Grima v RFI (Aust) Pty Ltd
[2013] NSWSC 1199
•02 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Grima v RFI (Aust) Pty Ltd [2013] NSWSC 1199 Hearing dates: 22-24 July & 20-22 August 2013 Decision date: 02 September 2013 Before: Harrison J Decision: 1. Verdict for the plaintiff.
2. Declare that the amount of the respective contributions recoverable as between RFI and Allied on the cross-claims joined between them as just and equitable having regard to the extent of their responsibility for the plaintiff's damage is 50 percent each.
3. Direct the parties to bring in short minutes of order giving effect to my conclusions within seven days.
Catchwords: TORTS - industrial accident - where plaintiff injured unloading truck - whether manner of loading by trucking company negligent - whether employer failed to instruct plaintiff in proper method of unloading - TORTFEASORS - cross-claims for contribution or indemnity - causal potency of two distinct sets of circumstances involving breaches of distinct duties of care - CONTRIBUTORY NEGLIGENCE - whether plaintiff contributed to his own loss and damage Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563.
Coregas Pty Ltd v Penford Australia Pty Ltd [2012] NSWCA 350
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Manly Council v Byrne [2004] NSWCA 123
McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Stephens v Giovenco [2011] NSWCA 53
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182.Category: Principal judgment Parties: Carmel Grima (Plaintiff)
RFI (Aust) Pty Ltd (Defendant)
Allied Overnight Express Pty Ltd (Cross-defendant)Representation: P Hennessy SC wtih S Maybury (Plaintiff)
M McCulloch SC with J Chapman (Defendant)
J Guihot (Cross-defendant)
Edwards Michael (Plaintiff)
Walker Hedges & Co (Defendant)
DLA Piper (Cross-defendant)
File Number(s): 2011/20153
Judgment
HIS HONOUR: On 8 March 2010 Mr Grima was working for Allied Overnight Express as a storeman at its premises in Rosehill when he was severely injured in the course of unloading rolls of underlay from a pantechnicon owned and operated by a third party. The truck had originally been loaded in Melbourne at RFI's premises and driven to the location of the accident without any intermediate examination or inspection. Mr Grima alleges that the truck had been loaded incorrectly and unsafely by RFI, with some rolls placed horizontally across the rear of the truck upon other rolls standing vertically. When Mr Grima and a co-worker Mr Tai-Rakena opened the rear doors of the truck, two of these rolls fell out and struck him. He alleges that his injuries were caused by this negligent method of loading. In particular, Mr Grima contends that a series of five braces or bars that usually shored up or restrained the load of underlay at the rear of the truck were not all in place, so that when he opened the rear doors of the truck the rolls fell on him without warning and before he had any opportunity to avoid what occurred.
RFI has denied that it was negligent and has alleged that Mr Grima negligently contributed to his own loss and damage. In particular, although not exhaustively, RFI alleges that Mr Grima opened the doors of the truck without ensuring that it was safe to do so and opened the left hand door before the loose rolls had been noticed and removed. RFI also contends that Mr Grima loosened the bottom brace before ensuring that the top of the load was adequately secured.
RFI has also cross-claimed against Allied seeking contribution or indemnity from it alleging that it negligently failed to provide a safe workplace for Mr Grima or to instruct him in the proper methods for unloading the truck. The full particulars are considerably more extensive and will be referred to as required in greater detail later in these reasons. Allied has in turn cross-claimed against RFI seeking contribution and indemnity, repeating against RFI the same allegations made by Mr Grima in his further amended statement of claim. Allied also alleges that it was an implied term of the contract between it and RFI that RFI would load and secure the rolls with reasonable care and skill so that the consigned goods could be unloaded in a safe and proper manner without risk of injury.
Mr Grima's common law damages are agreed in the amount of $5.75M. There is a potential for adjustments to that amount pursuant to the Workers Compensation Act 1897, depending upon whether Allied is found to have any liability for the events that occurred.
Background
RFI used pantechnicons to deliver rolls of its underlay to Allied. The rolls were loaded in seven rows laid horizontally and longitudinally from the front of the truck to the rear. The rolls were each 1.83 metres long, wrapped in plastic and were stacked tightly between the walls of the truck and as high as the roof. By reason of the length of the rolls and the dimensions of the truck, there was insufficient space for an eighth row of rolls laid in this manner between the end of the seventh row and the doors at the rear of the truck. Accordingly, depending upon the size of the load and in order to maximise the use of space on each load, the balance of any remaining rolls would be stacked vertically on the floor of the truck and restrained at the rear by a series of braces or bars attached to the sides of the truck immediately inside the rear doors. Because the internal dimensions of the truck were higher than 1.83 metres, there also remained a space on top of the vertical rolls into which any remaining additional rolls could be placed. These would be inserted lying horizontally but across the truck rather than lengthways. Any such rolls loaded in this configuration were kept in place on top of the vertical rolls by the top or fifth brace or bar.
The parties called several witnesses to give evidence in the proceedings. A brief review of it is as follows.
Carmel (Charlie) Grima
Mr Grima gave evidence that on the day he was injured he was working with Mr Tai-Rakena. The truck was located in the yard and they approached it to start unloading. However, before giving details of what happened on the day, Mr Grima described his usual practice.
"Q. You would come to the back of the truck?
A. Yeah.
Q. And the doors at that time would be closed?
A. Yeah.
Q. Then just take it slowly and tell us what you would do from there?
A. We opened the doors a bit and looked up to see if it's safe to open the doors.
Q. And then if it was safe, would you then open the doors?
A. We open the doors like, if it's normal, we see that it is safe for us we open the doors and carry on with the procedure and to do the work.
Q. And opening the doors did that mean taking them right around and latching them back?
A. And latch them on the side, yeah. If it is safe to us. If it is not safe we do not carry on with the doors."
He then went on to describe what usually happened next as follows:
"Q. Now I am not dealing with this incident, I am talking about before.
A. Yeah, yeah, all right.
Q. If you looked up and there were five bars in position?
A. Yeah.
Q. What would you also see in addition to that fifth bar, would you see?
A. That fifth bar would give you the in your mind that there is rolls laying this way.
Q. That is, cross ways?
A. Yeah, that's right. It's on top of the standing ones.
Q. And if you also see the rolls?
A. That's right, if it's the one if you've got the bar they come to the bar with the movement of the truck, it is very important because there is a bar holding them.
Q. Yes, thank you. And so you would be satisfied that they were being held and you would open the doors?
A. Yeah, the doors, yeah.
Q. And what did the two of you then do?
A. We've got the pallets, next to the truck at the back like a platform. We unlatch the first one on the bottom and then we get on the platform we made with the pallets unlatch the other two, the other two bars and we leave the fourth one on, to hold the standing ones up. And then if there is the fifth one, we take the fifth one off and pull the rolls from the side.
Q. So alright and you do that while you are on the pallets?
A. Right.
Q. You'd removed the top bar and remove those top rolls first?
A. Rolls."
Mr Grima continued on this topic as follows:
"Q. I will just go back for a moment.
A. Yeah.
Q. And in relation to the lowest bar, when would you have removed the lowest bar?
A. Before we put the pallets against the truck.
Q. Why is that?
A. Because when you're on the pallets, you can't bend down to get the thing from the underneath, of the truck.
Q. And if there were five bars in position, was there any problem in removing the lowest bar?
A. No, no.
Q. All right. Coming back then, you've told us you removed the fifth bar when you take off those top rolls and then you'd start removing the upright ones?
A. Yeah.
Q. Now how would you remove the upright one?
A. You've got the fourth bar on and we pull the rolls from underneath on the ground. After, we move the pallets from the top again because if the pallets been that way you can't reach from the pallet to the truck. Then we pull the rolls out on the floor, then we pack them on the floor then we get enough room to put the pallets, after we pull the standing ones, we start unloading the ones in the truck.
Q. So the end result is that the fourth bar held the uprights in position until you removed each one?
A. That's correct.
Q. From below the bar?
A. That's correct, yeah.
Q. And over the months before this incident, you did the work okay?
A. Yeah, no problem yeah."
Mr Grima said that the number of rolls varied from load to load. The thickness of the rolls also varied. He would open the doors of the truck a small amount to look at the load. He said that if there were no fifth bar in place at the top of the load when he opened the doors and no roll on top of the upright rolls, he would open the doors completely if the load was secure. He would then proceed to unlatch the lowest bar, climb onto a stack of pallets, take the lower bars off, assuming that there were four of them in position securing the load, keeping the fourth in position. He would then proceed to take the vertical rolls out from underneath the remaining fourth bar.
Mr Grima then went to what happened on the day:
"Q. And then you went to the back of the pan tech?
A. That's correct.
Q. Were there doors on the pan tech?
A. Yes.
Q. How many doors?
A. Two.
Q. What, did you both do something in relation to those doors?
A. We lift the handles up, we jarred the doors a bit and then look up. Then we decide everything will be safe then we carry on as normal.
Q. It's my fault, did you say that you unlocked the doors?
A. Yeah, we unlocked the door, jar the doors a bit and we looked up to see if everything is safe.
Q. As to unlocking the doors, were there locks on both doors?
A. Yeah, both. And you had to lift them up and open the doors.
Q. And in your recollection Robert did his side?
A. And I done on my side.
Q. So when you are looking at the truck from the back, who was on the right hand door?
A. Robert was on the right hand and I was on the left.
Q. And then you say you both opened the doors ajar?
A. Yeah, we looked up to see if there's anything unsafe up there.
Q. All right. When you looked up, did you form an opinion as to whether the load was secure or not?
A. When we opened the door to me it was secure till then because I couldn't see any rolls on top.
Q. Now dealing with rolls on top, was there a top bar, a fifth bar?
A. No, there wasn't.
Q. Were there any rolls on top of the verticals?
A. No, I couldn't see any either.
Q. So you saw those two things, did you?
A. Oh yeah.
Q. And as to the bars that were there, did you notice the number of bars did you remember at that stage?
A. Yeah, I remember, all right. Three bars that was there.
Q. Then as you say you formed the opinion that the load was safe?
A. Yeah.
Q. And you proceeded to open. Robert did the right hand door?
A. Yeah, and I had the left door."
The actual events that caused Mr Grima's injuries were described by him in the following way:
"Q. What did you then do?
A. Then I hooked the third bar on the bottom.
Q. Sorry, hang on a minute, so you opened as far as you could and then what did you do?
A. And I walked back to the back of the truck. Then I hooked the third bar on the bottom. And I looked back up and I said to myself, how am I going to unload this? Because the fourth bar I couldn't see the fourth bar, for safety to myself.
Q. Yes?
A. Then that's what happened. I walked to Robert and as soon as I walked to Robert, the rolls fall from the top on me. That's all that I can remember."
It is apparent from the transcript that references by Mr Grima to "hooking" the third bar and similar references to other bars were intended by him in the context of this evidence to be references to "unhooking". The evidence also establishes that the fourth bar is located at a height corresponding approximately to the top of a vertical roll or at a centre height of something in the order of a1.8 metres. .
There was no loading dock at the Allied premises. To Mr Grima's knowledge, no rolls of underlay had ever previously fallen from an RFI loaded truck at the Allied premises when he had been unloading them in the way he described.
On the day of his accident Mr Grima saw neither a fifth brace when he looked up into the truck with the doors ajar nor any rolls of underlay lying across the truck horizontally above and on top of the standing vertical rolls. His evidence clearly indicates that there was no fourth brace in place either. Photographs tendered depicting the scene immediately following the accident appear to confirm this. Mr Grima can be seen still lying prone on the ground at the rear of the truck, with the second and third braces in position but with the first brace unhooked on the left side and lying at an angle resting partly on the tray of the truck. No fourth of fifth brace is in position at all.
Mr Grima agreed in cross-examination that it took about two to three hours to unload a truck. He also agreed that the loads that came from RFI arrived in the pantechnicons looking pretty much the same on each occasion when he opened the doors, always with a row of vertical rolls secured behind the braces. He agreed that they looked "pretty much the same as we see in the photographs [used] in the course of preparing this case." The day of the accident, however, was the first day he had ever seen a load supported or restrained by only three braces. Mr Grima confirmed his understanding that four braces meant that there was nothing (meaning no horizontal rolls) on top of the vertical stack, but five braces meant that there was. Mr Grima agreed that there were times when there were five braces in place when one could nevertheless not see the rolls behind the fifth brace. In other words, sometimes the rolls behind the fifth brace could be out of view. Mr Grima remained adamant, however, that "when it comes, the load, and there's only four bars, to us there is no rolls laying down on top." He confirmed that he would use the number of braces to indicate to him whether or not there were any horizontal rolls on top of the vertical rolls. For example:
"Q. ...Do you say that according to your experience, if there were four rows, you worked on the basis that there was nothing lying horizontally on top of the vertical rolls?
A. Yeah, that's correct, yeah."
It was put to Mr Grima several times during his cross-examination that there had been a number of occasions upon which there had been loose horizontal rolls loaded on top of the vertical rolls, even with only four braces and without a fifth brace in position. He consistently rejected that proposition. For example:
"Q. But there had been some occasions, hadn't there, when there had been some loose rolls on top of the vertical rolls, even with four braces?
A. No, no.
Q. Never?
A. Always five rows, five bars across when there is rolls laying across."
He later said, "if there's four bars to me when we open the doors, there is nothing laying down, thank you". Mr Grima went on to give the following evidence:
"Q. ...You say that on this occasion you noticed three bars in place when you opened the door as you say to 'ajar it open'?
A. That is correct.
Q. Is that what you saw?
A. Yeah.
Q. Three bars?
A. Yeah.
Q. That was something you had never seen before, wasn't it?
A. Never, yeah.
Q. And that was therefore unusual, wasn't it?
A. Yeah.
Q. And that must have indicated to you that something was wrong, mustn't it?
A. Yeah, it was wrong because if it was the four bar there, we carry on as normal, because we didn't see nothing on top.
Q. Yes. But notwithstanding the fact that there were only three bars in place, you continued, according to your evidence, to open the doors, that is you and Mr Tai-Rakena, that's correct isn't it?
A. Yeah, but we looked up and there was nothing unusual for us.
Q. But you see
A. When we jarred the door, when we jarred the door we looked up, because that's what we were told all the time to look up, to see if there was anything dangerous."
Mr Grima went on to confirm that his usual system of unloading was to open the doors of the truck to where they were ajar and to look up into the truck. He said, "We look up to see if everything is cleared." He would do this specifically looking for the presence of horizontal rolls on top of the vertical rolls. That inspection was carried out whilst each of he and Mr Tai-Rakena had hold of the doors. Mr Grima operated upon the basis that if there were no rolls laying down on top of the vertical rolls he would "carry on as normal." He and his partner would always open the two doors of the truck together. It was usually necessary to stand upon a stack of pallets to unhook the braces. The stack of pallets was not yet in place behind the truck at the time that he had his accident. Mr Grima said that was because Mr Tai-Rakena had said to him that there were only three bars, which presumably could be reached.
Mr Grima's cross-examiner returned to the issue of the five bars and the presence of horizontal rolls. He gave this evidence:
"Q. Now, you've agreed, haven't you, that there were some occasions with five braces where you couldn't necessarily see horizontal rolls when you opened the doors, that's so, isn't it?
A. When there is five bars, we always say there is rolls because you can see them because they put more than three or four laying down on it. It comes against the bar.
Q. Your evidence was that with five braces, that led you to believe that there were, or there must be horizontal rolls, even if you couldn't see them?
A. That's correct."
He was also asked again about his usual procedure for unloading:
"Q. What procedure did you follow to remove the braces?
A. We go on top, we already take the bottom one off when it's five braces when it's five braces on. We take the bottom one off before we put the pallets. Now, we go on the pallets, the first one, we take the fifth one off, to pull the horizontal rolls out and put them on the ground. Then we take the third, the second and the third and leave the fourth one on. That's after that we pull the pallets out and we pull the rolls from under."
The braces were released as the following evidence reveals:
"Q. And do you deny that the system that you in fact had in place, leading up to this accident, was that in order to release the braces, either Robert or you would stand on a single pallet which would be lifted by the tines of a forklift in order to remove the braces?
A. Sometimes did, sometimes not.
...
Q. Is that to say that sometimes you used the stack of ten pallets on either side and sometimes you used only a single pallet to undo the braces?
A. Sometime we go on the pallet and hook the bars, we call them bars. We take them off and we leave the fourth one on. And sometimes we stack the pallet. If we have got the pallets there, then we move them again till we take the rolls off, the ones standing up. Because if you have got the pallets behind the truck, you can't take the rolls out.
Q. You are saying that if you have the stacks of pallets in place, the ten pallets in place, you would not be able to remove the vertical underlays behind the braces or behind the fourth brace, as you described it?
A. That's correct. How are you going to pull them out? Explain to me. You ask me the question. How am I going to pull them out if the pallets is behind the truck?"
Mr Grima denied the suggestion that he was making up that version of what occurred.
RFI tendered portion of a statement served by Mr Grima in the course of these proceedings. It was relevantly in these terms:
"11. The rolls of carpet underlay are approximately 400mm in diameter and 2 metres in length. They would weigh about 30kg each. They were always packed in the trailers the following way:
11.4 There is then space on top of those rolls which is filled up by placing rolls horizontally across the top of the vertical rolls; and
12. Our usual method of unloading the trailers was as follows:
12.1 Open the double gates at the rear of the trailer;
12.2 Remove the bottom brace if it was safe to do so;
12.3 Remove the top brace, usually by standing on a pallet on the forklift tines;
12.4 Unload the horizontal rolls that were stacked on top of the vertical rolls one at a time;
12.5 Remove the remaining braces; and
12.6 Unload the remaining rolls."
Mr Grima denied that there was any inconsistency between his statement and the earlier evidence that he had given. He said this:
"Q. Now, having been asked the questions that I have asked you, do you wish to withdraw the evidence that you gave; that is, ask the judge to forget the evidence that you gave about standing on ten pallets?
A. Well, if I done it before the accident, how am I going to withdraw it if I done it before?
Q. You appreciate that what I'm suggesting to you is that you have made that evidence up; you appreciate that, don't you?
A. I didn't make the thing up because I done it like I said. That's why I took it out because I done it before, when we unload the trucks with the rolls. Alright."
Mr Grima was asked to explain what happened when he commenced to unload the truck. He said this:
"Q. And you opened them ajar at about the same time?
A. Yeah.
Q. And you looked up at the load?
A. Yeah.
Q. Now what did you look at?
A. At the top to see if there is any rolls crossed and I couldn't see nothing.
Q. When you say any rolls crossed, you meant you were looking for any rolls lying horizontally on the vertical rolls, is that correct?
A. That's correct.
Q. What did you see when you opened the doors?
A. Three bars.
Q. You'd never seen three bars before, had you?
A. Right.
Q. That didn't mean anything to you?
A. It means, because I stopped when I hooked the bottom and I stopped, I didn't carry on the procedure.
Q. Sorry, you say you stopped?
A. When I hooked the bottom bar, I didn't carry on."
Mr Grima agreed that he had never seen only three braces before. He agreed, however, that he did not really pay any attention to the fact that there were only three braces until he came later on to unhook the bottom one. That was because if he had noticed that there were only three braces, when he had the doors ajar, it would have struck him as being something very unusual. He also agreed that it was probable that when he opened the doors he did not really take any notice of how many braces were there, because he was really focussed on what was at the top.
Mr Grima then continued as follows:
"Q. And then what was the next thing that you did?
A. The next thing that I did, the bottom bar it was that loose, as soon as I wanted to when I looked up, I said, how we're going to for safety there is no fourth bar, how are we going to unload it? That's why I left it there, that's what it came to my mind.
Q. So when you came to release the bottom bar on the left hand side where you were, what was it that made you look up and notice for the first time it seems that there were only three bars?
A. Because when I looked, you always looked for the bar to hold the top of this, when they're standing. Because if they take the three off, you've got the safety one to hold them standing up when you are pulling them from underneath, from the floor. That's what made me look again and then I said, look there is no bar, to myself. Then as soon as I said that, for your information, as soon as I said that, they all rolled from the top and I was on the floor and I didn't see nothing else.
...
Q. Mr Grima, when was the first time you noticed there on this time there were only three bars?
A. I noticed the three bars when we opened the doors. Opened. Right, I went to unhook one and I saw three. I said, the fourth one's not there to hold the standing upright. That's when I left it there and I walked away. As soon as I walked to the right, the two rolls came from the top and that's how I finished, I didn't remember nothing else."
He later said the following:
"Q. And so do you agree that when you first looked at the load, when you opened the doors that you should have been checking to make sure that first, that fourth bar was present?
A. That's when I said already and I say it again, that's when I said, I looked for my safety, and my part, my work, my safety. When there was no fourth bar, I stopped and walked away. And as soon as I walked away, the roll rolled on me from the top.
Q. Mr Grima, your evidence is that you noticed that the fourth bar was missing when you unlocked the left hand side of the first or bottom bar and not before?
A. Yeah, that's what I am saying, yeah.
Q. What I am suggesting to you is that it was important for you to check to see if the fourth bar was in place when you had the doors ajar, do you agree with that?
A. I agree. But why? If I agree when they be loaded it why didn't they put the bar themselves instead of leaving them under the rolls."
Mr Grima denied that he was at fault in any way for not immediately noticing that the fourth brace was missing when he opened the doors:
" Q. And do you agree that if the fourth bar wasn't in place, when you opened the doors ajar with Mr Tai Rakena for the first time, that that was a serious mistake on your part?
A. No, there's no mistake on my part. Mistake on my part? When it's fallen from the top, it wasn't safely loaded.
Q. Do you agree that it was a mistake on your part not to have noticed that there was no fourth bar when you first opened the doors?
A. I already said it and I am going to say it again, when I hooked the first bar the bottom bar, I stopped because I noticed that the fourth one was missing.
...
Q. Mr Grima, you regarded the fourth bar as the most important bar in terms of your personal safety when it came to unloading the vertical underlay, didn't you?
A. Yeah.
Q. And when you opened the doors and had them ajar with Mr Tai Rakena was the time that you and he, undertook your safety inspection, correct?
A. Yeah.
Q. And it was at that time that you were looking for things which might be unsafe so far as the unloading process was concerned, correct?
A. I was looking at the top to see if there was any rolls horizontal. And there was none. Safety, for us right.
Q. You were looking, weren't you, for anything that might be unsafe about the load?
A. But the first thing we looked on the top. Because if there is no bar on top, as you open the door it's going to come on you. That's why we ajar the door and we look and there is no rolls horizontal. Now when we opened the doors I looked again, I didn't see the fourth bar. I'm human the same as everybody else."
Mr Grima also gave this evidence:
"Q. And so this inspection that you and Mr Tai-Rakena carried out each time you opened the doors was to make sure that there were bars in place to secure the load, correct?
A. That's correct.
Q. And if you noticed that there was anything wrong with the load, that is, if there weren't enough number of braces in place, what would you do?
A. That's why I stopped when I went to take the fifth the first bar off, I looked up again and there was no fourth bar, that's why I stopped.
Q. And if you had noticed that there was no fourth bar when you first had the doors ajar, you'd have closed the doors and stopped work, would you?
A. I tell my supervisor. Not shut the door."
The cross-examiner took Mr Grima once again to the incident in question:
"Q. I want to take you to the point now where you loosened the brace on the left hand side, that is the bottom brace?
A. Yeah.
Q. You don't remember, do you, seeing anything other than according to your evidence, that there was no fourth brace present, correct?
A. Yeah.
Q. And because of evidence you've already given that meant according to your view you couldn't go on with the work, is that so?
A. Correct, yeah.
Q. And so you decided to stop work?
A. I didn't decide. I called and I went to Robert. I called Robert, to say there is only three bars. And when we looked up to see, as soon as I called Robert, I went from Robert from here to here, the two rolls came from the top to my back."
Mr Grima agreed that not at any time in his statement did he say that he and Mr Tai-Rakena unlocked the doors and opened them ajar and carried out a visual inspection before opening them completely. Mr Grima denied that the first time he looked at the load and the braces to see if they were safe was when he was unhooking the bottom brace on the left hand side. He said, " No, no. I looked up, I already said it before, I looked when we jar the door."
Penultimately in his cross-examination Mr Grima said this:
"Q. Just because there was no fifth bar, didn't mean it was safe for to you assume there was nothing on top of the vertical rolls, do you accept that?
A. I accept that, yeah. But I already looked and there was no rolls.
Q. But a safer way of looking was to keep one door locked and to, first of all, walk back away from the rear of the vehicle to see if you could see anything, do you agree you could have done that?
A. But how far can you go on flat ground?
Q. As far as you need to, do you agree?
A. No, I don't.
Q. Another way to have done it was to keep one door looked and to have used a forklift with a single pallet on it as a platform and to have been elevated, so that you could have undertaken an inspection at eye level of the top area above the vertical stack; that was possible, wasn't it?
A. What? What we done, we always done it that way. We looked, if it is safe to do it, carry on. If it's not, it's not.
Q. Do you agree that using the forklift and single pallet in the way I have suggested was something that was simple to do?
A. Yeah, it was simple to do. But like I said."
Mr Grima was finally confronted with a series of propositions in cross-examination with which he dealt as follows:
"Q. Yesterday, when you were being asked questions by Mr Hennessy, about how the loads arrived from Regenfoam, you said that there were types where there were no horizontal rolls on top of the vertical rolls; do you remember saying that?
A. Yes.
Q. In fact, that is not the case at all, is it?
A. The case is, sometimes comes with four bars, sometimes comes with five bars. When it comes with four bars, there is no horizontal rolls.
Q. In fact, the way in which the trailers were always packed was that the space above the vertical rolls was filled by placing horizontal rolls?
A. But sometimes there was no horizontal rolls and no five bars.
Q. I want to be clear with you about this, Mr Grima. What I'm suggesting to you is the truth, is that the way in which the trailers were always packed was that there was space on top of the vertical rolls and that always there were horizontal rolls placed there?
A. Depends how many rolls on the order, because sometimes there is four, sometimes there is not.
Q. May I show you, please, MFI 1, that I took you to yesterday. And may I ask you to read to yourself, in paragraph numbered 11, the third sentence that commences: 'They were always', and then 11.4. If you feel you need to read other part of it, feel free to do so?
A. The eleventh paragraph?
Q. Yes. Read the words in the third sentence, commencing 'they were always', do you see that?
A. Yes.
Q. Read that sentence and then 11.4?
A. (Witness complied.) Yes.
Q. Do you agree that what is contained in the sentence in 11 and 11.4, that I have taken you to, is in fact the truth?
A. Well, it is here, yeah.
Q. Yes?
A. But sometimes there was the bars and sometimes there was no bars. That's why I said it from the start.
Q. No. What is in fact is the truth, I suggest to you, Mr Grima, as recorded in this statement, is that there were always horizontal rolls placed on top of the vertical rolls?
A. When there is the fifth bar, yes."
Robert Tai-Rakena
The next witness to give evidence was Mr Tai-Rakena. A statement made by him became an exhibit in the proceedings. He said that he was a freight handler and forklift driver and had worked as such at Allied for about nine months before Mr Grima's accident. He received job training from Mr Grima. Part of his statement dealt with the usual practice adopted for unloading rolls of underlay and was in the following terms:
"9. We received loads of carpet underlay from interstate approximately once per week. The rolls were approximately 400mm in diameter by 2m in length and weighed approximately 30kg. These rolls were individually packaged in plastic bags, which meant they were quite slippery when they were loaded on top of each other. They were delivered in a trailer (also known as a pan).
10. These loads were usually comprised of a series of rolls laid crossways at the front of the load (ie at the opposite end of the unloading door) and then a number of rows standing up vertically at the back. The vertical rows would prevent the crossways rolls from falling out, provided they were properly secured. Sometimes other rolls were then placed on top, either crossways or lengthways. I noticed that the rolls were usually squashed in very tight.
11. The load was then secured by cross braces placed at the rear of the load. How many cross braces depended on how far apart the braces were placed and on how the load was packed. There were usually 4 or 5 braces if anything was placed on top of the vertical rolls.
12. The system we used to safely unload these deliveries were as follows:
(a) Approach the doors at the rear of the truck, one worker on each side of centre.
(b) Unlock the doors. There is a central locking mechanism, so unlocking meant that both doors were unlocked.
(c) Open the doors slightly and visually inspect the load for safety.
(d) If OK then open the doors, first one side and then the other, each worker moving back away from the load in an arc as the doors were opened more fully.
(e) Lock the doors in the open position.
(f) One worker would then remove the bottom brace securing the vertical rolls, as this brace did not take any significant load.
(g) The other worker would then go and get the forklift, so we could reach the top brace(s).
(h) The rolls would then be unloaded, anything on top first, then the vertical rolls, and lastly the sideways rolls behind them."
Mr Tai-Rakena's statement then set out his recollection of the incident when Mr Grima was injured. It was as follows:
"13. On 8 March 2010 a load of underlay needed to be unpacked. Charlie and I approached the rear of the pan, at the centre where the doors meet. Charlie was on the left and I was on the right. The bottom of the pan was about chest height, approximately 4-5 feet. We unlocked the doors. Charlie opened his door first and started walking back with it, increasing his distance from the load as the door was opened more fully. I looked up at the load as I had been trained. I saw rolls loaded vertically and packed in very tight, as usual. The bottom of the pan was filled to capacity. I saw 3 cross braces. I did not see anything on top of the vertical rolls. I formed the view that there was nothing loaded on top of the vertical rolls, and so no need for more than 3 cross braces. The load looked safe to me and I therefore commenced to open my door, increasing my distance from the load as the door was more fully opened.
14. I extended my door to the open position. This allowed Charlie to approach the load and to start removing the bottom cross brace.
15. At this point, one roll fell from the top of the vertical rolls, striking Charlie in the area of the shoulders and neck, and then a second roll fell out hitting him on his head.
16. The entire period from opening the doors until the rolls falling took a matter of seconds.
17. I did not notice anything on top of the vertical rolls until after the accident. I observed that there was a lengthways loaded roll on the extreme right hand side on top of the vertical rolls and on top of some of the crossways rolls, however this was behind my door and therefore impossible to see when I undertook the visual inspection of the load when Charlie opened his door. I believe the lengthways roll would have anchored any crossways roll underneath it. I am certain there were no rolls visible on top of the vertical rolls from where I was positioned when the left hand door was opened. Otherwise, we would not have bothered taking the bottom brace off and we would have started unloading from the top. I believe the rolls which struck Charlie were back out of vision and that they moved as we were opening the doors or after we had opened the doors."
Mr Tai-Rakena said that not all of the loads that he unloaded had horizontal rolls of underlay on top of the vertical rolls. He estimated that about half of the loads did not have horizontal rolls on them. He agreed that on the occasions when the loads were full, and there were vertical rolls at the back and horizontal rolls on top of the vertical rolls, he would take the horizontal rolls off first.
It was Mr Tai-Rakena's practice when unloading rolls to open the doors about half way and then look inside "to see how it's loaded". He gave the following evidence:
"Q. And when you are looking inside, what are the sort of things that you look for?
A. How it's loaded.
Q. And what sort of things do you look for in terms of how it's loaded?
A. That all the braces are in, and what they're holding up.
...
Q. And when you say 'what they're holding up', is that to say that you are looking to see how big the load is?
A. Yeah, how it's loaded, yeah.
...
Q. And I just want to be clear about this, in that instance, where there were vertical rolls of underlay against the braces, would you always see horizontal rolls on top of the vertical rolls?
A. No, not always.
HIS HONOUR: That's the third time you have asked him that and you got the same answer three times. Anyway, I just note it in passing.
McCULLOCH: As your Honour pleases.
Q. But was it the majority of the time that there were horizontal rolls on top of the vertical rolls, if the load was full?
A. No, half."
The cross-examiner turned to the issue of the presence or absence of the fifth brace and its relationship, if any, to the presence of horizontal rolls above the vertical rolls:
"Q. And from where you stood, when you opened the door, whether you opened both doors a small portion so you could carry out this initial inspection, or whether you kept one door closed and only opened the other door a little bit, you would not be certain whether or not there were horizontal rolls above the vertical rolls, unless you could see them, isn't that correct?
A. If it's there, they're always like right at the end of the load, like, you know, they're always there. When they're there, like they're actually visible.
Q. Unless you could see them, you couldn't be sure that there were not in fact some there, but they had been either placed towards the front of the pantechnicon on the vertical rolls, or they had moved there in transit and they were sitting out of your view?
A. No, you could tell with the extra brace in there, higher than the vertical roll. Always when there was ones up on top, there's always the next one there to hold them in.
Q. Every time you received a load from Wadley's which had horizontal rolls on top of vertical rolls, do you say that there were five braces in place?
A. I'm not too sure on how many each time, but there was always one higher than the vertical rolls. So like, they have the one to hold those in, and then there's always one higher than them to hold on the horizontal ones."
It was Mr Tai-Rakena's evidence that on each occasion where he saw a brace in place above the vertical rolls, he either saw horizontal rolls at the time he carried out this initial inspection, or later when he removed the fifth brace, he saw horizontal rolls further back inside the load. He disagreed with the proposition that every load from RFI came supported with five braces. There were other occasions apart from the day of the accident when trucks came with loads supported by less than five braces. He had never previously seen a load supported by only three braces. However, he said again that "if there's horizontals there was always that brace there to hold them in". In other words, on any occasion when there were horizontal rolls on vertical rolls there was always a brace above the top of the vertical rolls. He would use the brace as a sign or an indication that there were horizontal rolls in place.
Mr Tai-Rakena's evidence in that context included the following:
"Q. Now, this may seem obvious to you, but I need to ask you, you did not in fact look above the vertical rolls before you fully opened the door and Mr Grima fully opened his door?
A. No.
Q. Nor at any time before Mr Grima's accident?
A. I never thought we had to, because the brace was there, which means that there isn't anything up there."
It is also perhaps important to record the version of what happened that was given by Mr Tai-Rakena in a written accident report prepared by him. It is dated 8 March 2010, attached to his statement and is as follows:
"Charlie Grima and I started to open up a semi-trailer of carpet rolls from the rear doors. As I walked around the corner of the trailer after securing the right-hand door, Charlie was attempting to remove the bottom steel brace that holds the rolls in place, when a roll fell from the top of the stack hitting him on his neck and shoulder and forcing him to stumble backwards straight after. A second roll fell hitting him on top of the head knocking him to the ground. When that happened he asked me to get help because he couldn't feel his arms and legs."
Robert Di Pietro
Mr Di Pietro was the principal of RFI. He provided a statement dated 4 June 2013 for use in these proceedings.
He used to transport his rolls of underlay from Melbourne using pantechnicons supplied by Wadleys to Allied premises in Sydney for warehousing and distribution. He said that the system of loading the pantechnicons was as already referred to, laid in seven horizontal rows parallel to the sides and to the full height and width of the truck. Because of the dimensions of the truck, an eighth row could not be laid lengthways, so the available space was utilised by stacking a number of rolls vertically in the space between the horizontally laid rolls and the doors of the truck. This left sufficient space above the vertical rolls to place other rolls laid horizontally on top of the vertical rolls as the final step in the loading process. These rolls were laid at right angles to the sides of the truck. Mr Di Pietro said that according to his observations, five bars locked into rails running inside the truck restrained the loads of rolls.
The load that was involved in Mr Grima's injury consisted of 315 rolls of underlay of three different sizes. Mr Di Pietro said that prior to Mr Grima's accident he had not received any reports of a problem with the loading procedure adopted by RFI or of any incidents in which rolls of underlay delivered to Allied had fallen from the rear of pantechnicons when the doors had been opened.
He accepted in cross-examination that there was an agreement between RFI and Allied and that whatever else the agreement may have provided, the loading of the rolls was to be the responsibility of RFI. Allied undertook to unload the goods at its premises at Rosehill in Sydney, store them and distribute them as instructed. Mr Di Pietro was not aware that anyone from his company had visited or inspected the Allied premises before the agreement commenced.
Mr Di Pietro was asked about any instructions he might have given or procedures that were to be adopted when loading:
"Q. Well, I will come back to that last comment in due course, but did you instruct your employees that they were to use five bars on any load that was sent out from Regenfoam on its way to Allied?
A. I believe my instructions were to put in as many braces as were possible to fill, to make sure that nothing, you know, it was a safe load. I don't think I would have specifically used the number five, but if there were five bars and five places to put them, they would put in five bars. And they did. As often as I saw them loading loads of truck, loads of underlay, that's what I observed.
...
Q. And you would have insisted that five bars be placed on each and every load that you were involved in?
A. I wouldn't need to insist. If the bars were there they would be put in and if they weren't there then we would look for the extra bar.
Q. To make sure that there were five bars?
A. There were five bars. I mean, if there weren't, there weren't, but there always or often were at least five or sometimes even more.
Q. To your knowledge, had there ever been a truck despatched from Regenfoam to Allied which had left with only four bars or braces securing the load?
A. Not specifically to my knowledge. I wouldn't say it's impossible, but not to my knowledge.
Q. What procedures did you have in place to ensure that five bars were in fact used on any particular load?
A. I did not say that I had a procedure to ensure that five specific, five bars specifically were in place on every single load. Our procedure was to ensure that as many bars as were provided, which were usually five or more, were put in place where practical, where possible where there was space to do so."
Mr Di Pietro had no specific first hand involvement in the load that was ultimately involved Mr Grima's accident. He was taken in cross-examination to the important question of the fifth brace and the horizontal rolls:
"Q. Mr Di Pietro, the reason five bars were to be used was for the specific purpose of securing any horizontal rolls that were placed upon the vertical rolls at the position adjacent to the rear doors, is that the case?
A. Do you mean to secure the rolls at the top?
Q. Yes?
A. Yes. And aside from the fact, we needed to put the bars somewhere, and it made sense to put them into position.
Q. Just so that I have got it clear, the reason why five bars specifically were to be used, instead of some lesser number, was specifically so that there would be a bar securing the upper horizontal rolls that were placed cross ways, that is, parallel to the doors; that is right, isn't it?
A. Yes, absolutely. And there was a place to fit a bar which is where we fit it.
...
Q. But the very reason to put the one at the top, as you describe, was to secure the horizontal rolls that were placed on top of the verticals rolls; that is right, isn't it?
A. Yes. However, we would probably put it place regardless whether there were rolls there or not, just to put it somewhere."
Mr Di Pietro gave some further evidence about this as follows:
"Q. But also, not only to keep the rolls in position, but to prevent them rolling out and injuring someone, if they were to open the doors and go about unloading the rolls; that is the case, isn't it?
A. I don't think I would expect somebody to open the doors in a manner that would not include exercising extreme caution. Even if the truck was empty, that's how we treat the trucks empty, yet alone full.
HIS HONOUR
Q. Can you answer the question?
A. Yes. The bar was put in place to hold the rolls, yes. Absolutely."
Mr Di Pietro also said that if a truck left his premises with only three braces in place, it would represent "a complete failure of [proper] practice." He said, "I would not be happy."
It seems that following the incident in question, the loading method changed. Instead of the vertical rolls being stacked at the end of the truck, with horizontal rolls on top, they were placed further inside it between earlier rows of horizontal rolls. This meant that the presenting load to a person opening the doors of the truck consisted of rolls of underlay lying parallel to the sides of the truck stacked between the sides and as high as the roof. This obviated any risk of loose rolls falling when the doors were opened.
Mr Di Pietro agreed that it was uneconomic to send trucks to Sydney that were not fully loaded. That fact was relevant to the need to use five restraining braces on most if not all loads. He said this:
"Q. So that, as far as you are concerned, on every occasion there would have been need to install top bars, that is, the fifth bar and perhaps even a sixth, if it could be accommodated?
A. Yes. And if we didn't have the stock or didn't have a need to fill the entire truck, we would postpone the truck for a day or two. But we had no interest in sending a truck that was not fully utilised. They are expensive."
Both Mr Grima and Mr Tai-Rakena had given evidence that there were not always rolls of underlay placed horizontally above vertical rolls at the rear of the truck. Mr Di Pietro had not been challenged with that evidence before Mr Hennessy finished cross-examining him. Following a comment from me, he was recalled and gave evidence that included the following:
"Q. Do you agree or disagree with the proposition that on some occasions loads left your factory and came to Sydney when there were no horizontal rolls located above the verticals rolls at the rear of the truck?
A. I would have to disagree. There may have been the very odd occasion. I can't say it is impossible. But, generally, I would disagree with that. I would say in most cases there would be five bars and there would be rolls loaded horizontally on top. I would say 99.9 per cent of times that would be the case."
Karl Joseph Sklenar
Mr Sklenar was called out of sequence in Mr Grima's case simply as a matter of convenience. He drove the Wadley's truck from Melbourne to Sydney that was involved in Mr Grima's accident. He provided two statements. In his first statement he said that when he drove his prime mover to the RFI premises to collect the trailer it was already loaded and the rear doors were closed. That accorded with what happened every time he did a trip hauling RFI rolls in this way. He did not have to open the doors to check the condition of the load, and there was no reason for him to do so. He never carried out an inspection of the interior of the trucks when collecting loads from RFI. Mr Sklenar also said that he was never present when Allied unloaded the trucks following delivery and he never saw the method they used to unload.
In his second statement Mr Sklenar said, "it was rare for the doors of the enclosed trailer to be left open when [he] arrived to pick up a load from [RFI] or anywhere else." He specifically disagreed with the proposition that the doors of the enclosed trailer were "always left open for the driver to inspect the load and the braces." He recalled having picked up approximately six trailers from RFI and that only on the first occasion were the rear doors open. Also on that occasion the rolls were already loaded. He said that he has never been asked to inspect the loaded rolls or the braces.
Mr Sklenar put locks on the truck doors. Despite some initial doubt, it has clearly emerged that there is no longer any factual issue in the proceedings that any person could have interfered in any way with the load between the time that Mr Sklenar picked up the trailer in Melbourne and when he delivered it to Allied in Sydney. Mr Sklenar specifically denied the suggestion that the truck doors were left open at RFI or that when he went there, he checked the braces and closed the doors.
Lothar Biermann
Mr Biermann is the operations manager for Allied. He prepared two statements for these proceedings. He has been involved in the transport industry for over 35 years. He said that loading docks were unnecessary where forklifts were available to load and unload vehicles. However, the rolls of underlay in this case could not be unloaded using a forklift as they were loose cargo that had to be removed manually one at a time by an Allied employee. They were then loaded onto pallets and taken away by forklift.
At paragraph 5 of his second statement, Mr Biermann set out the procedure for unloading a rear loaded pantechnicon that he instructed his employees to follow. It was in these terms:
"(1) The first step is to partially release both locking mechanisms on the leading door. This is the door that slightly overlaps the other door. It is usually the right hand door.
(2) Next, the centre lock is fully unlocked. This allows the door to be pulled slightly ajar while being held by the secondary lock on that door, allowing the operator to view into the gap to ensure that no freight is leaning against the door.
(3) If there is no freight pressing against the door the door is opened fully and closed against the side of the vehicle. The operator can view the freight behind the other door and perform the same safety inspection.
(4) If clear this door is also opened and closed against the wall.
(5) Whilst opening a door care is to be taken by observing whether any freight could fall if the doors were opened.
(6) The employees were instructed to release the load restraint according to the particular load. This meant that so far as load restraint bars or pogo sticks were concerned there was no specific direction as to the order in which they were to be released. If there was no force being applied to a bar by the cargo that bar could be released. This could mean the bottom bar closest to the tray could be removed first if there was no force being applied to it by the load."
Florenc Sulke
Mr Sulke was also called out of sequence in RFI's case due to an overseas travel commitment. He prepared a statement for use in these proceedings.
At the time of Mr Grima's accident Mr Sulke was employed by RFI as a production manager. He was also the factory supervisor. He said that he supervised the men to make sure the trucks were being loaded properly. His duties involved either physically loading rolls of underlay or driving the forklift.
Mr Sulke said that he had no specific recollection of loading the particular truck that was involved in this matter. However, his pay records indicate that he was working for RFI between October 2009 and March 2010. He said, "If I was present at the factory, I was always involved in loading the Wadley pantechnicons and held a supervisory role." He confirmed the usual load configuration of seven rows plus extra rolls at the rear of the trucks described by others.
Mr Sulke said, "Once loaded, the doors of the pantechnicon were left open to enable the driver to inspect the load and braces." He also said, "following the inspection by the driver, he would close the doors of the pantechnicon one at a time." That evidence was in contrast to the evidence given by Mr Sklenar referred to earlier in these reasons.
Mr Sulke's statement contained a section dealing specifically with braces. It was as follows:
"BRACES
9. There have been a limited number of occasions where the number of braces supplied with the pantechnicon have varied. Sometimes, there are far more than you need. RFI always attached five braces if five or more were supplied.
10. I have seen a truck leave the factory with only four braces, but when that occurred, one of the middle braces was left off. The top brace was always attached.
11. The areas where the braces can attach into the wall of the truck are set in place and they are always the same. There are five places. They are not all equally distanced apart. One, two and three are equally distanced, as are four and five, but three and four are much closer together.
12. Attached to this statement is a copy of two photographs of the pantechnicon in question which I have been told was taken at the premises of Allied after Mr Grima was injured. These photos show rolls of underlay at the top of the load with two facing horizontally and one facing vertically or lengthways.
13. This is not the way we load the pantechnicons. As I have said in paragraph 7(d) the last rolls to be loaded were loaded horizontally because if loaded lengthways they would have prevented the doors being closed. The pantechnicon would not have left our premises in this configuration."
Despite having said in his statement that he had no specific recollection of loading the particular truck that was involved in this matter, Mr Sulke somewhat curiously gave the following evidence when cross-examined:
"Q. Any other supervisors there? Just you?
A. Just me.
Q. All right. So that when you were not there do we take it that any loading that went on went on unsupervised?
A. Well, when we are loading I always been there.
Q. Were you? Always there, were you?
A. Yeah.
Q. When the loading was on?
A. (Witness nods).
Q. Do you remember the loading on this occasion?
A. I do remember a little bit, yeah, I do remember.
Q. And you remember learning that Mr Grima, a chap at Allied, had sustained serious injuries?
A. I do remember that we heard that, yeah.
Q. Did you ascertain who in fact did the physical loading on that day?
A. Yeah, I was, yeah, I was loading on that day.
Q. Who were the individuals who were in fact loading and you were supervising, do you remember?
A. It was a man called Neelish Kamal, was me and I think was a man called Dan, Daniel Mann."
Mr Sulke was inevitably cross-examined on the question of braces. Just as curious was some of his evidence on that topic, as the following extract reveals:
"Q. And you know, in fact, there were only three braces installed on this day, don't you?
A. Three braces?
Q. That's correct? You know that, don't you?
A. No.
Q. Did you understand
A. I did, yeah, I did understand, but
Q. What?
A. I didn't I always seen four braces in truck. I haven't seen three braces, what you were saying.
Q. Yes. So you saw four braces, did you?
A. We always put four braces in truck.
Q. Did you?
A. Four, five, yeah.
Q. Four or five, did you?
A. That's correct.
Q. How many went in on this occasion?
A. On that truck?
Q. Yes. Do you know?
A. Well, I remember four braces in there.
Q. You remember that, do you?
A. Yep."
Mr Sulke reaffirmed in cross-examination that the doors of the trucks were always left open for the driver to inspect the load. His evidence about that was as follows:
"Q. So too as you remember the doors being left open, do you, for Mr Sklenar?
A. Well, we leave always the doors open.
Q. Yes. No doubt about that, have you?
A. Sorry?
Q. No doubt about that?
A. Yep.
Q. You were the supervisor, weren't you?
A. (Witness nods).
Q. And so you ensured that those doors remained open?
A. Yes sir.
Q. For Mr Sklenar from Wadley's to inspect the load before the doors were closed, didn't you?
A. Yes.
Q. Absolutely certain of that?
A. (Witness nods).
Q. And you would say you did that every time, did you?
A. We do that all the time.
Q. Yes, but let's get it clear?
A. Yes.
Q. You would say that under your supervision you ensured that the doors were left open and remained open until the man from Wadley's inspected the load?
A. That's correct.
Q. That happened on each and every occasion?
A. That's what I remember, that all the time we leave the doors open until the truck driver inspect the truck, the door and then we sign the paperwork and then he closed the doors himself."
Having regard to the fact that, on one view, Mr Sulke was called only to give evidence about his usual practice, rather than about what actually happened when this truck was loaded, the following portion of his evidence is important:
"Q. Were there occasions when you were absent when the truck was collected by Wadley's?
A. I can't remember. I can't remember I did, but there always, I always be there.
Q. Well, does it follow from that that there was no occasion on which the truck was collected and you were not there?
A. Sometimes. Very unlikely. Sometimes. But most of the days I will always be there in the factory.
Q. So do we take it from what you have said that from time to time
A. Yep.
Q. the truck was collected when you were not there?
A. No. I was there when the truck is being
Q. You were there?
A. Yeah."
It will immediately be apparent that there is some tension among first, Mr Sulke's inability to remember that he was present on the day the truck was loaded, secondly, his statement that "I always be there", and thirdly, his concession that "sometimes" there may have been occasions when a truck was collected and he was absent.
Mr Sulke adhered in cross-examination to the evidence in his statement about what happened when the truck was fully loaded:
"Q. I suggest to you that, in fact, you were not there when Mr Sklenar came to collect the truck?
A. No. I was there.
Q. And I suggest to you that when he came to collect the truck the doors were in fact closed?
A. No. That's, that's not, that's not true.
Q. And I suggest to you in fact that the doors were closed on each occasion that Wadley's came to collect the truck?
A. Nup.
Q. And I suggest to you that in fact there were three bars installed on this occasion and no more?
A. Nup. That's not true."
Mr Sulke agreed that the number of rolls varied depending on the makeup of the load. He also importantly said this in respect of the question of loads made up with horizontal rolls on top of the vertical rolls at the rear of the trucks:
"Q. Of course, you would agree with me that the number of rolls put on these various trucks varied?
A. Sorry, repeat it again?
Q. Yes, I am sorry. There were different numbers of rolls put on the trucks that left Regenfoam for Allied?
A. Different rolls inside the truck?
Q. Different numbers?
HIS HONOUR
Q. Every load was not the same?
A. No. That's correct. Yeah, yeah.
HENNESSY
Q. All right. The same as some had some rolls installed or put on top of the verticals and horizontal and some didn't?
A. Yes."
Other (documentary) evidence
Of considerable assistance in this case is the fact that immediately following the accident, a series of photographs were taken showing the physical condition of the truck when it occurred. Mr Grima is, in fact, depicted still lying on the ground under the truck. There are three braces in position still restraining the load. The second and third braces are still in the operating position apparently in the location in which they were placed in Melbourne when the loading concluded. The bottom brace is still attached on the right hand side of the truck but disconnected on the left hand side. What appear to be three other braces can be seen lying inside the truck on the floor on the left hand side. They were performing no role in restraining or containing any part of the load.
Joint experts' report
Three experts were retained to provide opinions in the proceedings. They ultimately conferred and produced a joint report. For presently relevant purposes there was no disagreement among these experts concerning any question that they were asked to answer. As a consequence, there was no need for any of the experts to be called either separately or concurrently.
Not all of the matters that the experts were asked to consider remained relevant to contested issues in the proceedings. Those issues that remain controversial were dealt with by the experts in the following ways.
All experts agreed that laying the carpet rolls laterally in the horizontal position on top of the vertical rolls was not appropriate at all within the trailer. They also agreed that even if such rolls were secured by the use of braces, there remained a possibility, depending upon the space between them and the diameter of the rolls in question, that the rolls could fall through the gap between the braces. For the same reason, five bars or braces may not have been adequate to prevent the horizontal rolls falling if the gap between the braces was too large.
The experts were not critical of the method of loading the bulk of the rolls. They were, however, critical of the placing of horizontal rolls above the vertical rolls at the rear of the truck parallel to the rear doors. It was not inappropriate to load rolls in that location provided that they were configured longitudinally and parallel to the sides of the truck.
The experts were all agreed that Allied's method of unloading the truck was unreasonable. They all considered that as a transport company Allied should have had a loading dock or a scissor lift or a work area ramp. They all agreed that the unloading position of the pantechnicon was unacceptable due to the presence of a bollard between the truck and the warehouse that restricted the door on the left hand side, although that did not figure in the events that actually gave rise to Mr Grima's accident.
All experts agreed that the restraining braces or bars should have been removed from the top down. It appears that the experts were of the opinion that in order to do this safely it should have been performed from an elevated platform. Even if there were only three braces, these should also have been removed starting at the top. All of the experts agreed that Mr Grima should not have removed the bottom brace whilst the other two braces were restraining the load. They also all finally agreed that the left hand door of the truck should not have been opened before an inspection of the load and the number of braces in place to restrain it had been completed. The experts do not appear to have considered the question of whether the left hand door should never have been opened having regard to the assumed fact that only three braces were in place. It seems to be their opinion that it was still appropriate to open both doors in such circumstances provided an inspection of the load after the right hand door had been opened indicated that it was adequately restrained by those three braces.
Submissions
RFI (Aust) Pty Ltd
It was accepted by RFI that its liability would follow upon a finding that there were only three braces in place when the truck left its premises. The evidence on this issue mounts Mr Grima and Mr Tai-Rakena on one side against the evidence of Mr Di Pietro and Mr Sulke on the other side.
RFI also contends that the photographic evidence favours a finding of more than three braces. This is because there are three extra braces that can be seen lying on the floor of the truck, which RFI asserts is more consistent with having been removed and placed there by Mr Grima or Mr Tai-Rakena during the unloading procedure than by an RFI employee at the time of loading.
A finding in favour of RFI on these issues necessitated a finding that Mr Grima's evidence and Mr Tai-Rakena's evidence about them had to be rejected and that Mr Di Pietro and Mr Sulke were to be preferred.
Without in any way wishing to suggest that RFI did not propound its defence to Mr Grima's case with the utmost tenacity or sincerity, my distinct impression is that the major thrust of its attack was directed to the cross-claim against Allied and the issue of Mr Grima's contributory negligence. It is appropriate to consider RFI's submissions concerning those areas now.
In order to determine any appropriate reduction in the damages which may be awarded to Mr Grima against RFI, it is necessary to assess the amount of Allied's liability to Mr Grima to determine the amount to be calculated pursuant to s 151Z(1)(d) of the Workers Compensation Act. That involves first determining Allied's liability and secondly comparing the extent of that liability with the extent of RFI's liability in terms of their respective causal potency or culpability in the sense described by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ...and of the relative importance of the acts of the parties in causing the damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
Allied had a non-delegable duty as Mr Grima's employer to provide a safe system of work: Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25; Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 687-689. The scope of Allied's duty in this case included providing Mr Grima with proper plant and equipment, and giving him proper training, supervision and directions.
I was referred to the observations in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [54] as follows:
"...Similarly, it has been said that '[a] system of working normally implies that the work consists of a series of similar or somewhat similar operations'. The loading and unloading of linen trolleys from a delivery truck, pursuant to a contractual arrangement requiring regular repetition of that activity, clearly falls within these descriptions. As a result, Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result. As a sub-set of the general common law duty of care outlined earlier in these reasons, the obligation is non-delegable..."
The obligation to implement risk minimising safety procedures is reinforced in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at [12] in these terms:
"...An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."
Finally, RFI drew attention to what was said in McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306 at 313 as follows:
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ...And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
RFI emphasised that Allied was required to develop and maintain a system that would enable the unloading of the trucks to be performed in a safe manner, minimising risk of injury to its employees. Not every load was the same. However, Mr Grima and Mr Tai-Rakena were permitted to follow the same system for all loads. Their approach did not conform in several obvious respects with the template devised for the performance of the work described by Mr Biermann. They were left completely unsupervised when performing what turned out to be very dangerous work. RFI contended that this served starkly to highlight the significance of Allied's failures compared to those of RFI, both in terms of their severity and causal potency.
Simple measures could have obviated the risk of injury. These included instructions to open only one door, leaving the remaining door locked, thus permitting a close inspection of the interior of the truck and a corresponding assessment of the status of the load from a position of safety. That would have been a simple and inexpensive procedure that is highly likely, if not almost certain, to have prevented Mr Grima's accident. It accorded for all relevant purposes with the experts' joint opinion.
Even though Mr Biermann said that he had personally instructed Allied's employees about the proper procedure to be followed, Mr Tai-Rakena said that he had never been instructed in a set procedure for opening the doors of a pantechnicon, or to keep one door closed and use a forklift visually to inspect above the vertical rolls. He said he would have done so if instructed. He also agreed that he never in fact looked above the vertical rolls before he and Mr Grima opened the doors completely as he "never thought [they] had to."
Mr Grima had no knowledge of any such system. Mr Tai-Rakena said that there was no set procedure in place for unloading the pantechnicon, nor was there any instruction on a safe method of doing so. Allied did not even take the basic step of having a supervisor present to watch over the initial inspection of the load when the doors were being opened. This meant that Allied failed to ensure that Mr Grima did not commence unloading the truck until he made certain that it was safe to do so.
RFI submitted that Allied knew or ought to have known that there were risks to employees associated with unloading pantechnicons. Loads can obviously move in transit. Horizontal rolls placed on top of the vertical rolls were unsafe according to the experts. That was never brought to RFI's attention by Allied despite the latter's professed expertise in the transport field. RFI contended that Allied's breach of its non-delegable duty to Mr Grima was significant and made a substantial contribution to his injuries. The principal default was that of Allied, as the body in control of the system of work pursuant to which Mr Grima performed his tasks: see Coregas Pty Ltd v Penford Australia Pty Ltd [2012] NSWCA 350 at [90].
In summary, RFI contended that the most immediate temporal cause of Mr Grima's injuries was the system of unloading, together with inadequate training, all of which occurred on premises that Allied controlled. RFI submitted that Allied should bear 90 percent of the responsibility for Mr Grima's losses.
RFI's submissions on contributory negligence were to the following effect.
Mr Grima's departure from the standard of care expected of him was significant. It was not a momentary lapse of attention in the performance of a repetitive activity: cf Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563.
In his statement Mr Grima said he was well aware that there were "always horizontal rolls on top". He later insisted in cross-examination that this was only when there was a fifth brace in place. RFI submitted that his statement was to be preferred.
When the doors were first partly opened, Mr Grima realised that there were only three braces present. He had never seen that before. RFI contended that this should have placed Mr Grima on notice that the load was unusual and potentially dangerous and that he should immediately have ceased unloading.
The second time that Mr Grima noticed that there were only three braces he said, "I saw there was no fourth [brace], that's when I realised there was no safety for us." RFI submitted that Mr Grima should have recognised the danger when he first saw only three braces.
Mr Grima did not walk back from the truck to alter his line of sight and improve his view. Mr Tai-Rakena agreed that would have been a simple thing to do and the horizontal rolls could in that way have been seen. RFI contends that that is what a reasonable person, taking proper care for his or her own safety, would and should have done. As a matter of common sense, Mr Grima should never have inspected the load with both doors open. RFI submitted that he "engaged in the deliberate act of continuing to unload, apparently having inspected the top of the load for horizontal rolls": cf Stephens v Giovenco [2011] NSWCA 53 at [22], [35], [126]-[128] and [147].
RFI emphasised that all of the experts agreed that Mr Grima should never have removed the bottom brace first. Braces should have been removed from the top down. The rolls that struck Mr Grima appear to have moved simultaneously. Whatever else the evidence may establish, it is clear that the rolls that struck Mr Grima did not fall out of the truck at the same moment that the doors were opened. Nothing fell from the truck until at least Mr Grima unhooked the bottom brace. RFI submitted in these circumstances that there was a direct temporal if not causal connection between Mr Grima's actions in doing that and the fall of the rolls from the truck.
RFI contended that Mr Grima's departure from the standard of care to be expected of someone in his position was significant. RFI submitted that if I were to find that Mr Grima saw three braces in place at the time that he opened the doors but proceeded to continue to unload, notwithstanding that he recognised it to be unusual, if not unique in his experience, a finding of 50 percent contributory negligence would be appropriate.
Allied Overnight Express Pty Ltd
Allied made the following submissions with respect to the issues joined on the cross-claims between it and RFI.
RFI clearly owed a duty of care to Mr Grima and loaded the truck in Melbourne knowing that it would be unloaded upon arrival at Allied's Sydney premises. RFI was wholly responsible for the loading task. Its duty extended in those circumstances to ensuring that the load did not create a risk of injury to persons in the position of Mr Grima. The risk of someone being injured by an item falling from an unsecured load was clearly foreseeable and a risk of which RFI either knew or ought to have been aware. Moreover, the risk was not insignificant and a reasonable person in RFI's position would have taken precautions to avoid it. It was probable that such harm would occur if care was not taken and the harm was likely to be serious.
Consistently with Mr Grima's contentions, Allied submitted that RFI was in breach of its duty to him in placing rolls horizontally on top of the vertical rolls at the rear of the truck and in failing to put in place a fifth brace in order to secure them. The experts agreed that laying rolls of underlay in that way was not appropriate. An alternative and safe loading system was available and should have been adopted.
Allied also submitted that RFI's method of loading relevantly caused Mr Grima's injuries, inasmuch as it was a "necessary condition of the occurrence of the harm (factual causation)" as referred to in s 5D(1)(a) of the Civil Liability Act 2002. Allied contended that Mr Grima would not have suffered injury but for RFI's negligence: see Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 and Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182.
Allied submitted that if no rolls had been placed horizontally on top of the vertical rolls, or if they had been secured by a fifth brace, it is probable that they would not have fallen and that Mr Grima would not have been injured. It is therefore appropriate that the scope of RFI's liability should extend to the harm actually suffered by Mr Grima.
Allied conceded uncontroversially that it also owed a duty to take reasonable care for Mr Grima's safety. However, it also submitted that, having regard to s 5B of the Civil Liability Act, it had not breached that duty in the circumstances. It contended that even if injury from unsecured cargo was foreseeable, its method of unloading was reasonable.
The method of unloading the rolls of underlay necessarily involved a visual inspection by those performing the task. Allied maintains that the steps that RFI suggests should have been undertaken by them are not reasonable. The unloading task was relatively straightforward. Mr Grima had been doing it regularly since October 2009. There would sometimes be as many as four deliveries in a single week.
Mr Grima and Mr Tai-Rakena initially opened the door a small way in order to inspect the load and to assess whether or not it could be unloaded safely. They did not see any rolls on top of the vertical rolls. Where there had been rolls stacked horizontally on vertical rolls on previous occasions, they had been secured by a brace above the level of the vertical rolls. Allied submitted that in the absence of evidence that on prior occasions there had been any rolls stacked on vertical rolls that were unsecured and hidden from view, the system of inspection undertaken by Mr Grima and Mr Tai-Rakena was reasonable. To require that they should have done more would be to impose an altogether unreasonably high standard with the benefit of hindsight.
RFI also contended that Allied should have had a loading dock, a scissor lift or a work area ramp. According to Allied, however, while the risk of harm caused by a falling roll of underlay was foreseeable, there was no suggestion that any such thing had happened before. The burden of taking the alleged precautions was therefore unreasonable having regard to the system that had been implemented and the substantial expense of $45,000 for a scissor lift and $35,000 for the ramp. RFI deliveries represented only a small fraction of Allied's business. Allied contended that the evidence did not support a finding that the implementation of these suggestions would have avoided what occurred in any event.
Allied contended that it was entitled to a complete indemnity from RFI for the following reasons. It was RFI's failure properly to secure the load in the first place that created the substantial risk of injury. The manner of loading and securing the load was clearly unsafe and contrary to RFI's own practice. RFI could have taken simple steps to eliminate the risk of injury entirely. Allied did not itself fail to take reasonable care. Allied's system was appropriate and reasonable for unloading items that were not on pallets from rear loaded trucks. The measures available to RFI to avoid the risk of injury involved no added burden or expenditure. That was to be contrasted with the expense involved in Allied complying with RFI's suggested modifications or acquisitions.
In the alternative to an indemnity, Allied contended that the overwhelming share of the responsibility for the harm lay with RFI and that any apportionment of their respective contributions should reflect that.
Mr Grima
Mr Grima submitted that RFI was solely or principally responsible for the accident. He contended that I should accept him and Mr Tai-Rakena as witnesses of truth and that their evidence, if accepted, established that the load was supported by only three braces rather than four or five. That was sufficient to establish a liability on RFI's part. All other matters, such as whether Mr Grima did or should have looked more closely before proceeding to open the doors fully and commence to unload the truck went to the question of contributory negligence rather than RFI's liability. That included issues of whether rolls had or had not ever previously been transported on top of vertical rolls in the absence of a top restraining brace to prevent their fall, and whether Mr Grima was entitled on historical grounds to assume that in the absence of a fifth brace no horizontal rolls were present. Put another way, Mr Grima contended that the combination of no fifth brace in the presence of horizontal rolls loaded on vertical rolls was sufficient to consummate his cause of action against RFI. No issue of what he did or should have done operates to derogate in any way from that fact. Mr Grima denied that his own negligence had contributed to his harm.
Jones v Dunkel
Two witnesses who may have been able helpfully to contribute to the resolution of this case are Neelish Kamal and Daniel Mann. Mr Kamal was the actual RFI employee responsible for the loading of the 315 rolls placed into the truck in question on 5 March 2010. He signed the inventory transfer document on its behalf. His responsibility included fixing the braces into position when loading was completed. No details of what may have been Mr Mann's role have been provided.
No explanation was offered for RFI's failure to call either of these men. Mr Grima and Allied each contended that I should infer, consistent with well known authority, that nothing that either of these men could have said would have assisted RFI's case.
I was referred to Manly Council v Byrne [2004] NSWCA 123. That case dealt, among other things, with the question of whether an inference should be drawn when a witness is not called who could give evidence on a particular topic, but in circumstances where other witnesses giving evidence on that same topic are called. It also dealt with the effect of a witness who is not called being equally available to all parties.
In this case Mr Kamal was on one available view the only person able to give evidence of how many braces were in place when the truck left Melbourne. That included Mr Sulke, about whose actual state of knowledge on the true position there must be some doubt. Mr Kamal was potentially in those circumstances almost uniquely placed to inform me how many braces were in place. He is also a witness to whom neither Mr Grima nor Allied would appear to have any realistic access.
In the circumstances I consider that the inference that at least Mr Kamal could not have assisted RFI in this case is plainly available and should be drawn. It is unnecessary to note that such an inference does not permit a conclusion that Mr Kamal would have confirmed the existence of only three braces or the absence of a fifth brace if he had been called.
Assessment of witnesses
Mr Grima was born and grew up in Malta, so that English was not his first language. He has lived and worked in Australia for many years, however, and did not have any difficulties giving his evidence without assistance. He gave his evidence clearly and with a certain level of patient indignation that I consider to have been wholly consistent with truthfulness.
The single most important part of his evidence concerned the number of braces that were present when the truck doors were opened. My later finding that there were three is based significantly upon an acceptance of his evidence about this. In particular, Mr Grima said that he had never seen only three braces before. He candidly admitted that he did not really pay attention to the fact that there were only three braces until he came later to unhook the bottom brace. While I accept that it is in his interests to say that there were only three braces in place, I did not get the slightest impression that Mr Grima was being anything other than completely genuine in his description of what he saw and of what happened as a result.
Mr Tai-Rakena was also very impressive. He had no interest in the outcome of these proceedings and his description of seeing only three cross braces wholly supported Mr Grima's version of events. I found Mr Tai-Rakena to be very credible and I accept what he said without question.
Mr Di Pietro was slightly combative and argumentative in the way he gave his evidence. I am not critical of him for that in the circumstances. I do not, however, have any confidence in his evidence to the extent that it could be relied upon concerning the question of the number of braces in place when the truck left RFI's Melbourne premises. He spoke in terms of what he believed the situation to have been, not about what he knew it to be. He regularly used the word "would", such as in the phrases "if the bars were there they would be put in" or "if there were five bars and five places to put them, they would put in five bars." He also said "we would probably put [a bar in] place regardless whether there were rolls there or not." This type of evidence was no more or less than Mr Di Pietro's expression of hope that the appropriate number of braces was used and did not helpfully inform what happened in fact.
Mr Sklenar effectively was not challenged. To the extent that his evidence differed from that of Mr Di Pietro on the question of whether the doors of his truck were left open for him to inspect or were closed when he came to take the truck away, I accept him entirely. That issue is not critical in the way this case ultimately unfolded, but the difference in the evidence given about it by Mr Sklenar and Mr Di Pietro assisted me to assess Mr Di Pietro as a less than completely reliable witness.
Mr Biermann gave evidence of the system he had in place for unloading trucks. He was a very credible and impressive witness. He said that he instructed employees in Allied's system but Mr Tai-Rakena at least said that he did not receive this. I am inclined to prefer a specific recollection of Mr Tai-Rakena over what must be a general or reconstructed recollection in the case of Mr Biermann, particularly having regard to the size of Allied's operation and what I assume to be a large population of workers. Nothing that Mr Biermann said went to the question of whether or not there were only three braces present when the truck was unloaded at Allied's premises.
Mr Sulke could not say from his recollection that he actually saw the state of the loaded truck that left RFI's premises. I am unable to accept his evidence that the doors of the trucks were left open to enable the drivers to inspect the load and braces. That evidence conformed to Mr Di Pietro's version but conflicted with Mr Sklenar's evidence, which I have accepted. To the extent that Mr Sulke purported to give evidence of the number of braces that were placed on this load, I reject it.
Findings
Having regard to the competing contentions in this case and the evidence upon which they are based, it is critical to make findings as to how the incident that injured Mr Grima occurred. I am satisfied upon the balance of probabilities of at least the following matters.
The truck that transported the subject load of underlay to Allied's premises in Sydney was loaded at RFI's Melbourne premises by RFI employees in accordance with its agreement with Allied. The load comprised 315 rolls of carpet underlay. The precise measurements of the truck are not known.
Each roll of underlay was wrapped or sealed in plastic. The rolls were approximately 1.83 centimetres long and weighed between 19 and 30 kilograms each, with a diameter of between 39 and 40 centimetres. These dimensions were subject to variation but not in a way that confronts any issue in these proceedings. This load of rolls was configured in seven rows laid horizontally end on end and parallel to the sides of the truck staring at the front. These rolls usually filled the space in the truck from floor to ceiling and from side to side but not always. The evidence does not permit a finding of whether or not they did so on this occasion. The space between the end of the seventh row and the doors of the truck was filled with rolls standing vertically, upon which were placed additional horizontal rolls parallel to the axle. The rolls that ultimately struck Mr Grima would appear to have come from rolls loaded in that way and in that location.
Rolls were usually but not invariably placed horizontally at the rear of the truck on top of the vertical rolls. This was the position about half of the time. On all occasions prior to the incident when horizontal rolls had been placed on top of the vertical rolls in this fashion, braces had always been affixed at a height to secure them.
Four or five braces were usually used to secure the loads but not always. There had been prior occasions when less than five braces had been used. Only three braces had been used to secure the load that arrived at Allied's premises on 8 March 2010. Photograph 4 shows the position of the three braces as they were placed at RFI's premises, save that the bottom brace had been detached on the left hand side. There were additional braces available for use by RFI employees responsible for securing the load located in the rear of the truck shown in photograph 3. Neither Mr Grima nor Mr Tai-Rakena placed those braces there, either by removing any of them from the fourth or fifth rows or in any other way.
Mr Grima and Mr Tai-Rakena went about unloading the truck in the following way. Each man took hold of a door handle. Mr Grima was on the left and Mr Tai-Rakena was on the right. The doors were opened more or less simultaneously, although the right hand door necessarily preceded the left hand door as it overlapped in the closed position. The doors were opened so as to be ajar, or not fully opened, and Mr Grima and Mr Tai-Rakena looked in to assess the load for safety. There was no part of the load pressing against the restraining bars.
Mr Grima and Mr Tai-Rakena saw only three horizontal braces securing the load of rolls. That was both observable and observed by them as soon as the doors of the truck were partially opened. They did not see any rolls loaded horizontally on top of the vertical rolls at the rear of the truck. There was no bracing above the vertical rolls. Having satisfied themselves that the load consisted only of vertical rolls at the rear of the truck and that it was adequately restrained by the three braces, they each proceeded to open the doors completely. Mr Tai-Rakena was able to take the right hand door back completely and secure it to the side of the truck. Mr Grima was unable to do so on his side because the bollard shown in the photographs restricted his ability to open the left hand door wider than the position of the bollard.
Mr Grima proceeded in advance of Mr Tai-Rakena to unhook the bottom brace on the left hand side. As he was doing so, first one roll of underlay and then another fell from on top of the vertical rolls and struck him causing serious injury.
Although it was not done on the occasion in question, RFI could have loaded the truck so that the seventh row of horizontal rolls was at the rear of the truck, with the vertical and loose horizontal rolls behind them or further forward in the truck. If the rolls had been loaded in this way, Mr Grima would not have been injured in the way that happened in this case.
The photographs show three braces in position with the bottom brace unhooked on the left hand side. They also show horizontal rolls on top of the vertical rolls. In the top right hand corner of the truck there is a single roll of underlay running parallel to the sides of the truck. I am unable on the evidence to find how that roll ended up in that position or where it came from.
Consideration
Mr Grima's case against RFI
The essential basis of Mr Grima's case is that even if the right hand door had been opened slowly to check on the load before proceeding to open the left hand door and unload the rolls, as Mr Biermann suggested was the standard instruction, neither Mr Grima nor Mr Tai-Rakena could see the horizontal rolls on top. Further, the absence of the fifth brace at least indicated clearly to them that it was presumably safe to operate upon the basis that no horizontal rolls were present.
It must follow from the findings I have made that Mr Grima is entitled to a verdict against RFI. The failure to provide a restraining brace that would prevent the fall of rolls of underlay from above the vertical rolls is a breach of RFI's duty to load the truck properly. It was clearly foreseeable that serious injury might follow from events of the type that happened in fact. I accept the case proffered by Mr Grima that in his experience there were never rolls of underlay loaded on top of the vertical rolls unless there was a fifth brace in position to restrain them. I accept that Mr Grima was lulled into a false sense of security by the absence of a brace at that level, telegraphing to him a reasonable expectation that there was no danger present.
This is all the more so having regard to the fact that the truck was closed by RFI employees in Melbourne in the knowledge or expectation that it would not be inspected or examined again until it came to be unloaded. RFI's duty and the question of whether or not it was breached has to be analysed in that context. Allied employees were entitled to expect that the load contained nothing that did not conform to their reasonable expectations having regard to the loads that had previously arrived from RFI's premises. It is sufficient to repeat Mr Di Pietro's uncontroversial concession that if the truck left his premises with only three braces supporting the load it would represent a complete failure of proper practice. That failure was a breach of RFI's duty to Mr Grima.
The cross claims between RFI and Allied
This issue is far more difficult and understandably received the most attention in the course of the hearing. The competing submissions have been set out in detail already.
On the one hand, RFI was responsible for the loading of the truck and was uniquely placed to perform that task in a way that either eliminated or minimised the risk of injury to Allied employees such as Mr Grima. It failed to do so. On the other hand, Allied was similarly placed to control and supervise the unloading of the trucks with particular attention to the presenting idiosyncrasies of each load. That included the formulation of a system and corresponding instructions that anticipated the possibility of events such as those that actually occurred.
Allied's standard instruction to its employees included an instruction to take care when opening the doors to observe whether any freight could fall if the doors were opened. The possibility of a missing top brace, or what to do if that was encountered, was not specifically accommodated by Allied's instructions to its workers or by the system it had formulated. In particular, there does not appear to have been any instruction that required the Allied employees to make an accurate or exhaustive visual inspection of the top of the load, particularly in areas of the truck that could not be entirely or completely seen from the ground. That should have been taken into account in Allied's system for the obvious reason that loose rolls placed horizontally on top of the vertical rolls were a regular feature of the RFI deliveries.
The system of checking for loose rolls was casual at best. Mr Tai-Rakena said he did not think it was necessary to look. If there was no top brace Mr Grima and Mr Tai-Rakena operated upon the assumption, based on previous experience, that no rolls were present. The Allied system and instructions to employees should have taken account of the possibility that that assumption could not always or ever safely be made. The presence of a supervisor to oversee the commencement of all unloading tasks would have eliminated or minimised the risks associated with leaving the assessment of the safety of each load to those assigned the job of performing that work.
In my view it is not possible to apportion fault differently between RFI and Allied. It was clearly and inexpensively open to RFI to load the vertical rolls within surrounding horizontal rolls further inside the truck and not against the rear doors. RFI was in that way the author of the fundamental problem that confronted Mr Grima when the unloading commenced. Allied's failure to anticipate and provide for the possibility that some loose rolls may not be visible or secured consummated the events that commenced with RFI's failures. Doing the best I can, I consider that RFI and Allied are equally at fault. The causal potency of their respective breaches cannot be further distinguished in anything other than a most artificial way. It is just and reasonable in the circumstances that their responsibility for Mr Grima's injuries be apportioned in the ratio of 50 percent each.
Contributory negligence
It is important immediately to observe that upon the basis of Mr Biermann's instructions to his workers, Mr Grima was not guilty of any contributory negligence. This is because even if he had complied with the instructions to the letter, it would not have altered the outcome. There were no rolls pressing against either door. There was accordingly no causal connection between what Mr Grima did or failed to do and the injury he sustained. The only scope for contributory negligence is that he should have looked more closely for loose horizontal rolls. However, he said he did look but could not see them when he did so and that he was in effect falsely reassured of their absence by the fact that no fourth or fifth bar was in place. RFI were at fault for loading the truck with only three bars and Allied were at fault for not putting in place a system that both permitted and required Mr Grima to view the top of the load where loose horizontal rolls might have been located or that warned him not to proceed with the unloading until the top section had been directly observed and cleared. Nothing that Mr Grima otherwise did or failed to do in such circumstances could amount to negligence on his part that contributed to his injuries. Indeed, when Mr Grima was struck he was in the course of unhooking the lowest brace in total compliance with the system that Allied had negligently authorised. Mr Grima had no reason in the circumstances to expect or to anticipate other than that he was proceeding with his task in perfect safety.
Conclusions and orders
There should be a verdict for Mr Grima against RFI for an amount of damages to be calculated in accordance with what follows. I have assessed the respective contributions of RFI and Allied in accordance with the cross-claims. Unmodified damages have been agreed. At the request of the parties I have not proceeded to perform any calculations by reference to the operation of s 151Z of the Workers Compensation Act or any interest that may be payable to Mr Grima on the damages to which he has become entitled, in anticipation of the parties doing so themselves with the benefit of my conclusions concerning apportionment as between RFI and Allied.
I will do no more at this stage than direct the parties to bring in short minutes of order giving effect to my conclusions within seven days. I will hear the parties on the question of costs if required.
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Decision last updated: 02 September 2013
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