| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DRLJACA -v- WESTRAC PTY LTD [2013] WADC 122 CORAM : GOETZE DCJ HEARD : 6-8 & 13-16 MAY 2013 DELIVERED : 25 JULY 2013 FILE NO/S : CIV 1216 of 2010 BETWEEN : RADA DRLJACA Plaintiff
AND
WESTRAC PTY LTD
Defendant
Catchwords: Fall from front end loader - Liability in issue - Turns on own facts Legislation: Civil Liability Act 2002
Evidence Act 1906
Occupational Safety and Health Act 1984
Occupiers' Liability Act 1985 Result: Action dismissed
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</Order> Representation: Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr T Palmer
Solicitors:
Plaintiff : Vertannes Georgiou
Defendant : Panetta McGrath
Case(s) referred to in judgment(s):
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361
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Introduction 1 On 15 April 2008, the plaintiff Mrs Rada Drljaca, fell from a Caterpillar front end loader model 966H at the Welshpool premises of the defendant, Westrac Pty Ltd. 2 Mrs Drljaca claims that Westrac is liable for injury, loss and damage suffered by her in the fall. 3 This trial concerned only the determination of the liability issue.
Mrs Rada Drljaca 4 Mrs Drljaca was born on 20 March 1965. 5 In August 2007, Mrs Drljaca commenced work as a security guard with MSS Security Pty Limited, trading as Chubb Security. At first, she was stationed in a bank. 6 Chubb Security also had a contract to provide security guards to work at Westrac's Welshpool yard. In December 2007, Chubb Security transferred Mrs Drljaca to Westrac's Welshpool yard where she also worked as a security guard. Her duties were centred around the front gatehouse of that yard.
Westrac Pty Ltd 7 Westrac is a body corporate which sells heavy duty plant and equipment, including plant and equipment manufactured at Caterpillar's Sagami plant, near Tokyo, Japan. Once manufactured, the plant and equipment is delivered by truck to a port, shipped to Fremantle and then transported by truck to Westrac's Welshpool yard. After certain formalities have been completed, the plant and equipment is then delivered to the purchaser thereof.
The liability issue 8 Mrs Drljaca's duties included checking the identity of entrants into Westrac's Welshpool yard. She was required to have such people record their entry by having them sign a log book noting their arrival date and time. 9 Mrs Drljaca also was required to accept delivery of new plant and equipment and in this case, on 15 April 2008, a brand new Caterpillar (Page 4)
front end loader model 966H from Caterpillar's Sagami plant was delivered by truck to Westrac's Welshpool yard. Mrs Drljaca was required to have the delivery truck driver record his entry into the yard and she instructed him where to off-load and park the front end loader. 10 Mrs Drljaca's duties further required her to document the arrival time of the newly delivered equipment, including its serial number, and to leave that document on the driver's seat or front windscreen of the newly delivered equipment. She was then required to report the delivery to a Westrac employee at its Guildford yard. 11 The statement of claim pleads that Westrac was in control and occupation of its Welshpool yard, including being the occupier of that yard both at common law and within the meaning of the Occupiers' Liability Act 1985. It alleges that Westrac was the owner of the subject new Caterpillar front end loader model 966H. Further, it pleads by reason of Mrs Drljaca being a security guard employed by Chubb Security at Westrac's gatehouse who was required by Westrac to accept delivery of that loader that Westrac owed her a duty of care to 5.1 to take all reasonable care for the Plaintiff's safety whilst (s)he was on the premises; 5.2 to take all reasonable care not to expose the Plaintiff to the risk of foreseeable injury whilst (s)he was on the premises; 5.3 to take all reasonable steps to provide safe premises; 5.4 to take reasonable care to ensure that the Plaintiff did not suffer injury as a result of danger due to the state of the premises. 12 The statement of claim also pleads that the Occupational Safety and Health Act 1984 has application by deeming Westrac to be Mrs Drljaca's employer. It is accordingly alleged that Westrac owed her a duty of care to provide and maintain a safe workplace, plant and system of work, information, instructions, training, supervision and such arrangements so as to ensure that Mrs Drljaca was not exposed to hazards. 13 Paragraph 8 of the statement of claim alleges that Westrac: (Page 5)
8.3 allowed the Plaintiff to descend the steps of the loader when the Defendant ought to have known that the steps were dangerous given the absence of handrails. 14 It is further alleged that Mrs Drljaca was exposed to a hazard, such that there was a failure to provide and maintain a safe workplace, plant and system of work. There was a further failure to provide information, instructions and training to, and supervision of, Mrs Drljaca and also a failure to make such arrangements for ensuring that the loader was used and maintained in a way which would not expose Mrs Drljaca to hazards. 15 The allegation is that Mrs Drljaca was required to climb the steps on the left side of the subject loader, deliver the required documentation to the driver's seat and then descend from the loader down those side steps. She claims that the bottom step moved inwards towards the under part of the cab of the loader, she lost balance and fell backwards, thereby suffering injury. 16 In counsel's written submissions filed prior to trial, it is observed that: The Plaintiff's case stands or falls, depending on whether the Court accepts her evidence that there was no handrail (or were no handrails) on the relevant loader referred to in the pleadings. If the Plaintiff does not prove this to the satisfaction of the Court, then her claim will fail. 17 In his opening oral submissions, counsel for Mrs Drljaca, Mr B L Nugawela, indicated that the trial did not concern the handrails on either side of the steps on the left side of the front end loader. Rather, her complaint concerned the absence of two handrails on the top of the platform above the side steps and handrails and in particular, the upper left hand side or forward handrail on that platform. This was confirmed by counsel at the close of the trial, so that it was the only issue in the trial, notwithstanding the matters pleaded and an opportunity for counsel to reconsider the pleadings in light of how the trial had been conducted. 18 The real issue then is whether or not there were upper handrails on top of the platform above the side steps. If there were, then it is conceded by counsel for Mrs Drljaca that her claim must fail. Further, if there were not any such upper handrails, then her claim should succeed, but it will be necessary to consider Mrs Drljaca's alleged contributory negligence. 19 Westrac alleges that Mrs Drljaca was guilty of contributory negligence in that: 9.1 the Plaintiff should not have been on the loader Caterpillar model 966H which the Plaintiff knew or ought to have known; (Page 6)
9.2 the Plaintiff failed to advise the Defendant, its servants or agents that she was going to climb onto the loader; 9.3 the Plaintiff failed to take a firm grip with her hands on the handrails of the loader while descending the steps of the ladder; 9.4 the Plaintiff failed to look to see where she was placing her foot immediately before she fell; 9.5 the Plaintiff failed to descend the steps of the loader in a careful manner; 9.6 the Plaintiff failed to take care for her own safety.
The evidence 20 Mrs Drljaca relied upon her own evidence and one other lay witness, Mr Mogens Magnussen, who was also a Chubb security officer at Westrac's Welshpool yard. Further, she relied upon a report from an expert witness, Dr Stephen Chew, who did not give evidence.
Mr Rada Drljaca 21 From the gatehouse machine movement register, it can be seen that at 14:30 hours on 15 April 2008, Mrs Drljaca recorded delivery of the subject front end loader Caterpillar model 966H serial number A6J00906 as being 'new from wharf'. She directed the delivery driver to park the loader some 5 to 8 metres inside the yard from the gatehouse. 22 Once the loader had been off-loaded and parked, Mrs Drljaca completed an 'invoice paper' which she put into a plastic envelope to be placed on the operator's seat of the front end loader. To do this, Mrs Drljaca was required to climb a set of steps on the left side of the loader. 23 Mrs Drljaca was shown a photograph of the steps on the left side of the subject front end loader – exhibit 2, on which she numbered all steps from one to five. The bottom step, which she numbered one, is the first step above ground level. It is not on the side of the loader, but hangs beneath it. The second, third and fourth steps up are each on the side of the loader and the fifth step she numbered is the platform at the top which permits an operator to walk around the exterior of the cabin. 24 Mrs Drljaca's evidence was that the side steps she climbed on the subject loader were not corrugated, but were smooth and a white/silver metallic colour. They were not black. Mrs Drljaca said that on previous loaders she had accepted for delivery, the steps had been black in colour. (Page 7)
25 Further, the side steps which Mrs Drljaca said she climbed on the subject loader were 'thin' from front to back and not the same as can be seen on the subject loader in exhibit 2. She said she was able to use the steps for support to climb up and down the loader. 26 Mrs Drljaca said she was able to take hold of the side steps by placing the little finger and thumb of each of her hands across the width of the steps ie, at the front and back thereof respectively. The span of her fingers from the thumb to the little finger is approximately 7 - 8 cm. 27 Mrs Drljaca said she did not use the handrails to the left and right of the steps because they were slippery and sticky. 28 Mrs Drljaca also gave evidence that the upper handrails on top of the platform above the side steps and handrails as seen in exhibit 2 were not present on the subject loader when she took delivery of it. Such upper handrails had not been present on any of the other Caterpillar 966H loaders of which she had previously taken delivery. 29 Mrs Drljaca's evidence was that she ascended the steps on the left side of the loader in order to place the invoice, in its plastic envelope, on the operator's seat. She held the invoice between her teeth and climbed the steps by placing her right foot on the bottom or first step and her two hands on the second step. Her left foot was then placed on the bottom or first step. Then she moved both hands to the third step. Next, she placed her two feet on the second step. She repeated these movements so that her hands were then on the fourth step and her feet were on the third step. 30 From the position of both hands on the fourth step, Mrs Drljaca was able to reach into and place her left hand inside the open cabin door and hold onto something between the door and the operator's seat for support. She then removed the invoice paper and envelope from her mouth with her right hand and placed them onto the driver's seat. 31 Mrs Drljaca's evidence was that after having done this, she brought her two hands together again on the fourth step. She still had her two feet together on the third step. She then moved her right leg from the third step to the second step and then she placed her left foot on the second step. She released her right hand to the third step and then her left hand to that same step. 32 Prior to reaching for the first step, Mrs Drljaca's two feet were on the second step and both hands were on the third step. She then released both her right hand and right foot and swung out to look for the location of the (Page 8)
bottom or first step. She then endeavoured to place her right foot on the first step and when she did, that step moved inwards towards the centre of the loader. She had not experienced this on other loaders, although on other loaders, the first step moved a 'little bit'. On this loader, it moved 'too much'. Mrs Drljaca then lost her balance and fell approximately 1.5 m to the ground and onto her right wrist and bottom. 33 Mrs Drljaca first saw the upper handrails on the platform of the subject loader when she went to inspect it with her solicitors on 11 November 2010. 34 Mrs Drljaca conceded in cross-examination that she 'not too much remember' what happened in her fall. She also said that she did remember what she was doing. She said she would never forget that she fell when she put her right foot on the first step. She was sure that she was holding onto the steps using both hands. 35 Mrs Drljaca's expert, Dr Stephen Chew noted in his report that she told him she was unable to reconstruct in details the process by which she descended from the steps. To the best of her recollection:
'She descended from the top or second top step holding onto something with both hands after having released her left hand grip inside the cab. The plaintiff cannot recall what she was holding onto. When she got to the bottom step by placing one foot thereon (her other foot was still on the third step), the bottom step moved inward which startled her. At that juncture she had already released her right hand grip so that she could look down. The inward movement of the bottom step caused her to lose her left hand grip. As a consequence she lost balance and fell to the floor.'
36 It was put to Mrs Drljaca that she told Dr Chew she did not recall what she was holding onto when she fell, but she disputed that, saying she told him she was holding onto the steps. She said that maybe Dr Chew did not understand her. She also said that maybe she told Dr Chew she could not recall what she was holding onto. She did not know. She said that perhaps there was a language translation problem. 37 Mrs Drljaca said her recollection of her fall was better at trial than it was when she spoke to Dr Chew. Her evidence was what she told Dr Chew and that she told him she was climbing down the steps. (Page 9)
38 Mrs Drljaca also was cross-examined upon her answers to interrogatories. Interrogatory 7 recites: Describe the precise manner in which you descended from the loader. Her answer to this interrogatory provides: Whilst I was going down the steps I was holding onto the steps with my left hand. I then stepped onto one of the steps which moved inward under the cab of the loader and lost balance. There was nothing I could grab onto such as rails or similar and I fell backwards from a height of between 1 m to 1.5 m onto the ground below. 39 Question 8 recites: Give a complete statement of the facts as to how you contend that the alleged accident occurred. Mrs Drljaca's answer to interrogatory 8 was: See answer to question 7 above. 40 Mrs Drljaca was cross-examined as to why, in her answers to interrogatories, she did not mention the slippery and sticky side rails as she had earlier in her evidence. She said that only her trial counsel had asked her about that. 41 Mrs Drljaca had seen 'four or five, maybe six' of this model loader before her accident. When giving her evidence-in-chief about the number of loaders she had previously seen, she was asked about this by specific reference to 966H loaders. She was also asked in this same specific manner in her cross-examination and she answered, in part, by referring counsel to the gatehouse machine movement register. She was again questioned about new loaders arriving at the yard by specific reference to 966H loaders. She said that none of those loaders had upper handrails on the platform above the side ladder. 42 Mrs Drljaca said that she did not complain that these loaders did not have upper handrails on the platform because she may have been dismissed. However, she also said that it was not too difficult to climb the side steps without such handrails, although it was dangerous. 43 Mrs Drljaca's evidence was that on 15 April 2008, a second Caterpillar front end loader model 966H was received at the Welshpool yard. The gatehouse machine movement register records that this second (Page 10)
loader was received at 16:00 hours, being some 1.5 hours after the subject loader. 44 Mrs Drljaca said that this second loader also did not have any upper handrails. By reason that it too did not have any upper handrails above the platform and because she was scared of falling again, she gave the invoice in the plastic envelope to the truck driver for him to place in the cabin of the second loader. 45 Mrs Drljaca was also required to send, and did send, a facsimile transmission to Mr John Philpot at Westrac's Guildford yard advising him of the delivery of the subject front end loader. Mr Philpot agreed that this was required.
Mogens Magnussen 46 As noted above, Mr Magnussen was also employed by Chubb Security at Westrac's Welshpool yard. He had been at that yard from February 2008 performing similar duties to Mrs Drljaca. He confirmed the requirement to place an invoice in a plastic envelope on the driver's seat of new plant and equipment upon delivery from the wharf. He had not received any instructions from Westrac about ascending or descending steps and ladders on loaders. 47 Mr Magnussen was unable to really recall the nature of handrails at the top of the steps on the platform of front end loaders. He said that the steps on the sides of such loaders were black. He had not seen any silver steps. He also said that the bottom step moved 'sideways or backwards' in the event of the loader striking hidden obstructions.
Dr Stephen Chew 48 Mrs Drljaca's expert, Dr Chew, provided a report detailing the following measurements: 1. Height of cabin floor above the ground – 1.75 metre. 2. Width of cabin doorway – 60 cm. 3. Width of cabin from glass end to glass end – 1.43 metre. 4. Height of cabin roof above cabin floor – 1.8 metre. 5. Width of platform immediately outside cabin door – 30 cm. 6. Height between each of the two top steps – 33 cm. (Page 11)
7. Width of the actual stepping platform on each of the two top steps – 14 cm. 8. Height of top step from ground – 1.4 metre. 9. Height of second step from ground – 1.1 metre. 10. Height of the third modified step from ground – 70 cm. 11. Height of fourth modified step from ground – 40 cm. 12. Approximate width of the two top steps – 45 cm. 49 Dr Chew's report also said that Mrs Drljaca provided background information to her solicitors, including: • when the plaintiff was descending the steps she was holding onto the steps with her left hand. … • There was nothing the plaintiff could conveniently grab onto such as handrails or similar. … • The client was also instructed that the grab rails on the loader at the time of the abovementioned inspection did not exist at the time of the accident. … • The loader did not have any handrails because it was a new loader.
The defence case 50 The defence case was not based on any direct oral evidence that the subject front end loader arrived at the Westrac Welshpool yard with handrails on the platform above the side steps. Rather, the defence case is that this can be seen and inferred from documentary evidence. Much of the defence evidence was admitted pursuant to the provisions of s 74C of the Evidence Act 1906. It dealt with matters which could be sourced from computers concerning the subject loader and this model loader in general, together with documents concerning the ordering of the front end loader and its sale by Westrac to a local government authority in suburban Perth. (Page 12)
Westrac's computer documents 51 The starting point is that Caterpillar plant and equipment and the component parts thereof can all be traced through Caterpillar's computer information, to which Westrac has some access. This, amongst other reasons, is designed to assist in ordering parts for plant and equipment by reference to specific part numbers as requested. 52 By resorting to the computer, it can be seen that the 966H front end wheel loader comprises Caterpillar's 236-8954 standard tractor arrangement - exhibit 1.36. 53 The 236-8954 standard tractor arrangement comprises a 236-8957 general arrangement – exhibit 1.36. 54 The 236-8957 general arrangement comprises a 236-9000 chassis arrangement – exhibit 1.37. 55 The 236-9000 chassis arrangement comprises a 236-8978 ladder group arrangement - exhibit 1.38. 56 The 236-8978 ladder group comprises, amongst other parts: 57 The reference to the side steps is a reference to the side steps which Mrs Drljaca ascended and descended and the reference to the side handrails is a reference to handrails which she alleged in evidence were slippery and sticky. 58 The reference to the upper left or forward and upper right or aft handrails is a reference to those handrails situated on top of the platform immediately above the side steps and handrails, there being one to the left or the forward side of the side steps and one to the right or aft side, as the operator climbs the side steps. It is these upper handrails which Mrs Drljaca alleged in evidence were missing from the subject loader. 59 Apart from the part numbers of the side steps and side handrails, the information extracted from the abovementioned exhibits comes from what is described as the 'TMI Director' information on the Caterpillar/Westrac (Page 13)
computer system. This is a reference to the standard arrangements and parts from computer modelling programs of Caterpillar's range of plant and equipment for 966H front end loaders. 60 Mr Tatsuya Murase, general manager at the Sagami Component Department, did not give evidence, but his proof of evidence was received by consent as exhibit 7. In 2008, Mr Murase supervised the production of Caterpillar's machinery, including 966H loaders. His proof includes the following: 8. In 2008 966H loaders were manufactured according to CAT's base machine arrangement No 236-8954. This arrangement includes a range of standard features including handrails. 61 This evidence shows that handrails are part of the standard production of a 966H loader, the details of which are outlined above. 62 The TMI information also reveals whether or not the standard arrangements have ever been revised or changed in any way and if so, the part numbers so revised and changed can be identified. 63 Accordingly, it can be seen from exhibit 1.36 that the 236-8954 standard tractor arrangement for a front end loader has been changed on three occasions. 64 From exhibits 1.36.1 and 1.37, the 236-8957 general arrangement has not been changed at all insofar as the 236-9000 chassis group is concerned. 65 From exhibit 1.38, the 236-9000 chassis group has not been changed insofar as the 236-8978 ladder group is concerned. 66 Likewise, from exhibit 1.39, which is a breakdown of the ladder group parts, the 243-6390 and 243-6409 upper handrails above the platform have not been changed at all, but some other parts of the ladder group, not relevant to this case, have been revised and changed. This exhibit details of all those changes. 67 Caterpillar and Westrac also have a second computer system, being the 'Service Information System' or 'SIS'. This information system is different to the TMI Director information. SIS information is specific to particular plant and equipment and can be accessed by reference to the serial number of plant and equipment. The serial number of the subject front end loader is A6J00906. Therefore, the parts comprising the (Page 14)
A6J00906 front end loader can be ascertained by reference to the SIS computer. 68 Mr Dominic Piazzola, from Westrac, gave evidence that the SIS system shows, relevantly, that the subject loader serial number A6J00906 was produced comprising the following arrangements and parts: (a) the 236-8954 standard tractor arrangement with the 236-8957 general arrangement - exhibit 1.44; (b) the 236-8957 general arrangement, which included the 236-9000 chassis arrangement - exhibit 1.45; (c) the 236-9000 chassis arrangement, which included the 236-8978 ladder group - exhibit 1.46; and (d) the 236-8978 ladder group, which included the 243-6390 upper left forward handrail and the 243-6409 upper right aft handrail, both on the platform above the 234-1530 and 244-3541 side steps and handrails - exhibit 1.48. This exhibit also provides a drawing of the upper forward left side and aft right side handrails, as well as the side steps and handrails. 69 Mr Piazzola gave evidence that the SIS information (exhibit 1.44 - 1.48) was not information relating to the front end loader as shipped, but that it listed the range of parts relevant to the production of a particular loader as determined by reference to its serial number. And here, the SIS evidence by reference to the subject loader's serial number is that it was produced with the handrails both on the side of the loader and above the platform as outlined above. 70 Mr Piazzola also gave evidence that it was not possible to obtain information about the 'as shipped' Caterpillar equipment until 2011. 71 However, that was contradicted by Mr James Gliddon, also from Westrac, who was able to produce exhibit 10, being the 'as shipped' document concerning the subject front end loader, which was shipped in 2008. Exhibit 10 provides the SIS product structure of the front end loader serial number A6J00906 as that loader was shipped from the Caterpillar factory at its Sagami plant in Japan to Fremantle and which was then delivered to Westrac at its Welshpool yard. 72 This information shows that the subject loader comprised the 236-8954 standard tractor arrangement and the 236-9000 chassis (Page 15)
arrangement. As noted above, this chassis arrangement includes the 236-8978 standard ladder group, which also includes the 243-6390 and 243-6409 upper handrails on the platform. 73 The evidence of Mr Gliddon is to be preferred because he was generally far more definite in his evidence and more knowledgeable in his use of the computer systems than Mr Piazzola. Counsel for Mrs Drljaca properly conceded that Mr Gliddon was a more reliable witness. He was in fact able to produce exhibit 10 and did so. It was not suggested that this was a false document. 74 The fact that Mr Piazzola gave limited evidence not going as far as Mr Gliddon shows that neither of these witnesses had conferred about matters to be discussed by them in their evidence and that adds to their credibility. 75 It should also be observed that the publication date on the SIS information, being exhibits 1.44 – 1.48 inclusive, was 1 June 2011. That, of course, is three years after the production of the subject front end loader. Mr Piazzola was unable to provide an explanation as to what that publication date meant. 76 However, Mr Piazzola was able to cross-check the SIS information against the TMI information, which then enabled him to confirm the veracity of the SIS information, such that by comparing the upper forward and aft handrail numbers from exhibit 1.48, being the SIS information, with exhibit 1.39, being the TMI information, it can be seen that they both refer to the same 243-6390 and 243-6409 upper handrail numbers above the platform. In this way, Mr Piazzola was able to say that the standard ladder arrangement was produced on the subject loader, and as relevant to this trial, had not changed as late as the date of publication of the SIS information in 2011.
Caterpillar's computer documents 77 Mr Tatsuzo Osugi, the earth moving machine managing director from Caterpillar at Sagami, Tokyo produced into evidence computer records from Caterpillar concerning the subject loader. He did this by reference to its serial number. He could identify the configuration of the subject loader by checking Caterpillar's shipping order dated 4 February 2008 to see that it comprised a 236-8954 standard tractor formation. He then checked the design change revision number of the top level arrangement 236-8954 at the assembly start date through the Sagami engineering database system and found that there had been three changes (Page 16)
to that 236-8954 tractor formation as at February 2005 - exhibit 1.58. The subject loader was constructed in 2007 and 2008. 78 The Caterpillar records accessed by Mr Osugi came from the Sagami EDS computer system, which is a different system again to Westrac's TMI and SIS computerised materials. 79 The shipping order produced by Mr Osugi from the Sagami EDS computer system shows that a 317-2517 industrial arrangement was included in the sale of the subject loader – exhibit 1.21. 80 Importantly, Mr Osugi said in cross-examination that the 317-2517 industrial arrangement was 'line installed' at Sagami, Japan as indicated by the 'L' in the 'L/A' column of Caterpillar's shipping order. This is consistent with Mr Gliddon's evidence of the 'as shipped' document - exhibit 10. Mr Osugi was not able to recall precisely what the 'A' in the L/A column stood for, but said it was 'after line-off or something like that'. Mr Nugawela did not attempt to shift Mr Osugi from this evidence. 81 However, Mr Osugi did not know at that point what the industrial arrangement comprised. He was not re-examined about it. Clearly, the shipping order related to the 966H wheel loader serial number A6J00906 with a line installed 317-2517 industrial arrangement, whatever that comprised and that can also be ascertained from the TMI and SIS information. 82 Finally, in cross-examination, Mr Osugi was asked about the waste handling arrangement in respect of which the mirror is not fitted at the factory in Sagami. He was then asked about the handrails being separately packed for transport. Mr Osugi said that for roll-on roll-off loaders, handrails normally remain on the machine and the need for that is obvious because it is necessary to have the handrail present before operators can safely load the loader onto a truck for delivery to a port in Japan, unload it from the truck at the port, load it onto a ship, unload it from the ship at Fremantle and then load it onto another truck to transport it by road to Welshpool and then remove it from that truck. That the subject loader was a roll-on roll-off loader can be seen from exhibit 1.21, and on this basis, the handrails would have been line installed.
Design change revisions 83 Mr Osugi checked the design configuration (bill of material) of the top level arrangement through the Caterpillar engineering database which (Page 17)
showed that the 236-8954 tractor arrangement cascaded down to the 236-8957 general arrangement, the 236-9000 chassis arrangement and the 236-8978 ladder group. He also checked the design change revision number of the ladder group, being '03' at the assembly start date ie, February 2008 - exhibit 1.58. 84 Why exhibit 1.58 refers to revision change 03 to the ladder group is a matter which none of the witnesses could answer. However, such revision change does not mean that there have been changes to the handrails of the subject loader. Indeed, the evidence is that there have not been any changes to 243-6390 and 243-6409 upper forward and aft handrails above the platform. 85 Mr Osugi was able to refer to exhibit 1.23, which is a drawing of the 236-8978 ladder group, being part of the 236-9000 chassis arrangement, the 236-8957 general arrangement and the 236-8954 standard arrangement for the subject loader. Mr Osugi confirmed that the 236-8978 ladder group was fitted to the subject loader because this drawing, exhibit 1.23, related to the time when the subject loader was manufactured. That can be determined by reference to exhibit 1.58, which refers to the 236-8978 ladder group. 86 Another aspect of Mr Piazzola's evidence relevant to change level 03 is, he said, that it relates to the 236-8954 tractor arrangement, and not the ladders. Hence, it is not so much a question of what the correct change level is for the 236-8954 tractor arrangement but rather, the question is whether the handrails have ever changed, because if they have not, then the tractor arrangement change level does not make any difference. He said that they have not changed. 87 Exhibit 1.59 also shows the drawings for the 236-8978 ladder group, including the 243-6390 and 243-6409 upper forward and aft handrails respectively. This exhibit also reflects a change level of '03'. What this shows is that even with a level 03 change to the standard ladder group, the same upper handrail parts and side ladder parts are included in the 236-8978 ladder group within exhibit 1.59 as are included in the TMI computer documents, being exhibits 1.37 – 1.40 and in the SIS computer documents, being exhibits 1.44 – 1.49 respectively. That that is so can further be determined by the physical appearance of the diagrams being exhibit 1.59, page 2 and exhibit 1.48. 88 Any doubt about this can be dispelled by reference to exhibit 1.39, which is a TMI printout concerning the 236-8978 ladder group indicating (Page 18)
that the 243-6390 upper forward handrail and 243-6409 aft handrail have never been changed at all. A review of exhibit 1.39, being the part number consist breakdown for the 236-8978 ladder group, covering all changes, shows that there are as many as seven changes to various other parts within the 236-8978 ladder group, but not to the 243-6330 and 243-6409 upper forward and aft handrails. 89 It will be seen shortly that originally, the order for the loader included a '245-2032 waste handling package'. That was replaced with what was described as a '302-7849 industrial package', although in reality it too was a waste handling package. This package was then replaced with the 317-2517 industrial arrangement. 90 It is pertinent to note that both the 302-7849 arrangement and the 317-2517 industrial arrangement both utilise the same 236-9000 chassis arrangement, the same 236-8978 ladder group and the same 243-6390 and 243-6409 upper forward and aft handrails as the 236-8957 general arrangement within the 236-8954 standard tractor arrangement, so that there is, in fact, no difference in terms of handrails between the 302-7849 arrangement, the 317-2517 industrial arrangement and the 236-8957 general arrangement within the 236-8954 standard tractor arrangement for the subject loader – exhibits 1.72 and 1.73. 91 There was no evidence that differences between the 302-7849 and 317-2517 arrangements affected the ladder arrangement fittings for the subject loader. If either of them did, then the computer printouts from TMI and SIS would have indicated that. 92 The evidence is that there have not been any changes to the upper handrails.
Contractual and other related sale documents 93 In 2008, Mr Royce Sallur was the Westrac sales representative servicing local government and construction. He arranged the sale of the subject loader, which was one of two loaders ordered by a local government authority. Its intended use was to deal with waste products. For this type of use, a waste handling package can be provided which covers various aspects including guarding, cooling, cleaning, accessibility and other optional extras. Such waste handling package provides a handrail on the upper platform which varies from the 243-6390 and 243-6409 upper standard ladder group handrails above the platform. It also provides for additional steps, handrails and a fold-up mirror to provide easier access to the front windshield. That this is so can be seen (Page 19)
from a pamphlet entitled 'CAT wheel loaders – Waste handling' - exhibit 5. 94 The tender by Westrac, dated 20 September 2006, provided for a loader with a waste handling package. That package was listed under the heading of 'locally sourced equipment' – exhibit 1.31 at page 2 of 8. The tender also included provision for handrails above the platform. 95 Mr Sallur largely prepared the tender, but it seems to have been finalised by Ms Sharon Bayliss from the sales administration department. 96 Mr Sallur gave evidence that the provision of the waste handling package was placed 'in the wrong spot' in the tender by Ms Bayliss. The package had to be included somewhere in the documentation in order for it to undergo a compatibility test with Caterpillar ie, that the required package had to be compatible with the 966H loader. 97 Mr Sallur said that waste handling packages and industrial arrangements are not sourced locally and cannot be so sourced. They can only be sourced from Caterpillar. 98 Once agreement for the sale of the loader had been achieved, Mr Sallur then provided Westrac's sales administration department with a contract review document after which the order was then placed with Caterpillar. It seems that, at first, the order was made providing for an incorrect industrial arrangement and when that mistake was ascertained, a new order was placed. This resulted in delayed production and delivery of the subject loader. 99 Exhibit 6 comprised an email request for non-published pricing information for a quotation document, referring to a 245-2032 waste handling package. That request was dated 27 February 2007. It was replaced by a further request for non-published pricing information seeking the pricing of a '302-7849 industrial arrangement'. This request was dated 25 June 2007 and sent on 28 June 2007. On 29 June 2007, Ms Bayliss sent an email confirming that the 245-2032 waste handling package had been replaced with a '302-7849 industrial arrangement'. 100 It is not known what happened between 29 June 2007 and the manufacture/delivery of the subject loader. Clearly however, the 245-2032 waste handling package was replaced by the '302-7849 industrial arrangement' as outlined above. The latter was in turn replaced by the 317-2517 industrial arrangement. Ms Bayliss was not called to give evidence to explain how this came about. (Page 20)
101 Further, although the 302-7849 arrangement is described in Ms Bayliss' email, being exhibit 6, as an industrial arrangement, it is in fact described by Caterpillar as a waste handling arrangement – exhibit 1.69. 102 As previously noted above at [91], the 302-7849 arrangement and the 317-2517 industrial arrangement both incorporate the same 236-8978 standard ladder group and the same 243-6390 and 243-6409 upper handrails above the platform. 103 The shipping order from Caterpillar dated 4 February 2008 identified the subject loader by serial number and separately includes a 317-2517 industrial arrangement under the heading 'INSTALL' – exhibit 1.21. 104 The fitting order, dated 3 April 2008, included 'Consist Items', 'Standard Jobs', 'Major Attachments, 'User Defined Attachments' and 'internal items' - exhibit 1.7. Mr Sallur said that Ms Bayliss prepared this document following the format of the tender. The fitting order was provided to Mr Sallur to review and then it was passed to the Westrac mechanics for them to do what was necessary with the newly arrived plant and equipment and it was also provided to the purchaser as a checklist. 105 Under the heading 'User Defined Attachments' in the fitting order was '1 x 317-2517 INDUSTRIAL ARRANGEMENT (in consist) (IN CONSIST)' [sic], for which a separate price was allocated. The 317-2517 industrial arrangement was not included under the heading 'Consist items' of this fitting order. It was not described therein as being locally sourced. 106 The 'consist' refers to those parts of the plant and equipment which are standardly included in such plant and equipment at production by the Sagami factory. 107 The 317-2517 industrial arrangement is not part of the standard consist of a 966H loader and so it was separately included in the tender and fitting order. Mr Sallur said that the industrial arrangement was identified in the fitting order as being part of the consist because the Sagami factory had identified it to Westrac as being part of the consist of the subject loader as produced by it. The loader is identified therein by serial number. 108 The invoice for the sale of the loader from Caterpillar to Westrac is dated 15 April 2008 - exhibit 1.8. It is headed 'PRODUCT DESCRIPTION' and lists the 966H loader by serial number showing the (Page 21)
origin of the goods as being from Japan. It shows the 317-2517 industrial arrangement as a separate item and cost from the loader itself. 109 A separate document from Caterpillar to Westrac entitled 'ACKNOWLEDGEMENT' dated 15 April 2008 again itemised the 317-2517 industrial arrangement as a separate item from the loader followed by the typed initials 'EMA', next to which is handwritten 'Ordered from CAT'. There is also a handwritten asterisk next to this item – exhibit 1.9. It is not known what 'EMA' stands for or what the asterisk means or who handwrote this asterisk and note. In cross-examination, Mr Sallur assumed that Ms Bayliss had written the note. It is not a document with which he would normally be provided. Ordinarily, it would be passed by the sales administration department to the accounts department for payment. Mr Sallur said that if there was a part ordered from Caterpillar, but yet to be delivered, it would be the subject of a separate invoice. He had not seen that before. 110 In the event that work is required to be performed by Westrac on a Caterpillar upon arrival at Welshpool, then internal invoices for services are issued by the Westrac workshop to the sales department of Westrac. 111 A service report showing work done on 17 April 2008 on the subject loader indicates that the consist, any shipping damage and any short shipping were all checked – exhibit 1.63. The report records that 'every component is there'. The machine was assembled in respect of 'any parts not fitted from factory', but such parts as may have been fitted were not specified therein. Mr Robert Stringer, from Westrac, did this work. He could not recall this particular loader from any other upon which he had worked. 112 Westrac's internal tax invoice for services dated 23 April 2008 indicates that, amongst other things, work in respect of this service report was done to 'load/unload machine' 'check machine' and 'assemble machine', for which the labour charged would have permitted sufficient time to install the upper ladders on the platform, if necessary, but that work was not identified as such within the invoice itself – exhibit 1.62. 113 A further internal tax invoice for services dated 18 June 2008 indicates that, amongst other things, the services included 'assemble machine', 'new machines job completed checklist', 'pre-deliver machine' and it also refers to the supply and installation of various specified component parts, but it does not specify the supply and installation of an industrial arrangement, or of any handrails - exhibit 1.15. (Page 22)
114 Mr Piazzola gave evidence that it is strange to have two internal tax invoices for 'assemble machine' in respect of the same loader. 115 The equipment tax invoice dated 17 June 2008 from Westrac to the purchasing local government authority details the sale of the 966H loader and includes the heading 'EQUIPMENT FITTED WITH' and names certain fitted equipment thereunder and under the heading of 'LOCALLY SOURCED EQUIPMENT', it specifies a '317-2517 INDUSTRIAL ARRANGEMENT (IN CONSIST)' – exhibit 1.2. 116 In cross-examination about the equipment tax invoice, Mr Sallur repeated his earlier evidence that the industrial arrangement could not be sourced in Western Australia and that the identification of the industrial arrangement as being locally sourced in the equipment tax invoice is simply a repeated mistake, following the format of the fitting order, which in turn had followed the format of the initial tender.
Short shipping and shipping damage 117 Mr Philpot gave evidence that upon receipt by him of the facsimile transmission from Mrs Drljaca advising of the delivery of the subject loader, he then set in course certain actions in respect of that delivery. 118 Evidence was given by Mr Philpot, Mr Piazzola and Mr Sallur that checks are made for any 'short shipping'. This is effected by Mr Philpot who, upon the arrival of a new piece of equipment at the Welshpool yard and the receipt of delivery advice from the security guard, sends an email to staff requiring them to check that the 'consist' is correct and to note any shipping damage or short shipment. In the checklist provided by him in the instant matter, he noted various component parts, including the 317-2517 industrial arrangement, which he asked to be checked in this way – exhibit 1.27. 119 Mr Stringer's evidence was that he gave a quick, cursory glance at the loader to ensure that it comprised all of those items which it was meant to comprise. He was able to ascertain that he did this from a service report – exhibit 1.63. 120 The evidence was that had there been any short shipping, then it was necessary to send an invoice to Caterpillar however, no documents were produced to show any such short shipping. There was no evidence of short shipping in terms of the industrial arrangement, the upper handrails, or anything else. (Page 23)
121 It should also be observed that prior to shipment from Japan, the loader was checked for any paint damage or scratches. The name of the inspector who carried out that check is indecipherable on the relevant document – exhibit 1.21.1. However, the inspector has drawn lines to scratches placed, amongst other places, on the left side of the loader. It is difficult to determine precisely to where this line has been drawn. The enlarged version, exhibit 1.21.2, is also equivocal as to the point where the inspector has drawn that line indicating paint damage or scratches. It could be pointing to the top of the left hand side of the side handrail or the bottom of the upper left forward handrail above the platform. The translated exhibit 1.21.1 reveals that the loader was further checked and there was another shipping inspection. The defective paint has been certified as having been corrected on 7 September 2007 - exhibit 1.21. Arguably, if the upper handrails had not been present, then that fact would have been noted by the inspector carrying out the check for scratched or defective paintwork. 122 Mr Philpot was also able to say by reference to his checklist, exhibit 1.27, that a member of Westrac staff ticked all items on the checklist provided by him to ensure that the consist was correct, that there was no shipping damage and no short shipment. The consist as checked included the 317-2517 industrial arrangement.
Findings on Mrs Drljaca's evidence 123 It needs to be remembered that English is not Mrs Drljaca's first language. Further, longer hours than usual were required on the first day of the trial to receive her evidence and that no doubt led to her becoming tired and perhaps, frayed. Even allowing for these factors, Mrs Drljaca was not a satisfactory witness. It seems that she was really reconstructing her evidence, rather than detailing her memory. This incident occurred more than five years ago. 124 Mrs Drljaca may well have remembered taking the invoice in the plastic envelope from her mouth and placing it on the operator's seat of the loader with her right hand whilst she held on with her left hand inside the cabin door and had her feet on the third step on the side of the loader. However, this does not mean that her other evidence about ascending and descending the steps should be accepted. Yet, she was quite definite in her evidence that she ascended and descended the side steps of the loader by bringing her hands and feet together on adjacent steps. 125 Given the measurements as to the distance between steps provided by Dr Chew, as set out above at [48], it is implausible to suggest that (Page 24)
Mrs Drljaca ascended and descended the steps on the side of the loader with her hands and feet being on adjacent steps at the same time. Even her own counsel, Mr Nugawela, accepted that she must have been wrong in this description of her manner of ascending and descending the steps on the side of the loader. 126 Further, as noted above at [35], Dr Chew reported that Mrs Drljaca told him she was unable to reconstruct her descent in details. She held onto something with both hands, but she could not recall for him what she was holding onto. 127 Mrs Drljaca did not tell her solicitors or Dr Chew that side handrails were present or that they were sticky or slippery. 128 On the contrary, from Dr Chew's report, he was instructed by her solicitors that her background information was that there were no handrails at all. His hearsay report of what she said to her solicitors is consistent with par 8 of the statement of claim pleading an absence of side rails as set out at [13] above. Mrs Drljaca was neither cross-examined by specific reference to par 8 of the statement of claim, nor was she cross-examined about her solicitors' instructions to Dr Chew. These, of course, are not documents prepared by her. However, Dr Chew's report and the pleading are also consistent with Mrs Drljaca's answers to interrogatories saying there was nothing she could grab onto, such as rails or similar as set out at [38] above. Her answers to the interrogatories were sworn answers. 129 Mrs Drljaca was cross-examined about her answers to interrogatories. Her oral evidence as to the presence of side handrails was at variance with the pleading, Dr Chew's report concerning the absence of handrails and her answers to interrogatories. Indeed, her evidence goes beyond this contradiction in that, at trial, she not only accepted the presence of side rails, but she also said that those side rails were slippery and sticky. 130 Mrs Drljaca's advice to Dr Chew that she put one foot on the bottom step which moved inwards while she still had her other foot on the third step is also inconsistent with her evidence at trial that her other foot was on the second step. 131 Mrs Drljaca's description of holding onto the steps, with her finger span of 7 – 8 cm, as measured by her at trial, cannot be accepted because of the width of the steps as recorded by Dr Chew as detailed above at (Page 25)
[48]. However, I will put that to one side in the event that I have misunderstood her evidence, as suggested by counsel. 132 In her evidence-in-chief, Mrs Drljaca said that she had previously climbed four or five 966H loaders. In her cross-examination, she extended this to four or five or six. Nothing turns on that difference. The reference by both counsel was specifically to 966H loaders on each occasion. She said that none of these loaders had upper handrails above the platform, and neither did the loader which arrived later in the same afternoon as Mrs Drljaca suffered her fall. 133 Mr Sallur gave evidence that there had not been any problems concerning the alleged absence of handrails on other loaders. There is no reason to not accept this evidence which, of course, carries little weight with respect to the circumstances of the subject loader, but it does otherwise contradict Mrs Drljaca's evidence about other loaders. 134 It would be most unlikely that every 966H loader which arrived at Westrac's Welshpool yard on Mrs Drljaca's watch did so without any upper handrails, as claimed by her, including another 966H loader which arrived later in the same afternoon as the subject loader. This claim by Mrs Drljaca is implausible. 135 Further, although it is also of little consequence, Mrs Drljaca was also contradicted by Mr Magnussen as to the colour of the steps on the side of the loader and he, together with Mr Piazzola, said that the bottom step moves 'front to back', rather than inwards, to allow that step to move in the event of the loader striking something when moving forwards and backwards. 136 Although Mrs Drljaca may have fallen from the side steps on the subject loader, I am by no means persuaded by her evidence that the upper handrails above the platform were missing. I am not prepared to act on her evidence unless it is corroborated in some manner.
Findings on the defence case
Computer documents 137 Westrac's two computer systems, TMI and SIS, are consistent with each other and they are also consistent with the EDS information system from Caterpillar's Sagami plant in Japan. This computer information details the various component parts of a Caterpillar 966H front end loader (Page 26)
in the ordinary course of production and it also details the various component parts of the subject loader, serial number A6J00906. 138 The subject loader comprised the 236-8954 standard tractor arrangement, but it did not comprise the usual 236-8957 general arrangement. Further, it included the 317-2517 industrial arrangement. However, common to both the 236-8957 general arrangement and the 317-2517 industrial arrangement is the 236-9000 chassis arrangement with the 236-8978 ladder group. From the TMI, SIS and EDS computer systems, this loader was not only expected to be fitted with the 236-8978 ladder group, but it was in fact so fitted. 139 The shipping order, exhibit 1.21, records the 317-2517 industrial arrangement as having been line assembled at Caterpillar's Sagami factory before it was shipped to Fremantle. That necessarily means that the 236-9000 chassis arrangement and the 236-8978 ladder group were both installed prior to shipment. 140 This was confirmed by Mr Gliddon with respect to the computerised 'as shipped' report he produced from the SIS system, exhibit 10, showing that the 236-8954 tractor arrangement for the subject loader included the 236-9000 chassis arrangement and that necessarily carries with it the 236-8978 ladder group. It is documentary evidence which has not been satisfactorily contradicted. 141 Although there may have been changes made to the 236-8978 ladder group, those changes do not affect the 243-6390 and 243-6409 upper forward and aft handrails above the platform. There has not been any change to the 236-8978 ladder group in respect of the 243-6390 and 243-6409 upper forward and aft handrails above the platform.
Contractual and other related sale documents 142 Mr Nugawela referred to: (a) the tender as providing for the waste handling package to be locally sourced; (b) the two requests for non-published pricing information referring to the waste handling package and the industrial arrangement; (c) the fitting order not listing the industrial package as a consist item; (d) the handwritten words on Caterpillar's acknowledgement, being 'ordered from CAT' as being consistent with the industrial (Page 27)
143 Mr Nugawela submitted that these documents show that the 317-2517 industrial arrangement was a separate item from the loader and that it was to be locally sourced and fitted in Welshpool. It was not part of the consist. It therefore did not arrive with the loader. He seemed to rely on the handwritten note 'ordered from CAT' on the acknowledgement suggesting that it was therefore separately ordered and it could in that sense be said to be 'locally sourced' and then fitted when it arrived at Welshpool separately from the loader. He submitted that this therefore shows that the subject loader arrived at Welshpool without the handrails, as claimed by Mrs Drljaca. 144 In dealing with these submissions, the starting point is that the waste handling package referred to in the tender was clearly replaced by what was incorrectly said to be an industrial arrangement, which was then in turn replaced by the 317-2517 industrial arrangement. 145 Mr Sallur's evidence was that the industrial arrangement is not part of the standard 966H loader. It had to be separately ordered. That is logical. He said that the industrial arrangement is significantly different to the standard loader, and so he inspected it some days after its arrival at Welshpool. He could not now remember it from other loaders, other than that it was a different loader to those normally received. 146 The industrial arrangement was not listed in the fitting order under the heading of consist items. Instead, it is listed as a user defined attachment. Nonetheless, it is specifically stated therein to be 'in consist', following advice from Caterpillar's production plant at Sagami that it was part of the consist. As noted, Mr Sallur said the fitting order followed the incorrect format of the tender. 147 Mr Nugawela was critical of Mr Sallur's evidence because, he said, Mr Sallur sought to blame any problem with the tender on Ms Bayliss. However, I accept Mr Sallur's evidence that the waste package was detailed in the wrong place in the tender. Whatever criticism there may (Page 28)
be, an additional package was a required item which came at a cost. That package did have to be separately identified in the tender because of that separate, additional cost. It also had to pass a compatibility test with the loader. It could not be locally sourced. The original waste package was changed to an industrial arrangement which was in fact ordered from, and supplied by, Caterpillar. That is clear. The fitting order indicated that it was a consist item, following advice to that effect from Sagami. The Caterpillar shipping order itemises it as a separate item supplied by Caterpillar with the loader. 148 Caterpillar's invoice and acknowledgement do not assist Mrs Drljaca. As typed, they refute the suggestions that the industrial arrangement was ordered separately from the loader and that it was to be locally sourced in either the true sense of that expression or in the sense perhaps relied upon by Mr Nugawela in that the acknowledgement acknowledged Westrac's order for the industrial arrangement and the invoice provides a specific charge from Caterpillar to Westrac for supplying it. The Caterpillar shipping order shows that the industrial arrangement was line installed. The Caterpillar documents are independent of Westrac and do not suggest any separate order for either the purchase or separate delivery of the industrial arrangement. They do not suggest the separate delivery of handrails. The industrial arrangement was separately itemised and costed in Caterpillar's documents because it was not part of the tractor standard arrangement. It was an optional extra at a cost specified in the invoice. 149 The meaning of the initials 'EMA' on the acknowledgement is not known. The author of the asterisk and handwritten note on that document, the date of them being handwritten and their precise meanings are not known. No weight can be attached to the initials EMA, the asterisk and the handwritten note. Indeed, the handwritten note is equivocal in that it may mean that the industrial arrangement was simply ordered as part of the consist because the tender refers to a waste package which was later replaced by the industrial arrangement. 150 The Caterpillar shipping order directing the subject loader from Caterpillar, Japan to Westrac was issued on 4 February 2008 – exhibit 1.21. It specifically refers to the loader by serial number A6J00906, being a 236-8954 (standard tractor arrangement) 966H wheel loader. It also refers to a series of optional extras under the heading 'INSTALL', including a 317-2517 industrial arrangement. The shipping order shows the industrial arrangement to have been line installed and such arrangement includes the standard ladder arrangement. This is consistent with exhibit 10 and with the TMI, SIS and EDS computer (Page 29)
information. It would not have been line installed unless it was previously ordered and there is no evidence of complaint by the local government authority that the industrial arrangement was not what it ordered from Westrac. It is also known that a waste package was originally ordered from the tender, but that order was later changed to an industrial arrangement. 151 Westrac's equipment tax invoice showing the industrial arrangement to be locally sourced is inherently contradictory because it also shows such arrangement to be in the consist. As Mr Sallur said, this invoice simply followed the format of the tender and the fitting order. What the tender provided in this respect was probably not a concern to the purchaser of the loader. However, the fitting order was based on advice from Caterpillar Sagami, including advice as to the consist of the loader. The repeated error in the equipment tax invoice and the fitting order was for them to follow the format of the tender. 152 Any inconsistencies in Westrac's documentary evidence have been satisfactorily explained. Further, the provision of a locally sourced industrial arrangement does not make sense. There is no evidence from where it could be locally sourced, in the true and ordinary meaning of that expression. 153 What is clear is that Caterpillar charged Westrac with the cost of the 317-2517 industrial arrangement and it was supplied by Caterpillar. Caterpillar was to be, and was in fact, the source of the industrial arrangement. Logic dictates that an industrial arrangement ordered from Caterpillar and sourced from Caterpillar would be fitted by Caterpillar at production. This is confirmed in the shipping order. 154 It can be accepted that the nature of parts ordered to be delivered to Westrac dictates the time taken to install those parts. Westrac's two internal invoices may be consistent with the time required to install upper handrails above the platform, but they do not state that that service was actually provided. 155 The fact of two Westrac invoices having issued is not inconsistent with the notion that the second invoice issued after the later, but separate, arrival at Welshpool of a 317-2517 industrial arrangement or even just the upper handrails and the installation thereof at Welshpool. But that would be inconsistent with Mr Sallur's evidence that there would then be a separate invoice from Caterpillar for the later delivery and there is not a separate Caterpillar invoice. There is no evidence of a later delivery. (Page 30)
Indeed, the cost is included in the same invoice from Caterpillar as that of the loader. The documentary evidence points compellingly to the delivery of the industrial arrangement and the upper handrails as part of the consist. 156 That there were two tax invoices for services may be strange, but the reason for it will have to remain a mystery as there is insufficient evidence to draw any inference that one of those invoices was for the installation of the industrial arrangement, or even just the upper handrails. 157 The 236-8954 standard tractor arrangement and the 317-2517 industrial arrangement are referred to in each of the Caterpillar invoice, acknowledgement and shipping order. These carry with them the 236-9000 chassis arrangement and 236-8978 standard ladder group as noted under the TMI and SIS information which particularise the production of standard loaders and the subject loader respectively. 158 There is no evidence to suggest that the 317-2517 industrial arrangement provides for anything other than the 236-8978 standard ladder arrangement. It does not provide a choice of upper forward and aft handrails, as might be the case with a waste handling package. The industrial arrangement does not change the standard ladder group. 159 Given that the industrial arrangement includes the chassis as a component part then, it is unlikely that the industrial arrangement proper could be fitted under the heading 'assemble machine' at a cost of $506.28 as set out in an internal invoice. However, this was not discussed in submissions and so it can be put to one side. 160 Further, although Mr Nugawela submitted that the industrial arrangement was to be locally sourced and fitted, perhaps even he would not suggest that the subject loader was delivered to Welshpool without a chassis. Again, this aspect of the matter was not raised at trial and can also be put to one side. 161 It should also be noted that the originally ordered 245-2032 waste handling arrangement did not impact upon the ladder arrangement in any relevant manner. Within this arrangement was a 247-1116 guard group-articulation dealing with a ladder, but such ladder was on the right hand side of the front end loader, and had nothing to do with the left hand side and it is only the left hand side steps and handrails with which this trial is concerned – exhibit 1.71. (Page 31)
162 Mr Sallur gave evidence that there had not been any other problems with respect to handrails. 163 The preponderance of evidence supports the industrial arrangement and the upper handrails being part of the consist and being factory installed.
The failure of Ms Bayliss to give evidence 164 Mr Nugawela submitted that the unexplained failure by Westrac to call Ms Bayliss supports the inference that her evidence would not have assisted the defence and such failure enables the inference to be drawn that the 317-2517 industrial arrangement was to be locally sourced, separate from the loader and to be installed in Perth, such that when the loader arrived at Welshpool, it did not have any handrails. Such inference can be drawn, he said, because Ms Bayliss, as a Westrac employee, could cast light on how the waste handling package and industrial arrangement numbers referred to in her emails - exhibit 6, the Caterpillar invoice - exhibit 1.8 and the acknowledgement - exhibit 1.9, vary and what agreement was made for the purpose of installing whatever industrial arrangement had been ordered. 165 Mr Nugawela referred to Jones v Dunkel (1959) 101 CLR 298 and Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361, the latter of which noted as follows [63] and [64]: 166 Ms Bayliss is still employed by Westrac. Possibly, she could have given evidence as to what was initially ordered and how it came to be that the final order included a 317-2517 industrial arrangement. Equally, she may not have been able to give any such evidence. (Page 32)
167 Ms Bayliss may or may not have been able to give evidence as to whether the industrial arrangement was to be truly locally sourced or sourced separately from Caterpillar and installed in Perth or not. She may or may not have been able to explain why the tender, the fitting order and the equipment tax invoice were prepared in the format they were. She may or may not have been able to explain why the equipment invoice is inherently contradictory. She may have dealt with many such orders and not now be able to remember one order from another after such a long period of time. However, Mr Sallur essentially prepared the tender and he explained how and why the industrial arrangement was listed therein and how the fitting order and the equipment tax invoice both followed the format of the tender. 168 Ms Bayliss would not have been able to give evidence as to how Caterpillar prepared its invoice, acknowledgement and shipping order in the manner they have been drawn. These documents have been prepared independently of Westrac by Caterpillar. They include the invoice and acknowledgement for the loader and the industrial arrangement as part of one order and the shipping order shows the industrial arrangement to have been line installed in Sagami. 169 It may be inferred that Ms Bayliss' evidence would not have assisted Westrac, but it cannot be said that her absence from giving evidence enables the drawing of an inference that the industrial arrangement was to be locally sourced and fitted at Welshpool, such that it could be said that the loader arrived in Welshpool without handrails. At best, it is simply not known what she might, or might not, have been able to say.
Short shipping and shipping damage 170 Any short shipping of the industrial arrangement or the upper handrails would be likely to have been picked up at inspection in Sagami, as it was likely to have been picked up upon arrival at Welshpool when checked by Mr Stringer or inspected by Mr Sallur. 171 Further, although not conclusive in any way itself, the damage report of paint damage or scratches from Japan shows that the subject loader was checked before shipping. In all of the circumstances, the probability is that an absence of the industrial arrangement or the upper handrails would have been detected either in Japan or at Welshpool or both. There is no evidence of complaint of something missing by the purchaser of the loader. There is no evidence of the industrial arrangement or the upper handrails being fitted to the loader subsequent to its arrival at Welshpool. That is, no doubt, because, as noted in the shipping order, the industrial (Page 33)
arrangement was installed at Sagami and, as part of the standard production methods, the upper handrails were also line installed in Sagami.
Conclusion 172 The oral evidence from Mrs Drljaca falls far short of establishing that the subject loader did not have any upper handrails above the platform. 173 The evidence, when viewed in its entirety, is not persuasive of finding that the subject loader arrived at Westrac's Welshpool yard without the industrial arrangement or even without just the upper handrails. Indeed, the evidence strongly supports Westrac's claim that the industrial arrangement was factory sourced and fitted as part of the same order of the loader. Such order necessarily brings with it the upper handrails. There is no satisfactory evidence to support the submission that the industrial arrangement was a separate order, or was to be locally sourced or that it, or just the upper handrails, arrived separately at Welshpool after the loader. My finding is that the subject loader arrived at Welshpool with the industrial arrangement line installed, including the upper handrails. 174 Given Mr Nugawela's concession that Mrs Drljaca's case stands or falls on the finding concerning the upper handrails, then her claim must be dismissed.
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