Lee v Woolworths Limited

[2015] NSWSC 1789

Supreme Court

New South Wales

Medium Neutral Citation:	Lee v Woolworths Limited [2015] NSWSC 1789
Hearing dates:	2– 6 November 2015
Date of orders:	04 December 2015
Decision date:	04 December 2015
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Verdict for the defendant. (2) Plaintiff to pay the defendant’s costs.
Catchwords:	INDUSTRIAL LAW – personal injury – where plaintiff injured when manually restacking goods in his prime mover – whether plaintiff was owed a duty by the defendant to assist him with that task – whether defendant entitled to do nothing
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 Michael v Chief Constable of South Wales Police [2015] 2 WLR 343; [2015] UKSC 2 Shaw v Thomas [2010] NSWCA 169 Stovin v Wise [1996] AC 923 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Swain v Waverly Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Category:	Principal judgment
Parties:	Mark Anthony Lee (Plaintiff) Wickhams Freight Lines Pty Ltd (Third defendant)
Representation:	Counsel: B Dooley SC with P Clingan (Plaintiff) M McCulloch SC with T Berberian (Third Defendant)   Solicitors: Caroll & O’Dea Lawyers (Plaintiff) Colin Biggers & Paisley (Third Defendant)
File Number(s):	2008/289079
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Mark Lee drove his semi-trailer from Windsor to Sydney on 14 March 2005. At some point during its journey from Queensland, part of the load in the truck became unstable and collapsed. This was not discovered by Mr Lee until he arrived at his final destination and the contents of his trailer were examined. Mr Lee was seriously injured when he attempted by himself to restack the failed load onto pallets.

2. These proceedings relate to that incident and the responsibility, if any, of Wickham Freight Lines Pty Ltd for what happened. By reason of the professional and cooperative approach to this litigation taken by the parties and their legal representatives, only limited questions remain in dispute. The reasons that follow deal with those issues.

Background

3. Mr Lee was employed by Williams Bulk Haulage Pty Ltd as a truck driver. Williams was sub-contracted by Wickham to haul loads out of Warwick in Queensland to Combined Distribution Management Pty Ltd at Yennora in Sydney in the performance of Wickham’s obligations pursuant to its contract with Combined Distribution. Goods transported to Yennora in this way were received into Combined Distribution’s depot for unloading and later secondary delivery to retailers whose stores could not accommodate a tautliner of the type driven by Mr Lee. Combined Distribution maintained its own fleet of rigid body lorries for that purpose. It also had its own dedicated staff that operated forklifts at the Yennora premises to unload goods on pallets from the rear of trailers such as that driven by Mr Lee. There is no dispute in these proceedings that although tautliners, with retractable curtain walls, were designed ordinarily to be loaded and unloaded by forklifts from the side, the physical set up at Yennora was restricted so that side access for forklifts was unavailable.

4. The general unloading procedure at Yennora was as follows. Semi-trailers would arrive at the premises and be directed to a location inside the depot. The driver would park the vehicle, turn off the engine of the prime mover and go to the rear of the trailer. The rear doors of the trailer would be opened by the driver once the seal securing the load had been removed by depot personnel. The loads were on pallets. A semi-trailer usually carried a full load of 22 pallets of 11 rows standing two abreast. If a full load was present the forklift drivers would remove the last two pallets directly from the position they occupied on the truck during the journey. The next two pallets would then be moved by forklift using an extended tyne or a device to pull them closer to the rear of the trailer for direct removal by the forklift in its usual configuration. The remaining pallets on the trailer beyond the reach of a forklift operating from the rear required manual handling in order to bring them within range. In order for that to occur, a pallet jack would be forked up onto the tray of the trailer and the truck driver would use it to bring the remaining pallets to the rear of the truck. The pallets could then be forked off the trailer in the usual way. Until at least four of the pallets had been removed in this way there was insufficient space on the trailer for a driver to manipulate pallets using a pallet jack. In cases where less than 19 pallets were loaded, the pallet jack could be used from the beginning of the unloading procedure.

The pleaded case

5. Mr Lee’s case is pleaded in his second amended statement of claim. A number of events overtook the relevance of much of that document, with the result that not all of the particulars of negligence pleaded against Wickham are now pressed. The particulars listed below, as indicated at page 178 of the transcript on day three of the hearing, are the only allegations upon which Mr Lee continues to rely:

1. Failing to provide a safe and suitable system for the loading and unloading of trucks at the Wickham depot.

2. Failing to identify and eliminate the risk of injury associated with the packaging of Coca Cola pallets where the defendant knew or ought to have known of their failure.

3. Failure to have introduced a system for the removal of packages and stock from trucks in circumstances where the loads had broken or shifted away from the pallets.

4. Failure to have persons available to assist drivers including the plaintiff with the removal of stock from trucks in circumstances where they could not be easily and properly removed on pallets.

5. Failing in circumstances observing that the plaintiff’s load had moved and broken to have provided manual and/or mechanical assistance for the removal of the load.

6. Failure to instruct personnel at the site to assist drivers with the removal of load in circumstances where the load had moved, shifted or otherwise had broken and could not be removed by pallet jacks.

7. Failing to direct the plaintiff to not attempt to stack and/or remove the Coca Cola product from the truck by hand.

6. For the avoidance of doubt I hasten to observe that these particulars of negligence direct attention to what occurred or should have occurred at the Combined Distribution’s depot at Yennora and not elsewhere. Mr Lee’s case in broad form is that he should not have been left without assistance on his truck in that location to restack his broken load and that Wickham were under an obligation in the circumstances to provide that assistance.

7. Several witnesses apart from Mr Lee gave evidence about what happened, as well as about the system employed at the Yennora depot for the receipt and handling of deliveries. It is necessary to review their evidence in some detail.

Mark Anthony Lee

8. Mr Lee gave evidence of what occurred on the day that he was injured. His first evidentiary statement contains the following material:

“19. Drivers were not permitted on the loading dock at all that [sic, at] the Warwick warehouse. Drivers were prevented from supervising the loading process.

20. The trailers are sealed after loading and the drivers are prevented from determining what the status of their load is until the trailer is opened upon arrival at the destination.

…

25. On the morning of 14 March 2005 I drove to the Yennora warehouse with Tony Galea’s trailer attached to my prime mover.

26. There was no loading dock at Yennora when I arrived and accordingly the unloading of the trailer which had been brought from Warwick to Windsor by Tony Galea required the manual transfer of pallets using a non-mechanised pallet jack to remove the pallets from the back tray of the truck.

27. The load I inherited from Tony Galea consisted of cans of Coca Cola which had been cling wrap [sic, wrapped] on their pallets. My recollection is that there were three pallets on the back of the trailer with each of the pallets consisting of about 60 boxes each. Each box contained about 30 cans of Coca Cola and I would estimate that the boxes probably weighed around 25 kg each.

28. The load in the trailer had not been put together properly and … the cans of Coca Cola and the boxes containing the cans of Coca Cola had fallen everywhere in the back of the truck. The boxes had to be put onto a new pallet.

29. To do this work at the Yennora premises I put a pallet jack onto the back of my truck and I manually pushed the boxes of cans onto the pallet jack. The whole restacking and reloading operation required me to lift 180 boxes of Coca Cola onto the pallets. I was also required to lift spare boxes and cans which had become stuck in the gate or jammed between pallets. The work was very awkward. It took about two hours.

30. Throughout the whole of the process a worker sat in a forklift at the back of the truck with his forklift waiting for me to move the cans onto the new pallets. I said to this person, whom [sic, who] I knew as Troy:

Can you give me a hand?

He said:

We can’t help you. You’ll have to do it yourself.

31. It is important to get the truck out and unless I got my truck out on the same day I would not be paid.”

9. Mr Lee’s second evidentiary statement contained the following relevant paragraphs:

“11. When you arrive at Combined Distribution Management (“CDM”), which is the name of the Yennora Depot, there are a number of companies operating out of that one warehouse, including Wickhams.

12. I drive into the warehouse which has a long lane at which 5 or 6 trucks can pull up behind each other, and there is a significant amount of space to the sides so that unloading can take place by use of a forklift. There are also some individual lanes.

13. Once having arrived there I, as I did on the day of the accident, go to the Wickhams office contained in the Yennora Depot and provide them with the running sheet and speak to their Transport Manager who on the day of my accident was Michael. I am then directed where to unload.

…

15. The usual situation that occurs at Yennora is that the area where the unloading takes place is at ground level, not a dock. Forklift drivers move into place after they have directed the doors at the back of the truck to be opened and by use of forklift they remove the first 3 to 4 pallets.

…

17. It is usual that the forklift drivers then place a pallet jack on the back of the truck and direct me to move the pallets towards the back of the truck so that they can remove them by forklift.

18. When the unloading is completed, I leave the area.

…

20. However, after the removal of the first few pallets, as I have said in my earlier evidentiary statement, I discovered that pallets of Coca Cola had collapsed and the individual packs of Coca Cola had broken and could not be removed by pallet jack.

21. I requested assistance from the forklift driver. The forklift driver refused.

22. After that request was refused, I went to see if I could find Michael, the Transport Manager. I could not find Michael and accordingly I returned to the truck.

23. The person on the forklift said to me:

Like I said before, you are going to have to move it yourself, I’m not getting off the forklift.

24. I restacked the pallets of Coca Cola on my own. I felt pain in my back.”

10. Mr Lee’s final evidentiary statement contained the following relevant material:

“4. The truck is a tautliner. Whilst this truck is capable of being loaded from the side, this is not used at the Yennora depot.

5. When the freight is loaded in Queensland, the pallets are loaded from the rear of the vehicle. This means that the pallet’s opening is facing towards the rear of the vehicle. From the side of the vehicles, the pallets have a solid timber base when loaded in this fashion. As a result of this, the only method of unloading the vehicle is by using a forklift from the rear of the vehicle, so that the forklift tynes can access the pallet.

6. What is uncommon at Yennora is that there is no loading dock. If there were a loading dock, then what happens at other premises, I have observed on a number of occasions over the years that the forklifts drive straight onto the trucks and remove the pallets with the use of the forklifts.

…

8. When at the Yennora depot, there are a number of freight companies that operate out of there and have offices located within the warehouse. One of the offices is a Wickhams Freight Line office. It has a sign on the door and this is the office to which I have always been directed to attend.

9. The usual procedure, and the procedure that was followed on this day, is that I drive my truck into the warehouse with one long lane at which five or six trucks can pull up behind each other. There is a significant amount of space to the side so that unloading can take place by use of a forklift. I have observed on a number of occasions other trucks being unloaded from the sides by use of the forklift. This was not able to be done because of the method by which my truck had been loaded, to which I have referred above.

10. Once having arrived there, as I did on the day of the accident, I then got out of the truck and go to the Wickham Freight Lines office contained in the Yennora depot, and provide them with the running sheet and speak to their Transport Manager who on the day of my accident was Michael Jones. I dealt with Mr Jones on every occasion that I have been to the Yennora depot, as best as I can recall. As is the usual system, he then directed me where to unload. Mr Jones was outside at 7am when I arrived and unlocked the roller door to allow me to go in. This is when he directed me where to place the vehicle.

…

12. The usual situation that occurs is that the area where the unloading takes place is at ground level. Having reported to the Wickham Freight Lines office, shortly thereafter forklifts are dispatched to my truck. The drivers then check the seals on the tailgate of my truck, if they are satisfied that the seals have not been broken they then break the seals and open up the rear of the truck.

…

14. It is usual that the forklift drivers then place a pallet jack on the back of the truck and direct me to move the pallets towards the rear of the truck so that they can remove them by forklift.

15. When the unloading is complete, I then close the truck up and leave the area. I do this after I have my running sheet signed by Mr Jones.

16. On the day of the accident the abovementioned procedure took place. The forklift drivers removed the first two pallets at the rear of the trailer. The truck is packed two pallets across and 11 in length making a total of 22 pallets on the tray of the truck. Having removed the first two pallets, the forklift then removed the next two pallets in.

17. After the four pallets had been removed, I then climbed on to the back of the truck … The forklift then places a manual pallet jack on the rear of the truck. …

18. As I commenced to move the first of the pallets, it was at this time that I then observed that the pallets of Coca Cola which were immediately behind those pallets had broken. I moved both of the pallets, which did not contain the Coca Cola, to the rear of the truck and they were removed by the forklift driver.

19. I realised once the pallets were removed that I would need assistance in moving the Coca Cola packs as they could not be moved just by the use of a pallet jack. I spoke to the forklift driver, Troy, and said ‘I will need a hand to move all this coke because it’s fallen over and jammed in amongst the rest of the load’. Troy responded by saying words to the effect of ‘You’ll have to do it yourself’. He then drove off on the forklift. Troy also said words to the effect of ‘Don’t worry about it you are not the only one’. He then pointed to an area where there was about six pallets which had also broken open also containing coke cans.

20. As set out earlier in my first Evidentiary Statement, I spoke to Troy requesting assistance during the unloading process.

21. Because of this, I then got off the truck and walked to the Wickham Freight Lines office to find Michael Jones to request assistance. When I got there, nobody was there, and accordingly I went back to the truck.

22. When I returned to the truck, I saw Troy, the forklift driver with a camera taking photographs of the load. He was standing on the ground just to the rear of the truck. I had seen that camera on other occasions in the Wickham transport office and had seen it being used to take photographs of loads which had fallen. …

23. When I got on to the back of the truck I observed the following: the Coca Cola was packaged approximately two to three packs high on the pallet. The pallet is approximately 20cm high. Completely filling the pallet are cartons of Coca Cola cans. The cans were different from the ordinary loads. They were in a cardboard box, which was more like a tray rather than a box. The cardboard tray had sides which were about 5 to 7cm in height. The cans were then stacked three high on top of each other. There was not any plastic linking them together to make ‘six packs’ or similar, they were just individually stacked. On top over the box lengthways was a plastic wrap which had Coca Cola promotional material on it. This meant that you were able to take it from the sides to form a position where your hands could fit to lift then [sic]. These were stacked three on top of each other and around that was shrink wrap around the whole of the pallet although not over the top.

24. There were four pallets of coke in all. Two were on the tray of the truck and two were placed on top of other freight which were cardboard boxes and came to a height just below knee level. The pallet of Coca Cola was placed on top of that and so the top came to about my chest height.

25. Movement of the load meant that all four pallet loads of Coca Cola had moved to the rear of the truck and spilled part of the loads into the truck and into the surrounding freight. Some of the cans had come out of their plastic wrap carton. Partially full cartons had become displaced and had gone down between the various pallets and also into the gates at the sides of the pallets.

26. The only assistance that I received from the forklift driver was when he advised me I had to restack the load myself, the forklift driver then placed four empty pallets at the rear left hand passenger side of the truck and advised me to restack the goods on the empty pallets.

27. The pallets were packed one on top of each other. I took the top pallet of the four pallets and placed it on the tray of the truck. I then physically manipulated the second pallet down to the floor of the truck so that the two pallets were side by side next to the Coca Cola pallets.

28. I then commenced the process of re-stacking the cartons of Coca Cola on to the new pallets. Because they had been broken, it meant that effectively that by the time I packed one of the pallets it contained about half as much Coca Cola as the pallet did when it was properly stacked.

29. The process involved me in having to exert great force to move partially filled cartons packs of Coca Cola from between the freight, and particularly from the gate, and then having done that, place it on the pallet. A lot of force was required. I also had to hold back the pallet of shrink-wrapped Coca Cola as it was leaning forward on to these pallets, so that I had to push it away at the same time as I was trying to restack the pallets.

30. Having partially completed packing and stacking the first two pallets, I then moved the first one with the use of the pallet jack to the rear of the truck and it was removed by the forklift driver.

31. I could not use the pallet jack to manoeuvre the second pallet. It had been placed on the near side of the truck and did not allow me to use a pallet jack to position it. Accordingly I had to physically manoeuvre it myself.

32. I then moved an empty pallet from the rear of the vehicle on top of the Coca Cola I had repacked and the [sic] recommenced repacking that pallet in the same manner as before.

33. After completing that, I then moved a third empty pallet from where it had been position. By this stage there was only one empty pallet left.

34. At this point the pallet of Coca Cola on the ground on the near side was empty whereas the pallet of Coca Cola on the offside still had some material on it. The two pallets of Coca Cola which were further back still had a significant amount of packaging on them.

35. I then recommenced stacking the Coca Cola from the rear pallets on to the forward pallets. Once I had unpacked the pallets which were towards the front of the trailer to a sufficient level so that the product would remain in place once it was being moved, I then commenced the movement of the pallets. The last remaining empty pallet at the rear of the vehicle I turned on its side.

36. The process of moving the Coca Cola meant that the pallets towards the front of the trailer had coke jammed down the sides. In order to remove the Coca Cola and the packaging, I had to physically manipulate the pallets to free up the Coca Cola which was jammed down the sides. This was particularly heavy work. Further, the pallets were difficult to manoeuvre because they were on top of cardboard boxes.

37. While trying to remove the Coca Cola packaging, after having manipulated the second pallet, I began to notice the pain in my back which gradually got worse thereafter. The gates are located on the sides of the vehicles and are made of metal and designed to keep the freight in place.

38. The repackaging process required me to lift and manipulate the heavy empty pallets as well as trying to manoeuvre pallets which were placed on top of boxes and to carry out forceful movements when my body was both bent and twisted in order to get to the product which had broken loose.

39. The forklift drivers had gone so that I was unable to request that they remove it with the forklift.

40. I then used the pallet jack to move the two pallets which were stacked on top of each other to the rear. This was not particularly difficult because they really only weighed a little more than one ordinary pallet.

41. By this time the forklift drivers had returned and removed those two pallets. I then moved each of the other pallets to the rear.

42. Once the truck had been emptied I then drove from Yennora to our house at Windsor which takes about 40 minutes and by the time I got there I found I had extreme difficulty in getting out of the truck due to pain in my back.

43. In the past I have seen in the Wickham’s area pallets which had to be broken up for transport. The workers would be breaking up the pallets and would physically lift the product and move to stack on other pallets

44. If I had been provided one or two additional people to help me manually carry out the restacking, it would have made it physically a lot easier. I would have been able to pick up and move the pallets. It would have significantly reduced the amount of bending and twisting and would have assisted with being able to help push or hold the broken stack on the pallets up, so it would not have meant such forceful movements to remove the product where it had become stuck.”

11. Mr Lee gave further evidence in chief as follows:

“Q. Were you present when Mr Jones spoke to the forklift drivers?

A. Yes, I was.

Q. Where were they stationed and where were you physically, were you on the truck or off it or near it or what?

A. I was standing behind the truck.

Q. Where was Mr Jones?

A. Mr Jones was standing there talking to me.

Q. Where were the forklifts?

A. Forklift drivers were - were parked at the side of - at the side of the vehicle and Michael had asked them to - to unload the back, unload my trailer.”

12. Mr Lee was later extensively cross-examined. Some of that was in these terms:

“Q: Can you tell us what took place leading up to the circumstance where the forklift, where the pallet drop was put onto the rear of the truck?

A. After removing the pallets in the rear of this …

Q. Who removed them?

A. The forklift drivers. After the forklift drivers removed the pallets from the rear of the vehicle, I then realised after the fourth, the third pallet had come off, I'd then realised that the next pallet had fallen over and then I was asked if I could hop up on the truck.

Q. When you say you were asked, try and

A. I'm sorry.

Q. Who said what to you?

A. Michael asked me if I could hop up on the truck and start, like when they bring the pallets back, if I could start to, to try and unload them.

Q. So that was Michael?

A. Michael, yes, Michael Jones.

Q. Who else was there?

A. The forklift driver.

Q. Who was that?

A. Troy.

Q. What happened next?

A. Troy had taken the fork out of the way. He'd come back and brought another four empty pallets back to the rear of the vehicle. I tried started to try to pull the Coke, like I was asked to, to pull the Coke from the side of the gates and tried to put the pallet jack, which had been brought as well, underneath the front of the pallets and I couldn't get it under there and that's when I asked the forklift driver if he could give me a hand.

Q. You have set out in your statement what he said in relation to that?

A. That's right.

Q. You told us you went to see Michael Jones to tell him about the problems?

A. Yes, I did.

Q. You came back to see

A. Troy.

Q. Troy, what was he doing?

A. Troy was at the back of the trailer with a camera taking photos of the, of the pallets that had fallen over in the back of the trailer.”

13. The cross-examination also included the following:

“Q: It's correct to say that as at April 2005 you held the view that the accident happened by unloading poorly packed pallets by hand alone, no supervision, at CDM depot at Yennora?

A. Yeah.

Q. No mention of Wickham here, is there?

A. No.

Q. That's because whenever you took a load from Warwick down to Sydney, which I'm going to call an inbound load if you'll permit me

A. Mm hmm.

Q. you went into the CDM part of the shed, didn't you?

A. No.

Q. Do you wish to maintain

A. If

Q. Forgive me, did you want to add something?

A. Yeah. How, where, whereabouts is the CDM part and whereabouts is the Wickhams part?

…

Q. You have drawn in MFI 1 a box and the word "office". Correct?

A. Yes.

Q. It was your evidence that that was the Wickham office.

A. That's right.

Q. In fact would you accept that you were mistaken and it was in fact the CDM office?

A. No.

Q. This was the part of the facility that CDM operated from, wasn't it?

A. No. It was where Michael Jones was, it was the Wickhams office.

Q. How many forklift drivers did you see driving around the facility on the times you went there?

A. Two.

Q. No more than two?

A. No more than two. Michael Jones used to drive a forklift quite a bit, yeah.

Q. There was a forklift driven by Troy, who you've mentioned.

A. That's correct.

Q. You knew he was a CDM employee?

A. No, I didn't know he was a CDM. I was always under the understanding that he was a Wickhams employee. ”

14. Mr Lee filled out an injury claim form. He was cross-examined about what was written on that document. Some of that cross-examination is as follows:

“Q. On page 261 do you see, halfway down the page on the right hand column, question 15, ‘When did the injury occur?’ On the right hand column halfway down?

A. I've got it, yeah.

Q. Question 15.

A. Yeah.

Q. And there's some boxes ticked.

A. Yeah.

Q. Tick ‘in the course of work’? Do you see that?

A. Yes.

Q. If you come down four or five boxes it says, ‘Other (please specify)’. Do you see that?

A. Yeah.

Q. What's written next to it is ‘CDM Yennora’.

A. Yeah, but that doesn't tell me that he's a CDM worker.

Q. Who are you talking about?

A. Troy, Troy.

Q. I'm not asking you about Troy and I want to be clear about this. What I'm asking you about now is the information which you gave to the workers compensation insurer by providing this form. Do you understand that?

A. Yeah.

Q. What I am suggesting to you is that you informed the workers compensation insurer, through your declaration that the injury occurred at CDM Yennora.

A. Yeah.

Q. You said you had always referred to it as Wickhams. How does it come about that CDM Yennora is recorded in this document?

A. I've got no idea.

Q. No idea?

A. No.

Q. Who filled out this document?

A. My partner.

…

Q. Question 19 on the right hand side

A. On the same page, was it?

Q. Yes.

A. Yeah.

Q. ‘Was this location controlled by another employer?’ Do you see that, question 19?

A. Yes.

Q. You've written under the question, ‘If yes, name of employer who controlled this workplace,’ ‘CDM/Wickhams Freight Lines.’

A. Wickhams Freight Lines, yeah, that's correct, yeah.”

15. In his first two evidentiary statements Mr Lee made no reference to having been greeted at the front door of the depot by Michael Jones, who worked for Wickham. Indeed, he was reminded in cross-examination that when he prepared his first statement, Wickham was not even a party to the proceedings.

16. The cross-examination continued:

“Q. On Monday when you were giving evidence, you gave some evidence about a conversation involving you and using a pallet jack on the back of the truck. Do you remember that?

A. (No verbal reply)

Q. I'll approach it a different way in fairness to you.

A. Okay. I wasn't being rude to you before.

Q. No, not at all. In your third statement, you say that Mr Jones asked you to use the pallet jack to move the pallets which had the broken cans of Coca Cola in it, is that right?

A. Could have been, yes.

Q. No, I need to be very precise about this. Do you wish his Honour to understand on your oath that it was Mr Jones who asked you to use the pallet jack on the back of the truck?

A. Yes.

Q. He asked you to use the pallet jack, did he, at a time after the doors had been opened and the boards at the back of the load removed, correct?

A. Correct, yeah.

Q. After, according to your evidence, four pallets had been removed, is that your evidence?

A. Yeah. Yes.

Q. How many pallets were on this load?

A. Well, I was - I can remember there was - that there was 22, but it says on the paperwork there was 16 but, yes, I don't know.

…

Q. Pallets 15 and 16, one of those pallets would be jacked up using the pallet jack?

A. That's correct.

Q. So that it was free of the floor to the trailer, and it would then be pulled back by you?

A. That's right.

Q. Then you would be able, because of the way the pallet jack was designed, to simply twist around and then push the pallet so that you were pushing facing towards the rear of the trailer.

A. That's correct, yeah.

Q. And then it would be removed by the forklift.

A. Yeah.

Q. Then ordinarily that process would continue right through the load.

A. Yes.

Q. Is that correct?

A. Yeah.

Q. So that if indeed there were 16 pallets on this load and not 22, then there would only be the need to put empty pallets on the back of the truck once you had discovered that the pallets containing the Coca Cola had to be restacked.

A. Well, what I, what I can remember, there was pallets in front of those, those Coca Cola pallets, to the rear of the vehicle, that had to be taken away first.

Q. Quite so. So assuming there were only 16 pallets, pallets 15 and 16 would have been removed using the pallet jack in the way we've discussed in evidence. Correct?

A. Yes.

Q. And some time during that process you would have noticed that the pallets behind it, let's say, were filled with - or contained Coca Cola cans that had come loose, because you would have seen them rolling around on the floor, amongst other things.

A. Well, I, I knew they, they had come loose, because there was spray everywhere up the trailer, so.

Q. What I'm suggesting to you is that in order to restack them, what you needed were some fresh pallets. Correct?

A. Yes.

Q. So there were a number of fresh pallets, three or four, loaded onto the back of the truck by forklift.

A. That's right.

Q. And Troy did that. Is that correct?

A. Yes.

…

Q. To the extent that you spoke to Mr Jones, Michael Jones upon arrival, what he told you to do was where to park your truck?

A. Yes.

Q. Correct?

A. Yeah.

Q. Did you then give him your paperwork?

A. I can't remember when the actual time was I gave him my paperwork.

Q. Did you then drive to where you were told to drive to, park the car and get out of the prime mover?

A. Park the truck.”

17. Mr Lee gave evidence about his conversations with Mr Jones. He was challenged about the timing and content of any conversation that he had that suggested in any sense that Mr Jones told or directed or instructed him to restack or deal with the broken load. For example:

“Q. When you had this discussion with Mr Jones was he standing with you at the back of the truck?

A. To my - best of my knowledge, yes.

Q. If he was there Mr Jones would have been able to see what you saw if he cared to look, I take it?

A. He was there when we started up - they, they - as they’d started to unload the vehicle.

Q. What I suggest to you is the evidence that you gave, the sense of the evidence you gave was that after four pallets had been removed you were standing at the rear of the trailer, according to your evidence so was Mr Jones and when you saw that the next pallets had stock fallen over on them it was then that Mr Jones said to you, ‘Could you hop up and reload them?’

A. That could have been before we got to that when he could have said to me, ‘When, when, when they get the back pallets off can you hop up and start unloading with the pallet jack?’

Q. Are you saying that the conversation you had with Mr Jones was to the effect that he asked you to hop up with the pallet jack and unload once the first four pallets had been removed?

A. He would have said to me when - like when they’d removed the back pallets to hop up there and start jacking, jacking the pallets back to the back of the trailer so they can be unloaded.

Q. There was no other way those remaining pallets, assuming for the moment that they hadn’t fallen over, could get off the truck except by the use of the pallet jack, was there?

A. No, that’s right.

Q. You’d done this sort of removal using the pallet jack at the depot at least half a dozen times before, hadn’t you?

A. Yeah.

Q. There’d be no occasion, I suggest to you, for Mr Jones to say to you, ‘Could you hop up with the pallet jack and remove the pallets?’ That was the very next thing you had to do.

A. Yeah.

Q. What I’m suggesting to you--

A. I know what you’re suggesting.

Q. What am I suggesting?

A. You’re suggesting that he told me - he wasn’t there.

Q. What I’m suggesting to you is that for you to give evidence that Mr Jones on this occasion told you to jump up with the pallet jack to remove pallets before there had been any observed damage to the load just couldn’t have occurred because what you were having to do next was what you had done so many times before, which is get the pallets off yourself with the pallet jack.

A. He’s - yeah, he has. In conversation when we were talking, get me to jump up and take the pallets off.

Q. You’ve invented this conversation with Mr Jones recently for the purpose of pinning any blame that you can on Wickhams, haven’t you?

A. No, I haven’t.

Q. He wasn’t there at all to have a discussion with you about performing a routine removal job, was he?

A. Yes, he was.

Q. The first mention we get of this conversation between you and Mr Jones doesn’t come until your third evidentiary statement, does it?

A. Well, if it’s in the third evidentiary statement it would have been right.”

18. Mr Lee was challenged about his recollection of events upon the basis that it proceeded upon the assumption that his truck had been fully loaded with 22 pallets. A Wickham document dated 14 March 2005, which was the delivery manifest referable to the load in question, indicated that he carried only 16 pallets. He was cross-examined about this as follows:

“Q. You agreed with me earlier in your evidence that about halfway up the page this document refers to there being 16 pallets.

A. Yeah.

Q. Correct?

A. That's correct.

Q. If the load had only 16 pallets rather than 22, then the process which you've described, involving the forklift taking the first two pallets off the back, just couldn't have occurred, could it?

A. No, well, not with 16 tracers, that's right.

HIS HONOUR

Q. Do you agree that the document at 167, indicating on its face that there were 16 pallets on your truck at this time, would have been accurate?

A. I, I just don't know if there was 16 but I, I, I still remember taking from the back of that, the pallets from the back.”

19. This continued as follows:

“Q. Indeed these - if there were 16 pallets, then the pallets which had had the goods become dislodged would have been closer to the front of the truck than pallets 15 and 16, wouldn't they?

A. Could have been, yes.

Q. If your evidence that I took you to earlier is correct, that is that you removed four pallets, so that from 16 there was pallets 11 and 12 where you made the observation that there was goods that had become dislodged, it would have been impossible, I suggest to you, for your version of events that you've given in your third evidentiary statement to be correct. Do you accept that?

A. Well, that's what I remember, the, that the pallets had come off the back of the trailer.

Q. Your entire case is based on there being 22 pallets, isn't it?

A. Well, yes.”

20. Further on this topic Mr Lee gave this evidence:

“Q. Do you accept following on from his Honour’s question that the logic of what is being suggested to you, namely, that if there were only 16 pallets rather than 22 pallets then the version which you have given could not have occurred?

A. All I remember is getting hurt out of it.

Q. You really, with great respect to you, must answer with his Honour’s direction my question if you’d be so kind.

A. Okay. Can I have it again, please?

Q. Yes. Do you accept that if, in fact, there were only 16 pallets and not 22 pallets as you have said in your third evidentiary statement and in your evidence, that the system of removing the pallets which you’ve described could not have occurred?

A. And I’m telling you that I can remember there was pallets that were taken off prior. Whether there was - that, that was in that situation on the back on the trailer like - or it could have been a little bit further up.

Q. I want to suggest to you that that’s not an answer to my question and you’re avoiding answering it because you understand the logic and the obviousness of what I’m putting to you.

A. Okay. Okay, then. I can’t - I don’t like - I know I’m, I’m not avoiding the question at all that you’re putting to me, I’m just trying to, to remember it at the moment.

Q. If there were only 16 pallets on the load and not 22 then what you have said about the initial removal of pallets just did not happen. Do you agree with that?

A. Yes, okay.

Q. Would you accept that if that is the case that the evidence you have given in that respect would be incorrect if, in fact, there were only 16 pallets?

A. Yes.

Q. If there were only 16 pallets there would have been no occasion to use the metal device that was attached to the cage of the forklift that you’ve described in your evidence, would there?

A. If there was 16 pallets there, no.

Q. Because the first thing that you would have done if there were 16 pallets would have been to use the pallet jack?

A. I still remember there was no room on the back of that trailer that you could have put a pallet jack on there first off to start unloading.

Q. If there were only 16 pallets on the load the first thing that you would have done would have been to remove pallet 15 or 16 using the pallet jack. Do you agree?

A. Yes.

Q. The usual practice when there was a load of 16 or, indeed, less was for the forklift driver to lift the pallet jack onto the rear of the trailer. Correct?

A. Yes.

…

Q. Because you knew that if there was a load of only 16 pallets involved that that would be presenting a case which was completely different in terms of the facts relating to the unloading of the pallets. Do you agree?

A. Yes.”

21. Finally Mr Lee was cross-examined as follows:

“Q. You gave evidence on oath Monday sitting in the witness box, I suggest to you, which was to the effect that when the four pallets at the rear of the load had been removed it was noticed that pallets still in the trailer had fallen over or the goods on them had fallen over and it was then that Mr Jones asked you to hop up on the truck when they bring the pallets back, referring to the forklift drivers who were apparently going to bring back some empty pallets. That’s what you said in your evidence on Monday, isn’t it?

A. Okay. If I said that, I said that.

Q. It’s not true, is it?

A. Well, I’m - look, I’m agreeing with what you’re saying but I, I just can’t say that was right because they did bring - they brought back pallets and there was pallets that were taken off prior - before that and I can’t - Michael spoke to me. It could have been when, when it’s ready to - for you to unload it with the, with the pallet jack, to jump up there and start unloading.

Q. No, the evidence you gave on Monday was intended to persuade the judge of the truth that Mr Jones gave you a lawful direction to jump up on the back of the truck and to reload the pallets onto the fresh pallets which were about to be brought over, wasn’t it?

A. Yes, but I wasn’t trying to sway anybody. I was, I was answering the question to the best of my ability on my knowledge.

Q. You readily accept, don’t you, that if Mr Jones was with you on the occasion when at least you observed the load on the pallets had fallen over, that it would have been something that he’d have had to have been blind not to see himself. You agree with that?

A. I agree with that.

Q. The evidence that you wish the judge to accept is that this having been observed, that is, the pallets fallen over, having been observed by you and Michael Jones, Michael Jones said to you, ‘Can you get up and reload those for me?’ Is that correct?

A. Yes.

…

Q. Do you now appreciate that in the versions of the evidence that you have given, there is a conflict between what you say was the situation when Mr Jones spoke to you?

A. Yes.

Q. You've given two different versions of the same event, haven't you?

A. Well, yes, I suppose, yeah.”

22. Mr Lee’s employer would also appear not to have given him any particular instructions. He gave this evidence:

“Q. Did your employer ever give you any instructions about driving away if you weren't able to unload?

A. Never.

Q. Your employer didn't in fact give you any instructions, did they, about how to carry out the unloading procedure?

A. No, that's right.

Q. Yes, one other matter I should ask you about, and I'll just wait till you sit down if you want to, Mr Lee. So that we're clear, no one from Williams Transport ever gave you any instructions on what to do if you had a damaged load, did they?

A. No.

Q. And no one at Williams ever gave you any instructions about what to do if you had a load which fell over internally during transport, transit rather?

A. No.”

Alfred Colvin

23. Mr Colvin is the current CEO of Combined Distribution Management. He provided a statement dated 3 November 2015. In 2005 he was the site manager at the Yennora premises. He was called by Mr Lee in his case. He said that Combined Distribution employed between eight and ten people in the office and warehouse. That included Troy Zantidis. Mr Colvin also said that in 2005 Michael Jones was the manager for Wickham at the Yennora premises.

24. Mr Colvin described what happened when a truck arrived. He said that the leading hand/manager would call for one or two forklifts to assist in the unloading. Mr Colvin also said this:

“9. If they require them to work on other loads or more any other pallets they can tell them to alter the work that they are performing and do as directed by leading hand/manager.

10. The forklift drivers only operate forklifts and they do not manually handle loads.

11. If the load has shifted and cannot be moved by forklift, it is the responsibility of the driver to unload or repack so that it can be moved by forklift.

12. The forklift driver will leave and do other work until repacking is completed.”

25. Mr Colvin was not cross-examined.

Troy Zantidis

26. Mr Zantidis worked as a forklift driver for Combined Distribution at the Yennora depot in 2005. He provided an evidentiary statement on behalf of Wickham. Part of that statement is in the following terms:

“3. I have little recollection of an incident in March 2005 involving collapsed pallets of Coca Cola in a trailer driven into the CDM shed by a driver subcontractor to Wickham Freight Lines.

…

6. My role was to unload trailers by forklift. When unloading a trailer for Big W at Campsie, I generally unloaded the back four pallets with the forklift. The tynes on the forklift have extensions to allow those pallets to be unloaded. I then lifted a pallet jack into the truck to allow the driver to wheel the other pallets to the back of the trailer for removal by forklift.

7. If the load required restacking before the pallets could be removed it was the responsibility of the driver. If the dock was busy and I had other work to do, I would go and do that work while the driver restacked the pallets.

8. I note that the subcontractor payment advice that this load was 16 pallets. As a trailer holds 22 pallets, none of the pallets of this load would have been unloaded by forklift. All of the pallets in a load of this size were taken to the back of the pallet [sic, trailer] by the driver using a pallet jack and then unloaded by forklift.

9. I have a recollection of driving past a trailer on my forklift and seeing a driver restacking pallets of retail packs of Coca Cola which had fallen over in a trailer. The retail packs were loaded directly onto the pallet and were not in cartons.

10. I do not recall speaking to the driver.

…

12. Goods on pallets occasionally become dislodged. When that happens it is the responsibility of the driver to restack pallets as part of the task of moving the pallets to the back of the truck. It is a normal part of a driver’s responsibility. When that occurs a forklift driver will lift pallets onto the trailer for the driver to restack the goods.

…

14. Mick Jones was the manager in the Wickham part of the shed. I do not recall speaking to him about this issue.

15. I understand that the driver has said that I said:

You will have to move it yourself. I’m not getting off the forklift.

I do not recall saying those words to him and it has never been my practice to sit on my forklift and wait while a driver restacked his load. In 2005 there were only three forklift drivers in the CDM section of the shed and we were usually busy. If a driver was restacking a load, I would unload other trucks or trailers while waiting for the driver to move goods to the back of the trailer.”

27. Mr Zantidis was cross-examined:

“Q. We’ll stick to 2005. If there is a problem with a load, say that it’s Coke and it’s fallen over, is that something, for instance, if I can ask you about that, is that something that happened from time to time?

A. Yes.

Q. If a load has broken you don’t get off the forklift to assist with that load. Is that correct?

A. If we’re not busy we will assist. If we’re busy then we’ll do other work while that’s being fixed up.

Q. If you see a problem with a load do you report it to the leading hand or depot manager whose truck it’s on?

A. Normally that is what would be done, yes.

Q. If it’s a Wickham’s truck you’d go and report it to Mr Jones and tell him there’s a problem there. Is that correct?

A. Correct.

Q. You’re telling him that for him to solve the problem. Is that correct?

A. Correct.

Q. If it’s a Wickham subcontractor the same arrangement takes place. Is that correct?

A. Correct.

Q. That is no matter where it is in the Yennora shed. Is that correct?

A. Correct.”

28. Mr Zantidis was never cross-examined to the point where he agreed that he had spoken to Mr Lee as Mr Lee asserted, or indeed even to agreeing that he might have done.

Michael Charles Jones

29. In March 2005 Mr Jones was employed by Wickham as the Depot Manager at the Yennora premises. Mr Jones provided an evidentiary statement which included the following relevant material:

“19. Based on my experience as both depot manager, and as a truck driver, I can say that it is a normal part of a truck driver’s job to manipulate pallets in the back of the trailer so that they can be removed by forklift.

20. I was aware that Mark Lee drove for Williams Bulk Haulage which was a subcontractor to Wickham. I saw him on perhaps five to ten occasions when he drove trucks to and from Wickham’s depot at Yennora.

21. I understand that Mark Lee alleges that he suffered injury at the CDM depot on 14 March 2005.

22. I was asked by Robyn Wickham to prepare a statement on 17 March 2005. I have re-read that statement…

23. I have no recollection now of the events described on page 1 of the statement on 11 March 2005. I can say that there was not much double handling of loads and that it only occurred if there were not enough trucks to pick up loads.

…

25. Having refreshed my memory from that statement, I recall the events described on 14 March 2005 commencing at the bottom of the first page of that statement. The description of events in that statement is true and correct.

…

28. I confirm that at no time on Monday 14 March 2005 did I have any personal contact with or speak to Mark Lee.”

30. The statement dated 17 March 2005 to which Mr Jones referred was in part as follows:

“On Monday 14 March Shannon Taylor was unloading Blacktown freight in CDM’s area of the shed. Shannon came to get me to show me the state of the pallets in his front box. I observed two pallets leaning forward into the next two pallets. All of these pallets contained cans of Coca Cola in packs of 24. The pallets had been stacked poorly i.e. not interlocked and gaps left between stacks, so individual packs of coke could move in the confines of the pallet, resulting in the bottom layers getting squashed and rupturing. Upon moving the pallets they completely fell over and had to be re-stacked. This happened to a total of three pallets out of the twelve on the front box. I rang Darryl Dwan and informed him of this problem. He said he had numerous calls from stores/drivers about these pallets on other trucks that morning.

We concurred we would have to deliver the freight even though it was damaged so the store could reject it. A short while later, Troy, a forklift driver for CDM, approached me and stated that two pallets of coke had fallen over on a truck he was unloading containing Campsie freight. I asked Troy what truck it was and he said he didn’t know but it wasn’t a Wickhams truck, it was a subbie.

At that time I was busy loading trucks, and was unable to go down and sight the freight but, because of my earlier experience with the same type of pallets (on Shannon’s truck) and my phone call with Darryl, I told Troy they would have to re-stack the pallets and deliver them to Campsie. I continued what I was doing, but did notice, from a distance of about 80 metres, that the pallets were on the back of a WBH truck and Mark was on the back re-stacking them by himself. At no time on Monday did I have any contact with or speak to Mark from WBH.”

31. One issue in these proceedings appears to be whether or not Mr Lee delivered his load into the Wickham area in the depot or the area under the control of Combined Distribution. Mr Jones was asked some questions about that:

“Q. Did you treat the subcontractors any differently to the Wickhams employees?

A. No.

Q. And the freight that both the subcontractors and the Wickhams people delivered, that was all, as it were, the property or - I don't know - the responsibility, did you see it as, of Wickhams? Is that correct?

A. It depends which freight you're talking about.

Q. So when you separate off the freight, what freight do you separate off? You separate off two lots of freight. What do you do?

A. I don't understand the question.

Q. Okay, I'll go back. Is there any freight that gets delivered by Wickhams employees or Wickhams subcontractors for which you don't have any responsibility?

A. Yes.

Q. What freight is that?

A. Freight that needed to be redelivered.

Q. In terms of freight that requires to be redelivered, what part if anything do you have in that, in terms of its arrival and it's packing and unpacking?

A. No part.

Q. No part whatsoever?

A. No.

Q. So that any tranship loads you're telling us you don't have anything to do with?

A. That’s right.

Q. Okay. In 2005, if I can take you to that, if somebody arrived from Big W and had a tranship load, was there any arrangement for what they do on their first delivery, that is where they go and what happens?

A. They would have a slip of paper with their paperwork directing them to CDM.”

32. Mr Jones said that in 2005 Wickham to his knowledge had no policy concerning what would occur with respect to unloading if freight had moved or broken in transit. He said that the practice “would have been for the driver to restack the pallet so the forklift driver could take that pallet off the truck.” Mr Jones said that he had not “seen CDM forklift drivers assisting truck drivers with the repacking or restacking of broken loads from time to time.” He also denied that the arrangement was that drivers of Wickham trucks or Wickham subcontractors would go and speak to him on arrival at the depot or that he would call for forklifts to assist in the unloading process of trans-ship loads.

33. Mr Jones also agreed that if there was a requirement for the loads to be moved manually, such as a load that could not be moved by a forklift, it was the responsibility of the driver to do the unpacking. However, he agreed with what the cross-examiner put to him concerning part of his 17 March 2005 statement as follows:

“Q. It says, ‘I stated that I had done pretty much the same amount of work, that is, transhipping a load on Saturday and restacking Shannon’s pallets on Monday and my back was all right.’

A. Yes.

Q. You had on Monday restacked Shannon’s pallet?

A. Yes.

Q. There you had a tranship load in the CDM area with Shannon and you had got up and restacked it with him. Isn’t that the case?

A. Yes.

Q. That’s what happened from time to time, isn’t it?

A. Yes, if I had time to do it.

Q. Yes. Whether it’s in the CDM area or what you describe as CDM freight or Wickham’s freight in the Wickham’s area you would assist with those loads when required. Isn’t that correct?

A. Yes.

…

Q. You also knew that the forklift drivers would not get off their forklifts to assist with the damage. Isn’t that right?

A. No, I didn’t know that.

Q. Isn’t that the situation?

A. It would be my understanding if someone asked for a hand and they weren’t busy that they would help them out.”

34. The cross-examination continued as follows:

“Q. That is, if there was a problem with a Wickham’s truck albeit in the CDM area or not, it wouldn’t be surprising for Troy to come and alert you to a problem with the load, would it?

A. No.

Q. That was because the system there was that if you had such a problem to alert you so you could take some steps in relation to it. Isn’t that correct?

A. Yes.

Q. Because in the end to fix up a load there’s only really two options; one is for the driver to do it himself and the second one is to get some assistance from you.

A. Yes.

Q. If you’re in a position to you would provide that assistance?

A. Yes.

Q. Then if we can just go down to then in the next paragraph, ‘At the time I was busy loading trucks and was unable to go down and sight the freight. Because of my earlier experience with the same type of pallets on Shannon’s truck and my phone call to Darryl I told Troy they would have to restack the pallets and deliver to Campsie.’ Is that right?

A. Yes.

Q. When you say ‘they’ restacked them, you’re really mean that the driver would restack them?

A. Yes.”

35. Mr Jones said finally that he could not recall that Troy Zantidis advised him that Mr Lee had asked for any assistance with the unpacking of his broken load.

Darren James Eather

36. Mr Eather is and has been the managing director of Wickham Freight Lines Pty Ltd since 2005. His duties require him to oversee all aspects of the company’s operation. He is involved in the practical aspects of the company’s business on a daily basis. Wickham is a shareholder in Combined Distribution Management Pty Ltd and Mr Eather is a director of that company. Wickham has traded since about 1993 and employs about 200 people.

37. Williams performed about one percent of Wickham’s work, amounting to about two loads per week from its Warwick premises. All sub-contractors, such as Williams, provided their own semi-trailers and drivers.

38. Mr Eather’s evidentiary statement referred to the Yennora premises as follows:

“36. The depot is [sic, are] the premises of Combined Distribution Management Pty Ltd at Yennora. Several freight companies which are shareholders of CDM operate facilities at that depot.

37. In most circumstances, the driver delivers the load to the relevant Big W store.

38. The reference to depot on the subcontractors advice tells me that this load was for one of the smaller Big W stores such as Campsie. In 2005, the docks of a few suburban stores in Sydney such as Campsie and Blacktown could not accommodate semi-trailers.

39. Goods for those stores were delivered by Wickham to CDM into that company’s smaller rigid sided trucks for delivery by its drivers to those stores.

40. Wickham has premises at that depot which are used for the collection of the primary freight … in small trucks for loading into semi-trailers and transport by Wickham or subcontract drivers to Warwick.

41. In 2005 Wickham’s Depot Manager was Michael Jones, known as Mick. He was employed by Wickham and his role was limited to the management of the Wickham depot in the Yennora complex.

42. In my role as managing director of Wickham and a director of CDM, I have often visited and observed the operation of the CDM depot at Yennora.

43. There is no loading dock in the CDM depot.

44. It was the role of CDM forklift drivers to unload the truck by removing the back four pallets. After those pallets had been removed, the forklift driver lifted a pallet jack into the trailer which the driver uses to wheel the other pallets to the back of the trailer for removal by forklift.

45. Based on my experience in the freight industry for the past 15 years, I can say that it is part of the job of a driver to be involved in manual handling to take pallets to the back of the trailer for unloading by forklift.

46. I recall that in March 2005, there were issues with pallets of Coca Cola becoming unstable. It is rare for a pallet to become unstable during transit. If it does, it is necessary for the driver to be involved in restacking the load. This is part of the task of moving freight to the back of the trailer for removal by forklift.

47. Wickham do not have the authority to reject a load – any defective load must be rejected by the store.”

39. Mr Eather gave the following evidence in cross-examination:

“Q. … In 2003 in terms of Wickham's operations did you have semitrailers going to that site?

A. Yes.

Q. Did you describe it as an area within that CDM?

A. Yes.

Q. What sort of an area was it in terms of either physically or how it was defined?

A. It was defined by mesh fences between areas.

Q. So that nobody could access one area to another?

A. Yeah, it was separated by mesh fences.

Q. Could you drive one truck from one area to another area if you wanted to?

A. In a section of it you could, yeah.

Q. Was the freight from the Wickham's area, how big was that?

A. It was probably around 20 x 40 metres.

Q. Is that where you had your own trucks that were going to that area? Is that correct?

A. Yes.

Q. That would include semitrailers?

A. Yes.

…

Q. The depot. You refer to this Yennora as your Sydney depot. Isn’t that correct?

A. Our section is, yes.

Q. You refer to the CDM area as your depot, don’t you?

A. The CDM area, no, we don’t.

Q. The whole of the facility?

A. No, we, we, we - we’re very clear it’s either Wickham Freight Lines or CDM. They’re two different sections.”

40. At one point I asked Mr Eather to explain the unloading arrangements at Yennora:

“HIS HONOUR: If a Wickhams truck comes into Yennora with a load of freight, it has to be unloaded obviously.

A. Yes.

Q. What's the system adopted by Wickham in 2005 for that?

A. If it was a, if it was a Wickhams delivery to an end point of a customer of ours, it would be taken to our section and unloaded down there. If it was in the case of a load that was going to a redelivery site, it would go into the CDM section, unloaded by CDM staff for redelivery into a smaller depot.”

Other evidence

41. It will be apparent that Mr Lee’s evidence was centred on events that included the proposition that his load was a full 22 pallets. Mr Lee did not say in terms that that was his recollection. However, he did refer to four empty pallets being forked onto his truck onto which to stack the broken load once the last four pallets had been forked off the trailer in the first place.

42. A Wickham document described as a “Contractors Payment Advice 13262” was referred to in Mr Lee’s cross-examination and was otherwise annexed to Mr Eather’s statement. It is the document that Wickham provided to Mr Lee, or in this case presumably Mr Galea prior to the handover of the trailer. The provenance of the document is not in doubt and it accompanied the driver to the delivery destination for validation by Wickham as a condition of payment.

43. For presently relevant purposes, the payment advice contained a box which described the total number of pallet spaces on the particular load. In this case the document was completed indicating that 16 pallets were being carried. The document also contained a notation in handwriting that three pallets of Coca Cola had been received damaged, effectively confirming that it accompanied Mr Lee’s load on 14 March 2005. That date also appears on the document.

44. There is no evidence to suggest that the document did not correctly record the number of pallets that were delivered by Mr Lee to the depot on the day in question. Mr Lee’s evidence that there were 22 pallets cannot in my view be accurate in the face of this document. That is not to say that Mr Lee was knowingly fabricating or falsifying his evidence in this respect. At one level, the precise number of pallets on the truck is a collateral issue in the scheme of this case. I am satisfied that Mr Lee was honestly mistaken in recalling the precise makeup of his load on this day.

45. Mr Lee was cross-examined concerning certain aspects of a Workcover worker’s claim form completed by him or by his partner under his direction. Implicit in Mr Lee’s case against Wickham is the proposition that his delivery to the Yennora premises was to a discrete section of the premises controlled or somehow occupied or used exclusively by Wickham. The evidence reveals that the Yennora premises are owned by Combined Distribution.

46. The form contains a number of questions for completion by the injured worker. One question on the form asks the worker to describe how the accident happened. Mr Lee’s response was in these terms:

“Unloading poorly packed pallets by hand, alone no supervision at CDM depot at Yennora, NSW.”

47. Another question on the form asked the worker “Is this one of your employer’s workplaces?” to which Mr Lee responded “yes”. He was then asked to give the name and address of the employer in charge of the workplace. To that question Mr Lee responded as follows:

“CDM, Wickhams, Greenfreight, Thompsons depot.”

48. A later question on the same form asked, “Was this location controlled by another employer?” Mr Lee answered “yes” and said “CDM/Wickhams Freight Lines.”

49. Mr Lee wrote to his employer following the incident, although not until 23 June 2005. That handwritten letter was in these relevant terms:

“On the 14th March 2005 I was unloading a load at CDM Yennora Sydney NSW that had come from Warwick QLD (Big W).

The load with [sic] on the trip from Warwick to Sydney 3 pallets of Coca Cola had shifted and fell over from poorly stacked on pallets. I had to unload them by hand onto other pallets with no supervision or help by CDM at Yennora. There were also a lot of the cartons jammed into the side gates which took a lot of effort to release them.

This in turn has caused lower back injuries which make it very hard to sit for too long as it causes pain and unable to move properly and unable to lift things.

...

I’m unsure at [the] moment when I’ll be right for light duties but will keep you informed.”

Factual issues

50. Mr McCulloch of senior counsel for Wickham identified the central controversy in this litigation as whether or not, in the events that occurred, Wickham came under a duty of care to Mr Lee to assist him with the unloading or indeed to prevent him from unloading. Each of the bases relied upon depends on a determination of a number of facts that are controversial. They inform the assessment thereafter of whether or not a duty of the kind contended for existed and whether or not it has been breached. Mr Dooley of senior counsel for Mr Lee appears to have accepted this general analysis.

51. It follows therefore that at least the following areas of factual controversy require determination by me:

1. Whether Mr Lee’s load contained 16 or 22 pallets.

2. Whether Mr Lee requested assistance from Mr Zantidis.

3. Whether Mr Zantidis refused or declined the request for assistance.

4. If Mr Zantidis refused or declined to assist, whether he did so based upon instructions from Mr Jones.

5. Whether Mr Jones gave Mr Lee any direction that enlivened a duty of care.

6. Whether the unloading procedure undertaken by Mr Lee occurred in the way he described.

Mr Lee’s evidence

52. In relation to the resolution of all of these issues, Mr McCulloch contended that Mr Lee should not be accepted as a witness of truth. He reasoned as follows.

53. First, Mr Lee’s 23 June 2005 letter to his employer makes it plain that he accepted that he was delivering to the Combined Distribution facility. The letter contains no reference to Wickham or Mr Jones. It is also to some extent (although not exclusively) consistent with the Workers Compensation claim form.

54. Secondly, in his first evidentiary statement, Mr Lee refers to a single conversation with Mr Zantidis during which Mr Zantidis refused to help him. Mr Lee referred to Mr Zantidis sitting on his forklift “throughout the whole of the process” waiting for Mr Lee to move the cans of Coca Cola onto the new pallets. There is no mention at all in that statement of Mr Jones.

55. Thirdly, in his second evidentiary statement, Mr Lee refers to having attended the Wickham’s office, speaking to Mr Jones, providing him with the running sheet and being told where to park. He then refers to looking for Mr Jones once his request for help from Mr Zantidis was refused. Mr Lee states that he could not find Mr Jones and refers to a later conversation with Mr Zantidis when he confirmed what he had said earlier about not being able to assist him.

56. Fourthly, in his third evidentiary statement, Mr Lee refers to having met Mr Jones at 7am when he opened the roller door and directed him where to place his vehicle. It is for the first time in this statement that that Mr Lee provides the details of what he said took place, including the load containing 22 pallets and the way in which he went about unloading it. Mr Lee also refers in this statement to a further, new, conversation with Mr Zantidis in which he referred to his load not being the only one that had been damaged. The reference to Mr Zantidis taking photographs of the load is also mentioned for the first time.

57. Finally, during his further oral evidence, Mr Lee went further and asserted that Mr Jones was in fact present on the truck and was therefore aware of the collapsed load. Mr Lee said that Mr Jones directed him to reload the collapsed pallets.

58. Mr McCulloch submitted that Mr Lee’s evidence seeking to implicate Mr Jones was a recent invention. It had never been raised before Mr Lee gave it in court before me. He submitted that Mr Lee was not an accurate historian and was therefore an unreliable witness whose entire case was based upon the mistaken assertion that his load contained 22 pallets. When cross-examined about this discrepancy Mr Lee maintained that his recollection was correct. However, he ultimately conceded that if his load contained only 16 pallets then the version he originally proffered could not have occurred as he initially claimed. Mr Lee conceded that it was hard for him to remember what had occurred given that he was in severe pain and taking medication to relieve it.

59. Mr McCulloch contended that Mr Lee’s evidence that he was present when Mr Jones gave directions to the forklift drivers, especially Mr Zantidis, to unload trucks, was “simply wrong.” Mr McCulloch submitted that it was also untrue and manufactured to enhance Mr Lee’s case. Both Mr Zantidis and Mr Jones denied it was accurate. Mr Zantidis said this:

“Q. If Mr Jones had told the truck to pull up in a certain area would he then summon you to do the forklift work?

A. No.

Q. Who would do that?

A. It’s just part of the role that we do. You see the truck there, you unload it.

Q. You just, effectively, go all over the premises looking for trucks that need unloading?

A. Correct.

Q. Will, on occasion, somebody contact you to say, ‘Look, we have a truck up in some area’ however you describe it and ask for you to go up there to assist with the unloading?

A. No.

Q. You never get contacted?

A. No”

60. Mr Jones said this, when cross-examined by Mr Dooley:

“Q. You don’t come and get them, for instance, I mean to assist with the unloading of the trucks in the Wickham area, if required?

A. No.”

61. Mr McCulloch went as far as to suggest that Mr Lee “was evasive and argumentative and acted as an advocate in his case.” He submitted that Mr Lee’s demeanour during cross-examination “was consistent with an unwillingness to assist.”

62. Mr Dooley argued that there was no basis for contending that Mr Lee was other than someone with serious injuries giving an honest account of what he recalled had caused them. He argued in effect that differences in accounts or apparent imperfections in Mr Lee’s recollection were far from explicable upon the single ground that they were spawned by some kind of dishonest self-interest. The events that give rise to these proceedings are now well over ten years old and fading memory is something that is to be expected. Even more so might this be anticipated in the case of Mr Lee who remains in severe pain, notwithstanding several major spinal operations, and requires constant analgesic support. It is also implicit in Mr Dooley’s submissions that Mr Lee was not obviously accustomed to interrogation in a courtroom and should be understood as completely guileless.

63. In my opinion Mr Dooley’s assessment is to be preferred. This is explained in more detail in what follows. However, it is important to observe that the issues requiring resolution in this case do not depend upon a finding that Mr Lee gave false evidence or tailored his recollection to suit his case. It seems to me that there is convincing, if not in some respects overwhelming, evidence quite removed from Mr Lee’s evidence to support findings on the balance of probabilities that Wickham neither owed nor breached a duty of care to Mr Lee in the particular circumstances of this case.

Factual findings

64. I have earlier dealt with the question of whether Mr Lee’s load contained 16 or 22 pallets. The documentation accompanying the load specified 16 pallets. Mr Lee had on previous occasions delivered loads of 22 pallets. I consider that he described what occurred when unloading a truck containing 22 pallets. No evidence beyond Mr Lee’s frail recollection supports the contention that other than 16 pallets made up the entire load on the day in question.

65. Sight must not be lost of the fact that the difference between 16 and 22 pallets only generates attention to the question of what Mr Lee contended was the involvement of Mr Jones in the general or customary method of unloading trailers at the depot. It is entirely collateral to the issue of what was to happen, or on Mr Lee’s account what should have happened, in situations where a broken load required restacking. It does not directly inform the question of the existence of a duty with which Wickham ought to have conformed.

66. As I have already indicated, it is my view that the subcontractors payment advice is decisively in favour of establishing the information that appears on its face. Indeed, no one, including Mr Lee, has contended that it is erroneous. Mr Lee has effectively been forced to accept that his load conformed to the paperwork that accompanied it. He conceded that there were only 16 pallets on his truck in light of what was written on that document. I consider that to be a realistic and wholly uncontroversial concession.

67. I am also not satisfied that Mr Lee requested any assistance from Mr Zantidis. Mr Zantidis was a disinterested party who I consider gave his evidence in an honest and forthright way. He did not recall speaking to Mr Lee in the terms alleged or in fact at all. It follows as well that I am satisfied that Mr Zantidis did not refuse Mr Lee’s request for help.

68. It is all in my assessment without particular significance in any event. Mr Zantidis was employed by Combined Distribution. He was never employed by Wickham and was unable to represent them in any official capacity either directly or indirectly. Mr Zantidis’ agreement to assist Mr Lee, even assuming it had been provided, would not have bound Wickham to whatever consequences flowed from such an agreement. Conversely, the consequences of any failure by Mr Zantidis to assist Mr Lee would also not have operated to Wickham’s detriment.

69. Mr Zantidis gave evidence that he would assist in the restacking of a broken load, implicitly by getting off his forklift, if he was not busy. He was neither under instructions or directions from anyone at Wickham to do so, and his “obligation” to do so was never more robust than happenstance, where the absence of other pressing duties provided opportunity for him to assist if he chose to do so.

70. Nor am I satisfied that Mr Jones played any relevant role in this series of events. Any refusal by Mr Zantidis to assist Mr Lee had nothing to do with anything Mr Jones did or failed to do. I am not satisfied it was the result of any instruction from Mr Jones. Once again, Mr Jones was employed by Wickham. The evidence does not establish the existence of any relationship between Wickham and Combined Distribution that permitted or obliged Mr Jones to direct Mr Zantidis what to do in performing his work as an employee of Combined Distribution. Similarly, the evidence does not establish that Mr Jones did so.

Discussion

71. In my opinion the facts of the present case establish that Wickham did not owe any relevant duty of care to Mr Lee.

72. Mr Lee was employed by Williams as a truck driver. He was in that capacity responsible for delivering his load to destinations nominated by his employer. In the circumstances of this case, that was a load marked for trans-shipment following delivery to the Combined Distribution depot at Yennora. It was not a load that he was required to deliver to Wickham, the corporation to which his employer was subcontracted. Even if it had been a load destined for delivery to the discrete section of the Yennora depot leased by Wickham, the position would in my view have been no different.

73. The load was on pallets. Forklifts supplied by Combined Distribution were used to remove the pallets from trucks such as Mr Lee’s truck. That was done from the rear of the trailer. There was no loading dock and forklifts at the Yennora depot did not drive onto trailers such as Mr Lee’s trailer.

74. Drivers like Mr Lee were required to facilitate the unloading process for pallets that were beyond the reach of a forklift. Pallet jacks were utilised for that purpose. Loads that had broken or come away from pallets could not be handled by forklift. Such loads had to be restacked on pallets before that could be done. The pallets for that procedure were supplied by Combined Distribution to drivers such as Mr Lee for restacking before they could be manhandled by pallet jack to the rear of the trailer by a driver.

75. No part of the restacking process was done by forklift drivers unless they volunteered when other work commitments permitted them to do so. In all other cases the task was performed by the driver without assistance. That work was part of a driver’s responsibility. Mr Colvin and Mr Jones confirmed that fact. Mr Lee was injured in the course of performing that very task.

76. It does not in my view make any difference whether Mr Lee asked for assistance that was refused or did not ask for assistance at all. Neither Combined Distribution nor Wickham was under any legal obligation to assist Mr Lee to restack his broken load. To the extent that it may be necessary to do so, and having regard to the way in which the case was conducted, I am satisfied that Mr Lee did not ask Mr Jones for assistance, or for assistance to be provided, in the restacking task. Mr Jones’ 17 March 2005 statement, which is effectively contemporaneous with the incident causing Mr Lee’s injuries, is wholly silent on the question of assistance. Indeed, it is wholly silent on the issue of any contact or communication between Mr Lee and Mr Jones on this particular topic, although Mr Jones did apparently recall Mr Lee “complaining about how heavy the pallets were.” References in Mr Lee’s evidentiary statements to Mr Jones only emerge late in the day. I do not accept that Mr Lee’s account of having spoken to Mr Jones is worthy of acceptance in the circumstances. In short, I do not believe that any such conversation as Mr Lee described occurred.

77. As I have already indicated, Mr Lee did not ask Mr Zantidis for assistance. The issue is less critical to the extent that Mr Zantidis was not employed or controlled by Wickham. However, I believe Mr Zantidis’ account that Mr Lee did not ask him for assistance as far as he could recall.

78. The facts do not in my opinion enliven circumstances where Wickham, which was not involved in the unloading activity, and was not the entity that was taking delivery of the goods, can be said to have done or to have failed to do anything that created a risk of foreseeable injury. Mr Lee’s case must necessarily depend upon the establishment of a duty by a stranger to take positive steps to interfere or become involved in an activity or enterprise with which it was not otherwise directly involved or concerned. The manhandling of pallets while still on the trailer, in a location where they could not yet be reached by forklift, was Mr Lee’s task and not as such an activity in which Wickham played any role. Wickham did not owe Mr Lee a duty of care to prevent the risk of injury arising from the manual restacking of a dislodged load without assistance. That duty was undoubtedly owed to Mr Lee by Williams as his employer: see Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [34] – [35].

79. In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 at [12] the Court said this:

“[12] … 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”.

80. In Andar at [57], the following passage appears:

“[57] … it has been said that ‘[a] system of working normally implies that the work consists of a series of similar or somewhat similar operations’. The loading and unloading of linen trolleys from a delivery truck, pursuant to a contractual arrangement requiring regular repetition of that activity, clearly falls within these descriptions. As a result, Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result. As a sub-set of the general common law duty of care outlined earlier in these reasons, the obligation is non-delegable…”

81. Where a specialist contractor has been retained to perform specialist contract services, the head contractor is not liable for injuries sustained by persons as a result of the specialist contractor’s work: Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 at [20]. In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Basten JA reviewed this category of cases where a head contractor may be sued:

“[139] The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

(a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker;

(b) the condition of plant or premises under the control of the third party, or

(c) the activities of others on the site, generally for the purposes of the third party’s undertaking or business.”

82. The present case does not come within any of these three categories. Wickham exercised no control over Mr Lee. That control was exclusively reposed in his employer. No plant failed and there was no fault in the condition of the premises. It is also apparent that the activities of others at the depot were entirely collateral to the creation of the danger that caused the damage.

83. Section 5B of the Civil Liability Act 2002 provides as follows:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(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 those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care 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 that creates the risk of harm.”

84. I accept that the risk was foreseeable and not insignificant. Even though due allowance must be made for the different positions of Wickham on the one hand and Mr Lee’s employer on the other hand, the risk that someone in the position of Mr Lee, performing bending, twisting and heavy lifting movements in the confined spaces of a loaded semi-trailer might suffer injury to his back is plainly foreseeable by his employer and also by Wickham in the particular circumstances of this case. The risk is far from being of little or no moment and in my view is clearly not insignificant.

85. However, it does not seem to me to be the case that a reasonable person in Wickham’s position would have taken any precautions to prevent what happened to Mr Lee. The most obvious reason for that is that he was delivering goods to Combined Distribution for trans-shipping by that company to retail outlets that could not accommodate semi-trailers at their premises. Mr Lee was not delivering goods to Wickham and Wickham was not receiving them. Furthermore, Wickham was not assisting in the unloading of the goods and Wickham personnel were neither concerned with nor involved in the unloading process or procedures.

86. Even upon the assumption that Mr Lee were delivering the goods directly into the hands of Wickham staff, a reasonable person in Wickham’s position would in my view have been entitled to do nothing. Whatever view one might form concerning the morality of failing to provide manual assistance to a worker struggling with a physical task, the duty to assist him fell on his employer and not upon Wickham. Wickham was entitled in the circumstances of this case to stand by and to wait until the load had been restacked ready for removal by forklift. It was entitled to refuse a request for assistance if it were made.

87. There is generally no obligation to assist another: Stovin v Wise [1996] AC 923 at 931. Gleeson CJ in Swain v Waverly Municipal Council [2005] HCA 4; (2005) 220 CLR 517 said this at [5]:

“[5] In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers.”

88. A reasonable person may do nothing. McHugh J in Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 said this at [38]:

“[38] A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk.”

89. What a reasonable person would do in particular circumstances is to be judged or assessed by reference to the relationship (if any) between a plaintiff and the putative defendant and to the characteristics of the plaintiff: Shaw v Thomas [2010] NSWCA 169 at [40]. In the present case Mr Lee was not in a recognisable relationship with Wickham at all. He was a truck driver delivering a load to a third party. His position was in my view analogous to that of the driver of a meat truck delivering carcasses to a refrigerated depot or a retail outlet or the driver of a brewery truck delivering kegs of beer to a hotel. It would not be remarkable for those taking delivery of such goods to do nothing even if it was or should have become obvious to them that the driver was struggling with the task of manually handling the carcasses or kegs. This would be so whether or not he or she had asked for some assistance with the task. The fact that such a request for help would or might evoke a sympathetic response from many of us does not reliably inform the existence, far less the scope and content, of what is in the final analysis a legal obligation or duty.

90. In this context it is timely to recall what was said by the High Court in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [49]:

“[49] What has been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman does not represent the law in Australia. Lord Bridge himself said that concepts of proximity and fairness lack the necessary precision to give them utility as practical tests, and ‘amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope’. There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case. The proximity question has already been discussed. The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.” [Emphasis added]

91. The United Kingdom Supreme Court recently considered whether or not the police could be liable, in the case of the death of a woman, following an emergency call to which the police failed adequately to respond, in Michael v Chief Constable of South Wales Police [2015] 2 WLR 343; [2015] UKSC 2. As noted at (2015) 89 ALJ 558:

“The majority judgment [in Michael] is notable in its rejection of various proposed, generalised ‘yardsticks’ for the imposition of novel duties of care. It signals an apparent convergence between the dominant English and Australian positions … regarding the utility of ‘proximity’ as a determining factor.”

92. Wickham may well have rendered itself liable to Mr Lee if through its servants or agents it had intervened to assist Mr Lee and in so doing somehow caused or contributed to his loss and damage. The Civil Liability Act exception in relation to the liability of a Good Samaritan would presumably not protect Wickham unless its (hypothetical) intervention was in response to an emergency. The position in which Mr Lee found himself in this case fell far short of an emergency.

Further matters

93. Mr Dooley submitted that he could draw support, in his arguments in favour of the existence of a duty of care, from the terms of the Transport Agreement between Wickham and Woolworths Ltd dated 10 October 2006. (Although the agreement post-dates Mr Lee’s accident, it was tendered by Wickham and no issue about its application to these proceedings has been raised).

94. Wickham transported goods for Woolworths in accordance with the terms of the Transport Agreement. Presumably, Wickham’s subcontract with Williams was caught by the terms of that agreement. Wickham is described as “the Carrier” in the agreement, which contains the following provision:

“SUBCONTRACTING

…

20.2 Carrier’s obligations

Before engaging or entering into an agreement with a Subcontractor, in addition to obtaining Big W’s consent pursuant to clause 20.1 the Carrier must ensure:

…

(e) that the following subcontractor guidelines are established and maintained:

(i) specific occupational health and safety policy and related programmes;

(ii) a consultation mechanism with external providers;

(iii) a training strategy;

(iv) a hazard identification and workplace assessment process;

(V) risk control; and

(vi) the promotion, maintenance and improvement of the above strategies.”   

95. The term “Driver” is defined in Schedule 1 to the Transport Agreement to mean “any driver of a Vehicle that is used by the Carrier in performing the Services, irrespective of whether that person is an employee, agent, contractor or sub-contractor of the Carrier.” That definition would clearly include Mr Lee.

96. The precise way in which Mr Lee asserts that these provisions support his case is not entirely clear. The terms of the agreement are not pleaded or referred to in the second amended statement of claim. The provisions do not in terms specify that Wickham should have done any of the things, or conformed to any of the particulars of negligence, pleaded against Wickham in the second amended statement of claim. Perhaps more fundamentally, Mr Lee has not by evidence established any failure by Wickham to comply with the terms of clause 20.2(e) of the Transport Agreement.

97. There is also a difficulty for Mr Lee in terms of causation. Mr Lee has not established either that compliance by Wickham with the terms of the Transport Agreement would have resulted in Wickham adopting a regime or system for unloading trucks at the Yennora depot that would have extended to or included any of the matters particularised as breaches of the duty for which Mr Lee contends, or that it would have prevented the injuries that Mr Lee sustained if it had.

98. Wickham raised and relied upon a defence pursuant to s 151Z (2) (c) of the Workers Compensation Act 1987. By reason of my conclusion that Wickham is not liable in damages to Mr Lee, it is neither possible nor necessary to consider that defence.

99. Finally I note that Mr Lee relied upon two experts in support of his case on liability. The first was Mr Phillip Buckland, a consulting engineer, whose reports dated 28 April 2014 and 13 June 2014 became exhibits in these proceedings. I have not found it necessary to refer to this evidence. That is because Mr Buckland’s evidence and opinions were necessarily directed to the question of breach of duty. His opinions did not, and could not, inform the anterior legal question of the existence of a duty in the first place.

100. The second expert upon whose opinion Mr Lee sought to rely was Mr Ron Beckett. His report dated 5 August 2014 was rejected by me in light of Wickham’s objection to its tender. That objection was based upon the contention that Mr Beckett failed to demonstrate a process of empirical or scientific reasoning based upon his training, education or experience and his (unchallenged) expertise as a consulting engineer. I do not consider that Mr Beckett’s report conforms to the constraints necessary for reception as an expert opinion. In short, Mr Beckett made statements presumably intended to be supported by a wealth of documents attached to his report that were never utilised or analysed in a way that reliably or discernibly supported the views he expressed.

101. In the events that occurred, rejection of Mr Beckett’s report was of no consequence. That is once again for the reason that Mr Beckett was concerned with questions of breach of duty and not with the issue of whether or not a duty existed at all.

Conclusion and orders

102. In my view Wickham neither owed nor (for that reason) breached any recognised duty of care to Mr Lee. It follows that the proceedings should be dismissed with costs.

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Decision last updated: 07 December 2015