery terminal and watching it spark and "the next thing you knew, it (the forklift) was running over your foot". If the plaintiff had not had the difficulty putting the clamp on the right hand battery terminal, he would more than likely have turned on the forklift himself. 92 The plaintiff was cross-examined by counsel for Prevwreck. 93 The plaintiff said that if the forklift was started with the main gear lever in neutral, it was necessary to depress the clutch in order to operate the main gear lever so as to put it in gear and thus enable the forklift to move forward. 94 The plaintiff said that he did not detect any forward movement of the forklift, before the rear wheel of the forklift was on his right foot. 95 The plaintiff did not detect any change in the sound of the motor of the forklift, after Mr Onody started it. He said "where we were working is a very loud area. There's a big machine running". 96 The plaintiff could not recall whether Mr Onody was sitting down or standing up, before he left the forklift to get a clamp. 97 The plaintiff did not ask Mr Onody to check that the forklift was in neutral before he started it, because "I knew that it was in neutral". 98 It was not possible to check whether the main gear lever was in neutral, simply by looking at the position of the gear lever. It was necessary to depress the clutch. 99 The plaintiff was cross-examined by counsel for Lift Truck Services and Liftqip. 100 The plaintiff said that the two vehicles, the boom lift and the forklift, were positioned very close together for the attempted jump starting. It was not possible to walk between the wheels of the two vehicles. The plaintiff did not see the leads, until they were handed to him. However, as the leads were so long, it would not have been necessary to have the boom lift and the forklift so close together. 101 After positioning the forklift for the attempted jump starting, the plaintiff climbed down from the forklift to in between the two vehicles. He agreed that he was in a dangerous position, if either of the vehicles moved. He did not go there as a result of any instruction from Mr Dyson but he had to go there in order to do the job. The plaintiff first applied the leads to the battery of the boom lift. He then sought to apply the leads to the battery of the forklift. One lead would not stay put on the terminal to the plaintiff's right and the plaintiff had to hold the clamp in position with his hand. 102 The plaintiff conceded that he did not really have any idea of where Mr Onody was. Although the plaintiff had previously said in his evidence that Mr Onody was on the same side of the forklift as the plaintiff, he said: "I honestly can't remember him actually being in the same area as me. He could have actually walked around and hopped in the other side (of the forklift)". The plaintiff did not take any notice of how Mr Onody started the forklift. 103 The plaintiff had marked the position of the battery of the forklift on a photograph of the forklift, as being in a position, not on the foot plate, but some distance above the foot plate, where it would have been necessary to lift a side panel of the forklift in order to get at the battery. However, the plaintiff thought that the battery had been in an open position on the forklift and he could not recall lifting a panel. If the battery of the forklift had been in the position indicated by the plaintiff, then the plaintiff would have been standing close to the front wheel of the forklift. 104 The plaintiff accepted that if Mr Onody had been able to see what the plaintiff was doing, Mr Onody would have had to have been in one of a certain limited number of positions on or near the forklift. If Mr Onody had been standing outside the forklift on the same side of the forklift as the plaintiff and between the front and rear wheels of the forklift, he would have been very close to the plaintiff. 105 The plaintiff repeated that, although he had had his right hand on the lead he was holding against the terminal of the battery of the forklift, he did not feel anything move, until his right foot was trapped by the forklift wheel. 106 The plaintiff confirmed that he had lowered the tines of the forklift on to the floor, so that when the forklift moved it had to drag (or push) a section of the tines across the floor of the Mill. Accordingly, if the forklift had moved, as the plaintiff said it had, it had to move against the brake which the plaintiff had applied and against the friction of the tines on the floor. 107 The plaintiff had done the tests for his forklift ticket somewhere between four and twelve months before the accident. Skilled had not asked the plaintiff to produce a forklift driver's ticket.

Re-examination 108 In re-examination the plaintiff said that the noise of a nearby machine would have drowned out the noise of the forklift's engine and the noise of anything dragging on the floor. 109 The plaintiff marked the position of the ignition switch on a photograph of part of the cabin of the forklift, as being on the right hand side of the dashboard underneath the steering wheel. If a person was standing on the foot plate of the forklift on the left-hand side of the cabin, it would be necessary to lean two and a half to three feet across the cabin, in order to turn the key in the ignition. 110 The plaintiff confirmed that "if you hit… the kill switch… the engine shuts down, everything shuts down". The plaintiff said that the procedure he had always followed in stopping the forklift was to put the main gear lever in neutral, take his foot off the clutch, put the forward-reverse lever in neutral, pull the kill switch, apply the handbrake and then lower the tines to the ground.

Evidence in Reply 111 In evidence in reply the plaintiff said that the effects of the assault on him had finished (he was giving evidence in June 1999) and the disabilities he now had were attributable to the original accident in November 1995 and not in any way to the assault. 112 The plaintiff said that he was looking for work of the same nature as the work he had done at the motor cycle shop. He was capable of doing such work but he would not be able to go back to the motor cycle shop itself.

Further cross-examination 113 The plaintiff was recalled for further cross-examination by counsel for Prevwreck, after Mr Harders had given evidence in Prevwreck's case. 114 The plaintiff agreed that he had spoken to the person who had delivered the forklift to the Mill. He said that no other person had been with him when he spoke to the deliverer. He denied that the deliverer had demonstrated the safe operation of the forklift to the plaintiff or to Mr Dyson. All the deliverer had said about the forklift was what the plaintiff had previously said in his evidence. After the forklift had been delivered, the plaintiff drove the forklift away. The forklift was similar to other forklifts the plaintiff had driven previously.

Evidence in Chief 115 The plaintiff's wife gave evidence that before the accident the plaintiff had done all the maintenance work and handyman work around the house. The plaintiff had ridden his motor cycle and had engaged in other outdoor activities, in which she had also participated. The plaintiff and she had had a lifestyle in which the plaintiff worked, effectively, part-time. She said:- "When the kids left home, we were hoping to chase the work and do a bit of work and earn a bit of money and try and get a nest egg". 116 The plaintiff's wife asserted that while the plaintiff was in hospital she visited him and tended to him. In response to a leading question from the plaintiff's senior counsel ("so what are we talking about, six or eight hours a day, that sort of thing?" She replied "yes". 117 Mrs White confirmed that after the plaintiff was discharged from hospital, he needed help with putting some of his clothes on, his meals and the making of coffee for him. In response to a question whether the plaintiff was able to shower himself, she replied "yes". 118 Mrs White said that the plaintiff was upset and depressed. Mrs White said that ever since the accident happened the plaintiff had been taking Panadol just about every day, costing $15-$20 per week. 119 The plaintiff was on crutches for a couple of months after he returned home from hospital. 120 The plaintiff had not resumed doing handyman tasks. The plaintiff's son did a lot of the maintenance on the house and the family car. 121 When the plaintiff was working five days a week in the motor cycle shop "he was very moody, very cranky and in a lot of pain from the travelling". 122 The plaintiff's wife said that the plaintiff was now very restless at night and she complained about his snoring. Their married life had not been as happy since the accident, as it had been before. 123 The plaintiff's wife considered that the plaintiff's condition had been about the same since the accident happened.

Cross-examination 124 In cross-examination the plaintiff's wife said that their son took after his father in having a liking for practical manual work. 125 Since 1988 the plaintiff and his wife had been living at Culcairn, a very small town about three quarters of an hour to an hour's drive north of Albury. 126 For a period of a couple of months the plaintiff had stayed a couple of nights a week at a motor cycle clubhouse, looking after himself.

Experts' Reports 127 There was admitted into evidence as part of the plaintiff's case a report of a preliminary investigation into the accident prepared by an accident investigation team from ANM. It was common ground that many parts of the report, as a report prepared for ANM, were irrelevant for the purpose of the present proceedings. 128 Mr Onody was interviewed in the investigation and the report includes an assertion "Les stepped up on to the foot plate of the forklift and switched on the ignition key, which started the forklift". 129 The photographs of the forklift which were admitted into evidence at the hearing were taken by a member of the accident investigation team at about 6.45 pm on 4 November 1995, that is about four and three quarter hours after the accident happened. These photographs show "the drive transmission was engaged in first gear with forward selected". This is some evidence of the state of the gears when the accident happened, although there is some possibility that the gear levers had been moved in the attempts by Mr Onody and Mr Dyson to stop the forklift after it had started moving or in some other way after the accident occurred and before the photographs were taken. 130 The report includes an assertion "investigations on Monday 6 November with Peter Pitcher (a Work Cover inspector) revealed that the forklift in question can in fact be started while the drive train is engaged". 131 There was also admitted into evidence as part of the plaintiff's case a report by a consulting engineer, Mr Buckland. 132 In his report Mr Buckland canvassed possibilities that "Mr Onody may have accidentally bumped the gear shift lever to the engaged position, as he leant into the cab to start the engine…. It may also be possible that the plaintiff had only thought he had engaged neutral before he stepped down from the forklift but had not actually done so… In either case, however, the forklift… should have commenced to move immediately, when the engine was started with the gearing engaged… A further possibility could then exist that the gear selector lever had vibrated into the engaged position after the engine was started and had run for several seconds". 133 In the report Mr Buckland said: "It is against recommended safe work practice to leave a forklift truck parked unattended whilst the engine is running. The writer is of the view that Mr Onody, or any other person starting the engine of the forklift truck, should have been requested to sit in the operator's seat and to remain there for as long as the engine was running. A person so positioned could have then been able to prevent the forklift truck moving, or could have at least warned the plaintiff and/or stopped the truck if it did move".

Evidence in Chief 134 Mr Dyson gave evidence in Malco's case. He said that he was a fitter employed by Malco. He had been the supervisor on the job in Albury at the ANM Mill. He had come from Adelaide, where Malco is based. 135 There had been two stages in the work at the Mill. Stage one had taken four days and the plaintiff had participated in stage one. At the time of the accident stage two had been proceeding for about three weeks. The plaintiff was "fetched back to help on the second stage". The employees of Malco engaged on the second stage were himself and Mr Onody. 136 Malco had taken equipment to the Mill for stage two. It was Mr Dyson who had decided what equipment should be taken. He did not, however, play any part in the ordering of the forklift. 137 Mr Dyson said that the forklift had arrived at the Mill on the first day of stage two (which, if true, would have been three weeks before the accident happened). Mr Dyson first saw the forklift "in the yard and I'd signed to say it was there but I didn't actually see the thing drive in". 138 After the forklift was delivered it was operated, as and when required, by the plaintiff. Mr Dyson denied that the plaintiff had complained to him about the forklift, except for saying that it was an old, manual one. 139 Mr Dyson said that on 4 November "we needed a second ladder and I asked Bruce to go and see if he could find one". If there was a piece of equipment on the site, "you borrowed it". The plaintiff returned with the boom lift, driving it towards the overhead gantry. Mr Dyson himself operated the boom lift putting bolts in the overhead gantry. 140 Mr Dyson's recollection was that the boom lift had stalled, while he was in the basket. He was nevertheless able to lower the basket to the floor. The three of them, Mr Dyson, Mr Onody and the plaintiff "got our heads together" and tried to start the boom lift. The idea of using the forklift to jump start the boom lift was "a general thing" between the three of them. 141 Mr Dyson continued:- "Bruce (brought) the forklift in… alongside the body of the cherry picker. Someone got the leads out and Bruce connected them, asked Les to start the forklift and that is when everything went belly up… Bruce (was) standing… between the cherry picker and the forklift. He was "between the wheels, right in the middle". 142 Mr Dyson could not say precisely where Mr Onody was. Mr Dyson himself was near the back of the forklift. 143 After being told by the plaintiff to turn the forklift on, "Les reached in and turned it on… I think he went around to the far side of the fork from where Bruce was and turned it on" but Mr Dyson's recollection of that was "not very good". 144 After Mr Onody reached into the forklift, the engine "started ticking over". When asked whether the forklift moved, Mr Dyson said "I don't think so, not straight away". "… the next thing I recall is Bruce screaming out in pain because the thing had moved forward and pinned him". Mr Dyson's best estimate of the time lapse between the engine starting and hearing the plaintiff scream was "ten to twenty seconds". 145 Mr Onody jumped on to the forklift and "turned the ignition off" but "nothing happened". Mr Dyson did not actually see Mr Onody's hand activating the ignition switch. Mr Dyson did not see whether Mr Onody touched any of the other controls of the forklift. The forklift reached the forklift barrier on the floor of the Mill and came back down on to the floor. Mr Dyson got on to the forklift and pushed or pulled the kill switch. He thought the kill switch was behind the seat. He did not do anything to any of the other controls of the forklift. 146 Mr Dyson did not have any certificate for driving a forklift or any practical experience in driving a forklift.

Cross-examination 147 Mr Dyson confirmed that he was the person who was in charge of the job and who gave orders, even though "we did discuss things". 148 Mr Dyson could not recall providing a ladder to the plaintiff, which the plaintiff had refused to use. He said that a longer ladder was required to do the last section of the overhead gantry. Mr Dyson did not know how high the gantry was. "I would have glanced through the drawings". A matter that "might have slipped by" him was "the height of the gantry. Maybe it was a fact that I didn't notice the measurement or I hadn't sort of sat down and studied the drawing that hard". 149 Mr Dyson was cross-examined about the delivery docket for the forklift. The delivery docket included a clause "received on hire in good order and condition the abovementioned goods, subject to the conditions overleaf commencing at the time indicated above. I have been instructed in the safe operation of the goods so delivered". The document admitted into evidence was a copy of the front of the delivery docket and there was no evidence of any conditions overleaf. 150 Mr Dyson signed the delivery docket on behalf of Malco. He had not in fact checked the condition of the forklift and he had not been instructed in the safe operation of the forklift. He signed the docket, because "I didn't read the small print". 151 Mr Dyson could not recall the plaintiff complaining to him about the forklift. It was possible that he had told the plaintiff that Wreckair had said that the forklift delivered was the only forklift available. Mr Dyson did not recall the plaintiff telling him that the truck driver had told the plaintiff that it was hard to get the gear lever of the forklift into neutral. 152 Mr Dyson said that the basket of the boom lift could be lowered "through the hydraulics, without actually having the power on". The trio had wanted to restart the boom lift, so as to return it to where they had obtained it. 153 Mr Dyson denied "bellowing orders out" but accepted that, as he was the leading hand, his opinion, if there was a difference of opinion, would prevail. 154 Mr Dyson denied that it was a pretty noisy environment. "It was quiet. There were no other machines working that day". 155 Mr Dyson was shown a photograph of part of the cabin of the forklift, showing the kill switch, not behind the seat but about level with the seat. 156 Mr Dyson did not recall that the plaintiff had difficulty in clamping one of the leads to the battery of the forklift. He did not know why Mr Onody had gone away from the forklift, after starting the forklift. 157 Mr Dyson was not aware that a diesel engine, such as the forklift had, could not be stopped immediately, by turning off the ignition. 158 Mr Dyson estimated that when the boom lift and the forklift were alongside each other for the attempted jump starting of the boom lift, the distance between the near side wheels of the forklift and the offside wheels of the boom lift would have been about a metre. 159 In cross-examination by counsel for Skilled Mr Dyson said that he knew that Mr Onody had no qualification or experience in driving forklifts. Mr Dyson knew that when the plaintiff asked Mr Onody to turn on the forklift, the plaintiff was not himself in a position to control the forklift. 160 Mr Dyson was cross-examined by counsel for Syd-Fam. 161 Mr Dyson said that at some time on 4 November a stage had been reached in the work, when the next step was to fix bolts in the gantry frame which had been erected and which was about ten to fifteen feet above floor level. Mr Dyson accepted that this was riggers work and that the only person qualified to do the work was the plaintiff, yet Mr Dyson himself had got into the basket of the boom lift and had put the bolts in the holes. 162 In regard to Mr Dyson's estimate of the time lapse between Mr Onody turning on the forklift and the plaintiff calling out, Mr Dyson agreed that it could have been less than ten seconds and as little as five seconds. 163 Mr Dyson was cross-examined by counsel for Lift Truck Services and Liftqip. 164 Mr Dyson said that he had not been looking at the forklift before he heard the plaintiff cry out. Mr Dyson was then about two metres from the rear wheels of the forklift. After hearing the plaintiff cry out, Mr Dyson ran around to the right hand side of the forklift (that is the offside). The forklift was then moving very slowly forward. Mr Dyson did not know whether the tines of the forklift were on the ground.

Further cross-examination 165 Mr Dyson was recalled after Mr Harders had given evidence. He was cross-examined by counsel for Prevwreck about what had happened when Mr Harders delivered the forklift to the Mill. Mr Dyson had little recollection of what had happened. However, he denied that the deliverer of the forklift had shown Mr Dyson how to operate the forklift "he wouldn't show me, because I wouldn't be operating it". Mr Dyson denied that the deliverer had shown him the gears or the handbrake. "It's pointless telling me that sort of thing". Mr Dyson could not remember whether the deliverer had asked Mr Dyson whether he had a forklift ticket. If Mr Dyson had been asked, he would have said "no". Mr Dyson did not remember the person who delivered the forklift giving "a little lecture… in which he gave helpful hints about how to operate this vehicle".

Evidence in Chief 166 Mr Onody gave evidence that he was a boilermaker/welder employed by Malco. He did not have any certificate as a forklift driver. 167 Mr Onody said that when the forklift was brought alongside the boom lift, the two vehicles were a few feet, if not more, apart. The plaintiff and Mr Onody were in the space between the vehicles. 168 Mr Onody got the welding leads from Malco's equipment container. Both Mr Onody and the plaintiff worked on connecting the leads to the boom lift's battery. Both of them, and then only the plaintiff, worked at connecting the leads to the forklift's battery. 169 The plaintiff said to Mr Onody "turn the ignition on, start the forklift, it won't move". Mr Onody stepped up on to the foot plate on the left hand side of the forklift, leaned into the forklift and turned the ignition key, thereby starting the forklift. 170 Mr Onody was asked "did your arm touch any other control when you did that?" and he replied, "no, it did not". After turning the ignition key Mr Onody pulled his arm back. He was asked, "did you touch any other control when you brought your arm back?" and he replied, "no. I did not". 171 Mr Onody then stepped off the foot plate. The plaintiff was standing to the right of him. Mr Onody "headed towards my tools and tool box by the conveyors". 172 Mr Onody heard the plaintiff call out. "I turned around… the forklift (was) running off the top of Bruce… I ran over to the fork to turn it off… I turned the ignition off… nothing at all (happened)". Mr Onody did not do anything to any of the other controls of the forklift. Mr Onody saw "Peter running around the right hand side of the fork and he pulled the switch there after he found it and then it stopped and we went over to Bruce". 173 Mr Onody said his best estimate of the time which elapsed between Mr Onody turning on the engine and his hearing the plaintiff yell out was "half a minute, a minute". In the meantime Mr Onody had walked about ten metres away from the forklift.

Cross-examination 174 In cross-examination Mr Onody said that when he started the forklift the forklift did not jump or move at all. 175 Mr Onody said that he had been on the left hand side of the forklift, both when he turned it on and when he attempted to turn it off. He thought that he had been standing on the foot plate on both occasions. 176 Mr Onody said "Bruce had some grizzles about the forklift.. I think the gears were a complaint". Mr Onody could not remember whether the plaintiff had made any other complaints about the forklift. 177 Mr Onody said that, apart from the noise of the forklift, there was no noise at all in the Mill. "You could hear quite easily the sound of the forklift".

Mr Anderson 178 Three reports by Mr Anderson, an expert engineer, were admitted into evidence in Malco's case and Mr Anderson gave oral evidence. 179 Parts of Mr Anderson's principal report of April 1998 were in the following terms (in the report Mr Anderson refers to the forklift as "vehicle 1"). "21 There is insufficient data to determine with any certainty what caused Vehicle 1 to commence moving forward some time after the engine was started. 22 Potential mechanical faults which might have contributed to Vehicle 1 moving forward, listed in order of their probability of occurring are:- 2.2.1 Incorrectly adjusted and/or maintained hand brake mechanism; 2.2.2 Poorly maintained 'Forward - Neutral - Reverse' mechanism producing;- 2.2.2.1 An imprecise selector operation which gave the driver the impression that 'Neutral' had been selected when 'Forward' was actually selected; 2.2.2.2 A time delay, depending on the 'Forward - Reverse' gearbox design, between the engine starting and the transmission 'taking up' the drive. This is consistent with the 'Forward' being engaged, either by the driver or by another person on Vehicle 1; 2.2.2.3 A looseness in the selector mechanism which makes it easy for 'Forward' to be engaged inadvertently by a person other than the driver on Vehicle 1; or 2.2.2.4 A looseness in the selector mechanism which, depending on the 'Forward - Reverse' gearbox design, allowed the selector level to vibrate and to engage 'Forward'…. 4.1 Vehicle 1 was a diesel powered fork lift truck. Thus the engine is started using a key similar to the ignition key used on passenger cars but is stopped using a stop button - sometimes referred to as a 'kill switch'; 4.2 Vehicle 1 was equipped with a 4 speed manual transmission which was operated by a floor mounted gear lever and a separate 'Forward - Neutral-Reverse' mechanism operated by a second, floor mounted, lever. In addition a parking brake was provided which was operated by a third, floor mounted, lever. 4.3 The engine start key noted in Para 4.1 was located on an instrument panel to the right hand side of the steering wheel… 4.4 The three levers noted in paras 4.1 and 4.2 were located to the left of the driver… 4.5 Photograph number 5 shows the handbrake lever in an almost vertical orientation which would be ergonomically awkward to operate. The photograph caption states 'Handbrake is not fully engaged'. This suggests that the handbrake was incorrectly adjusted. 4.9 Of particular significance is that the design of Vehicle 1 appears to be such that there is no interlock in the starter circuit to prevent the engine being started with the drive system engaged. Note that this is quite normal in automobiles with manual transmission but those with automatic transmissions are, almost without exception, fitted with such an interlock… 5.5 More design data on the transmission of Vehicle 1 is required to allow an analysis of all possible malfunctions. However it is assumed that, for the vehicle to move forward, both the gear lever must be moved to engage one gear (1st being normal for slow speed manoeuvring) and the Forward - Neutral-Reverse lever must be moved to 'Forward'. It would be expected that the driver would, on leaving the vehicle, move only one of these levers to 'Neutral' and this would probably be the more convenient lever - in this case the 'Forward - Neutral - Reverse lever. 5.6 If the 'Forward - Neutral - Reverse lever was uncertain in its operation due to a stiff action, the driver might think that he has selected 'Neutral' when 'Forward' is still engaged. 5.7 If the 'Forward - Neutral - Reverse' lever was uncertain in its operation due to looseness in the mechanism:- the driver might think that he has selected 'Neutral' when 'Forward' is still engaged, it might be possible for the lever to vibrate towards and engage in 'Forward' under the influence of engine vibration - depending on the design of the 'Forward - Reverse' mechanism; or it might be easy to for a person on the vehicle - other than the driver - to inadvertently knock the lever into 'Forward'. 5.8 The handbrake did not prevent Vehicle 1 from moving. This could have been due to one or more of the following:- the handbrake design being incapable of holding Vehicle 1 against the tractive effort provided by the engine with 1st gear selected; the handbrake being incorrectly adjusted such that it was awkward for the driver to apply adequate force to the end of the lever - a distinct possibility as shown in Photograph number 5 and/or the handbrake being inadequately maintained - eg worn or oil soaked brake linings. 5.9 The delay between the engine being started and Vehicle 1 starting to move could have been caused by:- The 'Forward - Neutral - Reverse' lever vibrating to 'Forward'. This would depend on:- a suitable design of the 'Forward - Reverse' mechanism; and the amount of looseness in the selecting linkage; and be consistent with the driver having left Vehicle 1 in 'Neutral'; or A time lag in transmission 'taking up' which would:- depend on the design of the 'Forward - Reverse' mechanism; and be consistent with the driver leaving Vehicle 1 in 'Forward', both possibilities Inferring a fault with the maintenance of Vehicle 1. 5.10 Note that the author has not been able to inspect Vehicle 1 or a similar vehicle. Nor has the author been able to study the workshop manual of Vehicle 1." 180 Some of the assumptions made by Mr Anderson in his report were not established by the evidence given at the hearing. In parts of his report Mr Anderson proceeded on the assumption that the last driver of the forklift (that is the plaintiff) had moved only one of the gears to neutral and that this would probably have been the forward-reverse lever. 181 Mr Anderson was subsequently supplied with some of the service records of the forklift, a service manual and a parts catalogue for the forklift. After considering this additional material he said that he would not alter any of the conclusions in his earlier report. 182 Mr Anderson's final report contained his comments on a report by Mr McCaffery, an expert retained by Lift Truck Services and Liftqip. The report by Mr McCaffery was not subsequently tendered and Mr McCaffery did not give oral evidence. In part of paragraph 9 of this third report Mr Anderson said:- "If the park brake had been well maintained and applied correctly, the engine would have been subjected to a significant load and:- either stalled shortly after being started; or increased its output under the control of its governor and produced more noise; which could have given the workers an audible warning. If the park brake had been out of adjustment, it could have offered little or no resistance to vehicle movement at all". 183 In oral evidence in chief Mr Anderson said that, with regard to the main gears, it was necessary to use the clutch to move from neutral into gear but it was not necessary to use the clutch to move from gear into neutral.

Cross-examination 184 In cross-examination Mr Anderson said that the forklift had what he called a hybrid transmission. He continued:- "It comprises a four-speed with neutral mechanical gear box, but that has no reverse gear built into it. In series with that, is a forward-reverse section of the gear box which enables the operator to decide whether he's going forward or backwards. That is operated hydraulically. So for the transmission to produce drive, the clutch has to be engaged, one of the gears in the gear box has to be engaged, the forward-reverse lever needs to be engaged in one or the other and the engine must be running to develop hydraulic pressure to engage the forward-reverse…. And the handbrake has to be released". 185 Mr Anderson was cross-examined by counsel for Syd-Fam. 186 In regard to paragraph 4.9 of his first report, Mr Anderson said that he was not aware of any such device having been fitted to a vehicle with a manual transmission. Such a device could have been fitted to the forklift. However, for it to be a satisfactory installation, the manufacturer of the power shift part of the transmission would have had to have incorporated the device into the design and supply of the forklift. 187 Mr Anderson was asked:- "Are you familiar as to whether or not in a forklift of this age and type, the manual transmission had a propensity to move forward after the engine had been turned on, by reason of a delay in the build up of the hydraulic pressure …? And he replied:- I have no direct experience … that that is what I would expect". 188 A little later in his evidence Mr Anderson said that, if the transmission was new, he would expect the delay to be of the order of a second; if the transmission was worn, "it could take some seconds for the pressure to build up and for the transmission to engage… possibly five (seconds), at the very outside ten… I have seen references to thirty seconds. I wouldn't find that credible". The delay would be "between the engine starting and full pressure being developed (in the forward-reverse section of the transmission) to allow the engine to move off… this phenomenon of delay in the build up of a hydraulic pressure is well known".

Cross-examination by counsel for Lift Truck Services and Liftqip 189 In cross-examination Mr Anderson said that whether the forklift was being started cold or hot might make a measurable, but not a big, difference in the length of the delay. Mr Anderson said "once the engine had been started… this delay may not be evident subsequently. In other words, it is a once off event during the start up phase". 190 If there was a delay of as long as thirty seconds, "you would expect it to be there, both previously and subsequently… it would be very noticeable". 191 If the handbrake was incorrectly adjusted or maintained, then, if the forklift had been tested by a competent person after the accident, Mr Anderson would have expected the condition of the handbrake to have been apparent. 192 If the forklift had a looseness in the selector mechanism and was giving a false impression that neutral had been engaged, when in fact forward or reverse was engaged, then Mr Anderson would have expected such a fault to be discovered by a competent person, if that person was looking for such a fault. 193 Because the forward-reverse gear mechanism is hydraulic, it can be operated without using the clutch, even though that is not good operating practice. 194 Mr Anderson was shown a photograph of another forklift (which became exhibit "M"), in which the battery was located externally, mounted on a little cross member projecting from the side of the forklift and protruding outwards beyond the battery. This cross member was closer to the front wheels of the forklift than the rear wheels. The position of the battery in the forklift in exhibit "M" was not the same as the position which the plaintiff had said was the position of the battery on the forklift on 4 November 1995.

Re-examination 195 Having considered a statement by Mr Drage of Lift Truck Services and Liftqip, Mr Anderson said: "I guess my 2.2.1 (in his report of April 1998) about incorrectly adjusted handbrake would have to be modified, if we accept that the handbrake when fully applied was functioning satisfactorily … I would have to modify 2.2.1 to focus on the ergonomic aspects of the handbrake, rather than (that) the handbrake was adjusted in such a manner it was not functioning at all."

Evidence in Chief 196 Mr Moore, a supply manager employed by Malco, gave evidence about the hiring of the forklift. Mr Moore identified the purchase order dated 26 October 1995 from Malco to "Wreckair Hire" for the hire of a 5 tonne forklift. Mr Moore wrote the handwritten entries on the purchase order. 197 Mr Moore gave evidence that before midday on 26 October he had spoken on the telephone to Mr Hudson of Wreckair (Prevwreck) in Wodonga and arranged for the hire of the forklift. 198 Mr Moore gave evidence of what he said was the practice of Malco in preparing purchase orders. There were four copies of the purchase order. Mr Moore would write particulars of the order on the top white copy and what he wrote would be reproduced on the lower carbon copies. The white copy had Malco's conditions of contract printed on the reverse side of it. The white copy of the purchase order went straight to a mail bag for dispatch to the party from whom the goods were being ordered. 199 The document is called a "Purchase Order" and its provisions, including the conditions on the reverse of the white copy of the order, are apt to apply to a sale of goods but not a hiring of goods. The party to whom the order is directed is described in the order as the "seller". 200 Condition 8 of the conditions on the reverse of the white copy of the purchase order, on which Malco sought particularly to rely in the present case, is in the following terms: "In the event any article sold and delivered hereunder shall be defective in any respect whatsoever, seller will immediately indemnify and save harmless purchaser from all loss or payment of all sums of money by reason of all accidents injuries or damages to persons or property that may happen or occur in connection with the use or sale of such article and are contributed to by the said defective condition." 201 Mr Moore also identified an invoice from Prevwreck for the hire of the forklift from 31 October 1995 to 9 November 1995 and a "return from hire" document prepared by Prevwreck dated 9 November 1995. 202 Mr Moore said that on many previous occasions Malco had hired equipment from Prevwreck, using a purchase order in the same form. 203 Mr Moore also identified three purchase orders from Malco to Skilled for the hire of labour to be used at the ANM Mill. These purchase orders were on the same form of order as the order for the supply of the forklift. These orders were not shown to relate to the plaintiff's labour. The same form of purchase order was used for the hire of the plaintiff's labour. An invoice from Skilled to Malco dated 4 November for the reimbursement of wages already paid by Skilled to its employee, the plaintiff, was produced.

Cross-examination. 204 In cross-examination Mr Moore said that he had written the word "hire" on the front of the purchase order for the forklift. Mr Moore had written "confirmation Steve Hudson (of Prevwreck)" on the purchase order, on 26 October 1995 at the time of the telephone conversation. 205 In cross-examination Mr Moore said that he was absolutely certain that what he had said in chief was the usual system of raising and dispatching purchase orders had been used in ordering the forklift from Prevwreck on 26 October 1995. He said "that is what I did with every single purchase order that I wrote". He denied that there was any other system than the system he had described in his evidence. 206 It was then put to Mr Moore that there was in fact another system in operation, whereby the front of the purchase order only would be faxed by Malco to the supplier. At first Mr Moore denied that there was any other system, then he admitted that there was such another system but said that he would not have used it, then he said he could not recollect using it and finally he retracted his evidence that he had not sent a fax to Prevwreck on 26 October. He conceded that his recollection of events was "slightly" mistaken. 207 Mr Moore was shown a document by cross-examining counsel, which was a facsimile copy of the front of the purchase order. The following evidence was then given:- "Q. As you sit here today, you do not recall putting out for mailing the original purchase order that you had raised that day in relation to Wreckair? A. Not exactly, no. Q.. No. And you agree, don't you, having refreshed your memory about this by looking at the document, that what you faxed to Mr Hudson was only one page of the purchase order document? A. Yes".

Re-examination 208 In re-examination Mr Moore said that there was a practice that, if a fax was sent to a supplier, "you immediately posted the hard copy".

Evidence in Chief 209 Mr Steven Hudson gave evidence in Prevwreck's case. In November 1995 he was the depot manager for Prevwreck in Wodonga. 210 In late October 1995 he received a telephone call from Mr Moore of Malco about the hiring of a forklift. Mr Hudson made a note on a telephone order form, noting, inter alia, the weight of the truck needed, the dimensions of the tines, "ANM" and "Peter Dyson". 211 Mr Hudson said "we didn't have that size in our depot at the time, so … we arranged an on-hire from Lift Truck Services". 212 Mr Hudson did not see any written confirmation of the oral order from Malco but any such written confirmation would not necessarily have come to him.

Cross-examination 213 In cross-examination Mr Hudson said that he made a telephone call to Lift Truck Services on 26 or 27 October 1995 to arrange the on-hire. He mentioned the size of the forklift, the tine requirements, the date the forklift was needed by and the length of the hire. 214 Prior to October 1995 Prevwreck had on occasions obtained equipment such as forklifts from Lift Truck Services for on-hiring. 215 Mr Hudson did not tell Mr Moore of Malco that a forklift would be obtained from a source other than Prevwreck to be hired to Malco. 216 Mr Hudson could not recall whether he informed Lift Truck Services or Liftqip of the client Prevwreck was going to on-hire the forklift to. Normally, when Prevwreck was on-hiring, Prevwreck would not inform the party supplying the forklift of the ultimate client.

Examination in Chief 217 Mr Jason Harders gave evidence that in 1995 he was working for Prevwreck in Wodonga as a driver/yardman. Mr Harders did not state his age but he had left school only in 1988. In 1994 he had obtained a licence to drive forklifts. 218 In October 1995 he was instructed to pick up the forklift from Lift Truck Services and deliver it to the ANM Mill. At the premises of Lift Truck Services he drove the forklift onto his truck. At the ANM Mill he drove the forklift off the truck. 219 It was then sought by counsel for Prevwreck to adduce evidence from Mr Harders of what had allegedly transpired between Mr Harders on the one hand and Mr Dyson, Mr Onody and the plaintiff on the other hand. None of the plaintiff, Mr Dyson and Mr Onody had been asked questions about these matters in cross-examination by counsel for Prevwreck. I allowed evidence to be given by Mr Harders on the voir dire for the purpose of assisting me in determining whether the proposed evidence should be admitted. I subsequently ruled that the evidence given on the voir dire should stand as evidence in the trial. A consequence of the course I adopted was that the plaintiff and Mr Dyson had to be recalled, so as to be given an opportunity of responding to what Mr Harders had alleged had happened. 220 Mr Harders said that after driving the forklift off the delivery truck at the Mill, he drove it a few metres and parked it. He spoke to Mr Dyson. "There was about three other blokes as well and I just showed them the safe operating and safe handling instructions of the vehicle". He said that he said to Mr Dyson "before starting the forklift, the forklift should be in neutral with the handbrake applied". He showed the others the safety controls of the vehicle and how to operate them, ie the main gears, the forward-reverse gear and the handbrake. He claimed that he pointed out the use of the main gears and the forward-reverse gear. He said "I asked all present if they had a forklift ticket, which all of them nodded "yes" and I asked them at the end of my instructions if they fully understood what I had just said and they all said "yes", nodded "yes". I asked them for a forklift ticket first and they all replied "yes"." 221 One of the three drove the forklift in Mr Harders' presence "the gentleman hopped in the forklift and did everything like I explained".

Cross-examination 222 In cross-examination Mr Harders was asked about picking up the forklift from the premises of Lift Truck Services. He said "as I walked in the gate there was a bloke in overalls, who I thought was a mechanic, just closing the machine with the oil and water, as if to finish running it up, to make sure it was right to go". The man in overalls said "it is ready to go". Mr Harders did not know who the man in overalls was. Mr Harders could not recall whether the man in overalls gave him any instructions on how to drive the forklift. 223 The cross-examination of Mr Harders was resumed after the plaintiff and Mr Dyson had been recalled for further cross-examination regarding Mr Harders' evidence in chief. 224 Mr Harders asserted that Mr Dyson was "already there", when he delivered the forklift at the Mill. As he spoke to Mr Dyson "the other men walked over". 225 The version of what had happened at the Mill when the forklift was delivered, which Mr Harders had given in evidence in chief was challenged in cross-examination. It was put to him that if, as he asserted, all of the group had said that they had forklift tickets, it was unlikely that he would have gone on to say what he alleged he had said about how to operate the forklift. Mr Harders replied "I felt silly saying it to them because they had a bit of a laugh. The point is, I had to ask them if they had licences. And I have been at Wreckair for six years and no one else has ever been run over by a forklift that I delivered". 226 Mr Harders was asked "do you resent being here?" (ie being in the court room giving evidence) and he replied "that is obvious". He resented "being here", because "when I'm not at work, I'm not getting paid". He then asserted "there was nothing wrong with the forklift". He agreed that all of the men he said he had spoken to were substantially older than he was. He reiterated that he had told all of the men where the handbrake was and that there was a button on the top of the handbrake and how to apply the handbrake.

Mr Drage 227 At a stage in the hearing when, according to what I was told by counsel, the only lay evidence remaining to be given on behalf of any parties other than Lift Truck Services and Liftqip, was the completion of Mr Harders' evidence (his examination in chief having been substantially completed) and further evidence by the plaintiff and Mr Dyson (and possibly Mr Onody) in response to Mr Harders' evidence, I said to counsel for Lift Truck Services and Liftqip that if he wished to call lay evidence he should proceed to call it. Counsel for Lift Truck Services and Liftqip then called Mr Drage.

Evidence in Chief 228 Mr Drage gave evidence that he was the managing director of both Lift Truck Services and Liftqip. Lift Truck Services carried on the business of selling and servicing forklifts, including Manitou forklifts. Liftqip carried on the business of renting out forklifts. Lift Truck Services carried out the maintenance and repair of forklifts being rented out by Liftqip. Mr Drage had worked with forklifts since 1970. 229 The forklift in this case had been purchased second-hand from a Manitou dealer and sold to Syd-Fam in about 1988 or 1989. 230 In the early 1990's Syd-Fam had complained that the forklift had a damaged transmission. According to Mr Drage, there was no subsequent trouble with the transmission of the forklift. 231 In August 1995 the forklift was taken back by Liftqip. The forklift was getting water in the oil in the engine and the forklift was surplus to Syd-Fam's requirements. 232 Mr Drage had a conversation with Mr Caddy of Syd-Fam. Mr Caddy said that he did not want to spend any more money on the forklift. Mr Drage suggested, and Mr Caddy agreed, that Mr Drage should take the forklift back, put the forklift into operational condition at his expense, sell the forklift, recoup his expenditure and account to Syd-Fam for the balance of the proceeds of sale. 233 Pursuant to this arrangement Lift Truck Services carried out repairs to the engine of the forklift. The repairs were finished on the day Prevwreck picked up the forklift, that is 31 October 1995. 234 On that day at approximately 1 pm Mr Drage himself drove the forklift. Mr Drage drove the forklift around the premises of Lift Truck Services "checked the brakes and steering and normal hydraulic function". 235 Prevwreck loaded the forklift to be taken away. Mr Drage did not know where the forklift was ultimately going. On numerous previous occasions Mr Drage had provided forklifts for Prevwreck. 236 The next thing that happened regarding the forklift, so far as Mr Drage was concerned, was that on 4 November 1995 he received a telephone call from an employee of ANM. 237 On Monday 6 November 1995 Mr Drage was asked by a Workcover inspector to go to the ANM Mill. Mr Drage and Mr Collins, a mechanic employed by Lift Truck Services who had been the last person to work on the forklift on 31 October 1995, went to the ANM Mill. 238 At the Mill Mr Drage saw the forklift. He met the Workcover inspector, Mr Pitcher, and some ANM employees. Mr Drage was asked by the inspector to start the forklift. However, the battery of the forklift was flat. The inspector said, "I want to see it going". The forklift was jump started, using jumper leads and Mr Collins' vehicle. At the request of the inspector, Mr Drage put the forklift's forward-reverse gear in forward, reverse and neutral. He thought the lever was "a little firm". He did not notice anything different about the forklift from when he had driven it on 31 October. 239 Mr Drage then did a handbrake test on the forklift. When the forklift was in a higher gear, the engine almost stalled and the forklift did not move, that is the handbrake held the forklift. When the forklift was in a low gear and the engine was "under some revs", that is not merely idling, the forklift moved marginally, "the revs actually picked up, so the noise became louder". The Workcover inspector made some notes and asked Mr Drage to leave the forklift at the Mill. 240 Later Mr Drage was notified that the forklift could be picked up and Mr Collins picked up the forklift from the Mill. 241 Mr Drage identified the position of the battery on the forklift, as being near portion of the foot plate on the side of the forklift. However, he said that "the battery sits behind the front wheel and deeper into the machine beside the step plate". He had never seen a battery on a Manitou forklift in the position which the plaintiff had indicated, behind a panel on the side of the forklift. 242 Mr Drage was asked to compare the forklift in this case and the forklift shown in the photograph which had become exhibit M. He said that the position of the battery on the two forklifts was similar but the foot plate of the forklift in exhibit M was smaller. 243 When Mr Drage got the forklift back after the accident, he inspected the forklift. He tested the brakes and gears of the forklift and did not find anything wrong. He did not have any information as to how it was alleged the accident had happened. 244 Mr Drage was asked a number of questions, in which he was asked to make assumptions. Mr Drage said inter alia that the forklift would not move, unless both gear boxes were engaged. If the forward-reverse gear lever was bumped, "not a great deal" of force would be required to move it into gear from neutral. If the forward-reverse gear lever was in neutral, then to move it into forward, the gear lever would need to be moved towards the front of the forklift. It would be possible to bump the main gear lever out of neutral into gear. 245 In January 1996 Mr Drage had taken the forklift to Melbourne.

Cross-examination 246 Mr Drage was cross-examined by counsel for Prevwreck. 247 Mr Drage said that there had been a defect in the transmission of the forklift when the forklift had first been purchased (ie in about 1989). Mr Drage had arranged for the forklift to be delivered direct to Syd-Fam's premises. The pipe providing hydraulic pressure to the forward-reverse gear had split and this defect was remedied. No work was then done on the gears themselves. 248 If a gear was "sloppy", that would indicate a worn mechanism between the gear shift lever itself and the gear it was required to shift, "occurring through long use". 249 Mr Drage was cross-examined by counsel for Syd-Fam. 250 Mr Drage was cross-examined about the hire agreement document for the hire of the forklift from Liftqip to Prevwreck. This was a very simple document. Mr Drage was directed to the part of the document where the printed words "condition report" appear and the word "fair" has been written. Mr Drage said that the word "fair" had been written by Mr Collins. Mr Collins had inspected the forklift before it went out on hire. 251 Mr Drage said that the cause of water in the oil in the engine of the forklift in August 1995 was that the piston liner seals were leaking. The forklift remained at Lift Truck Services' premises from August 1995 to 31 October 1995, when the forklift went out on hire to Prevwreck. During this period work was carried out on the forklift by Mr Collins and by other mechanics. 252 The arrangement Liftqip entered into with Prevwreck for the hire by Prevwreck of the forklift was entered into, without the knowledge of Mr Caddy of Syd-Fam. 253 Mr Drage was cross-examined by counsel for Malco. 254 Mr Drage accepted that he had told someone from Prevwreck that Liftqip had a forklift, that it was being repaired and that it was not immediately available. It would have been normal for Prevwreck to have told Mr Drage what date Prevwreck wanted the forklift from. The forklift was still being repaired on the day it was picked up by Prevwreck. Mr Drage knew that the forklift was required by Prevwreck for the purpose of on-hiring it. 255 Mr Drage was cross-examined about Lift Truck Services' work sheets for work done on the forklift. The work sheets set out a large number of printed items of work under the heading "Points to be Serviced", alongside each of which there is a box. On most of the work sheets none of the boxes had any tick or cross in it. However, Mr Drage said "that check list has nothing to do with repair and maintenance … just to carry out regular maintenance (ie servicing)". 256 The final work sheet dated 31 October 1995 had, after the printed words "repairs carried out", the handwritten words "finish off truck top up oils and test". There was no written record of what tests had been carried out by Lift Truck Services. 257 Mr Drage himself used the handbrake, when he drove the forklift on 31 October 1995. "It didn't appear obvious to me that it was anything other than correct operation". "Once you pull the handbrake on, you would know whether it was working or not or out of adjustment". If an employee of Lift Truck Services had noticed anything wrong about the handbrake, he would have made a note against "repairs required". 258 Mr Drage drove the forklift on 31 October and in that sense he himself checked the clutch operation of the forklift. 259 Mr Drage did not carry out any specific tests of the handbrake or the clutch, apart from driving the forklift around the premises of Lift Truck Services. 260 Mr Drage was asked a series of questions about how the forklift might perform under certain conditions. 261 If the forklift was started, with the handbrake on and the forward-reverse lever in forward and the gear lever in first gear, then "I doubt whether the engine would fire". 262 If the forward-reverse lever was in neutral, the gear lever was in first gear and the forklift was started, then vibration from the engine could not cause the forward-reverse lever to go out of neutral into forward. 263 If the forward-reverse lever was in forward, the gear lever was in neutral and the forklift was started, then "extremely bad vibration" could cause the gear lever to go out of neutral into forward. 264 If the selector forkware plates in either gear box were worn out, this could have an effect on the operation of the relevant gear lever. 265 If the main gear lever was hard to get into neutral, that could be because of a lack of oil, a bent main input shaft or burs on the shaft. 266 If the main gear lever was hard to get into neutral "you generally bend it, trying to get it into neutral … you would know you weren't in neutral". In such circumstances, there could be some problem in the box area below the lever. The operator "should be able to feel a definite detent, a definite sensation, when he dropped it out of gear, through the handle". 267 If the forward-reverse lever was hard to get into neutral, that would usually be due to an external problem, that is to the presence of some foreign body stuck in some part of the mechanism. 268 Mr Drage disputed that a poorly maintained forward-reverse mechanism could produce an "imprecise selector operation". 269 Mr Drage asserted that, notwithstanding what was said in the vehicle manual, the forward-reverse lever was not operated by hydraulic power. 270 Mr Drage said that some seconds would elapse in the driver starting the forklift and then putting the forward-reverse lever into forward and the main gear lever into a gear, so that when the driver then applied the accelerator to move forward, he would not notice any delay in the forklift moving forward. 271 If the forward-reverse lever was in forward and the main gear lever in gear and the engine was started, (the handbrake not being applied), then the forklift would move forward "almost instantaneously". 272 Mr Drage initially disagreed, but then accepted, that the forklift could be started, with the forward-reverse lever in forward and the main gear lever in gear. "If it was in gear, both gears, and you hit the key, I believe it would move, it would almost instantaneously start (moving forward)". Mr Drage repeated that if, in those circumstances, the handbrake was on, "I don't believe it would fire at all". 273 If the forward-reverse lever was in forward and the main lever was in gear, then it could be said that "the drive train is engaged". Mr Drage was then shown the ANM report of the investigation into the accident and his attention was directed to the part of the report asserting that the forklift could be started "while the drive train is engaged". Mr Drage said that he had already agreed with that, as he in fact had. He did not believe that he had performed that test on 6 November 1995, that is started the forklift in gear. 274 Mr Drage said that when on 6 November 1995 at the Mill he was asked to apply the handbrake, he pulled the handbrake to a position, where, according to other evidence given by him, the handbrake was "about half way" applied. 275 Mr Drage was cross-examined by counsel for the plaintiff. 276 When Mr Drage saw the forklift on 6 November 1995, it had been moved from the position it was in when the photographs had been taken at about 6.45 pm on 4 November. 277 Mr Drage was cross-examined about his assertion that, notwithstanding what was said in the vehicle manual, the forward-reverse gear was a manual, and not a hydraulically operated, mechanism. He said, "I remember distinctly it used to grind, if you didn't put your foot on the clutch". Mr Drage doubted whether the forklift could have been modified from its original state. 278 Mr Drage said that, if the forklift had started on the key being turned (as Mr Onody had said) and the handbrake was on, then the forklift could not have been in gear. 279 Mr Drage could not see how it could have happened that the forklift, after a delay of some seconds, then moved forward. "I can't see how it could do it". For the forklift to move forward, the forward-reverse lever would have had to have been forward and the main gear lever in gear. 280 The forklift was picked up by Prevwreck a day late, that is on 31 October and not 30 October. 281 After Mr Drage had driven the forklift on 31 October, he said to Mr Collins words to the effect "do a final check" or similar words. Mr Drage would have driven the forklift on 31 October, only after he had seen Mr Collins driving it. Mr Drage wanted to drive the forklift "to see how it performed", even though Mr Collins had worked on the forklift and driven it, because inter alia Mr Drage wanted to sell the forklift. 282 The Liftqip hire agreement would have been filled out and would have been signed by Mr Harders before the forklift left Lift Truck Services' premises. Mr Drage himself first saw the hire agreement after the forklift had been sent out on hire to Prevwreck. 283 Mr Drage said that the condition report 'doesn't have any bearing on the mechanical condition of the unit". The condition report related only to the external appearance of the unit. There is no written acknowledgment by the hirer of the condition the unit was in, when it went out on hire. As Mr Drage did not himself complete the condition report on the hire agreement, he did not know why the word "fair" had been selected. He agreed that the word "fair" was non-specific. 284 The forklift had been sitting around for some time in Syd-Fam's yard before it was returned to Liftqip. It had then been in Lift Truck Services' yard for about three months. Lift Truck Services dismantled the forklift and confirmed that there was a fault. After the arrangement between Mr Drage and Mr Caddy had been entered into, Lift Truck Services went ahead and repaired the forklift. 285 Mr Drage said that Mr Caddy had agreed that the forklift could be hired out (but not, it would seem, to the particular hiring). 286 This particular forklift was the only five tonne forklift Liftqip had at the time it was contacted. Mr Drage accepted that he agreed with Prevwreck that Liftqip would make available a five tonne forklift at midday on 30 October, whereas in fact the forklift had been made available at some time after 1.30 pm on 31 October. 287 The position of the battery on the forklift was underneath the floor plate of the driver's cabin and above the foot plate. 288 The forklift had in fact been made up from a diesel tractor. 289 Mr Drage was asked questions about the forklift, as shown in the photographs taken on 4 November 1995, and the forklift shown in exhibit M, which he said were "identical". Mr Drage later accepted that there were a number of differences between the two forklifts, in the dimensions of the foot plate, a strut, a railing (which did not appear in the forklift shown in exhibit M) and the appearance and position of the exhaust chimney or pipe. 290 Mr Drage was cross-examined by counsel for Skilled. 291 Mr Drage said that he had seen other forklifts with their batteries in the same position as the battery on the forklift in exhibit M. A page of the operation manual for International Diesel Trucks was later tendered, showing the battery as being located in front of the radiator.

Re-examination 292 In re-examination Mr Drage said that he was not aware of any tests for the handbrake and the gears, apart from simply pulling the handbrake on and moving the gear levers. 293 If the battery in the forklift had been in front of the radiator, it would not have been in the position which the plaintiff had indicated as being the position of the battery. 294 Mr Drage was recalled, after Mr Morgan and Mr Caddy had given evidence. In his further evidence Mr Drage said that between August and November 1995 he knew of no fault in the transmission or gear box of the forklift. Mr Drage had not seen a switch of the type which Mr Morgan said in his evidence he had installed, otherwise than in the mining industry. 295 In further cross-examination Mr Drage said that Mr Caddy had told him in 1995 that Syd-Fam was not using the forklift and that Mr Caddy was not prepared to spend any money on it. Mr Drage denied that Mr Caddy had discussed any transmission problem with him in 1995. 296 Mr Drage said that he possibly could have said to Mr Caddy in January 1996 that the forklift had been a problem, not only for Mr Caddy, because it had nearly killed somebody. 297 Although, before I had asked counsel for Lift Truck Services and Liftqip to adduce such oral lay evidence as he wished to adduce, on the basis that the only other oral lay evidence outstanding was evidence from Mr Harders, whose examination in chief was almost complete, and evidence from the plaintiff and Mr Dyson (and possibly Mr Onody) which would be limited to responding to Mr Harders' evidence, I permitted counsel for Syd-Fam, after a long adjournment of the hearing, to call two witnesses, Mr Morgan and Mr Caddy.

Evidence in Chief 298 Mr Morgan gave evidence that he held a trade certificate as a heavy vehicle mechanic. He had served his apprenticeship with a company carrying on business in Singleton under the name of Bowers Drain Service. 299 On 11 December 1996 he unloaded a Manitou forklift at his place of employment. I allowed Mr Morgan to continue giving evidence, on the basis that, if it was not subsequently established that this forklift was the same forklift, his evidence would be disregarded. It was later established, and conceded by counsel for Lift Truck Services and Liftqip, that this forklift was the forklift which had injured the plaintiff. 300 Mr Morgan was asked to check the forklift and he proceeded to check it. "I found that the handbrake didn't work real well, you could start the vehicle in gear and a lot of safety panels weren't in place". On an incline of 1 in 20, with the handbrake on and the forklift's gears in neutral, the forklift rolled. "We found… that you could start it up and within a matter of seconds it would move". 301 The forklift could be started in gear, with the forward-reverse lever in forward and the main gear lever in second. 302 "There was nowhere on the machine that told you what position the gearstick was in on any of the levers". 303 The following evidence was given:- "Q. On the day of delivery when you made your observations about starting the forklift in gear, what was the length of time between when you turned the ignition key and the vehicle moving forward? A. In cold starting in relation to the vehicle, ten, five to ten seconds. If the vehicle was hot or operating, ten, five seconds max. Q. Did you make any observations about the movement or travel in the directional lever? A. Yes, the linkages were very worn and you could find a neutral position if you really looked for it". 304 There was no true neutral position on the directional lever (that is the forward-reverse lever). 305 The battery of the forklift was sitting on a step or foot plate, close to the near side entrance to the driver's cabin. A cover for the battery was fitted by Mr Morgan. 306 Although some modifications to the forklift were made by Bowers, the positions of the two gear levers and the handbrake were not changed. 307 In late December 1996 Mr Morgan carried out work on the forklift, including "fitting a switch to the clutch, so you couldn't start the vehicle, without having your foot on the clutch". I allowed this evidence to be given, not on the basis that it was evidence of a design fault in the forklift, but on the basis that it was evidence of a reasonably practicable step which could be taken to obviate the risk involved in the propensity of the forklift to start in gear and, after a delay, to move forward. Mr Morgan added:- "The switch was fitted underneath the clutch pedal so when your foot was on the clutch it made a full circuit to the starter motor to start the machine. If your foot was not on the clutch, the circuit was broken and there was no power to the starter motor from the key". 308 The work of installing the switch was done at little cost by an auto-electrician.

Cross-examination 309 Mr Morgan was cross-examined by counsel for Skilled. 310 Mr Morgan said that he discovered that the forward-reverse lever did not have a true neutral position; but that there was "a false neutral position", because of wear in the linkages. It was possible to obtain what appeared to be a neutral, when "what in fact you were doing was operating the lever in such a manner that ultimately it disengaged a gear". 311 Mr Morgan was cross-examined by counsel for Malco. 312 Mr Morgan said that the defect in the handbrake was mainly that it was out of adjustment. 313 As to the device he fitted to the forklift, Mr Morgan said:- "It's only to prevent someone from starting the vehicle and not being on the vehicle. The forklift can't be started without having your foot on the clutch and pressing the clutch". 314 Mr Morgan was cross-examined by counsel for Lift Truck Services and Liftqip. 315 Mr Morgan agreed that most of his work had been with machines in the mining industry. 316 In testing the handbrake, he did not apply the footbrake and the handbrake at the same time, although that should have been done. 317 Mr Morgan was cross-examined by counsel for the plaintiff. 318 With regard to the forward-reverse gear, the following evidence was given:- "Q. What you are saying, as I understand it, is that on the forward-reverse lever in the Manitou there is no detent for neutral? A. Yes. Q. In other words, the manufacturer has not provided for any neutral position? A. That's right, yes. Q. The reason you could find a neutral was because the linkages were so, there was so much play in the linkages that between moving the lever from one position, one designed position to the next designed position, you could actually get into a position where you were in neither the first one, nor the second one? A. Yes Q. And that was solely by reason of the poor condition of the box? A. Yes Q. Once you put the linkages into the condition they were meant to be in, you move from one position on the box into another without any neutral? A. Yes". 319 The following evidence was also given:- "Q. But with the Manitou you could start it whilst it is in gear and despite the fact that it was in gear it would not move forward? A. No. Q. It would not move forward until the hydraulic pressure had risen to a certain state? A. Yes Q. The time taken to do that depended upon whether it was hot or cold? A. Yes Q. If it was cold, I think you say a ten seconds plus? A. Yes Q. If it was hot, it would perhaps move in five seconds or so? A. Yes, five seconds maximum. Q. Was there this definite gap between the turning the key, starting the motor, the vehicle stationary and then without any warning it would begin to move forward? A. Yes". 320 Mr Morgan said "you would have to give it a fair bump to move it" out of the false neutral position. 321 Mr Morgan said that the handbrake was virtually not working at all.

Evidence in Chief 322 Mr Robert Caddy gave evidence that up until February 1996 he had been the managing director of Syd-Fam. Syd-Fam carried on the business of a truss plant and a timberyard at Yarrawonga on the Murray River, about one hours drive west of Albury. 323 In about 1993 (Mr Caddy originally said 1995) he came to an arrangement with Mr Drage, whose company Lift Truck Services had been servicing Syd-Fam's existing forklift, to trade in the existing forklift and acquire for Syd-Fam a Manitou forklift. A Manitou forklift, which was the forklift which injured the plaintiff, was delivered to Yarrawonga. It was registered as a motor vehicle under Victorian legislation in the name of "Caddy's Timber and Hardware", that is Syd-Fam. 324 In mid 1995 the forklift was "inoperational". "The machine engine was in running order but to engage it in gear would not result in any forward or reverse movement of the vehicle". The forklift was taken by Lift Truck Services to its premises at Albury. Mr Drage gave Mr Caddy an estimate of the cost of repairing the forklift. Mr Caddy considered that it was not worth spending that amount of money on the forklift. 325 An arrangement was made between Mr Caddy and Mr Drage for Mr Drage's company to repair the forklift, sell it, deduct the cost of repairs and pay Mr Caddy the balance. 326 Mr Drage said nothing to Mr Caddy about hiring out the forklift, Mr Caddy did not consent to the forklift being hired out and Syd-Fam did not receive any money from the hiring out of the forklift. 327 Mr Caddy did not remember the forklift having a problem with water in the oil, at the time it was last taken from Yarrawonga. 328 In January 1996 Mr Drage telephoned Mr Caddy. Mr Drage said "not only was the forklift a problem for you, it has been a problem for someone else. A chap has been nearly killed by the forklift. He has been run over". In the conversation Mr Drage said that he had found a buyer for the forklift. 329 Syd-Fam surrendered the plates to the forklift. On 31 January 1996 Syd-Fam deposited in its bank account $13,000, which it had received from Lift Truck Services from the sale of the forklift.

Cross-examination 330 Mr Caddy was cross-examined by counsel for Lift Truck Services and Liftqip. 331 Mr Caddy said that the forklift, while it was with Syd-Fam, was "a constant frustration, with numerous problems". 332 Mr Caddy had first been asked to recall what had happened concerning the forklift, in late 1997. Mr Caddy had made a statement, which bore a date in May 1998. Mr Caddy had in fact received a draft of the statement some time earlier. He had sought advice from Syd-Fam's usual solicitors, before making a signed statement. The signed statement had not been forwarded to the solicitors acting for Syd-Fam in the current proceedings, until March 1999. In preparing the statement Mr Caddy had not had recourse to any documents and had relied simply on his memory. Mr Caddy had ceased his association with Syd-Fam in February 1996 and had not sought to look for any records of Syd-Fam. 333 Mr Caddy conceded that he did not have any mechanical knowledge and was not sure what was wrong with the forklift, when it left Syd-Fam's premises for the last time. However, he knew that the forklift was inoperative. 334 Mr Caddy denied that on the last occasion the forklift was taken from Syd-Fam's premises, it was taken for repairs to the engine because of water coming into the oil in the engine. 335 Mr Caddy said that he would not have consented to Mr Drage hiring out the forklift, because "I still perceived it was my machine and I also believed if we had entered into an agreement of that type it would delay (a) sale". Mr Caddy conceded that he had had no 336 experience in selling forklifts and conceded, as is obvious, that Mr Drage was experienced in selling forklifts.

Evidence in Chief 337 Mr Collins gave evidence that he was a fitter/welder employed by Lift Truck Services for the last fourteen years. In the course of his employment he had worked on forklifts. 338 On 18 July 1995 Mr Collins checked the handbrake, footbrake and clutch of the forklift and adjusted the clutch. 339 Mr Collins gave evidence about the work sheets which were used by Lift Truck Services. The form of work sheet used had spaces for particulars of the job being done and parts headed "points to be serviced" with twenty-six listed items, each with a box alongside it, "repairs carried out", "repairs required", "spare parts required" and "oils used". 340 Mr Collins distinguished between doing a service on a forklift and doing repairs to a forklift. If a service was being done, entries were made in the boxes under the heading "points to be serviced". 341 Mr Collins recalled "refitting the cylinder head and the sump and the steering axle" of the forklift between August and October 1995. He said that the forklift was never "pulled apart". In the period leading up to the forklift going to the ANM Mill, Mr Collins did not do any work on the gear box, transmission, clutch or brakes. 342 Before the forklift went out to the Mill Mr Collins on 31 October road tested it to make sure that there was no water leaking into the sump. After the road test he checked that the oil in the sump was at the same level. 343 In testing the forklift Mr Collins found nothing wrong with the gears or the brakes. After he had completed testing the forklift, he saw Mr Drage come out and test the forklift. 344 Mr Collins said he knew nothing about the hiring of the forklift. On 31 October he thought that the forklift was going back to Caddy's. 345 Mr Collins and Mr Drage went out to the Mill, after the accident had happened. Mr Collins did not himself test the forklift at the Mill. However, Mr Drage tested the forklift. (He) "tried the handbrake and the footbrake, tried to take off with the engine in gear and with the handbrake and everything on". 346 Mr Collins subsequently went out to the Mill and picked up the forklift. The forklift was winched on to Lift Truck Services' truck. Mr Collins had to start the forklift to get it to the truck and then steer the forklift, as it was being winched on to the truck. Mr Collins did not notice anything wrong with the gears, the clutch or the brakes. When the forklift arrived at the premises of Lift Truck Services, Mr Collins unloaded it. In unloading the forklift he had to drive the forklift. He tested the handbrake. 347 Counsel for Lift Truck Services and Liftqip took Mr Collins through the last work sheets in October 1995. On the work sheet dated 24 October 1995 (work sheet No. 5070) there were no repairs to any of the transmission, the gear boxes or the clutch. Subsequent work sheets indicated that the engine was being assembled. 348 Mr Collins had never seen a switch fitted to a Manitou forklift, such that the clutch would have to be depressed before the forklift could be started.

Cross-examination 349 Mr Collins was cross-examined by counsel for Syd-Fam. 350 The first time Mr Collins know that he might be required to give evidence was in November 1998, when the first part of the hearing was taking place. 351 Mr Collins denied that at any time between November 1995 and November 1998 he had talked to Mr Drage about the accident. On average, he would have seen Mr Drage every two or three days. 352 Between November 1995 and November 1998 Mr Collins put the matter of the forklift completely out of his mind, although "I didn't forget all about it". 353 Mr Collins said that he understood that the reason why he was asked to go to the Mill on 6 November 1995 was to assist with jump starting the forklift. He did not have any discussion with Mr Drage before going out to the Mill. 354 Mr Collins had never tried to start the forklift while it was in one of the forward gears. 355 Mr Collins doubted whether there was any such thing as "chief mechanic" at Lift Truck Services but of the mechanics at Lift Truck Services he had been there the longest. 356 The problems being rectified in October 1995 were water getting into the engine oil, the steering being "a bit hard" and the replacing of the seals in the steering cylinder. When Mr Collins first saw the forklift, the engine was "pulled apart", "in pieces". 357 Mr Collins did not see anyone from Prevwreck (that is, Mr Harders) arrive at Lift Truck Services' premises to collect the forklift. 358 Work sheet 5070 dated 24 October 1995 recorded work done by Mr Collins. Under the heading "repairs carried out" he wrote "pick up gaskets and cylinder head and pistons. Clean bottom O-ring groove, fit cylinder lines". Work sheet 5071 dated 25 October 1995 was completed by Mr Collins. Mr Collins wrote on the work sheet "start to assemble machine". The 27 and 28 October 1995 were a week-end. On work sheet 5072 dated 30 October 1995 Mr Collins wrote "assemble engine and refit steering axle". Mr Collins was still in the course of assembling the engine, when he completed work that day (30 October 1995). 359 On work sheet 5073 dated 31 October 1995 Mr Collins wrote "finish off truck top up oils and test" and he ticked the box "job complete". The job was not completed until 1.30 in the afternoon. Mr Collins did his testing of the forklift "probably between 12 and 1.30". 360 Mr Collins said that he did not wear overalls and he did not think that Mr Drage wore overalls. 361 Mr Collins did not have any conversation with anyone not employed by Lift Truck Services, when the forklift was taken away on hire on 31 October. 362 Mr Collins denied that he had written the word "fair" in the condition report on the Hire Agreement from Liftqip to Prevwreck. Mr Collins said that in his understanding workshop "fair" meant "everything works but it's not a new machine"; office "fair" usually meant the outside appearance of the unit. 363 Mr Collins did not recall Mr Drage asking him on 31 October to test the forklift. After Mr Collins had tested the forklift Mr Drage said that he would test the forklift. Mr Collins told Mr Drage that he, Mr Collins, had already tested the forklift. 364 Mr Collins was cross-examined by counsel for Malco. 365 Mr Collins said that he had not filled out the Liftqip Hire Agreement. 366 He denied that in October 1995 he had been in a great hurry to get the job on the forklift finished. 367 Mr Collins was cross-examined about various Lift Truck Services' work sheets. The work sheets dated as of August 1995 were directed in part to resolving the problem of water in the engine oil. On work sheet 4652 dated 8 August 1995 the repairs carried out were noted as "TTS, investigate water in the engine oil, remove head inspect & RTB with the head for crack test flatness check injector tube seal check". On work sheet 4678 dated 24 and 25 August 1995 "repairs carried out" were noted as "unload from truck. Steam clean. Remove weights radiator steer axle sump piston and liners and inspect. Clean work area". 368 Mr Collins did not recall ever telephoning Mr Drage from Yarrawonga to discuss the amount which would be charged by Lift Truck Services for repairs to the forklift. 369 Mr Caddy did not tell Mr Collins and no one on behalf of Mr Caddy told Mr Collins that there were clutch and gear problems with the forklift in 1995. 370 On 6 November 1995 at the Mill Mr Collins had not talked to anyone about the forklift. 371 Mr Collins said that he had never done any repairs to the gears of the forklift. 372 Mr Collins said that when he tested the forklift on 31 October he drove the forklift about ten kilometres on public roads. He did not take any oil or water with him. He drove the forklift up a hill to make sure the forklift got hot. When the forklift got hot, it was possible to tell whether there was an oil or water leak. 373 Mr Collins was cross-examined by counsel for the plaintiff. 374 Mr Collins denied that he knew on 6 November 1995 that it had been at least suggested that the forklift might have contributed to the accident. 375 Mr Collins said that on 6 November at the Mill Mr Drage had tested the forklift. Mr Drage was "driving it around… I was probably about eighty metres away inside the factory". Mr Collins said that he was shown by persons the path the forklift had allegedly followed on 4 November, for fifty to sixty metres from outside the building into the building. When it was put to Mr Collins that there was some inconsistency in the evidence he had given about whether he had seen Mr Drage do any tests on the forklift at the Mill, he said, "I was there for a while and then I was taken away. I seen Mr Drage do these tests and then I didn't see any more, I was taken into the factory". Mr Collins did not ask Mr Drage why Mr Drage was doing the tests. 376 When he was at the Mill on 6 November Mr Collins knew that someone had been injured within a few days of his assembling the forklift and he accepted that he would have had some interest in finding out how the accident had happened but he had done nothing to find out how the accident had happened. 377 Mr Collins said that there was nothing wrong with the brakes or gears (either the forward-reverse or the main gear) of the forklift, when it left Mr Collins on 31 October. 378 Mr Collins said that, so far as he could recall, there was a neutral position on the forward-reverse lever. 379 Mr Collins said that the gear positions for the main gear lever were clearly marked on the top of the housing and that there was no sloppiness or difficulty in getting the gear lever into each of the gears. 380 He said that he was walking away, but only a few metres away, when on 6 November he saw Mr Drage performing the tests on the forklift, including checking the handbrake. "What I seen (of the tests) was probably about five minutes". Mr Collins did not subsequently ask Mr Drage what his tests of the forklift had disclosed. 381 As far as Mr Collins was concerned, the work he was performing on the forklift in late October 1995 was a routine job not involving any urgency. No one told him the forklift had to be ready by 30 October.

Credibility of some of the witnesses 382 After this survey of some of the evidence given by the witnesses, it is appropriate that I make some observations about what I consider to be the credibility of some of the witnesses. 383 I am prepared, for the most part, to accept the plaintiff's evidence, although the plaintiff was by no means a fully reliable witness. I will give a few examples of evidence given by the plaintiff which I consider to be unreliable. I am satisfied that the plaintiff marked the position of the battery on the forklift incorrectly, in a position some distance above the foot plate, where it would be necessary to lift a panel to reach the battery. Although I am satisfied that there was a delay between Mr Onody switching the ignition of the forklift on and the forklift commencing to move forward, I am satisfied, in the light of other evidence including Mr Morgan's, that the delay was not as long as the plaintiff estimated. The plaintiff said that at the time of the accident there was a noisy machine operating in the vicinity, the noise of which would have drowned the sound of the forklift's engine. This evidence by the plaintiff is contradicted by the evidence of both Mr Dyson and Mr Onody, whose evidence is supported by the circumstance that it was a Saturday afternoon and by the evidence generally, which would suggest that there was no other person or activity in the vicinity. 384 There are also some puzzling features of the plaintiff's evidence. For example, if the plaintiff was actually holding the end of a lead to a terminal of the battery of the forklift, it is surprising that he should not have noticed that the forklift was moving, before the forklift ran over his foot. 385 The plaintiff's case against the defendants was put by his counsel on the basis that the plaintiff was mistaken in his belief that he had put both the main gear and the forward-reverse gear into neutral, when he parked the forklift. 386 I consider that Mr Dyson was an honest but not always reliable witness. Unsurprisingly, he did not recall some things which I am satisfied happened. In some cases his recollection was faulty. For example, he thought that stage two of the job at the Mill had been in progress for two or three weeks before the plaintiff was injured. When there is a conflict between the plaintiff's evidence and Mr Dyson's evidence, for example, about whether the plaintiff complained to Mr Dyson about the forklift, I would generally, although not always, prefer the plaintiff's evidence. I generally accept the evidence of Mr Onody. 387 A witness whose credibility was strongly attacked was Mr Harders. It was submitted by a number of counsel that I should not accept Mr Harders' evidence of what he said had happened when he delivered the forklift to the ANM Mill. However, some of the same counsel suggested that I should accept his account of what he said had happened, when he picked up the forklift at the premises of Lift Truck Services. 388 I do not accept Mr Harders' evidence about what he said happened when he delivered the forklift to the ANM Mill, where his evidence is in conflict with other evidence. His account is contradicted in important respects by the evidence of all of the plaintiff, Mr Dyson and Mr Onody. It is unlikely that Mr Dyson was already "there", waiting for the delivery of the forklift, when Mr Harders arrived at the Mill. It is unlikely that Mr Harders would have asked "all present" (whether they were three or four individuals), if they each had a forklift ticket or that everyone present said or nodded "yes". If Mr Dyson and Mr Onody had been asked whether they had a forklift ticket, I consider that each of them would have replied, truthfully, in the negative. If "all present" (all of whom would have been considerably older than Mr Harders) had indicated that they had a forklift ticket, then it is unlikely that Mr Harders would have given them the kind of stilted lecture about how to operate a forklift which Mr Harders alleged that he gave. It is unlikely, in any event, that Mr Harders would have given such a lecture. 389 It is true that I can, if I see fit, reject part of the evidence of a witness and accept some other part of the evidence of the same witness. However, I should not do this capriciously and, having rejected Mr Harders' evidence about what happened when he delivered the forklift at the Mill, I do not consider that I should accept his evidence about what happened when he picked up the forklift at the premises of Lift Truck Services, where it is contradicted by the evidence of Mr Drage or Mr Collins. Mr Harders' demeanour generally was unimpressive. He obviously resented having to attend court to give evidence and resented the fact that complaints had been made about a forklift he had delivered. 390 A witness whose credibility is important to at least one of the cross-claims is Mr Moore, the supply manager employed by Malco. After being extremely positive and categorical in his evidence in chief concerning what he said was the invariable practice followed in the placing of orders by Malco, Mr Moore had to retract much of his evidence in cross-examination. I formed an unfavourable view of Mr Moore's credibility generally. 391 The two witnesses who were called late in the hearing by Syd-Fam, Mr Morgan and Mr Caddy, became important witnesses. 392 I found Mr Morgan an impressive witness. It is true that his first contact with the forklift was not until December 1996, just over a year after the accident, and this lapse of time must be taken into account in assessing his evidence. However, it would be remarkable, if it were merely a coincidence that defects, similar to those which the plaintiff claimed to have observed in the forklift in November 1995, were also observed by Mr Morgan in December 1996. 393 Mr Morgan's evidence, that there was no true neutral position for the forward-reverse lever but only a "false" neutral, came as a surprise, as being inconsistent with some other evidence in the case. However, I am disposed to accept Mr Morgan's evidence on this point. 394 Mr Caddy had first been asked to recall what had happened in late 1997, had had no recourse to contemporaneous documents and had had simply to rely on his memory in preparing the statement he made and in giving his evidence. 395 Mr Caddy was not a fully reliable witness. For example, he did not remember, and was inclined to deny, that the forklift had had a problem with water getting into the oil at the time the forklift was taken from Yarrawonga for the last time in August 1995. However, contemporaneous Lift Truck Services' work sheets indicate that this was a problem with the forklift in August 1995. 396 I have, however, decided that I should generally accept Mr Caddy's evidence. It is true that he did not have any special mechanical knowledge. However, no special mechanical knowledge is really required to know that a forklift is "inoperational" or that, even though a forklift is put in gear, there is no forward or reverse movement of the forklift. 397 A strong attack was mounted, particularly by counsel for the plaintiff and counsel for Malco, on the credibility of Mr Drage. 398 I would not find, as I was urged to do, that Mr Drage was consciously dishonest in any of his evidence. However, I am satisfied that in a number of respects his evidence was inaccurate and this inaccuracy has an effect on the reliability of his evidence generally. For example, Mr Drage said that the forklift shown in exhibit "M" was "similar" to, "identical" with, the forklift which injured the plaintiff but then had to concede that the two forklifts were different in a number of respects. Mr Drage said that the word "fair" had been written in the condition report in the hire agreement from Liftqip to Prevwreck by Mr Collins, with whose handwriting he would have been familiar. Later, Mr Drage resiled to some extent from this evidence and Mr Collins, when he gave evidence, denied that he had written the word "fair". 399 Mr Drage denied that the forward-reverse gear was operated by hydraulic power. He said that he remembered distinctly that the forward-reverse gear used to grind, if the operator did not put his foot on the clutch. Yet elsewhere in his evidence he said that a problem which the forklift had had some years before the accident was due to a pipe providing hydraulic pressure to the forward-reverse gear having split. That the forward-reverse gear was operated by hydraulic power was, in my opinion, established conclusively by other evidence in the case. 400 Mr Drage said that Mr Caddy had not given his consent to the particular hiring of the forklift to Prevwreck but asserted that Mr Caddy had given a general consent to the forklift being hired. I accept Mr Caddy's evidence that no such consent was given by him. 401 Mr Drage could not see how it could have happened, that the forklift, having been started, should, after a delay of some seconds, have moved forward. I am satisfied that this is what in fact happened with the forklift. 402 Mr Drage conceded that it was possible that he had had a conversation with Mr Caddy in January 1996 along the lines alleged by Mr Caddy, that is that he had told Mr Caddy that the forklift had been a problem, not only for Mr Caddy's company, but for someone else as well and that the forklift had nearly killed a man by running over him. 403 A serious attack was also mounted on the credibility of Mr Collins. 404 There are a number of matters which cast doubt on the reliability of Mr Collins' evidence. Mr Collins first knew that he might be required to give evidence in November 1998 during the first part of the hearing, that is three years after the accident. Mr Collins, who was working on the forklift on 30 and 31 October 1995, denied that there was any urgency in doing this work. I find this difficult to accept, as I am satisfied that Liftqip had agreed to hire out the forklift as from midday on 30 October. 405 I accept that Mr Collins gave the forklift a test on 31 October. However, according to his own evidence, the main purpose of this test was to determine whether the forklift had any oil or water leak. 406 Mr Collins accompanied Mr Drage to the ANM Mill on 6 November. Mr Collins knew that someone had been injured in an accident involving the forklift, within a few days of his having assembled the forklift. I do not accept that, in those circumstances, he would have done nothing to find out how the accident had happened. 407 Mr Collins' evidence about where he said he was, when he claimed to have seen Mr Drage testing the forklift at the Mill varied considerably from time to time in his evidence. Mr Collins asserted that he saw Mr Drage test the forklift on 6 November, by trying to turn the engine on with the gears engaged and the handbrake on. Mr Drage, on the other hand, said that he had not performed any such test on 6 November. Mr Collins asserted that after Mr Drage had performed tests on the forklift on 6 November, he had not asked Mr Drage why he had done the tests or what the tests had disclosed. I do not accept this evidence. 408 Mr Collins asserted that the gear positions were clearly marked on the top of the housing. I am satisfied that this evidence is incorrect.

Other difficulties in Fact Finding 409 Apart from shortcomings in the credibility of some of the witnesses, there are other difficulties in determining what was the state of the forklift at the time the accident happened and how the accident happened. 410 It is unfortunate that there was no proper independent inspection of the forklift soon after the accident happened or at least none of which evidence was given at the hearing of these proceedings. The report of the accident investigation team of ANM was primarily concerned with whether there had been any deficiencies in the procedures of ANM itself. The only real expert engineering evidence given at the hearing was that given in his reports and orally by Mr Anderson. Mr Anderson concluded that there was not sufficient data to determine what caused the forklift to commence moving forward some time after the engine started. Mr Anderson lamented that he had not himself seen the forklift. Mr Pitcher, the Workcover inspector who went to the ANM Mill on 6 November 1995 to investigate the accident, was not called as a witness by any party. The reports by experts retained by Lift Truck Services and Liftqip and by Syd-Fam, which other evidence clearly disclosed existed, were not tendered by any party at the hearing. 411 Because of the complexity of the matter and because many aspects remain obscure, I do not consider that I should give myself a Jones v Dunkel direction in respect of any person not called as a witness.

Findings 412 It is necessary for me to make some explicit findings about the nature of the forklift and its condition at the time of the accident and about the way in which the accident happened. 413 The nature of the forklift is described in some of the evidence which I have already summarised. 414 The forklift was a diesel powered forklift. It had four speed manual transmission gears and a separate forward-reverse gear. For the forklift to move forward, the main gears would have to be in gear and the forward-reverse gear would have to be in forward. 415 The forward-reverse gear was hydraulically operated. When Mr Morgan examined the forklift, there was no true neutral but because of worn linkages the gear lever could be moved into a position where the forward-reverse gear was disengaged. The forward-reverse gear was operated by a floor mounted lever on the left hand side of the driver. 416 The main gears were "sloppy", making it difficult for the operator to tell whether he had put the main gears into neutral. There were no visible markings on the gear lever indicating the positions the gear lever should be moved to in order to engage the various gears. The gear lever for the main gears was relatively low to the floor and the plaintiff drove the forklift with the gear lever between his legs. 417 The handbrake was not functioning properly and was ergonomically awkward, that is it was physically difficult for the operator to move the handbrake into a position where it was fully applied. The handbrake was operated by a floor mounted lever, close to the forward-reverse gear lever. If the handbrake had been properly maintained and had been applied properly, then it should have held the forklift, even though the engine was running, the main gears were in gear and the forward-reverse gear was in forward. 418 The battery was situated in an open position on a foot plate on the side of the forklift. The battery was not in the position which the plaintiff marked on a photograph of the forklift as being the position of the battery. But nor was the battery in the same position as the battery of the forklift shown in exhibit "M" (as Mr Drage alleged). 419 The ignition switch was on the right hand side of the dashboard underneath the steering wheel. As the forklift had a diesel engine, the engine could not be stopped immediately by switching off the ignition. The forklift engine could be stopped immediately by applying a kill switch, situated on the right hand side of the cabin about level with the driver. 420 The forklift could be started "with the drive train engaged", that is with the main gears in gear and the forward-reverse gear in forward. The forklift was not fitted with any device which would prevent the engine being started in gear but such a device is not normally found in a forklift with a manual transmission. 421 If the forklift was started in gear, it could happen that the forklift would not move forward immediately but would then, after a delay of several seconds, start moving forward. 422 When the forklift was taken from Syd-Fam's premises to Lift Truck Services' premises in August 1995, it was "inoperational" and the gears were causing problems. The forklift was taken to Lift Truck Services' premises pursuant to an arrangement made between Mr Caddy and Mr Drage that Mr Drage's company would repair the forklift and sell the forklift, accounting to Mr Caddy's company for the net proceeds of sale. Mr Caddy did not consent to the forklift being hired out. 423 Between August and October 1995 various repairs were done to the forklift. The extant contemporaneous documents do not clearly disclose all of the work done. According to Mr Collins' evidence, no work was done on the gear box, the transmission, the clutch or the brakes but I am not satisfied that this is correct. 424 I consider that I should hold that the various tests performed by Mr Collins and Mr Drage were of a limited nature only. The main purpose of the tests performed by Mr Collins on 31 October, according to his own evidence, was to make sure that no water was leaking into the sump. The testing of the forklift by Mr Drage on 31 October was limited to driving the forklift around the premises of Lift Truck Services. Mr Drage knew that his "senior mechanic" Mr Collins had already driven the forklift that day and Liftqip was already a day late in supplying the forklift. These factors would suggest that any driving of the forklift by Mr Drage on 31 October was fairly cursory. Mr Harders, when he picked up and delivered the forklift on 31 October, drove it only short distances in loading it on to a truck and then unloading it from the truck. Mr Collins did not himself test the forklift on 6 November. On 6 November Mr Drage performed certain operations on the forklift under the direction of a Workcover inspector. However, he did not perform the test of starting the forklift with the drive train engaged and the handbrake applied. 425 I am satisfied that I should accept the plaintiff's evidence that he complained to Mr Dyson about the forklift, as he alleged in his evidence. The plaintiff's evidence is partly corroborated by Mr Onody's evidence that the plaintiff had some "grizzles" about the forklift and in particular had complained about the gears. Mr Dyson denied that the plaintiff had complained about the forklift but qualified this denial to some extent by saying that the plaintiff had said that it was an old, manual forklift and by agreeing that it was possible that he had told the plaintiff that Prevwreck had said that the forklift was the only forklift available. 426 Before making findings about what happened at and about the time of the accident, I should note that the plaintiff was a qualified, experienced forklift driver, whereas neither Mr Dyson nor Mr Onody had any qualification or any experience in driving forklifts. The plaintiff was the only one of the three who had driven this particular forklift, after it had been delivered to the Mill. 427 On 4 November 1995 Mr Dyson asked the plaintiff to use a ladder, which was part of Malco's equipment. The plaintiff declined on the ground that the ladder was dangerous. Mr Dyson thereupon asked the plaintiff to get some kind of substitute for the ladder. The plaintiff obtained the boom lift, which did not belong to Malco but which was on the site. Mr Dyson acquiesced in the use of the boom lift and himself used the boom lift to fix bolts in the overhead gantry Malco was erecting. 428 After the boom lift had been used and had been switched off, difficulty was experienced in restarting the boom lift. It was necessary to restart the boom lift, either to lower the boom (according to the plaintiff's evidence) or to return the boom lift to where it had been taken from (according to Mr Dyson's evidence). A decision was made by the group to endeavour to restart the boom lift by jump starting it, using the forklift. Although the decision was one in which all three members of the group participated, effectively the decision was made by the person in charge of the group, Mr Dyson. 429 The plaintiff drove the forklift and parked it close to, and parallel with, the boom lift, so that the nearside of the forklift was adjacent to the offside of the boom lift. It is unclear how far the two vehicles were apart. The plaintiff said that they were very close together and that it was not possible to walk between the two vehicles. Mr Dyson said that the two vehicles were about a metre apart and Mr Onody said that they were at least a few feet apart. I consider that it is likely, having regard to evidence about the movements of the plaintiff and Mr Onody in the space between the two vehicles, that the two vehicles were further apart than the plaintiff said. 430 The plaintiff gave evidence in a number of parts of his evidence about the procedure he followed on this occasion and the procedure he followed on all occasions in stopping and parking the forklift. I accept that on this occasion the plaintiff lowered the tines of the forklift, applied the handbrake and turned the engine off by using the kill switch. The plaintiff also said that he made sure that the forklift was out of gear. He said that the procedure he always followed was to put the main gear lever into the neutral position using the clutch, then take his foot off the clutch and then move the forward-reverse lever to the neutral position. He said that he did these things, before applying the handbrake and turning the engine off. 431 I am satisfied that the plaintiff in fact left the forklift in gear, that is the main gear lever in gear and the forward-reverse gear lever in forward. Indeed, it was the plaintiff's case, as put by his counsel, that the plaintiff was mistaken in thinking that he had put the forklift out of gear into neutral. 432 The forklift could not move forward, unless the main gear was in gear and the forward-reverse gear was in forward. For reasons which I give below, I am satisfied that the gear levers were not moved into gear by Mr Onody and I am also satisfied that the gear levers were not moved into gear by vibration of the engine of the forklift after it had been started by Mr Onody. I reject evidence by Mr Drage that the forklift could not be started with the two gears in gear and the handbrake applied. 433 After parking the forklift, the plaintiff got out of the forklift. He stood in between the two vehicles, facing the forklift with his back to the boom lift. The plaintiff was standing in between the front and the rear wheels of the forklift. 434 Mr Onody got a pair of leads from Malco's equipment container. The leads were welding leads about twenty feet long. The leads were successfully applied by the plaintiff and Mr Onody to the battery of the boom lift. The plaintiff then endeavoured to apply the leads to the battery of the forklift. 435 The plaintiff asked Mr Onody to start the forklift. I am satisfied that the plaintiff also said to Mr Onody "it (the forklift) won't move". Mr Onody said that the plaintiff said this and the plaintiff accepted that he might have said this to Mr Onody. The confidence the plaintiff undoubtedly had that the forklift would not move tends to suggest that it quite likely that the plaintiff would have told Mr Onody that the forklift would not move. 436 Apart from telling Mr Onody to start the forklift and that the forklift would not move, the plaintiff did not say anything to Mr Onody. In particular, the plaintiff did not tell Mr Onody to get into the driver's seat of the forklift to start the forklift or to stay in or near the forklift. 437 After being told by the plaintiff to start the forklift, Mr Onody got on to the foot plate of the forklift and, without otherwise entering into the cabin of the forklift, reached across the cabin with his arm and started the forklift by turning the ignition key. I am satisfied that Mr Onody got on to the foot plate on the left hand side (that is the nearside) of the forklift. Mr Onody said that he got on to the left hand side foot plate. The plaintiff initially said the same in his evidence, although later in his evidence he said that Mr Onody could have got on to the other side of the forklift. If Mr Onody was standing on the foot plate on the left hand side of the forklift, he had to reach across a distance of about two and a half to three feet to turn the ignition key, situated as it was towards the right hand side of the dashboard. 438 At the time Mr Onody started the forklift, Mr Dyson was standing somewhere near the rear of the forklift. 439 I am satisfied that, neither in reaching across the cabin to turn the ignition key nor in withdrawing his arm, did Mr Onody touch any of the two gear levers or the handbrake. Mr Onody denied that he touched any of these controls of the forklift. I consider it is unlikely that he touched any of them inadvertently. The ignition of the forklift is on the dashboard. The main gear lever is quite low to the floor of the cabin of the forklift. The handbrake and the forward-reverse gear lever are towards the rear of the cabin on the left hand side of the driver. 440 After Mr Onody turned on the ignition of the forklift, the plaintiff found that the clamp he was using to try to secure one of the leads to a terminal of the battery of the forklift was ineffective. The plaintiff could not recall whether he asked Mr Onody to get another clamp or whether Mr Onody volunteered to get another clamp. I consider it likely that the plaintiff asked Mr Onody to get another clamp. Of the two of them, the plaintiff was the one who would have been more conscious of the inadequacy of the clamp he was attempting to use and the plaintiff was the one who was really in control of the operation. 441 Mr Onody went away from the forklift to get another clamp. The plaintiff continued to hold the lead and the clamp to the terminal. After some delay the forklift moved slowly forward, trapping the plaintiff's right leg. The forklift had moved less than a metre, when it trapped the plaintiff's right leg. 442 As previously noted, in order for the forklift to move forward the forward-reverse gear must have been in forward and the main gear lever must have been in gear, probably a low gear. If the handbrake had been functioning properly and had been properly applied, it should have stopped the forklift moving, even though the engine was running and both gear levers were in gear. 443 I am satisfied that there was a delay between Mr Onody starting the engine and the forklift moving forward. All of the plaintiff, Mr Dyson and Mr Onody said that there was such a delay. However, they differed in their estimates of the length of the delay. The plaintiff said twenty to thirty seconds and denied that the delay could have been as short as ten seconds. Mr Dyson said between ten and twenty seconds. Mr Onody said half a minute to a minute. 444 I consider it unlikely that the delay was as long as some of these estimates. Estimates of time are notoriously inaccurate. However, as I have said, there was a perceptible delay lasting at least some seconds, during which the plaintiff observed that the clamp he was using was inadequate, the plaintiff asked Mr Onody to get another clamp and Mr Onody walked some distance away from the forklift to get another clamp. 445 After the plaintiff's foot was trapped and he called out, Mr Onody tried to stop the forklift by running to the forklift, jumping on to the left hand side foot plate and turning the ignition key. However, the forklift did not stop. The forklift had a diesel engine, which could not be stopped immediately by turning off the ignition. Mr Dyson then jumped on to the foot plate on the right hand side of the forklift and, after some delay, pushed the kill switch, thereby stopping the forklift.

Claims in the Proceedings 446 I now turn to the various claims made in the proceedings. As I have already said, I do not propose in the present judgment to attempt to decide all of the issues which arose in all of the claims.

The Plaintiff's claim against Malco 447 As I stated near the beginning of this judgment, the plaintiff made two sorts of claims against Malco, namely:- 448 (i) That Malco owed the plaintiff duties analogous to those owed by an employer to an employee, including duties to take reasonable care to provide safe plant and equipment and a safe system of work (in particular, it was alleged that the forklift was defective), that Malco had breached those duties and that, by reason of those breaches, the plaintiff had been injured. 449 (ii) Malco was vicariously liable for casual acts of negligence by its employee Mr Onody, by reason of which the plaintiff had been injured. 450 I will deal with these two sorts of claims in turn. 451 (i) Counsel for the plaintiff, while accepting, and indeed submitting, that the plaintiff's employer was Skilled, and not Malco, submitted that Malco occupied a position substantially similar to that of an employer and owed duties to the plaintiff commensurate with those of an employer. 452 Counsel for Malco submitted that, as Skilled and not Malco was the plaintiff's employer, Malco did not owe any duty to the plaintiff or at least did not owe any duty to the plaintiff in the particular circumstances of this case, it being contended that at the time he was injured the plaintiff was engaged in an enterprise ("frolic") of his own. 453 I consider that counsel for the plaintiff's submissions should be accepted. Malco did occupy a position substantially similar to that of an employer. It was Malco who communicated with the plaintiff and asked him to work on the Malco project at the Mill. Malco asked that the plaintiff's labour be hired to it through "a body hire company". It was immaterial to Malco which body hire company was used. It is substantially true to say that Skilled, the body hire company selected, was like a conduit for the rendering of the plaintiff's labour for the benefit of Malco. The plaintiff had also worked in an earlier stage of the work being done by Malco at the Mill. 454 At the Mill the plaintiff worked as a member of a crew or gang, the other members of which were two Malco employees, Mr Dyson and Mr Onody, in carrying out the operations of Malco. Mr Dyson was in charge of the group and it was he would give instructions to the plaintiff. Each morning the plaintiff reported to Mr Dyson. Although decisions were often group decisions, if there was any difference of opinion, it would be Mr Dyson's opinion which would prevail. 455 The plant which was used by the group (unless it was borrowed at the site) was supplied by Malco. The forklift itself had been hired by Malco. The welding leads which were being used to jump start the boom lift were supplied by Malco. 456 After the plaintiff's wages were paid to him by Skilled, Skilled was reimbursed for those wages by Malco. 457 When all of these matters are taken into account, it is clear that Malco occupied a position substantially similar to that of an employer. 458 It is also quite clear that in attempting to jump start the boom lift, which had been used by Mr Dyson to fix bolts in the overhead gantry, so that either the boom of the boom lift could be lowered or the boom lift could be returned to the place from which it had been taken, the plaintiff was engaged in the operations of Malco, and not on some frolic of his own. 459 I am satisfied that Malco breached the duties which, as a person akin to the plaintiff's employer, it owed to the plaintiff,. The forklift was defective and unsafe and before the accident happened the plaintiff had complained to Malco's employee, Mr Dyson, about the forklift and had asked Mr Dyson to have the forklift replaced. There was a risk of injury from using the forklift which was reasonably foreseeable. Reasonably practicable alternative steps available to Malco which would have obviated the risk were to get rid of the forklift and replace it with some other piece of equipment or to equip the forklift with a switch of the kind which Mr Morgan subsequently had installed in the forklift. The plaintiff was injured by reason of the unsafe condition of the forklift and in all the circumstances Malco failed to take reasonable care for the safety of the plaintiff. 460 (ii) It was submitted that Mr Onody was negligent in two respects:-

(a) In inadvertently bumping the gear levers and the handbrake of the fork lift, so as to put the gear levers into gear and to release the handbrake, either when he extended his arm into the cabin of the forklift to turn the ignition on or when he withdrew his arm after having turned the ignition on.

(b) In starting the forklift engine and then leaving the forklift while its engine was running and the plaintiff was standing near the forklift. 461 I have already found that Mr Onody did not bump any of the controls of the forklift, so that the first particular of alleged negligence by Mr Onody has not been established. 462 As regards the second particular of alleged negligence by Mr Onody, it is true that Mr Onody started the forklift and then left the forklift, while its engine was running and the plaintiff was standing near the forklift. However, I do not consider that Mr Onody should be found to have acted negligently in acting as he did. The plaintiff had knowledge and experience of forklifts, as Mr Onody knew. Mr Onody himself did not have any knowledge or experience of forklifts. Mr Onody was told by the plaintiff to turn on the engine of the forklift and he complied. He was assured by the plaintiff that the forklift would not move. He was then told by the plaintiff to go and get a clamp and he complied with the plaintiff's request. In acting as he was told to act by the plaintiff, I do not consider that Mr Onody was negligent. 463 Alternatively, even if Mr Onody should be regarded as having been negligent, I do not consider that his negligence was a cause of the accident. Even if Mr Onody had remained on or near the forklift, I do not consider that he could reasonably have been expected to have reacted promptly enough in an appropriate way to have prevented the forklift travelling the distance of less than a metre which it travelled before trapping the plaintiff's foot and leg. The plaintiff himself did not notice that the forklift was moving before the forklift trapped his foot and did not make any utterance, before his foot was trapped, which would have served as a warning to Mr Onody. When Mr Onody, having heard the plaintiff cry out, did attempt to stop the forklift, he took the quite reasonable step of reversing what he had done to start the engine, that is, turn the ignition key. However, as the forklift had a diesel powered engine, the taking of this step did not arrest the forward movement of the forklift and the forklift was stopped, only when, after frantic activity by Mr Onody and Mr Dyson, Mr Dyson found and applied the kill switch. 464 My finding that Mr Onody was not negligent has consequences for some of the cross-claims. 465 There should be a verdict for the plaintiff against Malco, as a result of the plaintiff succeeding on claim (i).

The plaintiff's claim against Skilled 466 Skilled admitted that it was the plaintiff's employer and conceded that it owed the duties of an employer to the plaintiff. 467 Skilled hired the plaintiff's labour to Malco but Skilled could not thereby divest itself of its obligations to the plaintiff as his employer. The duties of an employer are "non-delegable", in the sense that performance of the duties cannot be delegated by the employer to a contractor, on the footing that delegation to a competent contractor is a sufficient performance of the duties. The employer is liable for any negligence on the part of the contractor in not taking reasonable care to provide a safe system of work or safe equipment for the employer's employee. Kondis v State Transport Authority (1984) 154 CLR 672. 468 In the present case, Skilled itself did nothing by way of performing its obligations as the plaintiff's employer and it is liable for Malco's negligence in not providing a safe system of work or safe equipment. 469 Accordingly, there should be a verdict for the plaintiff against Skilled.

Contributory negligence 470 It was submitted by a number of the defendants and cross-defendants that the plaintiff had been guilty of contributory negligence. 471 Although it was asserted that the plaintiff had been contributorily negligent in a number of respects, the two principal respects asserted were that the plaintiff had been negligent:-

(i) in leaving the forklift in gear, in both the main gears and the forward-reverse gear, when he parked the forklift.

(ii) in assuming a dangerous position near the forklift and remaining in that position after he had told Mr Onody to start the forklift and after Mr Onody had left the vicinity of the forklift to look for a clamp.

As regards (i):- 472 Counsel for the plaintiff accepted that the plaintiff had intended, when he parked the forklift, to put the forklift out of gear in both gears and that the plaintiff had failed to do so. However, it was submitted that the plaintiff's failure was solely attributable to the defective condition of the forklift, including that the main gears were "sloppy" and the positions of the gears were not marked and that the forward-reverse gear had no true neutral. 473 I do not accept the submission that the plaintiff's failure was solely attributable to the defective condition of the forklift. The plaintiff said in his evidence that his invariable procedure in stopping the forklift was to take the following steps in the following order, to put the main gear lever in neutral, then release the clutch, then put the forward-reverse lever in neutral, and then switch the engine off and apply the handbrake. The adoption of this method enabled the plaintiff to be "certain" that he had put the forklift out of gear. 474 If the plaintiff had followed this procedure and he had not in fact succeeded, as a first step, in putting the main gear into neutral, then I consider it likely that he would have realised his mistake from the behaviour of the forklift, when he released the clutch. I consider it probable that the plaintiff in parking the forklift did not in fact follow the procedure he said he always adopted. He ought to have followed such a procedure, particularly having regard to his knowledge that the forklift was defective, including that its handbrake was defective. 475 As to the forward-reverse lever, I have accepted Mr Morgan's evidence that the forward-reverse gear did not have a true neutral position. However, the lever could be put into a position where the forward-reverse gear was in fact disengaged and the plaintiff himself said in his evidence that when he was driving the forklift on the days preceding the day of the accident he had had no difficulty in using the forward-reverse lever and "finding neutral". I consider that there was some negligence by the plaintiff in not achieving the result that the forward-reverse lever was put in a position where the forward-reverse gear was disengaged. 476 I find that there was some negligence on the plaintiff's part in parking the forklift with both of its gears engaged and that this negligence by the plaintiff contributed to the happening of the accident.

As regards (ii) 477 I do not consider that I should find that the plaintiff was contributorily negligent in this respect, independently of (i). If either the main gear or the forward-reverse gear had been put into neutral, the forklift could not have moved forward and there would have been no risk involved in the plaintiff taking up, and remaining in, a position near the forklift. 478 Having found that the plaintiff was contributorily negligent, I have to determine to what extent I consider it just and equitable to reduce the plaintiff's damages, having regard to the plaintiff's share in the responsibility for the damage. I have to assess the plaintiff's share of the responsibility against the totality of the tortious conduct of the two defendants. In my opinion, the overwhelming proportion of the responsibility should be attributed to the defendants for their failure to take reasonable care to provide a safe system of work and safe equipment. 479 I assess the defendants' share of responsibility at ninety percent and the plaintiff's share of responsibility at ten percent.

Damages 480 A question which was debated at the hearing was whether, if the plaintiff obtained a verdict, the damages to be awarded to the plaintiff should be assessed at common law or subject to Pt 6 of the Motor Accidents Act or subject to division 3 of Pt 5 of the Workers' Compensation Act or partly on one such basis and partly on another. It was recognised that what basis or bases of assessing damages should be adopted would depend on what findings I made on certain factual issues. It was agreed that after I had delivered a preliminary judgment the parties should have the opportunity of making further submissions as to what basis or bases of assessment of damages should be adopted, in the light of the findings of fact I made in the preliminary judgment. 481 Apart from this general question of how damages should be assessed, it became apparent during the hearing and it has become even more apparent to me during the period that this judgment has been reserved, that it would be impracticable for me in this preliminary judgment to attempt to resolve all questions of damages. I propose in this preliminary judgment to decide only certain issues relating to damages. 482 I have already in this judgment summarised parts of the evidence of the plaintiff and his wife which are relevant to the damages which should be awarded to the plaintiff. 483 There were admitted into evidence in the plaintiff's case medical reports by Dr Isbister, who was the treating orthopaedic surgeon, Dr Combe an orthopaedic surgeon, Dr White a neurologist and Dr Kenny a psychiatrist. The last three of these doctors had seen the plaintiff for medico-legal purposes. 484 There were also admitted into evidence in the plaintiff's case a number of reports by Ravagnani & Associates, injury management and medico-legal specialists. 485 The only medical report tendered by any party other than the plaintiff was a report by Mr Adrian Van der Rijt, an orthopaedic surgeon, of 19 May 1997. Mr Van der Rijt's report would not appear to me to be significantly different from the plaintiff's medical evidence. To the extent of any inconsistency, I prefer the plaintiff's medical evidence. 486 The only oral medical evidence at the hearing was brief evidence given by Dr Isbister, mainly regarding opinions expressed by Ravagnani & Associates on the plaintiff's needs for care and assistance. 487 The plaintiff's principal injuries and the treatment he received are conveniently set out in Dr Isbister's reports, especially his first report of 17 February 1997. This report contains the following passages: "He (the plaintiff) suffered injury on 4/11/95 when he was run over by a fork-lift truck which caused a comminuted fracture in the subtrochanteric area of his right femur, fractures of the superior and inferior left pubic rami of the pelvis. As a result of this injury he also suffered from haematuria."

In a later report of 7 September 1998 Dr Isbister said that the plaintiff had also suffered "a fracture through the left medial malleolus of the ankle and the neck of his 5th metatarsal bone". "Treatment regarding his right femur initially was by skeletal traction. A pin was introduced in his right tibia under local anaesthetic on 4/11/95. On 7/11/95 open reduction and internal fixation of the right upper femur was carried out using a dynamic hip screw and plate with defragmentary screws. Post-operatively he was also monitored by the urologists for his haematuria and an IVP examination was also carried out. His thigh was grossly swollen and the wound drains were left in for several days. He was gradually sat out of bed and mobilised. He had also complained of a right swollen knee which had also suffered injury in the accident. By the third month following injury he was partial-weight-bearing 50% on one crutch. His right knee was still tending to cause him some problems with clicking and he had crepitus (creaking) behind the patello-femoral joint. * * * The plate and screws were removed from his right hip at the Albury Wodonga Private Hospital on 16/12/96. He made satisfactory recovery from this procedure … Bruce White suffered a comminuted fracture of his upper right femur, fractures of his pelvis and bruising of his urinary tract. He also suffered bruising of his right knee. These injuries are all consistent with his having been run over by a fork lift truck on 4/11/95." 488 In a report of 7 September 1998 Dr Isbister expressed the following opinions:- "In my opinion his condition has stabilised and he is left with residual disabilities as a result of the injuries to his hip and pelvis. These injuries will prevent him from returning to normal Rigger's job. He is not able to work at a height nor is he able to lift heavy weights. In the future he will only be able to perform sedentary type of occupations. In my opinion Bruce White has 20% permanent loss of efficient use of his right lower limb at or above the elbow (sic) as a result of the injury which occurred at work on 4 November 1995. He also has 10% permanent impairment of his pelvis as a result of injuries suffered on 4 November 1995." 489 I accept the findings and the opinions expressed by Dr Isbister in his reports. 490 In his report of 28 April 1997 Dr Combe expressed the following opinions:- "He describes continuing episodic lumbar back pain which I believe is musculo-ligamentous in origin. He has right hip and thigh pain and right knee pain, with tendency to giving way in the right knee. I regard his right hip and knee condition as stable in the medium term. He may be at long term risk from the development of post traumatic osteoarthritis in the right hip and right knee. Because of his right hip and right knee, he is permanently unfit to return to work as a scaffolder and rigger. He is permanently unfit for work involving kneeling or squatting, steps or ladder work, or heavier lifting." 491 In a later report of 1 December 1997 Dr Combe said that there appeared to have been no alteration in Mr White's right leg symptoms or signs but his back pain had become more troublesome. 492 I accept the findings and opinions expressed by Dr Combe in his reports. 493 Dr White found no significant evidence of neurological abnormality. Dr White expressed the opinion that the plaintiff was "fit to continue with relatively sedentary type work activities full time and should remain so in the future". 494 In his report of 1 December 1997 Dr Kenny said, inter alia:- "So I say that because of his physical symptoms, he is very restricted in terms of the employment that he can undertake and very restricted in his wide range of recreational activities. He has virtually given up riding his Harley Davidson and has given up most of his extremely physical activities. * * * Now as well as his physical injuries and the disruption to his life that they cause, it is clear that he has a significant post-traumatic stress disorder, caused by this frightening and traumatic experience, and the manifestations of that include, dreams about the accident, phobic anxiety about the sort of environment in which the accident occurred, irritability and easy startling and a lowering of mood and emotional lability. * * * So I say he has a significant lowering of mood, a significant level of frustration, a significant degree of irritability and a significant level of post-traumatic stress disorder, in response to the accident, the injuries and the litigation process." 495 I am prepared generally to accept Dr Kenny's findings and opinions, although I consider that the degree of post traumatic stress disorder is somewhat overstated in Dr Kenny's report. The plaintiff in his evidence at the hearing did not give any evidence (or very little evidence) of the "manifestations" of the post traumatic stress disorder noted by Dr Kenny. I appreciate that the recording of these "manifestations" by Dr Kenny in his report can be regarded as some evidence of their truth. However, I would have given greater weight to evidence given by the plaintiff himself before me. 496 Three reports by Ravagnani & Associates were admitted into evidence. In these reports Ravagnani & Associates inter alia estimated the plaintiff's needs for care and assistance and identified factors affecting the feasibility of his future employment. Ravagnani & Associates considered that the plaintiff would have "a moderate to high degree of difficulty in obtaining employment". Difficulties the plaintiff would have in obtaining employment would include the plaintiff's age, his lack of formal education, that his work experience had been in manual occupations for which he was no longer fitted, that he resided in a small country town some distance from Albury, that the plaintiff was subject to the physical restrictions noted in the medical reports and that the plaintiff experienced on-going pain in his back and leg.

Economic Loss 497 The plaintiff's claim for economic loss was partly based on a report by Coopers & Lybrand accountants of 27 March 1998. In this report Coopers & Lybrand set out to determine the total economic loss sustained by the plaintiff as a result of the accident, consisting of past economic loss, future economic loss, loss of superannuation and the Fox v Wood component. 498 In the report Coopers & Lybrand took 30 June 1997, a now quite arbitrary date, as marking the dividing line between past economic loss and future economic loss. Past economic loss should, of course, be assessed in relation to the period up to the present and future economic loss thereafter. 499 Coopers & Lybrand were supplied with copies of the plaintiff's income tax returns and other taxation records for the years 1991 to 1996. The plaintiff's taxable income as disclosed by these records varied considerably from year to year, from a high of $34,379 to a low of $6,585. Coopers & Lybrand noted that before the accident the plaintiff "was not fully employed at all times" and formed the opinion "that Mr White's past incomes (that is taxable incomes) are not properly reflective of his full economic capacity as a boilermaker/rigger". Coopers & Lybrand therefore discarded the plaintiff's taxation records for the purpose of their calculations of economic loss. 500 Coopers & Lybrand then expressed the opinion that the wages the plaintiff had received from Skilled should be used as the basis for calculating the plaintiff's economic loss. However, Coopers & Lybrand noted that they had not received sufficient information to enable them to determine what was the weekly wage received by the plaintiff from Skilled. 501 In the absence of sufficient information about the weekly wage received by the plaintiff from Skilled, Coopers & Lybrand said that they would use the wages records of an employee of Skilled comparable to the plaintiff. The comparable employee chosen was the plaintiff's brother, who was also a qualified rigger and who had also worked for Skilled. However, the wages records of the plaintiff's brother which were used were not the wages records for a number of years or even for a whole year but the plaintiff's brother's pay slips over a period of thirteen weeks only, in which he was employed by Skilled in Queensland. These pay slips showed a gross weekly wage of $1,177, which after the deduction of income tax (which varied slightly from year to year) produced a net weekly wage of $787 or $785, say $786. This rate of wage was then used by Coopers & Lybrand in calculating both the past economic loss and the future economic loss suffered by the plaintiff as a result of the accident. Coopers & Lybrand said that "we cannot determine any appropriate discount due to Mr White's history of (only) periodic employment". 502 Coopers & Lybrand's actual calculations of past economic loss and future economic loss are of little assistance. Even apart from the question of whether a gross weekly wage of $1,177 (that is a net weekly wage of $786) should be adopted and whether it should be adopted as a wage the plaintiff would have earned consistently week after week, Coopers & Lybrand, as I have already noted, adopted the now quite arbitrary date of 30 June 1997 as marking the dividing point between past economic loss and future economic loss and also proceeded on the basis that the plaintiff would continue to be employed on a full-time basis by CJ's Big Twin Pty Ltd (the motor cycle shop). 503 In written and oral submissions counsel for the plaintiff adopted the figure of $786 per week (that is the plaintiff's brother's net weekly wage over a period of thirteen weeks) as a basis for calculating damages for past economic loss. Counsel for the plaintiff referred to other figures, including the net weekly incomes of other employees of Skilled over limited periods and the average weekly earnings from time to time of a construction worker. Counsel for the plaintiff also referred to the plaintiff's net weekly earnings in the tax year 1994, as derived from his income tax records. However, the plaintiff's taxable income for this year, which produced a figure for net weekly income of $497, was the plaintiff's highest taxable income between 1991 and 1996 and was much higher than the plaintiff's taxable income for the preceding year of $16,041 and his taxable income for the following year of merely $6,585. 504 Counsel for the plaintiff submitted that the plaintiff's damages for past economic loss should be calculated according to the following steps:-

(i) a figure of $786 per week should be taken as a starting point.

(ii) this figure should be reduced by twenty percent, to allow for the fact that the plaintiff, if he had not been injured, would probably not have worked full time, thus producing a figure of $628.

(iii) the figure of $628 should be multiplied by the number of weeks from the date of the accident to the date of the hearing (or judgment).

(iv) The amount of the plaintiff's actual earnings while employed by CJ's Big Twin should be deducted. 505 Counsel for the plaintiff submitted that damages for future economic loss should be calculated on the basis of a net weekly loss of $500. This figure would take into account that, if the plaintiff had not been injured, he would not have worked full-time and would also take into account such residual earning capacity as the plaintiff has. A discount of 15 per cent should be made for contingencies. 506 The only submissions made by any of the defendants or cross-defendants about the quantum of the plaintiff's economic loss were made by counsel for Malco. Counsel for Malco adopted a figure of $500 per week as the amount the plaintiff would have earned if he had not been injured and submitted that in the calculation of both past economic loss as from 17 April 1997 (when the plaintiff was taken to have commenced working for CJ's Big Twin) and future economic loss, the plaintiff should be taken to have had a residual earning capacity of $350 per week, thus producing a net loss of $150 per week. 507 I consider that I can properly have regard to the figure of $786 per week, while recognising that it needs to be adjusted. The plaintiff's brother is, like the plaintiff, a qualified rigger and was working for the same employer Skilled. When the plaintiff was working full time before the accident he was probably capable of earning at the rate of $786 net per week.

508 As regards future economic loss, counsel for the plaintiff submitted that I should accept the evidence given by the plaintiff, corroborated by evidence given by his wife, that when his children were old enough to leave home the plaintiff would change his lifestyle and work more of the time, so as to build up a nest egg for his retirement. 509 I consider that I should give only a little weight to this evidence. The plaintiff had for many years before the accident been pursuing a lifestyle, congenial to both himself and his wife, under which he worked only part of the time and spent the rest of the time in activities which he found more fulfilling than work. I consider it highly improbable that the plaintiff, if he had not been injured, would have altered this lifestyle to any significant extent. 510 On the other hand, I do not think that I should take literally some evidence by the plaintiff that before the accident he worked for only six months of the year and took six months off. 511 Doing the best that I can, I consider that I should adopt the figure of $500 per week, which was the figure suggested by counsel for Malco, as the plaintiff's likely net weekly earnings, had he not been injured. 512 The plaintiff's residual earning capacity after the accident is limited, for the reasons given by the doctors in their reports and for the reasons given by Ravagnani & Associates. 513 I do not consider that the plaintiff's earnings while employed by C.J's Big Twin (the motor cycle shop) should be taken as an accurate index of his residual earning capacity (except during the period he was actually employed and paid by that company). That job was a special job "created" for the plaintiff, which he obtained through his motor cycle affiliations and in which special concessions were made to him. 514 On the other hand, the plaintiff has some residual earning capacity, which I assess at $150 per week. Accordingly, I consider that he should be regarded as having a net weekly economic loss of $350 per week for the assessment of both past and future economic loss. 515 I find that damages for past economic loss should be assessed on the following basis:-

(i) Between 4 November 1995 and 17 April 1997, on the basis of total incapacity at the rate of $500 per week.

(ii) Between 17April 1997 and the present (a) While employed and paid by CJ's Big Twin on the basis of $500 per week, less the actual wages received from CJ's Big Twin. (b) While not so employed, on the basis of $500 per week, less the value of his residual earning capacity of $150 per week. 516 Damages for future economic loss should be assessed at the rate of $350 per week from now to when the plaintiff attains his sixty-fifth birthday, less a discount for contingencies of 15 per cent. 517 The plaintiff will also be entitled to damages for loss of superannuation and under Fox v Wood and, depending on the basis of assessment of damages, for some interest on past economic loss.

Damages under Griffiths v Kerkemeyer 518 The plaintiff made claims for the cost of past and future care and assistance pursuant to the doctrine of Griffiths v Kerkemeyer (1976-77) 139 CLR 161. 519 Having reviewed the evidence including the evidence of the plaintiff and his wife, the reports of Ravagnani & Associates and the evidence of Dr Isbister, I am prepared to allow damages at common law as claimed in the written submissions of counsel for the plaintiff, except that I consider that domestic assistance of only seven hours per week would be reasonable for both past and future domestic assistance. I accordingly allow damages at common law under the doctrine of Griffiths v Kerkemeyer as follows:-

Care rendered by the plaintiff's wife for a total of 6 weeks after 2 periods of hospitalisation 2,100.00 Cost of painting the plaintiff's house 1,085.00 Cost of concreting the driveway and patio of the plaintiff's house 3,000.00

Past domestic assistance 7 hrs per week at $25 per week for the number of weeks from the date of the accident to the present, less the period of 6 weeks during which the plaintiff was hospitalised

Future domestic assistance 7 hrs per week from now for the rest of the plaintiff's life expectancy 520 If damages are to be assessed in accordance with the Motor Accidents Act or the Workers' Compensation Act, any damages to be awarded under the doctrine of Griffiths v Kerkemeyer will have to be assessed in accordance with the relevant provisions of the relevant Act.

Out-of-pocket expenses 521 Past out-of-pocket expenses paid by Skilled 28,403.00 522 Future out-of-pocket expenses. I allow damages for future out-of-pocket expenses as claimed in counsel for the plaintiff's written submissions. These claims are supported by some evidence by Ravagnani & Associates.

Physiotherapist 3,000.00 Counselling 5,920.00 Occupational rehabilitation 20,000.00 Future medication at the rate of $13.85 per week for the rest of the plaintiff's life expectancy

General Damages (damages for non-economic loss) 523 So far as the assessment of damages in accordance with the Motor Accidents Act or the Workers' Compensation Act is concerned, it was submitted by counsel for the plaintiff that the severity of the plaintiff's non-economic loss was between forty-five percent and fifty percent of the severity of a most extreme case. It was submitted by counsel for Malco that the appropriate figure was thirty percent. I consider that the plaintiff's case should be assessed at forty-five percent of the severity of a most extreme case. 524 If a figure of $350,000 or thereabouts is regarded as an appropriate amount to be awarded as general damages in a most extreme case, then the amount of general damages at common law would be forty-five percent of $350,000. 525 If damages are assessed at common law, the damages the plaintiff should be awarded, in accordance with the counsel for the plaintiff's written submissions, would include the following items:

Past economic loss Interest on past economic loss Future economic loss Loss of superannuation Fox v Wood Damages under Griffiths v Kerkemeyer past and future Out of pocket expenses past and future 526 The amount of the workers' compensation defence will have to be deducted from the amount of damages which would otherwise be awarded and a deduction of ten percent will have to be made by reason of the plaintiff's contributory negligence.

Cross-claims 527 As I indicated earlier in this judgment, a very large number of cross-claims containing a very large number of causes of action were brought in the proceedings. Some of these causes of action were baldly asserted rather than supported by any reasoned argument. On some of the claims I did not have the benefit of submissions from both of the parties. 528 In the circumstances, I do not propose to endeavour to determine all of the claims in all of the cross-claims in this preliminary judgment. I will, however, determine some claims in the cross-claims, the determination of which is particularly important for the resolution of the case generally.

Cross-claims for contribution and/or indemnity between the two defendants (the third cross-claim and part of the fifth cross-claim). 529 Each of Malco and Skilled brought a cross-claim against the other, claiming contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 530 Having regard to the conclusions I have reached on the plaintiff's claims against them, each of Malco and Skilled is a tortfeasor liable in respect of the damage suffered by the plaintiff; hence, each is entitled to bring a claim against the other for contribution for indemnity. 531 Under s 5(2) of the Law Reform (Miscellaneous Provisions) Act the amount of the contribution recoverable is to be such as may be found by the court to be just and equitable, having regard to the extent of that party's responsibility for the damage. 532 I consider that, as between Malco and Skilled, Malco should bear by far the greater share of the responsibility for the damage. The plaintiff was selected as a worker by Malco and was working in Malco's operations, with Malco's employees, under the direction of an employee of Malco, according to a system of work devised by Malco and using equipment provided by Malco. It had been immaterial to Malco whether Skilled, or some other body hire company, was interposed between the plaintiff and Malco. Malco knew that Skilled would play no part, and I infer that Malco would not have countenanced Skilled playing any part, in devising the system of work to which the plaintiff would be subjected or in providing the equipment with which the plaintiff was to work. 533 On the other hand, I do not consider that Skilled should be completely indemnified by Malco. Skilled assumed the position of an employer and then did nothing for the safety of its employee. 534 Having regard to the extent of each defendant's responsibility for the damage, I find it to be just and equitable that Malco should be eighty percent responsible and Skilled should be twenty percent responsible for the plaintiff's damage.

Cross-claims based on an alleged statutory agency 535 A number of cross-claims were based on allegations that the cross-defendant was the "owner" of the forklift, that the cross-defendant, if it had been sued by the plaintiff, would have been liable to the plaintiff by virtue of s 53 of the Motor Accidents Act and that accordingly the cross-defendant was a person from whom contribution or indemnity could be sought. Most of these cross-claims were brought against Syd-Fam but some of them were brought against Lift Truck Services or Liftqip. 536 It was common ground that the forklift was a motor vehicle, that the forklift was registered as a motor vehicle in the State of Victoria and that the forklift was not registered as a motor vehicle in this State (leaving aside, for the moment, the question of whether the forklift was "registered" or "unregistered" within the terms of New South Wales legislation). 537 It was also common ground that, because the accident had happened in New South Wales, it was necessary to apply New South Wales legislation. Section 53 of the Motor Accidents Act provides in part:- "(1) For the purpose of: (a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and * * * any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) shall be taken to be the agent of the owner acting within the scope of the agent's authority in relation to the vehicle." 538 It is apparent that, for s 53 to apply, a number of conditions must be satisfied; the person against whom the proceedings are brought must be the owner and the proceedings must be for the recovery of damages for liability in respect of injury to a person (i) caused (ii) by the fault (iii) of the driver of the vehicle (iv) in the use or operation of the vehicle. 539 In the present case, the only person (apart from the plaintiff himself) who could have been the driver of the forklift was Mr Onody. On the findings I have already made, even if Mr Onody was the driver of the forklift, there was no fault on the part of Mr Onody or, alternatively, if there was any fault on the part of Mr Onody, the plaintiff's injury was not caused by such a fault. Accordingly, all of the cross-claims based on an alleged statutory agency fail and it is unnecessary to determine whether any of the other conditions for the application of s 53 were satisfied. However, there was much debate at the hearing about some of these conditions and it is desirable that I express some views on at least some of these conditions. 540 The question of who was the "owner" of the forklift was the subject of some submissions at the hearing. In s 3(1) of the Motor Accidents Act "owner" in relation to a motor vehicle is defined as meaning a person who is the owner of the vehicle by virtue of sub-sections (3) to (5). Subsection (3) of s 3 draws a distinction between a motor vehicle which is "registered" and a motor vehicle which is "unregistered". There was argument about whether a motor vehicle, which is registered in Victoria but which is not registered in New South Wales, is "registered" or "unregistered" for the purposes of sub-section (3). 541 "Registration" is defined in s 3 of the Motor Accidents Act as meaning (so far as is relevant) "registration of a motor vehicle under the Motor Traffic Act". "Registered" is defined in s 2 of the Motor Traffic Act as meaning registered under and in accordance with regulations made under that Act. 542 The forklift was not registered under or in accordance with the regulations under the Motor Traffic Act. However, an argument was sought to be based on regulation 33A of the regulations which exempts from registration "visiting motor vehicles" (defined in regulation 2 as vehicles brought for temporary use within the State), which are registered in another State and display the relevant registration label of that other State and which have either been in New South Wales continuously for less than three months or driven in New South Wales by an exempt person under regulation 31(1A). 543 It is unclear on the evidence whether all of the conditions for exemption under regulation 33A were satisfied in the present case. In any event, it appears to me that a motor vehicle which is not registered in New South Wales, even though it is exempt from registration under regulation 33A, is nevertheless "unregistered" in New South Wales. See Zussino v Zussino (1969) 71 SR (NSW) 24. 544 If the forklift was "unregistered" in New South Wales, then under s 3(3)(b) of the Motor Accidents Act the owner is the person who is entitled to immediate possession of the forklift. The question of who was entitled to immediate possession of the forklift was not fully examined at the hearing. At the hearing the parties could not know what findings of fact I would ultimately make, which might be relevant to the question of who was entitled to immediate possession of the forklift. A possibly relevant finding of fact I have made is that Syd-Fam did not consent to the forklift being hired out by Liftqip. A question which may arise is whether sub-section (4) of s 3, apart from its obvious application in the case of a motor vehicle which is registered, also has some application in the case of a motor vehicle which is unregistered. I do not propose to attempt to make a finding on this issue in this judgment. 545 If, contrary to the view I have expressed, the forklift was "registered", then the only person in whose name the forklift could be said to be registered would be Syd-Fam. Accordingly, Syd-Fam would be the owner, unless it had ceased to have possession of the forklift. The only way in which Syd-Fam could have parted with the possession of the forklift would have been for it to have parted with possession to Lift Truck Services for the purpose of sale or repair, not involving the use of the forklift for the benefit of Lift Truck Services. Accordingly, by virtue of sub-section (4) of s 3, Syd-Fam would be taken not to have ceased to have possession of the forklift and Syd-Fam would have remained the owner of the forklift. 546 The question of whether there had been a "use or operation" of the forklift was canvassed to some extent at the hearing. I was referred to the decision of the High Court in GIO of New South Wales v King (1960) 104 CLR 93 and particularly the judgment of Menzies J at p 99-100. 547 In GIO of New South Wales v King the High Court was concerned with s 15 of the Motor Vehicles (Third Party Insurance) Act 1942 which used the expression "caused by or arising out of the use of an insured motor vehicle". 548 At p 99 Menzies J said: "I am not in doubt that to start the engine of a motor vehicle preparatory to driving off is part of the use of a motor vehicle itself, nor do I doubt that to drive a motor vehicle to test whether repairs have been effective is to use the motor vehicle. I have however, found some difficulty in determining what is the central question here, ie, whether the starting of an engine of a motor vehicle in the course of repairing it or to test the efficacy of repairs made can properly be said to amount to a use of the motor vehicle itself. It is, I think, inadvisable to attempt what might well be impossible, namely, the drawing of a hard and fast line between things which do and things which do not amount to the use of a motor vehicle for the purpose of the Motor Vehicles (Third Party Insurance) Act, but I do find it possible to enumerate some things that clearly do constitute the use of a motor vehicle and some things that do not." 549 Menzies J then proceeded to give a number of examples. 550 There is no doubt that in GIO of New South Wales v King Menzies J expounded a conception of what would amount to the "use" of a motor vehicle, which is fairly restrictive. However, the expression used in s 53 of the Motor Accidents Act is "use or operation" and I would infer that this expression is intended to be wider than the word "use" standing by itself. See also s 3(6) of the Motor Accidents Act. Later decisions have tended to widen the conception of what amounts to the use or operation of a motor vehicle. I was referred inter alia to Shortland County Council v GIO (1973) 2 NSWLR 251 and Commercial & General Insurance Co Ltd v GIO of New South Wales (1973) 129 CLR 374; State Government Insurance Commission v Steven Bros Pty Ltd (1984) 154 CLR 552. Another authority is NSW Insurance Ministerial Corporation v Handford (1994) 35 NSWLR 187. 551 Having regard to the different statutory language and the trend of authority, I consider that in a case such as the present there probably was a "use or operation" of the forklift, where the engine of the forklift had been deliberately started, even if not for the purpose of driving the forklift. Earlier the forklift had been driven to where the boom lift was and, if the accident had not happened, then (I infer), after the boom lift had been started or moved, the forklift would have been driven away. However, it is unnecessary for me to express a final opinion. 552 I have held that all the cross-claims based on allegations that the cross-defendant was the owner of the forklift fail. If I had held that any of those cross-claims succeeded and there was no other basis on which the cross-defendant was liable, I would have held that the cross-defendant was entitled to a full indemnity against the defendants or at least one of the defendants. 553 I am satisfied that the only basis on which a cross-claim against Syd-Fam could have succeeded would have been if Syd-Fam was liable by reason of the statutory agency under s 53 of the Motor Accidents Act. As I have held that all cross-claims based on an alleged statutory agency fail, it follows that all the cross-claims against Syd-Fam fail and it is unnecessary for me to consider the cross-claims brought by Syd-Fam itself.

Cross-claim by Malco against Prevwreck (the seventh cross-claim). 554 In counsel for Malco's final submissions Malco's cross-claim against Prevwreck was put in four ways, which can be summarised as:-

(i) a claim for damages for breaches of terms which were said to be implied in the contract for the hire of the forklift from Prevwreck to Malco by virtue of s 71 of the Trade Practices Act (Cth).

(ii) a claim for an indemnity from Prevwreck under clause 8 of the conditions on the reverse of the white copy of Malco's form of purchase order, which, it was submitted, formed part of the contract for the hire of the forklift.

(iii) a claim under s 53(a) of the Trade Practices Act .

(iv) a claim under s 52 of the Trade Practices Act . 555 It is convenient to deal first with claim (ii).

Claim (ii) 556 Earlier in this judgment I quoted the terms of clause 8 of the conditions on the reverse of the white copy of Malco's form of purchase order. Malco would not be entitled to an indemnity under clause 8, unless the conditions on the reverse of the white copy of the purchase order were incorporated into the contract for the hire of the forklift from Prevwreck to Malco and clause 8 on its proper interpretation applied to the present facts. 557 I do not consider that the conditions on the reverse of the white copy of the purchase order were incorporated into the contract for the hire of the forklift. In my opinion, the making of the contract between Prevwreck and Malco was concluded, when Mr Moore spoke on the telephone with Mr Hudson of Prevwreck, and any later sending of a purchase order by Malco would have been ineffectual to add to the terms of a contract the making of which had already been concluded. If the contract for the hire of the forklift was not made during the telephone conversation between Mr Moore and Mr Hudson, then at the latest it was made when the front only of the purchase order was faxed by Malco to Prevwreck. 558 It was submitted on behalf of Malco that the conditions on the reverse of the white copy of the form of purchase order were incorporated into the contract for the hire of the forklift by reason of a previous course of dealing between the parties in which in many previous transactions Malco had invariably sent to Prevwreck the same form of purchase order including the reverse of the purchase order. However, the only (or principal) evidence of such a previous course of dealing was given by Mr Moore and I have already indicated that I have formed an unfavourable view of Mr Moore's credibility. Having stated in positive and categorical terms what he said had been the invariable practice, Mr Moore then had to retract important parts of his evidence. I am not satisfied that such a previous course of dealing as was alleged by Malco has been proved. 559 Furthermore, I do not consider that the conditions on the reverse of the white copy of the Malco form of purchase order, and particularly clause 8, would apply to the present facts. According to the printed terms on the purchase order the purchase order is an order for the purchase of goods, not for the hire of goods. The person to whom the order is directed is described as the "seller". Clause 8 itself is introduced by the words "in the event any article sold and delivered hereunder …" 560 It would seem that the Malco printed purchase order for the purchase of goods was used, indiscriminately, by Malco as a convenient piece of paper on which to write many sorts of orders, however inappropriate the printed terms were to what was being ordered. The same form was used for ordering the supply of labour from Skilled. An employee of Malco would write on the form what it was that Malco was really ordering. In the present case Mr Moore wrote the word "hire" on the form, together with particulars of the hiring. 561 I reject Malco's claim for an indemnity under clause 8 of the conditions on the reverse of the white copy of Malco's form of purchase order for the purchase of goods.

Claim (i) 562 Section 71(1) of the Trade Practices Act provides in part as follows: "where a corporation supplies … goods to a consumer in the course of a business there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality" (subject to certain qualifications, which are not applicable in the present case). 563 Section 72(2) provides in part as follows:- "where a corporation supplies … goods to a consumer in the course of a business and the consumer expressly or by implication makes known to the corporation any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reasonably fit for that purpose … except where the circumstances show that the consumer does not rely or it is unreasonable for him … to rely on the skill or judgment of the corporation". 564 It is clear that Prevwreck was a corporation and that in hiring the forklift to Malco it was "supplying" goods in the course of a business and that it was made known to Prevwreck that the forklift was required for use as a forklift at the ANM Mill in the upgrade of plant at the Mill. 565 However, the question arises whether Malco was "a consumer". "Consumer" is defined in s 4B of the Trade Practices Act. Section 4B(1)(a) provides as follows:- "4B (1) For the purposes of this Act, unless the contrary intention appears: (a) a person shall be taken to have acquired particular goods as a consumer if, and only if: (i) the price of the goods did not exceed the prescribed amount; or (ii) where that price exceeded the prescribed amount - the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle; and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; " 566 Sub-paragraph (ii) of para (a) of s 4B(1) is clearly inapplicable. However, it was submitted by counsel for Malco that sub-para (i) applied, in that the price of the forklift did not exceed the prescribed amount. 567 Under sub-section (2) of s 4B the prescribed amount is $40,000. Under s 4B(2)(d) where goods are acquired otherwise than by way of purchase, the price of the goods shall be taken to have been the price at which at the time of acquisition the person acquiring the goods could have purchased the goods from the supplier or, in certain circumstances, the lowest price at which the person acquiring the goods could have purchased the goods from another supplier or the value of the goods. 568 There would not appear to have been any evidence of the price or value of the forklift at the hearing. Certainly, in the final submissions of the parties I was not referred to any. However, sub-section (3) of s 4B provides that where in any proceeding it is alleged that any person was a consumer it is to be presumed, unless the contrary is established, that the person was a consumer. Accordingly, in the absence of any evidence to the contrary, it is to be presumed that Malco was a consumer. Consequently the terms set out in s 71 are to be implied in the contract for the hire of the forklift from Prevwreck to Malco. 569 Even apart from the Trade Practices Act, at common law a term is implied in a contract for the hire of a chattel, in the absence of some provision in the contract to the contrary, that the chattel is reasonably fit for the purpose for which it is being hired, that is, a purpose made known by the person taking the chattel on hire or apparent from the nature of the chattel. 570 In Beaton v Moore Acceptance Corporation Pty Ltd (1960) 104 CLR 107 Dixon CJ, Taylor J and Windeyer J said at p 119:- "Before us and, apparently, in the Supreme Court there was considerable discussion whether the common law rules relating to the implication in a contract for the sale of goods of a general condition that the goods shall be reasonably fit for a specified purpose apply with equal force to a hire purchase agreement relating to goods. On principle there is, we think, no reason whatever for thinking that they do not and we agree generally with the observations on this point made by Jordan CJ in Gemmell Power Farming Co Ltd v Nies (1935) 35 SR (NSW) 469 and by Lowe J in Woods Radio Exchange v Marriott (1939) VLR 309. But it must be remembered that a prerequisite to the implication of such a general condition at common law was that it should appear, in effect, that the buyer had bought on the seller's judgment that the subject goods would answer a particular purpose." 571 See also Derbyshire Building Co Pty Ltd v Becker (1961-62) 107 CLR 633 per Dixon CJ at 642, McTiernan J at 645, Kitto J at 649-650, Taylor J at 656-7 and Windeyer J at 659. 572 In the present case it was made known to Prevwreck that the forklift was required for use in a plant upgrade at the ANM Mill. I am satisfied that Malco relied on Prevwreck's judgment that the forklift it supplied would be fit for the purpose for which Malco required it, including that its gears and handbrake were functioning properly and that it would not have any dangerous propensity. Malco did not know that Prevwreck would acquire a forklift from another source and not supply a forklift from its own stock. There was no provision in the contract of hire between Prevwreck and Malco excluding such an implied term. 573 Whether a term of reasonable fitness for the purpose for which the forklift was required was implied in the contract of hire under s 71(2) of the Trade Practices Act or at common law, then I am satisfied that it was breached. Inter alia the forklift would not be reasonably fit if it contained some defect which would be a source of potential danger to someone using the forklift. See Derbyshire Building Co Pty Ltd at p 649 per Kitto J. An implied term as to the fitness of a chattel supplied under a contract for the sale or hire of the chattel is not limited to fitness insofar as the supplier knew or ought to have known. See Derbyshire Building Co Pty Ltd at p 649 per Kitto J. 574 I am further satisfied that by reason of the breach of the implied term of reasonable fitness for the purpose Malco suffered damage consisting of the damages it has to pay the plaintiff. Such damage would not, in my opinion, be too remote. The loss consisting of the liability in damages to a person working for the hirer because of the unfitness of the chattel would have been within the contemplation of a reasonable person in the position of Prevwreck. See Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 154 ALR 361. 575 I accordingly find that Malco is entitled to succeed against Prevwreck on the basis of claim (i) in its cross-claim. 576 I have based this conclusion on my findings that Malco breached an implied term of reasonable fitness implied in the contract for the hire of the forklift under either s71(2) of the Trade Practices Act or under the common law. No submissions were addressed to me on whether the forklift was not of merchantable quality under the definition of "merchantable quality" in s66(2) of the Trade Practices Act and I make no finding on this matter. 577 Having decided that Malco is entitled to succeed on claim (i), it is not really necessary for me to determine claims (iii) and (iv). However, I propose to express some views. 578 Both of these claims were based on a representation allegedly made by Prevwreck that the forklift was of a reasonable standard and quality. It was not suggested that any express representation to this effect had been made by Prevwreck. It was alleged that "this representation arose by implication from conduct and was passive; Given v Pryor (1979) 39 FLR 437 at 441". This same sentence was repeated a number of times in Malco's lengthy written submissions in support of claims made under the Trade Practices Act. The sentence would appear to have been taken, with only minor changes, from the first sentence of para [1.53.30] of the 1999 edition of Miller's Annotated Trade Practices Act. 579 Given v Pryor is a very early decision on the Trade Practices Act by Franki J (his Honour's decision was upheld on appeal to the Full Court of the Federal Court but the decision of the Full Court was not referred to in Malco's submissions). In Given v Pryor the defendants had been prosecuted for making a misleading "statement" (or being knowingly concerned in the making of a misleading statement) by means of a television advertisement concerning the use to which certain land was capable of being put or might lawfully be put. Unsurprisingly, Franki J held that pictures contained in the television advertisement showing parts of the land and several houses were, together with the words spoken in the advertisement, part of any "statement" made in the advertisement. 580 It can be seen immediately that Given v Pryor is very different on its facts from the present case. Furthermore, the pictures contained in the television advertisement were found by Franki J to form part of an express, and not an implied, statement or representation. At p 441, which is the page cited by counsel for Malco, Franki J referred to Halsbury's Laws of England (3rd ed) vol 26 paras 1529 to 1530 as follows:- "In pars. 1529 and 1530 it is said in relation to express (my emphasis) representations: 'The usual permanent symbols by which a representation is conveyed are words and figures written or printed or produced by any other equivalent means; but plans and drawings, maps, pictures and photographs and the like, may serve the same purpose and quite as effectually. Speech is the most ordinary method for the communication of a statement not in writing, but gestures and demeanour may supplement spoken language, or even stand in its place.' " 581 It is true that at p 441 Franki J also said that a representation can be implied from conduct, which is hardly a novel proposition. 582 No case other than Given v Pryor was cited for or against the claims made under s 53(a) and s 52 of the Trade Practices Act. There was no reference by any counsel to authorities on when silence can be regarded as amounting to a representation. 583 Insofar as there was any indication by counsel for Malco of what was the conduct from which the alleged representation was implied, counsel referred to evidence about the instant transaction and evidence by Mr Moore about alleged previous transactions between Malco and Prevwreck. I have already stated my finding that Mr Moore's evidence lacked credibility. 584 I do not consider that in this preliminary judgment I should determine claims (iii) and (iv). 585 However, Malco's claim against Prevwreck succeeds on claim (i).

Cross-claims by Malco against Lift Truck Services and Liftqip 586 As I have found that Malco is entitled to be indemnified by Prevwreck because of breaches by Prevwreck of a term implied in the contract for the hire of the forklift from Prevwreck to Malco under s 71(2) of the Trade Practices Act and at common law, it is not strictly necessary to determine the cross-claims brought by Malco against Lift Truck Services and Liftqip. 587 In counsel for Malco's final submissions Malco's cross-claim against Lift Truck Services was put in two ways, namely:-

(i) A claim which depended upon Lift Truck Services being the owner of the forklift and being liable to the plaintiff by reason of a statutory agency under s 53 of the Motor Accidents Act . For reasons I have already given, I reject this claim.

(ii) A claim that Lift Truck Services breached a duty of care it owed to the plaintiff or to Malco. This claim was not the subject of any detailed submissions and I would not propose to deal with it, at least in this preliminary judgment. 588 In counsel for Malco's final submissions Malco's cross-claim against Liftqip was put in the following ways:-

(i) A claim which depended on Liftqip being the owner of the forklift and being liable to the plaintiff by reason of a statutory agency under s 53 of the Motor Accidents Act . I reject this claim.

(ii) A claim that Liftqip breached a duty of care it owed to the plaintiff or to Malco. As in the case of Lift Truck Services, I would not propose to deal with this claim, at least in this preliminary judgment.

(iii) A claim that Liftqip had breached implied terms of a contract alleged to have existed between Liftqip and Malco. It was submitted that I should find that there was a contract between Liftqip and Malco for the hire of the forklift, Prevwreck acting as the agent of each of Liftqip and Malco in the formation of the contract. This claim is, of course, inconsistent with the claims made in the cross-claim by Malco against Prevwreck that there was a contract for the hire of the forklift between Prevwreck and Malco. On the evidence, I am satisfied that there was no such contract between Liftqip and Malco but rather two separate contracts for the hiring of the forklift, one contract between Liftqip and Prevwreck and another contract between Prevwreck and Malco. This claim fails.

(iv) Claims under s 53(a) and s 52 of the Trade Practices Act . As in the case of the cross-claim brought by Malco against Prevwreck, it was alleged that the cross-defendant, in this case Liftqip, made a representation that the forklift was of a reasonable standard and quality. Once again it was submitted that "this representation arose by implication from conduct and was passive Given v Pryor (1979) 39 FLR 437, 441". I am satisfied that no such representation was made by or on behalf of Liftqip on which Malco can rely and this claim fails.

Cross-claim by Prevwreck against Lift Truck Services and Liftqip

589 As put in counsel for Prevwreck's final submissions, Prevwreck's cross-claim was put in three ways:-

(i) A claim for contribution or indemnity between tortfeasors.

(iii) Claims under s 53(a) and s 52 of the Trade Practices Act . 590 The submissions made by counsel for Prevwreck were brief and would appear to have been copied from corresponding submissions made against Prevwreck by counsel for Malco. 591 As to (ii), there was a contract for the hire of the forklift from Liftqip to Prevwreck. Terms in accordance with s 71 of the Trade Practices Act would not be implied in the contract for hire between Liftqip and Prevwreck, because on the evidence Prevwreck was not "a consumer". Prevwreck did not fall within the definition of "consumer" in s 4B(1)(a) of the Trade Practices Act, because Prevwreck did acquire the forklift for the purpose of resupply. However, a condition of reasonable fitness would be implied in the contract at common law. This condition was breached and the liability incurred by Prevwreck to Malco would be a loss recoverable by Prevwreck, from Liftqip, Liftqip being aware that Prevwreck was going to on-hire the forklift. In my opinion, Prevwreck is entitled to succeed in its cross-claim against Liftqip on this basis. The other bases of the cross-claim were not the subject of any detailed submissions, or really any submissions at all, and I would not propose to deal with them, at least in this preliminary judgment.

Cross-claims by Skilled 592 I would not propose in this preliminary judgment to deal with the cross-claims by Skilled (apart from the cross-claim against Malco, and the part of the fifth cross-claim which asserted a statutory agency under s53 of the Motor Accidents Act, which I have already dealt with). **********

Last Modified: 12/02/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.