| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DALEY -v- WENN & ANOR [2002] WADC 224 CORAM : WILLIAMS DCJ HEARD : 5-9 AUGUST 2002 DELIVERED : 18 OCTOBER 2002 FILE NO/S : CIV 1657 of 2000 BETWEEN : WILLIAM ROY DALEY Plaintiff
AND
GENE MARIE THERESA WENN
ROSS MAXWELL WENN
Defendants
Catchwords: Negligence - Plaintiff delivering limestone blocks to building site - Plaintiff alleging defendant failed to compact filled in trench causing injury to plaintiff
Legislation: Nil
Result: Plaintiff's claim dismissed
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Representation:
Counsel:
Plaintiff : Mr A J Power
Defendants : Mr M W Schwikkard
Solicitors:
Plaintiff : Bradley & Bayly
Defendants : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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WILLIAMS DCJ:
Introduction 1 The plaintiff is a truck driver and tractor operator who was born on 9 June 1942. The defendants are the proprietors of the business Professional Limestone Services and as such they carry on the business of stonemasons. 2 At all material times the plaintiff was employed by Limestone Building Co to deliver limestone blocks to building sites by use of a truck and tractor. 3 On 11 October 1999 the plaintiff's employer required the plaintiff to deliver limestone blocks to the building site at 39 Glenlark Elbow, Jane Brook for use by the defendants, their servants or agents, who were constructing a limestone wall. 4 The plaintiff used a tractor to move pallets of the limestone blocks from the truck to the site where the defendants, their servants or agents were working. The tractor was modified so its large wheels were at the front, a forklift was fitted to it for carrying blocks and a concrete counterweight was fitted to the rear. The tractor did not have suspension. The back of the driver's seat was fitted with side wings to prevent the driver being thrown from the seat when driving over rough ground. 5 The plaintiff placed each pallet of the limestone blocks along the edge of a string line which the defendants had set up parallel to the wall under construction. The building site was bordered by a trench some 400 millimetres wide cut into the soil into which a fibrocement dividing fence was to be installed at a later date. 6 Pars 7, 8 and 9 of the plaintiff's re-amended statement of claim allege as follows: "7. The plaintiff unloaded all limestone on the truck at which time he realised the position of the string line and delivered blocks was such he could only deliver a further truck load of blocks by driving over the trench. After unloading the truck the plaintiff requested the defendant's servants or agents to fill in the trench so that he could drive the tractor across it to deliver the next load of blocks. The plaintiff left the site to collect more blocks
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and on returning found the trench had been filled by the defendant's servants or agents with clean sand, which had been graded level with the surrounding ground. Unknown to the plaintiff the sand had not been compacted and was loose. 8. The plaintiff drove the loaded tractor towards the trench at an angle of approximately 45 degrees and at a speed of approximately 5 kilometres an hour. The tractor's right front wheel hit the trench first and sank into the soft sand as a consequence of which: (a) the plaintiff was thrown against the steering wheel, and; (b) the right front wheel stopped turning causing the tractor to yaw to the left throwing the plaintiff forcefully against the right wing of the seat, and; (c) the tractor's left front wheel then entered the trench as the right front wheel came out causing the tractor to roll to the right throwing the plaintiff forcefully against the left wing of the seat and then as the tractor drove out of the trench he was thrown against the right wing of the seat once more. 9. The plaintiff's injuries were caused by the defendant's negligent failure to compact the sand in the trench when they knew or should have known that a heavy tractor carrying a pack of limestone blocks could easily sink into the sand causing injury to the driver." 7 The plaintiff alleges that as a consequence of the defendants' negligence he suffered an injury to his lower back. 8 The defendants deny that they were negligent as alleged by the plaintiff or at all.
Plaintiff's evidence on liability 9 According to the plaintiff on 11 October 1999 he commenced work at 5.30 am at Yanchep. He loaded up his truck with 12 pallets of reconstituted limestone blocks and arrived at the site at about 7.45 am.
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There were four persons on site including the male defendant ("the defendant") whom he knew as Ross. The defendant instructed him where to place the blocks. There was already a house on the block and he was instructed to put the blocks four metres out from a string line on the outside of the job. 10 According to the plaintiff he parked his truck in the cul-de-sac as shown in Exhibit 5A. That exhibit also shows a trench line running from the left of the plan to the bottom of the plan. According to the plaintiff the bottom section of the trench was filled in. Beyond that the trench was open up to the fence line. Alongside the trench was a pile of grey sand measuring half a metre high by two metres across. The plaintiff commenced placing the blocks in accordance with the instructions commencing from the top of the page and working his way down as shown on Exhibit 5A. 11 According to the plaintiff he had a discussion with the defendant about having a section of the trench filled so that he could have access for the last load. The position where he says the trench was to be filled was between the words "trench" and "grey sand" on Exhibit 5A. He was told by the defendant that that would be filled in when he went to get the last load. 12 According to the plaintiff he left to pick up the second load and when he returned the defendant was not present on the site. He did not speak to anybody at that site on the second load but when leaving he parked in front of the person operating a Mustang bobcat and indicated towards the trench. That person was looking at the plaintiff and the plaintiff traced a U shape with his hand and said the word "trench" in a loud voice. The bobcat operator gave a thumbs up wave. 13 When he delivered the second load he crossed over the part of the trench that had been filled in when he arrived on the first occasion. 14 When he returned on the third occasion the trench had been filled in as indicated by him on Exhibit 5C. The same bobcat operator indicated and pointed to the trench and gave the thumbs up. The plaintiff gave a thumbs up sign back. He had then noticed that the trench had been filled in and flattened off and backgraded to smooth out. He approached the newly filled in section of the trench at a 45 degree angle. As his right front wheel approached the filled in section of the trench, it sunk and came to a sudden stop. The plaintiff was thrown forward with a very sudden movement. The momentum of the tractor forced the right wheel
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out and he was thrown in the opposite direction. According to the plaintiff it was this movement which twisted his body around and caused the injury to his back. 15 According to the plaintiff he continued working. The accident happened about 2.20 pm and he finished work at 5.30 pm.
The defendant's evidence on liability 16 According to the defendant he was building the retaining wall for the owner of the property a Mr Gray. At that time he employed Adam Wenn and Jim Rumsley on the site and no other persons were employed on the site. On the day in question he arrived just before 7.00 am and he recalled the tractor and truck arriving about 7.00 am. He had seen the defendant before on other deliveries because he had used his employer to provide blocks. 17 He wanted the blocks no closer than four metres from the string line because that would give a comfortable working space. The plaintiff had done this for him previously. 18 According to the defendant he did not offer to fill in another part of the trench. He did not say to the plaintiff to remind the bobcat driver to dig the trench. Neither did the plaintiff ask him to fill in the trench to create access for him. According to the defendant there was no other discussion other than the placing of the blocks. 19 According to the defendant he went off to get morning tea somewhere between 8.30 am and 9.00 am and that took a maximum of half an hour. He then returned to the site. He did not know if the plaintiff was on site when he left and he does not remember the plaintiff being there when he left. Thereafter he did not leave the site until late in the afternoon. 20 The defendant saw three deliveries by the plaintiff. He was there in charge all day and he saw each delivery on site. Every time the plaintiff came back he would ask the defendant where he wanted the blocks and the defendant would tell him. There was no other discussion apart from that. 21 First thing that morning he had filled in approximately two and a half metres of the trench. Basically that trench was for his own purpose.
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22 When shown Exhibit 5C he denied that the trench had been filled in and back-bladed by him at the point indicated by the plaintiff. Neither did he see the plaintiff trying to cross the trench at the point marked by him. When the plaintiff arrived with the first load there was clear access at that time and that was the same position for load number two. The defendant could remember the plaintiff leaving after the last load.
23 The plaintiff said nothing about his accident at the time and he knew nothing about the matter until he received a letter from the plaintiff's lawyer some six months later. 24 Mr Jason Gray is a structural designer and the proprietor of 29 Glenlark Elbow, Jane Brook. The property is at the head of a cul-de-sac and he had a homestead built on the property. The front of the property faces north and the back of the property faces south. The property fell away from south to north. For that reason it was necessary to build retaining walls. Immediately to the east of his block was a vacant block. For that reason he decided to erect a dividing fence. He arranged for a person to dig a trench. That was done by way of a mechanical trench digger. 25 The trench ran from the back of his property all the way to within one metre of the power dome. He erected the dividing fence. 26 It was he who engaged Professional Limestone Services to erect the limestone retaining wall. 27 He was shown Exhibit 5A being the plaintiff's document with regard to the first load. It was his evidence that when he arrived home on the day in question that the trench had been filled in on the roadside of the wall. He denied that there was any grey sand on his property. There was builder's sand on the front of the property. He described the area of the trench as having been filled in as around about the A on the word "Area" on Exhibit 5A. He had started erecting the fence from the rear of the block. He used fill from the trench to support the fence. No other part of the trench had been filled. 28 He was shown Exhibit 5C being the plaintiff's explanation of the third load. He denied that that part of the trench alleged by the plaintiff to have been filled in was filled in. He was required to re-excavate the area that had been filled in. He dug it out on the following weekend. 29 When he came home nobody was left on site.
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30 Mr Adam Wenn is the nephew of the plaintiff. He was employed by his uncle doing limestone retaining. He worked on the site the subject of these proceedings. He worked there both with the defendant and Jim Rumsley. He had seen the plaintiff before. He had seen him in circumstances where he had been delivering blocks to other jobs and driving a tractor.
31 In respect of the day in question he recalled the blocks being delivered but was unable to recall who delivered the blocks. He recalled a tractor being used to deliver blocks. On that site the plaintiff had a bobcat which the plaintiff operated. He himself did not drive the bobcat on that site. He was not permitted to drive at that stage. Neither did Mr Rumsley drive the bobcat on that site. 32 He did not recall any conversation with the driver of the tractor in relation to the filling of the trench. He did not recall any hand movements and he did not recall any thumbs up sign to the driver. 33 He was unable to remember if any part of the trench was filled in. He could not remember anything exceptional about the job, in particular no one reported having had an accident. It was his evidence that there were just the three of them on site.
Findings on liability 34 Both counsel are agreed that the issue of liability turns on credibility and in particular whether or not the plaintiff's evidence is accepted. 35 In my view the evidence is overwhelmingly against the plaintiff. Both the defendant and his nephew, Ross Wenn, denied that the situation was as stated by the plaintiff. Additionally the owner of the property, Mr Gray, was positive that the trench was never filled in at or around the position asserted by the plaintiff. 36 Mr Gray would know because he was the person responsible for erecting the fence. He had the additional task of re-excavating the area that had been filled in by the defendant at the front of the property. He was positive in his evidence that that part of the trench that the plaintiff asserted was filled in had not been filled in at all. Neither was there any grey sand on the property. The only sand was builder's sand at the front of the property. 37 There are a number of other aspects which in my view make the plaintiff's evidence unreliable.
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38 In the first place it is asserted in par 7 of the plaintiff's re-amended statement of claim (amended pursuant to my order of 5 August 2002) that:
"After unloading the truck the plaintiff requested the defendant's servants or agents to fill in the trench so that he could drive the tractor across to it to deliver the next load of blocks." 39 At the commencement of the trial the plaintiff's counsel opened on the same basis by stating that the plaintiff would say that during his discussions with the defendant, the defendant indicated to him that he would organise for the trench between the two properties, which was at that stage partly opened, to be partly filled so that the plaintiff could drive across it to drop the last load of pallets off. 40 In cross-examination the plaintiff acknowledged that initially he was represented by another firm of solicitors. When his present solicitors took over he went over the amended statement of claim with his solicitor and the plaintiff read that document. 41 He acknowledged that in his evidence-in-chief he had told the Court that the defendant offered to fill in the trench and said to him to remind the bobcat driver to do so before he came back with the next load. 42 The plaintiff was then referred to par 7 of his statement of claim. He was unable to explain the difference.
43 I accept that a difference between a pleaded fact on behalf of the plaintiff and the plaintiff's evidence-in-chief is not necessarily fatal to the plaintiff's claim. However in this case the plaintiff acknowledged that he had read the amended statement of claim. In those circumstances it is difficult to see how those differences arises. In my view there is a considerable difference between the defendant offering to fill in another part of the trench and the plaintiff requesting that part of the trench be filled in.
44 The plaintiff was also referred to question number 16 and his answer in his Interrogatories.
45 This is contained in Exhibit 11. Question number 16 reads as follows: "Describe in words the precise location on the building site at which the alleged accident occurred, using a diagram of the
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building site as necessary. Such description should indicate details of the direction in which the tractor was being driven, where any other pallets of limestone blocks had been placed and any obstacles on the building site." 46 The answer was as follows: "I drove the tractor from the rear of the truck shown in the diagram marked Annexure "A" attached hereto, following a route as marked by the red line on that diagram, the site of the accident being at the termination of that red line which is marked with a red square." 47 The plaintiff accepted that that description was inconsistent with Exhibit 5C. Annexure "A" shows the path of travel to the right of the pile of dirt whereas Exhibit 5C shows the path of travel to the left of the grey sand. The plaintiff accepted that Annexure "A" and Exhibit 5C were inconsistent. His first explanation was that the grey sand was shown in the wrong place. It was then put to him however that looking at the plans the sand piles appeared to be in a similar position and he accepted that proposition. 48 It was put to him in cross-examination that the Interrogatories were sworn some 18 months ago being a period closer to the accident and that his memory would have been better at that time. The plaintiff's evidence was that his memory was not better then. His memory had improved since he had been off tablets. He accepted that the two documents were inconsistent and said that they may be because he was on medication at that time. 49 The defendant had three submissions in that respect: · Firstly, his then solicitor, Mr Seaman, as an officer of the Court, if he thought Mr Daley was in any way affected would not have let him swear an affidavit.
· Secondly, Mr Daley swore the affidavit before his own pharmacist, Mr Hywood. He would have known that he was on medication and if he thought that he was adversely affected it was unlikely that he would allow him to swear the affidavit.
· Thirdly, no evidence was led as to the narcotic effect the medication would have had on Mr Daley. Two doctors were called by the plaintiff and neither of them was asked.
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50 Those are propositions that I accept. In my view it would be most unlikely for Mr Daley's memory to improve with time. In my view this adversely affects Mr Daley's evidence in two ways. Firstly, there is the acceptance by him that the documents are inconsistent. Secondly, his explanation that he was labouring under the effects of medication is unlikely to be true.
51 Furthermore, Mr Daley accepted that Annexure "B" to his interrogatories was similar to Exhibit 5B with respect to the trench and the fence line. 52 Mr Daley's only explanation was that on that day he was taking in the vicinity of six to seven Panadeine Forte a day and at present takes only two per day. 53 The plaintiff was positive that he did not ask the defendant to fill in the trench as stated in his court papers. 54 The plaintiff was most insistent that there were four workers on the site and that the defendant left the site and did not return. There is no evidence of a fourth person being on site except for a short period of time when an unrelated person delivered sand. The plaintiff was most insistent that the defendant was not the driver of the bobcat. Adam Wenn's evidence was that he did not drive the bobcat and neither did Mr Rumsley. Only the defendant drove the bobcat. I accept that evidence. In those circumstances it is not possible for the events to have occurred as said by the plaintiff. The defendant was cross-examined in relation to business transactions which might suggest that the fourth person on site was a Mr Stewart Innes. In my view the defendant gave a credible explanation in respect of that on the basis of joint ventures. 55 I find that Mr Gray was an entirely impartial witness. He corroborates everything that the defendant says in all respects. When he got home after the first day he found the bottom part of the trench near to the electrical box filled in. That is confirmed by the plaintiff on Exhibit 5A. It was Mr Gray's evidence that it was not filled in anywhere else. The only part that he had to dig out was that area that he described. He described it as a hard clay substance and he was required to use a crow bar. It was the plaintiff's evidence that the trench was filled in with sand from an area marked "grey sand". Exhibit 5C prepared by the plaintiff shows the sand removed. Mr Gray's evidence was that there was no pile of sand there at all.
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56 I accept Mr Gray's recollection as accurate. He had the greatest interest in remembering what happened and gave his evidence with great clarity.
57 Additionally I have difficulty in accepting that if such an accident had occurred that the plaintiff would not have spoken to somebody on the site on that day. The plaintiff acknowledged that he did not mention it to anybody. The first the defendant knew about the matter was six months later when he received a letter from the plaintiff's solicitor. 58 Additionally I had trouble with certain aspects of the plaintiff's evidence in relation to the assessment of damages. The plaintiff's statement of claim alleges that he suffered an injury to his lower back. The plaintiff gave evidence of a number of things that he was able to do prior to his accident that he was not able to do after the accident. It was his evidence that at the present time he potters in his shed at home both in the morning and after lunch doing light mechanical work and welding for himself. It was his evidence that prior to his accident he used to brew his own beer but that following the accident he was no longer able to do that. The reason for that was said to be that he was unable to clean the bottles for brewing the beer as the action of putting a brush through the bottle hurt his back. At the time that this answer was given in cross-examination counsel for the defendant expressed incredulity in relation to that answer. I chastised counsel for the reason that counsel's job is to ask questions and not to comment. However in my view it was an answer that I found difficulty in accepting. The plaintiff's evidence is that his wife now brews the beer for him but that he is still able to drink it. 59 For all these reasons it is my finding that the plaintiff is not a witness of truth. I find that the accident did not occur as the plaintiff describes it. In those circumstances his action must fail.
Assessment of damages 60 Because I have been unable to accept the plaintiff's evidence at all as to the circumstances in which the accident occurred, in my view it is not appropriate that I assess the damages. I should say however that listening to the medical evidence and the plaintiff's evidence of what he can and cannot do in my view there were a number of inconsistencies. I have already mentioned one previously.
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61 However in coming to the finding that the plaintiff is not a witness of truth, in my view it is inappropriate that I assess the damages and I don't propose to do so.
62 It follows that the plaintiff's claim should be dismissed.
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