Cartwright v BlueScope Steel Limited

[2015] HCATrans 268

[2015] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S78 of 2015

B e t w e e n -

SYDNEY CARTWRIGHT

Applicant

and

BLUESCOPE STEEL LIMITED

First Respondent

WORKERS COMPENSATION NOMINAL INSURER

Second Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 1.09 PM

Copyright in the High Court of Australia

MR B.D. DOOLEY, SC:   If it pleases your Honours, I appear with MS T.T.C.N. PHAN for the appellant.  (instructed by Slater & Gordon)

MR G. CURTIN, SC:   If it pleases your Honours, I appear with my learned friend, MR D.I. TALINTYRE, for the first respondent.  (instructed by Sparke Helmore Lawyers)

MR L.D. ROBISON:   Your Honours, I appear for the second respondent.  (instructed by Kaden Boriss Lawyers)

BELL J:   Yes, Mr Dooley.

MR DOOLEY:   Your Honour, not in the application book, there are Appendix 1 and 2 to the Court of Appeal’s judgment - if I could hand copies to your Honours?  Are two sufficient, your Honours?

BELL J:   Yes.

MR DOOLEY:   Thank you.  Your Honours, if I could take you to the appendixes, if they are before you, Appendix No 1 is the first respondent’s securing guidelines.  Of significance is on page 1, the diagram next to “Coil Requirements”.  There is an issue at trial about whether the coils could be off centre or not and the diagram there has the four blocks preventing coil movement.

At trial it was known and at the court we pointed out that this diagram did not reflect the circumstances that occurred on that day and that there were no such blocks in position and our submission in relation to that is, the Court of Appeal having made that mistake, one could understand why they perhaps had some reticence about dealing with the issue of whether the coil could in fact be off centre, having made that mistake.

BELL J:   I am sorry, the mistake that the Court of Appeal made ‑ ‑ ‑

MR DOOLEY:   They set out that the set‑up of the coil on the pallet as at the day of accident included having the four blocks present on the pallet so that if one goes to the application book at 122 and 121, they are the actual pallets and wire coils, post‑accident.

BELL J:   Yes.

MR DOOLEY:   In fact the blocks, they are wire coils in 122 and 121 - what is shown in Appendix 1 is what is known as tin plate, a different product.

GAGELER J:   I am a little lost.  Is this one of the specific complaints you make?

MR DOOLEY:   It is one of the specific complaints that we make in relation to the Court of Appeal’s position where it found it unlikely that the coils on top of the pallets could be off centre, that is, the coils in fact vary in sizes and sometimes contained within the limits of the pallets and sometimes extend beyond the ‑ ‑ ‑

BELL J:   Mr Dooley, can you take us to the part of the reasons of the Court of Appeal that disclose this error.

MR DOOLEY:   Yes, your Honour.  That is at application book 60 at 22 - that is:

At least four blocks of wood were nailed to the platform of the pallet to prevent the coil from shifting on the pallet –

and that is the basis they proceed upon.

BELL J:   Mr Dooley, my understanding was that because of the way these coils were loaded on this occasion there were objects described as runners which prevented or made more difficult for a person to see that the wedges that kept the coils in place were not in fact butting up against the pallet.  Now, I may not be putting that well but I am right in my understanding thus far?

MR DOOLEY:   Only to a point, if I could take your Honour to Appendix 2.

BELL J:   Yes, do.

MR DOOLEY:   This is the setup as it should be at number 1 and that is the wedges are in fact, if - I am not sure how good the colour copy is - the green block of wood, and your Honours will hear reference to chocks or may have read reference to chocks.  Those are the pieces of timber that secure the wedges against - and what is there and it perhaps it is appropriate to describe it now - the deck of the pallet, that is the top of the pallet.

BELL J:   Yes.

MR DOOLEY:   So that is the way it should be in place and that is the way they secure the lateral stability, that is, to stop it rolling from side to side.

BELL J:   Yes.

MR DOOLEY:   An example of that at the bottom is where they are not in place and this is how it was, that is number 3, on the day of accident.  Your Honour sees the reference to the “X” and that is the centre of gravity; the tipping point becomes much thinner, if I can put it like that.

BELL J:   All right.  Now, as I understand the approach that the Court of Appeal took, putting to one side for the moment the question of the speed at which the plaintiff was travelling, but part of the Court of Appeal’s reasoning, I think, was that accepting that the wedges were below the level of whatever you describe it as, the pallet, and therefore not fulfilling their function, it remained that the coil would need to be off centre by an amount that - there was some expert evidence about ‑ ‑ ‑

MR DOOLEY:   Three inches, approximately.

BELL J:   Three inches, and there was some evidence that various things described, I think, as eccentricities, might lead to that - eccentricities in the way the coils were packed but did the Court of Appeal reason that there was no evidence in fact of any of those eccentricities and, accordingly, it could not be known if there was something of that kind whether responsibility lay with Bluescope because that would not touch on the adequacy of the guidelines, or with Mannway.  Is that roughly to analyse an aspect of their Honours reasoning?

MR DOOLEY:   Well, it is an aspect of it.  What the Court of Appeal said in relation to the, if I can describe them as the eccentricities, is that whilst both experts accepted the human setting up of putting a coil onto a pallet, then taping it there and then eccentricities could be in the manner and the construction of the pallet, that is, the deck could be off centre, the bearers, or they could be a bit thinner, the method of that was not proved because, to which we say, there was no forensic examination post‑accident. 

The experts who came along, who were engineering experts but not necessarily ones in the transport of these coils, first of all suggested that the system itself with the wedges in place provides such a margin for error that the human intervention, if I can put it like that, did not require pinpoint accuracy.  So, for instance, in the container guidelines one of the things to be watched for is whether the coils themselves are placed off centre in the container, or not.

But the system properly set up caters for all of that, so those small variations, so there was no case at trial that the system itself was faulty in its design.  It would have avoided this accident.  There were certainly improvements afterwards but for the purposes of the trial, it was adequate.  The only thing that was inadequate was the fact that the way this pallet was delivered with an extra runner at the bottom meant that the wedges were ineffective.  So that was the issue at trial. 

What was said, and from our point of view, we said when one looks at issues of speed and the tipping, the bang and the thud, your Honours, might have seen, is that the only explanation for this accident were these eccentricities.  Both experts accepted that these eccentricities, if I can describe them, that is not being pinpoint accuracy, would exist.  It was the extent of them that was really the issue.

The Court of Appeal in looking at that, what they did was they accepted the first respondent’s expert, Dr de Pont, that in particular the coil being off centred would be easily observable, that is, by the employees who are at Mannway who are putting it in place and he suggested that anything in excess of 10 millimetres would be readily observable and they ought to have done something about it.

To put that in some context, that is less than the width of the end of your little finger that they are suggesting.  If one goes to the photograph and suggesting if that was off centre, the Court of Appeal felt that would be readily or accepted Dr de Pont that would be readily observable.  We respectfully say that just lacks all suggestion of common sense, particularly in circumstances where the coils are not of a fixed size, that they can easily extend past the parameters of the deck of the coil and sometimes within, and on this particular day, the coils apparently ought to have fitted within the confines of the pallet deck.

So that it was on that basis that the Court of Appeal seemed to have difficulty, or they worked from that point, and to say, well, if you have not proved those eccentricities - and the phrase they used and they required, and we say impermissibly, that the appellant was required to prove “with precision the degree” of those eccentricities and that is at application book 87 at paragraph 101. 

So that they set a test that was impossible and it would be impossible for any plaintiff to meet in circumstances where there has been no forensic examination and we say the Court of Appeal should have approached it from the position of looking at the factual circumstances and to see whether the inference is available because the court, having worked from the position of eccentricities and dismissing them, that is, we had not proved them with precision, then set about, rather than looking at the issues of speed and the timing of the tip and the thud, which I will take your Honours to, they in response to that did not come to a position of us as saying whether we had proved it on the balance of probabilities, merely said, look, there are other alternatives available and therefore dismissed the evidence.

We say that is clearly the wrong approach and if they had approached it correctly and allowed for the trial judge’s significant advantage she enjoyed in relation to that evidence, that only one conclusion was open.

GAGELER J:   Did the Court of Appeal in paragraph 96 at page 86 correctly characterise the way in which the plaintiff’s case on negligence was put?  Just the last two sentences, really.

MR DOOLEY:   Yes, and, your Honour, that is set out in readily understandable form, particularly at application book at 127 and it sets out the sequencing - and this is prepared by the first respondent - and that is that the tipping commences because there is no contact between the pallet deck and the wedge.  Then over the page at 128, then the coil tips and hits the side of the container and of particular interest in this case is the fact the wheel is on the ground and that then to 129 is then the weight of the coil having struck the side, then the sequence is that the trailer wheels come from the ground and the tipping over occurs.

BELL J:   But what was the evidence that the Court of Appeal accepted as to the speed at which the vehicle needed to be travelling in order for that process, that is, the slipping, to commence by reason of the wedges not engaging with the pallet.

MR DOOLEY:   Your Honour, it was agreed at trial between the experts that there are a couple of basic calculations and that is, the trailer itself at this corner, with this load perfectly in place, would itself tip over at speeds of somewhere between 71 and 73 kilometres.

BELL J:   Yes, now, if one looks at the trial judge, it may be implicit that her Honour accepted that the plaintiff was not travelling at that speed but I think there was some evidence pointing to the likelihood, absent eccentricity, of the mere defect in the packing by reason of the wedges, causing the coils to start to tip.  There was some factor of speed involved in that, was there not?

MR DOOLEY:   Yes, and that ‑ ‑ ‑

BELL J:   What is that and can you take us to the evidence?

MR DOOLEY:   Yes, I can take you to that.  So, first of all, the 71 to 73 is at application book 81 in paragraphs 82 and 83.

BELL J:   Yes.

MR DOOLEY:   The wedges absent and all things being equal, the minimum speed that they would tip at was 75 kilometres an hour, that is, a higher speed.

BELL J:   I see.

MR DOOLEY:   That is at application book 82, paragraph 84, line 3.  So that was not an issue at trial.  What became the issue, or what was the issue is this, is that there was no explanation, all other factors having been, as it were, excluded.  Perhaps that word is a little bold but at less than 70 kilometres an hour, there is no reason or no cause of the truck tipping over, other than load shift, that is, the movement of the coil.

BELL J:   But the load shift at less than 75 kilometres an hour could not be explicable solely on the basis that the wedges were not abutting the pallet.  Is that right?

MR DOOLEY:   That is correct, your Honour.

BELL J:   One required to establish on the balance that there were some eccentricities in the packing.  Is that so?

MR DOOLEY:   That is correct.  We say that the system itself provides for some eccentricities, if I can describe them for that, and are taken care of, but that if one accepts, as the trial judge did, the evidence about speed and it was accepted there was no other explanation for this accident occurring other than load shift at a speed lower - below the speed limit is perhaps the easiest way to put it - and that, your Honour, was accepted by both the trial judge and the Court of Appeal accepted that the issue of speed therefore became a critical issue and the Court of Appeal set that out at the application book at 80 at paragraph 79 at line 10.

So that the trial judge in terms of her finding as to speed found that - and there was the phraseology that the Court of Appeal took issue with - was not excessive in the circumstances and we say this on the background of the real issue was whether this accident happened at or below or above the speed limit.  Her Honour then goes on to say it was not excessive in the circumstances and a speed of 60.4 or even 61 was not excessive, and that is at application book ‑ ‑ ‑

BELL J:   Page 10 at paragraph 27.

MR DOOLEY:   Paragraphs 26, 27 and 29, yes, your Honour.  The trial judge went on to find that the most compelling evidence - and the reason, perhaps if we go back a little - that is, the evidence of load shift occurring before the trailer tipped, because those are the critical issues, was the bang and the thud followed by the container tipping, from the appellant, and in dealing with those two circumstances, and her Honour – I am sorry, I have moved on - the reason it was critical, her Honour found that with all the expert evidence that they proceeded upon assumptions that were unproved because there had been no forensic examination.

Each postulated a series of possible events and none could be proved one way or the other, so that then the Court of Appeal, in dealing with speed, found that the reference to that it was not specific as to the finding of speed went on itself to make the same finding but in the alternative and that is that he was travelling in excess of the speed limit which is at application book 91, line 12.  They ignored the balance of her Honour’s findings which I have taken your Honour to. 

They criticised, and this really is at the heart of it, the appellant’s speed as being inconsistent, that is in terms of dealing with his evidence, and that is his evidence was it is 55 or 60 kilometres an hour, a five kilometre difference.  They ignored totally what one would have thought was the most important evidence of the case and that is the lay witness who said he was travelling at 55 and 60 kilometres and in addition ‑ ‑ ‑

BELL J:   The GPS might be thought to have provided some support.

MR DOOLEY:   The GPS, which of course is something the parties became aware of afterwards, shows you he is doing 60.4 and the Court of Appeal deals with this by merely saying he could have gone faster.  Well, he could have gone slower.

BELL J:   Mr Dooley, can I take you back to the matter I raised with you earlier?  At application book 95, paragraph 121, the Court of Appeal says:

Even if Mr Cartwright were able to establish that there were eccentricities present, it is not possible to say whether such eccentricities arose because of the conduct of BlueScope or the conduct of Mannway. 

Now, I am not sure what your answer to that is.

MR DOOLEY:   That is, it is not an issue at trial.  It is accepted that there could be eccentricities and it is accepted that the BlueScope design took perfect care of them, as it were, that is, it was incorporated with the design as long as the wedges were in place and ‑ ‑ ‑

BELL J:   So, it was accepted at trial that provided the wedges were in place any eccentricity in the sense of packing that was off centre would not have affected the load?

MR DOOLEY:   Not in the slightest, so that the difference, to give you some idea, your Honour, is at 75, the load tips over.  With the wedges in place, I think, it varied between 106 and 144, so that the system itself was good and provided a buffer which easily accounted for these human variations.

BELL J:   Yes.

MR DOOLEY:   Your Honour, then the other matter with the tipping over, the Court of Appeal said in relation to that that they merely suggested that it could have happened so quick that the appellant was not aware of the temporal occurrence.  With respect, they did not take into account his statements to police and the advantage the judge enjoyed. 

Your Honour, the only other matter perhaps is in relation to - I think we have said in our submissions - about whether the first respondent’s duty should extend to these circumstances.  With respect to that, the Court of Appeal in their costs judgment at application book 103, 10 from lines 22 to 28, set out there that really, the first respondent not only controlled everything, it was the only one with the expertise in relation to it and the suggestion that the Court of Appeal seemed to indicate that the scope of the first respondent’s duty of care, which is admitted to be owed, could not overlap with the second respondent’s duty setting out that because it ought to have been aware of the failure that somehow that limited their side.

BELL J:   All right.  Thank you.

MR DOOLEY:   Thank you, your Honour.

BELL J:   Yes, Mr Curtin.

MR CURTIN:   Your Honours, can I start with the scope of duty point?  The scope of duty contended for by the applicant was that my client ought to have warned Mannway of these undersized wedges.  It follows for causation purposes, the need to prove that had my client warned Mannway of these undersized wedges, then something different would have been done.

But the Court of Appeal analysed the scope of the duty point commencing at application book page 91 and followed and we say, in an orthodox manner, the process of reasoning that one takes from cases as Leighton v Fox and Stevens v Brodribb but this is also in the context of the admission of the breach of duty by Mannway which your Honours will find at ‑ ‑ ‑

BELL J:   Page 94, paragraph 118.

MR CURTIN:   Yes, quite.  So, Mannway admitted that it actually knew of the undersized wedges or it ought to have known because of our guidelines, et cetera ‑ ‑ ‑

BELL J:   I thought your guidelines had not been amended to take into account circumstances when pallets were loaded with the use of the crane, not the forklift, and you used the runners and then you had the difficulty with the wedges.  Is that not the position?

MR CURTIN:   That is correct but the guidelines were, if you like, a little more descriptive in the sense that they indicated that the wedges – sorry, can I take one step back?  The guidelines, or what the Court of Appeal called the abbreviated guidelines that are in the appendix that Mr Dooley kindly provided to your Honours, do not of themselves specify the dimensions of the wedges.  Nor do they indicate, for example, the presence of runners, but what they do inform the reader is that the wedges must be in contact with the pallet or the coils, if the coils overlap the pallet.

BELL J:   Did the primary judge approach the matter on the basis that when one changed the system of operating, producing the result that the wedges did not butt up against the pallet, it was necessary to tell Mannway of that change?

MR CURTIN:   Yes, the primary judge did, yes, but the primary judge did not - I will just mention this in passing, I may have to come back to it - there was no causation evidence, that is, there was no causation evidence that had a relevant person from my company informed a relevant but unidentified person at Mannway that that Mannway person would probably ‑ ‑ ‑

BELL J:   Just looking at the Court of Appeal’s analysis, one criticism that Mr Dooley makes is that the Court of Appeal rejected what Mr Dooley contends is the clear finding that the primary judge made respecting the speed of the truck at the time.  As I understand it, you are developing an argument that when one understands the Court of Appeal’s reasoning, there was a basis for the upholding of the appeal that had nothing to do with that issue.  It is at a more fundamental level concerning the scope of the duty.  Is that right?

MR CURTIN:   Yes.

BELL J:   Now, can we just see where in the Court of Appeal’s reasons that is most evident?

MR CURTIN:   The point I am trying to make, your Honour?

BELL J:   Yes, yes.

MR CURTIN:   The analysis commences, your Honours, at application book page 91.  The point I am trying to make, your Honours, that on the assumption Mr Dooley is right about everything he says about speed and eccentricities, et cetera, that just leads one to summarise that the absence of wedges contributed to the overturning.

BELL J:   Yes.

MR CURTIN:   Then one goes to legal responsibilities.  The assertion is we ought to have warned Mannway.  The Court of Appeal says, commencing at 91 but most particularly on page 92, judgment paragraph 115 through to page 94, paragraph 120 - it is a bit hard to summarise all of that into one but where a principal has a ‑ ‑ ‑

BELL J:   Well, I think the primary judge might have noted Leightons and Stevens v Brodribb, so it is a question of how the principles in those cases were applied and I am just looking for – if you can just direct us to where the Court of Appeal actually drew a conclusion about the scope of the duty.

MR CURTIN:   Yes, your Honour.  Page 92, your Honours, at about line 25, towards the end of that line:

However, provided that the principal retains a competent contractor, and the relevant activity is placed in [Mannway’s] hands, [BlueScope] is not subject to an ongoing general law obligation –

of the type that employers have, and then over the page, page 93, line 2:

The duty does not extend to retaining control of the working systems, if it is reasonable to engage the services of independent contractors who are themselves competent –

Keep in mind, I want your Honours, our submission, to remember that Mannway – I will come to the evidence if necessary – knew that wedges were supposed to be in contact with the pallets or coils and then at page 94, paragraph 118, we have the admission by Mannway and then coming perhaps to your Honour Justice Bell’s question, paragraph 119:

The concession by Mannway . . . highlights that BlueScope’s duty did not extend to warning Mannway of the inadequacy of standard size wedges . . . It was physically possible for Mannway’s supervisors to do ‑ ‑ ‑

the job.  Then, Mr Rooney, the former State Manager for Mannway, gave evidence.  Not only did he interpret the abbreviated guidelines as saying the wedges must be in contact, he says it was common sense, of course, the labour level employee who puts it under would know from physically doing it, and then a Mannway supervisor was supposed to come around and check that everything was done per our guidelines and obviously did not check on this occasion or did so negligently.

So, as a principal who organises an activity with a competent, independent contractor, when the contractor is under no illusions the wedges must be in contact with the pallets, they are trained to do it, everybody is trained, they are given a diagram ‑ ‑ ‑

BELL J:   Yes, it is at paragraph 124, I think.

MR CURTIN:   Yes, I am sorry, yes.  Thank you. your Honour.

BELL J:   Yes.

MR CURTIN:   So, our point is, on the assumption Mr Dooley is right about everything else, about physically what happened and what caused it to happen, there is no doubt or no sufficient doubt about the process of reasoning of the Court of Appeal on the scope and breach of duty.  Associated with that is, on the assumption the Court of Appeal were wrong on that point, in this particular case there was no causation evidence, that is, there was no identification of who should be warned at Mannway and then that person probably would have done something.

BELL J:   Yes.

MR CURTIN:   If we come back to what Mr Dooley says about speed, et cetera, the primary judge made no finding of speed.

BELL J:   Well, her Honour did not make a finding that, for example, the plaintiff was travelling at 62.5 kilometres an hour.  One would wonder about a primary judge who made such a finding.

MR CURTIN:   Yes.

BELL J:   I think the point that Mr Dooley seeks to make is that it is tolerably plain from page 10, paragraphs 26 to 29, that her Honour made an affirmative finding that the plaintiff was not travelling above the speed limit.

MR CURTIN:   Yes, well the speed limit at that place, your Honour, was 70, 70 kilometres per hour.

BELL J:   So that was a finding that the plaintiff was travelling at a speed lower than the speed that would have led to the vehicle overturning on the bend.

MR CURTIN:   Yes, if that is a finding.  We submitted to the Court of Appeal which it accepted that was not.  Now, I am not suggesting to your Honour that a primary judge in these circumstances would be required to make a finding of speed to a decimal point or even to a single kilometre per hour, but the plaintiff’s evidence, at least say at the end of the cross‑examination was 55 kilometres per hour.  The experts agreed that not even an eccentricity of 75 millimetres, together with the absence of wedges, would have been sufficient for the load shift.

BELL J:   Yes.

MR CURTIN:   No positive evidence of eccentricities.  There was some evidence that it was unlikely an eccentricity of that degree would have gone unnoticed and that was Dr de Pont’s evidence where he said that 75 millimetres would have been obvious.  Now, once these things are placed in a container, there is about a half a metre, 50 centimetres on either side and so 7.5 centimetres to these people, at least to that expert, would have been obvious so there was some evidence that an eccentricity of 75, which even then was not enough to topple at 55, did not exist.  They did not go on to say how many millimetres would be required to get to 55.

Now, the 60.4 from the GPS, the experts could only say that at some point in time, that is when the GPS apparatus recorded that speed - Dr de Pont said he thought obviously enough it had increased in speed thereafter but it is not corroborative in the sense of that is a recording ‑ ‑ ‑

BELL J:   I thought the GPS recordings did record the time.

MR CURTIN:   Yes, and they were set out but ‑ ‑ ‑

BELL J:   The time of the accident was established within a minute.

MR CURTIN:   Yes, roughly I think it is every minute, every five minutes; something like that.  But once the trailer tips over, or the prime mover rather, it loses contact with the satellite and so on the printout it goes 60.4 ad infinitum thereafter.  So, one thing on this question of the acceptance of the plaintiff, he was cross‑examined as to credit - differences between the version he gave to the police, he gave in cross‑examination, et cetera, and

the primary judge, if that is a finding on page 10 that your Honour Justice Bell pointed out, a factual finding, her Honour never resolved the challenge to credit of the plaintiff, mainly in terms of reliability, of course, as distinct from honesty.

One item of credit, accepting of course a driver may not be expected to recall speeds to a single digit, his evidence was he knew it was 55 because he was looking at the speedometer but the GPS proves he is at least five kilometres out.  So, your Honours, the Court of Appeal was faced with, of course, a frequently occurring situation of sudden events being recalled by human beings and giving evidence about it, many years later, some of that evidence being inconsistent, some of it being contradicted by the GPS and most relevantly, the plaintiff’s evidence of 55, being said by these experts to say, well only if there was some eccentricity of such a large degree, somebody would have noticed it.

Now, having said that, of course, accepting what Mr Dooley says, that eccentricities was not alleged to be negligent by anyone, the guidelines require centring of the load perhaps within a few millimetres, but 75 millimetres is not an acceptable degree of eccentricity, one would think.

BELL J:   Yes.

MR CURTIN:   Unless there are any other matters.

BELL J:   Thank you, Mr Curtin. 

MR CURTIN:   Thank you, your Honour.

BELL J:   Mr Robison.

MR ROBISON:   Thank you, your Honour.  At least in my copy of the application book, there is an error in the printing which has resulted in the third page of our outline not being included which should be at page 147.  I have a copy of that page, if your Honours are missing it.  It really just extracts part of the Judiciary Act.  One page is repeated, that is the cause of the problem.

BELL J:   I see.

GAGELER J:   What are we missing?

MR ROBISON:   The third page of our outline, your Honour.

GAGELER J:   No, what is on it.

MR ROBISON:   It essentially just extracts the Judiciary Act, so it will not be particularly ‑ ‑ ‑

BELL J:   I have page 147A with the Judiciary Act, section 35A.

MR ROBISON:   It might have been updated then, your Honour.

BELL J:   Yes, all right.

MR ROBISON:   Yes, thank you, your Honour.  Your Honour, in this matter there were essentially two or possibly three competing case theories as to how the truck came to grief.  Either it was caused by speed or by the packaging of the steel coils, or by some combination of the two.  The learned trial judge put it in this way.  She said, and this is at page 3 of the book, that:

Two competing hypotheses were proposed as the cause of the accident.

One might refer to those as the speed hypothesis and the packing hypothesis and I note your Honour Justice Bell’s comments that a trial judge might not be expected to make a specific finding to a decimal point about speed but in this case, with respect to the trial judge, there was no finding, for example, of a range of speeds which the plaintiff, the applicant might have been driving.

BELL J:   There was, on a view, a finding that the plaintiff was travelling at lower than the 70 kilometre per hour speed limit for that portion of the road and if that is so that might have some significance.

MR ROBISON:   I understand that, your Honour, yes, but in any event, the Court of Appeal was authorised by the Supreme Court Act to make its own findings of fact and in accordance with well‑established principles in Fox v Percy and so on it did so in a manner which did not violate the principle that an intermediate appellate court should give deference to a trial judge on matters of creditability and so on, because as my learned friend has pointed out, the credibility issues about the differing versions of events as to speed, were not expressly determined by her Honour, the primary judge.  So, it was appropriate in those circumstances, in my submission, for the Court of Appeal to do so.

Having proceeded to make a factual finding that the plaintiff, the applicant was travelling at an excessive speed, it was thereafter reasonable for the Court of Appeal, in my submission, to prefer the speed hypothesis that that was the main causative event.  The application in reality, in my submission, seeks to invite the High Court to find as a fact what the factual

causation of a truck rolling was.  In my submission, it raises no important principle and although the applicant relies on the visitation jurisdiction of the Court and the hardship occasion to the applicant, there is no material before this Court about his position other than the fact, of course, that he has been deprived of the damages which he was awarded at first instance which were of course significant.

BELL J:   Yes, thank you.

MR ROBISON:   May it please the Court.

BELL J:   Thank you.  Yes, Mr Dooley.

MR DOOLEY:   Your Honour, just a couple of things. In relation to the issue of wedges, the size and design of them was set by the first respondent and complied with by the second respondent; basically the issue of causation.  There is evidence at trial, we are aware, that this set up had occurred elsewhere.  It was merely a question of removing them, moving the additional runner so that it went back to, as it were, the old system. 

The actual system in place, set out in Appendix 1, indicates there that, and once again back to the labour level employees and the prospects of sighting this change, the guidelines provide for the wedges to be against the pallet, not the pallet deck and they are undoubtedly against the pallet, just the runners of the pallet.

The only other matter, your Honour, is the issue which the first respondent primarily relies upon is failure to establish in the Court of Appeal with precision these eccentricities.  We presented enough evidence as to and, albeit, perhaps relatively slight evidence in relation to it, but Mr Hines, who is the technical services director of the first respondent, the person one might think was in easily the best position to give evidence, direct evidence about the eccentricities or the production method or whether the repair method of pallets and the like, sat in court, provided an affidavit to Dr de Pont on some aspects and at the end of the trial, notwithstanding him being present outside court, was not called and the Court of Appeal should properly have taken that into account to see whether we had discharged our onus of proof.  May it please your Honours.

BELL J:   Thank you, Mr Dooley. 

We are of the opinion that there are insufficient prospects that, were special leave to be granted in this matter, the appeal would succeed.  Special leave is refused with costs.

AT 1.58 PM THE MATTER WAS CONCLUDED