BA & CA Owens Pty Ltd v Thomson - [2004] WADC 105

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BA & CA OWENS PTY LTD -v- THOMSON & ANOR [2004] WADC 105

CORAM: CHANEY DCJ

HEARD: 10-12 MAY 2004

DELIVERED : 26 MAY 2004

FILE NO/S: CIV 1574 of 2002

BETWEEN: BA & CA OWENS PTY LTD
Plaintiff
AND
NEVILLE GEORGE THOMSON
LYNETTE BERYL THOMSON
Defendants

Catchwords:

Contract - Cartage of sawdust - Quantity carted - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff with interest

Representation:

Counsel:

Plaintiff: Mr D F Van Zalm
Defendants: Mr J McGrath

Solicitors:

Plaintiff: Howard I Evans
Defendants: Ball & Co

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

Nil

Case(s) also cited:

Nil

CHANEY DCJ: The plaintiff sues on a contract for the removal of mill waste and sawdust from a mill site formerly operated by the defendants. The contract arose from a combination of discussions and exchange of correspondence between the representatives of each of the parties. The parties pleaded the applicable contract in slightly different ways, but there was no issue as to the substance of it. Essentially, the contract was for the removal of mill residue and sawdust from the mill at a price of $3.20 per cubic metre for the sawdust component, and $9.50 per tonne to stack, load and remove timber waste.
There is no issue between the parties concerning the stacking, loading and removal of timber waste, but there is an issue as to the quantity of sawdust removed from site.
The work was carried out between 2 February 2002 and 13 March 2002. About 3 weeks into the job, the plaintiff sent an interim invoice to the defendant for $41,000. According to Mr Barry Owens, a principal of the plaintiff, he told Mr Thomson that he only expected payment of half of that amount immediately, with the balance when the job was completed. $20,000 was subsequently paid.
At the completion of the job the plaintiff sent a final invoice to the defendant. The invoice claimed payment for 32,384 cubic metres of sawdust, and 613 tonnes of logs and mill waste. An extra $1,300 was claimed in relation to an "extra request by DOLA to spread sawdust over site as compost". A credit was then given for the $20,000 received, the resulting balance claimed being $90,445.80.
In their defence, the defendants plead that the plaintiff was entitled to be renumerated for the remainder of no more than 10,500 cubic metres of sawdust. The basis for that plea was said to be that there was only that amount of sawdust on the site to move. The claim for 613 tonnes of mill waste was not disputed, nor was the claim for the $1,300 charged in relation to the spreading of sawdust. The defendant's calculations based on those contentions resulted in an acceptance of liability for a sum not exceeding $20,417, taking account of the $20,000 already paid. That amount was ultimately paid by the defendants. The plaintiff's claim is therefore, for $70,028.80 plus interest.
It can be seen from that summary of the pleadings that the single issue for determination in the trial is the quantity of sawdust removed from the site.
The plaintiff based its claim on two alternative approaches. The first was a calculation based upon records as to the number of vehicle trips undertaken by the plaintiff in the removal of the sawdust and other materials. The evidence establishes that, in order to perform the contract, the plaintiff hired two trailers. The trailers were of 22 cubic metre and 25 cubic metre capacity respectively. They were used by the plaintiff on this job and for no other purpose. Four truck drivers were used during the course of the work. Three of them gave evidence. They were required to maintain a log book which recorded the date, their start and finish times, the time taken for meals, and the number of vehicle trips made on each day.
Each of the three drivers gave evidence that he would mark the log book, or in the case of Mr Armstrong, a small diary which he carried with him as he waited each time his truck was loaded. The log books show that the number of trips per day varied, with the greatest number being 40 in an 11½ hour day. It was suggested to some of the drivers in cross‑examination, that it would not have been possible to complete that number of trips that they had recorded on particular days within the time identified in the log books. Mr Trenaman, one of the drivers, gave evidence under cross-examination that the round trip would take approximately 15 minutes. Evidence differed as to the distance between the mill and Mr Armstrong's farm where the waste was dropped. Mr Armstrong, who was also one of the drivers working for the plaintiff on this job, suggested that his farm was only about one kilometre away, and the furtherest distance at which loads were dumped would have been about two kilometres away. Mr Trenaman said that the round trip might have been as much as seven kilometres to the most distant location at which sawdust was dropped.
Having considered its consistency with the video evidence which showed that the loading and unloading of trucks took only a matter of a few minutes, I am satisfied that the number of trips recorded in the log books were capable of being undertaken within the times noted in those books.
The evidence of each of the drivers was that the trucks were full for each load. There was evidence that at least initially in the job, there were complaints of spillage from the trailers by the local authority. The evidence was that thereafter, the excavator was used to push down the loads within the trailer so as to avoid spillage. All drivers asserted however, that the trailers were loaded to capacity on each load.
There was nothing in the way that any of the witnesses called by the plaintiff gave their evidence, or the way they responded to questions in cross‑examination which causes me to reject the evidence which they have given on the number of trips undertaken by them, and the size of the loads that they conveyed. Accordingly, I accept that evidence.
The second basis upon which the plaintiff sought to establish the quantity of sawdust removed was through a report prepared by Mr John Towie, a surveyor. Mr Towie undertook a site survey on 21 April 2002 of the mill site, but concluded that it was not possible to determine from a survey of the mill site how much material had been removed from it. Accordingly, he undertook a further survey of the various areas at the Armstrong farm where sawdust had been deposited. He identified eight different sites where that had occurred on the Armstrong farm. These ranged from a shale pit where a substantial amount of sawdust had been dumped to paddocks where loads had been dumped but subsequently spread. A series of aerial photographs show the areas which he endeavoured to assess. He was able to ascertain a reasonable approximation of the amount of material dropped into the shale pit, but then conducted an experiment to determine the extent to which the sawdust may have compacted when it was dumped and subjected to compression from its own weight, and from rain fall. By applying the result of that test to the measured volume of material in the shale pit he estimated its volume when transported. He conducted this test by digging a hole and depositing the contents into a container of known volume. He then measured the volume of the hole which was less than the volume of the container into which the sawdust was deposited, and thereby assessed what he termed "an expansion factor". He repeated that test a second time digging a hole close to the first hole.
In relation to areas where the sawdust had been dumped in rows by the trucks as they moved through the field, tipping the sawdust as they went, Mr Towie measured a number of heaps at random, averaged the volume of those heaps, counted what he considered to be loads within the particular paddock area, and produced a resultant volume of material in situ as at the time of his assessment. Making an assumption of a particular truck load size, he reached a conclusion that the volume of the material in situ represented 47 per cent of the volume of the material when transported.
Having assessed a volume in a paddock where heaps were still in tact, Mr Towie applied a rate of material dumped per hectare to three other sites where measurement was difficult, making an assumption that there was a constant rate of dumping per hectare in those other areas.
Mr Towie's report was submitted over objection. The objection was that the conclusions Mr Towie drew went beyond his expertise as a surveyor, but called upon the expertise of a geo‑technical engineer. I admitted the evidence on the basis that Mr Towie was qualified to determine volumes of material by measurement and the application of accepted formulae for volume. Essentially, his evidence was based upon the measurements which he took, albeit that he made various assumptions in arriving at his ultimate calculations. Mr Towie's assumptions were attacked by Mr Michael Hillman, a geo‑technical engineer called by the defendant. He made criticisms of Mr Towie's sampling technique, the validity of his "test", inconsistencies between the "bulking factors" applied by Mr Towie in one area of assessment as against another, and pointed out what he said was a mathematical error in the calculation of the volume per hectare applied to a number of areas. Mr Hillman also expressed the opinion that many variables might apply to the rate of change of volume of material of the nature of sawdust after it is dumped, which were simply not taken into account by Mr Towie.
In my view, the criticisms of Mr Hillman as to Mr Towie's approach seriously undermine the reliability of the consensus drawn from Mr Towie's calculations. The assumptions as to whether particular "heaps" constituted full loads, and the number of loads in given areas, particularly where those areas had subsequently been spread, seemed to me to be without adequate foundation. As to the test of expansion on loading, there are too many assumptions involved in the logic that the material in the container after the test would be in the same condition as when transported. Mr Towie was faced with a very difficult task in endeavouring to quantify the volume of material spread over a large area, and in some cases spread out thinly by subsequent bulldozing. While he no doubt endeavoured to undertake the task as best he could, I would not be prepared to rely on his conclusions as establishing the volume of material carted to the Armstrong farm.
The defendant's case was that there simply was not the amount of sawdust at the mill that the plaintiff says it has moved. That contention was supported by the defendant in two ways. The first was by an analysis of the likely production of sawdust on the site between 1997 and the mill's closure in 2001. The second was the evidence of Mr Alan Bell who made an assessment of the quantity of sawdust on site in 2001.
To support the first contention, there are two planks to the defendant's case. The first is an assertion that in 1997, there was a fire at the mill which destroyed all of the sawdust then accumulated. At that point the mill had been operating as a mill for many years and no doubt a very substantial amount of sawdust had been accumulated. Mr Thomson's evidence was that the fire in 1997 virtually left the site clean of sawdust. The second plank to the defendant's defence is the records of the number of logs brought to the mill since 1997. The receipt of logs was recorded in a log timber receival record book kept by the defendant. A summary of receipts from those records shows, converted to volume, a total of 24,001.304 cubic metres of logs delivered in the period from February 1997 until the mill closed in July 2001. Mr Thomson's evidence was that on average, logs produced a 40 per cent recovery rate of sawn timber. The balance consisted of sawdust and off‑cuts. The sawdust he said, comprised 10‑15 per cent of the log. He said that in being converted from log to sawdust, the volume of the material increased by a factor of approximately 2. Although that evidence was not challenged, the basis for that opinion did not emerge in the evidence.
Mr Thomson's evidence as to the volume of logs received after 1997 was supported by evidence led through Mr Clark, a forester employed by the Forests Product Commission. Mr Clark was responsible for the records of quantities of different types of forest products processed through mills such as the defendant's mill. The records which he produced showed a total of 20,856.86 cubic metres sent to the Northcliffe mill. The defendant contends, and I am prepared to accept, that the discrepancy between the records produced by Mr Clark and the defendant's own records, can be explained by the possibility of logs being returned unprocessed by the mill because they were unsatisfactory. Those returned logs would be recorded as a reduction in the CALM records but not in the defendant's records. Another possibility is that the discrepancy is explained by the receipt of logs from private contractors. In any event, the discrepancy is not particularly material to the ultimate conclusions that I am required to reach.
I accept that the defendant's records as to the amount of timber received from 1997 onwards reflects the total receipts of the mill in that period. Mr Clark estimated that the sawdust residue from a milling operation was around about 20 per cent, rather than the 10‑15 per cent suggested by Mr Thomson. Mr Thomson's figures, allowing for the doubling of volume of sawdust compared to logs, give total sawdust generated from processing during the relevant period of approximately 7,200 cubic metres. If Mr Clark's 20 per cent is accepted as the figure, the volume would be 9,600 cubic metres approximately.
It follows from my acceptance of the evidence as to the amount of timber processed, that the only way that there could have been more than the 10,500 cubic metres which the defendant concedes was present on the mill site, is if all of the sawdust on the site in 1997 was not in fact, destroyed by fire.
In that respect the plaintiff called a Mr Paul Owens, who is no relation to the plaintiffs. Mr Paul Owens is the Deputy Chief bush fire control officer for the shire of Manjimup, and has been a fire control officer since 1990. He attended the fire in January 1997. He said the town fire brigade were already there when he arrived, squirting water onto the fire. He took control of the operations and contacted Mr Barry Owens to bring a bulldozer on site to isolate the main burning part of the heap so as to prevent it spreading to the whole of the sawdust. It was accepted by all witnesses that it is virtually impossible to put out a sawdust fire. Mr Paul Owens' approach was therefore to allow the isolated burning area to burn itself out, and leave the balance unburnt. He said that the portion of the heap which was burning comprised about one third of the waste heap. He said that the fire burnt for at least another week, and he visited the site thereafter on a virtually daily basis to keep an eye on the fire. He said that the area that had been isolated did not burn.
Mr Thomson, on the other hand, contended that the fire destroyed all of the sawdust on site. He was not on site when the fire started but returned the following day. He said that the fire burnt for seven months and that "the whole mill site was burning". He said that those fighting the fire had "come in, moved the sawdust that hadn't burnt at that time into a heap, and segregated a small amount that was in front of the mill so that it didn't burn." He said that a section that was segregated was burnt "once summer was out." When asked "what was the effect of the fire on the sawdust and mill waste?" Mr Thomson responded "by the time it had finished it had almost completely disappeared. We were able to move the sawdust around by the bulldozers, and by the middle of the wet season, was able to get it out." After being asked to clarify the evidence in relation to this issue, Mr Thomson again asserted that eventually the whole of the site was burned.
The pleaded case by the defendant was that the whole of the mill waste and sawdust on the mill site in January 1997 was burnt in a fire at the mill site in that month. Mr Thomson's evidence as to a subsequent, and apparently intentional, burning of some segregated portion is not consistent with that pleading. Nor was the suggestion that the fire burnt over the whole of the mill site for 7 months, put to Mr Paul Owens. I have some difficulty in comprehending how it is said that the mill continued to operate during that period of 7 months, presumably during which significant rainfall occurred, if the sawdust which apparently covered a large portion of the site was continuing to burn throughout that period. As a result, I prefer the evidence of Mr Paul Owens on the issue of the fire, and I find that, when the fire occurred in January 1997, an area of some two thirds of the waste heap at the mill was isolated and preserved from burning. The consequence of that finding is that there must have been an unspecified, but substantial, volume of sawdust already on site after the fire in 1997. The subsequent additional sawdust produced by the milling of logs between 1997 and the closure of the mill in 2001 simply added to the sawdust on site, and did not constitute the total sawdust on site as at February 2002.
The defendant called Mr Alan Bell, a valuer who had been engaged by the Government to assess a number of mills for the purpose of the buy‑up by the Government of timber mills as part of its forestry policy. His task was to value plant and equipment, investigate business aspects of each mill, and value land and buildings. In addition, he was required to make an assessment of the "reclamation" required in respect of each site following its cessation of use as a mill.
Mr Bell visited the site in November 2000. He was on site for "near on five hours". He took a number of measurements of areas of sawdust in order to make an assessment as to the amount of sawdust that might need to be moved to rehabilitate the site. Mr Bell took measurements in two areas. One was the area known as the "bund" which had been pushed up as a noise barrier in June 2000. The other was an area adjacent to the mill itself. Mr Bell's evidence was to the effect that he did not consider there was any substantial quantity of sawdust in other areas of the site. He calculated approximately 3,600 cubic metres in the area near the mill, and approximately 1950 cubic metres (which he rounded up to 2,000 cubic metres within the bund). He says the dimensions of the bund as 130 metres in length, five metres across the base, and three metres in height. I note that if the cross section was a regular triangular shape and the bund was 130 metres long, the volume would be more like 975 cubic metres. He said that he verified the measurements by the use of an aerial photograph obtained from the Department of Land Administration.
The dimensions of the bund measured by Mr Bell are quite different from the estimates of other witnesses as to the size of the bund. Mr Bradbury, the bulldozer driver who built the bund in June 2000 described the dimensions as approximately 90‑100 metres long, four metres high, five metres wide at the top, and 12 metres wide at the bottom. The shape of the bund as described by him at the time of its construction was different from the shape in which it appears in the videos taken in 2002, and from the description of the shape made by or given by other witnesses. Mr Thompson said that the width and height of the bund varied as it travelled down hill. He agreed the length was about 130 metres, but described it as five metres high at the bottom end, where it was between 10 and 15 metres wide. At the top end he said that the bund was about three metres high and six metres wide. In the middle he said it was about four metres high. Mr Barry Owens described the bund as being 150 metres long, 15 metres wide and six metres high.

Mr Bell also gave evidence that virtually all of the sawdust on site was contained within the two areas he described. In particular, he said that only a thin film of sawdust lay on the ground between the cemetery road and the location of the mill itself. That is not consistent with the photographs taken before and after the clean‑up which suggests a substantial amount of sawdust was located between cemetery road and the bund. Mr Paul Owens, who I regard as an independent witness, said that when walking around the site "you were walking completely over sawdust covered ground, and four or five years earlier the ground was probably three or four metres down there, underneath, to the bare earth."
Having reviewed all of the evidence, I have concluded that Mr Bell was mistaken in considering that the substantial quantities of sawdust on the site were confined to two discrete areas. An explanation for his measurements of the bund being smaller than those of other witnesses may be that he failed to take into account that the flattened area at the edge of the bund consisted of sawdust built up over ground which sloped away from the road. In any event the estimation made by Mr Bell as to the quantity of sawdust on site was not, I find, a reliable calculation of the total amount of sawdust on site.
The foregoing analysis leads me to the position where the only evidence as to the quantity of sawdust moved is the evidence of the number of trips and the capacity of each load. It was put to some of the truck drivers who gave evidence that the trailers were not full when transporting the sawdust. No foundation for that suggestion appears in the evidence, and the proposition was universally denied by the witnesses who drove the trucks. I am satisfied therefore that the amount of sawdust transported can be ascertained by multiplying the number of the vehicle trips by the respective trailer sizes used in each trip. To that end, Mr Heffernan drove 624 trips using the 25 cubic metre trailer. Mr Trenaman drove 237 trips using the same trailer. Mr Armstrong drove 411 trips using the 22 cubic metre trailer, and Mr Jones drove 90 trips using that trailer. The result gives 32,547 cubic metres of sawdust transported. The plaintiff's claim assumes a slightly lower amount of 32,384 cubic metres. The reason for the discrepancy is not clear, but the result is that the evidence supports the plaintiff's entitlement to the amount claimed.
For those reasons, there should be judgment for the plaintiff in the sum of $70,028.80 together with interest on that sum which I would allow from 30 March 2002.