Boral Transport Ltd v Whitehead

[2001] NSWCA 395

CITATION:	BORAL TRANSPORT LTD v WHITEHEAD & ORS [2001] NSWCA 395
FILE NUMBER(S):	CA 41060/00
HEARING DATE(S):	22 October 2001
JUDGMENT DATE:	13 November 2001
PARTIES :	Boral Transport Limited - Appellant Terry John Whitehead - First Respondent Muswellbrook Coal Co Limited - Second Respondent AMP General Insurance Limited - Third Respondent
JUDGMENT OF:	Sheller JA at 1; Stein JA at 69; Heydon JA at 70

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	791/98
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	J E Maconachie QC/H J Halligan - Appellant J E Sexton SC/R J Cheney - First Respondent I G Harrison SC/R H Weinstein - Second Respondent N/A - Third Respondent
SOLICITORS:	Abbott Tout - Appellant Bale Boshev & Associates - First Respondent McCabe Terrill - Second Respondent Sparke Helmore - Third Respondent
CATCHWORDS:	TORT - Negligence - breach - causation - damages - truck driver injured when truck turned over while transporting coal - standard of duty owed by employer.
LEGISLATION CITED:	Workers Compensation Act 1987 Motor Traffic Act 1909
CASES CITED:	Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 Betts v Whittingslowe (1945) 71 CLR 637 Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177 Hamilton v Nu Roof (WA) Pty Ltd (1956) 96 CLR 18 Liftronic Pty Limited v Unver (2001) 75 ALJR 867 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Oxley County Council v MacDonald & Ors (unreported) [1999] NSWCA 126 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Smith v Austin Lifts Ltd [1959] 1 WLR 100 Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337
DECISION:	1. Appellant's appeal dismissed with costs to be assessed on an indemnity basis; 2. Second respondent's cross-appeal dismissed with costs; 3. First respondent's cross-appeal allowed; 4. The verdict, judgment and orders of 14 December 2000 set aside other than the order for costs; 5. In lieu thereof ; (a) verdict and judgment for the plaintiff against the first defendant for $587,511.28; (b) verdict and judgment for the plaintiff against the second defendant for $556,264.99; (c) verdict and judgment for the first defendant on its cross-claim against the second defendant for $389,385.89; (d) verdict and judgment for the second defendant on its cross-claim against the first defendant for $198,125.79; 6. No order as to the costs of the first respondent's cross-appeal.

CA 41060/00

DC 791/98

SHELLER JA

STEIN JA

HEYDON JA

BORAL TRANSPORT LIMITED v WHITEHEAD & ORS

On 12 August 1998, the first respondent was injured when the coal truck he was driving overturned while making a sharp right hand turn. The first respondent was employed by the appellant to move coal from a mine operated by the second respondent to a rail terminal. The first respondent commenced proceedings in the District Court against both the appellant and the second respondent. He alleged that the second respondent was negligent in that it had loaded the coal into the truck unevenly. The appellant was claimed to have been negligent in failing to heed warnings that the trucks were being loaded incorrectly, and in failing to train him to drive the particular type of truck in a safe manner.

The trial Judge found both the appellant and the second respondent liable in negligence, and awarded the first respondent the sum of $514,603.27. The appellant was found to bear 70 per cent of the liability, and the first respondent 30 per cent. The plaintiff was found to have been guilty of contributory negligence in taking the corner too fast, and the award was reduced by 10 per cent. The Workers CompensationAct 1987 affected the calculation of damages recoverable from the appellant.

The appellant challenged the findings of the trial Judge as to breach of duty, causation, apportionment and damages. The second respondent filed a notice of cross appeal challenging the finding that it had breached its duty by loading the truck unevenly. The first respondent filed a notice of cross appeal on the ground that the trial Judge had made mathematical errors in the calculation of the judgment sum.

Held: per Sheller JA, Stein and Heydon JJA agreeing:

1. There was sufficient evidence on which the trial Judge might reasonably conclude that the truck was unevenly loaded at the time of the accident. Therefore the second respondent's cross appeal should be dismissed.

2. The trial Judge was entitled to conclude that the appellant had breached its duty of care to its employee. The risk involved in driving an unevenly laden vehicle around a sharp corner was considerable, and could easily have been avoided by warning the driver to take such corners at a speed well below 30 kilometres per hour.

3. The trial Judge was entitled to conclude that this breach on the part of the appellant was causative of the injury suffered. Although the trial Judge did not expressly address this question, it cannot be doubted that, if warned of the danger, the first respondent would have taken the corner more carefully.

4. No ground was shown for interfering with the apportionment of liability, or for increasing the amount of the deduction for contributory negligence. The appellant's culpability was greater than that of the second respondent, not only because of its position as employer, but also because it was aware that the vehicles were being loaded unevenly, and took no steps to remedy this.

5. The awards in relation to both non economic and economic damages were based on sound reasoning and were well within the appropriate range.

6. The first respondent's cross appeal in relation to the calculation of the damages was upheld. The trial Judge ought to have entered judgment for the full amount against each of the defendants, who then had a right of contribution against each other.

Legislation
Workers Compensation Act 1987
Motor Traffic Act

1909

Cases cited
Bankstown Foundry Pty Limited v Braistina

(1986) 160 CLR 301

Betts v Whittingslowe

(1945) 71 CLR 637

Electric Power Transmission Pty Limited v Cuiuli

(1961) 104 CLR 177

Hamilton v Nu Roof (WA) Pty Ltd

(1956) 96 CLR 18

Liftronic Pty Limited v Unver

(2001) 75 ALJR 867

O'Connor v Commissioner for Government Transport

(1954) 100 CLR 225

Oxley County Council v MacDonald & Ors

(unreported) [1999] NSWCA 126

Podrebersek v Australian Iron & Steel Pty Limited

(1985) 59 ALJR 492

Smith v Austin Lifts Ltd

[1959] 1 WLR 100

Smith v The Broken Hill Proprietary Company Limited

(1957) 97 CLR 337

ORDERS

1. Appellant’s appeal dismissed with costs to be assessed on an indemnity basis;
2. Second respondent’s cross-appeal dismissed with costs;
3. First respondent’s cross-appeal allowed;
4. The verdict, judgment and orders of 14 December 2000 set aside other than the order for costs.
5. In lieu thereof
(a) verdict and judgment for the plaintiff against the first defendant for $587,511.28;
(b) verdict and judgment for the plaintiff against the second defendant for $556,264.99;
(c) verdict and judgment for the first defendant on its cross-claim against the second defendant for $389,385.89;
(d) verdict and judgment for the second defendant on its cross-claim against the first defendant for $198,125.79.
6. No order as to the costs of the first respondent’s cross-appeal.

*******

CA 41060/00

DC 791/98

SHELLER JA

STEIN JA

HEYDON JA

BORAL TRANSPORT LIMITED v WHITEHEAD & ORS

Judgment

SHELLER JA:
Introduction

1 At about 8.57 pm on the night of 12 August 1998 Terry John Whitehead was badly injured when a coal truck he was driving overturned while negotiating a right-hand turn onto a road known as the ICI Haul Road which led to the Ravensworth Coal Terminal in the Hunter Valley. Mr Whitehead was driving the truck which comprised a prime mover and two attached trailers loaded with coal for delivery to the rail terminal. A short distance before the accident the truck which was travelling from Muswellbrook, had turned left from the New England Highway into Pikes Gully Road and then began to turn right into the ICI Haul Road. At the point of the accident the ICI Haul Road was reverse cambered down to the left and against the turn to the right that was being made. The average camber was –4.2 per cent. The road was so cambered to allow water and coal dust to be washed off.

2 The configuration of the prime mover (Fleet No 5409) and two trailers was described as a B-double vehicle. The bins were U shaped (the UBTS configuration) and to be distinguished from square shaped or mouthed bins used on other such trailers. According to an expert consulting engineer, Russel K Findlay, the trailers were unique in that they side tipped and, due to the design of the body, had no side gates. They relied on the shape of the body to dispose of the load. They were also unique in having a very high centre of gravity compared with other types of tipping trailers and in particular side tipping trailers. Mr Whitehead was driving the coal truck as an employee of the second defendant and appellant, Boral Transport Limited (Boral). The coal had been loaded into the trailers by the first defendant, second respondent and second cross-appellant, Muswellbrook Coal Company Limited (Muswellbrook).

3 In 1998 Mr Whitehead began proceedings in the District Court against Muswellbrook and Boral. He alleged against Muswellbrook in substance, that it had incorrectly loaded coal into “the trailer” causing it to be excessively loaded to the near side and had failed to warn him that the load was placed in an incorrect and unsafe manner prior to his leaving the point of loading and travelling from Muswellbrook’s premises. Mr Whitehead alleged against Boral that it had failed properly to instruct him to check that the load in the vehicle was level and stable at all material times, failed to heed warnings by its employees that the loader operating at the premises of Muswellbrook was incorrectly loading trucks thereby causing a risk of injury to the operators of the trucks, and failed properly to instruct him in the use of B-double haulage vehicles, in particular during haulage operations from the premises of Muswellbrook. He alleged Boral failed to instruct him to drive at speeds not exceeding certain limits during his right-hand turn on to the ICI Haul Road.

Decision at First Instance

4 The proceedings were heard by Judge Sidis who gave judgments on 11 and 14 December 2000. On 14 December her Honour pronounced a verdict and judgment “for the plaintiff in the sum of $514,603.27 payable as to 30 per cent, that is $125,217.78 by the first defendant and as to 70 per cent, $389,385.49 by the second defendant.” This requires explanation. Different methods were appropriate to calculate the damages awarded against each defendant. The Workers Compensation Act 1987 (the Act) affected the calculation of the damages recoverable from Boral and to an extent by force of s151Z(2) the damages recoverable from Muswellbrook. The Act capped Boral’s liability for damages for non-economic loss (s151G) and prescribed a discount rate of 5 per cent in assessing damages for future economic loss (s151J). The damages after deducting 10 per cent for contributory negligence awarded against Muswellbrook were $660,419.28 and against Boral of $556,264.99. The calculation which reduced the verdict to $514,603.27 broken up into separate portions against each defendant was erroneous. This and other errors of calculation were pointed out in Mr Whitehead’s notice of cross-appeal and it will be necessary to return to them.

5 The trial Judge found the plaintiff guilty of contributory negligence on the basis that he took the corner at excessive speed for the conditions and reduced the award by 10 per cent. The defendants were to pay Mr Whitehead’s costs of the proceedings in the same proportions, the proportion payable by Muswellbrook to be assessed on the party/party basis, the proportion payable by Boral on an indemnity basis.

6 Each defendant cross-claimed against the other. There was also a cross-claim by Boral against AMP General Insurance Limited, with which we are not concerned. Boral has appealed and Muswellbrook cross-appealed to this Court.

Issues and Evidence

7 Mr Whitehead was born in the United Kingdom on 8 July 1965. He migrated to Australia in 1988. He married in 1992 and at the time of the accident he and his wife had one child and another on the way. He started working for Boral in February 1996 as a casual truck driver later becoming a full time and permanent employee. Before he started driving heavy vehicles he was issued with a manual of operating procedures.

8 On 12 May 1998 Boral wrote to Mr Whitehead as follows:

“This letter is written confirmation of the verbal warning given to you by myself. This warning relates to an incident which occurred at Wambo Open Cut on the night shift of the 4th May 1998, whereby, you lost control of your vehicle, fleet number 5017.

As you are aware you must drive your truck to the conditions of the road at that time. By your admission, there was no change to the surface or conditions of the road.

Over the last two weeks there has been a marked problem with your driving; from bogging your truck which caused substantial damage to the truck, to a broken tail shaft. Your driving performance will be monitored and you will be sent for driving training and assessment with our Driver Trainer, Mr Chris Wells.”

By May 1998 Boral was on notice that there had been a problem with Mr Whitehead’s driving which required monitoring, assessment and training. It is not clear that this occurred.

9 Judge Sidis said the issues to be determined in the case were as follows:

“1. What caused the truck which the plaintiff was driving to overturn? The options being:
(a) The negligence or contributory negligence of the plaintiff by driving at excessive speed in the circumstances; or,
(b) The negligence of the first defendant in loading coal unevenly into the double trailers of the trucks; or,
(c) The negligence of the second defendant in providing an unsafe system of work for the plaintiff in that it did not adequately train him in the operation of the truck which he was driving, or that it did not adequately instruct him as to the conditions of the route which he took at the time of the accident, or that there was an absence of speed warning signs which would have alerted the plaintiff to the need to take extra caution at the point where his truck overturned.
2. There arises an issue that, if I find more than one of those parties responsible for the plaintiff’s injuries, I have to determine the proportions in which liability is to be dealt with.
3. The claim brought against the first defendant is to be determined on Common Law principles. As against the second defendant I have to take into account the provisions of the Workers’ Compensation Act 1987.
4. There are mutual cross-claims between the first and second defendants and in addition the second defendant has claimed against AMP General Insurance Limited as its third party insurer, pursuant to the Motor Accidents Act 1988. This raises the issue of whether the accident was the result of the fault of the owner or driver of the motor vehicle in the use or operation of the motor vehicle.”
The causal link between negligence and injury is not mentioned. Paragraph 2 suggests it was assumed.

10 The claim against Muswellbrook was to be determined on common law principles. The claim against Boral required consideration to be given to the provisions of the Act.

11 Mr Whitehead held the necessary licence to drive a heavy vehicle and had had experience in truck driving in England before coming to Australia. Judge Sidis thought that his experience in England had been limited to non-articulated vehicles but he gave evidence that he had experience taking single trailers across the water to France and Spain though not on a regular basis. He said: “You don’t have B-doubles or road trains in England or Europe.” Her Honour said:

“Initially the plaintiff was employed as a semi-trailer driver, that is driving a truck which comprised a prime mover with a single trailer. He was trained in May 1996 to drive the B-double vehicle, that is a prime mover with two trailers. His training comprised one day of driving B-double trailers with side tipping bins. According to the plaintiff he had driven B-double trailers for short periods between 1996 and 1998 but he mainly drove the semi-trailer type truck. He agreed that he had driven a B-double trailer with bins of a different type to that which he was driving at the time of his accident for most of June 1998. He also agreed that he had driven a truck with a B-double trailer of the type which overturned for most of July and up to the date of his accident. He stated however that the first time that he had driven this particular type of B-double trailer on the route upon which the accident occurred was on 12 August 1996, the date of his accident.”

12 This statement was partly inaccurate. Mr Whitehead said that the B-double trailer he was driving for most of June 1998 had bins of the UBTS configuration on trailers that were attached to the prime mover at the time of the accident. For most of July he was driving the prime mover Fleet No 5409 which was involved in the accident. On the night in question his shift began at 4 pm on the afternoon and would have continued until 4 am the next morning. He had not driven prime mover Fleet No 5409 with the UBTS configuration on the ICI Haul Road before that shift. However, during the shift he had delivered two or three loads using this prime mover and the UBTS configuration over the road without incident.

13 Judge Sidis described the loading procedure. The drivers of the trucks lined up at the stockpile and moved along in line to be loaded by front-end loaders driven by Muswellbrook’s employees. The truck drivers waited until their vehicles were loaded and took no part in the loading operations.

14 On 12 August 1998 the load operators were loading from the right. Mr Whitehead said he noticed that the load operators were loading the coal into the left-hand side of the vehicles rather than into the centre. He said he complained through his CB radio to Keith Goodbun, a senior Boral employee. The purpose of his complaint was to seek to have the coal operators amend their behaviour and load into the centre of the trailers. According to Mr Whitehead there was no change in the method of their operations. He said he was not able to see from the ground or from his position in the cabin the manner in which his own trailers had been loaded because the tops of the bins were high off the ground. Evidence from a fellow employee, Anthony Mark Waters, who was working as a truck driver at the time of this accident, made it clear that there was no ladder available by which Mr Whitehead could have climbed up to view the state of his load and whether or not it was unevenly loaded.

15 Mr Whitehead drove from the loading area to the weighbridge where it was noted that his load was slightly underweight but not sufficiently so to require that he return to the stockpile to be topped up. He then left the site of the mine and travelled towards the coal loader. He travelled over a fairly rough road onto the New England Highway and then in due course turned left from the New England Highway into Pikes Gully Road. He was unable to cut the corner because of the position of some trees at the turn. There were no warning signs or speed advisory signs at the site of his accident. He had been given no instructions concerning the minimum speed at which he should travel through the left and then the right-hand bend in order to access the ICI Haul Road. He had no warning the truck was about to roll over before it rolled except that he heard a creaking or cracking noise immediately before it did so.

16 Mr Waters gave evidence about the loading method and problems relating to uneven loading. He said there were means of knowing whether the load was uneven. A colleague in a line might warn a driver through the CB radio that his load was uneven. On occasions the loader operators themselves might advise a driver. Dennis Frederick Day, a former plant operator employed by and called by Muswellbrook to give evidence, confirmed that on occasions he informed the driver that his load was uneven. Finally it might be possible to detect an uneven load through the behaviour of the truck itself which would display characteristics of instability or not running true on the road. The unevenness could be rectified by applying brakes or by tipping the vehicle or, in most cases, by climbing a ladder to the bins and redistributing the load by means of a shovel. Mr Waters agreed that the load might also settle during the path of travel from the mine to the terminal.

17 The coal, which was being loaded, was granular and not in large lumps. Mr Waters said if it was wet it stuck together “like glue” and it then became very difficult to move the load if it had been placed unevenly in the trailers. Mr Waters said that it had rained for about one and a half weeks before 12 August 1998 and the coal that was being loaded on that date was very wet. On 12 August at the time of the accident it was fine and dry.

18 Mr Waters also said that he spoke to Mr Goodbun as well as Russell Brown, a shift foreman, and by CB radio at least three times to each of the two loader operators. He said he asked them to load the coal into the centre of the trailers and they told him they would see what they could do. The situation did not improve. Boral’s rules required the drivers to contact a supervisor if they were concerned about the stability of their loads. Mr Waters said that on complaining to Mr Goodbun he was told that he would have to keep going.

19 Mr Goodbun was not called to give evidence and there was no explanation for his absence from the court which the trial Judge regarded as significant.

20 Muswellbrook called one of the two loader operators, Grahame Newton, who said although he remembered the night in question he did not remember any complaint having been made. He said he did receive occasional complaints concerning the unevenness of loading and would work with the drivers on it. He said that a number of complaints on one night would be unusual. He agreed that if a load was uneven it could cause instability in a truck and therefore a complaint would be justifiable. Mr Day insisted he had received no complaints that night and said he had never received any complaint in the course of twenty-nine years in Muswellbrook’s employment. He said that the CB radios used by the drivers and the loader operators were consistently used by the drivers talking “a lot of rubbish” and he did not listen to those conversations.

21 Mr Whitehead said that he noticed no instability on the journey between the loader and the site of his accident and that the characteristics of his truck had been the same as on the two or three previous trips that night. The only difference was that on the occasion of the accident he heard a noise when the truck rolled over. According to Mr Waters, movement of a load can make a creaking or clunking noise whether the load is wet or dry. Mr Whitehead was asked whether he came out of Muswellbrook’s premises knowing that the load had been improperly put into his trailer. He responded: “No, I didn’t know it was put all to one side”.

22 Muswellbrook’s position was that the speed of travel was the critical factor in causing the accident. The truck carried an onboard monitoring system which recorded the speed. At the time of the accident the speed of Mr Whitehead’s vehicle was at 30 or 31 kilometres an hour. The evidence was that a difference of one or two kilometres an hour in a situation such as the one in which Mr Whitehead found himself could be critical to the difference between the safe negotiation of a bend in the road and catastrophe. Mr Whitehead said:

“Most people don’t go by speedometers ……they know the speed they are going by the gear that they are in, and I was in the right gear that I thought that I’d changed – I had the same gear at the same time on all the previous loads to go round the corner.”

23 Boral undertook an investigation. As a result it formed the view that Mr Whitehead took the right-hand bend at excessive speed. When he returned to employment on 7 October 1998 he was handed a letter of termination (Exhibit K) in these terms:

“An investigation was conducted to determine the root cause of the accident. This investigation included controlled speed tests and analysis of information from computer generated reports from the Fleetcom on board monitoring system, vehicle maintenance logs and interviews with mechanical staff and senior company drivers, an independent mechanical inspection and statements from you with regard to the accident.

The accident investigation team found that the B-double 5409 which you were driving at the time of the accident was travelling at a speed which was too fast to attempt the right turn on the line of entry attempted. The investigation team was also of the view that the vehicle was on the wrong line of entry to attempt to negotiate the turn.

Mechanical inspections found no evidence of mechanical malfunction with unit 5409 or its trailers.

Therefore this accident occurred due to driver error. The B-double sustained approximately $100,000 damage. As such driving actions by you constitute serious misconduct, your employment was terminated without notice as of 21 September 1998.”

In this letter Boral’s concern for the damage to its truck was not matched by any concern for the serious injury suffered by its employee.

24 Mr Whitehead’s response was that he had negotiated the right-hand turn at the same speed and on the same line in the first two or three trips that evening. There was no evidence to the contrary from the computer generated reports from the Fleetcom on board monitoring system which Boral did not tender. Accordingly, Judge Sidis inferred that Mr Whitehead’s evidence on this aspect was accurate.

25 Her Honour reviewed the expert evidence, which included three reports from Mr Findlay who opined that the change in the centre of gravity height had a dramatic effect on the stability of the vehicle, in particular whilst negotiating tight low speed corners. In Mr Findlay’s view, if Mr Whitehead’s trailers had not been loaded evenly, with the load positioned to the left of the trailer, this would have contributed to the accident as the vehicle negotiated the right-hand turn on the reverse cambered road. He stated that with a driver correctly positioned on the right-hand side of the road it required only a small shift in the vehicle’s centre of gravity to cause instability and an accident of the type experienced by Mr Whitehead. His conclusion based upon the computer printout and a view of the accident scene was that speed was not a factor in the accident and that what was relevant was the vehicle’s position on the reverse cambered road and the effect of the load on the vehicle’s stability whilst negotiating that corner. He was highly critical of Boral’s investigation which led to Mr Whitehead’s termination.

26 Muswellbrook relied on a report from Mr Schnerring of Jamieson Foley & Associates. Judge Sidis said that Mr Schnerring not surprisingly minimised the likelihood of any contribution from the uneven loading of the vehicle. Her Honour said:

“He relied upon the granular nature of the load and its natural propensity to settle following the turns, bumps and other features of the 25 kilometre route from the loading point to the site of the accident.”

However Mr Schnerring did not appear to be aware of the suggestion that the coal was wet and sticky and that Mr Whitehead’s trailer was slightly underloaded at the time of his accident. Mr Schnerring noted that the critical speed for the vehicle driven by Mr Whitehead at the time of the accident for a normal line through the corner was about 31 kilometres per hour. He was of the view that only a small increase in speed would be required to lead a driver close to the roll limit for a truck. The roll limits would not be expected to be the same for all the trucks in the fleet. The driver moving from one truck with a higher roll limit to another truck with a lower roll limit could inadvertently approach the roll limit by driving through the corner at a speed habitually used for that which was higher. He offered the opinion that appropriate signs and markings could warn and inform drivers of road conditions ahead and guide and control drivers through difficult sections of the road. Even for those familiar with a section of the road, signs and markings act as a reminder. He noted that in this particular case a driver’s speed through the corner at the crash site appeared to be critical with little margin for error. He also noted that tests undertaken on behalf of Boral could have been undertaken before the accident and used as a basis for signposting the corner or in providing specific speed instructions. He attributed the accident to the combined effects of the reverse camber and the absence of advisory speed signs.

27 Boral relied upon Professor Hahn of the University of New South Wales School of Mechanical and Manufacturing Engineering. Professor Hahn concluded that the major cause of the accident was excessive speed which he put at 30 kilometres per hour according to the computer records. He considered the loading of the vehicle but, apparently, he also was unaware of the evidence about the wet and sticky nature of the coal on the evening of the accident. He agreed that the following factors might increase the propensity of the vehicle to overturn. The first was uneven loading, which he said might cause a minor increase in risk. Secondly, he noted that cutting the corner would decrease the propensity to tip. He concluded that at a speed of 30 kilometres an hour the turning radius of the corner was such that overturning could occur even if the load were perfectly level.

28 Significantly, as Judge Sidis thought, Professor Hahn stated that the appropriate speed to be used in such a situation was one which could only be gained by experience. He suggested that a maximum speed of 20 kilometres per hour was safe in the particular case of the corner upon which the accident occurred. He said that the B-double combination involved in the accident had a higher centre of mass than that of a conventional side tipping B-double. That meant that more care was needed in their operation. Finally he concluded that the accident was caused by excessive speed noting that the factors which increased the propensity for tipping, that is road camber, load distribution et cetera, should have been taken into account by the driver when negotiating the bend. He referred to a report prepared by Mr Feenan for Boral who calculated the roll over speed for the bend on which the accident occurred as around 29 kilometres per hour and said that the rollover would have occurred irrespective of any loading of the vehicle. This was somewhat surprising to her Honour as in presenting its case Boral relied upon unevenness of the load in combination with the speed of the vehicle.

29 None of the expert witnesses gave oral evidence or were required for cross-examination. Accordingly, it was left to the trial Judge from the other evidence before her and from the written reports given by the experts to determine what expert evidence she accepted.

30 Judge Sidis preferred the evidence of Mr Waters to that of Mr Newton and Mr Day. She said:

“Mr Newton at least was prepared to concede that he may have received some complaints of loading and may have forgotten about them. Mr Day was particularly defensive and I find unlikely his claim that he had never received a complaint of uneven loading at any time when he was operating the coal loader. In addition, Mr Goodbun was not called to challenge the evidence of Mr Waters and the plaintiff. In those circumstances I accept that complaints were made that evening concerning the uneven loading of the vehicle [sic].”

31 Judge Sidis noted Mr Day’s evidence that he was aware that uneven loading caused the truck drivers difficulties and he said that on occasions he warned drivers when he noticed their load was uneven. She accepted Muswellbrook’s arguments that in ordinary circumstances there were means available to the truck drivers to even out their loads and that travel over the route would effect some settlement of a load by the time the 25 kilometres had been travelled to the site of the accident. However, her Honour found that on that particular night the load was wet and sticky and that it was less likely to settle. Her Honour continued:

“Notwithstanding the plaintiff’s lack of awareness of the unevenness of his load, the evidence of a noise immediately preceding the overturning of his vehicle is an indication that the probability is that the load moved. This, coupled with the speed at which the plaintiff was taking the corner, I find to be the cause of the vehicle’s overturning onto its left-hand side.

There is evidence of the plaintiff that he did nothing different on this occasion to that which he had done on the first two or three times he travelled over the route. That evidence is the basis for my finding that the unevenness of the load was the critical factor in the plaintiff’s accident. This was something which was foreseeable on the part of the first defendant and I therefore make a finding of liability against the first defendant.”

32 Her Honour found Boral liable for its failure to provide a safe system of work for Mr Whitehead in a number of areas. Her Honour said:

“Firstly, there was an absence of briefing on the road conditions and on the particular characteristics of the type of trailer which the plaintiff was driving on that occasion, with specific reference to its higher centre of gravity and its decreased stability. Secondly, the second defendant was aware of the plaintiff’s deficiencies as a driver and of the need to retrain him. The evidence is that the retraining proposition had been before the second defendant for some months prior to the date of this accident without implementation. Thirdly, and most significantly, there is the absence of any speed advisory sign at the site of the plaintiff’s accident. Mr Findlay, Mr Schnerring, Mr Feenan and Professor Hahn all note the critical speed tolerances so that an increase in speed of one to two kilometres made the difference between the safe negotiation of this bend and the accident which the plaintiff experienced.

It was argued that it was not reasonable to expect the second defendant to check all of the aspects of the road and to familiarise itself and its drivers with any dangers on the route. It is clear from Ex K [the letter of termination] that the second defendant expected the plaintiff to be aware of these problems but the plaintiff could only become aware of them through regular use of the route with the particular trailer which he was operating on that occasion. I do not think it was unreasonable in terms of the heavy onus on an employer to provide a safe system of work to oblige to the employer to take steps to identify and either brief its employees or place warning signs to alert them to situations where extra care needed to be taken. On these bases I also find the second defendant liable to the plaintiff.

I have apportioned liability between the first and second defendants as to 30 per cent to the first defendant and 70 per cent to the second defendant.”

33 As I have said the trial Judge reduced the verdict by 10 per cent for contributory negligence.

Grounds of Appeal

34 Boral’s amended grounds of appeal were:

1 Her Honour was wrong in finding the plaintiff was unaware, because he could not sight it, whether his load was even or uneven
.
1A Her Honour was wrong in finding that the Appellant was in breach of the duty of care that it owed to the First Respondent.

2 Alternatively, her Honour was wrong in failing to find that the plaintiff ought to have known that his load was uneven.

3 Her Honour was wrong:


(a) in concluding, if she did so conclude, that an absence of briefing on the road conditions was causative of the plaintiff’s harm;

(b) failing to consider properly, or at all, the causation issue.

4 Her Honour was wrong:


(a) in concluding, if she did so conclude, that an absence of briefing on the particular characteristics of the type of trailer, with specific reference to its higher centre of gravity and its decreased stability, was causative of the plaintiff’s harm;

(b) failing to properly consider, or at all, the causation issue.


5 Her Honour was wrong in concluding that the second defendant was aware of the plaintiff’s deficiencies as a driver.

6 Her Honour was wrong in concluding that the second defendant was aware of a need to retrain the plaintiff.

7 Her Honour was wrong:


(a) in concluding, if she did so conclude, that an awareness in the second defendant of the plaintiff’s deficiencies as a driver and/or of the need to retrain him was causative of the plaintiff’s harm;

(b) failing to consider properly, or at all, the causation issue.


8 Her Honour was wrong in concluding that the second defendant was empowered, or owed a duty to the plaintiff, to erect advisory speed signs at the site of the plaintiff’s accident.

9 Her Honour was wrong:


(a) in concluding, if she did so conclude, that the absence of any speed advisory sign at the site of the plaintiff’s accident was causative of the plaintiff’s harm;

(b) [in] failing to consider properly, or at all, the causation issue.


11 Her Honour was wrong in apportioning liability between the first and second defendants in the proportions of 30% and 70% respectively.

12 Her Honour must have applied the wrong test for determining the question of apportionment between the defendants.

13 Her Honour fell into error by failing to give any, or any sufficient, reasons for apportioning responsibility between the first and second defendants in the proportions of 30% and 70% respectively.

14 Her Honour was wrong in finding on the issue of contributory negligence that a proper allocation of responsibility to the plaintiff for the harm suffered by him was 10%.

15 Her Honour must have applied the wrong test in allocating to the plaintiff 10% of the responsibility for the harm suffered by him.

16 Her Honour fell into error in failing to give any, or any sufficient, reasons for apportioning the plaintiff 10% of the responsibility for the harm suffered by him.

17 Her Honour’s finding of 45% of a most extreme case for non-economic loss was a gross over-estimate of that aspect of any damage suffered by the plaintiff.

18 Her Honour’s finding that the earning capacity of the plaintiff, absent the accident, was properly valued at $1,050 per week was a gross over-estimate of the plaintiff’s hypothetical future earning capacity.

19 Her Honour’s finding that the plaintiff’s retained earning capacity should be valued at $560 per week was a gross under-estimate of the plaintiff’s retained earning capacity into the future.

20 Her Honour’s finding of the plaintiff’s past economic loss proceeded from an application of the wrong principles.

21 Her Honour’s finding of the plaintiff’s past economic loss is not supported by the evidence.

22 Her Honour’s finding of the plaintiff’s superannuation losses was a gross over-estimate of any loss that the plaintiff might suffer.

Ground 10 was not pressed. Grounds 1, 2, 5 and 6 which attack the trial Judge’s findings of fact are not grounds open on appeal unless supported by something more than the assertion that the findings were wrong or should have been made as the case may be. Nothing more was put. These grounds fail at the threshold.

35 Muswellbrook filed a notice of cross-appeal but limited its cross-appeal to the substantive finding by the trial Judge that Muswellbrook breached its duty of care owed to Mr Whitehead on the basis that it had unevenly and improperly loaded Mr Whitehead’s truck. Mr Harrison SC, who appeared for Muswellbrook, said there was no question raised about causation if the evidence established an eccentric load.

36 By leave and without objection Mr Whitehead filed a notice of cross-appeal on the following grounds:

1 Her Honour made a mathematical error in the calculation of the judgment sum of $514,603.27.

2 On the basis that her Honour’s finding of 10 per cent contributory negligence was correct, her Honour ought to have entered judgment against Muswellbrook Coal Company Limited in the sum of $587,511.28 and against Boral Transport Limited in the sum of $556,264.99.

3 Alternatively, on the same basis in respect to contributory negligence, her Honour ought to have entered judgment against Muswellbrook Coal Company Limited in the sum of $198,125.79 and against Boral Transport Limited in the sum of $389,385.49.

4 Her Honour erred in finding the Second Cross Appellant [Whitehead] guilty of contributory negligence.

Mr Whitehead also filed a notice of contention contending:

That, in addition to the grounds on which her Honour found the Appellant liable, her Honour ought to have found the Appellant liable in respect of the negligence of the Second Cross-Respondent because the Appellant owed a non-delegable duty of care to the First Respondent in respect of the system of work in which the First Respondent was engaging as an employee of the Appellant, in circumstances where the Appellant was on notice of defects in the system of loading employed by the Second Cross Respondent.

37 Boral’s grounds of appeal fall into four groups:

Breach of duty (ground 1A);
Causation (grounds 3, 4, 7 and 9);
Apportionment (grounds 11-16); and
Damages (grounds 17 – 22).


It is convenient to deal first with Muswellbrook’s appeal. Mr Maconachie QC, who appeared for Boral, adopted it though the challenge to Judge Sidis’ findings about loading was not one of Boral’s grounds of appeal.

Muswellbrook’s Appeal

38 The trial Judge’s conclusions seem on their face to be based on findings of fact not easily challenged on appeal. Muswellbrook’s argument was that there was no evidence that the trailers were loaded unevenly. Nobody came forward who had seen the load, there was no difficulty in driving the vehicle, ordinarily an indicator that the load was even, and no there was evidence that the automatic tarpaulin was inhibited in its operation, ordinarily an indicator of an uneven load. The point was a no evidence point. It was submitted that it was pure speculation to conclude that the evidence of a noise immediately before the overturning of the vehicle was an indication of the probability that the load had moved. There was nothing about the behaviour of the vehicle which demonstrated, even arguably, that the load was moving when the noise was made. The evidence that Mr Whitehead had done nothing different on this occasion from that which he had done on the two or three previous occasions he travelled the route was no basis for finding that the unevenness of the load was the critical factor in the accident. Mr Whitehead was not able to say what the state of his load was. Mr Waters agreed that if the load was very much to one side you would feel it in the cabin and in the steering as well.

39 Mr J E Sexton SC, who appeared for Mr Whitehead, emphasised Mr Whitehead’s evidence that he had negotiated the right-hand turn at the same speed and on the same line in the first two or three trips on the night in question. There was no evidence to the contrary from the computer generated reports. Her Honour was entitled to infer that Mr Whitehead’s evidence on this aspect was accurate. The monitoring system had monitored all the trips. These were documents available to Boral and to Muswellbrook. Such evidence, if it could have established that Mr Whitehead had not travelled at the same speed on the previous occasions, would have been compelling.

40 It was open to Judge Sidis to draw the inference that the trailers were incorrectly loaded from the following facts:

(1) Other vehicles had been incorrectly loaded earlier on the night of the accident.
(2) The coal being loaded was wet.
(3) Mr Whitehead had travelled over the designated route, including the section on which the accident occurred, earlier in the shift without incident.
(4) Mr Whitehead’s speed and line when the accident occurred were the same as he had adopted earlier without incident.
(5) Immediately before the accident Mr Whitehead heard a noise from the load.

None of these findings of fact was challenged.

41 In my opinion, on these findings of fact it was open to the trial Judge to conclude that the unevenness of the load was a cause of Mr Whitehead’s accident. Muswellbrook’s appeal should be dismissed.

Boral’s Appeal
Breach of the Duty of Care

42 Boral relied upon O’Connor v Commissioner for Government Transport (1954) 100 CLR 225; Smith v The Broken Hill Proprietary Company Limited (1957) 97 CLR 337 and Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177 and the proposition encapsulated in the first of those cases in the joint judgment of Dixon CJ and Webb, Fullagar, Kitto and Taylor JJ at 229-230:

“The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was an ‘expert’ or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit. Blyton was only the leading plumber and when he sent the deceased as the next man he was not directing him how he must perform the work. It simply meant that it was what he himself would do, and without further thought he spoke accordingly. In such a simple matter who else should be left to judge? Does the reasonable care demanded of the employer require him to cause a scientific or other elaborate examination to be made of the strength of the structure lest the working plumber may decide to trust himself to it rather than work from a plank or trestles? If, as the jury may be taken to have found, the dry rot was the cause of the awning failing under the deceased’s weight, the presence of the dry rot was as easily ascertained by the deceased as by anybody however skilled. The standard of care of an employee’s safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable.”

43 So too the employer was not liable for the injuries of Mr Smith, the man who was told by a foreman to throw a heavy wooden packing case from a roof and who sustained severe injuries when his glove was caught by the case so that he was dragged from the roof to the ground below nor the employer of Mr Cuiuli, the caretaker who suffered an eye injury from a piece of wood which flew up as he struck it with a tomahawk.

44 No doubt the principle is well established that the relation of employer and skilled workmen should not be treated as equivalent to that of nurse and imbecile child (Smith v Austin LiftsLtd [1959] 1 WLR 100 at 105) and that an area is marked out within which the employer’s duty to provide a safe system of work is inoperative though the immunity is limited to isolated operations of no complexity outside the normal system or to simple uncomplicated operations within it; see Glass, McHugh and Douglas, The Liability of Employers, 2nd ed at 45. But in my opinion the sentiments expressed in applying this principle to the facts of those cases come from an era where the standards of workplace safety required of an employer were quite different.

45 In Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 307 Mason, Wilson and Dawson JJ in a joint judgment quoted a passage from the judgment of McHugh JA in the Court of Appeal in which his Honour said:

“I think that it is impossible to read recent decisions of the High Court of Australia without realising that employers are now required to comply with safety standards which, only twenty years ago, would have been seen as imposing an onerous even an absurd burden on employers. [citations omitted].

Throughout the common law of negligence, but particularly in the employer/employee field, the standard of care required of a defendant has moved close to the border of strict liability.”

46 The joint judgment continued shortly after this quotation:

“The reference by McHugh JA to strict liability is unfortunate because of its tendency to mislead but there can be no doubt that his Honour was not intending to break new ground in the law of employer’s liability. Indeed, he says explicitly that the common law requires no more than that an employer take reasonable care for the safety of his employee. Again, the reference by Priestley JA to what his Honour perceives in recent decisions of this Court as ‘a deliberate emphasis on the heavy obligation upon an employer in fulfilling his duty to take reasonable care’ must be evaluated in the context of the particular circumstances and issues which were involved in each of the cases to which he referred. This is not the place for an examination of the reasoning in earlier decisions of this Court. What must be asserted is that the law has not changed. It is as accurate today as it was thirty years ago to say that the duty

‘is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury’: Hamilton v Nu Roof (WA) Pty Ltd (1956) 96 CLR 18 at 25, per Dixon CJ and Kitto J.

We digress to remark upon the formulation preferred by Windeyer J, with whom McTiernan, Kitto, Taylor and Owen JJ agreed, in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319, namely:

‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.’ ”

47 At 308-309 their Honours said:

“On the other hand, being a question of fact, it is undoubtedly true, as McHugh JA said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v Tedman (1985) 155 CLR at 313, ‘Accident prevention is unquestionably one of the modern responsibilities of an employer.’ However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342-343; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 218.”

(2001) 75 ALJR 867 was an appeal to the High Court from a decision of this Court. The trial jury reduced the damages by 60 per cent for contributory negligence. This Court substituted a reduction of only 20 per cent. The High Court upheld the appeal and restored the jury’s verdict. At issue was the responsibility of the employer for injuries suffered by an employee in a workplace accident. At para 25 (p871) McHugh J said that the trial Judge and counsel seem to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. His Honour said:

“But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it.”

49 Commenting on the decision of the Court in Braistina, McHugh JA said at para 37 (p874):

“The Court also criticised the majority judges in the Court of Appeal saying that a trial judge should not approach the issue of negligence on the basis of some perceived principle that there was a heavy obligation on the part of the employer to protect the worker. Nor should the judge approach that issue on the basis that the standard of care for an employer ‘had moved close to the border of strict liability’.”

In para 38 his Honour said that Braistina emphasised that the employer’s duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time.

50 In Smith, Dixon CJ said at 339 that he did not desire to qualify in any way the statement made by Kitto J and himself in Hamilton v Nu Roof (WA) Pty Ltd (1956) 96 CLR 18 at 25 and 26, a case where the defendant company was carrying out work using molten bitumen on the roof of a motor generator room on the sixth floor of a city building. The bitumen was heated on the roof of the fifth floor and placed in open buckets which when two-thirds full weighed forty pounds. Each bucket was raised by means of a rope to the level of the sixth floor roof and then carried manually up a fixed iron ladder where it was passed by hand to a workman on the roof of the generator. Mr Hamilton, a labourer employed by the defendant, was stationed on the shed roof lifting the buckets of molten bitumen to the workman on the motor generator roof who lifted the bucket onto the roof where he stood. One of the defendant’s objections to the suggestion that the bucket could have been hauled up by the use of a rope was that this might have splashed the wall. Mr Hamilton performed this operation on two occasions without incident, but on the third occasion as he stood on the shed roof with one such bucket in his hands and raised in front of him the bitumen spilt over the side of his face, his hands and forearms inflicting severe injuries. At 25-26 Dixon CJ and Kitto J said:

This is a simple case concerning an unmechanised operation. But care and foresight could not easily ignore the danger of the hot liquid doing the plaintiff very serious injury if it escaped while he manually lifted it upwards in front of his body and care and foresight could not overlook the hazard of the liquid spilling as a result of any of the chances to which the operation involving the raising of the heavy bucket was exposed. It is the sort of thing you would think might well arouse some degree of apprehension in any spectator of the operation, to say nothing of an experienced employer.

It has been said that a reasonable and prudent employer is (i) bound to take into consideration the degree of injury likely to result; (ii) bound to take into consideration the degree of risk of an accident; (iii) entitled to take into consideration the degree of risk, if any, involved in taking precautionary measures: per Parker LJ as cited by Lord Cohen, Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC at 579. On the facts of the present case it may fairly be said that (i) the degree of injury likely to result would be grave; (ii) the degree of risk of an accident was real and not fanciful or inconsiderable; (iii) there was no degree of risk to any person in taking precautionary measures and the degree of risk of defacing the wall was not great and could be met completely by the exercise of ordinary care.”

51 I would adopt and apply to this case the comments (i), (ii) and (iii) in the joint judgment. Mr Whitehead was required to drive a vehicle which when fully laden became unstable as the result of uneven loading, over which he had no effective control, or if the speed exceeded by the slightest margin 30 kilometres an hour or thereabouts. He was required to drive the vehicle so loaded around a bend where the road was cambered in a way which would increase that instability. The exact rollover speed was uncertain but on one view 30 kilometres an hour at a turn of the sort Mr Whitehead here encountered. According to one expert the maximum safe speed was 20 kilometres an hour.

52 The attempt to compare Mr Whitehead’s position employed as a licensed driver of such heavy vehicles with the experienced plumber provided with “proper and adequate means of carrying out his work without unnecessary risk” (100 CLR at 229) is I think cynical. The risk here, as Boral should have foreseen and as events proved, was considerable and easily avoided by warning the driver that on a turn such as the one where the accident occurred he should not exceed a much lesser speed than 30 kilometres per hour. Clearly Boral was in breach of its duty of care in not as a matter of training advising Mr Whitehead of the upper limit of a safe speed in such circumstances and in not warning him of the risks of uneven loading and exceeding that safe speed.

53 Boral took the nice point that the road was a public road (it did not pause to prove this) and that there were criminal sanctions imposed by s4D of the Motor Traffic Act 1909 against persons erecting traffic control signs. This part of the argument, based on an assumption that there was a duty to provide a warning sign at this corner for trucks of the sort Mr Whitehead was driving to save the drivers from injury, was to the effect that Boral was only stopped from doing so by fear of criminal prosecution. No evidence was proffered that if Boral had asked the Roads and Traffic Authority for permission to erect such signs for safety reasons the Authority would not have allowed them and would have prosecuted Boral for doing so.

54 In my opinion, Mr Whitehead established that Boral was negligent in the manner particularised in the statement of claim, namely in failing to provide a safe system of work, in failing properly to instruct Mr Whitehead to check that the load in his vehicle was level and stable at all material times, in failing to heed warnings by its employees that the loader operating at Muswellbrook’s premises was incorrectly loading trucks thereby causing a risk of injury to the operators of the trucks, and in failing properly to instruct Mr Whitehead in the use of B-double haulage vehicles, in particular during haulage operations from the premises of Muswellbrook and in particular in failing to instruct Mr Whitehead to drive at speeds not exceeding certain limits during his right-hand turn onto the ICI Haul Road.

Causation

55 Boral submitted that there was no evidence that any of the found acts of negligence either singularly or combined were causative of the injury. Boral’s complaint was that her Honour failed to make specific findings about causation and give reasons for those findings. This is a step sometimes overlooked where the causative link is thought to be obvious as for example where the plaintiff is injured by a motor vehicle driven by the defendant. Judge Sidis defined as the first issue to be determined what caused the truck to overturn and stated three options, the negligence of the plaintiff, the negligence of the first defendant and the negligence of the second defendant. The trial Judge reviewed the expert evidence. She was satisfied that the truck was unevenly loaded and that the load moved. She said:

“This, coupled with the speed at which the plaintiff was taking the corner, I find to be the cause of the vehicle’s overturning onto its left-hand side.”

56 The evidence to which she referred pointed to the correctness of this conclusion. But the question not expressly answered was whether the breach of duty particularised caused the injury. In other words, the question is whether if the appropriate warning or instruction or signage had been provided the accident would have been avoided. In Betts v Whittingslowe (1945) 71 CLR 637, a case where an infant male employee had been injured at work by a machine he was operating and there was no evidence as to how the accident had happened, Dixon J, after referring to a decision of the English Court of Appeal said at 649:

“It is not necessary to inquire whether their Lordships meant more than that the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty. In the circumstances of this case that proposition is enough. For, in my opinion, the facts warrant no other inference inconsistent with liability on the part of the defendant.”

57 Had Mr Whitehead been properly instructed and advised of the dangers of driving the vehicle almost fully but unevenly loaded at a speed of 30 to 31 kilometres per hour on this particular corner, could there be any doubt that he would have heeded the warning by checking that the load was even and reducing his speed and if he had been instructed as to the appropriate speed limit, bearing in mind the danger and possible consequences of injury, that he would not have kept within the limit? While Judge Sidis did not expressly address these questions, I am satisfied there could be only one answer and that unfavourable to Boral. This head of appeal also fails.

Apportionment

58 I have no difficulty in accepting that Boral’s breaches of duty involved greater culpability, that is to say degree of departure from the standard of care, and greater relative importance in causing Mr Whitehead’s injury; compare Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494. I say this not only because Boral’s duty was that of an employer to its employee but particularly because Boral had been advised that its vehicles were being unevenly loaded and took no steps to remedy this. No ground has been demonstrated to increase the proportion of the verdict to be born by Muswellbrook and Muswellbrook did not appeal against the proportion awarded against it. Nor do I think any ground has been shown for interfering to increase the amount of the deduction for contributory negligence. Using his experience on an area of road new to him with this particular truck Mr Whitehead approached the corner on a line and at a speed which had to that point appeared to be safe. He received no warning or instruction nor did he have any previous experience to suggest that it was not. He did not exceed any speed limit of which he knew and he did not know that the truck was unevenly loaded. Mr Whitehead appealed against this reduction only on the contingency that Boral’s appeal against the inadequacy of the deduction for contributory negligence would lead us to conclude that there was some error disclosed in the reasons for judgment requiring a reassessment of the apportionment. No such error has been demonstrated and accordingly we need not consider this ground of cross-appeal further. In my opinion, the appeal by Boral under this head also fails.

Damages

59 Boral relied entirely upon its written submissions. The trial Judge referred to Mr Whitehead’s evidence that after the vehicle rolled he was suspended on the driver’s side before he took his seatbelt off and dropped onto the passenger side. He felt extreme pain in his neck and his side. A fellow driver came to his assistance and he was taken by air ambulance to the John Hunter Hospital where he stayed for ten days. He was released on crutches and was then treated by his general practitioner, Dr Brookman. He underwent a significant amount of physiotherapy and was treated otherwise with pain-killing medication and sleeping tablets. He contracted an infection which was appropriately treated.

60 Mr Whitehead underwent a significant period of rehabilitation, following the advice of his rehabilitation providers and their instructions. He said his condition improved until it plateaued at about the beginning of 1999 and had remained the same since that date. He said he suffered from significant back pain when seated but that the pain eased gradually when he stood and moved around. He has pain when he is in bed and sleeps only for four to five hours. He said he could not sit for twelve hours in a single trailer or a B-double, but he had had no opportunity to attempt a shift of truck driving. He was able to drive a motor car with back support to ease his pain. He was receiving no specific treatment at the time of trial but still took sleeping tablets and pain-killing medication. He had a problem with his left shoulder in the nature of pain and restricted range of movements. The pain was a dull pain the whole of the time. He could lift his arm only half way because there appeared to be a knot in his shoulder and that caused pain. At the time of his rehabilitation he was undergoing some stress as to his future and there was a recommendation that he receive psychological counselling. There was no doubt however that he was highly motivated to work and was keen to re-train. In assessing damages on a common law basis the Judge awarded $105,000 and applying the Act assessed him at 45 per cent of a most extreme case.

61 Mr Sexton said with some justification that the trial Judge made detailed findings as to the injuries and disabilities suffered by Mr Whitehead in the accident and their ongoing effect on him. Those were not challenged in the appeal. What Boral sought to do was to select some parts of some reports and urge that these be preferred to other medical evidence that was the subject of the trial Judge’s detailed review. Nothing was advanced to explain why these selected parts of the evidence should have been preferred to produce a lesser award for non-economic loss. Mr Whitehead was 33 at the time of the accident and 35 at the date of the trial. He suffered stress fractures to his back, and injury to his shoulder and continued to suffer back pain and limitations to physical activities due to the condition of his back and shoulder. All of the doctors, except Dr Smith whose opinion the trial Judge did not accept, opined that Mr Whitehead had a permanent impairment to his back, was unfit for his former occupation of driving heavy trucks and was limited in his capacity to lift.

62 None of the evidence referred to in Boral’s written submissions read in the context of the evidence as a whole supports the conclusion advanced that in the circumstances the compensation for non-economic aspects for general damages was so inordinately high as to be an erroneous estimate of damage. In my opinion, the award was well within the range.

63 Mr Whitehead was certified to return on light duties in October 1998. On the day of his return, 7 October 1998, he was, as already noted, terminated. He said that he received no assistance from his rehabilitation providers in securing employment but found for himself employment as a casual waiter in a Hunter Valley vineyard for a short period in the summer of 1998/1999. In April 1999 he acquired a lawnmower sales and repair business which he was still operating at the time of the trial in partnership with his wife. He employed two mechanics and had recently engaged a salesman. His own duties involved ordering stock, stocking the shelves, undertaking telephone calls, sales and undertaking some minor repairs if a machine was lifted onto a bench for him by some other person. The business operated seven days a week, twelve hours a day. Mr Whitehead worked between five and six days a week. The preponderance of medical opinion was that he would not return to truck driving. Judge Sidis commended Mr Whitehead for his rehabilitation to income earning activities.

64 To calculate damages for Mr Whitehead’s loss of income earning capacity he claimed the difference between his average weekly earnings when employed by Boral of $1,050 and the income earning capacity according to the award rates for a salesman working fifty hours per week which was $560. Both of these figures were net figures. Mr Whitehead’s evidence was that up to the date of the trial he had drawn little from the business. The trading profit and loss statement for the business for the year ended 30 June 2000 showed a net profit of $23,588.54 compared with a loss of $11,298.44 in the previous year of income after the business had been in operation for only two months. A distribution of $11,794.27 was made to Mr Whitehead and to his wife. Judge Sidis said that even if she were to allow that a greater proportion of the gross profit of the business should be attributed to Mr Whitehead’s efforts the resulting figure would still not approach the $560 per week net used for comparison purposes. Her Honour determined that she should allow the future loss of income capacity as claimed by Mr Whitehead and superannuation losses as claimed by him both to the age of sixty-five.

65 Boral submitted that Mr Whitehead would have been unlikely to maintain a career in truck driving, particularly for Boral, and referred to the warnings he had received. On this basis it was said that it was not legitimate to use his earnings as a truck driver as the basis for calculating economic loss and that a contingency deduction higher than 15 per cent, which apparently was the contingency factor taken, though this is not clear from the reasons for judgment, was called for. Boral submitted that Judge Sidis erroneously ignored the fact that the sales of the business from 1 July 1999 to January 2000 amounted to $275,000. It was then said that Mr Whitehead’s failure to provide proper figures to prove the true position achieved by the business invalidated her Honour’s approach.

66 This attack is without any justification whatever. No cross-examination was directed to Mr Whitehead to suggest that he had failed to provide proper figures nor was his accountant who had provided the material required to attend to be cross-examined about these figures. It was obvious from the accounts that only modest drawings were available to Mr Whitehead from the business. The trial Judge acknowledged that this might improve in the future but accepted the sensible proposal that Mr Whitehead’s earning capacity be measured by reference to the award rates for a salesman working fifty hours per week. The assertions in the written submissions that the amount awarded for superannuation was based on an incorrect approach to the assessment of future economic loss and did not take into account the full extent of the profits derived from the plaintiff’s business were not explained and should be rejected. In my opinion, no ground whatever has been shown to interfere with those heads of damage the assessment of which Boral challenged.

Cross-Appeal

67 Mr Whitehead submitted that Judge Sidis made a mathematical error in the calculation of the judgment sum of $514,603.27 after allowing a reduction of 10 per cent for contributory negligence. The trial Judge ought to have entered judgment against Muswellbrook in the sum of $587,511.28 and against Boral in the sum of $556,264.99. This correctly left to Mr Whitehead the option to choose whether to recover the whole judgment from Muswellbrook or to recover the maximum recoverable from Boral and the balance from Muswellbrook, with the practical effect of the contribution claims depending upon how Mr Whitehead satisfied his judgment. The calculations to arrive at these figures were complex and set out in Mr Whitehead’s submissions on the cross-appeal. They were required in order properly to apply s151Z of the Act. They explained the error in the calculation at trial and have not been challenged by either Boral or Muswellbrook. They show that Muswellbrook is only entitled to a contribution of $389,385.49 being 70 per cent of $556,264.99 from Boral and that Muswellbrook is liable to contribute $198,125.79, being the difference between $587,511.28 and $389,385.49, to Boral. As I have said, none of these calculations were challenged and in my opinion the verdict and judgment should be set aside and the figures so calculated substituted. Mr Whitehead is entitled to have judgment entered in his favour against each of the defendants for the full amount for which that defendant is liable; Oxley County Council v MacDonald & Ors (unreported) [1999] NSWCA 126 at para 51. Each of the defendants has its right of contribution against the other.

Conclusion

68 Boral’s appeal should be dismissed with costs to be assessed on an indemnity basis. Muswellbrook’s cross-appeal should be dismissed with costs. Mr Whitehead’s cross-appeal should be allowed and the amounts of the verdicts adjusted to accord with it. However, these miscalculations must, it seems to me, be attributed to the parties and I do not think there should be any order for the costs of the cross-appeal.

Orders
1. Appellant’s appeal dismissed with costs to be assessed on an indemnity basis;
2. Second respondent’s cross-appeal dismissed with costs;
3. First respondent’s cross-appeal allowed;
4. The verdict, judgment and orders of 14 December 2000 set aside other than the order for costs.
5. In lieu thereof
(a) verdict and judgment for the plaintiff against the first defendant for $587,511.28;
(b) verdict and judgment for the plaintiff against the second defendant for $556,264.99;
(c) verdict and judgment for the first defendant on its cross-claim against the second defendant for $389,385.89;
(d) verdict and judgment for the second defendant on its cross-claim against the first defendant for $198,125.79.
6. No order as to the costs of the first respondent’s cross-appeal.

69 STEIN JA: I agree with Sheller JA.

I agree with Sheller JA.

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