Jackson v Flydown Pty Limited
[2011] ACTSC 138
•29 August 2011
JACKSON v FLYDOWN PTY LIMITED
[2011] ACTSC 138 (29 August 2011)
Civil Law (Wrongs) Act 2002 (ACT)
BETWEEN:DONALD GRAEME JACKSON
Plaintiff
AND:FLYDOWN PTY LIMITED
ACN 069 636 264
Defendant
No. SC 146 of 2006
Judge: Jagot J
Supreme Court of the ACT
Date: 29 August 2011
IN THE SUPREME COURT OF THE )
) No. SC 146 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DONALD GRAEME JACKSON
Plaintiff
AND:FLYDOWN PTY LIMITED
ACN 069 636 264
Defendant
ORDER
Judge: Jagot J
Date: 29 August 2011
Place: Canberra
THE COURT ORDERS THAT:
The parties confer and file agreed or competing orders reflecting these reasons for judgment within 14 days.
If the orders are not agreed, the proceeding be listed for the making of final orders on a date to be determined.
INTRODUCTION
These reasons for judgment concern a claim for damages in negligence.
The plaintiff, Donald Jackson, claims that the negligence of the defendant, his former employer Flydown Pty Limited (Flydown), caused him injury and economic loss for which damages are payable. Mr Jackson suffered this injury and loss on (and from) 9 June 2004. On that day Mr Jackson was employed by Flydown as a truck driver. While hauling a load of logs along the Boboyan Road towards Canberra in the Australian Capital Territory, the prime mover and trailer which Mr Jackson was driving overturned on a right-hand curve. Mr Jackson suffered serious injuries.
Mr Jackson contends that Flydown was negligent in failing to provide a safe system, including safe equipment, for the transport of the logs. Flydown denies negligence on its part. If liable, Flydown also contends that damages should be reduced on account of Mr Jackson’s contributory negligence. Subject to the issue of contributory negligence (for which Mr Jackson denies he is liable) the parties have agreed that, if Flydown is liable in negligence, damages are payable in the sum of $250,000.
APPLICABLE STATUTORY PROVISIONS AND PRINCIPLES
The dispute about liability for negligence and contributory negligence arises from competing versions of the facts rather than any issue of law. Nevertheless, it is necessary to identify the provisions of the Civil Law (Wrongs) Act 2002 (ACT) (the Act) and the principles of common law that apply to the resolution of this proceeding.
By s 40 of the Act, “negligence” is defined to mean “failure to exercise reasonable care and skill”.
Section 42 of the Act concerns the standard of care to which a defendant who owes a duty of care is subject, and is in the following terms:
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
By s 43(1) of the Act a person is not negligent in failing to take precautions against a risk of harm unless three conditions are satisfied. The conditions are cumulative. Accordingly, negligence cannot be found unless the risk of harm against which a person failed to take precautions satisfies the following criteria:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken [the relevant] precautions.
Section 43(2) prescribes a non-exclusive list of matters that a court must take into account in deciding whether a reasonable person would have taken precautions against a risk of harm. These are:
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
Section 44 of the Act further regulates the resolution of a claim for damages in negligence. Section 44 is in these terms:
In a proceeding in relation to liability for negligence –
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Section 45(1) of the Act relates to causation. It provides as follows:
(1)A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
Under s 45(3) of the Act, in deciding the scope of liability, a court “must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.”
Section 46 concerns the burden of proof and is in these terms:
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Section 102(1) of the Act deals with contributory negligence as follows:
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong –
(a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
Flydown did not contend in its defence or submissions that Mr Jackson’s claim was defeated on the basis that it did not owe him any duty of care. This is consistent with principle. Flydown admitted that, on 9 June 2004, it employed Mr Jackson as a driver and, in the course of this employment, required Mr Jackson to transport logs using a prime mover and trailer. The employer-employee relationship creates a recognised category of case in which a duty of care is owed. Accordingly, and as the High Court said in Czatyrko v Edith Cowan University(2005) 214 ALR 349; [2005] HCA 14 at [12], the basic principles may be expressed as follows:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
At [16] in the same case the High Court also noted that:
An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely.
The employer’s duty is not merely to devise a safe system of work but also to “maintain and enforce” that system, which may require account to be taken of the employer’s capacity to “prescribe, warn, command and enforce obedience to his commands” (McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60 at 306).
The requirement that the risk of harm be foreseeable (s 43(1) of the Act) before there is any duty to take reasonable care to avoid that risk is to be construed in the context of the common law. In Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 at 47, Mason J described a foreseeable risk of harm in the following passage:
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [[1951] AC 850], may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In order to apply these principles it is necessary for the factual dispute between the parties to be resolved. I turn to that issue now.
THE FACTS
Uncontentious facts
As noted, some basic facts are not in dispute.
Mr Jackson is an experienced truck driver. By 9 June 2004 he had been driving trucks for 30 years. During that time he drove numerous types of vehicles; in particular, he drove many thousands of kilometres in semi-trailers. Mr Jackson is also a motor mechanic and worked for about three years as a vehicle inspector for the ACT Government. He completed a defensive driving course in 1993 and qualified in driving dangerous goods in 1994.
Mr Jackson was employed by Flydown on 9 June 2004 for the purpose of transporting logs from a site off the Boboyan Road known as Boboyan Camp to Flydown’s depot closer to Canberra. Mr Jackson had driven for Flydown on a casual basis for some years but had never before transported logs on behalf of either Flydown or any other person.
The site at which logs were loaded, Boboyan Camp, is located off the Old Boboyan Road. I inspected this site, the Old Boboyan Road and the Boboyan Road, including the location of the accident, during a view conducted on 18 July 2011 at the request and by consent of both parties.
The Old Boboyan Road is a dirt road, steep in parts, with a largely ungraded or poorly graded surface. There are numerous trees on both sides of the dirt road. The distance between the loading site at Boboyan Camp and the intersection with the Boboyan Road is approximately 3.3 km. The Boboyan Road is a sealed public road, generally two lanes in width, the lane division being a painted white line. To transport the logs after loading it was necessary for Mr Jackson to drive the loaded truck from Boboyan Camp, down the Old Boboyan Road, and onto the Boboyan Road heading north towards Canberra.
On 9 June 2004 Mr Jackson completed the transport of one load of logs from Boboyan Camp to Flydown’s depot. He did so using a Kenworth T480 prime mover and an O’Phee trailer. During this first delivery, Mr Jackson stopped and re-tensioned the straps across the logs at Tharwa, which is further north along the Boboyan Road than the site of the accident. In so doing Mr Jackson noticed (and it was not put to him otherwise) that the tension in the straps across the logs “virtually hadn’t changed”. After he delivered this first load to the depot, Mr Jackson collected another unladen trailer (not an O’Phee trailer) and drove it back along the Boboyan Road and the Old Boboyan Road to Boboyan Camp. Once this second trailer had been loaded, Mr Jackson again drove along the Old Boboyan Road and turned onto the Boboyan Road. He intended to stop again at Tharwa to re-tension the straps. However, about 15.9 km from Boboyan Camp, on a downward right-hand turn just after the intersection between the Boboyan Road and Orroral Valley Road and before a bridge leading to a hill known as Fitz’s Hill, the prime mover and trailer both overturned. As noted, Mr Jackson was injured in the accident.
The prime mover and trailer combination driven by Mr Jackson at the time of the accident had certain characteristics. The prime mover is designed to have low roll steer. The trailer, by contrast, has mechanical spring suspension system and so has high roll steer. As a result it is inherently less stable than, for example, the O’Phee trailer, which has airbag suspension. As one of the experts, John Lambert, described it (in a description which is not in dispute):
When trailer manufacturers design suspensions for trailers, they design them so they have roll steering, and that’s because they want the semi-trailer in travel to track behind the prime mover in the lane that the prime mover is travelling. And that’s why when you follow semi‑trailers down the road, the trailer, even [when] they go round a curve, the trailer follows the prime mover very closely. So it’s a built-in characteristic of the suspensions that they will do that. Now, the thing that makes it track further out is anything that causes the semi-trailer to lean more to the left. So if the person is travelling too fast for the curve, which means there’s a lot more side force on the semi-trailer, and it leans a lot more and the roll steer means that it then tracks to outside the prime mover, as it’s doing here.
…
Alternately, if you have a load shift and you get a significantly increased tilt to the trailer, it will cause it to track outside there in the same way, because of the roll steer effect.
The trailer involved in the accident also has a low resistance to rollover, with a total rollover resistance in the order of 400,000 to 520,000 Newton metres per radian. In contrast, the O’Phee trailer has a medium to high resistance to rollover, in the order of 780,000 to 2,000,000 Newton metres per radian. Putting it another way, with the same load and at the same speed around the same curve, the tilt of the O’Phee trailer would have been be only 33-43% of the tilt of the trailer involved in the accident. As noted, Mr Jackson had used the O’Phee trailer on his first log delivery run on 9 June 2004.
The O’Phee trailer and trailer involved in the accident also have different load restraint systems.
The O’Phee trailer is specifically designed to carry logs. It has sockets sunk into the tray of the trailer into which bolsters are inserted and locked into place with pins. The logs are placed on the flat tray bed and between the bolsters. The load is then strapped down using a strapping system. The socket system ensures that the bolsters are not able to be dislodged if, for example, they collide with an object during transport.
The trailer involved in the accident is not specifically designed to carry logs. It has a standard flat tray without inbuilt sockets. The load restraint system consists of four temporary beams placed horizontally across the tray (two beams per trailer compartment) and attached to it by chains. Bolsters are inserted into the beams. The logs are placed over the beams and between the bolsters. The logs are strapped down using a strapping system similar to that on the O’Phee trailer (with three straps per compartment). The weight of the logs across the beams and on the bolsters forms part of this load restraint system, as the weight tends to hold the beams and bolsters in the correct position. The temporary load restraint system, however, is capable of dislodgment in a manner not possible in the O’Phee trailer system. The bottom of each beam is 13.4 cm in width. Based on that width, if a beam (and hence also the bolsters inserted into it) tilts to an angle of 32º from the vertical position (which it can do if a bolster is struck with sufficient force) the beam, if unobstructed, will topple over and the bolsters collapse onto the tray of the trailer. The chains attaching the beams to the trailer are not an obstruction as they are sufficiently slack to allow the beam to topple over without placing tension on them. The weight of the logs, as noted, is a form of obstruction because the logs sit across the beams and between the bolsters and their downward pressure tends to hold the beams in place.
A number of trees along the left-hand side of the Old Boboyan Road (the dirt road) have suffered damage consistent with their being struck by an object at the height of a bolster on a semi-trailer. There is also evidence that a number of branches at about the same height that would have overhung the Old Boboyan Road have been removed. The date on which the trees were damaged and the branches removed is not disclosed by the evidence. Nor is there direct evidence of the cause of the damage to the trees. The damage, however, was observable in September 2006 (the time at which certain photographs in evidence were taken) and remained observable during the view of the site on 18 July 2011.
When driving the vehicle involved in the accident along the Old Boboyan Road on 9 June 2004, Mr Jackson did not see, hear or feel any collision between any part of his vehicle and a tree on the left-hand side of the road. Nor did Mr Jackson observe the dislodgment of any bolster before the accident occurred (although he did, as discussed below, give evidence of hearing a loud noise or bang just before he lost control of the vehicle).
There is no advisory speed sign for the right-hand curve on the Boboyan Road at which the accident occurred.
The tyre marks on the Boboyan Road left by Mr Jackson’s prime mover and trailer before the rollover occurred show that Mr Jackson was straightening out (effectively cutting) the corner, meaning that part of his vehicle would have crossed the centre dividing line of the road. It is very common for truck drivers to straighten out curves. There was no suggestion that this action by Mr Jackson contributed to the accident in any way.
Flydown has used both the O’Phee trailer system and the temporary load restraint system described above since 2001. In particular, the temporary load restraint system had been used extensively as part of Flydown’s logging transport business. Until the accident on 9 June 2004, the system had not been implicated in any similar incident.
Overview of disputed facts
Mr Jackson’s case was that the load of logs shifted to the left because the front bolsters collapsed onto the deck of the trailer at the Orroral Valley Road intersection. This “load shift” caused the prime mover and trailer to become unstable and then to flip over. According to Mr Jackson’s case, Flydown was negligent because it failed to provide a safe system of work, in essence, by failing to ensure that the temporary bolster system on the trailer could not be dislodged by contact with another object (in this case, trees and tree branches on the left-hand side of the Old Boboyan Road).
Before the hearing, Flydown’s case was that Mr Jackson had been driving at a speed inappropriate for the road conditions and that his excessive speed caused him to lose control of the vehicle on the downhill right-hand turn. After concurrent evidence was given by the road transport experts called on behalf of each party, John Lambert and David Axup, Flydown’s case altered. Having heard evidence from Sergeant Richard Dauth (who attended the accident scene on the day) about the location at which the tyre marks on the road from Mr Jackson’s vehicle started, Mr Axup (the expert called by Flydown) agreed that there had been a significant load shift. However, Mr Axup identified a possible alternative cause of the load shift (loose strapping rather than the collapse of the front bolster) and remained of the opinion that excessive speed for the circumstances was a contributing factor in the accident.
Mr Jackson
Although it was submitted for Flydown that Mr Jackson’s evidence should not be accepted in a number of respects, I found Mr Jackson to be a frank and credible witness. Insofar as any inconsistencies were apparent in his versions of events (to police shortly after the accident, to various doctors and to this Court) the inconsistencies were either minor, readily explicable on a realistic assessment of Mr Jackson’s circumstances at the time of the accident and of its after-effects (as Mr Jackson said, when he lost control of the vehicle he can recall thinking he was “a dead man”), or otherwise reconcilable with the evidence as a whole when properly assessed.
For example, it was submitted by Flydown that Mr Jackson had not told the police during his interview on 17 June 2004 that he had been using the foot brake to slow his speed while negotiating his way down the steep hill leading to the intersection of the Boboyan Road and Orroral Valley Road. In that interview, Mr Jackson said he believed he was approaching the area in a safe manner “speed wise” with “the selection of gears and so forth”. Given that Mr Jackson was responding to an open question by police to describe the accident in his own words, there is no inconsistency of relevance between his somewhat disjointed description to police and the evidence he gave to this Court. Given the steepness of the descent (which I saw as part of the view on 18 July 2011) and the load which was on the vehicle (some 24 tonnes), Mr Jackson’s evidence that he was controlling the speed of the vehicle by using his gears, engine (or exhaust) brake, and foot brake in combination is plausible and I accept it.
It was also submitted for Flydown that Mr Jackson told police he “may have been just starting to accelerate slightly to go up the hill” yet said in his evidence to this Court that Fitz’s Hill was not in his mind. Again, however, consideration of the whole of Mr Jackson’s evidence in context undermines any challenge to Mr Jackson’s credibility on this ground. Mr Jackson’s evidence disclosed that it would have been his intention to start to accelerate to get up Fitz’s Hill if it had been safe to do so on obtaining the necessary visibility around the right-hand curve, across the bridge and up the hill (as well as, according to Mr Jackson, checking behind his vehicle to ensure another vehicle was not intending to overtake at this point). In his interview with police, Mr Jackson was plainly attempting to reconstruct the accident. So much is obvious from his description that “I… was at the time I sort of and the position I was on the road, I was lead [sic] to believe that I was, may have been just starting to accelerate slightly to go up the hill…”. In context, this description is largely consistent with his evidence that this would have been his intention before he heard a large bang at the Orroral Valley Road intersection, after which he saw the logs “going sideways” to the left and lost control of the vehicle. As Mr Jackson said, from that point onwards, getting up Fitz’s Hill was not in his mind at all. I accept this evidence.
It was submitted for Flydown that it is inconceivable that the front left-hand bolster on the trailer could have collided with a tree or tree branch on the Old Boboyan Road without Mr Jackson either noticing the collision at the time or observing that the bolster had become dislodged at some point before the accident occurred. I do not accept this submission. Mr Jackson gave evidence that there is significant noise in the cabin of a Kenworth prime mover. As noted, the Old Boboyan Road is a dirt road which is rough and, in parts, steep. This also would have caused significant movement of the cabin. In other words, the ride along the Old Boboyan Road would have been both noisy and bumpy for Mr Jackson. On that basis, and having been driven along that track (at the very low speed that was necessary given its condition, which the parties agreed had not relevantly altered since 9 June 2004), I consider that on 9 June 2004 there existed a real risk that the upper part of the front left-hand bolster (or bolsters – an issue raised by Mr Axup with which I deal below) may have collided with a tree branch or tree without Mr Jackson noticing that impact. Mr Jackson also gave evidence that from the driver’s seat in the cabin it was possible to see some but not all the way to the top of the first and second bolsters in the mirrors. As such, it would have been difficult for him to tell if a bolster was at an angle. In any event, and as Mr Jackson also said, a driver in his position would not be routinely looking in the mirrors to see that the bolsters remained in place, as he or she would properly assume they remained so.
Flydown submitted that Mr Jackson’s estimate of his speed given to police on 17 June 2004 – 20 km/h – was demonstrably incorrect, and that he must have been travelling at a faster speed. In this regard, Flydown relied not only on Mr Axup’s evidence but also on the evidence of Mark Hannigan, Jonathan Hyles and Sergeant Dauth. Before dealing with this evidence, a few observations are appropriate.
First, Mr Jackson’s statement to police was not that he was travelling at 20 km/h. His statement was that he believed he had approached the area where the accident occurred in a safe manner “speed wise” and that, past the intersection (I infer with Orroral Valley Road), “my exact speed, I’d probably estimate it at about 20k but, I would not be held, but… I certainly wasn’t… I really was on the low part of the box…”.
Second, Mr Jackson has always maintained that after hearing the loud bang at the intersection with Orroral Valley Road he saw the load going sideways (to the left) and lost control of the vehicle. Apart from saying that, thereafter, he fought to maintain control of the vehicle but the steering was unresponsive, Mr Jackson remembers little if anything of the accident itself. Flydown, however, acknowledged that it might reasonably be expected that Mr Jackson might have applied the foot brake heavily in an attempt to bring the vehicle back under control.
Third, critical aspects of Mr Jackson’s evidence have been consistent at all times. Those critical aspects are that immediately before he lost control of the vehicle he heard a loud bang. After he heard the loud bang he looked in the mirrors and saw the load going sideways to the left. The vehicle was not under his control from that point on, and did not respond to his attempts to steer to the right. Equally importantly for the credibility of Mr Jackson’s evidence, he was plainly at a loss to explain the cause of the loud bang. Despite the evidence of Mr Lambert providing an explanation for the sound (the bolster collapsing onto the tray of the trailer), Mr Jackson (as noted) did not suggest in his evidence that he observed any collision of a bolster with a tree or tree branch, or its subsequent collapse. When asked, he described the loud bang as the sound of steel on steel (which is consistent with the sound the bolster would make on hitting the tray of the trailer) but otherwise offered no evidence supportive of his case that had not already featured in his statement to police.
Fourth, Mr Jackson was otherwise prepared to make concessions which he might have perceived as being against his interests. For example, Mr Jackson agreed that he had not checked the strapping system at the end of the Old Boboyan Road before entering the Boboyan Road even though it would have been possible and even “reasonable” to do so. This preparedness also supports the conclusion that Mr Jackson was a truthful witness doing his best to give accurate evidence of an undoubtedly traumatic accident. I deal with the significance of the strapping issue below in the context of the expert evidence of Mr Lambert and Mr Axup.
Fifth, a director of Flydown, David Carkeet, also gave evidence. Mr Carkeet, like Mr Jackson, is an experienced truck driver, with some 45 years’ experience in the trucking industry. Mr Carkeet still fills in on occasions by driving Flydown’s trucks when needed. Mr Carkeet had driven a similar prime mover and trailer combination with a load of logs along the same route the day before Mr Jackson’s accident. Mr Carkeet could not recall the exact speed at which he took the right-hand curve but said he would not expect it to be more than 45 km/h.
With these considerations in mind, the evidence of Mr Hannigan, Mr Hyles and Sergeant Dauth may be assessed. I will consider Mr Axup’s evidence separately in conjunction with the evidence of Mr Lambert below.
Mr Hannigan
Mr Hannigan is also an experienced truck driver with 40 years’ experience with semi-trailers and other heavy equipment. On 9 June 2004, Mr Hannigan was parked down Orroral Valley Road between 500 m and 1 km (most likely closer to the latter) from the intersection with the Boboyan Road. He was at the back of his truck. He heard a semi-trailer’s engine brake, which he said seemed to be “overrunning” at “very high revs”. He said the truck was about a third of the way down the hill and, in any event, south of (that is, above) the intersection with Orroral Valley Road. The truck was travelling north towards Canberra. Mr Hannigan said the truck “seemed OK at first” and, at a rough guess, might have been travelling at about 20-25 km/h; but then, about 10-15 seconds later, he heard high revs, a couple of gear changes, and heavy, repeated, full-pedal applications of the foot brake. He saw the truck go from being under control to out of control fairly quickly, and gave evidence that this happened before it reached the intersection. With the loss of control, the speed of the truck increased. Mr Hannigan lost sight of the truck before it reached the intersection. He estimated that it was then travelling at about 45-50 km/h as a “pretty rough guess”. He then heard a crash and attended the crash site. He saw Mr Jackson’s prime mover and trailer both overturned. There was a strong smell of burning brakes, and Mr Hannigan could see smoke coming off them.
I accept that Mr Hannigan’s evidence represented his best attempt to recollect the events of 9 June 2004. Insofar as any such suggestion was made, I do not accept that Mr Hannigan’s evidence was in any way affected by the fact that he has known Mr Carkeet for a long time. Nevertheless, several factors suggest that Mr Hannigan’s evidence should not be treated as necessarily undermining that of Mr Jackson. Those factors are as follows:
(1) Mr Hannigan had not been asked to recall the accident until a day or so before the hearing. That is, some seven years had passed before Mr Hannigan was asked to exercise his powers of recollection in respect of the accident. Mr Hannigan’s acknowledgment that his recollection may be faulty after that length of time was thus proper. In contrast, Mr Jackson has lived with the memory of the accident every day since 9 June 2004 and has been called on a number of times, including as early as 17 June 2004, to recount it in some detail.
(2) Although an experienced truck driver, Mr Hannigan, in his own words, was up to 1 km away from Mr Jackson’s truck when he first noticed it. He also considered the truck to be under control for some distance (at which time it was travelling at about 20-25 km/h), before becoming out of control (and accelerating to perhaps 45-50 km/h) at some point before the intersection with Orroral Valley Road. Leaving aside the location at which Mr Jackson said he lost control of the truck (at the intersection, where he heard the loud bang), the evidence of a change from a controlled descent to a loss of control is consistent as between Mr Jackson and Mr Hannigan.
(3) As noted above, given the steepness of the descent before the intersection and the weight of the load which Mr Jackson was carrying, it is not surprising that Mr Jackson was keeping control of the vehicle by use of the gears, the engine (or exhaust) brake and the foot brake before the loss of control, and by any and every means possible afterward. Even heavy applications of the foot brake and high revving sounds from the engine (or exhaust) brake on such a slope do not necessarily indicate excessive speed for the circumstances. It must also be remembered that before Mr Hannigan lost sight of the truck (but after he considered it was out of control) he estimated its speed at roughly 45-50 km/h. Mr Carkeet himself considered that he might have driven towards and around the bend where the accident occurred at up to but no more than 45 km/h.
(4) The hot and smoking brakes Mr Hannigan observed on attending the crash site are consistent with Mr Jackson having applied the brakes heavily before and/or after he lost control of the vehicle. Given the fact that the tyre marks on the road left by Mr Jackson’s vehicle extend for some 86 metres, the braking Mr Jackson may be inferred to have done after the loss of control can itself explain the overheating of the brakes.
Mr Hyles
Consistent with my conclusions about Mr Hannigan, I am satisfied that Mr Hyles also gave truthful evidence to the best of his recollection. Mr Hyles was a truck driver transporting logs for Flydown. He left Boboyan Camp 20 minutes or so after Mr Jackson’s second run and saw Mr Jackson’s overturned prime mover and trailer. Mr Hynes, like Mr Hannigan, smelt that the brakes on Mr Jackson’s vehicle had been burning. When he had a closer look he observed that the brakes were too hot to put his hand on. Mr Hynes said brakes usually do not burn if applied properly.
Consistent with the observations above I accept that, at some point before the accident, Mr Jackson applied the brakes sufficiently heavily to cause them to overheat, smoke, and remain hot for at least 20 minutes after the accident. As noted, having lost control of the vehicle (on Mr Jackson’s evidence at the intersection of the Boboyan Road and Orroral Valley Road), it would be reasonable to expect heavy applications of the foot brake, sufficient to cause overheating, in an attempt to bring the vehicle under control. Similarly, and as noted above, Mr Hannigan’s evidence of an apparent loss of control of the vehicle before the intersection with Orroral Valley Road would also be consistent with heavy applications of the foot brake, sufficient to cause overheating, in an attempt to bring the vehicle under control after the shifting of the load.
Neither the evidence of Mr Hannigan nor that of Mr Hyles, when considered in context, is sufficient to support the conclusion that before Mr Jackson heard the loud bang, saw the load shift to the left and lost control of the vehicle, he was travelling at an excessive speed requiring inappropriately heavy braking sufficient to cause the brakes to overheat.
Sergeant Dauth
Sergeant Dauth has 10 years’ experience in accident reconstruction as part of the Australian Federal Police’s collision reconstruction team. He attended the site of the accident on the afternoon of 9 June 2004 and took various photographs, but did not take any measurements. He also interviewed Mr Jackson after he was released from hospital. In his report on the accident, Sergeant Dauth concluded that the accident had been caused by “excessive speed” and issued Mr Jackson with a traffic infringement notice. Subsequently, that notice was withdrawn.
It was submitted for Flydown that significant weight should be given to Sergeant Dauth’s conclusion that the accident was caused by excessive speed. I do not accept this submission. My reasons are as follows.
First, Sergeant Dauth took no measurements at the accident site. Consistent with this fact, his report makes no mention of the possibility of load shift. However, the evidence of both experts who gave evidence in the proceeding (Mr Lambert and Mr Axup) is that it is apparent from Sergeant Dauth’s evidence about where he was standing when he took one of the photographs (that is, only two metres from the location at which the marks on the road left by Mr Jackson’s vehicle commenced) that a significant load shift had occurred. If load shift had not occurred, the marks from the trailer would have started at least some distance (the length of the trailer as a minimum) before the marks from the prime mover. The marks from the prime mover and trailer, however, start together. Once Mr Axup heard the evidence from Sergeant Dauth that he was close to the start of both marks when he took the photograph showing them, Mr Axup agreed that excessive speed alone could not explain the accident. The location of the marks showed that there had been what Mr Axup described as a “significant” load shift, causing the weight on the trailer to shift to the left.
Second, unlike Mr Lambert and Mr Axup, Sergeant Dauth had not carried out extensive investigations of such matters as the characteristics of the prime mover and trailer involved; the load restraint system used; the forces to which the load restraint system would be subject having regard to its weight, shape and dimensions; the capacity for dislodgment of the bolster and beam; the tension in the attaching chains; the nature of the strapping; or, for that matter, the circumstances presented by the need for the load to be driven along the Old Boboyan Road and past a number of trees capable of being hit by a left-hand bolster and showing evidence of having been struck at about the same height as the top of the bolster used in the load restraint system on the trailer involved in the accident.
Third, Mr Lambert and Mr Axup had access to Sergeant Dauth’s report and photographs. Accordingly, they could take Sergeant Dauth’s material and conclusions into account in forming their own expert opinions.
Fourth, I upheld the objection for Mr Jackson to Flydown’s application to adduce expert evidence in chief from Sergeant Dauth. I did so on the basis that each party filed extensive expert reports from an expert they had retained (Mr Lambert for Mr Jackson and Mr Axup for Flydown). Those experts had each complied with the requirements for experts in Pt 2.12 of the Court Procedure Rules 2006 (ACT), including the code of conduct. Sergeant Dauth had not prepared his report in accordance with the requirements of Pt 2.12 of the Court Procedure Rules.
Fifth, in circumstances where I did not allow Sergeant Dauth to give expert evidence in chief as Flydown sought, Flydown cannot gain support for Sergeant Dauth’s conclusions merely because he was not cross-examined about them. It would have been inconsistent with my ruling on the objection for Mr Jackson’s counsel to attempt to cross-examine Sergeant Dauth. Such cross-examination would have involved Sergeant Dauth in giving expert evidence which, in response to the objection, I had determined he should not be permitted to give.
For these reasons, I do not consider that the conclusion reached by Sergeant Dauth in his report is capable of carrying any real weight in the determination of the disputed questions of fact in this case.
Mr Lambert and Mr Axup
Mr Lambert and Mr Axup both had expertise and experience in the assessment of vehicular accidents. Mr Lambert is a chartered engineer specialising in, amongst other things, road safety research, heavy vehicle engineering and dynamics, and load restraint. Mr Axup holds a graduate diploma in highway and traffic engineering and specialises in collision and traffic accident investigations.
In accordance with my directions, Mr Lambert and Mr Axup prepared a joint report identifying matters agreed and disagreed and reasons for their disagreement. They were also sworn in one after the other and gave evidence concurrently (see reg 1211 of the Court Procedure Rules). The experts’ joint report was finalised before Mr Lambert and Mr Axup had heard Sergeant Dauth’s evidence about his location when he took a photograph of the tyre marks on the road. The experts gave their concurrent evidence after hearing Sergeant Dauth’s oral evidence. As noted, having heard this evidence Mr Axup agreed with Mr Lambert that Mr Jackson’s vehicle had suffered a significant load shift. Unlike Mr Lambert, however, Mr Axup remained of the view that excessive speed was a contributing factor in the accident.
Considered as a whole, it is apparent that the principal factors supporting Mr Axup’s opinion that excessive speed contributed to the accident (leaving aside the evidence of Mr Hannigan and Mr Hyles which, as I understand it, was not available when Mr Axup first formed his opinion about excessive speed) comprised: – (i) the overall length of the tyre marks, which extended for some 86 metres leading up to the site of the accident, (ii) the striations in the tyre marks, which were in the direction of travel and which Mr Axup considered consistent with acceleration, and (iii) the distance between the tyre marks of the trailer and those of the prime mover of about 30 cm. Mr Axup’s evidence did not provide a persuasive explanation of why factors (i) and (ii) indicated excessive speed given the circumstances of this accident. Mr Lambert did not consider the length of the tyre marks indicative of excessive speed. Given the loss of control of the vehicle by (at the latest) the intersection with Orroral Valley Road and Mr Jackson’s fight for control thereafter on a downhill right-hand curve, it is not apparent why the length of the tyre marks indicates excessive speed as a cause of the accident. Mr Lambert also did not accept that the direction of the striations showed excessive speed or even acceleration. He considered that the striations could be consistent with deceleration rather than acceleration, which would also be consistent with Mr Jackson’s attempts to bring the vehicle under control. For these reasons, I do not accept that weight can be given to the length of the tyre marks or the presence or direction of striations in those marks in determining that one cause of the accident was excessive speed.
The third factor on which Mr Axup’s relied – the distance between the tyre marks of the trailer and prime mover of about 30 cm – involves a number of considerations. Mr Axup considered that this distance was too great to be explained solely by the load shift that he agreed had occurred. He did not accept that the distance could be accounted for by the other factors which Mr Lambert had taken into account and which Mr Axup accepted were present – namely, the high roll steer of the trailer and the low roll steer of the prime mover. Mr Axup could not say what distance he thought would have been produced by load shift and roll steer without excessive speed, but estimated that about half the distance between the two marks might have been expected. There are a number of reasons why I prefer the evidence of Mr Lambert on this issue to that of Mr Axup.
First, Mr Lambert’s principal conclusions, and his reasons for those conclusions, remained consistent throughout his reports, the joint report and his oral evidence. Mr Lambert had inspected the available material, the Old Boboyan Road and the Boboyan Road, and carried out calculations sufficient to satisfy himself that the bolster could be dislodged if it collided with another object. He calculated that, given the width of the beam where it rested against the tray of the trailer, a collision of sufficient force to tilt the bolster and thus the beam to an angle of 32º would place the beam in a position where its tendency would be to topple over rather than right itself. While the weight of the logs between the bolsters and on the beam would operate to counteract that tendency he concluded that continuing movement of the trailer could cause the bolsters and thus the beam to pass the critical angle of 32º, after which the beam would tend to flip to its side and the bolsters to collapse onto the trailer tray. He calculated that the snagging of the top of the left-hand bolster on a tree could have exerted sufficient force to tip the bolster and beam system to 32º, even allowing for the counteracting forces exerted by the load of logs. He also calculated that the force required would have caused the bolster and beam system to tip over rather than the bolster to bend or deform. Mr Lambert also considered that the chain lengths attaching the beams to the trailer would not prevent this collapse as the chains had sufficient slack to allow the bolsters to fall flat onto the trailer tray. He observed (and Mr Axup agreed) that the bolsters could not be prevented from falling flat by the strapping, as they would fall past the outside of the strapping. He observed the damaged trees at the same height as the top of the bolsters on the left-hand side of the Old Boboyan Road and the lack of any similar overhanging trees on the left-hand side of the Boboyan Road. He took into account the loud bang that Mr Jackson maintained he heard just before losing control of the vehicle. He also took into account Mr Jackson’s observation in the mirror of the logs on the trailer moving to the left, as well as the position at which the prime mover and trailer came to rest and the spilled load of logs close to the accident site. Mr Lambert gave particular weight to the fact, evident from the tyre marks and consistent with Mr Jackson’s evidence and with which Mr Axup agreed, that the prime mover flipped over before the trailer. Mr Lambert noted that in cases of semi-trailer rollovers caused by excessive speed, the trailer invariably flips first. In this case, the fact that the prime mover flipped first is indicative of the cause of the accident having been load shift rather than excessive speed. Mr Lambert also observed that one of the chains holding the front left-hand bolster in place had not snapped during the accident, and that the left-hand bolster ended up resting beneath the trailer. Mr Lambert explained that, if the bolster had been upright during the crash, the forces at work that would have led him to expect that both the front bolster chains would have snapped. Having regard to all these considerations, Mr Lambert concluded that “the cause of the rollover was a shift of the load at the front of the semitrailer destabilising the front of the vehicle”.
Second, the criticisms made of Mr Lambert’s evidence were not persuasive. As noted, Mr Lambert provided detailed calculations of the forces required to knock the front bolster from its upright position to an angle of 32º and a convincing explanation of why this was possible in all of the circumstances, including the presence of the strapping. Mr Lambert also provided a convincing explanation of the interaction of the various forces at work which, ultimately, enabled the front bolsters to collapse. As such, Mr Lambert identified that the critical angle for the bolster and beam system was 32º (a calculation based on the width of the beam resting on the trailer tray). He identified that, if knocked to that angle, forces acting on the bolsters and beam (gravity, bounce and dynamic forces) would tend to make the beam tip over and collapse, while the weight of the logs on the beam and against the bolsters would provide a counteracting force tending to keep the beam and bolsters in the upright position. Rather than undermining Mr Lambert’s conclusions, these counteracting forces in fact explain how the front bolster could be knocked back to an angle of 32º by hitting a tree or tree branch on the Old Boboyan Road and yet not collapse until the intersection of the Boboyan Road and the Old Boboyan Road nearly 16 km away. The weight of the logs maintained the bolster and beam system at 32º until the operation of other forces (from travelling along the road) enabled the beam to tip over and the bolsters to collapse. If there had been no logs, the beam and bolster system would have collapsed immediately on reaching the critical angle of 32º.
Mr Lambert also provided a convincing response to Mr Axup’s apparent concern that if the front bolster hit a tree or tree branch on the Old Boboyan Road then the second, third and fourth bolsters on the same side should have hit the same object, as those bolsters would be tracking along the same path as the front bolster. As Mr Lambert said, the movement of a semi-trailer around a curve is complex and so many factors are in play that it is not unreasonable to conclude that only the front bolster came into contact with a tree or tree branch on the Old Boboyan Road. Given the geometry of the Old Boboyan Road I find Mr Lambert’s evidence on this issue persuasive.
Mr Lambert’s explanation of the significance of one chain only on the front bolster and beam system having broken in the accident was also cogent. Contrary to Flydown’s submissions, Mr Lambert’s oral evidence was not inconsistent with his report on a fair reading of that document. The report discloses the forces at work when a trailer flips over. If the front bolsters had been upright at the time of the rollover, those forces should have been sufficient to snap both chains. The fact that only one chain snapped supports Mr Lambert’s conclusion that the front bolsters had collapsed onto the tray of the trailer before the rollover. So too does the fact that all other chains for the other three beam and bolster systems were snapped on both sides. In other words, where the bolsters were upright both chains snapped. The fact that one chain did not snap on a front bolster suggests it was not upright at the time of the rollover.
Third, unlike Mr Lambert’s position, Mr Axup’s position altered substantially as a result of Sergeant Dauth’s evidence that his photograph showed the tyre marks from the prime mover and the trailer starting together. From an initial conclusion that the cause of the accident was excessive speed alone, Mr Axup changed his opinion by accepting that the evidence showed that a significant load shift had occurred, sufficient for Mr Axup (at least in one part of his evidence) to accept that speed was not the principal cause of the accident.
Fourth, the evidence as a whole casts considerable doubt on any characterisation of the speed at which Mr Jackson was travelling immediately before he lost control of the vehicle as excessive or inappropriate for the conditions. Mr Lambert and Mr Axup agreed that the semi-trailer combination Mr Jackson was driving, with the load it was carrying and the significant load shift that had occurred, could have suffered a rollover around this right-hand corner at a speed of only 35 km/h. Moreover, with every additional kilometre in speed above 35 km/h, the likelihood of rollover increased (in some form of logarithmic rather than linear scale). As noted above, Mr Carkeet said his speed around this corner would not have exceeded 45 km/h. At 45 km/h, in the same circumstances that Mr Jackson is agreed by the experts to have experienced on 9 June 2004 (a significant load shift on a prime mover with low roll steer and a trailer with high roll steer), it appears that a rollover almost inevitably would have occurred.
Fifth, Mr Axup’s evidence about the distance he expected between the tyre marks of the prime mover and those of the trailer if speed had not been a contributing factor, whilst undoubtedly accurately conveying his opinions, was unpersuasive. Mr Axup could not explain why load shift, combined with the low roll steer of the prime mover and the high roll steer of the trailer, was insufficient to account for the 30 cm gap between the marks. Mr Axup simply concluded that speed must account for some part, perhaps 50%, of the gap. Mr Axup also did not adequately reconcile this conclusion with the agreed fact that, if speed alone had been the cause of the accident, the trailer would have flipped first. Mr Lambert, on the other hand, had taken into account the characteristics of the prime mover and of the trailer with its mechanical suspension, their respective capacities for roll steer, and the load shift, from the outset. On this basis, he concluded that the gap between the marks was not indicative of excessive speed (particularly taken with the evidence that the prime mover and not the trailer flipped first) but reflected the load shift and the consequential instability of the prime mover and trailer.
Sixth, Mr Lambert’s evidence was generally more cogent and persuasive than that of Mr Axup. One important example was the evidence in relation to strapping. Mr Lambert calculated that if the whole load in the front compartment moved 200 mm on the outside of a curve, then the stability of the trailer would have been reduced by 50%. Mr Axup considered that if the strapping had worked its way loose on the front compartment (rather than bolsters falling), then it is possible that logs may have shifted to the left within the confines of the bolsters such as to materially reduce the stability of the vehicle. Flydown relied on the loosening of the strapping on the trailer as a possible alternative cause of the load shift which contributed to the accident. However, Mr Axup’s evidence on this point did not take sufficient account of the nature of Mr Lambert’s calculation or of the load shift that occurred. Mr Lambert’s calculation was not based on some of the logs shifting to the left. It was based on the whole of the load in the front compartment shifting 200 mm to the left. Further, Mr Axup himself described the load shift as significant. It is not apparent how loose strapping could permit the whole load, confined between the bolsters as it was hypothesised to be in this example, to shift to the left. Accordingly, the loosening of strapping is not a credible alternate cause of the accident even on its own terms. When Mr Jackson’s evidence is taken into account it may be discounted altogether. As noted, Mr Jackson carried one load of logs to the depot before the accident. He checked the strapping on that load at Tharwa and noticed that it had not lost any tension. He intended to re-tension the strapping at Tharwa on the second load, involved in the accident. As noted, while the trailers used for the two loads differed in significant respects, the strapping systems did not. Whilst driving the second load, Mr Jackson did not notice that the strapping was flapping in the wind which, as he and Mr Lambert both said, it would have done had it lost tension before the accident. I accept Mr Jackson’s evidence on this point. I also accept Mr Lambert’s evidence to the same effect, as well as his evidence that loose strapping, even if it had existed, could not have explained the load shift that in fact occurred in this case.
Whilst dealing with the strapping issue, it is also convenient to record that Flydown’s contention that Mr Jackson should have checked the strapping at the end of the dirt road rather than waiting until he reached Tharwa, and that his failure to do so constituted a failure to take proper care, would not undermine Mr Jackson’s case even if the strapping had come loose (which I do not accept) and was capable of resulting in a sufficient load shift to cause the rollover (which I also do not accept). As counsel for Mr Jackson noted, although Mr Jackson was an experienced truck driver and was familiar with load restraint requirements, he had never transported logs before 9 June 2004. If there was a real risk that merely driving along the Old Boboyan Road to the Boboyan Road would cause the load to settle to such an extent that the strapping would lose tension then Flydown should have informed Mr Jackson of that risk and instructed him (and all other drivers) to re-tension their strapping at the end of the Old Boboyan Road and before turning onto the sealed Boboyan Road. Flydown did not provide any such warning or instruction to Mr Jackson. In fact, it provided him with no instruction at all about re-tensioning his strapping. Moreover, although Mr Carkeet and Mr Hynes both gave evidence, neither was asked whether he had considered it necessary to re-tension his strapping at the end of the Old Boboyan Road. As both were called by Flydown, it may be inferred that any answer they might have given would not have assisted Flydown’s case on this issue.
SUFFICIENCY OF EVIDENCE
Flydown noted (correctly) that Mr Jackson bore the onus of establishing that, on the balance of probabilities, the load shift was caused by Flydown’s negligence. According to Flydown’s submissions, the factual support for the hypothesis of the front left-hand bolster hitting a tree or tree branch on the Old Boboyan Road and being dislodged to an angle of 32º (which, as noted, is the critical angle necessary to enable the beam and bolster to topple over) was “too thin to satisfy the burden of proof”. As put in those submissions:
(a)There is no direct evidence of whether [the bolster] came into contact with a tree: this is only a possibility and not a probability; and
(b)There is no direct evidence that if the bolster came into contact with a tree it did so with sufficient force to displace the bolster.
In support of these submissions, Flydown noted that: – (i) Mr Jackson heard, saw and felt nothing when driving along the Old Boboyan Road to suggest that a bolster hit a tree, (ii) despite this, the force of the postulated collision must have been such as to dislodge a weight of 6 tonnes (the quarter of the total load resting on the front beam and bolsters) so that the front bolster and beam system tilted back to an angle of 32º, (iii) Mr Jackson did not see the bolsters tilted back at an angle, (iv) the weight of the logs would have exerted a force counteracting the tendency of the beam to flip and of the bolsters to fall onto the tray of the trailer, and (v) it is not apparent why the second, third and fourth bolsters also did not collide with the same tree.
I have dealt with the factors (i) to (v) above. For the reasons given, none of these matters (whether taken in isolation or together) undermines Mr Lambert’s evidence. Nevertheless, it is true that there is no direct evidence of the front left-hand bolster colliding with a tree on the Old Boboyan Road either at all or with the force required to dislodge the front beam and bolster system. The question, however, is whether the evidence as a whole enables an inference to that effect to be drawn having regard to the relevant standard of proof (on the balance of probabilities).
Important considerations in this regard are that it is known that a significant load shift did occur, sufficient to destabilise the semi-trailer and to cause the prime mover to flip over before the trailer. It is also known that the instability resulted in the shift of the load to the left on the right-hand curve (by operation of centrifugal force), sufficient to show the trailer tracking outside the prime mover by 30 cm (demonstrating a large weight shift to the left). This load shift, on Mr Jackson’s description, did not merely involve one or two logs rolling to the left but a shift of the logs generally. It is known that the strapping on the earlier load was still under tension when Mr Jackson checked it at Tharwa. It is also known that there was no observable flapping of the strapping in the wind as Mr Jackson was driving. When this is taken with Mr Jackson’s evidence that he tightened the strapping before driving off from Boboyan Camp, Flydown’s thesis of loose strapping (as noted above) may be dismissed. It is known that Mr Jackson heard a loud bang, identifiable as the sound of steel on steel, immediately before the load shifted causing him to lose control of the vehicle. It is known from Mr Lambert’s calculations that the bolster and beam system is capable of being dislodged to an angle of 32º if hit with sufficient force. It is known that once the angle of 32º is reached, the tendency of the bolster and beam system will be to tip over with only the weight of the logs counteracting that tendency. It is known from Mr Lambert’s evidence that with the continued movement of the trailer it is possible that the force acting on the bolster and beam system causing it to tip over may exceed the force acting to maintain the system in an upright position. It is known that neither the chains nor the strapping would act to obstruct the beam and bolster system from tipping over. It is known that the front left-hand bolster was found lying flat under the trailer after the accident, which is consistent with it having collapsed onto the trailer tray before the accident. It is known that the front left-hand chain remained unbroken, which is inconsistent with the bolster having been upright at the time of the accident. It is known that there are trees along the left-hand side of the Old Boboyan Road which show the scars of impacts from heavy objects and have had overhanging branches cut from them. It is known that the load of logs from Mr Jackson’s trailer was deposited near the overturned truck at the site of the accident, suggesting a sudden failure of the load restraint system. Once all these considerations are taken into account, the inference that should be drawn on the balance of probabilities reflects precisely the conclusion which Mr Lambert reached: that this accident was caused by the left-hand front bolster colliding with a tree along the Old Boboyan Road such as to cause the front bolster and beam system to tilt back to an angle of at least 32º from the vertical. With the continuing movement of the vehicle, the forces acting on the front bolster and beam system overcame the forces exerted by the weight of the logs, causing the front beam and bolster system to tip over onto the tray of the trailer. As Mr Jackson was taking the right-hand curve, the load of logs, unrestrained by the front bolsters, was subjected to centrifugal forces and shifted to the left, destabilising the trailer and prime mover and resulting in the rollover that resulted in Mr Jackson’s injuries.
NEGLIGENCE
Although I am satisfied that the cause of Mr Jackson’s accident was the tipping over of the front bolster and beam system onto the tray of the trailer, the question remains whether Flydown was negligent. This question is to be answered by reference to the applicable common law principles and the requirements of the Act (summarised above).
As noted, the relationship between employer and employee is a known category of case giving rise to a duty of care on the part of the employer to devise, maintain and enforce a safe system of work, including providing suitable plant and equipment to enable the employee to carry out his or her work safely.
A reasonable employer in Flydown’s position as at 9 June 2004 would or ought to have known that the beam and bolster system on the trailer involved in the accident was capable of being dislodged if the top of a bolster came into contact with another object (see s 42 of the Act). The employer ought to have known this because: – (i) the beam and bolster system was temporary, involving the beam being laid across the tray of the trailer and the bolsters inserted into the beam, (ii) the relatively low width of the bottom of the beam would result in the whole system falling backwards if a bolster were struck with sufficient force, (iii) the chains were of sufficient length not to retard the beam and bolster from falling backwards, and (iv) nothing else but the weight of the logs held by the system once loaded on the beam and against the bolsters would act to prevent the beam and bolsters falling backwards if the colliding force on the top of the bolster exceeded the forces exerted by the weight of the logs. Further, it was apparent that this temporary system differed from the system on the O’Phee trailer, in which there was no possibility of a bolster falling backwards as each bolster was inserted into a sunken socket in the trailer tray itself.
As a result, a reasonable employer in Flydown’s position at 9 June 2004 ought to have known that if a bolster collided with another object the beam and bolsters could be knocked backwards, creating a real risk of the bolsters falling onto the trailer tray and a high risk that, by reason thereof, the load would shift sideways, destabilising the vehicle and thus causing a rollover and the death of or injury to the driver. This risk was both foreseeable (s 43(1)(a)) and not insignificant (s 43(1)(b)) because: – (i) as noted, the temporary beam and bolster system was capable of dislodgment and collapse if the top of a bolster collided with another object, (ii) the condition of the Old Boboyan Road, with trees close to the side and overhanging branches, created a real risk of collision between the top of a left-hand bolster and another object (being a tree itself or a branch) and so of the collapse of the beam and bolster system, and (iii) the collapse of the beam and bolster system in turn created a real (indeed, high) risk that the load would shift sufficient to destabilise the vehicle and cause it to roll over during ordinary transport.
Moreover, a reasonable person in Flydown’s position would have taken precautions against this risk of harm (s 43(1)(c)). As Mr Lambert said, such precautions could have been taken. First, according to Mr Lambert most logging trucks use specifically designed trailers such as the O’Phee trailer. While Mr Lambert is aware of the use of temporary beam and bolster systems in the logging industry, to the best of his knowledge those systems are rare and, if used, involve a wider base on the beam and (in one case) the addition of chains under tension to promote stability. Mr Lambert also gave evidence that if a temporary beam and bolster system is to be used then, for a cost of about an additional $300 to $400 per bolster, the bolster and beam system can be modified to have a wider base for the beam and an adjustable system for the chains (involving a grab hook and eye bolt) so that the chains provide resistance to the collapse of the beam and bolsters. Mr Axup is not particularly familiar with the logging industry, but is aware that temporary beam and bolster systems are in use for the carting of other materials, such as steel pipes. Mr Axup, however, did not know if those systems involved wider bases for the beam and chains under tension to promote stability.
Having regard to the real probability of harm if precautions were not taken to improve the stability and resistance to collapse of the temporary bolster and beam system on the trailer involved in the accident, the likely seriousness of that harm (including the risk of the death of or injury to the driver of the rig using the trailer), the relatively minimal nature of the financial and other burden that modifications of the temporary system would have involved, and the social utility of the activity in which Flydown was involved (see s 43(2) of the Act), a reasonable person in Flydown’s position would not have deployed the temporary bolster system on the trailer on 9 June 2004 in its unmodified form.
For these reasons, Flydown was negligent on 9 June 2004 in providing Mr Jackson with a trailer using an inadequate temporary beam and bolster system for the purpose of restraining the load of logs he was required to carry from Boboyan Camp to the depot site closer to Canberra. Flydown’s negligence caused the injuries Mr Jackson sustained in the accident on 9 June 2004, both in that Flydown’s negligence was a necessary condition of the occurrence of the harm (s 45(1)(a)) and in that it is appropriate for the scope of Flydown’s liability to extend to that harm (s 45(1)(b)). Moreover, Flydown is wholly responsible for the harm Mr Jackson suffered. It had sole control over the provision of the prime mover and trailer to Mr Jackson. It decided to use the temporary bolster and beam system. It provided Mr Jackson with a trailer capable of carting logs only if the temporary beam and bolster system were deployed. It provided Mr Jackson with no information about the potential for the temporary bolster and beam system to be dislodged if a bolster collided with another object. It required Mr Jackson to drive the loaded vehicle down the Old Boboyan Road, thereby exposing the front left-hand bolster to the real risk of collision with an object (a tree or tree branch) sufficient to dislodge the bolster to the critical angle of 32º and so to cause load shift and the rollover of the vehicle in the manner outlined above. Mr Jackson was not in a position to protect himself from Flydown’s negligence. A person in his position would have had no reason to assume that the equipment with which he had been provided was inadequate for its purpose. As noted, I also do not accept that a person in Mr Jackson’s position would or should have observed the collision with the tree or tree branch along the Old Boboyan Road or the fact that the front bolsters had been knocked back to an angle before the accident occurred. Otherwise I have already dealt with, and dismissed, Flydown’s alternative thesis that excessive speed and/or loose strapping had any role to play in the accident. As such, there was no failure to take reasonable care on the part of Mr Jackson (s 102(1)).
Finally, I should record that I do not consider the competing evidence of Mr Lambert and Mr Axup about compliance of the temporary beam and bolster system with the Load Restraint Guide 2004 to be material to the outcome of this case. The only relevant part of the Load Restraint Guide which has legal force and effect is the performance standards in Section F. While Mr Axup considered that the temporary load restraint system complied with these requirements because the bolster and beam system is designed to prevent lateral load movement only (the strapping preventing forward load movement), that interpretation does not commend itself. A beam and bolster system capable of collapse as in the present case is outside the contemplation of the performance standards, which require the system as a whole to ensure that the load does not become dislodged during the expected conditions of carriage. If it is necessary so to find, I am satisfied that the temporary beam and bolster system used by Flydown on the trailer on 9 June 2004 contravened the requirements of the Load Restraint Guide.
CONCLUSIONS
It follows that Flydown’s negligence caused Mr Jackson harm. There was no contributory negligence on Mr Jackson’s part. Judgment should be given in Mr Jackson’s favour, with damages awarded in the agreed amount of $250,000 (with any required deductions), as well as interest and costs.
I certify that the preceding (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Jagot.
Associate:
Date: 29 August 2011
Counsel for the plaintiff: Mr F Purnell SC with Mr W Sharwood
Solicitor for the plaintiff: Ken Cush & Associates
Counsel for the defendant: Mr R Clynes
Solicitor for the defendant: Sparke Helmore
Date of hearing: 18-22 July 2011
Date of judgment: 29 August 2011
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