Alpine Petroleum Pty Ltd v Jonmac Transport Pty Ltd
[2016] VCC 136
•25 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-06334
| ALPINE PETROLEUM PTY LTD | Plaintiff |
| v | |
| JONMAC TRANSPORT PTY LTD | First Defendant |
| and | |
| PAPER RACE PTY LTD | Second Defendant and Defendant to the First Defendant’s Third Party Notice |
---
JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 February 2016 | |
DATE OF JUDGMENT: | 25 February 2016 | |
CASE MAY BE CITED AS: | Alpine Petroleum Pty Ltd v Jonmac Transport Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 136 | |
REASONS FOR JUDGMENT
Catchwords: Actions for damages – damage to automatic truck wash by prime mover towing semitrailer – dispute as to circumstances in which damage occurred – agreed quantum as to replacement cost and operating losses – whether negligence proven – res ipsa loquitur – claim for economic loss only by second defendant – whether first defendant owed duty of care to second defendant in respect of operating losses – whether contributory negligence established – factors to be considered.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Christie | Wotton + Kearney |
| For the First Defendant | Mr M Campbell | Thomson Geer |
| For the Second Defendant and Third Party | Mr S Stuckey | LFS Lawyers Pty Ltd |
HIS HONOUR:
General background
1 This case comes before me by way of a claim for damages brought by the plaintiff, Alpine Petroleum Pty Ltd (hereinafter referred to as “Alpine”), against two defendants, the first defendant being Jonmac Transport Pty Ltd (hereinafter referred to as “Jonmac”) and the second defendant being Paper Race Pty Ltd (hereinafter referred to as “Paper Race”).
2 There is also on foot a third party notice issued by Jonmac against Paper Race and a counterclaim by Paper Race against Jonmac, which is limited to economic loss. Quantum is agreed in relation to Alpine’s claim against Jonmac and the counterclaim of Paper Race against Jonmac. The case concerns an incident which occurred on 3 January 2013 (hereinafter referred to as “the incident”), when a prime mover towing a trailer and driven by Mr John McDonald, at the time an employee and director of Jonmac and hereinafter referred to as “McDonald”, proceeded through a truck wash owned by Alpine and managed by Paper Race, the truck wash being located at 330 Hume Highway, Craigieburn. It shall hereinafter be referred to as “the truck wash”. Such reference is only to the machinery involved and not to the surrounding building in which it is housed. The prime mover and trailer shall be referred to as “the truck”. In the incident, there is no dispute but that part of the truck struck or became entangled with part of the works or operating equipment of the truck wash, causing it to be removed from the building in which it was housed and to crash onto the apron area outside the exit of the truck wash. As a result of the incident, the truck wash had to be totally replaced. It should be added that the truck wash is part of a service station complex managed by Paper Race and I shall refer to that complex generally as “the premises”.
3 As a result of the incident, the truck wash was rendered inoperable and there was a lengthy period before it could be replaced and the business resumed. Alpine seeks damages in the agreed sum of $376,191.80. Paper Race, as part of its defence to the Jonmac’s third party notice, seeks $56,000, this being economic loss suffered during the period for which the truck wash could not operate. As stated, there is no dispute as to the quantum of losses. The question of the existence of negligence on the part of Jonmac is very much in issue. Counsel for that party made it comparatively clear at the outset that contributory negligence on the part of Alpine, whilst alleged, was not something that was going to be pressed, although not abandoned – see Transcript (hereinafter referred to as “T”) 15. Indeed, it was an issue which, understandably, received little, if any, attention. However, contributory negligence on behalf of Paper Race in relation to its counterclaim to the third party notice remained very much alive. Essentially, Jonmac asserts that an employee of Paper Race directed McDonald to drive the truck through the truck wash. Greater details of what is alleged to have occurred shall be set out subsequently.
4 Mr D Christie of counsel appeared on behalf of Alpine. Mr M Campbell of counsel appeared on behalf of Jonmac. Mr S Stuckey of counsel appeared on behalf of Paper Race. Oral evidence was received from Mrs Irene Theos, wife of the director of Paper Race and with a propriety interest in it, who, on 3 January 2013, was the console operator for the truck wash and was located at the console in the shop area; McDonald, who was at the time a director of Jonmac and the driver of the truck on that day; Mr George Theos, husband of Mrs Irene Theos, and a director of Paper Race; and Mr Kamil Markadin, “Markadin”, a casual employee of Paper Race who was present at the premises at the time of the incident. I should add that both Mr and Mrs Theos use that surname as an abbreviation of Theodorakopoulos and I shall use it similarly. In addition, a considerable number of documents was placed in evidence, including relevant photographs.
Factual background
5 I will now set out a more detailed account of what occurred. I shall deal firstly with some undisputed background facts before turning to the evidence of each of the witnesses and the documentary evidence.
6 The premises consist, inter alia, of a service station, shop, parking area and, in one building to which the shop is attached, two self-service car washes and the truck wash. Those wishing to use the truck wash proceed to an entrance to it. The normal routine is that drivers of trucks park in line with or near the entrance to the truck wash. The driver then alights and enters the shop, which is adjacent to the entry to the truck wash. In the shop there is a console which is normally operated by Mrs Theos, in addition to her serving customers. She was seated at the console on the day in question. The fee for the use of the truck wash is paid. The driver returns to the truck and drives into the truck wash. The console operator (Mrs Theos) activates the machinery. The truck, having been driven into the truck wash, then comes to a halt. The large rollers, hoses and the like are, in essence, attached to a gantry. Whilst the truck and the gantry remain stationary, the rollers, including an overhead one which cleans the roof, move back and forth on tracks. There are hoses or jets of water alongside. Some further cleaning is done manually by one or more attendants and thus areas which cannot be completely cleaned by the machinery receive attention. When the washing process is completed, the truck is driven out through the exit.
7 It should be added that, on the floor of the truck wash, there are attached batons or guiderails so as to assist in keeping a prime mover and trailer in a straight line and prevent them from getting too close to the machinery on either side. One of the attendants referred to may also stand at the exit and, by hand signals, assist in keeping vehicles in a straight line when they are being driven into or exiting from the truck wash. The nature of the guiderails in place at the time of the incident is a contentious matter.
8 There is no dispute but that McDonald, in his capacity as a director and employee of Jonmac and driver of the truck, had visited and used the truck wash on numerous occasions. He had been through it, driving the same prime mover and towing the same trailer as those involved on the day of the incident.
9 The truck wash is something of a tight fit for McDonald’s truck, particularly in relation to height. The clearance between the top of the truck and the bottom of the overhead machinery of the truck wash is approximately 15 centimetres. However, as stated, there had never been any previous collision between any part of the truck and any part of the truck wash. I accept that, in the approximately 13 years during which Mr Theos had been operating the truck wash, he could only recall one previous collision between any truck and any part of the truck wash. That had been caused by a truck turning too sharply when exiting the truck wash and the side of the vehicle becoming effectively entangled with machinery on one side of the truck wash. With some manoeuvring, it was able to be disentangled and no damage was done. I appreciate that this particular fact is of limited relevance, but would tend to support the proposition that the truck wash, which had been used thousands of times over the years, was something which could be negotiated with care and McDonald had done this many times.
The oral evidence
10 Against that general background, I shall now summarise the evidence of the witnesses in the order in which such evidence was given.
(i) Mrs Theos
11 Mrs Theos was the only witness called on behalf of Alpine.
12 On 3 January 2013 the truck wash was not operating. Habitually, the operation of the truck wash ceased annually during the Christmas/New Year period. Business was quiet at this time. At the time of the incident, Mr Theos was not at the premises.
13 Whilst the truck wash was not operating, the service station, shop and self-service car washes were all open. Mrs Theos was in the shop, where there is also located the console for the operation of the truck wash. A window in the shop and in the vicinity of the console provides a view of the entrance to the truck wash and the surrounding area. As I understand it, the work performed by Mrs Theos involved both the serving of customers in the shop and dealing with truck drivers wanting to use the truck wash. Apart from obtaining payment, this involved the operation of the console, which enabled the truck wash to commence functioning.
14 McDonald arrived at the truck wash in the early afternoon of 3 January 2013. Mrs Theos was in the shop. McDonald was known to her as a customer whom she had served many times when he came to have the truck washed.
15 McDonald got out of the vehicle and came into the shop. He asked if he could wash the truck. Mrs Theos told him that the truck wash was not operating. McDonald asked why this was so and she said it was because “during the holidays, it did not operate”. In cross-examination, it was put to Mrs Theos that she also said that her husband was away getting parts; that the truck wash would be operating again in approximately an hour’s time; and that McDonald should come back in an hour. McDonald’s evidence was that this for him was “money for jam because I get paid by the hour” – see T49. Mrs Theos denied that she had said this. In particular, she denied that she had told him to come back in an hour.
16 Mrs Theos stated that, when she told McDonald that the truck wash was not operating because of the holidays, he got unhappy or angry and simply walked out – see T26. She claimed that he went back to his truck, slammed the door and started the vehicle.
17 Mrs Theos said that McDonald then revved the truck, rather than it idling, and seemed to accelerate. When the truck took off, it was too quick and jumped forward. It went into the truck wash and shortly after that she heard a big noise. She said that she had seen thousands of trucks entering the truck wash and they usually roll very slowly, but, by comparison, McDonald was going quickly. She then heard a loud bang or big noise, and for a minute she thought the building was moving. There is a side door from the shop directly into the truck wash. Mrs Theos took one step into it and saw that the truck was moving and that the machine “was coming down” – see T28. The machine was moving with the truck in that the truck was pulling it. She could not see where the truck wash was hitched to the vehicle. Whilst she yelled out “stop, stop”, she could not have been heard, because the noise was continuing. She then stepped back into the shop, closing the side door, and went to the back door, which gives access to the outside area in the immediate vicinity of the exit from the truck wash. When she came out of the back door, she saw the truck pulling the truck wash. Ultimately the truck stopped. McDonald alighted from the cabin of the prime mover. Mrs Theos stated that she said to him “What happened?” and McDonald replied “I don’t know” – see T29.
18 Mrs Theos said that McDonald would have to wait until her husband came and had a talk with him. She then went back inside the shop and telephoned her husband.
19 In cross-examination by Mr Campbell, Mrs Theos agreed that there was no sign or indication that the truck wash was closed. There was no chain going across the entrance. She also agreed that the ordinary procedure was for trucks to be guided through the truck wash by employees of Paper Race. Such employees would stand at the exit and indicate where the truck should go. The employees also engaged in some hand washing. As stated, she denied that she said that her husband, George, was away because of repairs and would be coming back. McDonald’s version of events was put to her, and I shall turn to that shortly. Mrs Theos disagreed with it. She agreed that, on the day in question, there was one employee (Markadin) present, but he was not washing trucks. His normal duties were general cleaning, but, if it was busy, he was asked to help in the truck wash. Markadin was a person who could also wave through the trucks, in addition to washing them. Markadin was in the immediate vicinity when she had the brief conversation with McDonald before returning to the shop and ringing her husband.
(ii) McDonald
20 I shall deal only with the evidence of McDonald that conflicts with that of other witnesses. In relation to the conversation in the shop, McDonald’s evidence was that he was told by Mrs Theos that the truck wash was not operating essentially because Mr Theos was absent getting a part for it. He was told that it would be operating again in about an hour and that he should come back then. Because he was paid by the hour by BagTrans, the entity that owned the trailer and for whom he did Woolworths’ deliveries several days a week, he was not at all annoyed when told that he would have to come back later. Further, BagTrans has an account with Alpine so that, when the trailer was washed, his prime mover was also washed.
21 In addition to what conversation had taken place within the shop, the sequence of events that took place thereafter is very much in dispute. McDonald’s version is that he was not annoyed.
22 McDonald got into the prime mover. It was his intention to return to BagTrans, which is nearby. In order to do this, he intended to reverse the truck and then go forward down a driveway or small road to the left of the truck wash, before leaving the property.
23 Having reversed a short distance, McDonald heard a whistle and observed a person whom he knew to be an employee of Alpine (such person being Markadin), who waved and said “No, no, back, come through” – see T52. McDonald also said that Markadin shook his head, “saying, in other words, don’t back up, come this way” – see T53.
24 McDonald claimed that he then put the truck in the normal gear which he used for taking off from a stationary position and eased it through the truck wash, probably at 5-8 kph. He went right through the truck wash and was virtually out of it when Markadin started yelling. He put his foot on the brake and there was a bang. He could not work out what had happened. He saw the truck wash lying on the ground behind his truck. He then had a discussion with Markadin, but denied that Mrs Theos had come out of the shop. He said that he did not see her at all. Another person called Peter Hewitt arrived about five minutes after the accident and said “Best wait for George”, George being Mr Theos. It was essentially agreed that Mr Hewitt was not available to give evidence and I was not asked to draw any inference in this regard.
25 McDonald gave evidence that, when Mr Theos arrived, he stated that he did not think that McDonald was at fault – see T55. After about 20-25 minutes, McDonald left the scene. He went to BagTrans, which is nearby. He was able to inspect the truck. The only sign of what had occurred that he could find was a mark at the centre of a narrow aluminium strip, which is only about 1/8 of an inch deep and runs across the back of the trailer roof. Apparently, its purpose is to hold the roof panel down.
26 McDonald returned to the premises a couple of days later and had a further conversation with Mr Theos. He wished to know whether McDonald had put the claim through his insurance company. McDonald said that it had been submitted to his insurance agent, Ms Cramp. At that stage, he was not even aware of the identity of his insurance company.
27 In cross-examination by Mr Stuckey, it was put to McDonald that the length of the truck wash was approximately 32 metres. He effectively agreed, saying, “yes, about 30 metres, yes” – see T64. The height of the truck was 4.6 metres, which is the legal limit. The trailer consisted of “robust” steel beams with canvas sides. Essentially, McDonald agreed with the proposition that the truck, in the collision, “pulled the machine down” – see T59. The aluminium strip previously mentioned is bolted to the top of the steel frame at the back of the trailer. He also agreed that he had driven through the truck wash before and that there had never been a collision. In answer to a question of mine, Mr Stuckey said that he was not asserting that the truck was too high for the truck wash, but that it was not driven safely.
28 McDonald also said that, in the truck wash, there was a clearance of approximately 10 inches on each side of the truck. McDonald was driving a prime mover which had been the property of Jonmac for several years. He was towing a trailer which was the property of BagTrans and had been so towing it on average four days a week for the previous five years. He was aware of its height, which he said was the maximum legal limit of 4.6 metres. As earlier stated, this would have left a clearance of 15 centimetres. BagTrans has an account with Alpine, so that McDonald would get his prime mover washed at the same time as the trailer, this being at the expense of BagTrans rather than Jonmac. It is in no way suggested that there was anything improper or underhand about this arrangement. McDonald also gave evidence, which was not challenged, that he is paid by the hour, so that any delay which occurred in relation to the operation of the truck wash on the day in question was not to his disadvantage.
29 It should also be said that, inside the truck wash, there are guiderails or batons attached to the floor and vehicles using the truck wash should stay between them. There was a conflict of evidence between McDonald and Mr Theos (and Markadin) as to the length of these guiderails at the relevant time. McDonald insisted that the guiderails present at the time of the incident effectively ran the full length of the truck wash. Mr Theos stated that, as is presently the situation, there were then shorter guiderails approximately one or two metres in length on the floor at both the entry and exit to the truck wash, but they did not stretch for the full length of it.
30 Whilst McDonald was adamant, and, even when pressed, expressed no doubt whatsoever as to the fact that the guiderails at the time were continuous for the length of the truck wash, I prefer and accept the evidence that they were about one or two metres in length and were stationed on the ground and on each side adjacent to the entry into and exit from the truck wash. Indeed, photographs of what were said to be the original guiderails were placed in evidence. There is no reason to believe that they were anything but the original guiderails, now to be found (and photographed) in a collection of rubbish. There is little doubt but that they are approximately one metre or so in length and much the same as the replacement guiderails, although a little larger in diameter and turning slightly outwards at one end.
31 McDonald also suggested that he would have been about 40 metres away from Markadin when Markadin whistled to attract his attention. He denied that the noise created by the truck reversing, being both engine noise and the warning signal associated with a reversing vehicle (which, in the case of this truck, was a Tarzan call), was such that he could not have heard someone whistling 40 metres away. McDonald also asserted that he could see the expression on Markadin’s face at that range, because Markadin was in daylight at the far end of the tunnel that is the truck wash – see T70. He saw Markadin shaking his head, which he interpreted as meaning that he should stop reversing and drive through the truck wash.
32 McDonald said that he was reversing in a straight line, looking at his rear view mirrors, when he heard the whistle. He then became aware that the person doing the whistling was at the other end of the truck wash. He was also shaking his head and waving for McDonald to come forward. He denied that such shaking of the head could have been an indication not to come through the truck wash, but stated that the person (Markadin) was beckoning to him to come through. McDonald stated that “He started by shaking his head but then he was doing both gestures together” – see T83. I shall return to the question of Markadin allegedly whistling and beckoning to McDonald to drive through the truck wash when dealing with Markadin’s evidence and discussing the material provided by McDonald to his insurer.
33 In any event, McDonald’s evidence was that, it having been indicated to him by Markadin that he drive the vehicle through the truck wash, he did so at a safe speed, although in essence he conceded that it could have been approximately 10 kph, which was the speed he nominated on his insurance form.
34 McDonald stated that, when he got to the other end of the truck wash, Markadin, who had been signalling to him, gave him a “thumbs up” to indicate that he was through and that he was right to go. He started to drive away when he heard yelling. He saw the gantry of the truck wash fall to the rear of his trailer.
35 When pressed by Mr Stuckey, he agreed that, as he drove through the truck wash, Markadin made signals to him effectively indicating to him to straighten up. However, he also said that he “wasn’t out of line that much” – see T81.
36 When Mr Stuckey’s cross-examination returned to the subject of the height of the truck and the clearance available, he repeated that the damage to the trailer had been to the “tiny little piece that sits up” at the rear – see T76. In answer to a question of mine, he said that it was part of the construction of the truck and would have been through the truck wash previously.
37 McDonald denied that what had occurred was that he was travelling too fast and that the rear wheels had struck the guiderail, causing the rear section of the trailer to bounce or ride up, thus contacting the truck wash. McDonald also denied that he was not paying proper attention to his surroundings. He was unsure of the actual words used after the incident in the discussion with Markadin, who could have said that the trailer had snagged the truck wash with its roof.
38 Further, McDonald denied that he had told Mr Theos that he was sorry and that it was his fault. He claimed that he had told Mr Theos that he would submit the details to his insurance agent. There was subsequent contact between them on several occasions, with Mr Theos being agitated as to what was happening. McDonald agreed that at no stage did he say to Mr Theos that it was not his (McDonald’s) fault.
39 McDonald agreed that Markadin had gestured to him to alter his course. He stated that “He was guiding me through, yes, but I wasn’t out of line that much” – see T81. He also claimed that, as he drove out of the truck wash, Markadin was approximately one metre out and a metre to the side. He was unable to say as to whether Markadin jumped out of the way of the truck wash as it collapsed.
40 McDonald was also cross-examined by Mr Christie. He stated that, when reversing, he heard the whistling and saw Markadin at the far end of the truck wash. Markadin was shaking his head and waving for him to come forward. He was beckoning to him to come through the truck wash. He had commenced by shaking his head, but was then doing both gestures together. He was apparently aware that McDonald was reversing.
41 McDonald stated that, in relation to the building which has to be passed after coming out of the truck wash, he had not turned the wheel of his vehicle before the truck wash hit the ground. He was still travelling in a straight line. He had looked forward to make sure of his position in relation to that building but, even at the time when he alighted from the vehicle, he had not turned the wheel and the vehicle was still in a direct, straight line. He was clear, or almost clear, when he heard Markadin yelling. He also stated that, because the truck wash has some 5 tonnes of equipment located up high and effectively on a pair of stilts, it only has to be nicked and it would overbalance. He agreed that it would have been a very big crash.
42 McDonald seemed to agree that, at some point when he thought he was clear of the truck wash, he turned the wheel of the truck because of the building that was ahead of him. However, his evidence in this regard was somewhat confusing and ultimately he said that he was still travelling in a straight line – see T84 and 85. However, he did agree that he had straightened the vehicle whilst in the truck wash and about half way through it. This was because he was too close to one of the rails on the floor, which he again insisted went “all the way through”. However, he insisted that, when he came “clear of the wash I was in a dead straight line” – see T86.
43 When pressed by Mr Christie concerning this (see T86), McDonald agreed that Markadin was indicating to him that he had to get over because he was too close to one side. He straightened the vehicle, this occurring about halfway through the truck wash. However, when he came out of the truck wash, he was driving in a “dead straight line”. He had been too close to one of the rails on the floor.
44 On exiting the truck wash, McDonald heard nothing until the bang of the truck wash hitting the ground. He heard no tearing of metal or scraping sounds and felt no force acting upon the truck. As he was exiting the truck wash, he was aware that he would have to start to steer around another building that was “just in front” of the truck wash – see T74.
45 McDonald agreed that Mrs Theos must have heard such a very large crash and that she had an ownership interest in the truck wash. He also agreed that, following such a crash, it was absurd that she did not come out of the building – see T89. McDonald was cross-examined about the material sent to his insurance agent and in particular to a typed letter that appeared to be from him. I shall return to this subsequently. McDonald also claimed that Markadin gave him the “thumbs up” to indicate that he had cleared the truck wash and could go, before he started yelling and before the bang as the truck wash hit the ground.
46 McDonald also agreed with Mr Christie that the truck wash, on his version, was effectively hanging in the air and the slightest little bump would bring it down – see T93. He subsequently resiled from this in part, but questioned whether or not the relevant parts of the truck wash were in good repair – see T95.
47 In re-examination, he said that the waving carried out by Markadin on this occasion was not unusual or more exaggerated than normal. The truck was fully loaded, weighing 16 tonnes. When McDonald was going through the truck wash, he was in second gear, which is his normal “take off” gear. I asked McDonald some questions concerning the material which he had sent or dictated to his insurance agent and I shall return to this subsequently.
(iii) Mr Theos
48 Mr Theos was called to give evidence on behalf of Paper Race. He said that the truck wash had been installed in 1998 when he first entered the premises and was still operational as at the time of the incident in 2013. Over those years, he always had preventative maintenance undertaken annually during the quiet holiday period of Christmas and New Year. He confirmed that the height clearance in the truck wash was 4.75 metres, which was enough for 4.6 metre trucks to go under. Mr Theos also described the anti-tilt system which operates on the machine. Mr Theos stated that, in the 15 year period between 1998 and 2013, he had never observed the truck wash to tilt out of position – see T110. He also identified the pieces of guiderail that were in position at the time of the incident. Each was about two metres long and at no time did they run the full length of the truck wash. The guiderails are supplied as part of the system – see T114. Mr Theos also stated that a particular bend or item of damage on a beam which was part of the truck wash apparent after the incident could not have been there prior to the incident or the truck wash would not have worked.
49 When the incident occurred, Mr Theos was at the electrician’s premises with a motor which he wanted checked. His wife rang him and told him that the truck wash had been destroyed. When he got to the premises, he saw the truck wash on the ground and McDonald with his truck in front of it. He enquired as to what had happened and McDonald said that he did not know. He then stated that he must have got caught on it, that he was sorry, and that it was his fault.
50 Mr Theos stated that McDonald was obviously very shocked. He said that Mr Theos would not have to worry about it, that he was insured, and would put in a claim. In relation to these particular observations, Mr Theos was not certain whether they occurred on 3 January, because he also spoke to McDonald on later occasions. Ultimately, McDonald gave him the details of his insurance agent. At no stage did McDonald suggest that it was not his fault.
51 Mr Theos said that he had measured the length of the truck wash and that it is 32 metres. The height of the guiderails is about 17-18 centimetres. He stated that he was familiar with McDonald and his semitrailer. It had been through the truck wash in the past with no previous problems. On the occasion of the incident, there was nothing different about the height or configuration of the truck wash, when compared with those previous occasions.
52 In cross-examination by Mr Campbell, Mr Theos stated that the photos indicated that the truck wash had fallen in an anticlockwise direction and had been held up to some extent by what is described as the energy chain, being a collection of hoses and the like, which connect to the structure in which the truck wash is housed. He also stated that a bolt attaching two points of the frame appeared to have snapped. He agreed that the kink or dent in a particular iron bar which forms part of the truck wash could not have been present before the machine fell, but he could not say that it represented the point of contact with the vehicle. He also stated that the truck wash was not one that he intended to replace and was “good for another 10 years” – see T131. The frame of stainless steel does not wear and the motor and gear boxes relating to the particular roller arm had twice been replaced.
(iv) Markadin
53 I should say at the outset that, whilst Markadin appeared to understand essential questions, his grasp of English was not particularly good. Questions had to be asked in a comparatively simple fashion and, as a general rule, his answers were responsive and could be understood.
54 Markadin has worked on and off at the premises for some five years, working a few hours a week as a cleaner, dealing with rubbish in addition to cleaning the windows and the like. At times he goes and helps at the truck wash, if it is busy. As has been said, manual assistance can be used in the truck wash itself, in addition to the directing of vehicles.
55 On the day of the incident, Markadin was working cleaning windows and generally. The truck wash was not working. He had seen McDonald prior to that day and knew him. At the time of the incident, Markadin was cleaning in the outside area, apparently this including the picking up of rubbish and window cleaning. He saw McDonald, but did not speak to him. Then he heard a truck coming through the truck wash. He looked, and the truck was coming very fast. Markadin called “stop, stop” but the vehicle did not stop. It was too close to one side of the truck wash and coming fast. Markadin signalled to McDonald to alter course, but “he’s come fast” – see T142. Markadin jumped. The truck hit the truck wash. Markadin repeated more than once that “I told him, ‘stop, stop’. He never stopped”. Markadin denied that he had whistled before McDonald’s truck came into the truck wash. He said he cannot whistle, demonstrating that he had false teeth.
56 In cross-examination by Mr Campbell, Markadin indicated that, when he was making the hand motions to McDonald, he had been standing in the middle of the truck wash exit. He indicated to McDonald to change course. He had to jump away from the middle of the truck wash to his right when his signals were ignored. He stated that “I see the trailer, he’s got too close and I jumped out of the way” – see T146. In relation to his indicating to McDonald to straighten up, “He never listened to me”.
57 Whilst it was a little difficult to understand him, Markadin maintained that he saw the trailer wheels go up on the guiderail – see T147. He told Mr Theos about this on the same day that the incident occurred. He also stated that, immediately prior to the incident, he was near the exit to the truck wash, but apparently looking through it. He had seen McDonald’s truck stop and McDonald get out and go to the shop. Subsequently, he heard the truck start and it was going too fast. He moved across to the middle of the exit to look. By this time the truck was in the middle of the truck wash. He denied that he had earlier seen the truck reversing or that he had whistled. He had not told McDonald to come through the truck wash. He had washed McDonald’s truck previously and knew that it could fit through the truck wash.
The documentary evidence
58 A large number of photographs were placed in evidence. I do not intend to describe what can be seen in them. They were largely not controversial and hopefully some idea of their content can be gleaned from what has been described above.
59 Various documents were also tendered. One of these, which received considerable attention, was the letter (or email) addressed to McDonald’s insurance agent, Ms Cramp, and ostensibly written by him. It is a typed description of what occurred and is in the first person. However, McDonald expressed the view that he had not typed it as, for example, he does not use full stops. He may have dictated it to Ms Cramp over the phone. However it came into existence, I accept it as an account by McDonald of what occurred and that it was given by him to Ms Cramp. It appears to be an annexure to an insurance claim form in which handwritten answers have been given by McDonald and the form signed by him. It is of interest that, in the claim form, McDonald has put the speed of the truck as being “Approx 10KM per hour”.
60 In relation to the typewritten document, McDonald agreed that essentially such details as the registration number of his prime mover and of the trailer were correct. Such details as going into the shop and being told to come back at a later time were correct. However, I asked him whether the following was also correct:
“I returned to my truck and proceeded to reverse out of the wash. One of george’s employees yelled at me and told me to drive through the wash he stood at the other end of the wash and guided me through there.”
61 It then goes on to refer to the “thumbs up”, another proposition repeated in evidence by McDonald.
62 In relation to one of Mr Theos’ employees yelling at him and telling him to drive forward, he stated that there seemed to be an inconsistency. McDonald expressed his belief that he had dictated the statement to Ms Cramp over the telephone. He then said “I think he whistled to me” along with gesturing and signalling – see T97.
63 In his evidence, including cross-examination, McDonald had not shown any doubt about the whistling and had been cross-examined about it. Whilst it may not be a decisive point, clearly there is a difference between Markadin yelling and telling McDonald to drive forward through the truck wash as opposed to whistling and gesturing. At least a question arises as to the strength and accuracy of McDonald’s powers of recollection. This is perhaps underlined by his ultimate somewhat more tentative statement, “I think he whistled to me”. Further, at T52, McDonald had indicated that Markadin said “No, no, back, come through”, but the impression given by the balance of his evidence was that Markadin’s communication with him (save for any conversation after the incident) was confined to whistling and gesturing. McDonald’s evidence generally in this regard could not be considered as satisfactory.
The submissions on behalf of the parties
64 I shall now deal with the submissions on behalf of each party in the order in which they were given. A considerable part of the submissions involved recitation of facts and I shall only revisit those parts of them briefly.
(i) The submissions on behalf of Jonmac
65 The submissions of Mr Campbell, including his helpful written submissions, could be summarised as follows.
66 Mr Campbell stated that there is no dispute but that the truck and truck wash made contact. I might say that earlier he had stated that the position of Jonmac was simply that it was not known how the accident occurred, as opposed to any theory that there was something hanging down which got entangled – see T119. The first question then to be answered is whether the resultant damage was more probably than not the result of Jonmac’s negligence. If the answer to that is decided against Jonmac, there are then further questions as to whether or not Jonmac owed a duty of care to Paper Race in relation to purely economic loss and whether Paper Race was a concurrent wrongdoer and, if so, to what extent.
67 Reference is made to the textbook, Law of Torts, by Balkin and Davis. The standard of proof required is one of actual persuasion of the facts culminating in a finding of negligence, as opposed to merely showing that it was possible that the injury was caused by a defendant’s default. The above textbook refers to the Judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. In relation to inferences, if the facts in evidence are equally consistent with an inference of negligence or one of no negligence, there is no evidence on which a verdict of negligence can be sustained – see Balkin and Davis at paragraph 8.39. In the present case, even if the evidence of Paper Race is accepted, an inference of negligence or no negligence is open.
68 Reference is also made to the Judgment of Dixon CJ in Jones v Dunkel (1959) 101 CLR 298, where it is said that an action brought in negligence must fail unless the plaintiff offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which is established to the reasonable satisfaction of a judicial mind. The court is not authorised to choose between guesses on the basis that one guess seems more likely than another. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
69 In the present case, what is asserted in relation to such things as the truck bouncing up and down and whether this caused the collision is no more than speculation and guesses. As is said in Balkin and Davis, the proven facts must give rise to an inference and not to mere conjecture. Hypotheses are not inferences. Whether the alleged bouncing up and down of the truck was the cause of the collision in the present case and represented negligence involves speculation and guesses.
70 In essence, Alpine’s case against Jonmac is totally reliant upon the principle of res ipsa loquitur. The alleged particulars do not identify any specific act or omission causative of the incident. It is submitted that McDonald’s version of events should be accepted. Such version has been substantially consistent throughout. He was not shaken under cross-examination and was frank. His evidence was inherently plausible. Being waved through the truck wash by an employee of Paper Race was consistent with the usual procedure and McDonald had been through the truck wash on many occasions prior to the incident. Mrs Theos was not frank and open. She was trying to protect the interests of Alpine and Paper Race.
71 If the evidence of McDonald is accepted, there can be no finding of negligence. His evidence was that he drove through the truck wash at slow speed with an employee of Paper Race to guide him. The dimensions of the prime mover or trailer were such as could pass through the truck wash without causing damage. There has been no expert evidence establishing negligence. There is no direct evidence that the rear wheel of the truck hit the guiderail. Even if this occurred, there is no evidence to satisfy the Court that this would have the effect of raising the loaded vehicle to the height required to contact the truck wash. In any event, the evidence of Markadin concerning the truck hitting the guiderail is highly questionable. He was reconstructing. McDonald denied the possibility of the incident happening this way, saying that the truck could not bounce. There is no expert evidence that a 16 tonne trailer could be lifted by hitting the guiderail. The unchallenged evidence of McDonald as to the damage on the roof of the trailer should be considered. There was no damage except to the centre of the roof to the rear. If a left hand wheel of the truck struck the guiderail, that would have the effect of lowering the centre of the vehicle.
72 In relation to res ipsa loquitur, reference is made to the decision of the High Court of Australia in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121. This, in essence, is to the effect that the doctrine of res ipsa loquitur has no application in a case where the immediate cause of the damage is established. Here, the immediate cause of the damage was the contact made between the truck and some part of the truck wash. The question then is whether that cause was the product of negligence on the part of the defendant and the burden of establishing the claim in negligence rests on the plaintiff throughout. In the present case, the incident was caused by the contact made between the truck and the truck wash in some unspecified way. Therefore, the doctrine of res ipsa loquitur does not apply and the burden remains on the plaintiff – see the Judgment of Kirby J in Schellenberg.
73 In the present case, there is no question but that the explanation for the incident is the contact between the truck and the truck wash. The proof of that fact excludes the operation of res ipsa loquitur. Reference is also made to the decision in Mummery v Irvings Pty Ltd (1956) 96 CLR 99. In that case, the High Court stated that, once the cause of an accident has been established and the relevant circumstances proved, there is no further room for the operation of the principle of res ipsa loquitur.
74 McDonald has given evidence that, even if the truck hit the guiderails, this could not have raised it to the extent of 15 centimetres. In addition, the location on the roof of the truck of the damage is not consistent with the hypothesis put forward on behalf of Alpine and Paper Race.
75 In relation to the liability of Jonmac to Paper Race for economic loss, reference is made to Chapter 13 of Balkin and Davis. It is said at paragraph 13.45 that:
“Liability for purely economic loss will be imposed on one who has knowledge, or the means of knowledge, that the plaintiff, as a member of a determinate class, is unable to protect himself or herself against the loss which results from the defendant’s negligent act or omission, provided that the imposition of such liability will not unduly fetter the defendant’s legitimate commercial interests.”
76 Reference is also made to the decision in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529. A defendant’s knowledge of a plaintiff’s position is one of the relevant features identified as giving rise to a duty of care – see New Zealand Forest Products Ltd v Attorney-General [1986] 1 NZLR 14. It has to be conceded that, in the present case, Jonmac, via McDonald, had some knowledge of the truck wash and it could be said to be within his knowledge that damage to it would cause loss to the operator. However, what is also to be considered is the vulnerability of those seeking damages to the particular harm – see Perre v Apand Pty Ltd (1999) 198 CLR 180. In that case, McHugh J stated that Courts must keep the contractual background in mind in determining whether a duty of care should be imposed.
77 In the present case, Paper Race is not in a position of vulnerability because all it needed to do, when payment was made for the truck wash, was issue a ticket on which were contractual terms stating that any damage caused in the use of the truck wash is to be compensated by the user. Thus, in the present case, Paper Race is not in a position of vulnerability.
78 Further, clearly in the present case there is a concurrent wrongdoer. If McDonald was waved through the truck wash by Markadin, there is a contribution that Paper Race must make to any loss suffered by Alpine. It is not believed that there is any controversy concerning that proposition.
(ii) The submissions on behalf of Paper Race
79 The submissions of Mr Stuckey on behalf of Paper Race could be summarised as follows. This summary includes both oral and helpful written submissions.
80 In relation to the decision in Schellenberg, essentially it states that the Court considers the process of inferences once the immediate cause of the accident is identified. In exercising that inferential reasoning, it becomes important whether or not the occurrence was one of such a kind that it ordinarily would not occur without negligence. If it is common understanding that the sort of thing that occurred does not normally happen unless somebody is negligent, an inference of negligence is open.
81 In the present case, the immediate cause of the accident is uncontroversial. McDonald, whilst driving his vehicle, collided with a stationary part of the truck wash and pulled it over. The question then is whether there is evidence from which it could be concluded, or whether it is something in the ordinary experience of mankind, that an accident of this kind would ordinarily not occur without negligence. Here, the evidence is clear-cut. This truck had been through the truck wash many times without incident. Driven carefully, there was sufficient clearance on all sides. Over the 15 years of the operation of the truck wash, there had only been one incident of a collision and it caused no damage. Further, it is the ordinary experience of mankind that vehicles do not collide with stationary objects in the normal course of events unless there is some want of care on the part of the person in control of the vehicle. Unless there is evidence that what has occurred is an exceptional case, the natural inference is that the collision occurred as a result of negligence.
82 It was understood by McDonald that to drive slowly was required, because the clearances were narrow – see T71. There is no possible cause of the collision on the evidence that does not involve the manner of McDonald’s driving. The truck wash was stationary and, at the time, not operational. No part of it moved. There was sufficient clearance. The truck was level. Therefore, something must have occurred to reduce the space between the truck and the truck wash, and only the truck was capable of moving. That movement was under the control of McDonald. There was sufficient clearance when the truck commenced to pass through the truck wash. Something must have occurred to change the level of clearance whilst the truck was passing through it. The collision had to relate to the driving of the truck by McDonald.
83 If that is so, issues as to whether or not Markadin beckoned McDonald through or whether McDonald decided to drive through are beside the point. McDonald understood the risks. It was quite safe for him to drive through in the way that he normally did. There was no hidden danger that anyone from Paper Race should have warned him about and no suggestion of same. There is no suggestion that anything had changed from the normal configuration of the truck wash. Regardless of whose initiative it was for McDonald to drive through the truck wash, the bottom line is that the incident must come down to the way in which he drove the truck. That is so even if the Court is unable to identify precisely how the collision occurred.
84 However, there is the question of McDonald’s evidence. There are three basic points concerning which McDonald’s evidence should be rejected. The first concerns his assertion that, at the time, there were guiderails stretching from one end of the truck wash to the other. This is contrary to the evidence of Mr Theos. McDonald concedes the shape and form of the rails, but not their length. The photographic evidence clearly shows that the rails were short and not continuous. Further, in the information relayed to the insurance agent, Ms Cramp, McDonald has stated that he was inside the painted yellow guidelines.
85 The second feature of the evidence of McDonald which should be rejected is that Mrs Theos did not appear after the accident. She is adamant that they spoke. That she would not come out to investigate what had occurred to something partly owned by her is fundamentally unlikely. It also leaves McDonald’s own conduct unexplained. Given the damage that had occurred, he had no real explanation as to why, if Mrs Theos did not come out, he did not then go back to the shop to speak with her. If he was in shock, it is then difficult to place confident reliance upon his purported recollection of events.
86 The third piece of evidence which should be rejected concerns Markadin whistling at him. Firstly, it is impossible that he could have heard such a whistle when he was over 40 metres away in the cabin of the truck which he was reversing and which had a reversing siren operating. Further, Markadin has given evidence that he cannot whistle because of his false teeth, and even took them out. Whistling is inconsistent with the report given by McDonald to his insurance agent and is inconsistent with the pleadings on his behalf in which it is stated that an employee or agent of Paper Race instructed him to cease reversing. Further, it is unlikely generally that he would have interpreted someone 40 metres away shaking his head as meaning that he should stop reversing and should drive through the truck wash.
87 These three instances should cause concern as to his reliability and caution should be exercised where McDonald’s evidence is inconsistent with that of Mrs Theos and Markadin.
88 It is also to be remembered that McDonald has conceded that Markadin gestured to him to move over whilst he was going through the truck wash and he was out of line, but not that much. He has given a variety of speeds at which he was travelling, ranging from 5-10 kph. Markadin gave evidence that the rear wheels of the trailer rose up on the guiderail at the exit end. This should be accepted and it would explain the collision. The evidence is that the guiderail was at least 17 centimetres in diameter.
89 It is extraordinary that, according to McDonald, he did not notice anything amiss until hearing shouting just before the truck wash hit the ground. Given the weight and dimensions of the truck wash, a substantial noise must have been made. Similarly, the evidence of McDonald that the truck wash was poised to tip over should be rejected. It has no basis. The fact that McDonald did not notice the havoc which he was causing is suggestive of a profound lack of attention, rather than a silent catastrophe. It should be accepted that it was McDonald’s negligent manoeuvring of the vehicle through the truck wash which caused the incident and the evidence of Mrs Theos and Markadin should be accepted.
90 The contention of Jonmac that no duty of care was owed to Paper Race in respect of its economic loss is misguided. Reference is made to Bryan v Maloney (1995) 128 ALR 163. The Court characterised pure economic loss as loss which did not arise from ordinary physical injury to a person and a property. In Bryan v Maloney, the Court looked at one key policy consideration against the recognition of a relationship of proximity where the case involves mere economic loss. It is the desire to avoid imposition of liability in an indeterminate amount for an indeterminate time and to an indeterminate class.
91 The situation in the present case is quite different. For years the truck wash had been in the possession and control of Paper Race and used by it for the purposes of its business. It also had possession of the land upon which the truck wash stood. The loss and damage suffered is in the nature of physical injury to a party’s person or property. Paper Race is not part of an indeterminate class. Its relation to the chattel (the truck wash) is very clear and well known to Jonmac. The truck wash was in the control and possession of Paper Race and used by it for commercial purposes.
92 The argument concerning vulnerability misses the point. A term in the contract, being a warning on a ticket, to the effect that users of the truck wash are liable for damage done to it would have achieved nothing. If the driver of a vehicle is determined to pass through a truck wash, warnings on a ticket will not stop this from occurring. That is apparent in the present case, where McDonald drove through the truck wash without a commercial transaction having taken place. There was no contract into which any term could be inserted. McDonald simply drove through and collided with the truck wash.
93 The cases to which reference has been made, and which are referred to in the textbook by Balkin and Davis, involve situations where a facility belonging to or under the control of another person, but essential to the plaintiff’s economic interests, is damaged by a defendant. They are not situations where the damaged asset is part of the premises leased by the plaintiff and forming part of the demise, nor where the chattel is in the possession and control of the plaintiff and used for its purposes. In the present case, the loss and damage was suffered by a party that was well obvious to McDonald would suffer loss and damage. Indeed, McDonald gave evidence that he went back and had discussions with Mr Theos in relation to his business (or loss thereof) subsequently. The truck wash was in the control and possession of Paper Race for commercial purposes. Plainly the harm was foreseeable. The person to whom the duty was owed was known to Jonmac and the nature of its vulnerability was clear to it. To suggest that something could have been done contractually to avoid vulnerability ignores the facts of the case. No contract was entered into. The requisite proximity has been established.
(iii) The submissions on behalf of Alpine
94 The submissions of Mr Christie on behalf of Alpine could be summarised as follows.
95 What has been put by Mr Stuckey on behalf of Paper Race is adopted (save for submissions in relation to pure economic loss, which are not made against Alpine).
96 Despite the submissions of Mr Campbell on behalf of Jonmac, this is not a situation of conflicting inferences of equal degrees of probability. It is not a matter of conjecture as to which one was more likely than the other. No thesis has been put on behalf of Jonmac as to any other cause of the damage to Alpine’s truck wash apart from the manner in which McDonald handled the truck. It was the only moving part at the time of the incident. However, if Markadin’s evidence is accepted, there is no need to draw inferences. Markadin is a direct eyewitness of fault. No reason as to why his evidence should not be accepted has been put. There is no basis for contending that Markadin was giving evidence otherwise than of his recollection and observations of what occurred. He may have had language difficulties, but his evidence was that he became aware of the truck moving at speed through the truck wash. It was moving to one side. By the time the truck had moved through the truck wash at speed, Markadin had got out of the way. By the time the rear wheels of the truck had made it to the point where the truck or its trailer were riding up onto the guiderail, Markadin must have moved out of the way or he would have been under the truck. His evidence was that he was in quite close proximity to the actual exit from the truck wash. Essentially, his evidence was that he moved to the side and that was where he observed the truck riding up onto the guiderail. If one side of the truck rose because of the truck going onto the guiderail, the middle of the truck must also go up, because it is not on a middle axis.
97 It is to be remembered that McDonald identified Markadin. He identified Markadin as attracting his attention with a whistle. Markadin gave evidence that he could not whistle. That was not tested in cross-examination. If Markadin’s evidence is accepted, the Court need go no further. He was a direct eyewitness of fault, namely driving at speed through a narrow space with guiderails on each side.
98 If Markadin is not accepted, the only inference available is that McDonald was negligent in his handling of the vehicle. He had very little clearance at the top. The uncontroverted evidence is that there was nothing hanging down. He had been through the truck wash many times previously without incident. There is nothing to suggest that the clearance was at anything other than its normal level.
99 In relation to the guiderails, the uncontroverted evidence is that they were 17 or 18 centimetres in diameter. That provides the obvious and only mechanism giving rise to circumstances where the height of the truck would be increased so that it struck the stationary truck wash.
100 Further, McDonald accepted that he changed course whilst the truck was inside the truck wash. It is repeated that this was the only moving part and it collided with a stationary object.
101 In relation to res ipsa loquitur, Mr Campbell has argued on behalf of Jonmac that the immediate cause of damage has been ascertained and res ipsa loquitur has no role to play. However, it is applicable in the present case, because the focus is on the cause of the contact between the truck and the truck wash. What is not known, for the purposes of a res ipsa loquitur argument, is what caused the truck to come into contact with the truck wash. It is submitted that the only explanation is that McDonald did not handle the truck properly. Hence, the truck came into contact with a stationary object.
102 Mrs Theos was an impressive witness. Her evidence concerning her observations and conversations on 3 January 2013 was not really tackled in cross-examination. The suggestion that she did not come out of her shop or office after hearing such a loud noise is inconceivable. If she did not, who contacted Mr Theos and why would she do that without coming out of the shop and without investigating what had occurred?
103 The evidence of Mr Theos was scarcely contentious. His evidence about the guiderails should be accepted and it does not reflect well on McDonald that he refused to concede, in the face of photographic evidence of the very guiderails, that they were not the rails in place at the time of the incident. Markadin’s evidence should also be accepted.
104 McDonald’s evidence should not be accepted. Some of it has an air of fantasy. That is so in relation to his evidence concerning the whistle. The same applies to Markadin shaking his head and this apparently being a signal that McDonald should not continue to reverse. The only hand gestures concerning which there is clear evidence are those of Markadin indicating to McDonald that he should stop or slow down. These were ignored. It is also absurd to suggest that Mrs Theos did not even come out of the shop where the console is. McDonald’s evidence that the guiderails ran the whole length of the truck wash (and refusing to concede that he might be wrong) is also evidence that should be rejected.
105 It is also to be noted that, in his evidence-in-chief, McDonald gave no evidence concerning the “thumbs up” which is referred to in his statement. The “thumbs up” was not part of his original evidence. It arose during cross-examination. It was never put to Markadin that he gave the “thumbs up”. In addition, McDonald refused to concede that there was any noise involved in the truck snagging the truck wash or wrenching it out of its fixings. Equally unacceptable was his evidence that the truck wash was just sitting there, hanging in the air and the slightest bump would bring it down. The evidence of Mr Theos as to the manner in which the truck wash is fixed and held in place was not challenged in cross-examination.
106 McDonald’s evidence that there was no noise until the truck wash hit the ground should not be accepted. It is fanciful.
107 Finally, it is accepted by Alpine that this is an apportionable claim. Alpine’s case is not that there was any fault on the part of Paper Race, but if some is found and liability is apportioned, Alpine seeks judgment against Paper Race for that part of the amount apportioned to it.
The reply on behalf of Jonmac
108 Mr Campbell made a brief reply on behalf of Jonmac. This could be summarised as follows.
109 McDonald, on behalf of Jonmac, is not under any obligation to provide an explanation – reference is again made to the decision in Schellenberg. There should be no reversal of the burden of proof.
110 In relation to the application of the res ipsa loquitur principle, the decision in Schellenberg does not operate in the way suggested by Mr Christie. Once the cause of the relevant event (the damage to the truck wash) is identified and it is established that the cause of this is contact between the truck and the truck wash, that removes the consideration of res ipsa loquitur. It does not remove the entitlement to draw inferences, but removes res ipsa loquitur from the mix of considerations.
Ruling
(a) Alpine v Jonmac
111 In my opinion, Alpine has discharged the burden of proof against Jonmac and is entitled to judgment. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(i) Essentially, I accept the evidence of Mrs Theos and of the witnesses called by Paper Race, namely Mr Theos and Markadin. I accept the essential portions of the evidence of Mrs Theos. She informed McDonald that the truck wash was closed. For whatever reason, and whether or not he was annoyed, he returned to the truck and drove it into the truck wash at a faster than normal speed. I accept that Mrs Theos observed this and that she then heard a loud bang. I accept that she opened the side door into the truck wash and observed the truck moving out of the exit with the truck wash machinery attached. I also accept that she went back through the shop, out the rear door and had a brief conversation with McDonald in which she enquired as to what had happened and he replied that he did not know.
I agree with the submissions of Mr Stuckey and Mr Christie to the effect that it is almost inconceivable that, given the noise that must have accompanied what occurred, Mrs Theos, who had a proprietorial interest in the truck wash and having heard the noise, did not come out to see what had happened and did not have any conversation with McDonald.
(ii) The evidence of both Mr Theos and Markadin seems to me to be equally credible. I have no reason to doubt the evidence of Mr Theos. He struck me as a reliable witness and his evidence seemed logical. His evidence concerning the manner in which the truck wash is constructed, including the clearances available and the anti-tilt system in place, was to a considerable extent unchallenged and was otherwise logical and persuasive. In particular, I accept his evidence concerning the dimensions and length of the guiderails in place at the time of the incident. I find the photographic evidence of the former guiderails to be particularly convincing and its authenticity was scarcely challenged. I accept that McDonald told Mr Theos that the incident was his fault and at no time suggested that it was not. I accept that the relevant dimensions of the truck wash had remained unchanged over the years and that McDonald had driven the truck through it in the past without there being problems.
(iii) Whilst at times he was difficult to understand, I found the evidence of Markadin to be particularly persuasive. He was performing some general cleaning duties when he observed McDonald alight from the truck at the entrance to the truck wash. He knew McDonald. He was in the general vicinity of the exit of the truck wash when he heard a truck coming through. The truck was coming at a fast rate. He moved to a position in the exit from where he could see the truck. He called to McDonald to stop and also signalled to him to alter course. I accept that he saw the wheels at the back of the truck strike the guiderail and “go up”. He then had to jump out of the way. I accept his denial of his inability to whistle and the reason therefore. I accept his evidence that he did not tell McDonald to drive his truck through the truck wash.
(iv) I prefer the evidence on behalf of Alpine, including that of the witnesses called by Paper Race, to the evidence of McDonald. I do not accept that, having been told that the truck wash was not operating, he returned to the truck, started to reverse so as to be going around the building, but was then aware of being whistled at by Markadin who, from a distance in something in the order of 40 metres and from the far end of the truck wash, shook his head, this being a signal to cease reversing. I do not accept that Markadin then gestured to McDonald to drive the truck through the truck wash. Apart from the fact that it seems to me unlikely that Markadin, a part-time cleaner (albeit with some experience with the truck wash), would take it upon himself to interfere and direct McDonald through the non-operating truck wash, I simply do not accept McDonald’s evidence in relation to the alleged whistling and gesturing. Markadin was emphatic that he could not whistle and was prepared to remove his false teeth to show that he had same and could not whistle. His evidence in relation to this inability was not challenged. Whether it be because of his false teeth or not, this inability was an unchallenged piece of evidence which I have no reason to reject.
(v) I do not accept McDonald’s version of events. As is apparent, I reject his adamant evidence that the guiderails in place as at the time of the incident were continuous, stretching from one end of the truck wash to the other. I prefer the clear evidence of Mr Theos. The photographic evidence, the authenticity of which was scarcely challenged, virtually speaks for itself. Further, in the first person statement either forwarded to Ms Cramp or dictated to her over the telephone, McDonald said that “I was inside the painted yellow guidelines…”. This casts further doubts upon the accuracy of his powers of recollection. It is not suggested by anyone who gave evidence, including McDonald, that there were painted yellow lines as opposed to guiderails.
(vi) There is then the question of the accuracy of McDonald’s evidence and powers of recollection in relation to what occurred before he drove the truck through the truck wash. His evidence of Markadin whistling at him and then, by some gestures, signalling to him to drive through the truck wash is evidence which I do not accept. Again referring to the statement to Ms Cramp, McDonald’s account as at that time (approximately June 2014) was that one of Mr Theos’ employees, whom he has identified as Markadin, yelled at him and told him to drive forward through the truck wash. There is no reference there to whistling and gesturing. As previously stated, Markadin’s evidence that he cannot whistle was not the subject of challenge. Again, significant doubts are raised as to the accuracy of McDonald’s version of events. Further, whilst McDonald made reference to Markadin waving and saying “No, no, back, come through” at T52, his later evidence essentially referred only to Markadin signalling and gesturing (apart from the whistling). There is the added improbability of a person reversing a prime mover and semitrailer, with the reversing siren added to the engine noise, being able to hear words spoken by another 40 metres away and at the end of a truck wash. Even leaving to one side Markadin’s denial that he gave any instructions to McDonald before he drove into the truck wash, the giving of oral instructions in the circumstances described and these being heard by McDonald seems to me to be a quite implausible proposition.
(vii) There is then the question of whether or not Mrs Theos left the shop and came to the scene of the incident. Of itself, this is scarcely a critical issue, but again involves the accuracy of McDonald’s evidence. I prefer the evidence of Mrs Theos. It may be that McDonald was in something of a state of shock and was not aware of her presence, but her absence is something concerning which he was adamant. I find it extremely unlikely that Mrs Theos, having heard what must have been a loud noise and one apparently involving property in which she had a proprietorial interest, did not come and see what had occurred. It would have been quite apparent that something major, involving probable damage to property in which she had a direct family interest, had occurred. Further, the proposition that she rang Mr Theos remained essentially unchallenged.
(viii) Similarly, the evidence of Mr Theos (to be found at T113) that his wife called him and told him what had happened does not seem to have been evidence that was the subject of attack. It seems to me unlikely that Mrs Theos would have rung her husband and told him what had happened if she had not even stepped outside the shop and investigated what had occurred. I prefer her evidence in relation to this issue.
I might say that I also prefer her evidence as to what occurred before the truck entered the truck wash and as to the fact that, when entering, it was moving comparatively quickly. This fits with the evidence of Markadin.
(ix) I also reject the evidence of McDonald that the truck wash was, in essence, poised to tip over. I prefer the detailed evidence of Mr Theos, who was well-familiar with the truck wash and who rejected that proposition. He gave some detailed evidence concerning the structure and mechanics of it, which I accept. It also seems highly unlikely that such a structure, designed to house prime movers and semitrailers, which would move in and out of it, would be constructed in such a way that it would easily tip over.
(x) It is to be remembered that Markadin saw the truck driven by McDonald effectively drift off course whilst coming through the truck wash. Ultimately, McDonald admitted as much – see T81. It is also to be remembered that, on his insurance claim form, McDonald initially put his speed at approximately 10 kph. Both Mrs Theos and Markadin said that he was driving too quickly. I accept that. Thus, we have a combination of the truck moving at too much speed and moving off-line. We have the evidence of the eye witness, Markadin, that McDonald ignored his signals to straighten up and that he saw the wheels of the truck “go up”. This seems to me to be a highly plausible cause of the incident.
(xi) I also have difficulty in accepting that Markadin gave to McDonald a “thumbs up” signal to indicate to him that it was safe for him to complete his exit from the truck wash. There was no mention of this in the evidence of Markadin, which I accept. Indeed, it was not even put to Markadin that this had occurred. Markadin’s evidence is that he had to jump out of the way. The whole thrust of his evidence was that the truck was coming too fast and off-line. It is to be expected that, if he had in fact given to McDonald the “thumbs up” signal, this would have been put to him. I accept the submission of Mr Christie in this regard.
(xii) In summary, I do not find McDonald to be a reliable witness. I prefer the evidence of the other three witnesses.
112 Thus, on the balance of probabilities, and bearing in mind all the evidence which I have accepted, the sequence of events seems to me to be to have been as follows. McDonald had lined up the truck to go through the truck wash. He went into the shop where he saw Mrs Theos. He was informed that the truck wash was not operating. He returned to the truck. Whether or not he was annoyed, he then drove the truck through the truck wash, presumably as a means of a shortcut, and at a speed which was too fast. I do not accept that he had engaged in any reversing manoeuvres. Whilst driving too quickly through the truck wash, the truck changed its line. He either did not see or ignored the signalling by Markadin. The guiderails were not continuous and a wheel or wheels of the truck mounted the guiderail. This elevated the height of the rear of the truck, causing the contact with the truck wash. The contact was of sufficient force to drag or jolt the truck wash out of position and it was then dragged or fell onto the concrete apron outside the exit. I accept that McDonald subsequently told Mr Theos that it was his fault. At no time did he state that it was not his fault.
113 Because of the findings set out above, there is no need for me to deal with the arguments concerning res ipsa loquitur. In addition, in relation to various key points, I am not in a position of facing competing inferences. I accept the direct evidence of the eye witnesses, Markadin and Mrs Theos. I accept that McDonald was driving too quickly through the truck wash and moved off-line, ignoring the signals from Markadin. As a result, the truck, which had been through the truck wash many times before, on this occasion and because of McDonald’s driving, struck part of the truck wash and the resultant damage occurred.
114 I accept the submission of Mr Christie that, if it did become a matter of the inference to be drawn, such inference would be that McDonald was negligent in his driving of the truck.
115 Thus, I find in favour of Alpine in its claim against Jonmac. As quantum was agreed, there is no need for me to discuss it.
Jonmac’s third part notice against Paper Race and the counterclaim thereto
116 As is doubtless apparent from the above, I do not find that there was any breach of duty to take reasonable care on the part of Paper Race in relation to the occurrence of the incident. In other words, I dismiss Jonmac’s claim against Paper Race. None of the particulars of breach of duty of care contained in paragraph 10 of the third party notice have been made out. On the evidence, there was no failure to give directions. There was no failure to ensure that the truck wash was clear of obstructions. No evidence of any such obstructions was adduced. I accept that Paper Race or its employees did not direct the truck to proceed through the truck wash. There was no failure to give any proper instructions in relation to such directing of vehicles, which, on the evidence, I am satisfied did not occur in any event. The alleged failure to provide on-site traffic management to assist the defendant has not been established. The assistance that was given was ignored. It has not been proven that there was a failure to exercise reasonable care for protection of the truck wash. As stated many times, the truck had been through the truck wash on numerous occasions previously. Jonmac has failed to establish any evidence of negligence on the part of Paper Race. I need not repeat the various conclusions at which I have arrived in relation to the action of Alpine against Jonmac. Thus, the third party notice is dismissed. Further, as I do not find that Paper Race is a concurrent wrongdoer, no order against it is required pursuant to the Wrongs Act or to the Amended Statement of Claim.
117 I turn now to the counterclaim of Paper Race against Jonmac. In my opinion, this counterclaim succeeds. Mr Campbell put forward interesting arguments concerning the duty that is owed in relation to liability for purely economic loss and as to vulnerability. In this regard, I prefer and accept the submissions of Mr Stuckey on behalf of Paper Race. What has occurred in this case is not damage suffered by some indeterminate class. I would refer, for example, to the decision in McMullan v ICI Australia Operations Pty Ltd (1997) 72 FCR 1. There is a close degree of proximity. I would also refer to what was said by Jacobs J in Caltex to the effect that, where foreseeable economic loss arises from a physical effect on the plaintiff’s property, there is no bar to recovery on the ground only that the loss is economic. I would also refer to paragraph 13.45 in Balkin and Davis as follows:
“Liability for purely economic loss will be imposed on one who has knowledge, or the means of knowledge, that the plaintiff, as a member of a determinate class, is unable to protect himself or herself against the loss which results from the defendant’s negligent act or omission, provided that the imposition of such liability will not unduly fetter the defendant’s legitimate commercial interests.”
118 Paper Race is not a member of some indeterminate class. It owns and operates the truck wash. If McDonald was not aware of the existence of Paper Race as such, he was otherwise familiar with the truck wash and its operation. He was also familiar with Mr and Mrs Theos. Even if he was not aware of their proprietorial interest, it would seem that he was aware that they operated it. In any event, it was perfectly foreseeable that, if he damaged the truck wash, the proprietors of it would suffer a loss. In short, Jonmac owed a duty of care to Paper Race. That duty of care was breached.
119 Similarly, I am not persuaded by the argument based upon vulnerability. This does not seem to me to be the type of situation which was before Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27. In that case, his Honour considered that customers who suffered losses as a result of an interruption to power supply ought to have realised the possibility of such interruption and equip themselves or taken other appropriate steps to deal with it.
120 That is not the situation in the present case. Paper Race suffered economic loss as the result of direct and negligent damage to its own property. I agree with Mr Stuckey that the nature of Paper Race’s vulnerability was clear. I also agree that the argument that something could have been done contractually by means of a clause on a ticket is an argument which, whilst imaginative, is not meritorious. Firstly, no contract was entered into in the present case. No ticket was issued. McDonald had been informed that the truck wash was not even operating. Secondly, there is nothing to suggest that a clause on a ticket would in some way have prevented McDonald, on behalf of Jonmac, causing the damage which he did. A clear duty was owed and that duty was breached.
121 In summary, Paper Race succeeds in its counterclaim against Jonmac.
Conclusion
122 Alpine succeeds in its claim against Jonmac and is entitled to damages in the agreed sum of $376,191.80. Paper Race succeeds in its counterclaim against Jonmac in the agreed sum of $56,000. Jonmac’s third party notice against Paper Race is dismissed. Insofar as Paper Race was joined as a second defendant, the action by Alpine against Paper Race is dismissed. I shall hear the parties as to the precise wording of the orders that are required, including any ancillary orders.
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