Day v R J Brooks and Sons
[2002] QDC 71
•7 March 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
Day v. R J Brooks and Sons & Anor [2002] QDC 071
PARTIES:
NEVILLE JAMES DAY (Plaintiff)
v.
R.J. BROOKS AND SONS t/a BROOKS TRANSPORT (Defendant)
And
FRANKLINS LIMITED (Third Party)
FILE NO/S:
1509 of 1999
DIVISION:
PROCEEDING:
Third Party Proceeding
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
7 March 2002
DELIVERED AT:
Brisbane
HEARING DATE:
1 and 2 November 2001
JUDGE:
Shanahan DCJ
ORDER:
The third party is to pay the defendant the sum of $91,088.04, together with the defendant’s costs in the action brought by the plaintiff
CATCHWORDS:
Broadhurst v. Millman [1976] VR 208
Finn v. The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd.R. 29
Florida Hotels Pty Ltd v. Mayo (1965) 113 CLR 588
Oxley County Council v. Macdonald & Ors [1999] NSWCA 126
Pennington v. Norris (1956) 96 CLR 10
Podrebersek v. Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Redken Laboratories (Aust) Pty Limited v. Docker and Anor [2000] NSWCA 100
Stapley v. Gypsum Mines Ltd [1953] AC 663
Wylie v. ANI Corporation Ltd
COUNSEL:
Mr. R Morton for the defendant
Mr. S. Keim for the third partySOLICITORS:
O’Shea, Corser and Wadley for the defendant
McInnes Wilson for the third party
This matter concerns the determination of third party proceedings between the defendant and Franklins Limited. The plaintiff was employed as a truck driver by the defendant. On 14 April 1997 the plaintiff suffered an injury to his knee while delivering goods to a store operated by the third party. The plaintiff sued the defendant as his employer. The defendant issued third party proceedings against Franklins.
The action between the plaintiff and the defendant settled for $91,088.04, including the WorkCover refund. The third party has acknowledged that the settlement was a reasonable assessment of the plaintiff’s claim and that it would not contend at the trial of the third party proceedings that the plaintiff would have failed against the defendant (Exhibit 1).
The defendant had an agreement with the third party that the defendant would transport goods from the third party’s warehouse at Richlands to various Franklins’ stores. In order to do that, the defendant supplied trucks and drivers. The third party would load the trucks with pallets overnight at its Richlands warehouse by use of electric or motorised pallet jacks. On 14 April 1997, the plaintiff arrived at the warehouse where his truck was already loaded with the rear doors closed. He drove the truck to the Kallangur Franklins store. The arrangement between the defendant and Franklins was that the defendant’s drivers would assist in the unloading of the truck at the Franklins’ stores. The unloading was with equipment supplied by the third party at a loading dock of the Franklins store. At the Kallangur store, a manual trolley jack was supplied. While attempting to move the first pallet with that jack, the plaintiff suffered an injury to his left knee.
The third party notice alleges that it was the duty of the third party to the plaintiff:
(a) To take all reasonable precautions to ensure the truck was properly loaded, so as to prevent the plaintiff being exposed to risk of injury;
(b) To take reasonable care that the loading dock was safe;
(c) Pursuant to s.28(2) of the Workplace Health and Safety Act 1995, to ensure that the workplace health and safety of the plaintiff was not affected by the way the third party conducted its undertaking; and
(d) Pursuant to s.30(1) of the Workplace Health and Safety Act 1995, to ensure that the risk of injury or illness from the workplace was minimised.
The notice alleges that the injury to the plaintiff was caused by negligence or breach of statutory duty by:
(a) failing to ensure that the truck was loaded in such a manner that the plaintiff would not have to use excessive force to remove pallets from it, and
(b) failing to provide appropriate manual assistance or mechanical aid at the loading dock, so as to enable the plaintiff to unload the truck safely.
The defendant’s case against the third party is on two alternate bases:
1. The third party was liable to the defendant for breach of an implied term of the contract between them that the third party would take reasonable care for the safety of the defendant’s employees. The damages for such breach was the amount paid to the plaintiff together with the defendant’s costs of that action.
2. The third party, as a co-tortfeasor, was liable to contribute to the defendant’s liability to the plaintiff.
The determination of these issues depends firstly on the resolution of certain factual matters.
The Plaintiff’s Account
The plaintiff, date of birth 14 August 1936, had been employed by the defendant for approximately 10 years. On 14 April 1997 he was driving a 12 tonne Volvo body truck (T6). In such a truck the floor slopes slightly towards the front of the truck (T7). The truck had been left the night before at Franklins warehouse at Richlands for loading. The plaintiff arrived to find the truck already loaded with the rear doors closed (T6). He did not inspect the load. The truck had been loaded by Franklins’ staff using electric pallet jacks or transporters (T7). A Brooks Transport employee was on hand to move the trucks on and off the loading dock (T5). The plaintiff drove the truck to the Kallangur Franklins store. He opened the back doors and reversed on to the loading dock. The loading dock had a steel plate (the “bridging plate”) which had a steel flap with a bevelled edge that rested on the floor at the back of the truck. The plaintiff used a pallet jack (hydraulic) to attempt to unload the pallets.
The plaintiff pushed the pallet jack under the first pallet on the left. On a body truck the wheels of the pallet jack, in relation to that first pallet, were directly on the lip of the bridging plate. This was shown at photo 2 on p.5 of Exhibit 2 (T8). To move the pallet, the plaintiff had to turn the wheel sideways to get leverage to pull the pallet away from the side of the truck (T8). While taking the weight of the pallet he felt a terrific pain in his left knee. He felt the pain as he pulled the pallet to get over the lip of the bridging plate (T40).
The pallet he was attempting to move was stacked with four layers of large bottles of soft drinks with a smaller pallet on top of it. The plaintiff thought the second pallet had condiments, soap and toiletries on it (T9). He thought that the upper pallet had a third of a load on it. It took “much strength” to get the two wheels of the trolley jack on to the lip of the bridging plate because, as it was the first pallet off the truck, he had to pull it on an angle away from the wall of the truck and up on to the bridging plate (T9). The plaintiff estimated it took 80% of his strength to move the pallet (T10). Frankins had a practice of loading the heavier pallets towards the back of the truck (T10). The truck had a full load of 12 pallets, six down each side of the truck. The plaintiff was aware that at some other Franklins’ stores there were electric or motorised pallet movers (T11) which were used to unload trucks.
Prior to 14 April 1997, he had never had any trouble with his left knee (T12). In cross-examination he agreed that he had told one of the examining doctors that he had felt a little weakness in the knee on occasions prior to the accident but that he had had no pain (T12-13).
In a number of documents complied in the preparation for trial (Exhibits 3, 4 and 5), the plaintiff had made no mention of the wheels of the trolley jack being against the lip of the bridging plate. The difficulty spoken of in those documents appeared to have been that the pallet was hard up against the side of the truck. The plaintiff was adamant in his evidence that the wheels of the trolley jack were up against the lip of the bridging plate (T22; 43). He was also of the view that if the pallet had not had been up against the side of the truck, it would have given more room to manipulate the pallet jack and move it more freely (T18). With the body truck, the wheels of the trolley jack were hard up against the edge of the bridging plate on every occasion for the unloading of the first pallets off the truck (T33).
Under cross-examination the plaintiff’s evidence was that on occasions he would ask for assistance to move “real heavy” pallets (T29) but on this occasion he did not ask as the storeman who was assisting him was unloading a reasonably heavy pallet himself (T28-29). The plaintiff did however know that he could ask for assistance (T30). He also had not brought the problem with the wheels of the trolley jack resting against the lip of the bridging plate to anyone’s attention (T29). It was also not his practice to check the load of his truck upon his arrival at the Richlands factory (T29).
The plaintiff was of the view that the problem could not be overcome by not reversing quite so far back towards the loading dock, as the bridging plate would fall off the back of the truck (T33). It also was not appropriate to reverse the truck further back so that the wheels of the pallet jack would have been on the bridging plate rather than abutting it, as the truck would then be hard up against the loading dock which would scratch the paint of the truck (T37-38).
Arrangements Between Brooks Transport and Franklins
Mr. P. Conway gave evidence for the third party. He was now retired but had been employed by Franklins as Regional Logistics Manager. He was so employed in April 1997. In that employment he had regular contact with the Brooks Transport manager. There was a procedure in place to deal with complaints about overloaded pallets, problems with unloading at stores, and the type of equipment used at each store (T109). If a complaint had been made it would be rectified in conjunction with Brooks Transport (T110). There had been very few complaints from Brooks Transport over the years (T112). He had never heard of a complaint about the wheels of the pallet jack being hard up against the bevelled edge of the bridging plate and so causing difficulties (T112).
In cross-examination Mr. Conway agreed that Franklins had an obligation to provide proper equipment to effect the unloading of the trucks (T114). He agreed that Franklins had an obligation to take reasonable care of Brooks’ employees. He had never investigated how body trucks were unloaded at Kallangur (T115). Electric trolley jacks were supplied at some Franklins’ stores. This was mainly at stores where there was a requirement to store pallets at a height of 2 metres (T111 and 116), although such a device had been supplied at a particular store where there was a problem with unloading trucks because of the slope of the land leading to the loading dock (T110-111).
Expert Evidence As To Forces Required To Unload Pallets
Two experts gave evidence as to their opinions as to the appropriateness of the forces required to be applied to unload the pallet in the situation described by the plaintiff.
Dr. J. Olsen, a specialist in occupational medicine, gave evidence for the defendant. He conducted a site inspection on 3 August 2001 and provided a report dated 14 August 2001 (Exhibit 2). He conducted tests on the forces required to move a pallet loaded with soft drink bottles. The truck provided for the tests was a Volvo Prime Mover with a tautline trailer, not a body truck. He understood that that truck had the same floor height as a body truck (Exhibit 2, p.3).
He inspected the loading dock and the dock leveller (the “bridging plate”). He found that the bridging plate was 2.8 metres long and 2.1 metres wide. The swivelling steel plate at the end of the bridging plate, which made contact with the floor of the truck was 400 millimetres long and 2.1 metres wide. The thickness of the swivelling plate was 10 millimetres, with the bevelled edge of the plate being 25 millimetres long. On the date of his inspection, when the bridging plate was sitting flush with the right hand side of the truck floor, there was a gap between the bridging plate and the floor of the truck on the left hand side which measured 22 millimetres. Such a significant gap, in the context of the thickness of the plate (10 millimetres) was not mentioned by the plaintiff or by the other expert who examined the scene. It may well have arisen since the date of the accident (T49). The tests Dr. Olsen conducted were against that left hand side of the bridging plate.
Dr. Olsen noted that the left hand pallet in the truck he inspected was actually in contact with the left hand wall of the truck. That contact was at the skirting board level. When a pallet jack was moved in under the pallet, the two wheels of the jack were in contact with the bevelled edge of the bridging plate (Exhibit 2, photos 2 and 3).
Dr. Olsen measured the force used to move the pallet jack at 50 kilograms to pull laterally, with the left hand wheel of the jack commencing in contact with the edge of the bridging plate. With the wheels straight, the force required was 58.9 kilograms. With a second pallet jack with smaller wheels, the force gauge registered 56.4 kilograms when attempting to pull the load straight back. Dr. Olsen was unable to move the pallet. He attempted to move the pallet jack with the wheels at an angle to the edge of the bridging plate. The capacity of the measuring instrument was exceeded. The measured force was in excess of 58 kilograms.
Dr. Olsen was of the opinion that the exertion required was heavy and excessive, being in excess of 50 kilograms (Exhibit 2, p.8). The forces were such as to constitute a risk for a person performing the task. Dr. Olsen noted:
“Specifically I found that there were a number of factors contributing to the risk. The factors were that when the pallet jack was placed into its normal position with the tynes through the openings of the pallet and the pallet was lifted, then the pallet was too close to the left hand side of the truck to be able to be easily withdrawn without some attempt to move the pallet to the right. Furthermore, this would place the nylon wheels in a position where they made immediate contact with the leading edge of the swivelling plate of the dock level, and therefore would afford a person little opportunity to get a “run up” with the pallet. This means that a static force would be required to commence movement of the pallet. The magnitude of the force as measured was in excess of 50 kilograms and forces as high as 58 kilograms was measured at which point the dynamometer was overloaded. There is therefore the possibility of forces in excess of this.
Pallet jacks are highly sensitive to manoeuvre against small edges and even grit and small particles that may be present on the floor. This is due to the relatively small size of the wheels and the fact that the wheels are solid and pneumatic. Furthermore, a pallet jack being capable of lifting up to 2.5 tonnes can vary enormously in relation to the force requirements to move the pallet depending on the slope of the floor and imperfections and edges.”
He noted in evidence that even a 10 millimetre climb for a wheel of 150 millimetres was still substantial (T51).
Dr. Olsen was of the opinion that the forces required were attributable to the edge of the bridging plate as well as from the contact of the pallet with the side of the truck (T46-47). In cross-examination Dr. Olsen was asked to comment on the forces required to move the pallet if the gap of 22 millimetres had not been present. Dr. Olsen was of the view that excessive force would still be required. That would be substantially in excess of 20 to 30 kilograms (T51). That was because of the need to negotiate the chamfered edge of the bridging plate with a small wheeled pallet mover (T50-51).
Dr. Olsen was of the view that if a person had to apply 80% of his physical strength to the task of moving the pallet, that that would be very strenuous and impose significant risk of injury (T62).
Mr. A. Iwanow, safety consultant, gave evidence on behalf of the third party. He performed site inspections at the warehouse and the loading dock on 18 August and 7 September 2000. He provided two reports dated 8 November 2000 and 4 October 2001 (Exhibits 8 and 9).
Mr. Iwanow was unaware of the precise load on the pallet that the plaintiff was attempting to move (Exhibit 8, p.1) and inspected a range of loads being loaded and unloaded. He noted that the loading of the truck occurred with powered pallet stackers. While observing the unloading, it was noted that the pallets were not jammed against the side of the truck (Exhibit 8, p.2). It appears from the photographs (photographs 5 and 6) that the truck Mr. Iwanow observed being unloaded was a prime mover and trailer rather than a body truck (T74). The floor of that truck sloped towards the loading bay at an angle of 1° (Exhibit 8, p.2) which was different from a fixed body truck whose floor, according to the plaintiff, slopes towards the front of the truck (T7). The wheels of the pallet movers were not jammed against the lip of the bridging plate (photographs 5 and 6). Mr. Iwanow did not notice the persons unloading the pallets having any difficulty. He did not notice any gap of 22 millimetres on the left side of the bridging plate (T72).
Mr. Iwanow found that, in relation to a pallet loaded with soft drinks, the force to get a pallet moving in the truck was between 8-12 kilograms. On a flat concrete surface it was 10-14 kilograms (Exhibit 8, p.2). This was, in Mr. Iwanow’s opinion, a safe moving force. In a study by Mital Nicholson and Ayoub (A Guide to Manual Materials Handling, Taylor and Francis, 1993) a male could safely pull at waist height loads between 23 to 43 kilograms. Even if the pallet was jammed to some extent, there was a considerable safety margin according to Mr. Iwanow.
In his second report, Mr. Iwanow was asked to comment on the forces noted by Dr. Olsen in moving the pallet. Using the same tables (Snook and Ciriello) that Dr. Olsen used in relation to forces used in manual handling tasks, Mr. Iwanow was of the opinion that using the 10 percentile level, a comfortable range would be from 61-68 kilograms. Mr. Iwanow was of the view that it was appropriate to place the plaintiff at this level because of his experience with using pallet jacks in his employment. This would be as a result of the plaintiff’s greater skill and ability (T87). Mr. Iwanow had not had the opportunity to interview the plaintiff.
In cross-examination Mr. Iwanow agreed that in his first report he was of the view that 43 kilograms was the upper safety limit but that after seeing Dr. Olsen’s test results, Mr. Iwanow was of the view that it was appropriate to regard the plaintiff as at the 10th percentile (T84-87). He also agreed that if a man had to exert 80% of his strength to move the pallet then that was something different from what he observed in the unloading of the truck (T94-95).
Mr. Iwanow in his reports and evidence suggested some strategies to reduce the need in the plaintiff to use excessive force: the plaintiff could have requested assistance, the wheels of the pallet jack could have been placed on the bridging plate rather than against it (T74) or the truck could have been placed further out so that a “run up” could have been achieved (T75).
I found both experts of limited assistance. Neither examined or conducted tests on a fixed body truck where the slope of the floor differs from a semi-trailer. Dr. Olsen’s tests were conducted over the lip of a bridging plate which had a gap of 22 millimetres under it. Such a gap was not apparently present on the day of the accident. Mr. Iwanow’s tests did not involve a pallet up against the side of the truck or with the pallet jack wheels up against the bevelled edge of the bridging plate. I reject Mr. Iwanow’s assumption that it was appropriate to place the plaintiff at the 10th percentile in assessing whether he would have been comfortable in using forces in the range of 61-68 kilograms. Ninety percent of male workers would have been uncomfortable with using that force and would not have attempted it. In my view, it can hardly be a safe practice to require the use of that force where only 10% of the male workforce would have attempted it. There was also, in my view, no basis for Mr. Iwanow’s assumption that the plaintiff because of his experience would be in that 10%.
I accept Dr. Olsen’s opinion that the force required to move a pallet which was against the side of the truck and when the wheels of the pallet mover were against the bevelled edge of a bridging plate, would be high and in excess of what would be safe. The exact nature of the force required is difficult to assess because of the presence of the 22 millimetre gap when Dr. Olsen conducted his tests. The telling feature is, in my view, the plaintiff’s assertion that he was required to use 80% of his strength. Both experts seemed to agree that that would be excessive.
Medical Evidence As To The Prior Condition of the Plaintiff’s Left Knee
The plaintiff gave evidence that he was aware of a little weakness in his left knee prior to the accident (T13). Dr. F. Wilson, orthopaedic surgeon, gave evidence that he had examined the plaintiff after the accident. In his reports, Dr. Wilson noted some degenerative changes in the left knee (Exhibit 11). The knee showed evidence of arthritic degeneration. This had to be seen in the light that the plaintiff was 60 years old (T101-102). Dr. Wilson was of the view that the plaintiff would notice that the left knee “wasn’t quite as good as the other knee” (T101). The plaintiff’s evidence was that he had had no pain in the knee prior to the accident (T12-13).
The third party submits that this is relevant to the amount of force which might have been required to cause the injury. That is, that it may not have required the force noted by Dr. Olsen and that thus the system of work at the unloading dock may not have required excessive force to be used. Noting particularly that the plaintiff had experienced no pain or difficulty with that knee prior to the accident, except for “a little weakness”, I am again left with the plaintiff’s assertion that it required 80% of his strength to move the pallet. If this is accepted, I am of the view that that would have involved excessive force.
An issue arose in the third party’s pleadings and evidence at the trial, that there may have been an obligation on the defendant to have the plaintiff submit to regular medical assessment and the defendant was under a duty to advise the third party of any medical condition which may have impacted on the plaintiff’s ability to perform the unloading of pallets without risk of injury using the system of work in place. It was contended by Mr. Iwanow that regular medical assessments of employees would be prudent in assessing risk (T75). This was rejected as impractical by Dr. Olsen unless the worker had a history of health problems (T59-61). The essence of the case, however, was in Dr. Olsen’s view, the identification of a hazard in the work place as a predominant risk factor. The argument was not pressed by the third party in final submissions.
In Finn v. The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd.R. 29, where a similar issue arose, Thomas J (with whom McPherson JA and Williams J agreed) said at p.29:
“In my view, unless some fact, circumstance or state of affairs exists which should put an employer upon special enquiry, there is no duty to interrogate either prospective or existing employees in relation to their health and history. No doubt some employers do this, and some of them would do it discreetly and sensitively. However, the question of a general duty of this nature in an ongoing way is something quite different and I do not consider that it has been recognised as such.”
I am of the view that there was nothing here which should have put the defendant on special inquiry. In the absence of that, there was no obligation on the defendant to have the plaintiff medically examined, and no breach of duty in that regard.
Factual Issues
The third party submits that the plaintiff was unconvincing as a witness. The further and better particulars (Exhibit 5), the notice of claim for damages (Exhibit 4), and the supplementary notice of claim for damages (Exhibit 3), all made no mention of the wheels of the pallet jack being hard up against the edge of the bridging plate. The accounts of the accident given to the various doctors also varied in detail as to how the accident occurred. It was submitted that the court would not be satisfied of the details of the plaintiff’s evidence in matters such as what was loaded on the pallet and whether he had to use 80% of his strength. It was submitted that it was much more likely that only moderate forces were involved, based on the pre-existing weakness of the knee, the history given by the plaintiff to the doctors that only a “slight twist” was involved, and the lack of any complaint by the plaintiff to his employers that the wheels of the pallet jack were up against the bevelled edge of the bridging plate on an ongoing basis.
I found that the plaintiff gave his evidence in a straightforward and consistent manner. He was a credible witness. There was no reason for the plaintiff to exaggerate the way in which the accident occurred: his action had settled in his favour. There was no evidence other than the plaintiff’s as to the stacking of another pallet on top of the fully laden pallet he had to first move, or as to the practice of loading the heavier pallets to the back of the truck. There was no evidence other than the plaintiff’s that the truck was fully laden with 12 pallets on the floor of the truck, necessitating little room for the bridging plate to rest on the floor of the truck. The plaintiff was adamant that it was a combination of the weight of the pallet, the pallet resting against the side of the truck and the wheels of the pallet jack resting against the bevelled edge of the bridging plate which caused him difficulty in getting the pallet to move. I accept that the plaintiff needed to use 80% of his strength to move the pallet in those circumstances. I also accept that the pallet was a heavy one with another one third pallet loaded on top of it, that it rested against the side of the truck and that the wheels of the jack were resting against the bevelled edge of the bridging plate. There is nothing in the case which causes me to doubt the veracity of the plaintiff’s account.
As noted above, I found the expert evidence as to the forces required to be of little assistance. I am however of the view that Dr. Olsen’s opinion as to excessive force being required to move a pallet which was against the side of a truck together with the pallet jack wheels resting against the bevelled edge of the bridging plate, should be accepted. It is consistent with common sense when one considers the size of the wheels of the pallet jack and the load that needed to be moved. I am of the view that the plaintiff’s using 80% of his strength in the circumstances constituted excessive force.
I am also not satisfied that the alternatives recommended by Mr. Iwanow were practical in the circumstances. The plaintiff did not ask for assistance as the only other man present was busy with his own unloading. While it may have been advisable for the plaintiff to seek assistance, this is with the benefit of hindsight. It was only when the plaintiff felt pain in his left knee that he knew of the danger of the use of the force required. The different positioning of the truck at a position either closer or further away from the loading dock would also have been impractical. There apparently was little space in the back of the truck (perhaps 12 to 15 inches according to the plaintiff (T40)) between the last pallet and the end of the truck. Positioning the truck further away from the loading dock would cause the bridging plate to fall down from the truck floor (T33). Positioning the truck closer to the loading dock, would run the risk of damaging the truck’s paintwork (T37-38).
The Contractual Issue
The defendant submits that it was an implied term of the contract between the defendant and the third party that the third party would take reasonable care to ensure the safety of the defendant’s employees engaged in performing the contract between the parties. It is submitted that such a term is implied by law as an incident of the agreement entered into. It submits that the damages for such breach are the amount paid to the plaintiff together with the defendant’s costs of the action.
The defendant relies on Oxley County Council v. Macdonald & Ors [1999] NSWCA 126 (2 July 1999). There Brambles had reloaded a truck in such a fashion that an employee of the Council was injured during unloading when equipment fell from the truck. The trial judge had apportioned liability 50/50 between the employer and the contractor. The Court of Appeal found that there had been a breach of an implied term that the goods would be loaded in a safe and proper manner without presenting a risk of injury to employees of the Council who were to assist in the unloading. The Court of Appeal said:
“Oxley’s case is that Brambles, having unilaterally in the course of carrying out the contract decided to reload the goods from two trucks on to one, must be taken to have agreed to do so on condition that the goods would be loaded and secured with reasonable care and skill so that they could be unloaded in a safe and proper manner at the Oxley depot, without presenting a risk of injury to employees of Oxley who were to assist in their unloading. The correctness of this proposition can hardly be gainsaid. The term can be regarded as a particular incident of a contract for the carriage of goods, otherwise silent on the subject, wherefore any reason of necessity or otherwise the carrier offloads and reloads goods during the course of carriage; compare Alcatel Australia Limited v. Scarcella (1998) 44 NSWLR 349 at 363-4 and the cases there referred to.
Further, there could, it seems to me, be little doubt that if Oxley suffered damage as a result of the breach of this contract, the measure of damages would be the damages and costs Oxley was required to pay to the plaintiff and the costs Oxley incurred in defending the proceedings; Florida Hotels Pty Ltd v. Mayo (1965) 113 CLR 588 at 591, 598-9. It mattered not that Oxley was a co-tortfeasor with Brambles or that each was entitled to recover contribution from the other in respect of the damage suffered as a result of the others tort.”
In Florida Hotels Pty Limited v. Mayo (1965) 113 CLR 588, architects were found to be in breach of their contractual obligation to supervise constructions work with the result that part of it collapsed injuring the defendant’s employee. Barwick CJ (with whom Kitto, Taylor and Menzies JJ agreed) said at p.598:
“But, in my opinion, the possibility of liability of the appellant to its workmen flowing from the consequences of lack of supervision of work of the kind in question must be taken to have been fairly within the contemplation of the parties. His Honour, the trial judge, found the lack of supervision to be the cause of the collapse of the slab and the removal of the form work but the occasion for it; because of the inherent weakness for want of proper reinforcement, it would have fallen down whenever the form work was removed; and with this conclusion I respectfully agree. Of course, vis a vis the plaintiff the premature removal of the form work was negligent on the part of the appellant. But this would not prevent the appellant recovering from the respondents for their breach of contract simply because they are therefore joint tortfeasors with the appellant. It would be otherwise if the effect of the respondent’s breach of their obligation to the appellant had become spent and no longer causally connected with the plaintiff’s injury. But that is not the case. The intervention of the appellant’s act in removing the timber, thought it occasioned the injury to the plaintiff, will not avail the respondents. The respondents, in my opinion, are liable to the appellant for the amount which the appellant reasonably paid to the plaintiff in discharge of its liability to the plaintiff for the consequences of the collapse of the slab. The amount actually paid in this case to the plaintiff is agreed to have been reasonable. … Accordingly, in my opinion, the amount payable by the appellant to the plaintiff was recoverable from the respondents as damages for their breach of their contractual obligation to supervise the work of construction of the swimming pool. The result that the respondents are liable to pay to the appellant by way of damages the full amount of the sum payable by the appellant to the plaintiff does not mean that the obligation of the respondents to the appellant as its architect was an obligation “to protect” the appellant against the possibility of liability to its workmen or that the protection of the workmen was in any relevant sense a purpose of the contractual duty of supervision. It merely means that there can be included in the damages for breach of the obligations to supervise the amount the building owner is called upon to pay to its workmen injured by the consequences of faulty supervision.”
The defendant also relies on Redken Laboratories (Aust) Pty Limited v. Docker and Anor [2000] NSWCA 100 (9 June 2000). In that case Redken had contracted with a firm that the latter was to conduct team building exercises for Redken’s employees. The team building exercise was conducted negligently and the plaintiff was injured. The Court of Appeal held that that conduct breached an implied term of the agreement “to protect as far as possible the employees of Redken from injury”. The measure of damages was the amount for which Redken was liable to pay to its injured employee.
The third party admits that it was an implied term of the contract that the third party would comply with any duty owed by it, whether statutory or arising at law, to the servants and agents of the defendant including the plaintiff (para. 4(d) Further Amended Defence to the Third Party Notice). It also admits that it owed duties to the plaintiff, as occupier of the loading dock, to take reasonable care for the plaintiff’s safety, which did not, however, extend to matters of safety arising from the state of the load in the truck when it arrived at the dock because such matters were the responsibility of the defendant, through its servants and agents, including the plaintiff himself (para. 5(b) Further Amended Defence to the Third Party Notice).
The third party submits that the primary responsibility for the plaintiff’s well-being rested with the defendant. The defendant had the ability to issue instructions to the plaintiff and the ability to obtain information from him on a regular basis. If there were any difficulties with the system, the defendant was well placed to find out. It submits that the problem with the operation of the bridging plate was one peculiar to the fixed body truck, which the defendant owned, operated and supplied to the plaintiff. There were options open to cure the problem by bringing the truck closer or moving it further away from the loading dock and the defendant could have given instructions to the plaintiff to that effect. The defendant could have instructed the plaintiff to avail himself of assistance. For the reasons given above, I am of the view that the other options of moving the truck and seeking assistance were not practical in the circumstances. The third party submits that the defendant’s employees had never inspected the operation of the Kallangur dock and had never inquired of the plaintiff about it. It is further submitted that it is important in assessing responsibility, to recognise that the incident occurred in the truck itself and that the plaintiff was an employee of the defendant. It is further submitted that the third party had fulfilled its obligations by the regular inspection of the operations of its loading docks and the processes it had in place to resolve problems reported to it.
The third party submits that the circumstances of this case are very different from those in Oxley v. Macdonald and Florida Hotels v. Mayo. It is submitted that in each of those cases the breach of contract created the initial situation of danger and the subsequent breach of duty by the employer merely allowed the pre-existing danger to continue to operate. In the present case, it is submitted, that the primary breach of duty, whether contractual or tortious, was that of the employer because of a failure to supervise and instruct thereby allowing a dangerous situation exclusive to its equipment (the fixed truck) to operate. Any breach of duty of the third party came subsequently because of the failure to conduct audits or inspections to identify something that the defendant had failed to discover.
It is further submitted that the contract claim must fail because any breach of contract by the third party constituted something less than a “real” or “substantial” or “cause of equal potency” (Wylie v. ANI Corporation Ltd [2000] QCA 314, 4 August 2000) and would not result in liability against the third party.
I am satisfied that there was an implied term in the contract between the defendant and the third party that the third party would take reasonable care to ensure the safety of the defendant’s employees engaged in performing the contract. This is particularly so in the circumstances where the third party was responsible for the loading of the truck and the provisions of the facilities and equipment for its unloading. That term must clearly have been within the contemplation of the parties in the circumstances.
I am further of the view that the third party breached that term in a real or substantial way which overshadowed any breach of duty of care of the defendant. I am of this view because of the specific actions which were the responsibility of the third party under the contract. The third party loaded the truck in the absence of any Brooks Transport supervision. It used electric or motorised trolley jacks to do so. It loaded this particular truck with a full load of 12 pallets on the floor with the pallets closer to the rear of the truck being the heavier ones. It loaded a further one third pallet on the top of the rear left hand side. The loading dock and the bridging plate were the property of the third party. The third party supplied a manual pallet jack to the plaintiff for the unloading. I am of the view that the combination of the loading of such a heavy pallet with a powered loader and the provision of a manual trolley jack to unload the truck in the circumstances of needing to negotiate the lip of the bridging plate was a significant breach of the implied term. The danger could have been simply avoided by not loading such a heavy pallet, by not loading the last two of the row of pallets to allow more manoeuvrability or by the provision of powered jacks for unloading.
While there may well have been a breach of the defendant’s obligations to the plaintiff because of the relationship between them, that is irrelevant to the breach of contract between the third party and the defendant (Oxley County Council v. Macdonald and Ors and Florida Hotels v. Mayo). As I say, it is also my view that the actions of the third party were a much more substantial cause of the dangerous situation than any negligence on the part of the defendant.
The third party is liable to the defendant for breach of an implied term of the contract between them. The damages are the amount paid to the plaintiff together with the defendant’s costs of the action.
Apportionment
In the event that I am wrong in my findings as to breach of contract, it is appropriate to determine an apportionment between the parties as tortfeasors.
The third party owed an obligation to take reasonable care for the safety of the defendant’s employees. In my view, there was a reasonable foreseeability of a real risk that injury of the kind suffered by the plaintiff would be occasioned. The risk involved the handling of a double pallet with a manual jack over the bridging plate. It was not a far fetched nor fanciful risk. There was a clear proximity between the third party and the plaintiff. There was a breach by the third party of that duty by failing to take steps to reduce or eliminate the risk. Such relatively inexpensive steps as not overloading the pallet, not loading the full load of 12 pallets on the floor of the truck, or the provision of a powered trolley jack would have reduced or eliminated the risk.
I am also of the view that the defendant failed in its duty of care to the plaintiff. As his employer, the defendant obviously owed a high duty of care to him. The defendant failed in its duty by not being aware, either through inspection or reporting, of the difficulty which arose in the unloading of its fixed body trucks. The plaintiff’s evidence was that such difficulties regularly occurred. The defendant failed in its duty of ensuring that a safe system of work was put in place by the third party.
In deciding the appropriate apportionment between tortfeasors, the High Court in Podrebersek v. Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 said at p.493:
“A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds.”
…
The making of an apportionment as between a plaintiff and a defendant between their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e., of the degree of departure of the standard of care of the reasonable man (Pennington v. Norris (1956) 96 CLR 10 at 16) and of the relevant importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd [1953] AC 663 at 682; Smith v. McIntyre [1958] Tas.St.R. at 42-49 and Broadhurst v. Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”
The same principles should apply to apportionment between co-tortfeasors.
I am of the view that the specific matters for which the third party was responsible, referred to above in para. 51, involve a high degree of culpability in comparison with the breach by the defendant and are of greater relative importance. They were a direct cause of the injury suffered by the plaintiff. I would apportion the responsibility as 75% against the third party.
Judgment
I find for the defendant as against the third party. The third party is to pay the defendant the sum of $91,088.04 together with the defendant’s costs in the action brought by the plaintiff.
I will hear the parties as to the costs of this action.
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