Akula v Csx World Terminals Australia & Bruce Lang Transport - [2005] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
AKULA v CSX WORLD TERMINALS AUSTRALIA & BRUCE LANG TRANSPORT
Judgment of His Honour Judge Boylan
16 September 2005
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
Plaintiff's goods stored on trailer on defendant's premises. Driver of semi-trailer responsible for safety of load on trailer. Whether defendant breached duty of care in directing driver to leave trailer on unsealed surface. No breach of duty.
Wrongs Act (S.A.) s170, now Civil Liability Act 1936 S20, referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 & 48, applied.
Australian Safeway Stores v Zaluszna (1987) 162 CLR 479; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 20, considered.

AKULA v CSX WORLD TERMINALS AUSTRALIA & BRUCE LANG TRANSPORT
[2005] SADC 127

This is a claim for damage done to the plaintiff’s property while it was stored at the defendant’s premises.
The plaintiff shipped a drilling rig to Australia. It was unloaded at the defendant’s wharf at Outer Harbour and remained there until the plaintiff or someone acting on the plaintiff’s behalf sent a semi trailer to collect it on the afternoon of the 29^th of September 1999. The driver of the semi trailer was Mr Miller. After the rig had been loaded onto his trailer, Mr Miller saw that the load was oversized and realized that he needed a special permit and special signage before he could lawfully drive it on public roads. He unhooked the trailer from the prime mover and left it in an area of the defendant’s premises where an employee of the defendant had told him he could leave it. Mr Miller intended to come back the next day with the prime mover and take the trailer away. Once the prime mover was taken away, the front of the loaded trailer was supported by struts which wound down from the tailer. During the night, the struts sank into the ground. The trailer fell onto its side and the plaintiff’s rig was damaged.
The plaintiff claims that the damage was caused by the defendant’s negligence in directing Mr Miller to leave the trailer where he did. The defendant has joined the company which operated the truck driven by Mr Miller.
In my judgment, the defendant was not negligent and is not responsible for the damage to the drilling rig. I shall explain my reasons in more detail a little later in my judgment. First, I shall describe the parties to the action and the facts.
The parties to the action
As I have said, the plaintiff is the owner of the drilling rig and caused it to be imported into Australia. The defendant is the lessee of the wharf and adjoining land at Outer Harbour where it operates a container terminal. Bruce Lang Transport Pty Ltd (“Bruce Lang”) was Mr Miller’s employer and the operator of the semi-trailer which he was driving on the 29^th of September 1999. I shall refer to Bruce Lang as the third party.
Earlier in the proceedings, there had been another third party, namely, S.E.T. Pty. Ltd. (“SET”). SET was a trucking company which engaged Bruce Land to collect the rig from the wharf. There is no evidence about the identity of the person or entity which instructed or engaged SET. It could have been the plaintiff or the plaintiff’s shipping agent. At some stage before trial, the proceedings against SET were discontinued.
The evidence
The plaintiff and the defendant each called one witness only. The plaintiff called Mr Miller. The defendant called Mr Schunker, the operations manager of the defendant. In addition to the evidence of those two witnesses, I received photographs, plans, shipping documents and, over objection, a brief report of the incident made by an employee of the defendant.
Both Mr Miller and Mr Schunker were credible witnesses. I accept the evidence of both of them. There was no dispute between them. On a couple of matters, I must make findings about the effect of their evidence. I shall do so as I summarise it.
The site of the container terminal
The defendant’s terminal occupies about thirty eight hectares. At one end is the wharf and, immediately adjacent to it, an area with a sealed surface where containers are stored and from which trucks such as Mr Miller’s collect the containers. Straddles operate in the area and load the containers onto trucks.
At the opposite end, adjacent to Coghlan Road, are the main entrance and gate-house. The gate-house has a verandah down one side. A row of windows open from the gate-house onto that verandah. Those windows face the area where Mr Miller eventually left the trailer. At those windows are counters at which truck drivers arriving at the site attend to present delivery orders to employees of the defendant and to receive instructions from those employees about the collection of containers.
Adjacent to the gate-house verandah is a sealed surface on which drivers park their trucks when they attend at the counters. On the opposite side of the gate-house from that sealed section is the unsealed area which stretches away generally towards the wharf. To the side of the gate-house is a sealed area close to an entrance to the site which is used by employees.
The gate-house is connected to the wharf area by a sealed roadway. In September 1999, the area generally to the west of that road was bituminised and was used to store cars awaiting export. To the generally eastern side of the roadway was the large unsurfaced area on which Mr Miller left the trailer overnight.
Mr Miller’s evidence
Mr Miller was about 60 at the time of the incident. He had been a truck driver for many years, at one stage owning and operating his own truck. He had been working for Bruce Lang for about fourteen months before September 1999. For most of that period, he had been driving a rigid or tray-top truck. But he had changed to a semi trailer (prime mover with trailer) about five weeks before the incident. In that time, he had attended at the defendant’s terminal on some forty or fifty occasions. I find that he was an experienced driver of semi trailers.
On the 29^th of September 1999 Mr Miller arrived at the defendant’s premises at about 3.30 p.m. He went straight to the gate-house. There, he presented necessary documentation, probably a delivery order. Although it is not very clear on the evidence what document or documents he presented and what documents he may have received, there is no dispute that at least one of them contained an entry identifying by number and serial number the container which he was to collect and a brief description of it and its contents. I find that, by the time he drove from the gate-house to the wharf, Mr Miller was in possession of a document which described the container he was to collect as a 40 foot “FR” container which a gross weight of 19,500 kilograms.
Mr Miller was directed to go to a loading bay on the area next to the wharf. He drove his truck along the road which connects the gate-house with the wharf and reversed it into the bay to which he had been directed. At some stage (the evidence on the point is unclear) he put on protective clothing. He got out of the truck, as he was required to do by the defendant, and stood well clear while the straddle loaded the container onto his trailer. When loading was completed, he screwed down the load to secure it to the trailer.
At some time before driving the truck from the loading bay, Mr Miller saw that the container was not the usual type of enclosed container which he had been expecting to collect. Instead, it was a flat-rack container which is a container open along both sides and without a roof. The wheels of the drilling rig protruded by some 30 to 40 centimetres from each side of the container. Mr Miller realised that the load was over width. Before such loads can be driven on a public road, “Overwidth” signs must be attached to them and special permits obtained. Mr Miller had neither the signs nor the permits. While still at the loading bay, he telephoned SET for instructions. He was told that overwidth loads could not be driven on public roads between 4.00 o’clock and either 6.00 o’clock or 6.30 p.m. He was instructed to ask the defendant to unload the trailer. Accordingly, he drove back to the gate-house and parked the loaded trailer on the sealed area immediate in front of the gate-house. He went to a counter at one of the windows and spoke to an employee of the defendant about unloading. That employee said that he would have to speak to another employee (to whom I shall refer as “the second employee”). The second employee came out from an internal office and had a discussion with Mr Miller.
Mr Miller asked if his trailer could be unloaded but was told that that was not possible as the workers who assisted the straddle operators had finished for the day. Mr Miller asked if he could leave the trailer on a bitumen area to the side of the gate-house near to the employees’ entrance. He was told that he could not do so as it would be in the way of other vehicles. The second employee then told Mr Miller that he could park on the unsealed area opposite the gate-house (immediately beyond the bituminised area on which his truck was then parked). The unsealed area is extensive. There is no evidence that the second employee directed him to park the trailer at any specific location on that area. Mr Miller then turned the truck around and parked it on the unsealed area. In the position in which he left it, the truck was immediately opposite the gate-house (see Exhibit P2) and plainly within view of any of the defendant’s employees at the counters along the veranda.
Mr Miller then wound down from beneath the front end of the trailer two struts which support the front of the trailer when it is detached from the prime mover. Attached to the end of each strut is a square piece of metal referred to in evidence as a “pad”. The purpose of the pads is clearly to distribute the load over a surface wider than that provided by the ends of the struts. He did that because he had had an experience in the past when one of the struts failed and his trailer tilted. To make sure that the trailer was stable, Mr Miller waited a short time before driving the prime mover away. Before leaving the site, Mr Miller spoke to another of SET’s drivers who happened to be there. That driver agreed with Mr Miller that the trailer and its load were safe. Mr Miller then left the defendant’s premises.
The damage to the drilling rig
During the night, the trailer fell onto its side and the rig was damaged. No witness was called to give evidence about the reasons for the trailer’s falling. Photographs (Exhibit P5) show that the struts and the pads had sunk into the ground.
At some stage during the night, an employee of the defendant, described as a supervisor, filled out a form entitled “Property Damage / Loss Report” (Exhibit P6). It contains this following entry:
“Transport company unable to take unit on road (O/width). Requested leave inside terminal till a.m./30^th when permit avail. Driver parked on soft ground. Trailer sank into soft ground became unbalanced and toppled over”.
The writer of Exhibit P6 assumed that the surface was incapable of supporting the load at the front of the trailer. Before me, the case proceeded on the basis that the unsealed surface was insufficiently strong to support the load.
The plaintiff called no evidence about the load-bearing capacity of the unsealed area. Nor did it call evidence about the load-bearing capacity of the sealed areas and, particularly, of the sealed area to the side of the gate-house where Mr Miller had first asked to be allowed to park the trailer. The plaintiff assumes that, had Mr Miller left the trailer there in the same condition as he left it on the unsealed area, it would not have fallen over. There is no evidence to support that assumption. Nor is there any evidence whether the placing of timber bearings underneath the pads on the trailer to distribute the load over a wider area would have prevented the trailer’s falling.
In summary, Mr Miller’s evidence on those topics was that the pads on the feet of the struts of the truck he was driving that day were quite large. He agreed that the pads took the loads from the two struts. On 29 September 1999, Mr Miller thought that the ground in the unsealed area was “quite hard enough” and that timber bearings were unnecessary. He agreed in evidence that he had no “input” from anyone else in the process of lowering the struts and moving the prime-mover away from the trailer. He agreed that he was in charge of the truck and he did with it as he saw fit.
There was no evidence whether a prudent driver would have used or considered the use of timber bearings at either location.
I find that the trailer toppled over because the unsealed area on which it was parked was incapable of bearing the load distributed as it was by the pads.
A disputed matter
There was a suggestion made by the defendant in cross-examination of Mr Miller and in submissions that Mr Miller did not make it clear to the defendant’s second employee that he intended to unhook the trailer from the prime mover and leave only the trailer overnight. Only Mr Miller gave evidence on the topic. Neither of the defendant’s employees to whom Mr Miller spoke at the gate-house was called. (There was no explanation for their absence). On this topic Mr Miller said, at page 21 of the transcript:
“Then he [the second employee] told me that the best thing for me to do would be to unhook it over on – he pointed over the a patch of dirt out across from the office. Then I asked him about down the side of the office, they have got a bitumen area. He said it wasn’t possible because it blocked the gate area”.
Later (at page 32 of the transcript), Mr Miller was asked:
"QWas there a discussion about whether you would be leaving the entire rig or just the trailer there?
AJust the trailer.”
I refer also to this passage in cross-examination (at page 36):
"QHe [the second employee] didn’t say “the best thing to do is to unhook it” did he?
AHe said the best thing to do would be to leave the trailer there.
QNo, I suggest to you he didn’t say that to you. What he said was something along the lines “the only spot you can leave it is over there”.
AMeaning to unhook the trailer.”
I accept Mr Miller’s evidence that he made it plain to the second employee that he was requesting permission to leave only the trailer there overnight and that he made it plain to that employee that he would unhook the trailer from the prime mover.
I also find, although this was hardly disputed, that Mr Miller left the trailer at the defendant’s premises for his own convenience and, possibly, for the convenience of SET. Alternatives were available. SET could have sent to the defendant’s premises the relevant signage necessary for an overwidth load and, presumably, could have obtained at short notice the relevant permit. The “curfew” expired at either 6.00 o’clock or 6.30 p.m. Mr Miller could have waited at the defendant’s premises for those various events to occur and then driven the load away. The defendant’s premises remain open and operating until about 9.00 o’clock p.m. Mr Miller could also have left the prime mover, with the trailer attached, in the place indicated to him by the second employee. Mr Miller could then have left the premises by taxi or, possibly, with another SET driver. Although I make these findings, I do not think that anything turns on them.
Mr Schunker’s Evidence
Mr Schunker, the defendant company’s operations manager, gave evidence about the procedures followed by drivers when collecting loads, the defendant’s reasons for not unloading Mr Miller’s truck, the control which the defendant exercised over its premises, the prior use of the unsealed area, and the eventual sealing of the area and the defendant’s reasons for doing so. Mr Schunker was a credible witness and I accept his evidence.
As to the procedure followed by drivers, Mr Schunker said that, having entered the site, they stop at the gate-house where they produce a delivery order. That order contains information similar to that which is recorded on the bill of lading, Exhibit P5. In particular, the delivery order and the bill of lading contain a brief description of the container to be collected, including its weight. I find that the defendant knew the weight of the container which Mr Miller was to collect. The driver then goes to the loading area where the straddle loads the container onto the trailer. Once his load is on the trailer, the driver secures it by twisting the key locks which fix it to the trailer. I find that the security of the load once it is on the trailer is the driver’s responsibility. The driver then drives to the main exit gates. There, he is stopped by an employee of the defendant who checks that the driver is authorised to remove the container from the premises. If so, the driver may proceed. If not, he would be prevented from taking the container from the defendant’s premises.
Mr Schunker said that it was the company’s policy not to unload containers from trailers once they had been loaded owing to the cost of doing so and to the company’s obligations to its other clients.
Mr Schunker said that, as one would expect, the defendant maintained control of its premises. There are marked traffic lanes and speed limits are enforced. Drivers are not permitted to park trucks where they please. In this context I refer again to Mr Miller’s evidence about drivers standing clear of their trucks during loading by straddles and to his evidence about drivers wearing protective clothing. There can be no question that the defendant maintains strict control over its premises with respect to the movement and parking of vehicles and the behaviour of drivers.
Mr Schunker also said that the unsealed area had been used by trucks prior to the 29^th of September 1999 by trucks. Vehicles drove across the area to connect trailers and drive out of the terminal. There had not been any difficulties associated with driving trucks on the unsealed area. I note that there was no evidence from Mr Schunker, or from anyone else, that loaded trailers, unhooked from prime movers and partly supported by struts, had ever been left on that area.
In cross-examination Mr Schunker was asked about the defendant’s decision to seal the unsealed area some time after the 29^th of September 1999. In addition to his evidence on that topic, I received a letter dated the 28^th of January 2005 from the defendant’s solicitors to the plaintiff’s solicitors (Exhibit P7). That letter sets out some of the history of the sealing of the previously unsealed area. It appears from Exhibit P7, and I find, that the defendant and its landlord had been discussing the issue of sealing the area for up to six months before the commencement of the work in the fourth quarter of 1999, fairly soon after the damage was occasioned to the plaintiff’s rig. Plans for the work were finished on the 15^th of September 1999. The area – of about 1.7 hectares – was sealed to a capacity of 8 tonne wheel loading. (It may be that that should read 8 tonne axle loading, but the difference does not matter for present purposes). The area was sealed to cater for the expansion of the defendant’s business, specifically for the storage of motor vehicles awaiting export.

Mr Schunker explained that the terminal was not permitted to store export cars on unsealed surfaces. To do so created a risk of damage to their paint work. Trucks had tended to churn up the unsealed area. Therefore, it was sealed to what Mr Schunker described as 8 tonne axle loading. He agreed that an 8 tonne loading was unnecessary for the storage of cars. A 3 tonne loading was sufficient for that, but the defendant decided to make the surface stronger to avoid the necessity of having regularly to reseal it as it would have had to do with a 3 tonne loading. Insofar as there is a suggestion that the defendant sealed the area to an 8 tonne loading because it knew that the area, left unsealed, was incapable of supporting a loaded trailer, I reject that suggestion. I find that the defendant company did not know and had no reason to know that that part of the unsealed area on which Mr Miller left the trailer might not support a loaded trailer supported by struts.
A summary of findings
I summarise my findings of fact as follows.
·The second employee instructed Mr Miller to park the trailer on an unsurfaced as opposed to a surfaced area
·The second employee did not designate any particular location on that area on which Mr Miller was to park
·The choice of the precise location was a matter for Mr Miller. Mr Miller chose that location on the basis of convenience. That location was close to the gate-house and the main entrance to the site.
·There was no urgency for Mr Miller to leave the site. He did not want to wait until the curfew period had expired and the relevant permits and signs had been obtained.
·Mr Miller was responsible for the security of the load on his trailer.
·The defendant, through its second employee, knew that Mr Miller intended to disconnect the prime mover and leave only the trailer.
·The defendant knew that the trailer would be supported by struts.
·The defendant knew the weight of the load.
·The defendant did not know the design of the struts attached to the trailer.
·The defendant did not know that the unsealed surface would not support a load such as the plaintiff’s supported partly on struts in the manner in which Mr Miller left it.
·There was no defect or condition in the unsealed area which was in the exclusive knowledge of the defendant.
The duty of care
Against the background of those facts and findings, I must decide whether or not the defendant owed a duty of care with respect to the plaintiff’s rig. In my view it did. The defendant was the occupier of land. Its status as such is sufficient to found a duty of care which is to be measured by the ordinary principles of the general law of negligence and not by reference to the status of any entrant on to the land. See Wrongs Act (S.A.) s.170, now Civil Liability Act 1936 s.20, and Australian Safeway Stores vZaluszna (1987) 162 CLR 479. 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. The question here is whether there was a breach of that duty. the.
Was there a breach of duty?
In considering whether or not there has been a breach of the duty of care, I have considered the well known passage in the judgment of Mason J. in Wyong Shire Council v Shirt (1980) 146 CLR 40 at pages 47 to 48. There, His Honour referred to the role played by foreseeability in determining whether or not there had been a breach of the duty. Importantly His Honour said:
“But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
In my view, it was foreseeable that a trailer loaded as was Mr Miller’s and left supported on struts on an unsealed surface, might topple over. But, as Mason J. said, the matter does not stop there. There are other relevant factors. One of those factors is, in my view, the extent to which an occupier of land is entitled to rely upon the expertise of a person coming onto his premises. In this context, I refer to the judgment of Mason J. in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 20. His Honour said:
“The content of the occupier’s duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises.”
A little later in the same passage His Honour said:
“By way of alternative explanation, it might be said that reasonable men in the position of the occupiers would not have foreseen, or if that had foreseen would not have thought it reasonably necessary with regard to the knowledge and skill of the invitees to guard against, the occurrence of those injuries to the invitees.”
Deane J said words to the same effect at page 38 of the judgment.
In my view, those passages are apposite to the situation here. Mr Miller was in charge of the prime mover and trailer. He was an experienced driver. There is no evidence that he presented at the defendant’s premises as anything other than an experienced driver. 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.
I make it plain that I make no finding that Mr Miller was negligent. In the circumstances, it is not necessary for me to consider that question. But again, there is a lack of evidence on the topic. As I have said, I heard no evidence about the cause of the trailer’s falling over other than that to which I have already referred. Moreover, I heard no evidence from appropriate witnesses about the prudence or otherwise of leaving the trailer as it was left.
There will be judgment for the defendant.