| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GIBBS -v- HAOMA MINING NL [No 2] [2011] WADC 148 CORAM : SCHOOMBEE DCJ HEARD : 31 AUGUST 2011 DELIVERED : 20 SEPTEMBER 2011 FILE NO/S : CIV 1348 of 2007 BETWEEN : BARBARA JEAN GIBBS Plaintiff
AND
HAOMA MINING NL
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party
Catchwords: Practice and procedure - Application to amend statement of claim and to reopen case to call witness - Application made after judgment reserved - Whether evidence to support amendment - Whether prejudice to opposing party - Factors relevant to court's discretion
Employer's nondelegable duty of care to provide safe equipment and maintain equipment - Whether negligence by independent contractor in maintaining equipment is casual negligence for which employer not liable
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Legislation: Nil Result: Application allowed in part
Representation:
Counsel:
Plaintiff : Ms R L Sorgiovanni
Defendant : Mr T Lampropoulos SC
Third Party : Mr T Mason
Solicitors:
Plaintiff : Sorgiovanni Legal
Defendant : Hammond Legal
Third Party : Jackson McDonald
Case(s) referred to in judgment(s):
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Birch v Walker Australia Pty Ltd [2006] SAWCT 63
Commissioner of Taxation v Macquarie Health Corp Ltd (1999) 41 ATR 500
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Galea v Bagtrans Pty Ltd [2010] NSWCA 350
Kondis v State Transport Authority (1984) 154 CLR 672
Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375
Lepore v State of New South Wales (2001) 52 NSWLR 420
McLean v Tedman (1984) 155 CLR 306
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1
Wilsons & Clyde Coal Co Ltd v English 1936 SC 883
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1 SCHOOMBEE DCJ: This matter concerns an application by Ms Gibbs, the plaintiff, to amend her statement of claim and re-open her case in order to call a witness who has previously given evidence for Haoma Mining NL, the defendant. The application was made approximately a week after the closing submissions had been heard and the court had reserved its decision in the trial. The defendant opposes the application.
2 The plaintiff sued the defendant for damages for personal injury which she incurred on 27 September 2003 when the left rear wheel of the Toyota Landcruiser vehicle that she was driving between Port Hedland and the defendant's mine site disengaged. The plaintiff was employed by the defendant at the time she drove the defendant's vehicle.
Amendment to plead negligence by the defendant's independent contractor to properly tighten the wheel nuts 3 The plaintiff pleaded, as part of the particulars of negligence, that the defendant, its servants or agents, were negligent in failing to take any or any adequate steps to avoid the risk of the wheel falling off the vehicle and, further, that the defendant failed to inspect or adequately inspect the vehicle so as to ensure that it was safe for the plaintiff to drive. Dr Casey, the mechanical engineer who gave evidence on behalf of the plaintiff at the trial was of the view that the likely cause of the wheel disengaging was that the nuts on the wheel had been over-tightened or that some of them had been under-tightened. Mr Simms, the mechanical engineer who gave evidence on behalf of the defendant, agreed that these were both likely causes, but added that it was also possible that that all of the nuts had been under-tightened. Mr Simms expressed the view that the most common cause of a wheel disengaging was inadequate tightening of the nuts; over-tightening was not a common cause. 4 The plaintiff did not specifically say in her particulars of negligence that the failure by the defendant, or its servants or agents, to take adequate steps to guard against the wheel falling off, included the failure to properly service and maintain the vehicle or the failure to properly tighten the nuts. The plaintiff also did not refer in her statement of claim to the fact that maintenance on the vehicle had been carried out by an independent contractor of the plaintiff, Pilbara Automotive and Marine Services (Pilbara Automotive), and that the defendant was liable for any negligence of its independent contractor by reason of its non-delegable duty of care owed to the plaintiff. (Page 4)
5 Counsel for the plaintiff submitted that it was not necessary to plead a non-delegable duty of care, as this was a legal matter which did not have to be pleaded. Counsel for the plaintiff further submitted that it was not necessary to plead who had carried out the maintenance, as this was a matter of evidence. 6 The defendant denied in its defence that it had been negligent and pleaded that, at all material times, it had a proper system in place of inspecting the safety of and servicing and maintaining its vehicles. The defendant must therefore have realised that one of the main issues in the trial would be whether the defendant had properly serviced and maintained the vehicle. The defendant must also have known that a related issue would be its liability for the work done by Pilbara Automotive, as the evidence was that the defendant had all of its registered vehicles serviced by Pilbara Automotive. 7 As soon as the expert reports were exchanged it must also have been abundantly clear to the defendant that the cause of the accident was either over-tightening or under-tightening of the nuts and that it would be in issue whether this was done by its own employees who operated a mechanical workshop on the defendant's mine site and replaced tyres once they were worn by more than 40%, or by Pilbara Automotive which serviced and repaired the defendant's vehicles. 8 At the trial the defendant called Mr O'Keefe, the proprietor of Pilbara Automotive. Mr O'Keefe gave evidence that it was practice in his workshop to replace wheel nuts with a rattle gun to which a torque adaptor was attached so that the tension could be set according to the manufacturer's recommendations. Mr O'Keefe said that after a vehicle was taken off the hoist the wheel nuts were always checked by hand with a breaker bar to make sure that the rattle gun had not malfunctioned. Mr O'Keefe could not remember whether this procedure had been applied to the particular vehicle when it had come in for repairs in April 2011, but said that this was the usual routine followed in his workshop. The invoice issued by Pilbara Automotive showed that the repairs done in April 2011 required the removal and re-fitting of the wheels. 9 Counsel for the plaintiff did not cross-examine Mr O'Keefe to the effect that it would nevertheless have been possible that an employee did not follow the usual routine, or was distracted and that the nuts might therefore have been over-tightened or under-tightened at his workshop. Counsel for the plaintiff did not explicitly rely during the trial or in his closing submissions on the argument that it was likely that the nuts were (Page 5)
not properly affixed at Mr O'Keefe's workshop and that the defendant was liable for any such negligence by reason of its non-delegable duty of care. 10 Counsel for the plaintiff also did not cross-examine Mr Peter Cole, the general manager of the defendant, to the effect that the left rear wheel might have been replaced in the defendant's workshop in the period between April and 27 September 2003, and that one of the defendant's employees might have been negligent in over-tightening or under-tightening the nuts. The court asked Mr Cole whether there were any records indicating that the left rear wheel had been changed in the defendant's own workshop or whether he had any knowledge of this having occurred. Mr Cole answered these questions in the negative. 11 It appears from the plaintiff's written opening submissions that the plaintiff initially relied on the statement by Dr Casey in his expert report that it was likely that at least one of the wheel nuts had been missing well before the plaintiff left the mine site on the journey which resulted in the accident. When it became apparent during the oral evidence given by Dr Casey that if his theory was correct, the nut must have been missing for at least 25 hours of on-road time before the plaintiff left on her journey, the focus of the plaintiff's case shifted to establishing that the defendant should have regularly checked the nuts in its own workshop even though the wheels had previously been re-affixed by Pilbara Automotive. The plaintiff's written and oral closing submissions were largely focused on that potential aspect of negligence. 12 Before counsel for the plaintiff made his closing submissions, the court enquired from counsel for the defendant, whether it was open to the plaintiff, on the pleadings and the evidence led, to rely on the defendant having breached its non-delegable duty to properly maintain the vehicle and whether the defendant could be held liable for any negligence by Pilbara Automotive in this regard. Counsel for the defendant submitted that it was not open for the plaintiff to do so, because it had not been pleaded in sufficient detail. 13 When plaintiff's counsel was asked by the court whether he was relying on a breach by the defendant of its non-delegable duty of care, plaintiff's counsel indicated that he wanted to think about it overnight. The oral submissions by plaintiff's counsel the next day were not directed to this issue. However, at the close of its oral submissions counsel for the plaintiff indicated that he had 'not abandoned' reliance on a breach of the non-delegable duty of care. (Page 6)
14 Counsel for the plaintiff submitted that he had sufficiently indicated his reliance on a non-delegable duty of care in his oral opening submissions. In the opening submissions counsel stated that if the court was not prepared to find that a nut was obviously missing, but found that the nuts had not been properly tightened, it would not be an excuse for the defendant to say that this was a hidden hazard. The defendant had a responsibility to ensure that the vehicle provided to the plaintiff was safe and this was a non-delegable duty. However, counsel for the plaintiff then confused the issue by saying that the defendant should have 'periodically' made sure that the nuts were tightened. 15 In the plaintiff's written closing submissions there was also reference to the defendant owing a non-delegable duty to take reasonable care for the plaintiff's safety and to ensure that such reasonable care was taken. The submissions stated that the defendant breached that duty 'in the manner described in the particulars of negligence' in the statement of claim. As indicated before, these particulars were in general terms and did not particularly say that there was negligence by under-tightening or over-tightening the nuts. 16 The latter statement in the plaintiff's closing submissions may be an indication that the plaintiff continued to rely on a non-delegable duty, although this was not a matter which had received particular attention in oral submissions, nor was it fleshed out. However, counsel for the plaintiff further confused the issue of what was meant by the defendant's non-delegable duty by also stating in the closing submissions that this duty extended to the defendant regularly checking the wheel nuts by the use of a breaker bar, for example, on each occasion when the vehicle was refuelled. 17 In light of these confusing statements, it was difficult to know at any given time whether the plaintiff was relying on the defendant's non-delegable duty of care and any negligence by Pilbara Automotive and whether counsel for the plaintiff had properly understood the legal framework that applies to a non-delegable duty of care. 18 Despite this, I am of the view, that the issue of a non-delegable duty of care and breach of it by reason of the negligence of Pilbara Automotive was sufficiently raised on the pleadings and by the expert reports so that defendant's counsel either was or should have been alive to it. This is particularly so in light of the defendant's defence, its own expert report and the questions asked of its own witness, Mr O'Keefe. Accordingly, there is no substance in the defendant's objection that it was not alive to (Page 7)
the issue, not prepared to deal with it and that it was not covered in evidence. 19 Counsel for the defendant submitted that if an amendment to the statement of claim pleading a non-delegable duty and liability for the negligence of Pilbara Automotive in over-tightening or under-tightening the nuts was allowed, the defendant would be prejudiced by not having asked Mr O'Keefe further relevant questions and by not having joined Pilbara Automotive as a third party. Counsel for the defendant submitted that questions would have been asked of Mr O'Keefe or the experts which explored whether the under-tightening or over-tightening of the nuts could have occurred without anybody's negligence. 20 Counsel also indicated that if the defendant was held liable for a breach of its non-delegable duty of care, it would have to bring a separate action against Pilbara Automotive to recover its losses and different findings regarding the negligence of Pilbara Automotive might be made on that occasion, particularly if additional expert evidence was led. This is clearly a potential risk, but something that counsel for the defendant ought to have considered when it became apparent that both experts concurred that the cause of the disengaging of the wheel was the over-tightening or under-tightening of the nuts and the defendant knew that the vehicle had been repaired and serviced by Pilbara Automotive. At that point in time the defendant should have considered whether Pilbara Automotive should be joined as a third party. 21 Counsel for the plaintiff indicated that she would have no objection to Mr O'Keefe being recalled by the defendant in order to answer further questions. In fact, counsel for the plaintiff applied to re-open the plaintiff's case and call Mr O'Keefe in order to countenance any argument by the defendant that it was prejudiced by its lack of opportunity to put further questions to Mr O'Keefe. In addressing the court on what inferences the court could draw, counsel for the plaintiff realised that the plaintiff would also like to call Mr O'Keefe in order to establish that there were no other potential causes for the nuts having been over-tightened or under-tightened other than the negligence of the mechanic replacing the wheel. 22 The court has a discretion to permit a party to re-open its case and lead further evidence to supply a deficiency in its case, if the interests of justice so require. The relevant factors that a court should consider when exercising this discretion include: (Page 8)
1. whether the fresh evidence was available at the time of the trial and whether it could have been ascertained by the exercise of reasonable diligence; 2. whether the reason why the evidence was not called earlier was as a result of inadvertence or mistaken apprehension of the facts or the law by counsel or whether it was a tactical decision; 3. whether the evidence is material and to what extent it might have a considerable bearing on the outcome of the trial; 4. whether there is any prejudice to the party opposing the application; 5. the general expectation that a party is bound by the conduct of his or her counsel; and 6. that it is generally in the parties' interest and the public's interest for there to be finality in litigation. 23 These factors were discussed in Federal Commissioner of Taxation v Macquarie Health Corp Ltd (1999) 41 ATR 500 [23]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 [619] – [623]; Birch v Walker Australia Pty Ltd [2006] SAWCT 63 [25] – [26]. 24 Counsel for the defendant relied on Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 for its submission that the proposed amendment and further evidence should not be allowed at this late stage. Counsel for the defendant submitted that the delay in the completion of the proceedings, the strain and cost upon the opposing party occasioned by having to deal with the new issues, the principles of case flow management and the public interest in the completion of litigation were weighty matters in the court's exercise of its discretion and that it was these days not enough for a party to offer to pay any wasted costs in order to obtain leave to make an amendment to its pleadings where this necessitated an adjournment. The factors relied upon by counsel for the defendant are relevant considerations, but each case depends on its own circumstances and the various competing factors must be weighed up against each other. 25 In Aon Risk Services Australia Ltd the proposed amendment necessitated an adjournment of the whole trial. In this case the proposed amendment would only necessitate the recalling of one witness and possibly expert evidence on a very limited issue, which would not (Page 9)
inconvenience a number of witnesses nor would it result in wasting allocated time and resources. 26 In Aon Risk Services Australia Ltd no explanation had been provided by the applicant's solicitors for the reason why they had delayed their application to amend the statement of claim and adjourn the trial until the third day into the trial which had been listed for four weeks. The majority held at [108] that the absence of an explanation that there had been an oversight by the applicant's lawyers invited speculation that the late application was the result of a tactical decision. 27 In this case counsel for the plaintiff has also not provided a proper explanation as to why the plaintiff's reliance on a non-delegable duty of care and alleged negligence by Pilbara Automotive was not better highlighted in counsel's submissions or in questions asked of witnesses during the trial. The only explanation appeared in the affidavit of Ms Sorgiovanni, the instructing solicitor during the trial and counsel in this application, who said she had always been of the opinion that the defendant, as the plaintiff's employer, owed the plaintiff a non-delegable duty of care. The impression gained from the way in which the plaintiff's oral and written submissions were phrased was that there was some confusion in the mind of the plaintiff's legal team as to the difference between vicarious liability and a non-delegable duty. Even the minute of amended statement of claim initially still referred to the defendant being 'vicariously liable by virtue of its non-delegable duty of care'. 28 Reliance on a non-delegable duty of care is, or could potentially be, an important aspect of the plaintiff's case against the defendant and might have a considerable bearing on the outcome. The prejudice to the defendant in allowing the amendment at this stage must be balanced against the fact that, in my view, the defendant must have been, or at least should have been, alive to the possibility that the plaintiff would rely on a non-delegable duty of care. Further, it is predominantly the plaintiff who will be inconvenienced by having to wait longer for any potential judgment in her favour. It is also in the interest of the defendant to see an end to the litigation, but allowing the amendment and hearing further limited evidence is not likely to result in a long delay. 29 Counsel for the defendant further submitted that the defendant would suffer prejudice if the plaintiff was allowed to rely on a non-delegable duty of care because it was never explored at the trial whether the defendant was capable of servicing and maintaining its own vehicles. Counsel for the defendant submitted that an employer only had a (Page 10)
non-delegable duty of care if it had the knowledge and expertise to service and maintain its own vehicles and then delegated that task to an independent contractor. Where an employer, such as a firm of accountants, did not have that knowledge and expertise, but chose a competent and reputable mechanical workshop to do the servicing and maintenance on its behalf, it had not delegated any duty. Counsel for the defendant submitted that in the example mentioned the accounting firm retained the duty to schedule and organise the servicing and maintenance and did not delegate any of that duty by organising for the maintenance to be carried out by a reputable and competent contractor. 30 This argument is fallacious. It is well established law that an employer has a duty to provide safe equipment to its employees and that this includes a duty to properly maintain the equipment: Kondis v State Transport Authority (1984) 154 CLR 672, (687 – 688) and TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 [61], [175] - [177]. Mason J emphasised in Kondis v State Transport Authority at 680 that a non-delegable duty to provide adequate plant and equipment was not satisfied by merely engaging a competent person to perform some service. In Lepore v State of New South Wales (2001) 52 NSWLR 420 [29] Mason P explained that the expression 'non-delegable duty' was somewhat misleading. It implied that an employer could not delegate a duty, but the truth was that the employer could not avoid liability by relying on the delegation, even to a competent delegate. 31 In this case the defendant had a personal duty to properly maintain the vehicle which it provided to the plaintiff. If the defendant delegated that duty to Pilbara Automotive, the defendant remained liable if the duty was breached by an employee of Pilbara Automotive. Whether the defendant had the knowledge and expertise to maintain and service its own vehicles is irrelevant.
Was any negligence by the independent contractor a casual act of negligence? 32 Counsel for the defendant also relied on Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 for the proposition that any negligence by an employee of Pilbara Automotive in over-tightening or under-tightening the nuts was a casual act of negligence for which the defendant could not be liable even if it had delegated its duty to maintain the vehicle to Pilbara Automotive. 33 The use of the phrase 'a casual act of negligence' comes from the case law dealing with an employer's duty to provide a safe system of (Page 11)
work. It is established law that an employer has a duty to provide a safe system of work for its employees and if that duty is delegated to an independent contractor, the employer remains liable for any breach by the independent contractor of that particular duty. However, the employer is not liable where a workman on the worksite where its employee has been directed to work commits an act of negligence which the employer (or its independent contractor to whom the duty to provide a safe system of work was delegated) could not reasonably have guarded against when it devised a safe system of work for the employee. Such an act is described as an 'incidental' or 'casual' act of negligence: Speed v Thomas Swift &Co Ltd [1943] KB 557, 564 – 565 and Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [17] – [19], [24]. 34 The reasoning behind the distinction between a breach of the duty to provide a safe system of work and a casual act of negligence which did not result from a breach of the duty to provide a safe system of work is that the employer can only devise a safe system of work taking into account the usual hazards involved in the particular task at hand and guarding against foreseeable negligence or inadvertence by its own employees and others: Wilsons & Clyde Coal Co Ltd v English 1936 SC 883, 904 and McLean v Tedman (1984) 155 CLR 306, 311 - 313. 35 It may be difficult to determine when an act constitutes a breach of the employer's duty to provide a safe system of work and when it is a casual act of negligence: Wilsons & Clyde Coal Co Ltd v English (904). Broadly stated, the distinction lies between a fault in the system or absence of a system prescribed by the employer and the improper method in which a particular workman carried out a good system: Wilsons & Clyde Coal Co Ltd v English (904) and Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 [54]. 36 It does not matter whether the casual act of negligence was committed by a workman with no contractual connection to the employer of the plaintiff (see for example, Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338) or by an employee of the independent contractor to whom the employer delegated the duty to provide a safe system of work. The issue is simply whether it was an act which resulted from failure to provide a safe system of work or whether it was a negligent act which occurred despite there being a safe system of work. 37 Placer was a case which dealt with the employer's duty to provide a safe system of work. It did not deal with the question whether an employer breached its duty to properly maintain equipment provided to its (Page 12)
employee. Placer also dealt with the question whether the employer itself had breached its duty to provide a safe system of work. The employer did not claim to have delegated its duty to anyone else ([61]). 38 Placer (Granny Smith) Pty Ltd (Placer) was the operator of a gold mine, who had retained the plaintiff's employer, Specialised Reline Services Pty Ltd (SRS) to reline a ball mill. Placer had also engaged Drake Personnel Ltd (Drake) to undertake the removal of metal floor plates at the mill under the supervision of Placer personnel. An employee of Drake operated a crane and lifted two steel floor plates over the area where the plaintiff was packing away tools and equipment. The plates slipped from the chains of the crane and fell onto the plaintiff. 39 Pullin JA, with whom Newnes and Mazza JJ agreed, came to the conclusion that the act by the crane driver of lifting the floor plates over the plaintiff working below was a casual act of negligence; it did not involve a breach of SRS' duty to provide a safe system of work ([63]). SRS did not know that the lifting of floor plates with a crane had been scheduled and was entitled to expect that it would be told in advance of such a procedure ([57] – [59]). Accordingly, there was no breach of SRS's duty to provide a safe system of work. 40 Placer is not helpful in determining whether the defendant in this case breached its duty of care to provide safe equipment to the plaintiff. 41 In TNT Australia Pty Ltd v Christie [61] Mason P held that an employer's duty to exercise care in providing safe equipment included the duty to exercise care in the maintenance of the equipment. If the employer delegated this duty to an independent contractor, this did not relieve the employer of liability, if the employee's injury was the result of negligence in regard to the maintenance and repair of the equipment. 42 In Galea v Bagtrans Pty Ltd [2010] NSWCA 350 Allsop P also held at [6] that an employer who entrusted to an independent contractor the duty to provide safe plant and equipment, which included the duty to properly maintain the equipment, would be liable if its employee was injured because the independent contractor failed to exercise care in the maintenance of the plant or equipment. 43 Hodgson JA in Galea referred at [67] to the employer's duty to provide a safe place of work or system of work or plant and equipment. Hodgson JA held, in reliance on Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, (32 – 33) that an employer was not liable for a 'casual act of negligence' if this act did not constitute a breach of the (Page 13)
particular duty that was delegated by the employer to the independent contractor. 44 In this case the particular duty that was delegated by the defendant to Pilbara Automotive was to exercise reasonable care in the repair and maintenance of the vehicle. If an employee of Pilbara Automotive was negligent in under-tightening or over-tightening the nuts he would have breached the very duty that was delegated to Pilbara Automotive. There is no scope for saying that such an act would have been a 'casual act of negligence' in the sense of an act which fell outside the particular duty delegated to Pilbara Automotive. It would be fallacious to argue that Pilbara Automotive had a good system of re-fitting wheels and that an employee who did not follow that system had committed a casual act of negligence. The duty delegated to Pilbara Automotive by the defendant was not a duty to have a good system of work in place while the plaintiff worked in its workshop. The duty was to exercise reasonable care in the maintenance of the defendant's vehicles. 45 Accordingly, there is no merit in the submission by Counsel for the defendant that the defendant could not possibly be liable for the under-tightening or over-tightening of the nuts by Pilbara Automotive on the basis that this was a casual act of negligence for which the defendant carried no responsibility.
Conclusion regarding proposed amendment to plead failure to properly tighten the nuts 46 Having weighed all the competing factors, it would be, in my view, in the interest of justice to allow the proposed amendment that the defendant was liable for the negligence of Pilbara Automotive in over-tightening or under-tightening the nuts by reason of its non-delegable duty of care. 47 Counsel for the plaintiff submitted that the original statement of claim had been adequate and that the only reason why the current amendment had been applied for was because of the defendant's assertion that it had not been aware of the plaintiff's reliance on the negligence by Pilbara Automotive. 48 In my view, the statement of claim was drafted in too general terms. Although it did refer to the defendant having been negligent by its servants or agents and did say that the defendant failed to take any or adequate steps to avoid the risk of the wheel falling off the vehicle, it should have specified as a particular of negligence that the nuts had been (Page 14)
over-tightened or under-tightened. Once it became apparent to the plaintiff that the defendant had the vehicle repaired and serviced at Pilbara Automotive, the plaintiff should also have pleaded that the defendant's independent contractor was negligent in over-tightening or under-tightening the nuts. This is why the statement of claim should be amended at this stage. 49 However, because the defendant must have been alert to this potential ground of negligence by reason of the way it pleaded its defence and the expert reports which were exchanged before the start of the trial, there is little prejudice in the statement of claim being amended at this stage. 50 The plaintiff also sought to amend its statement of claim by adding that the defendant, by its servants, over-tightened or under-tightened the nuts. This should also have been pleaded in the original statement of claim, but an amendment to this effect does not prejudice the defendant for the reasons set out before.
Conclusion on whether plaintiff should be allowed to re-open her case 51 The plaintiff's application to recall Mr O'Keefe in order to explore the issue whether the nuts could have been over-tightened or under-tightened without negligence is allowed. The defendant has leave to recall Mr O'Keefe, if he is not called by the plaintiff, in order to deal with this issue. The parties are also allowed to lead further expert evidence on this particular issue. The question whether the nuts could have been over-tightened or under-tightened without anyone's negligence is a confined issue and should not take long to deal with. 52 I shall hear counsel with regard to the necessary directions.
Amendment to plead negligence by the defendant in failing to train the plaintiff to recognise the early warning signs of wheel detachment 53 Lastly, the plaintiff applied to amend the statement of claim by adding as a particular of negligence that the defendant failed to train the plaintiff to recognise the early warning signs of wheel detachment. Counsel for the defendant did not deal with this proposed amendment in his submissions, but I assume that this application is also opposed. 54 This amendment should only be allowed at this late stage if evidence had been led to support such an allegation of negligence. The only possible evidence regarding whether it would be reasonable for an employer to train an employee to recognise warning signs came from the (Page 15)
Accident/Incident Investigation report, dated 1 October 2003 which had been completed by Mr Zabiela, who was the acting manager at the mine site in Mr Cole's absence. Mr Zabiela wrote in the report that the cause of the plaintiff's accident had been, amongst other things, 'driver inexperience – unknown vehicle and warning signs not recognised'. Mr Zabiela recommended in the report that corrective action should be taken in the form of 'driver training and awareness…of warning signs and conditions'. Mr Cole, the general manager of the defendant, signed the report on his return to the mine site and said in evidence that he did not disagree with Mr Zabiela's comments. 55 Neither party made any submissions as to whether the report contained any admission of fact and whether an admission made by Mr Cole can be regarded as an admission of the defendant. It seems that in agreeing with Mr Zabiela's statements Mr Cole essentially admitted that contributing causes to the accident were that the plaintiff was an inexperienced driver, that she was driving an unknown vehicle and that she did not recognise the warning signs of a wheel being about to disengage. Mr Cole also admitted, by agreeing with what Mr Zabiela had written, that the defendant should have taken corrective action after the accident in the form of driver training to recognise the warning signs of wheel disengagement. 56 The fact that Mr Cole admitted that corrective action was advisable does not mean that he admitted to a breach of the defendant's duty of care to train the plaintiff. The mere fact that a procedure was recommended or introduced after an accident does not support a conclusion of a breach of duty. It only shows what could have been done, not what should have been done: Kuhl v Zurich Financial Services Australia Ltd(2011) 276 ALR 375 [94], [96]. 57 It is in any event doubtful whether an admission can be made which consists partly of fact and partly of a conclusion of law: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 [25], [68] – [71]. 58 Apart from the Accident/Incident Investigation report there was very little evidence relevant to whether the defendant breached it duty to train Ms Gibbs with regard to the driving of its vehicles. There was no expert evidence that a reasonable operator of a mine site would warn drivers of its vehicles to be alert to unusual noises emanating from the vehicle, instruct them on what unusual noises were and tell them to immediately stop and check the vehicle or call for help if that occurred. (Page 16)
59 The plaintiff gave evidence that it took her a considerable time, as much as driving 10 km, to work out whether the wobbling that she felt and the flapping noise was due to the vehicle driving over corrugated gravel road or whether there was something wrong with the vehicle. However, the fact that the plaintiff failed to recognise the warning signs sooner also does not necessarily mean that the defendant breached its duty to properly train or instruct the plaintiff in respect of the driving of the vehicle to and from Port Hedland. 60 In O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, (229 – 230) the High Court held that an employer had a duty to warn his employee of unusual or unexpected risks and to instruct him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. A warning or special instruction was not required in respect of a simple and obvious matter which needed neither special skill nor knowledge to be carried out. 61 The plaintiff gave evidence that she had driven a vehicle pulling a caravan/trailer serving as an osteoporosis clinic all over the country for six months. It is not apparent whether this included driving on gravel roads. The plaintiff said she told Ms Sharon Windsor, the employee of the defendant, who had asked her to drive to Port Hedland that she had driven 'all over Australia'. The plaintiff had not driven the defendant's Toyota Landcruiser before, but it is passenger vehicle and does not fall into a different class of vehicle. Mr Cole gave evidence that he had never before had a problem with the wheel of a passenger vehicle disengaging. 62 On the other hand, it was not part of the plaintiff's usual duties to drive the defendant's vehicles and she said the access road to the mine site was rough and bumpy with granite boulders that had to be avoided. The plaintiff gave evidence that when she first felt the vehicle wobble she thought that it was the corrugation on the road and sped up which reduced the wobble. Ms Windsor and the mechanic Mitch told the plaintiff just prior to her journey where to find the tools in case she had a flat tyre and told her about the possibility of a tyre going flat while she might be driving at speed. However, nothing was said about stopping when unusual noises could be heard. 63 The question is whether the defendant should have instructed the plaintiff to be aware of the possibility of a wheel disengaging, or, at least, of the potential for mechanical failure of parts of the vehicle, and should have warned her to be aware of unusual movements in the vehicle or unusual noises and to stop immediately in order to investigate if that (Page 17)
should occur. Whether such a warning and instructions were required depends on whether the disengagement of a wheel is an unusual risk or whether this is something that every experienced driver is aware of. It also depends on whether it is obvious to every experienced driver that one should stop and investigate if an unusual movement is felt or noise is heard that could indicate mechanical failure. 64 In my view, this is a matter which a court can decide from its own experience and which does not necessarily require expert evidence. The evidence in favour of the plaintiff was the admission by Mr Cole that corrective action was required and the fact that she was perhaps not used to driving on rough gravel roads. The evidence against her is that she was an experienced driver and told Ms Windsor this. 65 In my view every driver who has driven in the country in Australia knows about the risk of a wheel disengaging and is aware of the need to stop and investigate an unusual noise or movement of the vehicle which could point towards a mechanical fault. The plaintiff never indicated during her evidence that she did not know these matters. She simply said that it took her some time to work out whether it was an unusual wobbling and noise and whether she should stop. The fact that the plaintiff was trying to establish whether she should stop, shows that she was aware of the need to do so, if an unusual movement was felt or an unusual noise heard. 66 There is insufficient evidence to support a finding that the disengagement of a wheel is an unusual risk or that it would have been reasonable for the defendant to instruct the plaintiff to stop and check the vehicle upon feeling an unusual movement or hearing an unusual noise. Accordingly, it has not been proven that the defendant should have warned the plaintiff of the possibility of a wheel disengaging or should have given her better instructions on the use of the vehicle. 67 The application to insert an allegation that the defendant failed to train the plaintiff to recognise the early warning signs of wheel disengagement is dismissed.
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