Jakovich Transport and Earthmoving Pty Ltd v Spiral Tube Makers Pty Ltd - [2000] WASCA 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: JAKOVICH TRANSPORT & EARTHMOVING PTY LTD -v- SPIRAL TUBE MAKERS PTY LTD & ANOR [2000] WASCA 46

CORAM: KENNEDY J
PIDGEON J
MURRAY J

HEARD: 11 OCTOBER 1999

DELIVERED : 1 MARCH 2000

FILE NO/S: FUL 57 of 1999

BETWEEN: JAKOVICH TRANSPORT & EARTHMOVING PTY LTD
Appellant (Third Party)
AND
SPIRAL TUBE MAKERS PTY LTD
First Respondent (Defendant)
ALLAN GEORGE BRIAN ANTHONY
Second Respondent (Plaintiff)

Catchwords:

Negligence - Liability of master for injury to servant - Master engaged by manufacturer to transport metal culverts by truck - Servant the driver of the truck - Negligence of manufacturer in loading culverts causing injury to servant - Contributory negligence of master - Equal apportionment of liability not interfered with

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Third Party) : Mr D R Clyne
First Respondent (Defendant) : Mr N W McKerracher QC &
Mr A A Jenshel

Second Respondent (Plaintiff) : No appearance

Solicitors:

Appellant (Third Party)              :    McAuliffe Schwikkard
First Respondent (Defendant)     :    James McManus & Associates
Second Respondent (Plaintiff)    :    No appearance

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

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6
Kondis v State Transport Authority (1984) 154 CLR 672
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR

Case(s) also cited:

Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Benton v Tea Tree Plaza Nominees Pty Ltd (1995) 64 SASR 494
Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487
Dezso v De Wal, unreported; DCt of WA; Library No 3489; 11 September 1992
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Forsayth Mining Services Pty Ltd v Jack, unreported; FCt SCt of WA; Library No 950300; 10 May 1995
G & L Waterproofing Supplies Pty Ltd, unreported; FCt SCt of WA; Library No 940342; 21 June 1994
Jakovich Transport & Earth Moving Co v McKinley, unreported; FCt SCt of WA; Library No 960100; 1 March 1996
Karajan Holdings Pty Ltd v Neat Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 920185; 2 April 1992
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Rendell Holdings Pty Ltd v Athans Taylor, unreported; FCt SCt of WA; (1989); Library No 7942
Stanley v Phillips (1966) 115 CLR 470
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 72 ALJR 937
Watt v Bretag (1982) 56 ALJR 760
Wynbergen v Hoyts Corp Pty Ltd (1997) 72 ALJR 65

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. For the reasons which his Honour gives, I agree that this appeal should be dismissed.
In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, the High Court discussed the basis upon which contributory negligence should be apportioned. At 494, Gibbs CJ, Mason, Wilson, Brennan and Deane JJ, in a joint judgment, said:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre (1958) Tas SR 36 at 42‑49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparitive examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
On this basis, no error on the part of the trial Judge with respect to the manner in which he approached his task has been demonstrated.
At 493 ‑ 494, the court in Podrebersek's case said:
"A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion as to which there may well be differences of opinion by different minds" : British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed."
Although in this case there can be no doubt that differing views may fairly be held on the question of apportionment, I am not persuaded that

this Court would be justified in overturning the decision of the learned trial Judge.

PIDGEON J: The appellant is the owner of a road train. Its driver, Mr Anthony, received serious injuries when a large pipe rolled from a trailer of the road train as it was being loaded in the yard of a consignor. Mr Anthony brought action in negligence against the consignor alleging a failure to have a safe system of loading and claiming that the consignor was vicariously liable for the negligence of its fork-lift driver who was loading the pipe. Mr Anthony did not allege in his claim that his employer, the appellant, was negligent. The defendant however, issued a third party notice in which it claimed that the appellant breached its duty of care to Mr Anthony and sought contribution. The trial judge found that the appellant did breach its duty of care as an employer and ordered that it pay contribution to the extent of 50 per cent. The appellant is appealing and claims that there was no breach of duty on its part towards its employee and claims, in the alternative, that if there were such a breach of duty, the contribution should be less.
In order to determine the questions raised in the appeal it is necessary to refer to the evidence relating both to the accident and to the persons who were the parties to or who were involved in the contract of carriage and the loading of the consignment. Mr Anthony, who was born in 1951, said in evidence that his employer, the appellant, owned the road train which was used for line haul work and he had for a number of years been its driver. He was a very experienced trucker having been in the industry for most of his life. He said that the large carriers such as Brambles or Gascoynes would request the use of the road train to carry their consignments and would make a contract with the appellant for this purpose. He would be told to go to a depot of such a carrier and to carry what he was told. Often he did not know what the load was to be until his arrival at the depot of the carrier.
The accident the subject of this appeal occurred on 22 June 1995. About three weeks or so earlier, a carrier, Transhaul, requested the use of the road train to carry 32 large pipes from the premises of the first respondent at Bayswater to a mining site at Mt Keith, south of Wiluna. Mr Anthony, over a three week period, had made a number of trips in the course of carrying this consignment prior to the accident occurring. Four pipes would be taken on each trip, they being loaded in pairs on the two trailers which comprised the road train.
Each pipe was 12 metres long, 1.5 metres in diameter and weighed approximately 1.5 tonnes. The pipes were of the same length as a trailer

but were a little wider than half the width of the trailer which meant that it was not possible to lay two pipes on the floor of the trailer. It was decided to stack the second pipe so that it rested in the air on the other side of the trailer to the first pipe but with one side resting on it and the other side resting against extended bolsters at the side of the trailer. The pipes were placed on the trailer by a fork-lift owned by the defendant and driven by its driver. His Honour found that the fork-lift was of relatively small capacity and that great care would have been required by the fork-lift driver to lift the pipes with safety. The fork-lift picked up the pipe at its point of balance. The method of loading was that the pipe was laid by the fork-lift on the floor on the right hand or driver's side of the trailer. It was supported on its right hand side by two bolsters attached to the right hand side of the trailer, one near its front and the other near the rear. The bolsters were about the same height as the pipe. The second pipe was then placed by the fork-lift on the left hand side of the trailer. It could not, because of its width, reach the floor so it rested at a higher level with its right side diagonally resting on the first pipe and its left side against extensions to the left side bolsters. Straps were then placed across the load from one side of the trailer to the other and tightened. They were further tightened by straps running underneath the higher pipe. The strapping would relieve to an extent the weight on the bolsters. The bolsters and extensions remained with the road train while it was engaged in transporting the pipes. On the return trip the back trailer was "piggybacked" on the truck trailer and the road train went to Transhaul's yard (AB53). During this return trip the bolsters and extensions were laid on the floor of the truck trailer. Mr Anthony explained how one trailer and then the other was taken from Transhaul's yard to the defendant's yard for loading the next pipes to be transported and how the bolsters and extensions were transferred to the back trailer

I shall now refer to the evidence as to who made the decision to carry the pipes in this manner and as to how they were loaded. There was in fact very little evidence on these questions with no evidence on the question coming from the principals of the firms involved but with some evidence coming from Mr Anthony and the fork-lift driver an employee of the defendant (the first respondent). Mr Anthony said in respect of the first instruction he received about the load was that he was told by the appellant to go to Transhaul's depot. He was told that he was to load two pipes and they were supplying the bolsters. He does not say who told him this or when. On arrival at the yard of Transhaul he was supplied with the bolsters and with their extensions. He was then told by a person at Transhaul to drive to the premises of the defendant to pick up the load. When he ascertained further detail as to the load he asked if a crane or a fork-lift was to be used for loading and was told the latter. At an early stage he said that the bolsters were not strong enough and stronger ones were provided. A brace was at some stage attached to the bolsters on the left hand side, these being the bolsters required to support the higher pipe. The evidence would indicate that these decisions were made between Mr Anthony and Transhaul or the defendant and not with the appellant. Mr Anthony said that the decision to load two pipes on each trailer in the manner I have described was made between Transhaul and the defendant. There is no other evidence on this question.
Mr Anthony said that he had certain responsibilities as driver. He was required to see that the load was safe, properly distributed and within load limits before he drove the vehicle on the road. He would have this obligation under the road traffic law. He was present and made sure that each pipe was loaded as far forward as possible so that there was no overhang at the rear. For this purpose he used a rope to pull the front gate of the trailer as far forward as possible while the pipe was being placed in position. This also ensured that the pipe was clear of the gate. Extensions were not put into the bolsters on the right hand side. As the pipe on this side rested on the floor its height was within the bolster so an extension was not necessary for its safe carriage. An issue arises whether the extensions ought to have been in place during loading to prevent the second pipe from falling in the event of its rolling loose prior to strapping. The second pipe was loaded from the left hand side prior to the extensions on that side being put in place. The extensions would have made it too high for the fork-lift. When the pipe was in place and after it had been strapped, Mr Anthony would put the extensions in on the left hand side. The fork-lift driver would lift him up on the fork-lift for this purpose. When a trailer arrived in the defendant's yard for loading Mr Anthony would set up and tie the bolsters in place.
Mr Anthony also helped with the strapping. The fork-lift driver would lower the second pipe to within a short distance of the second pipe and would then stop. He would climb from the fork-lift and onto the trailer. Mr Anthony would then throw the straps across to enable the fork-lift driver to do the strapping. It was during this operation that the accident occurred. Mr Anthony had brought in one of the trailers and a pipe was loaded on its right hand side. Following this, the fork-lift driver commenced to lower the second pipe on the left hand side of the trailer. He stopped when it was close to the first pipe and alighted from the fork-lift to the trailer so as to fix a strap. He then realised that the pipe was too close to the first pipe and the strap could not be placed under it. It was necessary for him to get back into the fork-lift and raise the second pipe slightly in order to increase the gap so that he could secure the strap. His Honour said that in the course of doing this, for a reason which was never explained, the second pipe commenced to roll forward off the forks of the fork-lift. It then rolled or bounced over the first pipe, went over the bolsters on the right hand side and struck the plaintiff who was on the right hand side of the trailer.
The defendant conceded that it was liable to Mr Anthony in negligence. His Honour was required to judge the issues raised by the third party notice. It was claimed in that notice that the appellant failed to provide and instruct the plaintiff as to a safe system of loading the pipes. It claimed further that the appellant failed to take proper measures to ensure that the plaintiff was not exposed to the risk of injury from pipes falling during loading and it claimed specifically that the appellant was negligent in failing to instruct the plaintiff to install extensions to the bolsters on the right hand side during loading. His Honour said in respect of this last allegation that the question for determination, given that bolster extensions were available, was whether the appellant should have instructed the plaintiff on the desirability of placing bolster extensions on the right hand side of the truck at least during the loading process.
His Honour found that the risk of the pipe rolling off the truck in the way it did was an apparent risk and it could be easily removed by putting the bolster extensions in on the right hand side. He found that the appellant was negligent in failing to instruct the plaintiff to take steps to avoid the risk and to remove the danger of a falling pipe. His Honour found that each of the matters in the third party claim, to which I have referred, as proved. He said that there was no evidence that the appellant concerned itself at all with the safety aspect of a system of loading the pipes and he considered that the appellant was oblivious to the system of work being followed.
I shall deal firstly with the fourth ground of appeal which claimed that it was not open to find the appellant negligent in that
"(a)the evidence was that the Appellant (Third Party) had subcontracted the services of the Second Respondent (Plaintiff) and his truck to Transhaul and that the system of loading and transporting the pipes was one devised by the First Respondent (Defendant) and Transhaul such that the Trial Judge should have found that there was as a consequence of those circumstances a relationship of proximity between the First Respondent and Transhaul towards the Second Respondent such as to impose on them a non-delegable duty of care which duty they breached by failing to devise, implement and maintain a safe system of loading;
(b)in those circumstances there was no duty of care then imposed on the Appellant (Third Party) which was breached by it."
If the appellant is claiming that the nature of the contract between Transhaul and the appellant was that Transhaul were entirely responsible for the loading and the carrying of the pipes to their destination, then it would be necessary to plead that proposition and to lead evidence as to what was the actual contract. No principal of the appellant gave evidence and the defendant's manager did not in his evidence refer to the actual contract. The only reference to the contract came from the two drivers, namely the appellant and the fork-lift driver. They could not be expected to know what the true contract was and to an extent their evidence on this question was hearsay. There were no waybills or documents of carriage in evidence showing who was the carrier. His Honour was not called upon and did not judge the question raised by this ground. It could not be sustained without the appellant calling or pointing to evidence of the type to which I have referred.
The second ground claims that it was not open on the evidence to reach the view that the appellant was in breach of its duty to its employee, Mr Anthony. It is clear and it is conceded that the appellant owed Mr Anthony a duty of care. The finding of his Honour was that bolster extensions were available to be inserted on the right hand side and the appellant should have been instructed to insert them. They were not required for carrying the load but it was claimed and it was found that it would have been a proper precaution to insert them during loading in case the second pipe rolled off. There was evidence before his Honour to support the fact that the bolster extension should be used. An expert engineer called by the plaintiff, Mr Apgar, said in his report (AB 138):
"It is understood that bolster extensions were provided which would control the pipe if this occurred. They were located in the tray of the truck trailer and could have easily been installed after the first culvert pipe was loaded.
The responsibility for the installation of these bolsters extensions is clearly that of the operator of the truck. The employer of the truck driver has apparently provided a safe system for loading the culverts. It remains to be determined if the employer of the truck driver gave adequate instruction and/or training in the use of these bolster extensions."
Mr Anthony said that it was the tri-axle trailer that was being loaded and the photos show this as the back trailer and not the truck trailer but that would not detract from the thrust of the evidence. Extensions were readily available.
The defendant undertook the lifting of the pipes onto the trailer with the defendant's fork-lift. Mr Apgar, who was called by the defendant, expressed the view that the defendant could have secured the pipes onto the fork-lift truck in a far safer way and in a way which would make the use of bolster extensions unnecessary. This section of the report read (AB 139):
"It is not uncommon to handle large pipes with a fork-lift truck using only the normal forks. Even with the observance of normal safety precautions this can be an awkward operation. There are alternative loading procedures which could make operations safer and quicker. Steps which would have made this procedure safer are:
It would be good practice to secured the culvert pipe to the fork-lift (temporary lashings could be used).
The down lines should have been pre-installed on the second culvert pipe before it was elevated. The straps could then be thrown over to the other side of the trailer after the pipe was in place. This would make it unnecessary for the fork lift operator to climb onto the trailer and place himself under the elevated load.
The pipe should have been positioned on the ends of the fork-lift forks using a custom made saddle or alternatively chocks so that the pipe could be lowered into position without the need to roll the pipe off of the fork-lift forks.
This procedure would make the use of bolster extensions unnecessary. (The method used to elevate a worker on the fork lift to install these extensions may also involve safety violations.)"

A number of the issues raised on the pleadings were settled prior to or during the trial. It was admitted that the defendant was negligent and the amount to which Mr Anthony was entitled to judgment was also agreed. This meant that his Honour was not required to judge the question of contributory negligence on the part of Mr Anthony. The trial was limited to the question of contribution by the appellant. His Honour was, however, required to weigh up the defendant's negligence for the purpose of making an apportionment. He made two references to this negligence. He said that his view of the evidence was that the fork-lift driver was significantly negligent in the operation of the fork-lift. When making the apportionment he said that the conduct of the fork-lift driver in attempting to reposition the pipe when he knew it was not secured to the forks and when he did not know or check where Mr Anthony was standing amounted to gross negligence.
The question now arises as to how a negligent defendant can claim that the employer of the injured person should contribute to the damage the defendant is required to pay. The path sought is s 7(b) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. This provides that any tortfeasor liable in respect of the damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise. It extends to both joint tortfeasors and concurrent tortfeasors. The appellant on the evidence could not be seen as a joint tortfeasor in the sense that there is no evidence to show that it was a party to the decision to carry the pipes stacked two on a trailer in the manner they were or was a party to using a fork-lift and, in particular, was a party to using the fork-lift in the way the operator did when causing the injury. The defendant can still maintain the claim under the section if it can show that the appellant is a concurrent tortfeasor. The onus would, in these circumstances, be on the defendant to show that the appellant breached its duty of care to its employee. There may be a difference in the evidentiary onus inasmuch as possible inferences that might arise from the happening of the accident may be open in a claim by the employee but would not be open when the negligent party is making the claim.
In my view on the facts of this case and the state of the evidence it is not open to say that the defendant has established negligence against the appellant as the employer of the injured driver. The evidence, including evidence led by the defendant, shows that the defendant created the dangerous situation. The defendant was placing the pipes on the trailer with the fork-lift and had the obligation to load them safely and did not take steps to better secure the pipes onto the forks of the fork-lift. The

appellant was not a party to that. It must be shown, in order to make the appellant a concurrent tortfeasor that the appellant knew or ought to have known of a danger of that type and should have taken steps to protect its employee from it. The defendant, which carried the onus on this particular question, did not lead evidence as to whose decision it was to carry the pipes in pairs instead of singly and did not lead evidence to show that the employer was a party to loading them in this fashion and as to the means of loading them. The defendant called Mr Anthony who said that the defendant and Transhaul worked out the way the pipes were to be loaded(AB 52-3). It was a safe load once loaded. The danger was in the loading. There is no evidence to show that the employer would have had knowledge of or could have foreseen that a danger of this type may arise.

The evidence showed and his Honour found that Mr Anthony was very experienced in the trucking industry. He knew how to install extensions. The complaint is, he should have been told to install them during loading in the circumstances in which the pipes were loaded. I do not consider there is any evidence to show that the employer would have had knowledge of these circumstances or could have expected that circumstances of this type would have arisen. I consider similar remarks apply to the other circumstances of negligence found.
His Honour said that there was no evidence that the appellant concerned itself at all with the safety aspects of the system of loading pipes of this type. It was the defendant who had the onus of proof and I do not consider the circumstances arose where the appellant was required to introduce evidence of this type. His Honour went on to say that it appeared that the appellant was oblivious to the system of work being followed by its employee the plaintiff. As the plaintiff was an experienced trucker there would be no obligation on his employer to check every operation unless circumstances arose where the employer ought to have foreseen there could be a danger in respect of a particular loading. The evidence does not show that the employer had such knowledge. In these circumstances I do not consider it was open to make a finding of negligence on the third party notice. I would allow the appeal, set aside the order made on the third party notice and substitute an order that the notice stand dismissed. The other grounds of appeal are not required to be considered.
MURRAY J: I have had the advantage of reading a draft of the reasons for decision delivered by Pidgeon J. I gratefully adopt his Honour's statement of the facts of the case and I express the immediate conclusion that, in my respectful opinion, his Honour is right to hold that the appeal

may not succeed upon the fourth ground of appeal, the particulars of which in par (a) and par (b) have been set out by Pidgeon J. Although the ground is in terms a complaint that the learned trial Judge erred in finding the appellant negligent upon the basis of the particulars given, this is really a complaint that in the circumstances the appellant owed no duty of care for the safety of the second respondent, its employee, the truck driver, Mr Anthony.

In the particularisation of this ground the appellant asserts that it had subcontracted Mr Anthony's services together with the truck he drove to a company, another carrier, identified only as Transhaul. It was Transhaul who apparently had the contract with the first respondent to cart its pipes from the Bayswater premises of the first respondent to the mining site at Mt Keith, south of Wiluna. The ground of appeal asserts that in those circumstances it was both the first respondent and Transhaul who owed Mr Anthony the duty of care to devise, implement and maintain the safe system of loading the truck and no duty of care was imposed on the appellant.
It may be the case that difficult questions may arise, where the services of an employee have been contracted out and that person is injured solely as the result of the negligence of the person who has hired the services of the employee from the employer, as to whether the employer remains liable for the breach of that duty, given the non‑delegable nature of the duty of care it owes to its employees: cf Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6, 7 and 13. But those are not the findings of fact made by the learned trial Judge.
His Honour held, in effect, that Transhaul sought to perform its haulage contract for the first respondent by subcontracting the work to the appellant. That, I think, is consistent with the way in which Mr Anthony pleaded his case and with his evidence at the trial, although, as Pidgeon J has observed, that evidence and similar evidence given by the first respondent's forklift driver, Mr Rothe, was evidence which was hearsay in the third party proceedings between the first respondent and the appellant.
Interestingly, in its defence, the first respondent pleaded that it did not know the nature of the relationship between Transhaul and the appellant, relying on the relationship of employer and employee as between the appellant and Mr Anthony, and alleging in particulars of negligence which were found by the learned trial Judge to be proved that the appellant was negligent in failing to provide and instruct Mr Anthony as to a safe system of loading the pipes onto the truck; in particular, failing to specifically instruct Mr Anthony in relation to the use of "upright vertical bolsters to be fitted to the truck during the loading operation."
The latter issue, of course, relates to the extensions to be fitted to the bolsters attached to the driver's side of the trailers to be hauled by the prime mover only during the loading operation for the express purpose of holding on the back of the trailer any pipe being loaded as the second pipe on the trailer which happened, as in this case, to roll across the first already loaded pipe from the other side of the trailer so that it might fall off the trailer on the driver's side. That, of course, was the way Mr Anthony was injured in this case.
In truth, there was no issue, as it seems to me, on the pleadings or upon the evidence led in the third party proceedings, that in the circumstances in which the accident occurred the appellant owed Mr Anthony a non‑delegable duty of care to provide and ensure the implementation of a safe system of work to preserve him from harm during the operation of loading the pipes: Kondis v State Transport Authority (1984) 154 CLR 672, 679 ‑ 687; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, 550 ‑ 551. Shortly put, as those cases make clear, the nature of the duty is said to be perhaps more stringent than that normally applying and is expressed to be a "duty to ensure that reasonable care is taken".
As Pidgeon J has pointed out, the essential facts in this case were, as found by the learned trial Judge, that Mr Anthony was a driver of considerable experience. He had participated with an employee of the first respondent in devising the system. It involved the use of bolsters to be fitted to the trailers to hold the pipes in position once they were loaded. Extensions were available. They were all obtained from Transhaul. The system did not involve the use of extensions to the bolsters on the driver's side of the trailers during the loading operation. Had they been used, Mr Anthony would not have been injured. The failure to use bolster extensions on the driver's side of the trailers during the loading operation is the key element in the negligence which the learned trial Judge found caused Mr Anthony's injuries.
It was not in contest before his Honour that the first respondent was guilty of negligence, both because of its contribution to the failure to provide a safe system of work and vicariously for the negligence of the driver of the forklift who so handled the pipe being loaded that it rolled over the first pipe and off the opposite side of the truck so as to strike Mr Anthony. It was incidentally the case that, given Mr Anthony's general experience, his implication in the process of devising the system of work employed, his experience of it and the position he must have been in on the opposite side of the truck out of sight of the forklift driver when he was struck, Mr Anthony himself, who was found to be aware of the danger of a pipe rolling off the truck, must have been guilty of contributory negligence. However, as his Honour observed, the trial of the proceedings before him required no enquiry into the question of the negligence of the first respondent or Mr Anthony's contributory negligence.
Further, his Honour found, as he put it, that "there was no evidence the [appellant] concerned itself at all with the safety aspects of the system of loading culverts. It appears that the [appellant] was oblivious to the system of work being followed by its employee, the plaintiff." In that event his Honour found the appellant to be in breach of its duty of care to Mr Anthony by its failure to devise a safe system and to instruct Mr Anthony in its use.
In my opinion the learned trial Judge was not in error in so concluding. The appellant was in breach of its duty of care because it did nothing to ascertain the system of work being employed, to concern itself with the safety of the loading operation, and to see that Anthony was properly instructed in the application of a safe system. It could not excuse its failure by reference to the fact that the work was to be performed on the premises of the first respondent which was itself in breach of its duty of care to Mr Anthony. It could not be said that the appellant's breach of duty was not causally related to the receipt of the plaintiff's injuries. The safety of the system of work was not entirely the responsibility of the first respondent; nor, of course, was it any answer to refer to the failure of Mr Anthony to take care for his own safety.
It was not a matter of the appellant's management being on site to supervise the loading. In my view, however, the appellant was bound to enquire into and ascertain what system of work was being employed. It was bound to give attention to the safety of that system and in the circumstances of this case, specifically, it was bound to instruct that the obvious remedy of the use of extensions to the bolsters on the driver's side of the trailers during the loading of the second pipe was to be employed. Further, the appellant was, in my opinion, bound to ensure that its employee, despite his experience, understood the need always to take care of his own safety by not placing himself in a position of danger and understood the need for continuing vigilance in that regard. I would not uphold the first and second grounds of appeal.
As to the third ground, that concerned with the equal apportionment of liability between the appellant and the first respondent made by the learned trial Judge, again I am not persuaded that his Honour fell into error. It was very much a matter for his Honour's judgment to assess the relative contribution to the plaintiff's injuries made by the appellant and the first respondent. It was a discretionary judgment required of the trial Judge, and in my respectful opinion, an equal apportionment in the circumstances of the case is a perfectly defensible outcome.
Finally, I note that the last ground of appeal complains about the certificate for second counsel in relation to costs which was granted by the learned trial Judge. Again, it was a matter for his Honour to consider whether the issues of fact and law arising in the case were such as to reasonably justify the use of senior counsel. I am not persuaded that his Honour's discretion miscarried on this point and I would not allow the appeal on this ground alone.