Akula Pty Ltd v CSX World Terminals Pty Ltd - [2006] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
AKULA PTY LTD v CSX WORLD TERMINALS PTY LTD
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Nyland)
16 March 2006
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE ECONOMIC OR FINANCIAL LOSS - CARELESS ACTS OR OMISSIONS
Appeal against dismissal of action for damages - appellant's goods received by respondent at its container terminal and subsequently loaded onto a semi-trailer driven by a driver employed by the appellant's agent - semi-trailer left at terminal overnight with permission of respondent to suit convenience of driver - goods damaged when trailer tilted after wheels sank into dirt surface - held no breach of respondent's duty as occupier of premises - held further that the respondent was not under a duty to advise or supervise the driver as to the manner in which the semi-trailer was to be secured when left at the premises - appeal dismissed.
Civil Liability Act 1936 s 20, referred to.

AKULA PTY LTD v CSX WORLD TERMINALS PTY LTD
[2006] SASC 67
Full Court: Doyle CJ, Duggan and Nyland JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons given by Duggan J for so deciding. There is nothing that I can usefully add to those reasons.
DUGGAN J. The appellant’s claim for damages against the respondent was dismissed in the District Court. According to the appellant’s case, the respondent was liable in negligence for damage caused to the appellant’s drilling rig while it was on the respondent’s premises. The appellant has appealed against the dismissal of the action.
The respondent operates a container terminal at Port Adelaide. The terminal occupies an area of approximately 38 hectares. Cargo is unloaded from ships at the terminal by means of overhead cranes and lifted onto the wharf where it is stored, pending removal by the consignees or agents acting on their behalf.
At approximately 3.30 pm on 22 September 1999, Mr Miller, a driver for a transport company, arrived in a semi-trailer at the terminal to pick up the drilling rig for delivery to the appellant. The transport company had no connection with the appellant. Mr Miller presented documentation authorising him to pick up the rig and the respondent’s employees loaded it onto the trailer section of his vehicle.
After the machinery was loaded, Mr Miller realised that it was wider than he had anticipated and that, being an oversized load, it would require the attachment of signs to his vehicle if it were to be driven on a public road. He then contacted another trucking company which had engaged his employer to collect the rig. He was advised that, under the traffic regulations, he could not drive his vehicle with an over-width load of this nature on a public road between 4.00 pm and, according to his recollection, either 6.00 pm or 6.30 pm.
Acting on instructions from the trucking company he had telephoned, Mr Miller asked one of the respondent’s employees if the rig could be removed from the trailer and picked up later. He was told this could not be done as the employees who worked in this area had left for the evening. The trial judge found that Mr Miller then asked the employee if he could leave the trailer on a bituminised area in the respondent’s compound. He was told that he could not do so because it would be in the way of other vehicles. However, he was also told that the trailer could be parked on an unsealed area near the bituminised area.
Mr Miller drove the vehicle to the unsealed area and wound down two struts which support the trailer when it is detached from the prime mover. A pad consisting of a square piece of metal is attached to the foot of each strut, so as to stabilise the trailer. Mr Miller then detached the prime mover from the trailer and drove off from the terminal.
During the evening, the struts sank into the ground causing the trailer to tip over onto its side. The rig was damaged when it was dislodged from its position on the trailer.
The trial judge concluded that the respondent owed the appellant a duty of care as occupier of the land. He acknowledged that the duty of care was to be measured by reference to the ordinary principles of the general law of negligence: Civil Liability Act 1936 s 20; Australian Safeway Stores v Zaluszna (1987) 162 CLR 479. He went on to say:
But the relationship of the defendant to the plaintiff and therefore to the plaintiff’s property is closer than simply that of an occupier and, to use the old terminology, an invitee. The defendant used its land to carry on the business of receiving, storing and dispatching goods, including the plaintiff’s. There can be no doubt that, according to the ordinary principles of negligence, the defendant stood in a relationship of such proximity to the plaintiff that it owed a duty of care to the plaintiff in respect of goods of the plaintiff which the defendant was storing at its premises.
His Honour concluded, however, that there was no breach of duty in the circumstances. He found that the respondent did not know, and had no reason to know, that the unsealed area might give way under the weight of a loaded trailer supported by struts. His Honour said that the respondent was entitled to rely on the expertise of Mr Miller in handling the trailer and its load, and added:
The condition in which he chose to leave the trailer, albeit in a position generally determined by the defendant’s employee, was Mr Miller’s responsibility. To put it another way, it was he who decided how the goods were to be stored. The defendant was entitled to rely on Mr Miller’s experience and judgment in leaving the loaded trailer as he did. I reject the argument put by Mr Soulio, counsel for the plaintiff, in his submissions that it was incumbent upon the defendant to ensure that the trailer could be safely supported by struts. The condition in which the loaded trailer was left was a matter for Mr Miller. There has been no evidence presented which suggests that the defendant was in a better position to judge the prudence of leaving the load as it was eventually left than was Mr Miller.
There was no evidence that the premises were dangerous or unsafe. The fact that the struts which were used to stabilise the trailer eventually sank into the soil causing the trailer to tilt does not, of itself, establish that the premises were unsafe for the purpose for which they were used. The argument that liability resulted from the condition of the premises must fail.
It was also argued that a duty of care arose by reason of the respondent’s custody and control of the rig. No evidence was led as to the nature of the contractual relationship between the parties, but it can be inferred from the evidence that the respondent was required to take delivery of the appellant’s property and deliver it up to the appellant or its agent upon request.
In these circumstances, it was not in dispute that the respondent was under a duty to take reasonable care of the appellant’s property while it was under the control of the respondent. However, it is important to consider the extent of the respondent’s control, if any, over the handling of the trailer and its load at the time it was left on the unsealed surface.
In my view, the respondent’s role as custodian of the rig concluded at the stage when it was handed over in the manner described. It could not be said that the respondent had control over the way in which the rig was to be handled and transported once it was loaded onto the trailer and secured by the driver. I would reject the appellant’s submission that the appellant and the respondent exercised joint control over the load at this point. Mr Miller decided to leave the trailer at the terminal and pick it up on the following day. He asked if he could leave it there and he was told that he could park in a particular location on the property. The trial judge found that the driver was not directed to do either of these things; he was permitted to do so in response to his request.
Furthermore, it was for the driver to decide how the trailer was to be secured and left after it was detached from the prime mover. There is no evidence that any employee of the respondent was involved in that decision. In my view, the circumstances did not give rise to the imposition of a duty of care on the respondent which required the respondent to intervene by way of supervision of the driver or the giving of instructions and advice to him, as pleaded in the statement of claim.
I would dismiss the appeal.
NYLAND J. I have read the reasons of Duggan J. I would dismiss the appeal for the reasons expressed by him.