Ashby v Gillingham Nominees Pty Ltd t/as Alexander Galt and Co - [2008] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ASHBY -v- GILLINGHAM NOMINEES PTY LTD t/as Alexander Galt & Co & ANOR [2008] WADC 50

CORAM: O'BRIEN DCJ

HEARD: 19 - 22 & 25 FEBRUARY 2008

DELIVERED : 9 APRIL 2008

FILE NO/S: CIV 370 of 2006

BETWEEN: DARREN RAYNOR ASHBY
Plaintiff
AND
GILLINGHAM NOMINEES PTY LTD t/as Alexander Galt & Co
First Defendant
TREVOR PARSONS
Second Defendant

Catchwords:

Liability for personal injuries - Brake failure going down hill - Whether owner and employer liable for failure to properly maintain vehicle - Whether driver liable in contributory negligence - Turns on own facts

Legislation:

Nil

Result:

The defendants are liable in negligence
The plaintiff is not liable in contributory negligence

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos SC
First Defendant             :     Mr B Sierakowski
Second Defendant         :     Mr B Sierakowski

Solicitors:

Plaintiff:     Marks & Sands
First Defendant             :     Brian C Sierakowski
Second Defendant         :     Brian C Sierakowski

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Kondis v State Transport Authority (1984) 154 CLR 672
Pearce v Round Oak Steel Works Ltd [1969] 1 WLR 595
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

O'BRIEN DCJ:

Introduction

On 3 March 2000, Darren Raymond Ashby was involved in a serious motor vehicle accident.
He was driving an Isuzu 1400 truck loaded with dog food down Albany Highway on a section of the highway referred to as Armadale Hill.
The brakes on the truck failed about 1 kilometre or so from the intersection of Albany Highway and the South Western Highway ("the intersection").
Mr Ashby turned left into the South Western Highway. The truck travelled a distance up the highway before Mr Ashby turned right into Third Road. The truck travelled down Third Road before Mr Ashby directed the truck into the loading area of a supermarket where it collided with a wall ("the accident").
Mr Ashby has taken action against the first defendant ("Galt") and the second defendant ("Mr Parsons") claiming damages for the injuries he suffered in the accident.
The parties have agreed quantum of damages. The issue for my determination is whether the defendants are negligent.
Galt operates a hardware business in Wagin. Mr Parsons is a director of Galt and is employed by Galt.
Mr Ashby claims that Galt, as his employer, by its servants, agents and employees, owed a duty of care to Mr Ashby to ensure that the truck was in safe working order. He claims that Mr Parsons owed a duty of care to Mr Ashby to ensure that the truck was in safe working order and that Galt was vicariously liable for Mr Parson's negligence in the course of his employment with Galt.
The defendants accept that they owed the pleaded duty of care. I am not required to establish the issue of vicarious liability as that is accepted if Mr Ashby proves negligence as pleaded.
Mr Ashby particularised his claim as follows:
(a)The truck was not safe to drive in that its brakes were not in proper working order;
(b)the brakes were maladjusted which reduced the efficiency of the brakes, and caused overheating of the brake components causing brake fade, and total failure of the brakes;
(c)the truck, and in particular, the brakes, were not properly serviced and maintained;
(d)the truck was not properly inspected before the plaintiff was required/permitted to use it.
The defendants deny they breached the pleaded duty of care and plead that the accident was caused or contributed to by Mr Ashby's negligence. Mr Ashby's negligence is particularised as follows:
That he -
(a)used the brakes over a prolonged period to slow the truck whilst travelling downhill causing the brakes to overheat and fail to grip;
(b)failed to bring the truck to a stop on South West Highway when he had the opportunity to do so and to otherwise avoid the accident;
(c)turned right from South West Highway into Third Road when he knew or ought to have known that it was unsafe and dangerous to do so;
(d)failed to otherwise control the truck in a proper manner after an emergency had arisen so as to avoid the accident;
(e)failed to have any or any sufficient regard for his own safety.
The legal principles
The law relating to an employer's duty to an employee is now well settled.
An employer, in the context of this case, owes a non‑delegable duty to provide safe plant and equipment to employees and to properly service and maintain that equipment: Kondis v State Transport Authority (1984) 154 CLR 672 at 678-688.
In this case, the defendants admit that Mr Parsons, as employer, "owed a duty of care to the plaintiff to ensure that the truck was in safe working order". The defendants do not dispute that Galt was in a position analogous to that of an employer and owed the plaintiff a similar duty of care as Mr Parsons owed the plaintiff as employer.
The duty of an employer includes the duty to properly and regularly inspect the equipment against reasonably detectable risks of failure of deterioration. This is a continuing duty, demanding vigilance and attention to the needs of accident prevention: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 160-161.
Where there is a defect in equipment, even a latent one, the defendants must prove that the accident happened despite all reasonable care on their part. This means reasonable care, not only in inspection and maintenance, but reasonable care when they first bought the article. It is not sufficient for the employers to show that they had properly maintained the equipment if the ordinary maintenance of the equipment would throw no light upon the "source of the mischief": Pearce v Round Oak Steel Works Ltd[1969] 1 WLR 595 at 596 and 597.
An employer will be liable if it has itself failed to maintain and repair the equipment, or to remedy a malfunction, or it has failed to arrange for that to be done. There is a duty on the employer to take reasonable care to avoid a foreseeable risk of injury to the employee. This duty will not be discharged merely by the employment of a qualified and ostensively competent independent contractor: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550.
As to the issue of contributory negligence, the principles are not in dispute.
The defendants have the onus of proving contributory negligence.
The applicable principles are summarised by the High Court in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310‑311 as follows:
"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage: see Podrebersek v Australian Iron & Steel Pty Ltd."

The truck

History of ownership and repairs

On 14 January 2000, Mr Ashby was employed as a truck driver for Galt in Wagin.
This involved driving the truck with a load of dog food from Wagin to Canning Vale, unloading the truck, sometimes picking up another load and driving back to Wagin. The round trip was around 500 kilometres and took about three hours. He usually made two trips a week. Otherwise, he made short trips in and around the Wagin area and generally helped out in the hardware business.
The truck was a 1990 model. Mr Blair Parsons (Mr Parsons Jnr), is the son of Mr Parsons. He bought the truck in September 1995. It had then done about 110,000 kilometres. In February 1999, he sold the truck to Galt. The truck had then done about 145,000 kilometres.
Mr Parsons did about 10,000 kilometres a year until he sold the truck. Most of his trips were short. He did not service the truck every 10,000 kilometres as specified in the owner's manual service supplement ("owner's manual") as it took a year to travel that distance. He said he serviced the truck every 6 months and agreed that this would be roughly every 5,000 kilometres. The service coupons were in the owner's manual which was kept in the truck. He had the truck serviced at Marley White and Co, an authorised Isuzu dealer, in Wagin.
He estimated that in the 3 ½ years he owned the truck he used six coupons.
Mr Parsons Jnr said he had no major problems with the truck. There were only running repairs that he recalled. He did not experience any problems with the brakes.
Mr Trevor Parsons drove the truck from time to time from December to early January 1999 and considered it to be in very good condition.
He said the truck was serviced every 10,000 kilometres.
Mr Brenton Barker is Mr Ashby's father‑in‑law. He had been a director of Galt for 21 years. His duties were to look after the accounts; attend to customers and employ staff.
He had not driven the truck. He said the truck was serviced every 10‑15000 kilometres in accordance with the owner's manual.
He received all the repairs invoices and paid them. He kept the invoices from various repairs in separate files and all were produced to his solicitors. He said that if it had been necessary to service the truck every 10,000 kilometres, he would have the documents to reflect that.
Mr Ross Old, the service manager at Marley White, said that he raised the work or repair orders ("work orders") and submitted them to the mechanics, in effect, directing them what work they were to carry out.
Mr Dean Pollard, a mechanic at Marley White who performed some of the services of the truck, testified that the service coupons from the owner's manual would be stapled to the work order on completion of the job.
The work orders tendered only covered the period from June 1999 to January 2000. No completed service coupons were produced in evidence. Some of the work orders for that period are missing. No witness was able to explain why the service coupons and certain work orders were missing.
Suffice it to say, that if the truck was serviced every 10,000 kilometres, there is no documentation to support that for the 160,000 kilometre or 170,000 kilometre services and no service coupons for any 10,000 kilometre service.

The gear and braking systems

The truck was an Isuzu 1400 1990 model. There was a tipper bin on the back.
On the day of the accident the loaded truck weighed 23 ½ tonnes. There is no suggestion that the truck was overloaded.
It was equipped with 10 gears – five low gears and five high gears. These gears were used for highway driving.
Mr Old said that the truck also had a "deep reduction" gear system for paddock work. The deep reduction brakes are not relevant in this case.
The gears were operated by starting off in low one gear and progressing through to low five gear. The driver then flips a switch on the top of the gear stick to engage high one through to high five gear.
When slowing down the gears would be used in reverse order.
It is not in dispute that when descending a hill, braking should involve a combination of the brakes and shifting down of the gears. A low gear helps to retard the speed of the truck.
The engine needs to be "revved" to correct speed before it can be put into a specific gear.
The truck had six wheels and three axles. The two front wheels were on the first axle (the steering axle). There were two wheels on each side of the middle and back axles (the drive axles). Each of the rear wheels had tandem tyres. So there were 10 tyres on the truck.
The following description of the braking system is sourced from a combination of the evidence and a description prepared and agreed by counsel.
The truck had a full compressed air brake system.
There are six brake drums, one on each side of each of the three axles.
The brakes on the truck bring the truck to a halt by causing the brake shoes to come into contact with the brake drums.
The brake drums are "saucepan‑like" in shape and are fixed to the hub of the wheels by bolts.
If the brake drums stop turning, then so do wheels and vice versa.
The brake shoes have a lining made of a composite friction material. This comes into contact with the inside of the rim of the brake drum when the driver applies the brakes.
The lining on the brake shoes wears over time, increasing the gap between the brake shoes and the inside of the rim of the brake drum. The gap is referred to as "the clearance". The manufacturer specifies a clearance measurement to ensure effective operation of the brakes.
As the clearance increases due to wear of the lining, the brake shoes and the lining need to travel a greater distance in order to bring the brake shoes into contact with the brake drum. This decreases the capacity of the brake shoes to stop the brake drum, and hence the wheels of the truck, from turning.
The clearance between the brake shoes and the brake drum therefore needs to be adjusted on a regular basis by rotating the 'slack adjuster'.
The driver can use two methods to apply the brakes on the truck:
(1)By pressing the foot pedal; and
(2)By putting the park brake into position. The park brake also operates as the emergency brake.
The foot pedal is located on the floor of the driver's cab. The park brake is near the driver's hip. The driver can put the park brake into position by simply "flicking" it with his hand.
Using either of the two methods above, the driver causes either of two "braking systems" to come into operation, which in turn causes the brake shoes to come into contact with the brake drum.
These two braking systems are:
(1)The air brake system (foot pedal); and
(2)The spring brake system (park brake/emergency brake).
Pressing the foot pedal causes the air brake system to operate, whereas putting the park/emergency brake into position, or flicking the emergency brake switch, causes the spring brake system to operate.
The air brake system causes the brake shoes to come into contact with the brake drums on all six of the truck's wheels.
The term "service brake" is used when the air brake system is applied to the brakes.
The spring brake system causes the brake shoes to come into contact only with the four rear wheels on the front and rear drive axles.

Air Brake System

When the driver presses the foot pedal, the foot pedal opens a valve in a pipe.
On one side of the valve is air which is maintained at a high pressure by a compressor. The compressor is basically a pump connected to the engine. So long as the engine is "revving" high, the compressor will operate at a fast enough speed to cause the pressure on one side of the valve to be higher than on the other.
Opening the valve in the pipe by pressing the foot pedal is like turning on a tap. It causes the high‑pressure air to flow towards the brakes through the "air hoses".
When the high‑pressure air reaches the brakes, it fills a diaphragm contained within a "brake chamber".
The diaphragm is like an air bag, which expands when filled with air.
The brake chamber (also called the "brake booster", and the "brake actuator") houses two diaphragms and a piston (between the diaphragms), and when one of the diaphragms is filled with high‑pressure air, the piston moves towards the wheels of the truck.
When the piston moves, it pushes a lever which is connected to the "slack adjuster". The slack adjuster is used for adjusting the gap between the brake shoes and drums.
The lever is also connected to a "cam", which is connected to the brake shoes, and when the lever moves towards the wheels, it moves the "cam", which in turn causes the brake shoes to be applied to the brake drums.

Spring Brake System

There are powerful springs inside the brake chambers on the four rear wheels. These springs can apply the force of a one tonne weight.
The springs are compressed and held in position by a diaphragm on the opposite side to the piston as the diaphragm which fills with air and applies the air brakes.
This spring brake diaphragm is full of air when the emergency/park brakes are not being used.
When this diaphragm loses its air, the springs are released, pushing the lever, hence the brake shoes are applied to the brake drums.
This diaphragm which holds the springs back is connected to a small pipe.
When the air pressure in the small pipe drops, it releases the air in the diaphragm, which causes the springs to release, pushing the lever and applying the brakes.
The air pressure will drop in the small pipe either by the compressor failing to supply the main brake system with enough air, or brake hose failure or some other failure in the main system (being part of their "emergency" use); or alternatively, when the driver flicks the emergency/park brake in the cab.
The springs can be wound off manually in the case of emergency application (only when there is an accident) by turning a nut contained in the brake chamber using a spanner that hangs from the back of the brake chamber.
They are also put back into their compressed position by starting the engine of the truck and hence the compressor, which in turn causes the diaphragm to push the spring brakes back.
The spring brakes are only removed by turning on the engine after there is sufficient air in the main air brake system for the foot pedal brake to operate.
The two braking mechanisms rely for their effective operation on the condition of the brake linings, brake shoes and brake drum clearance.
In this case, it is not disputed that the brakes failed as the truck descended Armadale Hill. The cause of the brake failure is a disputed issue.
It is not disputed that when the clearances were measured on 17 March 2000, they exceeded the manufacturer's specifications.
Shortly put, Mr Ashby contends that the brakes were not properly adjusted. Although the defendants pleaded a general denial, their case was conducted on the basis that the clearances as measured on 17 March 2000 were caused by Mr Ashby's prolonged use of the brakes when descending Armadale Hill.

The Prepact incident

Mr Ashby described an incident on 27 January 2000 at Canning Vale when he was delivering a load of dog food to Prepact. He said the brakes were not gripping. He described the incident as follows:
"I was driving along, coming to pull into Prepact, changing gears, using brakes as a combination, and at Prepact they had changed the kerbing so the water wouldn't run down there, and I pulled in, changed to go to the lowest gear as possible because it works on a revs situation. As I went to pull in, I went to hit the brakes and they didn't grip as much as they should have so instead of turning and hoping - and I probably thought that the truck might roll over because it was on a new cambers (sic). I just kept on going and pulled onto the side kerb. It was all sandy and I got bogged."
In essence, Mr Ashby claims this incident occurred because the brakes failed to grip properly.
The evidence on the Prepact incident is relevant as to whether there was some problem with the brakes before the accident and Mr Parsons' knowledge of that and in order to rebut the defendants' claim that any defect in the brakes was caused on 3 March 2000 by Mr Ashby's prolonged use of the brakes when descending Armadale Hill.
A hired crane pulled the truck free. The tail‑shaft broke in the process. The crane hirers organised to have it repaired.
Mr Ashby said that Mr Parsons and Mr Barker asked him what had happened. He reported that the brakes needed looking at and the truck needed a good service.
He was told that they would try to get it done as soon as possible.

That night at the Sportsman’s Club Mr Ashby said he told Mr Parsons Jnr that the truck needed a good service. Mr Parsons Jnr denied this. Given that this comment was made in a casual atmosphere, it is unlikely that it would be something that Mr Parsons Jnr would be able to recall what was actually said eight years after the claimed conversation. Further, the condition of the truck was of no concern to him. In my view, nothing turns on this alleged inconsistency.
Each of Mr Parsons and Mr Barker denies that there was any report or comment about the brakes or the need for a service. Each man testified that they did not ask how the incident at Prepact occurred.
I find this curious to say the least given that Mr Ashby was then a new driver, the truck had been bogged, expense incurred to hire the crane and Mr Ashby had to travel back from Wagin the next day to deliver the load and collect the truck.
I find it more likely that some inquiry was made of Mr Ashby as to the circumstances of this incident and that Mr Ashby provided an explanation. Given the circumstances of this incident, it would be most unusual if Mr Ashby did not make at least some comment about his concerns about the brakes. I find it more probable than not that he did. Mr Parsons was then on notice that there was at least a possibility that something was wrong with the brakes.
There is no evidence other that Ms Ashby's account concerning the Prepact incident.
For present purposes, in the absence of any other evidence of how the truck became bogged, I accept Mr Ashby's account especially as it relates to the brakes not gripping.
Mr Ashby said it was two or three weeks later that he took the truck for a service to Marley White. In my view, Mr Ashby is mistaken about this. The last service which is documented and recalled by witnesses was on 5 January 2000. This predates the Prepact incident and the 200,000 kilometre service.

Evidence of the accident

Mr Ashby testified as follows.
Since 1990 Mr Ashby has held a B class driver's licence. That class licensed him to drive trucks not in excess of 14 tonnes. He was at the relevant time an experienced truck driver. This was unchallenged.
He was 30 years old at the time of the accident.
He did the dog food run about one or two times a week.
The journey involved travelling down Armadale Hill. When the accident occurred, he was familiar with the route.
He said that in the time he drove the truck sometimes the brakes would not grip and he had to use them harder than normal. He told police that the truck was serviced and well maintained because as far as he was aware that was the case.
The truck was loaded the night before 3 March 2000. At about 5.45 am Mr Ashby commenced the trip to Canning Vale.
Mr Ashby described Armadale Hill as being fairly steep for about 7 or 8 kilometres.
Just before the top of Armadale Hill he estimated he was travelling between 60 to 70 kilometres per hour.
At the top of the hill he said he reduced speed and changed gears from high one to low five. He then used the gears and the brakes to keep the revs going and the speed down. He said he was not in a hurry.
He estimated that he was going about 40 kilometres per hour down the hill. He was familiar with the signage along Armadale Hill which warned trucks to use low gear and indicated a 40 kph speed limit.
He said he passed the arrester bed. This was about 1.2 kilometres from the intersection. He was unable to say how far from the intersection he was before he experienced trouble with the brakes.
As he travelled he continued to change gears down. He said as he applied the brakes they felt a bit "spongy". By that he meant that the brakes felt as if they needed to be pressed more. They were not gripping. He said "There was nothing"..."When you've got normal brakes and you press them and you can feel them grip and they go to a certain point and you can't press them any more. These ones went past that. They were like spongy as if they needed to be pressed more."
Mr O'Callaghan is an automotive engineer called by the plaintiff. He testified:
"Any truck with a full air system, there's no spongy feel. It's the same feel right throughout the pedal. All that brings the pedal back in an air truck is the spring. There's a spring actually under the pedal, just a little spring to bring it back, and what you're pressing, you're pressing the spring, and there's a rod going through it and the rod just opens the air valve and allows the air to go to the brakes, but it's a spring and it's only pressing. There's no feel."
I mention this evidence relating to "spongy" brakes as counsel for the defendants submitted that given Mr O'Callaghan's evidence as outlined above, Mr Ashby was not telling the truth about the brakes feeling spongy. However, it seems to me that the sensation described by Mr O'Callaghan is not inconsistent with Mr Ashby's explanation of what he means by the term.
About 400 metres past the arrester bed (Mr Ashby cannot be precise as to the distance) he pulled on the handbrake and then the emergency brake. The truck did not slow down. He estimated his speed at 40 to 45 kilometres an hour.
He said he was absolutely horrified and panicked. He was worried about crashing into cars because he could see cars parked at the red stop light [at the intersection].
When he got to the intersection he mounted the kerb on the left hand side of Albany Highway as he turned the corner into South Western Highway. He did this because of the cars lined up at the intersection. There is a gravel area in this location which runs around the intersection, up into South Western Highway before narrowing into the width of a footpath. The truck travelled between an electricity box and a power pole on the verge. Both rear vision mirrors were knocked off in the process. He could not recall hitting a street sign but other evidence supports this happening.
He said that as he mounted the kerb the truck jumped out of gear. As he continued, he was unable to find a gear. As he turned onto South Western Highway he said he "found a gear", "3 or 4".
He was thinking to himself that he had to get a lot of revs and that he could not roll back.
He was looking for a place to stop. He could not see anything and was panicking about not rolling backwards.
He was trying to keep the truck moving forward. The truck was slowing down but he did not want to stall it as he had no brakes, no rear vision mirrors and would have no power to the steering.
He said he had never been up that section of South Western Highway before. That section of South Western Highway was an incline. He did not know what was over the top of the hill in front of him. He saw Third Road. There was a break in the traffic and he turned right into Third Road.
At the time he was in the right hand lane next to the median strip on South Western Highway.
He thought there might be somewhere where he could pull up. However, he saw that Third Road was a downward hill.
He said there were cars parked on both sides of the street. He was thinking he could side swipe the cars in order to slow him down but he saw people in the cars and decided against that course.
He decided to keep going and thought that there might be a spot up further where he could stop.
He went through a stop sign [at Church Street]. He was unable to turn into Prospect Road which was a right hand continuation of Third Road as the turn was too sharp.
He knocked into some trees in order to slow him down but only knocked the trees over.
He could see lots of people around.
He therefore turned left into a loading bay at a shopping centre, picked a "clear spot" and ran into the loading bay to avoid injuring anyone.
The evidence of the eyewitness, Ms Jose, confirms Mr Ashby's description of the travel on Third Road.
Mr Ashby suffered serious injuries as a result of the collision. He spent about three weeks in hospital.

Cross examination of Mr Ashby

Mr Ashby denied that he did not use the gears in combination with the brakes as he was travelling down Armadale Hill. He said he would never just use the brakes, it would be "crazy" to do so.
Mr Ashby was cross-examined on a statement which he made to police on 9 March 2000 wherein it is written:
"To try and stop, but the speed began to build. I remember looking at the speedo. It was about 65. I was in fifth gear high. I could see the traffic lights at Albany Highway and South West Highway. They were red facing me. There was traffic stopped at the lights in both lanes."
It is difficult to make sense of that passage in the absence of evidence of its context in the statement.
Mr Ashby said he could not even remember making a statement to the police but accepts that he must have. In any event, Mr Ashby said that on 9 March 2000 he was still in hospital and under the influence of morphine. He was recovering from surgery for the multiple injuries he had received in the accident. He said that the morphine affected his memory; that he cannot remember a lot of things; and "Half the time I can't remember I was there."
However, he said he would not have told police that he was in "fifth high gear" as there was no way he was in that gear which was reserved for "open road gearing". He said it was ridiculous that he descended Armadale Hill using high five gear.
He denied that he was travelling at 65 kilometres per hour when going down the hill.
The defendants rely on the above passage from Mr Ashby's statement to police as constituting an admission that Mr Ashby was travelling at 65 kph down the hill in high five gear.
On its face, the passage may suggest that. It also may suggest that he looked at the speedo and was in fifth gear high when the brakes failed. Otherwise, the preliminary words, "To try and stop" make no sense. The passage may be a general summary. However, in the absence of further evidence on the meaning of the passage and its context in the statement, I cannot be sure what it means.
I place little, if any, weight on the passage from the statement for the following reasons.
There was no evidence to contradict Mr Ashby's evidence as to his state when he made the statements. I cannot be sure the words constitute an admission that he was travelling 65 kph in high five gear, let alone at what stage of the trip down the hill. There is no context to that particular passage, Mr Ashby's denial of that speed.
Mr Ashby said he was not a mechanic and therefore he was unable to explain the exact mechanism of the operation of the brakes. He was aware that a driver can pump air out of the cylinder and therefore it is necessary to keep the revs up to keep air in the cylinder.
He said that he had no idea that on the left hand side of the turn into the intersection that there was plenty of open space to pull over and stop. He said he has no recollection of the left‑hand side of the intersection. He said at the time his main objective was not to run into anything.
He was concentrating on trying to get revs and get a gear so he would not stall and roll back.
Mr Ashby said he did not stop on South Western Highway because he did not have any brakes, there was no flat ground and he felt the truck would have rolled back. He was unable to recall what his speed was 100 metres from the intersection.
He said he had no idea of his speed on South Western Highway but he was not going fast. It was a bit faster than crawling which he estimated at 20 kilometres per hour.
He disagreed that when he entered South Western Highway the truck had virtually stopped.
He said he was trying to get it into gear so it would not roll back. He believed if he had stopped the truck it would have rolled backwards.
Eventually he found low three or low four gear and this was enough to get him up the hill.
He does not accept that he could have turned into a street on the left‑hand side of South Western Highway. He said he did not see Saw Road. He did not know the topography of that location. He was keeping a watch out for traffic. As far as he was concerned there was no street on the left‑hand side. The terrain on the left hand side was hilly.
On South Western Highway he was travelling in the right‑hand lane next to the median strip. He said that the South Western Highway levelled off as he approached Third Road. He said he would not have stopped because he had not been there before and he was just looking to turn off South Western Highway. He thought it would be more dangerous if he did stop. He had no idea of the speed he was travelling when he turned into Third Road.
He agreed that he might have pumped the footbrake after the brakes became spongy.
He agreed that he pumped the footbrake in combination with the gear changes from five low to four low but "there was nothing".
He said he knew that if he continually pumped the brakes going downhill it could cause brake failure. He said the truck would not let him change gears. He denied he was going too fast and said the gears would not let him go too fast. He denied he was travelling too fast too early and that he could not get the truck into low gear. He denied that when he commenced his descent on Armadale Hill he was travelling more than 70 kilometres per hour.
He said that in the week leading up to the accident he could not recall if he mentioned any problems with the brakes.
In re-examination he said he was not driving in high five down Armadale Hill as that gear is reserved for the open road. He would never do that as it would be looking for trouble.

Mr Ashby's credibility

The credibility of Mr Ashby is a critical issue in the determination of this case.
In essence, the defendants allege that Mr Ashby has been untruthful about a number of matters and that this impacts generally on his credit as to the circumstances surrounding the accident, particularly in relation to his manner of driving down Armadale Hill.
The defendants point to a number of matters as impacting on the credibility of Mr Ashby. They include the following:
Mr Trevor Parsons testified that for the first two weeks of his employment Mr Ashby was assigned a "senior driver" to show him the route from Wagin to Prepact and back; how to negotiate Armadale Hill; and the unloading procedure at Prepact. Mr Barker testified that initially Mr Ashby was provided with a driver to show him the route. It would appear that Mr Barker had no personal knowledge of whether a driver was provided to assist Mr Ashby but was relying on the general practice at Galt.
On the other hand Mr Ashby testified that he did not get such an induction. He was given a street directory and some directions and that was it.
It is difficult to resolve this issue in the absence of evidence from the driver named by Mr Parsons who provided the initial supervision. The Prepact incident occurred on 27 January 2000, less than two weeks after Mr Ashby commenced work and on that occasion he was not accompanied by another driver.
I cannot resolve this conflict in the evidence.
Mr Ashby testified that he was never given the truck's owner manual. Four other witnesses testified that the owner's manual was in the glove box. That may well have been the case. That is a different scenario from someone actually handing the owner's manual to Mr Ashby.
The defendants claim that Mr Ashby’s testimony that the job at Galt was not a full‑time position and was just a fill in job before he and his wife went to South Australia to run an olive orchard was false. In my view, the evidence of Mr Parsons and Mr Barker does not contradict Mr Ashby's evidence on this point. Mr Ashby's evidence is, in effect, that he worked full‑time. Whether it was a fill in job or he intended to stay employed by Galt for a longer period of time is irrelevant. Mr Parsons and Mr Barker were not even asked questions about Mr Ashby's intentions as to how long he would stay in the job.
The defendant's counsel submitted that Mr Ashby's evidence that he was not the only driver of the truck at the relevant time was contradicted by Mr Trevor Parsons and Mr Brent Barker. Mr Barker gives no evidence about this issue. There does not appear to be any evidence from Mr Parsons on point. In fact, Mr Parsons testified that he drove the truck himself in December 1999 and January 2000.
The defendants also rely on what they claim to be Mr Ashby's untruthfulness concerning a conversation he had with Mr Parsons and Mr Barker when he was employed. The gist of the evidence of Mr Parsons and Mr Barker is that they made it clear to Mr Ashby that it was his responsibility to ensure the truck was properly maintained. Mr Ashby was to report any required repairs or defects and/or take the truck to Marley White for service. Mr Ashby denies this conversation took place. In my view, in all likelihood, Mr Parsons and Mr Barker did convey this to Mr Ashby. However, it would appear that each of Mr Parsons and Mr Barker were contributing to the conversation. Understandably, after eight years there is no evidence of who said what. It may be that Mr Ashby is lying about the conversation or it may be that it has simply slipped his mind after the passage of eight years. I cannot resolve this conflict.
The defendants' counsel submitted that I should regard with scepticism, if not outright reject, Mr Ashby's evidence that he could not remember what was in his police statement because he was on morphine at the time and was in hospital. It is undisputed that Mr Ashby suffered very serious injuries in the accident and was in hospital for three weeks. In those circumstances, it is entirely understandable if he could not recall what was in his police statement in any detail. This does not, in my view, impact on his credibility.
The combination of the above evidence does not cause me to doubt Mr Ashby's general credibility.

Victoria Anne Wakeman

Ms Wakeman was travelling along Albany Highway around the same time as Mr Ashby. She was on her way to work at the shopping centre. She turned left into South Western highway and saw the truck about 100 metres in front of her. She had not seen it on Albany Highway. At this stage she was about 300 to 400 metres before Third Road.
She was travelling in the left‑hand kerb side lane behind the truck.
The truck was going about 30 to 40 kilometres an hour.
She was travelling at about 50 kilometres an hour. She noticed some fluid leaking from underneath the truck and could see the wet trail on the road. She also saw a bit of metal hanging down but could not identify what it was.
About 50 metres before Third Road she noticed the right‑hand indicator on and moved into the right‑hand lane next to the median strip, following the truck. She said the truck did not have to stop for any oncoming traffic.
She said that South Western Highway is an incline up to around Third Road. She said that Third Road is on the peak of the hill on South Western Highway. It levels out as far as her eye could see. This was clearly apparent to her.
She said that there were no other vehicles parked on South Western Highway and there was a clear passage.
She said the right hand turn into Third Road was a 90 degree angle but not a sharp 90 degree. She said that there was room for parking on the left of the turn. Third Road runs downhill from South Western Highway.
Ms Wakeman followed the truck into Third Road.
In Third Road, the truck built up speed, went through a stop sign, hit the kerb and tree branches. She could tell that the truck was going to crash, which it did.
Under cross‑examination she estimated the speed of the truck as it turned into Third Road at about 10 to 15 kilometres an hour and then the truck then built up speed.
She knew that there was a road off the left of South Western Highway called Saw Road. Further, once past Third Road on South Western Highway there are further streets off to the left.
She agreed under cross‑examination that all driveways off the left of South Western Highway are "all basically uphill".
Ms Wakeman is very familiar with that particular route and had travelled it every day since 1998.

Lambertus John Heerema

On 3 March 2000, Mr Heerema was doing some repair work on a house at number 32 South Western Highway. He said this was about three or four doors up from the intersection on the right hand side of the highway looking towards the intersection.
He heard a loud bang coming from the highway. He walked down the driveway towards the highway to the front of the house for about 2 or 3 metres.
There is a big gravel area on the intersection the driveway ran into that area.
He said the gravel area was about 10 metres wide and extended 20 to 30 metres up South Western Highway before narrowing to a "narrow footpath".
He could see that a truck had come off the gravel and across the highway into the lane which he described as the centre lane.
The truck was about 30 to 50 metres away from him when he first saw it.
He noticed that a sign had been run over and oil was pouring out the side of the truck. He also noticed a galvanized pipe hanging out a metre or so.
He said it was hard to describe the speed of the truck but said it was "a good running pace". About three or four lengths past him the truck slowed down to a "walking pace".
He said the truck slowed down and the driver appeared to be trying to find a low gear in order to get up the hill. He said the gears were grinding. He said the driver then found a low gear and accelerated up the hill. He had actually driven a similar Isuzu truck.
He said the truck then went into the left hand lane and continued up the hill in low gear.
He did not see any parked vehicles in the left hand lane on South Western Highway.
Saw Street which runs off the left of South Western Highway was about 50 to 80 metres from where he was standing.
He said he was concerned about the oil spillage so he went down to the lights and guided traffic around it.
About half an hour later once the traffic was under control he said he followed the oil trail up the hill to where the highway levelled out before Third Road.
He said the oil trail went up to about 20 to 30 metres from Third Road and then across the left-hand lane into Third Road.
He did not actually see the truck move from the right-hand lane.
Under cross‑examination Mr Heerema said that he heard the truck revving and changing gears. The gears were grinding as if to change into a low gear. He said from his experience that a driver needs to rev the engine to change gears. He heard the crunch of the gears and the revving of the engine at the same time.
He said that the driver missed a few gears and then must have found a gear which was very low as he accelerated up the hill.
He said that Saw Road is a very steep hill after a small dip just after the corner is turned.
He said that South Western Highway is an "average hill" from the intersection and levels off at Third Road which he described as a "table top".

George Philip Mostert

Mr Mostert was also working on the house at 32 South Western Highway at the time of the accident.
His observation point was from the front room of the house, looking through the window.
He heard a loud bang and saw the truck hit the sign post on the corner of the intersection. The gravel area there measured about 10 metres by 30 or 40 metres. The truck was about 100 metres away at the time.
He said the truck left the kerb and veered into the right hand lane and stayed there until it was approximately in front of the house. He said it then slowed "almost slower than walking pace, to a snail's pace." He said from there the driver reselected, crunched the truck into gear, revved it and got it in motion up the hill again towards the crest of the hill.
He described the truck as continuing "with heavy acceleration" heading up the hill and changing through various gears. He was of the view that four or five gears were engaged.
He estimated the speed of the truck accelerated reached a minimum of 30 kph an hour or above. Under cross‑examination Mr Mostert said that he could tell from the tone of the gears that the truck was labouring up the hill.
It disappeared from his sight about 200 or 300 metres up the hill.
Mr Mostert then assisted in the clean up of the oil spill.
Mr Mostert is familiar with the area and testified that South Western Highway up near Third Road plateaus out. He said there is "an incline from South Western Highway to approximately around the corner and it veers to the left and then plateaus out."
Under cross‑examination Mr Mostert was referred to photograph no 19 (Exhibit 1) and testified that South Western Highway goes downhill after Third Road. He agreed that South Western Highway gradually plateaus out, at Third Road, and then goes down hill.
The evidence of Mr Heerema and Mr Mostert supports Mr Ashby's account that the truck had jumped out of gear and he was trying to find a gear, he then found a gear, tried to keep the revs up; and continued up the hill. I find that he accelerated up the hill but this was necessary to engage the gear to prevent the truck from stalling.
The evidence of Mr Heerema and Mr Mostert also supports Mr Ashby's account of how the truck proceeded up South Western Highway. The only discrepancy relates to the statements and description of its speed as it passed number 32. However all the evidence supports a finding that the truck was not travelling very fast.
I accept Mr Ashby's account that whatever the anticipated speed of the truck, his fear was that if it stalled, it would roll back down South Western Highway.

EXPERT EVIDENCE

The expert evidence is primarily relevant to the cause of the brake failure. The essential point of difference is this. The plaintiff's case is that the brakes were maladjusted. The defendants claim that the brakes failed because Mr Ashby used the brakes over a prolonged period to slow the truck whilst travelling down hill causing the brakes to overheat and fail to stop.

Sergeant Darren Keith Harston

The plaintiff called Officer Harston who is a sergeant of police and a qualified mechanic fitter and vehicle examiner. He has 9 years experience in the police force examining vehicles involved in serious or fatal crashes. His experience includes the examination of every type of vehicle.
He was present as the supervising examiner when Officer Reynolds examined the truck on 6 March 2000. He took notes of the examination. He prepared a preliminary report.
The report concludes that the "brakes were maladjusted, the right forward drive adjustment is in excess of the rated travel for the service brake booster. The other right side were at the limit of adjustment" (Exhibit 2).
The report states that:
"The adjustment of the brakes on the right side of the truck would have reduced the efficiency of the brakes, this would have increased braking distances and caused the left side brakes to have to perform more of the braking effort. With constant application this could cause overheating of the brake components causing the brakes to fade."
The brake liners were in serviceable condition.
The adjustments on the brakes meant that they would only be operating at 10 per cent of their maximum capabilities.
In his view, the driver may not have been aware of the condition of the adjustment of the brakes. He was of the view that the brakes should not reach the point they were at if proper maintenance is conducted.
If there is constant application and removal of pressure on the brakes, that can lead to overheating and in turn brake failure. The use of gears can alleviate this.
Other causes of brake failure include over loading a vehicle beyond its capabilities; the vehicle travelling too fast; or constant application of brakes because it causes overheating.
He said that if a vehicle was travelling downhill too fast or is over loaded this could lead to excess load on the brakes and causes heat generation on the braking system.
If travelling uphill with no brakes, it is possible to push the clutch in and if it is uphill sufficiently the vehicle will roll to a stop. However, to stop it going backwards again a driver could change down gears and stall the engine and hopefully there would be sufficient compression in the engine not to force the engine to turn over in low gear.
If the braking system is not performing to its capacity it puts additional load on the remaining braking system. With air brakes, this does not affect the way the brake pedal feels underfoot unlike a hydraulic system in a car, where if the brakes are out of adjustment, the pedal will travel further.

Senior Constable Brian Reynolds

The defendants called Officer Reynolds, who, together with Mr Wells did the physical examination on behalf of the police on 6 March 2000.
He said that Officer Harston was the note taker and was responsible for writing the report. However, a comprehensive report was not written. He did not have access to Officer Harston's notes and was relying on the preliminary report for his memory of the examination. In general, he was unable to recall anything other than what his usual practice was at the time.
He was unable to recall if he did anything to the front boosters (chambers).
In order check the brakes he said he would disconnect the compressed air supply line and use an external source of compressed air to check the push rod on the brake boosters.
He checked each of the six boosters.
He checked the push rod travel with an ordinary ruler. He measured how far out the rod sticks out from the booster. He then turned on the air and applied the brakes and measured the distance of the push rod.
The only thing he noted about the brakes was that the right front drive booster level exceeded the manufacturer's specifications. He was unable to say what the manufacturer's specifications were.
He said that the remaining five boosters were within limits and were operating satisfactorily but the right forward drive booster was at its limit of adjustment.
He was unable to calculate the extent of loss of efficiency of the brakes, as he did not have relevant "figures". However, he then went on to say that if five out of six boosters were operating satisfactorily "If there were 100 per cent failure on one booster and then you said that mathematically there would be 83 per cent braking for the rest of the boosters". He was not asked to explain the basis of this calculation. In cross-examination he agreed that if the brake that was not working properly was a rear drive brake then that percentage would be "thrown out" because the rear brakes take most of the braking load.
Officer Reynolds said he does not remember measuring the clearances but that information would be in Officer Harston's notes. He said that it was not his normal practice to do that.
Officer Reynolds testified that "brake fade" can occur where a driver is riding his brakes downhill without changing into a lower gear and relying on his brakes to slow him down. Excessive use of brakes can cause friction and heat build‑up. Further, if one brake is not operating effectively, the braking load is transferred to other brakes. He said that a brake fade could occur coming down Armadale Hill if the brakes were applied too late. However, the heat build‑up which causes brake fade can dissipate relatively quickly.
Answering one of my questions, Mr Reynolds said that it would be possible to check for brake fade if the truck could be driven and checked over a pit or mobile inspection trailer. However, in this case that was not done. He went on to say that "in extreme cases" the linings will be blackened with brake fade. He gave an example of a truck coming down Greenmount Hill. He said:
"It was an eight-wheeler towing a two-axle pig trailer, so that's 12 wheels on the ground and only two of those brakes were working. That had brake fade, but even then the brakes weren't blackened. That had a crash down at the bottom of Greenmount hill."
He said it is not possible to tell if there has been brake fade unless there is a degree of blackening on the linings.

Dean Pollard

Mr Pollard is a qualified mechanic with a certificate in mechanical studies which he obtained in 1991. He worked for Marley White at the relevant time. The defendants called him as a witness.
Mr Pollard serviced the truck when Blair Parsons owned it and continued to do so after Galt bought the truck.
He said the practice at the time when a 10,000 kilometre service was required was to conduct the service in accordance with the service coupon in the owner's manual and then staple the coupon to the work order. The labour record on the back of the work order was not necessarily filled in. It depended on the individual mechanic. It was never filled in to reflect what was on the service coupon.
Mr Pollard was referred to the repair orders from 15 June 1999 to 5 January 2000.
The service which was conducted when the truck had travelled 164,126 kilometres was specifically conducted to adjust the brakes. It was not the usual 10,000 kilometre service. This service took about 2 ¾ hours.
He said he adjusted the brakes in accordance with the owner's manual. The owner's manual tendered does not make any mention of the specific adjustments required. Later, Mr Pollard said that he adjusted the brakes in accordance with the "work shop manual". That manual was not in evidence. No elaboration was sought by either counsel. However, given that there is no mention of the specific adjustments required in the owner's manual, there must have been some other manual, presumably the "workshop manual" referred to by Mr Pollard which details the manufacturer's specifications.
Mr Pollard testified that in order to adjust the front and rear brakes the wheels are jacked up and the "S‑cam" is adjusted. This forces the inside of the brake lining against the brake drum until it can go no further and then it is backed off half a turn.
He also checked for air leaks but did not find any. There were no other problems.
He said the truck only came in for general servicing every 10,000 kilometres unless there was a problem with the brakes.
He was unable to recall any such services.
The service performed on 25 September 1999 was the specified 180,000 kilometre service. The work order specified, "change all filters and check front wheel bearings for lube" and "check air-conditioning system operation" and "check out idler bearing".
He said he carried out the service as required on the service coupon in the owner's manual.
On this occasion he adjusted and checked the brakes as per the coupon specifications. Again the owner's manual makes no mention of the specifications. I assume Mr Pollard is simply referring to the specifications to adjust the brakes as detailed in "the workshop manual".
He said he checked for wear on the brakes, the materials left on the linings, the air system and performed any necessary adjustment. He did not note any problems with the brakes.
He said the brakes are adjusted every 10,000 kilometre service. The owner's manual confirms this.
He and an apprentice, whose work he supervised, performed the work. He did not say whether he was the one who adjusted the brakes. There is no evidence as to who did what work for this service.
The 190,000 kilometre service was performed on 11 November 1999. The work order specified "carry out a 190,000 km service", "weigh vehicle and measure up for licence". Mr Pollard was not involved in that service. There was no evidence about this service.
Mr Pollard conducted the 200,000 kilometre service on 5 January 2000 and completed the service coupon.
He has no particular recollection of performing the services and relies on the documentation to give his evidence. He was not referred to the service coupon for the 200,000 kilometres service nor the maintenance schedule in the owner's manual.
The service coupon for the 200,000 kilometres service includes the following requirements in connection with the brakes:
"Replace Brake Fluid
Replace Brake Hydra Booster Fluid
Check Brake Pedal for correct free play
Check and Adjust Brakes
Check Park Brakes Operation Mounting and Adjustment
Check all Brake Pipes and Hoses for loose connections and damage
Check Full Air Brake Chamber, Rod Stroke and Brake Valve Function"
The maintenance schedule in the owner's manual directs the service person to "inspect, clean, correct, replace or adjust, if necessary" the following items:
"Clutch Pedal for correct free play
Clutch Operation
Clutch Fluid
Brake Fluid
Brake Hydra booster fluid (NQR)
Brake pedal free play and travel
Brake linings/drums, pads/discs and s-cams for wear and damage
Check and adjust brakes
Park brake operation/adjustment and mounting
Check all brake pipes and hoses for loose connections and damage
Full air brake chamber, rod/and brake valve function
Full air brake hoses inspect for deterioration"
The maintenance schedule also directs that the "brake hydra booster fluid (NQR only)" be replaced and that the "full air brake hoses" be inspected and retightened to the specified torque.
No witness was asked about the maintenance schedule.
Mr Pollard said that he adjusted the brakes in accordance with the "work shop manual". Mr Pollard testified that the workshop manual "says how to adjust the brakes on that truck" and generally explains how to effect specific repairs on the truck. He obviously was not referring to the owner's manual nor in particular to the maintenance schedule. The work shop manual was not in evidence.
There was no evidence as to the "manufacturer's specifications" in relation to brake clearances other than from Mr O'Callaghan. His evidence on the point was not challenged.
Mr Pollard testified that he takes pride in his work. Mr Old regarded his work as a mechanic highly. There is no suggestion that he did not adjust the brakes at the 200,000 kilometres service on 5 January 2000. Given that it was a requirement to adjust the brakes at every 10,000 kilometres service and Mr Pollard's evidence that he did adjust the brakes on 5 January 2000, I find that he did so.
Mr Pollard said that he checked each brake and did not find anything wrong with the brakes.
Under cross‑examination, Mr Pollard testified that the wheels of the truck need to be off the ground to adjust the brakes.
The lining of the brakes can be checked through inspection holes on a backing plate. The backing plate stops dirt and other material getting into the braking system.
He said that even 1 millimetre of wear can be "a big thing" on a truck.
He said that if the brakes on the truck are checked and adjusted then it would depend on how the truck was driven as to whether 8,000 kilometres later they would be outside the manufacturer's specifications.
Mr Pollard was referred to the measurements made by Mr O'Callaghan (see below). He said that he would be unable to tell how much "extreme driving" would be needed to result in the difference between the measured clearances and the manufacturer's specifications. It would depend on how the brakes and gears were used. For example, applying the brakes going down hill instead of using the exhaust brake or "going down in gears" would wear the brakes "higher than it should" and that would affect the settings. He agreed that it would require some extraordinary driving conditions for the brakes to be significantly outside the specifications of the manufacturer 8,000 kilometres later.

Michael O'Callaghan

Mr O'Callaghan is an automotive engineer, qualified mechanic and loss assessor. He was engaged by CGU Insurance to investigate the accident. The plaintiff called him as a witness.
Mr O'Callaghan inspected the truck on 17 March 2000 at the Jandakot Truck repairs. He prepared two reports which were tendered in evidence one dated 15 May 2000, addressed to the insurance company, and the other dated 25 May 2007, addressed to the plaintiff's solicitors.
He reported that someone had disconnected the air pressure hoses to the brake chambers. Officer Reynolds said he did this.
Mr O'Callaghan also said that on the rear wheels someone had "slacked off the brake shoes from the brake drums" and this made it impossible to establish the operating clearance of the brake shoes prior to the accident.

South Western Highway is an incline at least up to Third Road. Mr Ashby's evidence was that he was fearful of the truck rolling back if it stalled or otherwise stopped. In effect, his evidence was that it was dangerous to stop the truck on South Western Highway when he had no brakes, no rear vision mirrors which had been knocked off and no power steering if the truck stalled or stopped. In the circumstances, his actions in trying to re-engage the gears and keep the truck moving was the only sensible thing to do. This claimed head of contributory negligence is not made out.

(c) Mr Ashby turned right from South West Highway into Third Road when he knew or ought to have known that it was unsafe and dangerous to do so;

Mr Ashby was unfamiliar with the portion of South Western Highway leading from the intersection towards Third Road. He said he could not turn left as all he could see was the land steeply rising from South Western Highway. The other evidence on the point supports this. He said he did not notice Saw Road. Even if he had seen Saw Road, that road went uphill from South Western Highway and in the circumstances, would not have been a prudent turn.
He could see the crest of the hill adjacent to Third Road but said that he had no idea what lay beyond. He feared that the highway would descend again. (Mr Morstet's evidence was that the highway did in fact descend after levelling out at Third Road). Mr Ashby could see no way out of his predicament other than to turn into Third Road.
On Mr Ashby's evidence, when exercising his judgment and making decisions as to where to stop, he took into account his own safety and safety of others.
There is no doubt that he was in a difficult and frightening situation. In the urgency of the situation, it is my view that Mr Ashby took all reasonable steps to avoid injury to himself and others by turning into Third Road.

(d) Mr Ashby failed to otherwise control the truck in a proper manner after an emergency had arisen so as to avoid the accident;

Counsel for the defendants did not elaborate on this claim in his closing submissions. I therefore assume that this is a "catch all" pleading.
There is no evidence as to what otherwise Mr Ashby could have done to control the truck after the emergency arose (presumably after he became aware that the brakes had failed). Nothing by way of an alternative scenario was put to him in cross‑examination other than the claim that he was in five high gear at the top of Armadale Hill, pumped the brakes on the way down and that he could have stopped the truck on South Western Highway safely.

(e) Mr Ashby failed to have any or any sufficient regard for his own safety.

This head of claimed contributory negligence is not proved. Mr Ashby was doing his utmost to avoid injury to himself and other road users and pedestrians. There is no direct evidence to the contrary.

Conclusion

It is more likely than not that the brakes were not properly adjusted on 5 January 2000 when the truck was serviced.
Mr Parsons was aware at least by 27 January 2000 that there was something amiss with the brakes. He failed to investigate, inspect or take action to remedy any defect.
The maladjustment of the brakes caused the brake failure on 3 March 2000.
I find that the defendants breached their non‑delegable duty to provide a truck which was safe to drive in that the brakes were not in proper working order.
Mr Ashby did not contribute to the accident by the way he drove the truck.