HENRY -v- CSBP LIMITED [2017] WADC 1

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 1
Case No:	CIV:2925/2011	Heard:	10 & 16 FEBRUARY 2015, 18-20, 22 & 25 JANUARY 2016
Coram:	BIRMINGHAM QC DCJ	Delivered:	11/01/17
Location:	PERTH
No of pages:	49	Judgment Part:	1 of 1
Result:	Plaintiff's claim against each defendant dismissed
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Parties:	JAMES ALEXANDER HENRY CSBP LIMITED CHEMTRANS PTY LTD
Catchwords:	Negligence Duty of Care Workplace accident Duty owed to independent subcontract driver using loading facility Identification of risk of injury Whether conduct of defendants reasonable in circumstances No breach of duty Turns on own facts Contribution between defendants Obligation to effect insurance for benefit of principal
Legislation:	Occupational Health and Safety Act 1984 (WA) Civil Liability Act 2002 (WA)
Case References:	Department of Housing and Works v Smith [No 2] [2010] WASCA 25 GIO General Insurance v Centennial Newsstand Pty Ltd (2014) NSWCA 13 Hancock Prospecting v Wright Prospecting (2012) 45 WAR 29 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Leighton Contractors Pty Ltd v Fox [2009] HCA 35 Roads and Traffic Authority of New South Wales v Dederer (2007) HCA 42; (2007) 234 CLR 330 Toll (FCCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Vairy v Wyong Shire Council (2005) HCA 62 Wallace v Kam [2013] HCA 19

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HENRY -v- CSBP LIMITED [2017] WADC 1 CORAM : BIRMINGHAM QC DCJ HEARD : 10 & 16 FEBRUARY 2015, 18-20, 22 & 25 JANUARY 2016 DELIVERED : 11 JANUARY 2017 FILE NO/S : CIV 2925 of 2011 BETWEEN : JAMES ALEXANDER HENRY

Plaintiff

AND

CSBP LIMITED

First Defendant

CHEMTRANS PTY LTD

Second Defendant

Catchwords:

Negligence - Duty of Care - Workplace accident - Duty owed to independent subcontract driver using loading facility - Identification of risk of injury - Whether conduct of defendants reasonable in circumstances - No breach of duty - Turns on own facts - Contribution between defendants - Obligation to effect insurance for benefit of principal

Legislation:

Occupational Safety and Health Act 1984 (WA)

Civil Liability Act 2002 (WA)

Result:

Plaintiff's claim against each defendant dismissed

Representation:

Counsel:

Plaintiff : Mr J Brooksby & Mr R D McCabe

First Defendant : Mr D R Clyne

Second Defendant : Mr G J Pynt

Solicitors:

Plaintiff : Donna Percy & Co

First Defendant : SRB Legal

Second Defendant : Moray & Agnew

Case(s) referred to in judgment(s):

Department of Housing and Works v Smith [No 2] [2010] WASCA 25
GIO General Insurance v Centennial Newsstand Pty Ltd (2014) NSWCA 13
Hancock Prospecting v Wright Prospecting (2012) 45 WAR 29
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Roads and Traffic Authority of New South Wales v Dederer (2007) HCA 42; (2007) 234 CLR 330
Toll (FCCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Vairy v Wyong Shire Council (2005) HCA 62
Wallace v Kam [2013] HCA 19

BIRMINGHAM QC DCJ:

Introduction

1 Since 2002 the first defendant has manufactured and supplied the liquid nitrogen fertiliser known as Flexi-N from a product-specific loading facility at its Kwinana plant.

2 The loading facility operates 24 hours a day and is essentially a self-service station. It consists of a steel-framed building which allows the driver to drive the tanker in on one side, park the vehicle in the station for loading and then drive out the other side when loading is completed.

3 Flexi-N is loaded into each tanker through a spear that is inserted in a loading port located on the top of the tanker. The port is enclosed within a square metal surround, or bund, to protect the port from damage in the event of a rollover.

4 The loading facility has a hydraulically operated loading platform comprising a mesh floor partially covered with rubber matting, protective railings on all sides with an opening in the centre that is to be positioned over and surrounding the bund, and filling port on the top of each tanker during loading. It is, in essence, a floating platform that is lowered down onto the top of the tanker to be filled to provide a platform from which the driver can have access to the top of the tanker to complete loading without the risk of falling.

5 The loading process is undertaken by the driver positioning the vehicle adjacent to a predetermined ground mark such that the raised bund on the tanker is located beneath the opening in the loading platform. The driver then alights from the truck, goes up the stairs on the loading gantry to the control panel and lowers the floor of the loading platform to be at the same level as the bund on the tanker. The bund is then surrounded by the mesh floor of the loading platform.

6 The driver then opens the gate in the loading platform to gain access to the filling ports, removes the caps, and inserts the spear through which the Flexi-N liquid fertiliser is then pumped into the tanker. Once the tanker is filled, the spear is disconnected, the loading platform raised and the tanker departs to the weighbridge to be weighed before proceeding to deliver the product.

7 If the driver is towing multiple tankers in a road train configuration, once the first tanker has been filled, the driver raises the platform, drives the vehicle and tankers forward to the next marked position where the second tanker is in position. The loading platform is then lowered onto the bund and the filling process repeated.

8 Flexi-N is both sticky and corrosive. Each tanker is required to be fitted with a water tank to enable drivers to wash off any spilt product from the tanker after loading.

9 At all material times the first defendant engaged the second defendant to transport and distribute Flexi-N fertiliser from its Kwinana works to various country locations. The second defendant is one of several contractors used by the first defendant.

10 At all material times A & N Trucking Pty Ltd (ANT) was contracted to supply prime movers and drivers to the second defendant to tow the second defendant's tankers that were transporting the Flexi-N. The plaintiff was employed by ANT as a driver for such a purpose.

11 Notwithstanding changes in his employment with various employers, the plaintiff has been engaged in driving vehicles transporting Flexi-N since 2006.

12 On 9 December 2009 the plaintiff was loading Flexi-N into the second defendant's tanker, T2709. Tanker T2709 then had a water tank mounted on the top of the tanker to the rear of the bund and filling ports. The plaintiff was unable to position the tanker to enable the loading platform to be lowered fully onto the top of the bund. The plaintiff lowered the loading platform on to the top of the water tank and then stepped from the loading platform onto the bund to disconnect the filling spear. The plaintiff slipped as he stepped onto the bund and fell through the gap between the loading platform and the top of the tanker onto the concrete floor of the loading facility and was injured.

13 The plaintiff now seeks damages from the first and second defendants in respect of the injuries suffered by him.

14 The plaintiff's case was initially premised upon an assumption that a water tank mounted to the top of tanker T2709 did not allow the loading platform to be lowered into a position level with the top of the bund such that to connect and disconnect the hose to the filling port, the plaintiff was required to step down from the working platform onto the bund. The plaintiff says as a consequence he was thereby exposed to the risk of falling through the very considerable gap created between the bund on that tanker and the loading platform.

15 After counsel for the plaintiff had opened the plaintiff's case it emerged, and was subsequently accepted by all parties, that, contrary to the previously assumed position, the loading platform could in fact be lowered so as to sit flush with the bund on tanker T2709, notwithstanding the presence of the water tank on the top of that tanker.

16 The defendants say that if the plaintiff correctly positioned the tanker – as all other drivers had done in the past - the loading platform could be fully lowered to the bund such that there is no gap and hence no risk of falling as the plaintiff had done.

17 The plaintiff's claim against the defendants is pleaded as follows:

20. The accident was caused by the negligence and/or breach of statutory duty of the First and/or Second Defendants.

PARTICULARS OF NEGLIGENCE OF FIRST DEFENDANT

(a) failed to provide the Plaintiff with warnings in relation to the danger of falling;

(b) failed to warn the Plaintiff of the danger of slipping associated with Flexi-N residue on the matting and on the metal loading platform;

(c) failed to develop a system to ensure road trains being used at loading station 22 did not have water tanks on them which would prevent the metal loading platform from lowering to a position where it would sit close to the bund on the top of the tanker in a fashion such that there was no gap through which the Plaintiff could slip and fall;

(d) failed to have an adequate storage system for the spear to prevent Flexi-N dripping from the spear and onto the metal loading platform and onto the bund once it had been removed from the tanker;

(e) failed to adapt its working platform to accommodate the Second Defendant's modified tankers which it knew, or ought to have known, used its premises;

(f) in circumstances where there was a gap between the metal loading platform and the bund on the top of the tanker through which the Plaintiff could slip, the Defendant failed to ensure that the tanker loading Flexi-N had non slip surfaces;

(g) failed to ensure the road train was compatible with the metal loading station;

(h) failed to ensure that metal loading station 22 had been inspected and all necessary changes implemented to ensure that there were no unacceptable fall risks;

(i) failed to conduct any or any adequate inspection of the loading platforms and/or the tankers to ensure the Plaintiff was able to load and/or was loading the tanker in a manner that did not expose the Plaintiff to risk of injury;

(j) failed to, or to adequately induct, instruct, train and supervise the Plaintiff on how to load the tanker in a manner that did not expose the Plaintiff to risk of injury;

(k) failed to, or to adequately induct, instruct and train the Plaintiff on how to identify hazards that may exist as a result of the operation of the loading platforms; and

(l) failed to conduct a job safety analysis and/or adequate loading procedure for new or modified tankers used at the loading stations.

PARTICULARS OF BREACH OF STATUTORY DUTY OF FIRST DEFENDANT

Occupiers Liability Act 1985

20A. As the occupier of the site, the First Defendant exposed the Plaintiff to a danger, being the opening in the elevated platform which exposed the Plaintiff, who was required to work thereon and therefrom, to a significant risk of injury.

Occupational Safety and Health Act 1984

20B. The First Defendant as a person in control of a workplace and access to and egress from a workplace failed:

(a) to ensure that the platform was of suitable construction to enable a person to gain access to and from his workplace in breach of regulation 3.7 of the Western Australian Occupational Safety and Health Regulations 1996 (as amended);

(b) to take any or any reasonable steps to identify hazards to which the Plaintiff might be exposed when moving one level in the work place to another, contrary to Regulation 3.49 of the Regulations;

(c) to take any or any reasonable steps to identify hazards caused by the alteration to the tanker and/or a change in the way the platform was used caused by the presence of the large water tank on the tanker as pleaded at paragraph 17(b) and 18 above, contrary to Regulation 4.28(1),(2) and (4) of the Regulations;

(d) to take any or any reasonable steps to:

(i) modify, isolate the use of the platform; and/or

(ii) change the physical characteristics of the platform; and/or

(iii) implement, maintain and supervise appropriate control measures; and/or

(iv) failed to ensure that there was sufficient access to and egress from the bund and filling ports from the platform so as to reduce as far as practicable the risk of injury to the Plaintiff; and or

(v) failed to ensure adequate guarding was in place contrary to Regulations 4.28(6) and 4.29(a), (f) and (i) of the Regulations.

(e) to provide a suitable means to prevent the Plaintiff from falling by failing to ensure the platform and access to the bund and filling ports from the platform was fully enclosed, contrary to Regulation 4.53(e) of the Regulations.

PARTICULARS OF NEGLIGENCE OF SECOND DEFENDANT

20C. The Second Defendant was negligent in that it or they:

(a) provided tankers for the operation by the Plaintiff in the knowledge that the tankers were to be used at the First Defendant's premises. The Second Defendant fitted a water tank to the top of the main body of the tanker, the presence of which prevented the working platform from which the plaintiff was required to fill the tank from operating properly. The fitting of the tank thereby exposed the Plaintiff to a foreseeable risk of injury.

(b) The Second Defendant failed to warn the Plaintiff of the risk of injury created by the fitting of the water tank when it knew, or ought to have known, of that risk.

(c) The presence of the water tank on top of the main tank created a foreseeable risk of injury in any event insofar as it made access to the ports generally (and specifically in this instance as set out above) more difficult.

(d) Failed to conduct any or any adequate job safety analysis or loading procedure for the loading of the tanker with the presence of the water tank.

(e) Failed to instruct, induct, train and supervise the Plaintiff on how to load the tanker at the First Defendant's premises with the presence of the water tank without exposing the Plaintiff to a risk of injury.

(g) Failed to, or to adequately induct, instruct and train the Plaintiff on how to identify hazards that may exist as a result of the presence of the water tank.

(h) Failed to advise the First Defendant that it had installed the water tank on the tanker, which made access to the ports by use of the First Defendant's loading platform difficult if not impossible.

PARTICULARS OF BREACH OF STATUTORY DUTY OF SECOND DEFENDANT

20D. Pursuant to the provisions of Section 3 of the Occupational Safety and Health Act (1984), the tanker, bund or filling ports area constituted a workplace and/or plant within the meaning of the Act.

The Second Defendant as a main contractor or a person having control of a workplace and/or plant and access to and egress from a workplace and/or plant, failed:

(a) to provide a safe means of access to the bund or filling ports by reason of the addition on top of the tanker of a water tank which impeded access to the bund or filling ports contrary to Regulation 3.7, 4.29(f) and 4.39 of the Western Australian Occupational Safety and Health Regulations 1996 as amended;

(b) to take any reasonable steps to identify the water tank as a hazard to which the plaintiff would be exposed when moving from one level in the workplace to another contrary to Regulation 3.49 and 4.28(1), (2) and (4) of the Regulations;

(c) generally to recognise the placement of the water tank as a hazard which exposed the plaintiff to a risk of injury when carrying out his normal employment activities;

(d) to remove the water tank from the top of the tanker contrary to Regulation 4.29(a) of the Regulations.

18 Whilst each defendant does not seriously contest that the circumstances were such that each owed a duty of care to the plaintiff, the defendants say there was no breach of such duty. Each further pleaded that the plaintiff's injuries were caused or contributed to by the plaintiff's own negligence.

19 The first defendant alleges that the plaintiff was negligent in that he:

(a) placed himself in a position of peril by stepping off the loading platform to access the top of the tanker when there was an obvious gap between the metal loading platform and bund on the top of the tanker through which the plaintiff could slip and fall;

(b) failed to notify the first defendant, his employer ANT or the second defendant of the inability to completely lower the metal loading platform to the tanker due to the presence of the water tank;

(c) knew or should have known that to access the top of the tanker in such circumstances would expose the plaintiff to a risk of injury by falling;

(d) failed to take reasonable care for his own safety in all the circumstances.

20 The second defendant pleads that the plaintiff's injuries were caused or contributed to by the plaintiff's own negligence in:

(a) not positioning the prime mover or truck he was driving in the optimum position prior to attempting to lower the metal loading platform;

(b) not avoiding or trying to avoid standing on or walking through the Flexi-N residue that was spilt on the surface of the rubber mat positioned on the surface of the metal loading platform;

(c) not removing, or arranging with CSBP, its employees or agents for the removal of, the rubber mat positioned on the surface of the metal loading platform before walking across the metal loading platform;

(d) not removing, or arranging with CSBP, its employees or agents for the removal of, the Flexi-N residue from the surface of the rubber mat positioned on the surface of the metal loading platform before standing on or walking on the rubber mat;

(e) not removing the Flexi-N residue from the soles of his work boots prior to attempting to step off the metal loading platform in order to access the ports on the top of the tanker;

(f) stepping off the metal loading platform to access the top of the tanker when there was an obvious gap between the metal loading platform and the bund on the top of the tanker through which the plaintiff could slip and fall;

(g) not using a fall arrest system or harness before stepping off the metal loading platform to access the top of the tanker when there was an obvious gap between the metal loading platform and the bund on the top of the tanker through which the plaintiff could fall;

(h) not obtaining from ANT or CSBP a fall arrest system or harness for him to use before stepping off the metal loading platform to access the top of the tanker;

(i) failing to inform ANT, CSBP or Chemtrans prior to the alleged accident that the design of the metal loading platform and the location of the water tank prevented (if it did prevent, which is not admitted) the metal loading platform from being lowered to the top of the bund located on the top of the tanker;

(j) exposing himself to a risk of injury by falling when he accessed the top of the tanker in such circumstances;

(k) failing to keep his footing and falling through the gap between the metal loading platform and the bund on the top of the tanker.

21 The second defendant further says that had the plaintiff informed ANT, the first defendant or the second defendant prior to the accident, that the design of the metal loading platform and the location of the water tank prevented the metal loading platform from being lowered to the top of the bund located on the top of the tanker:

(a) the first defendant would have altered the configuration of the metal loading platform; or

(b) the second defendant would have immediately re-positioned the water tank on the tanker so that the metal loading platform could be lowered to the top of the bund located on the top of the tanker.

22 The first and second defendants each seek contribution and/or indemnity from the other to such extent as the plaintiff is successful in his claim.

The evidence

Plaintiff's case

James Henry

23 Born in 1960, the plaintiff has worked as a truck driver for most of his adult life.

24 The plaintiff said that he initially commenced with D & D Transport in 2006 driving a prime mover in a road train configuration towing two ISO tankers carrying Flexi-N fertiliser from the plant at Kwinana.

25 In 2007 the plaintiff commenced employment with ANT. ANT was engaged by the second defendant to provide a prime mover vehicle and driver to tow its tankers. At all material times the second defendant carried on the business of bulk liquid transport.

26 The plaintiff's task was to drive the prime mover to the second defendant's premises, collect the tanker or tankers allocated to him and thereafter attend the first defendant's premises at Kwinana to load with Flexi-N fertiliser for delivery to nominated country locations.

27 The plaintiff said, following an initial induction at the first defendant's premises, he was required to attend with another driver to the loading station where he was then given instruction on how to load the tanker with Flexi-N using the loading platform system.

28 The plaintiff said that when he carried out loading he positioned the tanker under the loading platform by trial and error and, when it was in position, lowered the loading platform onto the bund surrounding the filling port. He said that he noted the identifying mark that the first defendant had painted on the ground under the loading platform and thereafter ensured that the truck was positioned for loading by reference to that marker.

29 The plaintiff said that after the initial induction he did two deliveries under instruction from another driver before being permitted to operate on his own. The plaintiff said that, when initially instructed upon the use of the loading facility, he was using ISO tankers that had a water tank fitted on the rear of the tanker such that it did not impede the operation of the loading platform.

30 Whilst the plaintiff accepted that he undertook Flexi-N induction training at the first defendant's premises on 11 April 2006 (exhibit 4; exhibit 6A), 5 April 2007 (exhibit 6B) and 14 April 2009 (exhibit 6C), the plaintiff says that such inductions only related to a classroom situation with no practical demonstration or instruction being provided to him by the first defendant as to the use and operation of the loading facility.

31 When cross-examined by counsel for the first defendant, the plaintiff agreed that he had told an investigator from the first defendant's insurers that he underwent a 'thorough' induction before he started transporting Flexi-N.

32 The plaintiff said that from time to time he was required to use a number of different tankers, including a belly dumper tanker, to deliver Flexi-N. He said that when using the belly dumper tanker, a handrail on the front of that tanker impeded the lowering of the loading platform such that it could not be fully lowered onto the bund and left a gap of approximately 3 feet between the platform and the top of the tank. The plaintiff said that when using that tanker he adopted the practice of lowering the loading platform to the handrail and then climbing down onto the top of the tanker – presumably using the handrail on the tanker.

33 The plaintiff said that he did not report the problem caused by the location of the handrail to anyone.

34 Seemingly, the belly dumper tanker subsequently went out of service. Thereafter, the plaintiff was assigned to towing the ISO tankers and was able to lower the loading platform onto the bund of each tanker without difficulty.

35 The plaintiff said that one Monday morning he arrived at the second defendant's yard and was informed by Mr Bertoli that he was to tow a pencil tanker (tanker T2709). Tanker T2709 then had a water tank mounted on the top of the tank behind the bund and filling ports.

36 The plaintiff said that on the first occasion he used tanker T2709 he tried to position the truck and tanker to enable the loading platform to be fully lowered onto the bund of the tanker. He said that the water tank prevented the platform being fully lowered onto the bund.

37 The plaintiff said that when the water tank prevented the platform from being lowered fully onto the bund, he was required to raise the loading platform, descend the steps to the truck and move the truck either forward or back into the appropriate location before again attempting to lower the loading platform into position free from interference from the water tank.

38 The plaintiff said that with the assistance of another driver then waiting to load he tried several times to re-position the tanker. He said that he used the truck mirrors to judge his position, however after 5 – 10 minutes he abandoned any further attempts. The plaintiff said that he was unable to position it in a way that would enable the loading platform to be fully lowered onto the bund without being obstructed by the water tank. The plaintiff said that, in the end, he elected to proceed to fill the tanker by lowering the platform as far as the water tank would permit and then stepping down onto the bund. He said that at that time other drivers were then waiting for him to complete loading the tanker.

39 The plaintiff said that, thereafter, whenever he was required to use tanker T2709 he adopted that method and loaded, notwithstanding the platform had not been fully lowered onto the bund of the tanker. The plaintiff loaded tanker T2709 using such a method on approximately 300 occasions during the approximately 18-month period prior to his fall in December 2009.

40 The plaintiff said the only occasion that he had attempted to re-position the tanker to be fully enclosed within the loading platform lowered fully into position was the first occasion that he used that tanker.

41 The plaintiff said that he was aware that the loading platform was intended to provide a safe platform for filling the tankers and that he was required to lower it such that there was no gap.

42 The plaintiff said he was aware that the system was unsafe but 'just did it my way' and did not complain to anybody or alert Mr Bertoli, or the second defendant, of the problem he had encountered with the tanker at the loading facility.

43 In cross-examinationthe plaintiff acknowledged that, notwithstanding that he was required to complete a daily worksheet and report any unsatisfactory aspect encountered in relation to any equipment or the task that was assigned to him, he did not advise the second defendant or his employer of the known danger caused by the water tank interfering with the operation of the loading platform.

44 The plaintiff was then aware that it would be safer if the loading platform had been fully lowered down into position before attempting to fill the tanker.

45 The plaintiff said that he adopted the same system to fill tanker T2709 as he had employed when using the belly dumper tanker and the handrail prevented the loading platform from being lowered such that there was a gap between the edge of the loading platform and the bund on that tanker.

46 The plaintiff said that he preferred to tow tanker T2709 as its weight distribution made it easier to tow.

47 Whilst the plaintiff said that he was aware the first defendant's representatives attended the loading facility from time to time, I did not understand it to be the plaintiff's evidence that employees of either the first or second defendants had been present at any time that he had operated the loading platform to fill tanker T2709 in the manner he had described.

48 The plaintiff said that on 12 December 2009 he arrived at the plant at approximately 8:00 am and proceeded to position the truck and tanker T2709 under the loading platform. The loading platform was then lowered onto the water tank on top of the tanker. He then commenced loading and filled the tanker. He described how the rubber matting on the loading platform and the top of the bund was wet from the liquid that had spilled and the water that had been used to wash off the spillage. He said that when loading was complete, he stepped onto a cross-beam with his left foot and then placed his right foot onto the bund wall, or surround, in preparation to step down onto the bund to disconnect the filling spear and hose.

49 At that time he slipped and fell through the gap between the bund on the tanker and the loading platform onto the ground below.

50 The plaintiff said he went back up the steps onto the loading platform and finished disconnecting the hoses, raised the loading platform and then moved the truck and tanker out of the loading station. He then contacted his employer to inform him of his accident and requested another driver attend to complete the delivery of the loaded tanker.

51 Save for his evidence relating to the extent of his induction and training in relation to the procedures for the loading of Flexi-N, much of the plaintiff's evidence is uncontroversial and accepted by me. I accept his account as to the circumstances of his accident on 9 December 2009 and the procedure that he adopted for filling tanker T2709 when he was required to make deliveries with that tanker. I am further satisfied that at all times the plaintiff was a well-motivated, experienced and seemingly competent truck driver.

Dr Steven Chew

52 Dr Chew is a consulting mechanical safety engineer and trained as a consultant to provide services to the industry on occupational health and safety. He was briefed by the plaintiff to prepare reports in relation to the accident. His reports dated 1 September 2011, 31 December 2014, 12 February 2015 and 29 November 2015 were received into evidence (exhibits 8 – 11).

53 Dr Chew said his initial understanding of the circumstances of the plaintiff's accident was premised on the plaintiff falling through a 650-mm gap after his feet had slipped on the bund.

54 In each of the first three reports Dr Chew assumed that the presence of the water tank on the top of the tanker prevented the loading platform from being lowered onto the bund to provide a safe working platform.

55 Dr Chew considered that in such circumstances the adoption of a fall protection harness or something of that nature would have safeguarded the plaintiff.

56 In his report dated 31 December 2014, Dr Chew observed that the loading platform as used by the first defendant was a standard fall prevention protection system used for filling top-loading liquid road tankers. He further opined (par 20) that if the loading platform could be lowered to encase or surround the bund, it would have enabled a person to get on and off the top of the road tanker and would provide fall-from-height protection to anyone operating the filling ports in the bund on the top of the tanker.

57 Dr Chew said that a risk assessment should have been undertaken by the first defendant and/or the second defendant to identify the presence of any fall-from-height hazards associated with using the loading platform filling system. He further suggested that after identifying any safety risk occurrence, monitoring compliance and adherence to risk control measures by all parties affected by it would be required (page 3, C2a).

58 I pause to note that implicit in Dr Chew's recommendation is the requirement that the self-loading facility would need to be operated and supervised by the first defendant 24 hours a day to ensure that those drivers attending to collect product used the facility correctly.

59 Assuming that tanker T2709 did not fit within the loading platform, Dr Chew, identified four steps that could have been undertaken by the first defendant to safeguard the plaintiff from falling as:

1. communicate to all parties who use the facility, the specification for the top of the tanker - including where the inlets or filler ports are located - to ensure the platform can operate effectively;

2. require all parties who use the facility make the tanker available for inspection;

3. conduct audits of the tankers that use the facility to ensure that it complies with the specification; and

4. prohibit tankers which do not comply with specification from using the facility.

60 To the extent that his first three reports are premised upon an assumption that the loading platform could not be lowered fully over the bund on tanker T2709, Dr Chew's conclusions are factually flawed and of little assistance.

61 When considering and advising in relation to the matter in his report dated 29 November 2015, Dr Chew was then aware that it was possible for the tanker to be positioned such that the loading platform could be fully lowered over the bund.

62 Dr Chew seemingly focused his attention on the difficulty that might be encountered by the driver seeking to position tanker T2709 under the loading platform. Dr Chew opined that the 190 mm space estimated by him was such that the tightness of the opening in the loading platform and the margin of error so small it would not be possible to correctly align the tanker to enable the bund area to be enclosed within the platform. In support of his opinion, Dr Chew referred to measurements and calculations undertaken by him in relation to the theoretical amount of wheel rotation that would be required to manoeuvre a road train with tanker T2709 into position to enable the loading platform to be fully lowered past the water tank.

63 Dr Chew considered that the minor amounts of wheel rotation of the prime mover required and the modest margin of error to correctly position the tanker within the narrow confines of the opening in the platform was such that it would be exceptionally difficult to properly position the tanker to enable the platform to be fully lowered.

64 I pause to note that Dr Chew is not a truck driver. His estimates as to the precision required and his opinion as to the difficulty involved in the task must be qualified to that extent.

65 Dr Chew said that if the water tank could not be relocated, a safe working procedure was required to enable the driver to negotiate the tanker in the positioning process without undue difficulties. Further, the driver should be instructed with reference to that safe work procedure.

66 Dr Chew agreed that if the loading platform was lowered past the water tank and onto or near the bund, the only risk presented to a driver slipping during the filling operation was a fall within the bund surrounds. Significantly, there would be no risk of a driver who lost his footing whilst stepping onto the top of the tanker falling to the ground.

The first defendant's case

Gregory Edward Lister

67 Mr Lister is the fertiliser operations manager for the first defendant. He was involved in the day-to-day management of the loading facility.

68 In 2002, when the fertiliser product Flexi-N was developed, the first defendant constructed a loading platform at the plant to enable the distribution of the product. The loading platform was dedicated to loading Flexi-N liquid fertiliser. Mr Lister said that at that time it was recognised that carriers may have different configurations of tankers and, accordingly, the loading platform was constructed such that it would suit whatever configuration of tanker that was used to transport the product. A second loading facility of the same design was completed in 2007.

69 Mr Lister said that, save for the plaintiff's fall in December 2009, there had been no reported incident of any other person falling from either loading facility whilst loading at the loading stations.

70 Mr Lister said that as the fertiliser was used in grain production and applied at the time of seeding, demand for it was seasonal. During the peak periods additional vehicles would be required to manage the peak loading periods.

71 Mr Lister said that originally only one transport company transported the product but ultimately other carriers, including the second defendant, were invited to transport Flexi-N. The second defendant was the principal carrier for the first defendant's product from 2004.

72 Customers seeking to purchase the first defendant's Flexi-N product were required to use those carriers who have been approved by the first defendant.

73 The process for approval required any transport carrier to attend the first defendant's premises to enable the truck and tanker intended to be used to be audited to ensure the overall configuration was correct, that is to say, compatible with the design of the loading station, that the loading points were in the right position, the water tank correctly positioned and that the equipment was suitable for use at the loading station and to carry the Flexi-N product.

74 Mr Lister said that once a truck had been audited, it would go to the loading station to be loaded and then checked for weight to make sure the distribution of the product over the wheel axles was lawful.

75 Because of the corrosive nature of the Flexi-N, each tanker was required to have a water tank to remove any spilt material.

76 Mr Lister said that every carrier went through the requirements of the vehicle inspection and approval, the site induction and the training specific to carting liquid fertiliser, including the loading station.

77 Further, all drivers who wished to deliver the Flexi-N product were required to undertake site specific induction and training before being permitted access to the first defendant's premises to load the product in an unsupervised manner.

78 The driver induction comprised of two components. Drivers were first required to undertake a classroom induction programme during which they would each receive information and training about the Flexi-N product, how the product was to be managed, the risks associated with the product including how it should be looked after, managed and the use of necessary safety equipment.

79 Drivers were then inducted into the actual loading station with instructions on how the loading station was to be operated. In that process the drivers were given a practical loading demonstration during which they would be taught how to correctly use the loading station including positioning the tanker under the loading platform to ensure that it could be lowered onto the bund of the tanker and how to operate the loading station. The driver was then given the opportunity to practice under supervision.

80 Thereafter, the driver underwent a practical competency assessment of the loading operations and, if satisfactory, was issued with a competency certificate for his site induction card.

81 Mr Lister said that the first defendant did random audit inspections of the tankers and the use of the loading station by drivers transporting Flexi-N to ensure that everything was operating correctly and that the loading facility was being used in the manner that the first defendant had required it to be operated.

82 Mr Lister said that in December 2009, in addition to the second defendant, there were approximately 10 other transport companies carting the first defendant's product using some 16 different truck configurations. Approximately 30 drivers were then engaged in transporting Flexi-N.

83 Mr Lister said that generally the trucks would tow two tankers in a road train configuration.

84 Documents produced by the first defendant record that the plaintiff completed the contractor induction on 11 April 2006 (exhibit 6A) and 5 April 2007 (exhibit 6B) and a competency assessment 'Module 1 - General' induction on 14 April 2009 (exhibit 6C).

85 Mr Lister said that it would be highly improbable the plaintiff would have only attended a general induction in the classroom and not attended an induction on how to load Flexi-N at the loading station. He said that the first defendant's induction programme included showing a driver how to operate the loading station to fill the tanker before a driver was issued with a competency certificate.

86 Mr Lister said that if a driver attended the first defendant's premises driving a different truck to that in which he was originally inducted, that is to say an approved truck but with a different configuration, the driver would not be given a new induction to use that vehicle.

87 I understood Mr Lister to be saying that the focus was seemingly on the driver. If the tanker to be used had been audited and approved by the first defendant as compliant with the specifications of the loading facility, the driver who had been approved to use the loading facility and to handle Flexi-N would be permitted to load such a tanker. In essence, all tankers had a common design loading port and bund that fitted within the specification of the loading platform such that the loading platform could be lowered over the bund to provide a fall-from-height prevention system to all drivers seeking to load the tanker with Flexi-N.

88 Mr Lister was a frank, forthright witness. His evidence is largely uncontroversial and generally consistent with the documents tendered and with the other witnesses whose evidence I accept. I have no hesitation in accepting his evidence.

The second defendant's case

Franko Bertoli

89 At all material times Mr Franko Bertoli was a branch manager and operations manager of the second defendant and experienced in the transportation of dangerous goods.

90 Mr Bertoli said that in May 2005 the second defendant entered into a contract with the first defendant for the transportation of Flexi-N. He described his role as ensuring that the equipment that was utilised complied with the first defendant's requirements.

91 Mr Bertoli said that, initially, the second defendant used ISO containers on a drop-deck trailer. He described the ISO container as a rectangular-shaped metal frame that held a ball-shaped tank. Mr Bertoli said that all new drivers engaged to transport the second defendant's tankers were instructed on the procedures for loading and transporting the product and required to undergo induction with the first defendant at the loading facility.

92 Mr Bertoli described how he initially travelled to the first defendant's plant, examined the loading station and determined the best way in which tankers to be used could be modified so they could be loaded with Flexi-N using the loading platform. He said that, initially, the second defendant used two banana tankers and a tanker previously used for carting caustic soda with ISO tanks.

93 Mr Bertoli said that the road tankers had to be fitted with a rollover cage or bund such that the loading port would not be damaged in the event of a rollover. Further, the first defendant required that each tanker be fitted with a water tank and a means for washing down the tanker, plant and any persons who might come into contact with the product.

94 Mr Bertoli said that tanker T2709 was modified to fit the first defendant's loading platform and cart Flexi-N in early 2006.

95 Mr Bertoli said that he attended the first defendant's loading station and obtained measurements from the site and then made modifications to tanker T2709 to fit a 200-litre water tank on the top near the loading ports.

96 The loading platform had two openings. It was Mr Bertoli's evidence that the tanker was modified to allow the loading platform to be lowered fully down onto the bund with the bund fitting into the first space on the loading platform.

97 Mr Bertoli said he positioned the water tank so that it could fit through the second, or rear, opening in the loading platform. He said that whilst it was a relatively tight fit, the loading platform could be lowered over the loading bund and the water tank if the truck was correctly positioned.

98 Mr Bertoli said that he attended the first defendant's premises after the tanker had been modified and watched it being loaded with Flexi-N for the first time to ensure that the loading platform could be lowered over the loading port without interference from the water tank. At that time the loading platform could be fully lowered over the water tank to sit on the bund such that the driver could step from the loading platform onto the bund to insert the loading spear.

99 Mr Bertoli described how on the first occasion that tanker T2709 was used it was necessary to re-position it a few times until identifying the place where the tanker had to be parked. A marker was then placed on the ground for future reference.

100 Mr Bertoli said that in December 2009 he was initially informed that the plaintiff had fallen whilst loading tanker T2709 as the loading platform could not be lowered into position due to interference from the water tank. Mr Bertoli said that he accepted that what he had been told was correct and immediately directed that the tanker be taken off the road and the water tank re-positioned to the rear of the tanker.

101 Mr Bertoli said he was then informed that the first defendant's loading platform had been altered and then believed that the first defendant had changed the configuration of the loading station such that the loading platform could no longer be lowered over the water tank without informing him.

102 Mr Bertoli said that shortly before the trial in February 2015 he realised the configuration of the loading station was unchanged at the time the plaintiff was injured – that is to say, that it was in the same configuration as it was when tanker T2709 was first modified to cart Flexi-N and used by other drivers.

103 Mr Bertoli was unable to recall when the plaintiff commenced to tow tanker T2709.

104 Mr Bertoli said that he did not instruct the plaintiff or any other driver as to what marker to use to correctly position that tanker within the loading platform at the filling station.

105 Mr Bertoli impressed as a careful, thoughtful witness who was unshaken in cross-examination when recalling the circumstances of the modification of the tankers and ensuring that the tankers used by the second defendant were suitable for use at the first defendant's loading station. He was doing his best to recall what happened and presented as an accurate historian with considerable knowledge of the history of the carting of Flexi-N, the tankers used and the extent to which any were required to be modified. His evidence was largely supported by contemporaneous documents. I have no hesitation in accepting his evidence as a truthful and accurate account in all material aspects.

Alan Coxan

106 Mr Coxan has been employed by the second defendant as a truck driver since September 2003. He said that in 2006 his driving duties included using tanker T2709. At that time the tanker had a water tank on the top to the rear of the bund.

107 Mr Coxan described the process of loading Flexi-N. He said that in the early days there were no markings on the ground to assist with the positioning of the tanker relative to the loading platform. He described the process as being somewhat trial and error.

108 Mr Coxan said that subsequently the first defendant marked a series of numbers on the ground to assist positioning the truck relative to the correct positioning of the tankers under the loading platform. Mr Coxan said that he maintained a note in the truck of the numbered position at which the truck was to be positioned to ensure the particular tanker to be filled was correctly positioned under the loading platform to enable it to be lowered onto the bund.

109 Mr Coxan said that when he was required to use tanker T2709, the water tank was positioned on the top. Mr Coxan described how he positioned the tanker under the loading platform such that the water tank was placed through the second opening on the loading platform and was able to then lower the loading platform fully to the top of the bund to enable him to step onto the bund to load.

110 Mr Coxan said that once he had positioned the tanker correctly, he would lower the loading platform to be close to the top of the tanker at its highest point, approximately one inch from the top of the bund surrounding the filling port. There was no gap between the loading platform and the bund on the tanker.

111 Mr Coxan said that, generally, he managed to position the tanker correctly under the loading platform at the first attempt nine times out of 10.

112 Mr Coxan said that once the loading platform was lowered onto the bund, he would unlock the gate and step down on to the top of the tanker within the bund and commence loading.

113 The second defendant's driver logs (exhibit 18) record that Mr Coxan used tanker T2709 on 32 occasions from 6 June 2006 to 15 September 2007.

114 Mr Coxan said that a banana, or belly tanker that had originally been in service had a handrail that prevented the loading platform being lowered fully onto the top of the tanker and left a gap between the loading platform and the top of the tanker. Mr Coxan said that he informed Mr Bertoli that he considered the gap created by the handrail was dangerous. He said that Mr Bertoli immediately arranged for the handrail to be removed such that the loading platform could then be fully lowered onto the bund of that tanker.

115 Mr Coxan was a careful, considered and truthful witness whose evidence I accept without hesitation. His evidence was largely unchallenged. He presented as a capable, skilful truck driver familiar with the use of tanker T2709 and the proper operation of the first defendant's loading facility.

Andrew Stewart

116 Mr Stewart has been a truck driver with the second defendant for some 19 years. He described how he was given a full site induction by the first defendant in relation to the use and safe handling of the Flexi-N product. He said that after the classroom instruction, he was taken to the loading platform and instructed on the use of the loading platform. Mr Stewart said he was supervised for his first two to three loads on the use of the loading platform.

117 Mr Stewart said that whilst driving for the second defendant, he had been required to use tanker T2709 on a number of occasions.

118 The vehicle logs (exhibit 18) disclose that Mr Stewart used that tanker on 31 occasions during the period 11 June 2006 to 15 August 2007. On 22 August 2009 – some three and a half months prior to the plaintiff's accident – Mr Stewart again used the tanker without incident or any reported difficulty. The water tank was positioned on the top of the tanker on each such occasion.

119 Describing how he loaded tanker T2709, Mr Stewart said it was necessary to make sure it was correctly lined up. Mr Stewart said he positioned the tanker such that the front opening of the loading platform was over the bund and filling port and the water tank positioned to fit within the rear opening of the platform. By positioning the tanker in that way, the water tank did not impede the loading platform being fully lowered onto the bund of the tanker to enable filling to be carried out.

120 Mr Stewart said that he would lower the loading platform such that it was within 20 mm of the coaming rail of the bund and then step into the bund, take the caps off, insert the spear and commence pumping. He described it as 'quite easy' to step from the loading platform onto the bund.

121 Mr Stewart agreed with the proposition that it required 'a degree of exactitude' to correctly position the truck and tanker before the loading platform could be lowered fully. He said he was initially given some assistance by another person to correctly position the truck and tanker before he was able to fully lower the loading platform into place. He was unable to recall whether it was Mr Bertoli or another driver who assisted him on the first occasion that the tanker was used. Mr Stewart said on that occasion, after positioning the tanker, he put a paint line on the ground to mark where the axles were aligned to position the tanker under the loading platform. He always used the same loading station and positioned the tanker by reference to the mark thereafter. He said that the place where the prime mover towing the tanker was stopped would vary depending upon which prime mover was being used.

122 Mr Stewart said that, as a driver, if the loading platform did not fully come down over the bund you would ask the question: 'Why is it not fitting properly?'.

123 Mr Stewart presented as a thoughtful and careful witness whose evidence was largely uncontroversial. I accept it without hesitation. Mr Stewart impressed as a capable, skilful truck driver familiar with the use of tanker T2709 and the proper operation of the first defendant's loading facility.

Documentary evidence

124 Photographs of the loading station with the truck in situ were tendered (exhibits 1.1 - 1.17).

125 The plaintiff's accident was investigated by the defendants and a report prepared. The report, together with a PowerPoint presentation, was tendered as part of the plaintiff's case (exhibits 2.1, 2.2). The report was premised on the assumption that the water tank on the top of tanker T2709 prevented the loading platform from being fully lowered so as to provide a safe area from which the driver could go onto the bund and commence filling. Such an assumption was wrong. It follows that the report is factually flawed and any conclusions should not be relied on.

126 Copies of the first defendant's Flexi-N Carting Accreditation Course synopsis (exhibit 13) and Flexi-N Basis Induction Guide (exhibit 14) were tendered by the first defendant.

127 Whilst the Flexi-N Carting Accreditation Course synopsis (exhibit 13) reflected the program for 2010 and the Flexi-N Basis Induction Guide (exhibit 14) disclosed a date of 9 December 2013, Mr Lister said that the course had not varied and the procedures as reflected in those documents were substantially unchanged since the facility opened in 2002. I accept that evidence.

128 The Flexi-N Carting Accreditation Course synopsis (exhibit 13) provides instruction on the product and how it is to be handled, together with considerable instruction on the use of the loading facility, including the raising and lowering of the loading platform with illustrations of the platform being in place around the bund of the tanker. The synopsis further provided that the driver was to undergo testing of his or her competency by way of a written examination/questionnaire and a practical loading test.

129 On the cover of the Flexi-N Basis Induction Guide (exhibit 14) in bold, underlined print are the words 'Persons are advised that no person is permitted on the first defendant's site without a site induction and further that no vehicle intended for the transportation of liquids is allowed on site without inspection'. In particular, instruction is given that any new tankers intended to be used or any which have been modified must be inspected and passed by the first defendant's engineering department before they are used to cart Flexi-N. All trucks are required to be audited by the first defendant to ensure they are suited to the loading station prior to use.

Findings

130 There is little controversy between the plaintiff and the other witnesses save as to the extent to which the plaintiff received instruction on the correct use of the first defendant's Flexi-N loading facility.

131 On the evidence accepted by me I find as follows.

132 The plaintiff was an experienced, competent truck driver and was seemingly recognised and accepted as such by his employer ANT and by the first and second defendants.

133 I accept the evidence of Mr Coxan, Mr Stewart and Mr Bertoli that tanker T2709, as configured with the water tank on top, fitted within the specifications of the first defendants loading platform. When the tanker was in position within the loading station, the safe loading platform could be fully lowered onto the bund – the water tank mounted on the top of the tanker being accommodated in the rear opening of the platform.

134 I am satisfied, and find, that when the loading platform had been lowered onto the bund, the gap between the surface of the loading platform and the bund was insignificant such that the driver could step from the loading platform onto the bund and complete the loading process without risk of falling.

135 Any driver losing his or her footing or slipping during the filling process would land on the decking of loading platform and be prevented from falling to the ground.

136 I am further satisfied that, notwithstanding that it required a 'bit of exactitude', an experienced driver could correctly position tanker T2709 under the loading platform with little difficulty.

137 Mr Stewart seemingly had little difficulty with the task once he had identified the place where the axles of the prime mover he was then driving were to be positioned to ensure that the bund and water tank on tanker T2709 was directly beneath the front and rear openings of the loading platform respectively. Mr Coxan was also able to correctly position the tanker at the first attempt '9 times out of 10' by reference to the painted marks on the ground. Each was seemingly unconcerned about the percentage of wheel rotation that was required each time they were required to position tanker T2709 for loading.

138 I am not persuaded that the opinion evidence of Dr Chew in relation to the mechanism of driving a truck and positioning the tanker, with reference to the measurement of percentage of wheel rotation formulae, accurately expressed the difficulty of the task at hand. In truth, experienced, competent drivers were able to correctly position the tanker beneath the loading platform with relative ease, notwithstanding the theoretical difficulties identified by Dr Chew.

139 Given that the tanker had previously been driven by others, it is surprising that the plaintiff did not seek to speak to other drivers or Mr Bertoli of the problems he encountered – particularly when he considered it to be unsafe.

140 I am satisfied, and find, that the plaintiff was at all times aware that all tankers used to cart Flexi-N, including tanker T2709, had to be inspected by the first defendant and approved as compliant with the specifications of the loading station before being permitted to load. In such circumstances it would have been apparent to the plaintiff that, if he was unable to position the tanker such the loading platform could be lowered onto the bund, he was doing something wrong and should seek assistance. As Mr Stewart put it, you would ask yourself 'Why doesn't it fit?'.

141 I accept the evidence of Mr Lister in relation to the procedure implemented, and required, by the first defendant for all carriers and drivers carting the first defendant's product.

142 I find that all tankers carting Flexi-N from the first defendant's premises were first audited by the first defendant to ensure that they were suitable for use at the filling station and were compliant with the loading platform design requirements. Further, the first defendant required its customers to use an approved carrier, that is to say, a carrier whose equipment had been audited and approved by the first defendant.

143 The Flexi-N loading station had operated safely and efficiently without incident since 2002. An adjoining identical loading station was built, and has been operated, by the first defendant since 2007. Both loading stations operated 24 hours a day.

144 All drivers were required to undertake a general induction, and a specific Flexi-N induction, with the first defendant before being permitted to access and load at the loading station. During that induction all drivers were informed of the requirements that all new tankers or any modified tanker were not permitted to be loaded without first being inspected and approved by the first defendant's engineering department as compliant with the specifications of the loading facility.

145 In 2006 the standard specific Flexi-N induction consisted of a classroom introduction to Flexi-N, followed immediately by a representative of the first defendant instructing drivers on the loading station operations. Such instructions included a supervised practical demonstration of how the loading platform was to be operated. The driver was then required to undertake a supervised loading of the tanker and supervised on two subsequent loadings of Flexi-N before being accredited to use the loading facility unsupervised.

146 The proper operation of the loading station required several specific steps to be completed. It includes positioning the tanker, lowering the loading platform, inserting an anti-foaming spear into the tanker, turning on the flow of the Flexi-N product, filling the tanker with the required quantity to be delivered, removing the spear when the required quantity of product was loaded, raising the loading platform and then taking the tanker to the weighbridge to be weighed.

147 I am satisfied that without some specific instruction it would not be possible for an uninitiated driver to gain access to or to operate the loading facility successfully.

148 It is improbable that an untrained driver could successfully operate the facility without first receiving some practical instruction on its operating procedures including the raising and lowering of the loading platform, the insertion of the spear and the pumping of the Flexi-N.

149 Further, given that the loading facility was fundamental to the distribution of the first defendant's product, was used by all other carriers and operated on a 24-hour per day basis, it is improbable that the first defendant would permit the operation of such a facility to be jeopardised by permitting persons untrained in its operation to load from it.

150 At all times the plaintiff had loaded other tankers, including the ISO tankers, with Flexi-N at the loading station by positioning the tanker such that the loading platform could be lowered fully onto the bund before he stepped onto the top of the tanker and commenced loading.

151 I am satisfied, and find, that the plaintiff undertook the Flexi-N induction with the first defendant in April 2006 and that as part of that induction process the plaintiff was instructed on the proper operation of the loading station, including the requirement to ensure that the loading platform was lowered onto the bund before he stepped onto the bund to commence loading.

152 I am satisfied that the plaintiff was instructed on the proper operation of the loading platform, including lowering the loading platform, so that it enclosed the bund on the tanker he was loading so that it was safe for him to move onto the bund to complete loading of Flexi-N.

153 I am further satisfied that the plaintiff was aware that tanker T2709 was capable of, and required to be, being positioned such that it was enclosed by the fully lowered loading platform before he sought to access the top of the loading bund on the tanker.

154 It is against the balance of probabilities that the plaintiff only did the theoretical aspect of the specific Flexi-N induction and was not then given practical instruction on how the loading station operated.

155 If the plaintiff then believed that the proper loading operation was to simply lower the loading platform as far as was reasonably possible, regardless of the gap created, and thereby make it dangerous to step onto the top of the bund, it is improbable that he would have sought to re-position tanker T2709 to enable it to do so.

156 When the plaintiff tried to re-position tanker T2709 on the first occasion that he used it, he then knew that:

(i) Tanker T2709 had been approved by the first defendant to carry Flexi-N and was compliant with the specification of the loading platform.

(ii) Lowering the loading platform onto the bund was required to secure him from the risk of falling to the ground during the loading process.

(iii) The loading platform could not be lowered as the tanker had not been correctly positioned by him under the loading platform.

157 The first defendant had placed markers on the ground at the loading station to guide drivers to the correct position of their respective vehicles under the loading station.

158 I pause to note that it is probable that if ANT was to require the plaintiff or any other driver to use a different prime mover to tow tanker T2709 or to tow a different configuration of tankers from time to time, the marker used by the driver to position the tanker may vary on such occasions. It was a matter for each driver to assess positioning the tanker then being used by him or her in the loading station to enable the loading platform to be lowered onto the bund.

159 As noted by Dr Chew, the loading platform was a standard fall prevention protection device in common use with all top loading tankers. If properly used, there is no risk of a driver falling through a gap between the loading platform and the bund.

160 It is a measure of its success that, save for the plaintiff, there has been no other reported fall or injury suffered by a driver whilst loading Flexi-N at the first defendant's premises since the facility was first established in 2002. The adjoining identical facility that was constructed and operated by the first defendant since 2007 has enjoyed a similar incident-free history.161 Tanker T2709 was audited and approved by the first defendant as being compliant with the specifications of the loading station.

162 At all material timestheplaintiff was aware that the loading platform was required to be fully lowered onto the bund to ensure that the loading of Flexi-N could be carried out without risk of falling. He was further aware that if the platform was not fully lowered, there would be a large gap created between the edge of the bund and the loading platform with a risk that, if he slipped, he would fall to the ground.

163 Notwithstanding that the plaintiff was aware of the risk to his safely as a result of proceeding to load tanker T2709 without first ensuring that the tanker was positioned such that the loading platform was fully lowered onto the bund, the plaintiff adopted such a practice for 18 months without informing the second defendant of such a fact.

164 The plaintiff was an experienced driver who preferred to use tanker T2709 as it was easier to haul than some of the other tankers within the fleet. Further, the plaintiff preferred to load the tanker at night when the loading facility was quiet and to avoid traffic delays.

165 Given that all drivers, including the plaintiff, were properly instructed on the proper use of the loading platform, it is unreasonable to require the first defendant thereafter to supervise the loading practices of experienced, trained drivers to safeguard them from the risk of falling from the top of the tanker during loading.

166 The first or second defendants were not the plaintiff's employer. The plaintiff was employed by an independent contractor, ANT, to drive a vehicle and tow the second defendant's tankers to cart Flex-N.

167 The first and second defendants were each entitled to rely on the fact that the plaintiff was an experienced driver who had been inducted, trained and accredited to use the loading facility and was capable of performing such a task without supervision and instruction to ensure that he drove the tanker properly.

168 I accept the evidence of Mr Lister, that the first defendant did random audits of the tankers and the use of the loading station by drivers transporting Flexi-N.

169 It is entirely possible that the plaintiff was in fact observed during loading. If that inspection occurred whilst the plaintiff was using a tanker other than tanker T2709, nothing untoward would have been observed. The plaintiff always lowered the loading platform onto the bund when loading ISO tankers. Further, on occasions, an ISO tanker would be part of the road train configuration driven by the plaintiff together with tanker T2709.

170 Whilst the plaintiff's method of filling tanker T2709 without properly positioning it within the specifications of the loading platform was seemingly not observed by others at any time, I am not satisfied that such a circumstance was attributable to any unreasonable conduct on the part of the first defendant.

171 The first defendant had taken each of the steps identified by Dr Chew in relation to the examination and approval of the equipment to ensure that it was within specifications and had conducted comprehensive training of each driver in the use of the facility before permitting unsupervised access to the loading station.

172 Given that the facility operated on a 24-hour basis, to impose on the first defendant the obligation to supervise all loading by experienced, trained drivers would be unreasonable.

173 Further, each of the defendants were entitled to assume that the plaintiff as an experienced driver, supplied with the prime mover to tow the second defendant's tankers, having been inducted and trained on the proper use of the loading facility and not reporting any difficulties in the tasks allocated to him, at any time was capable of performing such task without supervision and instruction.

Plaintiff's claim against first defendant

174 The claim against the first defendant is pleaded in negligence, breach of the Occupiers' Liability Act 1985 and breach of the Occupational Safety and Health Act and regulations.

175 The plaintiff says that the manner in which all tankers were to be loaded with the first defendant's product at its loading facility was within the exclusive control of the first defendant. No tanker was permitted to be used to load and cart the first defendant's product unless it had been inspected by the first defendant and considered suitable for loading at the first defendant's loading station.

176 The plaintiff says that, by reason of its exclusive control over access to its loading facility, the first defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of harm to the plaintiff as a driver of a tanker to be filled at the loading facility. The first defendant does not cavil with that proposition.

177 The first defendant says that any duty is owed pursuant to the provisions of the Civil Liability Act 2002 and any question of breach of duty falls to be determined pursuant to s 5B of that Act.

178 Whether the allegations of breach are framed in negligence, occupier's liability or under the Occupational Safety and Health Act and regulations, matters little. In real terms, the factual allegations are the same.

179 Further, the Occupational Safety and Health Act and regulations do not place a more onerous burden on a defendant in respect of a plaintiff than at common law: Leighton Contractors Pty Ltd v Fox [2009] HCA 35 [49]. The first and second defendants are not the plaintiff's employer. Any duty was based on reasonable foreseeability.

180 The obligation is to take reasonable care to avoid a foreseeable risk of harm occurring to the plaintiff.

181 In Department of Housing and Works v Smith [No 2][2010] WASCA 25, relevantly at [87], Buss JA said:

In my opinion, some well established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence, remain relevant in considering cases of alleged breach of duty by an occupier or lessor. First, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have of done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is unreasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.

182 Any assessment of a breach of duty must be made prior to the event, that is to say, without the benefit of hindsight: Vairy v Wyong Shire Council(2005) HCA 62 (Hayne J); Roads and Traffic Authority of New South Wales v Dederer(2007) HCA 42, 65 – 68 (Gummow J); (2007) 234 CLR 330 [18] (Gummow J); Department of Housing and Works v Smith [No 2][2010] WASCA 25 [87], Buss JA.

183 The critical issue for consideration is the measure of the response required by the first and second defendants in respect of any duty that they might have owed to the plaintiff.

184 That inquiry depends on correctly identifying the risk of harm complained of: Roads and Traffic Authority (NSW) v Dederer[18].

185 The risk to which the plaintiff was exposed when seeking to load the tanker when the loading platform had not been fully lowered onto the bund was that he would fall through the gap that was created between the edge of the platform and the top of the tanker during the loading operation. If the loading platform was not, or could not be, positioned so as to provide a safe working platform, that is to say, a safe means of access onto the top of the tanker during the filling process, there was a risk that a driver seeking to step onto the bund may fall through the gap to the ground and be injured.

186 I am satisfied on the evidence, and find, that the first defendant did not breach that duty because it had no reason to suspect that an appropriately trained employee of a subcontractor would ignore his training and willingly expose himself to a risk of injury. Any fault lies with the plaintiff and/or his employer.

187 Further, given the plaintiff's willingness to accept the risk over a protracted period of time, I am satisfied that liability should not be imposed on the first defendant based on it failing to become aware of the plaintiff's flouting of its safe system of work. Any risk to which the plaintiff was exposed was one he was willing to hazard such that no warning was required: Wallace v Kam[2013] HCA 19 [37].

188 Turning to the case pleaded against the first defendant, I find as follows.

189 As to the claim pleaded in negligence and particularised in par 20 of the plaintiff's statement of claim, I find as follows:

A. Failed to provide the Plaintiff with warnings in relation to the danger of falling

The plaintiff was aware of the purpose of the platform, namely, to provide the truck driver with a safe platform to work on, and that it was to be lowered down so that there were no gaps. He was aware that, in the manner in which he used the platform with a 3-foot gap, he could fall through it. No further warning was required.

B. Failed to warn the Plaintiff of the danger of slipping associated with the Flexi-N

The Flexi-N did not cause the plaintiff to suffer the fall. The plaintiff's evidence was that having the material on his footwear did not affect his ability to walk on the loading station. Had the platform been fully lowered, the plaintiff would not have been exposed to the risk of falling as he did. At its highest, the risk presented by the presence of Flexi-N on the loading platform was known and obvious. It would not have resulted in any significant exposure to injury had the platform been properly lowered.

C. Failed to develop a system to ensure road trains being used at loading station 22 did not have water tanks on them which would prevent the metal loading platform from lowering

The platform was able to be fully lowered into a safe position on tanker T2709. Further, all tankers were required to be inspected and approved by the first defendant prior to being granted access to the loading facility.

D. Failed to have an adequate storage system for the spear to prevent Flexi-N dripping

The location of the spear was not relevant to the plaintiff's fall and injury.

E. Failed to adapt its working platform to accommodate the Second Defendant's modified tankers

The loading platform was designed to accommodate a variety of tankers being used to transport Flexi-N. It was of standard design and, as noted by Dr Chew, provided a safe loading platform if it was lowered into position. The first defendant conducted an audit of each tanker that was to be loaded, including tanker T2709, to ensure that it was capable of being loaded with the platform in the correct position. The presence of the water tank on the top made positioning difficult but not such that it could not be undertaken by an experienced, trained driver. The plaintiff was an experienced driver and trained in the proper use of the platform. The plaintiff did not report to either the first or second defendant any difficulty in operating the loading platform.

I am satisfied that the first defendant did all that was reasonably required of it to address the foreseeable risk of harm to the plaintiff.

F. In circumstances where there was a gap … the Defendant failed to ensure the trailer loading Flexi-N had non slip surfaces

As tanker T2709 fitted the facility, no gap was created. The absence of non–slip surfaces was of no moment.

G. Failed to ensure the road train was compatible with the metal loading station

For the reasons in (e) above, no breach is established.

H. Failed to ensure that metal loading station 22 had been inspected and all necessary changes implemented to ensure there were no unacceptable fall risks

The loading station was constructed so as to fit whatever configuration of tanker was required to use it.

As noted by Dr Chew, the design of the loading platform was a standard fall prevention protection system used for filling top-loading liquid road tankers. Further, the construction of the gantry and platform enabled a person to get on and off the top of a tanker and provided fall-from-height protection to that person whilst working on the top of the road tanker. All tankers were inspected to ensure that they conformed with the specifications of the loading facility before being permitted to load Flexi-N.

I. Failed to conduct any or any adequate inspection of the loading platforms and/or the tankers to ensure the Plaintiff was able to load and/or was loading the tanker in a manner that did not expose the Plaintiff to a risk of injury

The duty on the part of the first defendant was to take reasonable care. Inspection of the loading platform and tankers were conducted and each tanker audited for compliance and suitability before being permitted to be loaded with Flexi-N. Inspection of tanker T2709 would have disclosed that the driver was able to load the tanker in a safe manner because the tanker fitted. It had been so used by Mr Coxan and Mr Stewart for a considerable time before the plaintiff commenced towing it without any difficulty.

The first defendant had required the plaintiff to undergo induction and supervised instruction on the use of the loading platform to load Flexi-N. Thereafter, the plaintiff had been performing the work of carting Flexi-N for many years and had used tanker T2709 without complaint more than 300 times.

The first defendant had a procedure in place whereby all tankers and their configurations were audited and checked prior to permitting them to be used with Flexi-N. It also had a system of random checks at the loading station. The loading system was, in real terms, a 24-hour facility and the plaintiff's usual course was to load after hours as there was less traffic on the roads.

Having regard to the fact that the system had been in operation since 2002, the period of time that tanker T2709 had been in use without any complaint as to its suitability to load at the facility, I am satisfied that the system adopted and enforced by the first defendant's system was reasonable and appropriate.

J. Failed to, or to adequately induct, instruct, train and supervise the Plaintiff on how to load the tanker in a manner that did not expose the Plaintiff to a risk of injury

The plaintiff was aware of the purpose of the platform and how it should be used, and had used it, appropriately throughout his previous employment when using other tankers.

The plaintiff had been fully inducted and trained on the safe use of the loading platform and was aware of how it was to be operated to ensure his safety from falling during loading.

K. Failed to, or to adequately induct, instruct and train the Plaintiff on how to identify hazards that may exist as a result of the operation of the loading platform

The plaintiff acknowledged that he recognised there was a risk he could fall through the 3-foot gap if the platform was not fully lowered by him. He was aware of the risk of falling. Further, he had been fully instructed as to the use of the platform that would eliminate such risk.

L. Failed to conduct a job safety analysis and/or adequate loading procedures for new or modified tankers used at the loading station

All tankers were audited by the first defendant before being permitted to use the loading station. As noted above, tanker T2709 fitted the loading platform and had been inspected by Mr Bertoli, either on the first trip or one or two subsequent trips, to ensure that it fitted and was approved for use by the first defendant after inspection.

190 As to the claim pleaded in par 20A of the statement of claim, the duty owed by the first defendant as the occupier of the loading facility was to take reasonable care to ensure that the plaintiff would not suffer injury by reason of any such danger due to the state of that facility or any activity being undertaken thereon: Shire of Manjimup v Cheetham[2010] WASCA 225 [23].

191 I am satisfied that there was nothing about the state of the premises which was dangerous. This was a self-service loading facility that was used 24 hours per day. The only identified risk to which the plaintiff was exposed was that of falling from the loading platform during loading.

192 The plaintiff was instructed in relation to the safe use of the loading platform and the requirement for the tanker to be so positioned such that the loading platform could be lowered onto the top of the bund and thereby provide a secure platform from which a driver could safely access the top of the tanker without the risk of falling to the ground.

193 I am satisfied that the first defendant did all that was reasonably required of it to ensure that the plaintiff was safeguarded from any foreseeable risk of injury from falling from the top of the tanker during the loading operation.

194 In par 20B of the statement of claim the plaintiff pleads a claim based on the Occupational Safety and Health Act.

195 In real terms, the factual allegations are the same as the negligence claim but are sought to be proffered as though the regulations referred to require some form of higher obligation.

196 I do not accept that proposition. As noted above, the Act and regulations do not impose any greater obligation on the first defendant than does the common law. The duty of care is to be discharged by the exercise of reasonable care. The Act and regulations do not impose a more stringent or onerous burden.

197 In the present case, the plaintiff had been properly trained but chose to carry out the work in direct contravention of that training and in the knowledge of the significant risk posed.

198 The first defendant had a duty based on reasonable foreseeability.

199 The first defendant did not breach that duty because it had no reason to suspect that an appropriately trained employee of a subcontractor would ignore his training and willingly expose himself to a risk of injury. Any fault lies with the plaintiff and/or his employer.

200 I am satisfied that the first defendant did not breach the duty of care owed to the plaintiff. The first defendant did all that was required of it to address any foreseeable risk of injury to the plaintiff from his attendance at, and loading tanker T2709 at, the loading platform.

201 It follows that the plaintiff's claim against the first defendant must be dismissed.

The plaintiff's claim against the second defendant

202 The plaintiff's claim against the second defendant is framed in terms of owing a duty to provide a tanker that, in its use, would not expose the plaintiff to an unreasonable risk of harm: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 390, that is to say, a reasonable foreseeable risk of injury in the use of its equipment by others when it knew, or ought to have known, how such equipment was to be used by others.

203 The plaintiff says the second defendant had a duty to ensure that the tanker provided to him to tow could be safely loaded using the loading platform.

204 In respect of the claim founded in breach of statutory duty, the plaintiff says that pursuant to the Occupational Safety and Health Regulations, the second defendant owed a duty to the plaintiff to provide reasonable, safe access to, and egress from, the workplace and reasonable, safe use of plant supplied to the plaintiff to avoid a foreseeable risk of harm.

205 I am satisfied on the evidence that tanker T2709 was so modified to have a water tank fitted to the top that ensured it could fit within the loading platform to provide a safe loading platform for the driver filling the tanker. Mr Bertoli checked that it could fit such as to allow the loading platform to be lowered over the bund without interference from the tank.

206 That Mr Coxan and Mr Stewart were able to thereafter fill the tanker with the loading platform in the lowered position, demonstrates that it was reasonable and possible.

207 Turning to the particulars of negligence pleaded against the second defendant in par 20C of his statement of claim, I find as follows:

A. Exposing the plaintiff to risk of injury insofar as it provided a tanker with water tank fitted that prevented the loading platform from which the plaintiff was required to fill the tank from operating properly

I am satisfied on the evidence that the water tank did not impede the operation of the loading platform if the tanker was correctly positioned by the driver.

The plaintiff was not exposed to risk insofar as he had been properly instructed on the correct use of the loading platform.

Further, given the plaintiff willingly accepted the known risk without giving notice thereof to the second defendant, any risk to which the plaintiff was exposed was such that no warning was required.

B. Failed to warn the plaintiff of risk of injury created by the fitting of the water tank

The fitting of the water tank did not create a foreseeable risk of injury.

The loading platform could be lowered to provide a safe working platform to access the filling ports of the tanker if the tanker was correctly positioned.

C. The presence of the water tank on top of the main tank created a foreseeable risk of injury

Provided the plaintiff positioned the tanker under the loading platform as he had been instructed so to do, the presence of the water tank did not create a risk of injury. Tanker T2709 fitted under the loading platform which, when lowered into position, provided a fall prevention protection platform from which the plaintiff could safely access the filling ports on the tanker. There was no foreseeable risk of injury if that procedure was adopted.

D. Failed to conduct a job safety analysis and/or adequate loading procedures for the tankers with the presence of the water tank

All tankers were audited by the first defendant before being allowed to be loaded with Flexi-N at the loading station. As noted above, tanker T2709 fitted the loading platform. It had been inspected by Mr Bertoli to ensure that it fitted the specification and was approved for use by the first defendant. The tanker did satisfy the requirements requested of it.

E. Failed to instruct, induct, train and supervise the plaintiff on how to load the tanker at the first defendant's premises with the presence of the water tank without exposing the plaintiff to a risk of injury

The plaintiff was an experienced driver employed by ANT to drive the prime mover and tow tankers for other parties, including the second defendant. The second defendant was not the plaintiff's employer.

It did not owe the plaintiff a duty to instruct on the manner of performance of his duty. The plaintiff was presented to the second defendant by his employer, ANT, as an experienced, competent driver.

Further, the plaintiff had received induction training on the correct use of the loading platform. The tanker was able to be loaded with the loading platform providing a safe working platform from which to access to the top of the tanker. The plaintiff did not inform anyone whatsoever of any difficulty encountered by him in loading tanker T2709. Indeed, the plaintiff expressed a preference to using that tanker.

In such circumstances the second defendant had no reason to suspect that the plaintiff would seek to load tanker T2709 without the loading platform being fully lowered to provide a safe work area in the same manner as other drivers had previously done.

The second defendant was entitled to assume that, in the absence of any complaint by the plaintiff, that the plaintiff experienced no difficulty using tanker T2709 to transport Flexi-N as required. It was not for the second defendant to instruct the driver of a subcontractor on how he was to drive his vehicle.

Further, the plaintiff was at all material times aware of, and accepted, the risk to which he was exposed such that no warning or instruction was required.

F. Failed to, or to adequately induct, instruct and train the plaintiff on how to identify hazards that may exist as a result of the presence of the water tank

Subject to the tanker being properly positioned, no hazard was created. The plaintiff was inducted and trained as to the proper use of the loading platform and the need to ensure that the tanker was positioned such as to enable the loading platform to be fully lowered before seeking to access the bund.

Further, the plaintiff was aware that to attempt to access the loading port on the tanker when the loading platform had not been fully lowered was hazardous and that there was a risk that he could fall through the gap thereby created. Any risk to which the plaintiff was exposed was one he was willing to hazard such that further warning or instruction was required:Wallace v Kam[2013] HCA 19 [37].

G. Failed to advise the first defendant that it had installed the water tank on the tanker, which made access to the ports by use of the first defendant's loading platform difficult, if not impossible

The tanker was approved for use at the first defendant's premises insofar as it was compliant with the loading facility requirements. When tanker T2709 was correctly positioned under the loading platform by the driver, it could by filled with the loading platform providing a safe working platform from which the driver could access the filling port. To advise the first defendant that the tanker was compliant with the tank fitted would not in any way impact upon the plaintiff's capacity to load the tanker safely using the loading platform. No breach of duty is established.

208 The plaintiff further pleads that the second defendant breached its statutory duty and, in particular, the Occupational Safety and Health Act, on the basis that either the vehicle, or the bund, or the filling port area is a workplace by definition of s 3 of that Act.

209 The plaintiff maintains that the second defendant, as a main contractor, was a person having control of a workplace and access to, and egress from, a workplace.

210 Assuming without deciding that the tanker was in fact a workplace, which is doubtful, the second defendant did not have control of the workplace whilst the tanker was in the possession of the plaintiff and his employer.

211 The question of whether the second defendant was a party in control of access to the workplace needs to be looked at in the context of it having access to, or control over, the workplace.

212 Once the transport was taking place, it was ANT and the driver, in this case the plaintiff, not the second defendant that had control of access to the workplace when the vehicle was in the possession of ANT for the purpose of transport.

213 In any event, even assuming that it could be said that the second defendant was in control of the tanker and filling bund as a workplace, I am satisfied that Mr Bertoli, on behalf of the second defendant, by ensuring that the positioning of the water tank was compatible with the loading platform, satisfied any requirement for safe access to the workplace. As observed by Dr Chew, the first defendants loading facility was a standard fall protection system used for filling top loading liquid tankers.

214 In the circumstances as I find them to be, the plaintiff's claim against the second defendant must also be dismissed.

Contributory negligence

215 In the light of my findings no issue of contributory negligence arises. I consider the plaintiff to be wholly responsible for any injury suffered by him.

Contribution proceedings

216 In the light of my findings in respect to the plaintiff's claim, the resolution of the contribution proceedings pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 between the first and second defendants and their respective claims fall away.

217 Whilst first defendant's contractual claim in the contribution proceedings against the second defendant for indemnity is seemingly otiose, lest I am in error in my determination on the plaintiff’s action, I make the following findings.

218 It was common ground that the relevant relationship between the first and second defendants was subject to the provisions of a written contract dated 10 May 2005 (exhibit 19). Pursuant to that agreement, the second defendant agreed to provide services for the transportation of Flexi-N from the first defendant's Kwinana works subject to the terms and conditions contained therein.

219 Notwithstanding that the pleaded agreement was expressed to be for a two-year period from 1 October 2004 to 30 September 2006, it is accepted the by the parties that such agreement was extended from time to time upon the same terms and conditions and remained in force in December 2009.

220 Relevantly the agreement contains the following terms:

16. Insurance

16.1 HBL shall at all times keep in force during the continuance of the Agreement:

(a) A worker's compensation policy in respect of the persons engaged by HBL in the performance of the Transportation Services which policy shall comply with all applicable laws and shall cover common law liability for a limit of liability of not less than fifty million dollars ($50,000,000) for any one person or number of persons arising out of any one event. Such insurance shall include the interest of CSBP as the Principal.

(b) A policy of insurance in the joint names of HBL and CSBP for their respective rights and interests against all third party risks, including public liability and property damage, with respective rights and interests against all third party risks, including public liability and property damage, with respect to the performance of the Transportation Services. The limit of liability shall be not less than $10 million for any one event.

(c) A policy of motor Vehicle comprehensive insurance in respect of all mechanically propelled Vehicles used by HBL at any time in the performance of the Transportation Services. The limit of liability shall be not less than $10 million for any one event.

16.2 HBL shall ensure that all sub-contractors are protected by similar insurances as referred to in this clause 16.

16.3 Upon request from CSBP, HBL shall provide to CSBP:

(a) copies of the policies of insurance effected by HBL under clause 16.1 and certificates of currency in respect of such policies of insurance, and

(b) a signed declaration verifying that HBL has confirmed that sub-contractors used in performance of the Transport Services have in place insurance policies providing cover similar to that which is required of HBL under clause 16.1, or

(c) certificates of currency or verification form [sic] HBL's insurer or insurance broker confirming that HBL's insurance policies are endorsed to cover sub-contractors.

17. Indemnities

HBL will be liable for, and will indemnify and keep indemnified CSBP and CSBP's directors, employees, agents and contractors against:

(a) loss or damage to property of CSBP, including without limitation loss of the Product;

(b) claims by any person against CSBP or CSBP's directors, employees, agents or contractors in respect of loss of or damage to any property;

(c) claims by any person against CSBP or CSBP's directors, employees, agents or contractors in respect of personal injury, disease, illness or death; and

(d) any other liability, loss or damage and any claims, actions, suits, demands, expenses or proceedings of whatever nature in respect of breach of contract, breach of any warranties or representations, breach of a statutory duty, professional negligence or other error or omission,

arising out of, or in connection with, HBL carrying out the Transportation Services, but HBL's liability to indemnify CSBP will be reduced in proportion to the extent that such claims, damages or losses are due to the negligence, breach of duty or breach of statute by CSBP or CSBP's directors, employees, agents or contractors.

221 The first defendant says that, pursuant to cl 16, the second defendant was required to have in place a public liability insurance policy for the benefit of the first defendant that would indemnify the first defendant against all third party risks in respect of any liability it may have to the plaintiff as is claimed by the plaintiff in the principal action and the reasonable costs of defending such action.

222 The first defendant says that in breach of the agreement the second defendant has failed to effect public liability insurance in accordance with its terms. The first defendant seeks damages from the second defendant for breach of the insurance obligation being judgment for an amount equivalent to any damages and costs that the first defendant may be found liable to pay to the plaintiff including its reasonable costs of defending the plaintiff's action.

223 By its defence the second defendant admits that it was required to keep a policy of insurance in the joint names of the first and second defendants but says that pursuant to cl 17 of the agreement its liability to indemnify the first defendant is to be reduced to the extent that the first defendant's liability to the plaintiff is due to the first defendant's own negligence.

224 The second defendant contends that its liability to obtain insurance in respect of public liability insurance did not require it to indemnify or to have in place a policy indemnifying the first defendant for its own negligence. The second defendant says, further, that it discharged its obligations to effect insurance by having in force a policy of insurance whereby Vero Insurance Ltd insured the second defendant and others under a corporate broad form liability policy number LCB011370836 (the Vero policy) (exhibit 20 A-C).

225 The issue for consideration in the indemnity proceedings is whether the second defendants obligation to obtain a policy of insurance was limited to a policy for the respective rights and interests of each of the defendants with respect to the performance of the transportation services did not extend to or include any claim that might otherwise arising out of the negligence of or breach of duty by the first defendant. That is, whether the second defendant's obligation to effect insurance in cl 16 is to be read down by the operation of cl 17 of the agreement.

226 As observed by McLure P in Hancock Prospecting v Wright Prospecting (2012) 45 WAR 29 [75], the role of the court in construing a written contract is to give effect to the common intention of the parties as objectively ascertained. That is, the meaning of the terms of the contract as written is to be determined by what a reasonable person would have understood them to mean: Toll (FCCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.

227 As noted by their Honours Meagher and Gleeson JJA in GIO General Insurance v Centennial Newsstand Pty Ltd (2014) NSWCA 13, it is not uncommon in agreements between a principal and head contractor to provide that one of them takes out a policy of insurance indemnifying all parties who may be involved in the works including subcontractors against all liabilities to each other and to third parties arising out of those activities.

228 In my opinion it is not appropriate to seek to read down the obligation cast upon the second defendant to effect and keep in force insurance during the term of the agreement pursuant to cl 16 to exclude any liability that might be attributed to the first defendant by reason of its negligence.

229 Clauses 16 and 17 each have work to do separately and independently of the other.

230 Clause 16 imposes on the second defendant the obligation to effect and keep in force insurance during the term of the agreement in the joint names of the first and second defendants for their respective rights and interests against all third party risks including public liability and property damages with respect to the performance of the transportation services [my emphasis].

231 There can be little doubt that the plaintiff's claim falls squarely within the ambit of the agreement. The plaintiff was injured whilst engaged as a subcontractor for the second defendant to transport the first defendant's Flexi-N product to various places around the State. It is the very liability that is contemplated in cl 16.1.

232 Pursuant to cl 16, the second defendant is required to ensure that the first defendant has the benefit of a policy of insurance that will secure the first defendant from, inter alia, any liability from each other and third parties arising out of the transportation of Flexi-N from its premises including any claim that might arise by reason of its own negligence.

233 In my view, cl 17 is a stand-alone provision requiring the second defendant to indemnify the first defendant in respect of loss and damage to its property and claims in respect of personal injury arising out of or in connection with the second defendant carrying out the business save to the extent that such loss an damage was due to the first defendant's negligence.

234 In essence, cl 16 fills the void. To the extent that any liability to a third party such as the plaintiff may be due to the first defendant's negligence, cl 16 requires the second defendant to ensure that there is a policy of insurance in place to secure the first defendant in respect of its respective rights and interests against the risk of such third party claim that may arise in relation of the performance of the agreement.

235 As to whether the policy effected by the second defendant, the Vero policy, satisfies cl 16 of the contract is yet to be determined. On the face of it, however, it does not. Notwithstanding a requirement so to do, the Vero policy does not name the first defendant as an insured.

236 Whilst the second defendant says that the Vero policy will stand to protect the first defendant from liability pursuant to the operations of the Insurance Contracts Act or otherwise, that is not a matter that can be determined at this time whilst the insurer and the attitude of the insurer to any claim for indemnity by the first defendant is unknown.

237 Whether Vero will in fact respond to the policy and indemnify the first defendant was not the subject of evidence before me. If the policy does respond – Vero has seemingly not done so to date. Vero is not before the court agreeing to indemnify the first defendant to the extent of its liability to the plaintiff by reason of its negligence or breach of statutory duty.

238 In the absence of the insurer as a party to these proceeding, it is not appropriate that I make a declaration as to the enforceability or otherwise of the Vero insurance policy that is pleaded by the second defendant in discharge of its insurance obligation to the first defendant and I decline to make any such declaration.

239 For the purposes of the contribution proceedings, I am satisfied, and find, that the second defendant is obliged to have in place a policy of insurance to secure the first defendant from all liability to, inter alia, the plaintiff, including its own liability for any negligence on its part arising out of or in connection with the transportation of Flexi-N pursuant to the agreement.

240 Further, I am satisfied, and find, that the claim by the plaintiff in respect of injuries suffered by him on 9 December 2009 in the principal action is a claim that clearly falls within the parameters of the intended policy, that is to say, a claim that is arising out of or in connection with the provision of transportation services by the second defendant.

241 It follows that if the first defendant is found to be liable to the plaintiff in respect of the injury suffered by him whilst transporting Flexi-N on behalf of the second defendant, the first defendant is entitled to recover from the second defendant such damages and costs that it is deemed liable to pay the plaintiff together with its own costs associated with defending the plaintiff's claim.

242 As the plaintiff's claim has been dismissed by me, it is sufficient for the contribution proceedings that there be a declaration in terms that if the first defendant is deemed liable to the plaintiff in the principal action, the second defendant do indemnify the first defendant in respect of such damages and costs together with its costs of defending the action.

243 I will hear the parties as to the terms of the orders sought.

Henry v CSBP Limited

[2017] WADC 1

11 JANUARY 2017

HENRY -v- CSBP LIMITED [2017] WADC 1