JLG Industries Inc v Teetree Pty Ltd

[2001] QDC 331

DISTRICT COURT OF QUEENSLAND

CITATION:

JLG Industries Inc v. Teetree Pty Ltd & Anor [2001] QDC 331

PARTIES:

JLG INDUSTRIES INC (Plaintiff)
v.
TEETREE PTY LTD (Defendant)
And
NATIONAL MARINE INSURANCE AGENCY LIMITED (Third Party)

FILE NO/S:

D4867 of 1999

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

19 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2001

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendant pay the plaintiff $176,772 plus costs

CATCHWORDS:

BAILMENT – Duties of Bailee – carrier – goods damaged in transit when trailer overturned – whether bailee has shown absence of negligence

John F. Goulding Pty Ltd v. Victorian Railway Commissioners (1932) 48 CLR 157 - cited
Hobbs v. Petersham Transport Co Pty Ltd (1971) 124 CLR 220 - applied
Morris v. C W Martin & Sons Ltd [1966] 1 QB 716 – cited

COUNSEL:

S.C. Derrington for the plaintiff
P.F. Mylne for the defendants

SOLICITORS:

Murrell Stephenson for the plaintiff
Wonderley & Hall for the defendant

1. The plaintiff is an international manufacturer of work platforms which are imported into Queensland for sale to a range of customers: p.4.  In December 1998 it sold two articulated boom lifts to O’Donnell Griffin for a total of $139,958 (Exhibit 5), which were to be delivered to Phosphate Hill: p.4.  In the course of being transported there the trailer on which the two units were being carried overturned, and the units were damaged beyond economic repair.  After making allowance for some small salvage recovered (p.5), and some other matters, the defendant’s loss came in total to $142,558 (Exhibit 3), the amount claimed in this action.  Quantum was not actively disputed.  Although the claim relies on breach of contract and negligence as well as breach of duty as bailee for reward, the claim was argued only on the third of these bases. 

The Law

1. It was not disputed that the defendant was the bailee of the goods at the relevant time, and that its duty in respect of them was that of a bailee for reward.  As such it was bound to use due care and diligence to keep the goods safely and to deliver them undamaged.  The standard of care and diligence is that which a careful and vigilant man would exercise in respect of goods of his own of the same kind in similar circumstances:  Hobbs v. Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 238 per Windeyer J. Such a duty is not broken if the defendant was prevented from delivering the goods by loss or destruction which reasonable care and skill on its part could not have avoided: John F. Goulding Pty Ltd v. Victorian Railway Commissioners (1932) 48 CLR 157 at 166. The onus is on the bailee to show that the loss or damage occurred without any neglect or default or misconduct on the part of itself or on the part of any employee: Morris v. C W Martin & Sons Ltd [1966] 1 QB 716 at 726.

1. In Hobbs (supra) the goods in question were damaged as a result of the vehicle on which they were being conveyed overturning when its axle broke.  The evidence showed that the axle had broken unexpectedly, and the vehicle was nearly new and well maintained and believed to be in good condition, so the carrier had shown that the damage had been caused in a way which did not involve any negligence on its part.  Menzies J at p.234 did note however that, had it not been for the evidence that the fracture was a clean and fresh break, the failure to call evidence that the axle had been inspected periodically in the course of servicing the vehicle would have meant the defendant’s attempted proof that it was free from blame would have been incomplete.  The defendant had discharged the onus by showing that the goods were damaged by an accident caused by a latent defect in the vehicle not discoverable by reasonable inspection. 

The facts

1. In the present case the only evidence as to the circumstances of the accident was the evidence of the driver of the vehicle.  His was the only evidence which touched on the question of negligence.  He was an experienced truck driver, having been driving trucks interstate for 14 years (p.6) and in particular he had some experience of driving the sort of vehicle that was involved in the present incident, a prime mover hauling two trailers: p.16. The prime mover was about 9 metres long (p.6), pulling two trailers each 13 metres long, with the second trailer (referred to as the dog trailer) attached by means of a dolly behind the first: p.7.  The plaintiff’s goods were loaded on the second trailer.  At the time of the accident he was driving this rig about 10 to 15 kilometres outside Ilfracombe: p.6. 

1. The road was a straight and flat (p.17) sealed bitumen highway,  one lane each way, with a marked centre line and fog lines close to each edge of the bitumen: p.7.  He gave an estimate of the width of the bitumen at 20 metres.  As roads went it was a very good road, but the weather conditions at the time were unfavourable:  there was medium rain falling, which made the road wet and slippery: p.7.  Beyond the bitumen there was a sloping shoulder of black soil which, because of the rain, was very slippery and boggy and difficult for a truck to get out of, so that it was from his point of view very dangerous: p.8.  He was driving at 90 kilometres per hour, within the speed limit, at a speed he said was safe: p.12.  Even with the rain, there is no reason not to accept that evidence, as it was a straight, flat, wide sealed road.

1. Shortly before the accident he saw another vehicle coming towards him, which proved to be a truck carrying a demountable cabin;  it was fitted with flashing lights because the load was wider than usual: p.8.  As the vehicle approached, he reduced his speed to about 80 or 85 kilometres per hour and moved his vehicle to the left towards the fog line, although the prime mover stayed on the bitumen[1]. Obviously his intention was that the entire vehicle would remain on the bitumen.  He said he had no difficulty passing the oncoming vehicle: p.8.  There is no suggestion that there was any collision with it.

   [1]This is different from the account in an earlier version of the defence (Exhibit 6) which has the driver going deliberately onto the verge to avoid the wide load, but this was not accepted by the driver in cross-examination as being based on what he had said: p.13.

1. Immediately after the vehicle passed however he noticed that the wheels of the second trailer (that is, the wheels at the left rear of it) were off the bitumen and in the black soil: p.9.  He felt a jerk in the prime mover, and after a couple of seconds this had dragged the whole of the left side of the rig on to the shoulder.  The effect of the additional drag reduced his speed to about 40 to 50 kilometres per hour: p.9.  No doubt he was not paying too much attention to his precise speed at that point.  He was concerned about this situation, because he was afraid that if he could not get his vehicle back on the bitumen it might become stuck in the mud, or roll to the left: p.15.  He was able to drive the prime mover back on to the bitumen, and drove it onto his incorrect side (fortunately there was no other traffic about at the time) in an attempt to drag the trailers back on to the bitumen: p.10.  The first trailer came off the shoulder without difficulty, but when the second trailer came back on to the bitumen it must have come too abruptly, because it went straight across to the other side of the bitumen, onto the shoulder on that side, and rolled over: p.11, p.17.  It was at this point that the plaintiff’s units were damaged. 

Analysis

1. The driver’s evidence, that it would have been unsafe simply to pull up with his left hand wheels on the black soil shoulder given the prevailing conditions, was uncontradicted, and there is no basis upon which I could find that there was any negligence in his failing to do so.  What he did in order to attempt to get the whole of his vehicle back on to the bitumen was not obviously inappropriate, and there is no evidence that it was inappropriate.  The effect of the driver’s evidence was that, once the problem arose, he did his best to overcome it, and he did not concede that there was anything that he could have done differently at that stage that would have been better.  He said that there was no other course which he could have taken to have prevented the trailer from tipping over: p.11.  There is no reason to reject this evidence, and I find that the defendant has shown that there was no negligence on the part of the driver from the point when the problem arose. 

1. Nevertheless, it was submitted on behalf of the plaintiff that the effect of the driver’s evidence was that he had been negligent prior to that point, either in taking his vehicle too close to the shoulder of the road, or in failing to reduce his speed sufficiently given the prevailing circumstances. Although the onus is on the defendant, there is no reason to reject the evidence of the driver, and so the question becomes whether the driver’s evidence is sufficient to exclude negligence on his part.   

1. The driver’s explanation was that the second trailer in this sort of vehicle can be unstable, and that it is not unusual for it to drift on to the verge for no apparent reason even on straight roads: p.17.  He said there was nothing that the driver could do to prevent this.  He said at one point that the second trailer “tends to move from side to side”: p.11.  Under normal conditions this is not a problem because it just comes back onto the road again, the difficulty on this occasion being caused by the soft nature of the wet black soil shoulder which was preventing it from coming back of its own accord: p.17.  Again this evidence is uncontradicted and there is no reason not to accept it. 

1. The situation facing the driver therefore was that he was driving a vehicle which had a known propensity of instability with the second trailer, and driving it along a road which he must have known had soft and dangerous shoulders.  Accepting that his speed was safe for the road, notwithstanding the rain, under normal circumstances, the approach of the wide load posed the particular difficulty that it was necessary for him to move his vehicle somewhat to the left.  I accept that he did not deliberately take his vehicle off the shoulder, but the effect of moving it to the left would have been to increase the risk that the known instability of the second trailer may have caused its wheels to run off the bitumen.  That is something which ought to have been foreseeable to him at the time. 

1. The question is therefore whether the defendant has shown that, notwithstanding this increased risk, the driver exercised the required degree of skill and diligence in protecting the load from harm. The driver conceded that, had he slowed down his vehicle when  he first saw the other vehicle approaching, his vehicle might not have become stuck in the mud: p.15.  That in itself is not an admission of negligence, because the mere fact that one can say, with the benefit of hindsight, that if something had been done differently the accident would not have happened does not prove that the failure to do things differently in that way involved an absence of reasonable care.  But in circumstances where there is some evidence that the risk of the particular accident happened could well have been reduced by doing things differently, where the onus is on the defendant to show an absence of negligence, in my opinion it is necessary for there to be evidence from the defendant to show that a reasonably careful driver would not have taken that precaution in those circumstances. 

1. Although the driver gave evidence that it was safe to travel at the speed he had been travelling at before he slowed down, he did not give evidence that it was safe to proceed at the speed he had slowed down to while crossing a wide load under those conditions with the sort of vehicle he had, nor did he give evidence that in such circumstances an experienced driver ordinarily would not have slowed down further.  In view of the concession which was to the effect that a reduced speed would have reduced the risk of his vehicle running off on to the verge, in my opinion it was necessary for the defendant to have gone further to show an absence of negligence on the part of the driver in these circumstances.  It was necessary for the defendant to show that the speed at which the driver passed the wide load, 80 to 85 kph, was not excessive for that vehicle in the prevailing circumstances, and there was no evidence that that was so.  It is not something of which I can take judicial notice. 

1. It may be that some other explanation would have been applicable, or some other evidence could have been led which would have demonstrated that the driver had acted reasonably in the circumstances, but after carefully considering the extent of the evidence led I am not satisfied that the defendant has gone far enough to show an absence of negligence on its part, relevantly by not showing that the vehicle was not being driven at an excessive speed when it crossed the wide load.

1. The defendant not having discharged the onus, it is liable to the plaintiff for the amount of the loss.  The defendant is therefore liable for the amount of $142,558, together with interest which I will allow at 8% per annum for three years, which comes to $34,214.  There will therefore be judgment that the defendant pay the plaintiff $176,772, which includes $34,214 by way of interest.  I will publish these reasons and invite submissions as to costs, but unless some other order is appropriate, I will order the defendant to pay the plaintiff’s costs of and incidental to the action to be assessed.