Meli v Ceva Logistics (Australia) Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 01279

UGO MELI	Plaintiff
v
CEVA LOGISTICS (AUSTRALIA) PTY LTD	First Defendant
and
HRX TPT PTY LTD	Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2, 3, 9, 10, 13 to 17, 20 to 22 November 2017
DATE OF JUDGMENT:	12 December 2017
CASE MAY BE CITED AS:	Meli v Ceva Logistics (Australia) Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 739

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NEGLIGENCE – Workplace injury – Loading tyres in rear of truck operated by third party – Whether third party owed duty of care – Whether third party breached duty of care – Apportionment between defendants – Reduction of damages for economic loss for vicissitudes of life – Wrongs Act 1985 (Vic), Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Casey QC with Mr D McWilliams	Arnold Thomas and Becker
For the First Defendant	Mr P Scanlon QC with Ms F Spencer	Thomson Geer
For the Second Defendant	Mr J Simpson	Mills Oakley

HIS HONOUR:

At 5.15 am on 31 January 2007 Mr Meli was injured when eight metal load securing gates in the rear of a tautliner trailer fell on him. At the time, the trailer was situated near a loading dock at the Somerton depot of South Pacific Tyres (‘SPT’). Mr Meli was an employee of the First Defendant (‘Ceva’). Ceva was contracted to provide logistic services to SPT. The tautliner trailer (trailer 226) was owned and operated by the Second Defendant (‘HRX’). HRX was contracted to provide transport services to SPT. On the morning of 31 January 2007 trailer 226 was scheduled to be loaded with tyres to be transported by HRX to SPT’s Brisbane depot. The eight metal gates had a combined weight of approximately 300 kilograms. The gates, each of which had a metal extension attached to its top, were tied at the rear of the trailer immediately prior to falling upon Mr Meli. The gates were used for the purpose of providing structural integrity to the trailer. Prior to tyres being loaded into the trailer, the metal gates were to be untied and repositioned along both sides of trailer 226.

Ceva has admitted that it owed a duty of care to Mr Meli which it breached. As between Mr Meli and Ceva the only issue which falls for determination is the quantum of damage which Ceva is liable to pay. HRX denies that it owed any duty of care to Mr Meli. In the alternative it submits that if it did owe a duty it did not breach that duty of care.

In addition to Mr Meli’s claims against the defendants, Ceva and HRX seek contribution from each other for any liability to pay damages to Mr Meli. HRX claims a full indemnity from Ceva. Ceva claims that HRX should be liable for the ‘lion’s share’ of damages.

The central issue as to the liability of HRX concerns the manner in which the eight gates were secured. Mr Meli contends that:

(i) The usual practice was for the gates to be tied off in bundles of two to three at a time, and that as each bundle was untied the gates would be individually removed and positioned along the inside of the trailer;

(ii) On the morning of 31 January 2007 the eight gates were secured by only one rope which had been lashed across the front of all eight gates; and

(iii) As soon as he untied the single rope securing the gates all of them fell on him.

HRX contends that the eight gates were secured as follows. The six gates positioned closest to the rear door of trailer 226 (gates 1/2; 3/4; and 5/6) were tied off in bundles of two by means of a ‘safety tail’ which in turn was secured to a horizontal rope across the rear of the trailer. The final two gates (7/8) were secured by a nine metre ‘stack securing rope’ which was lashed across the front of the gates three times. The manner in which HRX contends the gates were secured was recorded during an inspection conducted on 16 November 2017.[1]
[1]See Exhibit P3 (DVD of view).

As to the sequence to which the ropes were untied by Mr Meli, in his opening submissions, Mr Simpson, who appeared for HRX, submitted that Mr Meli untied the gates by first untying the stack securing rope around gates 7/8 and then untying each of the three knots on the safety tail which secured gates 6/5, 4/3 and finally 1/2. On the second day of hearing Mr Simpson described HRX’s position as to the sequence in which Mr Meli had untied the ropes on the four sets of gates as ‘fixed and firm Your Honour, committed.’[2] However, by the conclusion of the trial, Mr Simpson submitted that the Court should find that Mr Meli had untied the ropes in an ‘incorrect sequence’ by commencing to untie the gates closest to the rear door (1/2) and then working backwards to gates 7/8. This submission was consistent with the evidence of Mr Brian Horrex, HRX’s Operations Manager, that in order for all of the gates to have fallen on Mr Meli ‘he would have had to undone them in the opposite sequence’.[3]
[2]Transcript of Proceedings, 214 line 24–25 (‘Transcript’).
[3]Ibid 1232 line 7–9.

I have concluded that the eight gates which fell on Mr Meli on the morning of 31 January 2007 were secured by one rope. I reject HRX’s contention that the gates were tied off in sets of two and that Mr Meli had untied them in an incorrect sequence. HRX bears primary liability for the injuries sustained by Mr Meli. Ceva is also liable by reason of its inadequate occupational health and safety practices and the provision of inadequate lighting on the morning of 31 January 2007. As between HRX and Ceva I have apportioned their respective liability at 65 per cent/35 per cent.

Before addressing the circumstances in which Mr Meli sustained injury on 31 January 2007 it is necessary to set out some background regarding his personal circumstances and employment history.

The Plaintiff’s Background

Mr Meli was born on 3 March 1965 and is currently 52 years of age. He was married in December 1985. There are two children of the marriage: John born 20 June 1990 and Renee, born 25 May 1999. Prior to 2007 Mr Meli had a stable employment history. He worked for SPT from 1985 to 2000. He was employed in the quality control sector as a storeman and a forklift driver. In 2000 he took a voluntary redundancy package and commenced work at Australian Fabric Laminators (‘AFL’) in Laverton where he was employed as a storeman, customer service officer and forklift driver.

Background regarding the events of 31 January 2007

During the course of his employment at SPT Mr Meli had considerable experience loading tyres into trailers. He estimated that over the course of his employment he would have done so ‘comfortably a thousand times’.[4] He estimated that 80 per cent of this work included having to position stack securing gates along the side of trailers before loading tyres.[5]
[4]Ibid 307 line 12.
[5]Ibid 308 line 20.

During Mr Meli’s employment with AFL between 2000 and 2006 he continued to be involved in the loading and unloading of trucks, including the repositioning of metal gates within trailers.[6]
[6]Ibid 310 line 17-20.

During his employment at AFL Mr Meli met Trevor Black. Mr Black was employed by Toyota Tsusho which shared the same site as AFL. AFL were suppliers of seat fabric to Toyota. During this period Mr Black was in constant contact with Mr Meli.[7] Mr Black commenced employment with Ceva as Operations Manager in the first half of 2006. He suggested that Mr Meli also move there.[8] He thought that Mr Meli was an outstanding candidate for employment with Ceva.[9]
[7]Ibid 497 line 25.
[8]Ibid 498 line 3-8.
[9]Ibid 498 line 17.

Approximately 100 casual employees were engaged by Ceva when they commenced providing logistic services to SPT at the Somerton depot in the first half of 2006. Mr Meli was one of about eight casual employees who were appointed leading hand/ supervisor.[10] Mr Meli was assessed ‘as being an outstanding individual’ warranting promotion.[11] One of the other employees promoted to leading hand/supervisor was Mr John Burrows.
[10]Ibid 499 line 11–12.
[11]Ibid 497 line 11–12.

Mr Black’s evidence, which I accept, was that a small component of Mr Meli’s work as a leading hand/supervisor involved office work: checking paperwork for truck loads scheduled to arrive and checking what goods were to be loaded.[12] Mr Meli’s evidence, which I accept, is that 70 per cent of his work involved ‘getting his hands dirty’.[13]
[12]Ibid 499 line 15–19.
[13]Ibid 188 line 14.

Until approximately November 2006 HRX drivers participated in the loading of trailers assisted by Ceva employees. Both Mr Meli and Mr Burrows had experience in handling gates and loading tyres into trucks. Mr Meli was involved in assisting with the loading of HRX trailers two to three times per week.[14] From about November 2006 HRX drivers ceased having any involvement in loading tyres onto HRX trailers. HRX drivers would leave an empty trailer at the Somerton depot. If there was another trailer which had already been loaded and was ready for departure the driver would hook the trailer up to his/her prime mover and depart immediately for Brisbane. If no trailer had been loaded and was ready for departure, the driver would go off site until the trailer was ready.[15]
[14]Ibid 86 line 25.
[15]Ibid 102-103 line 22-12.

Mr Black had no recollection of a formal direction having been given to HRX by Ceva in November 2006 that HRX drivers were no longer to be involved in loading trailers. Nevertheless, I accept Ms Anne Horrex’s evidence that such a direction was given. Ms Horrex was HRX’s Office Manager in 2006/2007. In a letter to Mr Frank Francalanza, SPT’s National Distribution Manager, on 17 November 2006, Ms Horrex referred to Mr Black stating that ‘HRX drivers would no longer be loading, they would have to sleep in their trucks while their trailers were loaded’.[16] Mr Francalanza gave evidence that he had a clear recollection of a direction being given by Ceva that HRX drivers were not to be involved in loading trailers.[17] Ultimately, no party disputed that a direction had been given by Ceva to HRX in late 2006 that HRX drivers were not to be involved in loading trailers. As a result of the direction, HRX drivers were no longer involved in untying and repositioning gates in HRX trailers prior to them being loaded with tyres.
[16]Exhibit D2F (Second Defendant’s List of Key Documents) 70-71.
[17]Transcript 890 line 5–7.

From late 2006 Mr Meli was involved in loading HRX trailers (including untying and repositioning gates) without the involvement of HRX drivers.[18] Mr Meli had a preference for working with John Burrows.[19] Mr Burrows was the team leader in the loading section. Mr Meli and Mr Burrows worked together frequently loading and unloading trailers.[20] Mr Burrows described Mr Meli’s level of skill in undertaking the work of loading and unloading trailers as excellent.[21]
[18]Ibid 97 line 28; 98 line 9.
[19]Ibid 98 line 8.
[20]Ibid 643 line 3.
[21]Ibid line 11.

Mr Meli’s evidence regarding his involvement of the loading of trailers under the new system post-November 2006 was as follows:

(iv) A mini prime mover was hooked up to the trailer and it was driven to the dock and reversed in but would stop short of the dock so that the rear doors could be opened one at a time and then the trailer was reversed right in. Then the ramp would be lifted and dropped into the rear of the trailer to create a thoroughfare. Mr Meli had only ever seen the gates either lying horizontal on the floor and strapped down or hard up against the front of the trailer.[22]
[22]Ibid 117-118.

(v) He would not necessarily set up all the gates before commencing to load or if some were in the way they could be removed and laid on the floor at the end of the dock.[23]
[23]Ibid 117 line 24-28.

(vi) When the gates were against the bulkhead the gates and extensions would be separately tied in front of the gates by rope. The extensions would be put out of the way because they were not needed then.[24]
[24]Ibid 118 line 24-26.

(vii) Then he would undo the gates. First he would make sure how they were tied up. He would put his hand up against the gate, pull the rope with the special knot in it and it would loosen everything and then he would pull out the bottom of the feet to create an incline at the top so that the gate would not fall. The gates were in bundles of three, so he would pull out the feet of the first three and then start moving the gates away, one at a time because they were made of steel and very heavy. When doing this he released three ropes across the front of the stack by undoing the truckie’s knot.[25]
[25]Ibid 119–121.

(viii) There were separate knots per stack[26] so if there were nine gates in three sets of three there would be three separate truckie’s knots so he would have to untie the second knot to release the second batch and the third knot to release the third batch.[27] He would continue with this process until all the gates had been released.

(ix) When the lighting was poor there was a system whereby a forklift would be brought to the rear of the truck and the headlight would be turned on.[28]

[26]Ibid 121 line 13-14.

[27]Ibid line 18-21.

[28]Ibid 163 line 11-15.

The events of 31 January 2007

The following events of 31 January 2007 are not controversial:

• Mr Meli arrived at the premises at approximately 4.30 am.

• Mr Burrows arrived at the premises at between 4.30 – 4.45 am.

• Due to some casual labour not being available, Mr Meli and Mr Burrows were to load HRX trailer 226, a drop deck tautliner, with tyres after Mr Meli had completed some paperwork in the office.

• The trailer had been hauled to the premises by a driver employed by HRX and left on its stands some earlier time.

• When the trailer had been left at the premises it was empty of any load but contained a number of steel gates and extensions.

• Shortly before Mr Meli was injured the trailer was hooked up to a small prime mover by Tony, another Ceva employee, and hauled over towards the dock at which the loading of the tyres was to occur.

• When it was being reversed towards the loading dock the curtains on both sides of the trailer were closed and fastened and the two rear doors were closed.

• Before the trailer reached the dock it was stopped and the driver’s side rear door was opened by either Mr Meli or Mr Burrows.

• At this time, 5.15 am, there was no natural light as the sun had not risen.

• Both Mr Burrows and Mr Meli were able to observe through the open driver’s side rear door that there were a number of gates standing behind the rear doors.

• As the gates were in that position it was decided not to open the passenger side rear door as the gates might have fallen from the trailer. It was not possible to obtain access to the inside of the trailer through the rear doors. Accordingly it was not possible to proceed to reverse the truck back into the dock and deploy the dock ramp which could be raised and lowered to within the trailer to provide a thoroughfare between the dock and the trailer.

• Some of the straps of the driver side curtain were released and both men were able to slide underneath and into the trailer.

• There was some artificial light coming from a light on the dock.

• In order to obtain better light Mr Burrows left the trailer in order to get a forklift, the headlights of which could be used to provided better artificial light.

• After Mr Burrows had left the trailer Mr Meli was positioned in front of the stack of gates.

• Whilst Mr Meli was so positioned the stack of gates fell together down upon him causing him to fall to the floor of the trailer with the gates positioned upon him.

• Mr Burrows heard Mr Meli cry out and a loud noise and immediately returned to the side where he and the Plaintiff had gained access to the trailer, climbed in and saw the Plaintiff lying beneath the stack of gates which had all fallen upon him.

•The time between Mr Burrows exiting the trailer and when he heard Mr Meli cry out was 15 to 20 seconds.
•Mr Burrows found Mr Meli underneath a stack of gates lying on his back in the centre of the trailer.
•Mr Burrows lifted three of the gates which were on top of Mr Meli and pulled him out from underneath. He moved the three gates towards the front of the trailer.

How were the gates secured in the rear of trailer 226?

On the one hand, Mr Meli and Ceva contend that the eight gates in the rear of trailer 226 were secured by one rope, which was totally inadequate to secure metal gates and extensions weighing approximately 300 kilograms. On the other hand, HRX contends that the gates were tied off in three separate sets of two gates, with the final two gates secured by the stack securing rope. Mr Simpson, opened HRX’s case as follows:

There are eight gates with extensions in them, Your Honour. And that securing rope is anchored three times around the stack and hitched off on the third wound of the rope. So, you have three times ropes securing the outer stack, which is tensioned off by a truck driver in the usual way that they tension with hitch knots. And that secures the fourth gate set to the rest of the stack. What has happened, and the evidence will be very clear about this, Mr Meli has sought to undo the outer rope, rope B, the stack securing rope. He’s loosened that. Then Mr Meli has gone to the safety tail rope and he has undone the safety tail rope sequentially at the same time. In other words, he’s loosened the outer stack rope. He’s then gone to the safety tail rope. He’s undone the third stack of gates. He’s undone the second stack of gates, and he’s undone the first stack of gates. So, he has completely compromised the entire integrity of the fastening system such that he’s loosened everything.[29]

[29]Ibid 40 line 13–31.

As to the sequence in which Mr Meli untied the ropes securing the eight gates, the following exchange took place between myself and Mr Simpson on the third day of hearing:

His Honour: But your case is, and there’s no bones about it as I understand it, Mr Simpson, that before it would have been possible for all eight gates – because we know that all eight gates fell on Mr Meli. Before that could occur, several discrete steps had to be taken.

Mr Simpson:   That’s right, Your Honour.
His Honour:   The undoing of four knots and what I’m struggling to understand is having undone the knot on the stacked security rope [sic], which would have allowed him to simply remove the front two gates.
Mr Simpson:   Correct.
His Honour:   Your case is notwithstanding that and what would have been the obvious sensible thing to do, I’ve now got access to the front two gates. Your case is that he has then proceeded to untie the – so that’s gates 8 and 7 have been freed up. He’s then proceeded to untie the first of the safety tail knots securing gates 6 and 5. At that point he’s got four gates which can fall upon him.
He then proceeds to untie the safety knot on gate 4 and 4 [sic]. At that point he’s got six gates which can fall upon him. He then proceeds to untie the safety knot on gate 2 and 1, so he must at this point – if you’ll pardon me. He must be standing and he must have his arm right through to get to the rear to untie the know [sic] – safety knot 1 right at the rear.

Mr Simpson: Yes.
His Honour: At that point standing like that he then has eight gates fall back on him.

Mr Simpson:   Yes.
His Honour:   Have I got that clear?
Mr Simpson:   That is absolutely the case and that’s what the evidence from the 2^nd defendant will be. That’s the first position of the 2^nd defendant. Fixed and firm Your Honour, committed.[30]

[30]Ibid 213-214 line 22-25.

HRX placed particular reliance upon 11 photographs of trailer 226 which were taken on 31 January 2007 sometime after the gates had fallen on Mr Meli.[31] Annexed to this judgment marked Attachment ‘A’ is photograph 4 from the sequence of 11 photographs. This photograph shows a horizontal rope tied across the rear of the trailer. This ‘safety rope’ is to prevent gates which have been tied off at the rear of the trailer from falling out of the back of trailer when the two rear doors were opened. The photograph shows one of the rear doors had been opened. The photograph also shows that the side curtains of the tautliner had been pulled back. It is not in dispute that the curtains had not been pulled back when Mr Meli sustained injuries at approximately 5.15 am on the morning of 31 January 2007. To the left of the trailer there are four lengths of rope. The shortest of these, which has a kink towards the bottom, is the ‘safety tail’. This is the rope which HRX contends was used to secure the six gates closest to the rear doors by tying them off in sets of two, connected to the horizontal safety rope. The three strands to the left of the safety tail comprise the stack securing rope which HRX contends was tied around the final two gates in the stack.
[31]Exhibit D2A (Second Defendant’s Folder of Photographs).

The photographs show the stack of gates in a neat pile. This was not the configuration of the gates immediately after the accident because Mr Burrows had to remove the top three gates in order to release Mr Meli.[32] Somebody must have returned these three gates to the stack prior to the photographs being taken.
[32]Transcript 654 line 28-30; 656 line 10-14.

I accept that the configuration of ropes as depicted in photograph 4 could have been deployed to secure the gates in the manner contended for by HRX. However, this does not preclude the Plaintiff’s contention that the gates were secured by only one rope.

The unchallenged evidence of Mr Burrows is that a period of 15 to 20 seconds lapsed between the time he exited the trailer and when he heard Mr Meli cry out as the gates fell upon him. There is no evidence which would permit a finding that if the gates had been tied off as contended by HRX it would have been possible for Mr Meli to have untied four separate sets of gates in such a short period of time. Mr Simpson conceded this to be so.[33]
[33]Ibid 1353 line 30.

Mr Simpson submitted that although there was no evidence that Mr Meli could have untied the three sets of gates secured by the safety tail as well as the final two gates secured by the stack securing rope within 15 to 20 seconds, there was evidence which supported a finding that Mr Meli untied the six gates tied off by the safety tail before Mr Burrows exited the trailer. Mr Simpson accepted that if this submission were rejected ‘the Court would be driven to make a finding that in fact there was but one rope securing the stack’.[34]
[34]Ibid 1354 line 2-10.

I reject HRX’s submission that Mr Meli untied three sets of gates closest to the rear door before Mr Burrows exited the trailer. First, Mr Simpson did not put to either Mr Meli or Mr Burrows that Mr Meli had untied six gates tied off in three sets of two by the safety tail prior to Mr Burrows exiting the trailer. The unchallenged evidence of Mr Meli is that he only commenced to untie the ropes after Mr Burrows had exited the trailer. Second, Mr Simpson did not put to Mr Meli that the sequence in which he untied the gates involved Mr Meli untying the six gates closest to the rear door prior to untying the last two gates secured by the stack securing rope. Any attempt to do so would have been inconsistent with the ‘fixed and firm’ position of HRX regarding the sequence in which Mr Meli untied the gates. It was incumbent upon Mr Simpson, as a matter of fairness to put to Mr Meli and Mr Burrows the proposition that Mr Meli had untied the six gates closest to the rear doors prior to Mr Burrows exiting the trailer.[35] Third, the theoretical possibility that Mr Meli may have been unable to untie six gates secured by three knots tied off on the safety tail prior to Mr Burrows exiting the trailer falls well short of sustaining a finding on the balance of probabilities that Mr Meli did so.
[35]See Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227 [108]-[110] citing Browne v Dunn (1893) 6 R 67.

Mr Burrows gave unchallenged evidence that a period of 15 to 20 seconds lapsed between the time he exited the trailer and when he heard Mr Meli cry out as the gates fell on him. HRX accepts that Mr Meli could not have untied four sets of gates within such a short period of time. HRX also accepts that if the Court rejects its contention that Mr Meli had already untied six gates prior to Mr Burrows exiting the trailer, the only finding open to the Court is that the stack was secured by one rope. Having rejected HRX’s submission that Mr Meli had already untied six gates prior to Mr Burrows exiting the trailer it is, strictly speaking, unnecessary to make findings in respect of other contested factual matters relevant to the question of whether the gates were secured by one rope. Nevertheless, for the sake of completeness I shall do so.

Mr Meli’s evidence was that, if the stack of eight gates had been tied off in four separate bundles, it would have been stupid to untie all of the bundles before moving any of the gates. His evidence was that ‘it would be awkward, because you’d be sticking your arm through the – the gates, right, which automatically increases your level of injury. And you’d have to – anybody would be stupid to do that’.[36] It is implausible that an individual with Mr Meli’s many years of experience working with gates in trailers would have placed himself in such danger by untying four separate sets of gates thereby exposing himself to the risk of 300 kilograms of metal gates falling on him. Mr Meli accurately describes such behaviour as stupid.
[36]Transcript 170 line 11–15.

Mr Meli gave evidence that his practice when untying gates was to immediately reposition the first gates which he untied in the side of the trailer.[37] As I have noted earlier in this judgment, Mr Meli’s unchallenged evidence was that throughout his 15 years of employment at SPT he had extensive experience working with the repositioning of gates in trailers when loading tyres. The evidence of both Mr Black and Mr Burrows supports a finding that Mr Meli was both a conscientious and competent worker.
[37]Ibid 120 line 15–30.

I found Mr Burrows to be a particularly impressive witness. He was acknowledged by both Mr Brian Raison and Mr Brian Horrex, each of whom gave evidence on behalf of HRX, to be a very competent worker. He gave his evidence in a forthright manner. He had a very clear recollection of the events of the morning of 31 January 2007. His evidence was that he has been deeply affected by the circumstances in which Mr Meli was injured. Mr Simpson cross-examined Mr Burrows on the basis that he had a clear recollection of the events on the morning of 31 January because of the trauma which had been associated with the circumstances of Mr Meli’s injury:

But I’m suggesting to you that you do remember the event because there’s an element of trauma associated with it for you, correct? - - - Correct.[38]

[38]Ibid 687-688 line 30–1.

Mr Burrows presented as a witness not only with a very clear recollection of the events of 31 January 2007, but also as a witness who was genuinely trying to give truthful evidence.

Mr Burrows frequently worked with Mr Meli loading trailers with tyres. He considered Mr Meli’s skill in undertaking the work of loading and unloading trailers to be excellent.[39] He strongly rejected the suggestion that Mr Meli did not understand the system for fastening gates in the rear of tautliners.[40] He described Mr Meli as ‘a terrific bloke to work with.’ He ‘totally disagreed’ with the suggestion that Mr Meli was an impulsive reactionary worker.[41]
[39]Ibid 643 line 3, 11.
[40]Ibid line 31.
[41]Ibid 714 line 15–25.

HRX advanced a submission that Mr Meli was incompetent and that this was a significant contributing factor to the accident which occurred on 31 January 2007. Notwithstanding this submission, HRX did not contend that any finding of liability against HRX should be reduced by reason of contributory negligence on the part of Mr Meli. In support of its submission, HRX called Mr Brian Raison, a former employee of HRX. Mr Raison gave evidence regarding his experience working with Mr Meli when he was making deliveries to SPT’s Somerton depot. He gave evidence that he had worked with Mr Meli on two occasions prior to 31 January 2007. His evidence was that Mr Meli was not the best loader. ‘He was always going at everything like a bull at a gate’.[42] He gave evidence that Mr Meli would ‘bounce them [tyres] and they’d go the wrong way or he’d go to give you a hand to pick up a truck tyre and you’d swing one way to throw it up and he’d go the opposite way and you’d sort of more or less had to try and slow him down, I don’t know’.[43]
[42]Ibid 764 line 16–17.
[43]Ibid line 19–24.

I consider that the evidence of Mr Raison is of little, if any, probative weight compared to the evidence of Mr Burrows who frequently worked with Mr Meli loading and unloading trailers, including untying and repositioning gates. Mr Raison had never observed Mr Meli untying and repositioning gates. His evidence provides no foundation for the submission advanced by HRX challenging Mr Meli’s competence to unfasten gates. The true position is that it is quite implausible that Mr Meli, a competent and experienced employee, with direct experience of untying gates and repositioning them in trailers, would put himself in harm’s way by untying four sets of gates weighing in excess of 300 kilograms. It is also implausible that Mr Meli would have departed from his usual practice and commenced untying the stacks by untying the gates closest to the rear of the trailer.

There are a number of other matters which weigh in favour of the contention advanced by Mr Meli and Ceva that the eight gates were secured by one rope. Mr Burrows’ unchallenged evidence is that he found Mr Meli lying ‘right in the centre of the trailer’ under the stack of gates.[44] As was demonstrated during the inspection on 16 November 2017 the three safety tail knots which tied off six gates closest to the rear of the trailer were positioned on the driver’s side of the vehicle. If Mr Meli had untied the gates in a sequence commencing with the outer two gates secured by the stack securing rope and then proceeded to untie the remaining six gates secured on the safety tail, he would in all likelihood have been standing on the driver side of the trailer when the stack of gates fell upon him. His position in the centre of the trailer as he was found by Mr Burrows is consistent with his account that the gates were secured by one rope and that all gates fell upon him when he untied that one rope.
[44]Ibid 721 line 17-18.

Mr Horrex was present in court whilst Mr Meli and Mr Burrows gave their evidence. He was entitled to be in court as a representative of HRX. Nevertheless, in assessing the weight to be given to Mr Horrex’s evidence that, in order for all eight gates to have fallen upon Mr Meli, he must have commenced by untying gates 1/2 closest to the rear door and then worked backwards to gate 7 and 8, I have regard to the following matters. First, this evidence and the submission advanced by Mr Simpson relying upon it, is inconsistent with the basis upon which Mr Simpson opened the case. Second, Mr Simpson did not put to either Mr Meli or Mr Burrows that Mr Meli untied the gates commencing with gates 1/2. Third, in giving the evidence as to the ‘incorrect sequence’ in the untying of the gates, Mr Horrex had already heard the evidence of Mr Meli and Mr Burrows. Insofar as HRX relies upon the evidence of Mr Horrex as evidence that Mr Meli did in fact untie the gates commencing with gates 1/2, I give that evidence very little weight. It was incumbent upon Mr Simpson, as a matter of fairness, to put to both Mr Meli and Mr Burrows the proposition that the gates had been untied in a sequence commencing from the rear of the trailer. The failure to do so is a matter which I take into account in assessing the weight to be given to Mr Horrex’s evidence.[45]
[45]

An incident report was prepared by Trevor Black on 31 January 2007.[46] That report identified the cause of the accident as ‘gates were all tied together and not in sets’. The ‘root cause’ of the incident was identified as:

Gates were tied to rear of truck all together and not separated in sets to reduce chance of all gates falling over at once. Hence, when the gates were untied the weight was too much to hold back and forced John to the floor.[47]

[46]Exhibit P4 (Plaintiff’s Amended Court Book) 4-6.

[47]Ibid 5.

The ‘corrective action’ is stated to be: ‘will seek to have gates transported laying down or have them tied off in sets of three to minimise weight’.

Mr Black’s evidence was that he prepared the incident report based on information that had been provided to him by Mr Burrows on 31 January 2007.[48] No objection was taken to the tender of the incident report. The report is a business record of Ceva for the purposes of s 69 of the Evidence Act 2008. The incident report is evidence of the truth of the asserted fact, namely that the gates were tied off together in one bundle and not in sets. It is a contemporaneous account of the incident based on information provided by Mr Burrows who had personal knowledge of the asserted fact that the gates were tied together in one bundle and not in sets.
[48]Transcript 562 line 25–28.

Mr Black gave evidence that shortly after 31 January 2007 he had a discussion with Mr Brian Horrex during which he told Mr Horrex of the circumstances of the accident on the morning of 31 January 2007. In particular, he gave evidence that he would have told Mr Horrex that the cause of the accident was that the gates were all tied together and not in sets. He had no recollection of Mr Horrex disputing this and asserting that in fact the gates had been tied off in sets.[49]
[49]Ibid 628-629 line 21-16.

Mr Black’s evidence of his discussion with Mr Horrex is corroborated by a Worksafe Entry Report dated 28 February 2007.[50] The report includes the following:

Mr Black has formally advised Brian Horix [sic] of the incident and required Horix Transport to implement safe working practices on the tying off of gates when his drivers leave a trailer at Ceva sites for Ceva Logistics employees to load. This safe operating procedure requires Horix drivers to tie off gates only in pairs.

[50]Exhibit P4, 12-14.

Mr Horrex denied having any conversation with Mr Black in the aftermath of 31 January 2007 during which he was told that a Ceva employee had been injured as a result of incorrectly fastened gates falling upon him. I reject this evidence. It is quite implausible that Mr Black would not have informed Mr Horrex of the circumstances of Mr Meli’s accident. This is particularly so in circumstances where Ceva were requiring HRX to comply with new standard operating procedures for the tying off of gates in the rear of tautliner trailers. Further, Mr Horrex gave evidence that he frequently had discussions with Mr Black regarding occupational health and safety issues, such as Ceva employees pinching their hands on the gates used on HRX open deck trailers.[51] It is implausible that Mr Black would not have informed Mr Horrex of the circumstances in which Mr Meli had been injured, including his belief that the gates had only been tied off with one rope.
[51]Transcript 1120 line 25-28.

The court had the benefit of direct evidence from Mr Meli and Mr Burrows as to the configuration of the gates on the morning of 31 January 2007. This evidence brings into focus the evidence, such as it was, led by HRX as to the securing of the gates which were untied by Mr Meli on the morning of 31 January 2007.

Mr Simpson opened HRX’s case on the basis that the gates were secured at HRX’s depot in Toowoomba in late January 2007. As to whether HRX was calling the person who secured the gates, Mr Simpson replied:

We can't locate the person who secured the gates in around about late January 2007 as of now. But, Your Honour, the gates were secured at the Toowoomba depot of the 2nd defendant's trucking company. And from there the truck goes to …[52]

[52]Ibid 38 line 3-7.

During his opening submissions Mr Simpson informed the Court that HRX had narrowed the identity of the driver of trailer 226 to two drivers and that HRX was endeavouring to contact those drivers.[53] Mr Simpson accepted that, given the importance of the identity of the person who drove trailer 226 to Melbourne, a failure by HRX to provide a satisfactory explanation for its failure to call that individual would give rise to the risk of an adverse inference.[54]
[53]Ibid 53 line 15–21.
[54]Ibid line 22–30.

On the second day of hearing Mr Simpson identified the two drivers as either Dane Harris or Kenneth McCullough. Mr Simpson submitted:

Yes, one or other may have been involved in the set-up of the fastening of the gates in Brisbane, but he was overseen by Brian Raison, because they were trainees. So Brian Raison will say to Your Honour, it is more than likely that I oversaw and managed the fastening of the stack of gates.[55]

[55]Ibid 204 line 2–5.

Mr Simpson submitted that the gates were fastened in Brisbane on 29 January 2007 because it takes two days to get to Melbourne by 31 January 2007.[56]
[56]Ibid 205 line 22–25.

On the seventh day of hearing Ms Anne Horrex, HRX’s office manager gave evidence. Her evidence was that it was more than likely that the person who secured the gates in the rear of trailer 226 was Mr Brian Horrex.[57] This was the first occasion since the commencement of the trial that Mr Horrex was identified as the individual who had secured the gates. This occurred on the seventh day of the hearing. Mr Horrex had been in court throughout the trial, including Mr Simpson opening when he stated that HRX was not able to identify the person who secured the gates.
[57]Ibid 922 line 26–28.

Mr Horrex was the Operations Manager for HRX between September 2001 and February 2008. He gave evidence that he was responsible for training new employees in how to load and unload tyres. His evidence was that he trained both Dane Harris and Kenneth McCullough. He had no independent recollection of tying off the gates in trailer 226 prior to its departure for Melbourne.[58] However, his evidence was that trailer 226 would have left Melbourne on Wednesday 24 January 2007, arriving at HRX’s Toowoomba depot at approximately 3.00 am on 26 January 2007.[59] He would then have driven to SPT’s Brisbane depot with Kenneth McCullough, who he was training at the time. They would have unloaded the tyres at SPT and then Mr McCullough would have tied off the gates under his supervision.[60]
[58]Ibid 1099 line 20-24.
[59]Ibid 1098 line 23–27.
[60]Ibid 1098–1099 line 28-5; 1110 line 1–5.

Mr McCullough commenced employment with HRX on 8 January 2007. He ‘walked out’ on 16 March 2007. His employee record was marked ‘never to be re-employed’.[61] Ms Horrex’s gave evidence that she had contacted Mr McCullough by telephone on 2 November 2017, the second day of the trial, and he had stated that he was happy to give evidence in the current proceedings if requested to do so.[62] It was submitted on behalf of Mr Meli and Ceva that the Court should draw an adverse inference that had Mr McCullough given evidence on behalf of HRX his evidence would not have assisted HRX in its defence. It is unnecessary to determine the issue of whether, given the failure of HRX to call Mr McCullough, an adverse inference should be drawn against HRX. Rather, in light of my rejection of Mr Horrex’s evidence that he secured the gates, there is simply no evidence before the Court as to who did secure the gates. That absence of evidence must be weighed against the direct evidence of Mr Meli and Mr Burrows.
[61]Exhibit D2D (Second Defendant’s Bundle of Documents).
[62]Transcript 1012 line 24-25; 1039 line 5–12.

When cross-examined by Mr Scanlon, Mr Horrex conceded that SPT’s Brisbane depot would not have been opened on the Australia Day public holiday on 26 January 2007. Contrary to his evidence-in-chief that trailer 226 was unloaded on the morning of 26 January 2007, he changed his evidence such that the trailer would have been unloaded on an afternoon shift at SPT on 25 January 2007. Also contrary to his evidence-in-chief, he changed his evidence such that he would have worked alone rather than with Mr McCullough, because he would not have wanted HRX to pay overtime to Mr McCullough for working an afternoon shift.

Mr Horrex’s change of evidence raises the following questions:

(x) On what date did trailer 226 leave SPT Somerton en route to SPT Brisbane?

(xi) What time did trailer 226 arrive at HRX’s Toowoomba depot before being driven to SPT Brisbane for unloading?

(xii) When were the Orford refrigeration units loaded onto trailer 226 prior to its departure for SPT Somerton?

(xiii) At what time and by whom were the tyres unloaded at SPT Brisbane and the gates in the rear of trailer 226 secured?

As to the first two questions, Mr Simpson commenced his closing submission with the proposition that trailer 226 left Somerton SPT en route to Brisbane at between 11.00 am and midday on 24 January 2007.[63] Whilst departure at this time would have fitted in with Mr Horrex’s initial evidence of trailer 226 arriving at HRX’s depot in Toowoomba at 3.00 am on 26 January, it does not fit in with Mr Horrex’s revised evidence that trailer 226 was unloaded at SPT Brisbane on the afternoon of 25 January 2007. There is no evidence before the Court regarding the departure time of trailer 226 from SPT Somerton other than Mr Horrex’s evidence that the trailer would have departed between 11.00 am and midday on 24 January 2007.[64] This evidence cannot be reconciled with an arrival time of trailer 226 at HRX’s Toowoomba depot on 25 January to have allowed for Mr Horrex to have unloaded at SPT Brisbane on the afternoon of 25 January 2007.
[63]Ibid 1322 line 30.
[64]Ibid 1098 line 11–13.

As to the third question, assuming that like SPT, Orford did not work on the Australia Day public holiday, the refrigeration units would have had to be loaded on the weekend following the public holiday to allow for a departure on 28 January 2007. However, Ms Horrex gave evidence that trailers were not loaded on Saturdays or Sundays. Orford only worked Monday to Friday.[65] If the Court accepts this evidence as well as Mr Horrex’s evidence that he unloaded the tyres at SPT’s Brisbane plant on the afternoon of 25 January there would be no opportunity for the refrigeration units to have been loaded into the trailer prior to the trailer’s departure to Melbourne on the afternoon of Sunday 28 January 2007.
[65]Ibid 1030 line 22-23.

As to the fourth question, the evidence presented on behalf of HRX does not provide a sound evidentiary foundation to identify the person or persons who secured the gates in trailer 226 prior to its arrival at SPT in Melbourne on 30 January 2007. HRX’s case, both by way of submission and evidence, changed significantly throughout the course of the trial. The case was opened on the basis that the gates in the rear of trailer 226 were fastened at HRX’s Toowoomba depot on 29 January 2007 by a person whose identity was not known. By closing submissions, HRX’s case was that the gates were fastened by Brian Horrex single-handedly on the afternoon of 25 January 2007. I do not accept Mr Horrex’s evidence that he tied the gates in trailer 226 on the afternoon of 25 January 2007. Mr Horrex had no independent recollection of having secured the gates.[66] His evidence changed significantly during the course of examination and cross-examination. HRX failed to lead any cogent evidence establishing when and by whom the gates in the rear of trailer 226 were secured.
[66]Ibid 1099 line 20-24.

Absent any probative evidence from the person who secured the gates in trailer 226, HRX’s contention that the gates were tied off in four sets of two relies largely upon the photographs which were taken on 31 January 2007. During the course of Mr Simpson’s opening submission, I raised with him the desirability of having direct evidence from the individual who had secured the gates. In response, Mr Simpson submitted:

I understand that, Your Honour, and I don’t wish to cavil further with it. But I do make this submission; the photographs taken on the morning following the incident are sufficiently detailed, sufficiently clear enough to enable proper inferences in my submission to be drawn as to the configuration of the gates. And once Your Honour is taken through the detail of the rope configuration it will become, in my submission, quite clear that the rope configuration evidences the secured fastening of the gates.
And it’s almost as night follows day. In other words, for example, the safety tail. The safety tail would not have been there but for it being used in the standard practice of securing the first, second and third gates.[67]

[67]Ibid 50 line 10-24.

I do not accept the submission that ‘almost as night follows day’ the presence of the safety tail rope in the photographs supports an inference that HRX followed its standard practice of using that rope to secure the six gates nearest to the rear door of trailer 226 tied off in three sets of two gates.

The evidence led on behalf of both Mr Meli and HRX supports a finding that it was HRX’s standard practice for the gates to be tied off in separate bundles of two to three gates. Both Mr Meli and Mr Burrows gave evidence that they had assumed that when they entered trailer 226 on the morning of 31 January 2007 that the gates would be tied off in that configuration. Mr Burrows gave evidence that he thought it would be ‘just another day in the office’.[68] Both Mr Meli and Mr Burrows gave evidence that they had never seen gates tied off with one rope. However, the evidence of HRX’s standard practice does not, of itself, translate into a finding that this practice was followed when the gates in the rear of trailer 226 were tied off prior to its arrival at SPT’s Somerton depot on 30 January 2007.
[68]Ibid 661 line 16–17.

HRX placed particular weight upon the safety tail rope and stack securing rope depicted in the photographs taken on 31 January 2007. Mr Burrows was cross-examined about these photographs. In particular, he was cross-examined regarding the stack securing rope which appears in photograph 2 of the bundle of 11 photographs. This photograph is annexed to this judgment marked ‘Attachment B’. As to the stack securing rope, his evidence was:

I honestly believe them ropes were just always hanging there at the time of the accident.[69]

[69]Ibid 708 line 6–8.

His evidence was that the rope which can be seen in photograph 2 under the front left hand corner of the stack of gates was the rope which had been tied across the front of the gates when he and Mr Meli entered trailer 226 on the morning of 31 January 2007.[70] Immediately after this evidence was given the following exchange took place:
[70]Ibid 708 line 13–17.

His Honour:   So you should explore that, Mr Simpson, all right. It seems to be a pretty important point.
Mr Simpson:   It is, Your Honour.
His Honour:   All right.
Mr Simpson:   Mr Burrows, the one rope you identified to His Honour is in fact in length nine metres long. Do you agree or disagree with that?
Mr Burrows:   Disagree.
Mr Simpson:   And it’s nine metres long and that will be the evidence of the Horrex driver, is it’s nine metres long and it’s called the stack securing rope and it runs three times across the outer gates from D channel to D channel and you disagree with that, do you?
Mr Burrows:   Well, it wasn’t there on that day. I’m not disagreeing the rope’s nine metres long but it wasn’t there on the day of the accident, sorry.
Mr Simpson:   And not only was it there on the day of the accident but the safety tail was also engaged on the day of the accident. What do you say about that?
Mr Burrows:   I still repeat, it was only tied up with one rope.[71]

[71]Ibid 708-709 line 20–7.

The basis of the cross-examination set out above was unsound. It subsequently emerged during the evidence of Mr Brian Horrex that the rope under the front left hand corner of the gates as set out in Attachment B was not the stack securing rope. Rather, according to Mr Horrex it was a spare rope placed amongst the gates in a hessian bag.[72]
[72]Ibid 1252 line 20–30.

Prior to Mr Burrows’ cross-examination the Court has specifically raised with Mr Simpson the status of the rope underneath the front left hand corner of the gates depicted in photograph 2. Mr Simpson responded that the rope was the extension of the stack securing rope and said ‘[t]here will be evidence about that’.[73]
[73]Ibid 616-617 line 7-19.

Mr Burrows’ evidence that the rope under the gates in photograph 2 was the only rope which tied off the eight gates was challenged on a factually incorrect premise. Accordingly, I proceed on the basis that there was no meaningful challenge to his evidence. That evidence is consistent with Mr Meli’s contention that when he entered trailer 226 on the morning of 31 January 2007 the stack of gates was secured by only one rope.

Did HRX owe a duty of care to Mr Meli? If so, was it breached?

HRX submits that it does not owe any duty of care to Mr Meli. If this submission is accepted, it would mean that HRX is not liable to Mr Meli, notwithstanding the Court’s finding that eight gates weighing approximately 300 kilograms were secured by one rope.

In Caltex Refineries (Qld) Pty Ltd v Stavar[74] Allsop P stated that the proper approach for determining the existence of a duty of care is to undertake a close analysis of the facts bearing upon the relationship between the plaintiff and the putative tortfeasor by reference to the ‘salient features’ affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.[75] Allsop P identified the salient features as including:
[74](2009) 75 NSWLR 649.
[75]Ibid [102].

(a) The foreseeability of harm;

(b) The nature of the harm alleged;

(c) The degree and nature of control able to be exercised by the defendant to avoid harm;

(d) The degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) The degree of reliance by the plaintiff upon the defendant;

(f) Any assumption of responsibility by the defendant;

(g) The proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) The existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) The nature of the activity undertaken by the defendant;

(j) The nature of the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k) Knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) Any potential indeterminacy of liability;

(m) The nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) The extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o) The existence of conflicting duties arising from other principles of law or statute;

(p) Consistency with the terms, scope and purpose of any statue relevant to the existence of a duty; and

(q) The desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.[76]

[76]Ibid [103].

It is not compulsory in any given case to make findings about all of the salient features. The relevance of a particular feature depends on the facts of the case.[77]
[77]Ibid [104], [121].

The basis upon which HRX submits that it owed no duty of care to Mr Meli is set out in its outline of closing submissions as follows:

30.HRX was not the employer, principal, sub-contractor or in any other way responsible for the system of work, place of work or the manner by which the Plaintiff performed his loading duties at the time of his injury .
31.HRX exercised 100% control over the fastening system by which the stack of gates was secured in the rear of 226 at the SPT Depot (Brisbane) from the afternoon of Thursday, 25 January 2007, until the empty 226 trailer was delivered to the SPT Depot (Somerton) on the morning of Tuesday, 30 January 2007.
32.Thereafter, from the time that 226 was so delivered and parked at the Somerton yard, HRX lost 100% control over the system of work by which Ceva loaders unfastened the stack of gates. This system fell exclusively within the day to day control and management of Ceva by force of the ‘new system’ devised from around November 2006 by the Ceva Direction.
33HRX submits that it did not owe the Plaintiff a duty of care at the time when the stack of gates collapsed for the following reasons:
(a)Ceva purported to have expertise in providing specialist contract logistics warehouse and loading services to SPT;
(b)Ceva was obliged to devise, implement and maintain a competent ‘system of work’ for setting up and loading tyres in trailers, inclusive of safely unfastening the stack of gates in the rear of 226 without injury;
(c)there was no latent hazard or obvious risk of injury in performing such task, had the Plaintiff been induction trained and instructed to unfasten the gates safely in the correct sequence;
(d)this required knowledge that the stack securing rope had to be released before releasing the safety tail hitches from the safety rope and, critically, not the other way around;
(e)such unfastening work had been carried out by HRX drivers at the SPT Depot from at around November 2003 until November 2007 without reported injury or incidents from the sudden collapse of a stack of gates;
(f)the unfastening task which the Plaintiff was required to perform after November 2006, was exclusively controlled by Ceva management under the operational incompetence of TB with no OH&S measures taken to alleviate the risk of injury;
(g)at the time of injury, HRX had no control, management or supervision over the unfastening process which the Plaintiff was attempting to perform;
(h)by force of the Ceva Direction, it was not up to HRX to determine how a stack of gates was to be unfastened, by whom, when or in what artificial lighting or other environment;
(i)to the contrary, HRX was precluded from exercising any control whatsoever over the unfastening task required to be performed by the Ceva loaders;
(j)the default or negligence of Ceva in failing to instruct or train the Plaintiff was the “root cause” which enabled him to unwittingly release the safety tail hitches incorrectly; it failed to undertake a risk assessment for the unfastening task, prepare a JSA, SWMS or SOP directing Ceva loaders on how to safely manage such task;
(k)Ceva now admits liability for the Plaintiff’s injury, loss and damage.

I reject HRX’s submission that it did not owe a duty of care to Mr Meli. HRX exercised total control over the fastening of the gates in the rear of trailer 226 prior to its departure from Brisbane/Toowoomba to SPT Somerton. When the gates were secured HRX knew that the driver who delivered the trailer would not be involved in untying the gates. This was a necessary consequence of the new system introduced in late 2006 whereby Ceva drivers were not to be involved in loading trailers. It was reasonably foreseeable that if eight gates weighing 300 kilograms was secured by one rope, the gates would be likely to fall onto and injure the person who untied that rope.

In support of HRX’s no duty of care submission, Mr Simpson relied upon the judgment of the New South Wales Court of Appeal in J Blackwood & Son Steel & Metal Pty Ltd v Nichols.[78] The Court of Appeal held that a principal (Blackwood) owed no duty of care to an employee (Nichols) of a contractor (Boyle) who was injured in the course of his employment. Blackwood had contracted with Boyle to transport and deliver steel products to his customers. When the injury occurred Nichols was standing on a load of steel on a trailer in order to tighten a chain lashed across the trailer from one side of his load to the other by using the device known as a ‘dog’.
[78][2007] NSWCA 157.

The Court of Appeal held that Blackwood did not owe a duty of care to Nichols because it ‘… neither exercised nor purported to exercise any degree of control over the performance of the first respondent (Nichols) of the task of securing his load including the tensioning of the chains by using a dog’.[79]
[79]Ibid [63] (Tobias JA, Mason P and Handley AJA agreeing).

The judgment in Blackwood does not support a finding that HRX did not owe a duty of care to Mr Meli. The primary cause of the injury sustained by Mr Meli on the morning of 31 January 2007 was the fact that the stack of eight gates were secured by only one rope. HRX had total control over the fastening of the gates. In terms of the salient features identified by Allsop P, the total control which HRX exercised over the securing of the gates in trailer 226, is significant when considering the existence of a duty of care. HRX assumed responsibility for the fastening of the gates in circumstances where it knew that HRX drivers would not be involved in unfastening the gates. Rather, HRX knew that the gates would be unfastened by Ceva employees. The metal gates were very heavy and were hazardous if not properly secured. There was a significant degree of vulnerability for Mr Meli to suffer harm as a result of HRX’s failure to properly secure the gates.

HRX owed a duty of care to secure the gates so as not to expose any person untying them to an unreasonable risk of injury.[80]
[80]Cf Coregas Pty Ltd v Penford AustraliaPty Ltd [2012] NSWCA 350 [81].

As Mr Meli’s injury arose out of the course of his employment the common law principles dictate any findings of breach or causation. In terms of breach the relevant duty was to secure the gates so as not to expose any person untying those to a risk of injury. That risk was patently foreseeable: [i]t was not insignificant, farfetched or remote. It was the failure of HRX to address that risk by properly securing the gates so that they would not fall when untied that was the cause of Mr Meli’s injury.

Quantum of damages

Mr Meli submits that he is entitled to the statutory maximum for pain and suffering: $598,360. Ceva submits that Mr Meli is entitled to significant damages for pain and suffering but something slightly short of the statutory maximum. HRX joined in this submission.

There is no dispute between Mr Meli and Ceva that he is entitled to damages in the sum of $766,524.20 for future economic loss. The only point of distinction is the percentage deduction for the vicissitudes of life. Mr Meli accepts that the usual deduction is 15 per cent but submits that in the particular circumstances of the present case, the deduction should be limited to 10 per cent. Ceva submits that the usual deduction of 15 per cent should apply.

I have no hesitation in concluding that Mr Meli is entitled to the statutory maximum for pain and suffering. The accident on 31 January 2007 has had a devastating impact upon Mr Meli physically, psychologically and upon his personal relationships with his wife and two children. Prior to 31 January 2007 Mr Meli lived life to the full. He had a very active social and recreational lifestyle. This is graphically demonstrated by the photographs comprising Exhibit P1, showing his enjoyment of social and family life. Prior to the accident he had a loving relationship with his wife. His wife described their relationship and intimacy as beautiful. Mr Meli was her best friend.[81] Mr Meli’s wife described his relationship with his son, John as a beautiful relationship, with Mr Meli being involved in all aspects of John’s life.[82] Mr Meli’s daughter, Renee, was six years old at the time of the accident. The physical and psychological impact of the accident has deprived Mr Meli from having the type of relationship with his daughter which he had legitimate expectations of enjoying immediately prior to 31 January 2007.
[81]Transcript 413.
[82]Ibid 411-412.

The physical and psychological impact of injuries sustained by Mr Meli has been extremely serious. Seven years after the accident he suffered from post-traumatic stress disorder which was not treated. As a result, his future prognosis is poor.[83]
[83]Ibid 475-476 line 25–4.

The extent of his depressed mood and anxiety is that he finds it difficult to leave the house. He spends all of his time in an recliner chair or in bed. His wife likened the family home to a morgue.[84] He has been assessed by his treating psychologist, Mr Monteleone, as having a disability score of 78 per cent, which places him at the severe end of the spectrum.[85] He has been hospitalised on six occasions for his psychological condition.[86] He has attempted suicide on two occasions.[87]
[84]Ibid 423 line 27.
[85]Ibid 476 line 14-19.
[86]Exhibit P5 (Plaintiff’s Book of Medical Reports) 5, 22, 24, 28, 35 and 135.
[87]Transcript 436–437.

The immediate physical impact of the accident on 31 January 2007 was a fractured pelvis comprised of fractures through the superior and inferior pubic rami. Thereafter, Mr Meli suffered ongoing severe lower back pain, shoulder pain and pelvic/hip pain. He developed chronic pain syndrome and exhibits symptoms of complex regional pain syndrome.[88]
[88]Ibid 139, 149, 432–433.

Mr Meli suffers from regular falls. He soils himself regularly and his wife has to assist him with toileting.[89] Mr Meli’s treating general practitioner, Dr Martinello, describes his physical condition as at the severe end of the spectrum.[90] To this day he is prescribed a strong cocktail of medication for both his physical and psychological conditions. He has had seven surgical procedures: three on his back, two on his right shoulder and two on his left shoulder.[91] Mr Meli is entitled to the statutory maximum for pain and suffering.
[89]Ibid 418, 441, 452–453.
[90]Ibid 392.
[91]Exhibit P5, 4, 5, 6, 7, 8 and 19.

Appropriate deduction for vicissitudes of life

Mr Meli accepts that the usual practice in Victoria is an award of damages for economic loss to be discounted for contingencies or vicissitudes to take account of matters which might otherwise adversely affect earning capacity. Sickness, accident, unemployment and industrial disputes have been accepted as being the four major contingencies which expose an employee to a loss of income.[92] However, positive considerations which might result in advancement and increased earnings should also be taken into account.[93] Mr Meli submits that the circumstances of the present case are such that a departure from the usual practice is warranted with the consequence that damages for economic loss should be discounted by 10 per cent.
[92]Wynn v NSW Insurance Ministerial Corporation [1995] 184 CLR 485, 497.
[93]Ibid.

Mr Meli was born on 3 March 1965. He was 41 years and ten months old on 31 January 2007. There is no evidence that Mr Meli suffered from any illness or pre-existing medical condition at the time which would have adversely impacted upon his future earning capacity. To the contrary, Mr Meli had a very active lifestyle consistent with him enjoying very good health. Mr Burrows described Mr Meli as a very fit man and a bushman.[94] Mr Meli describes himself as being ‘super fit’ prior to the accident, with a body ‘which could handle just about anything’.[95]
[94]Transcript 671 line 1-2.
[95]Ibid 89 line 16-18.

At the time of the accident Mr Meli was in secure employment with an upward career trajectory. He had effectively been head-hunted by Trevor Black, who had requested that he move from AFL to Ceva. From a group of approximately 100 casual employees he was one of a small number appointed to the position of team leader/supervisor. At the time of the accident, the majority of his work was hands-on. Nevertheless, it is clear that he was acquiring computer and supervisory skills which could subsequently be deployed in a staff position. His classification was graded as Team Leader 4, which was the highest grading of a non-staff employee. But for the accident, there was a real prospect of Mr Meli being promoted into a staff position. Further, it is uncontroversial that Ceva, both at the time of the accident and to the present day, is a substantial employer in the logistics industry. In light of the Court’s finding that in January 2007 Mr Meli was on an upward career trajectory, with a real prospect of promotion to a staff position, he was not at real risk of his income being adversely affected by redundancy or industrial disputes. Further, promotion to a staff position with a greater proportion of office space worked, would have reduced his exposure to potential for workplace related accidents.

In the circumstances of this particular case, I have concluded that the appropriate discount for damages for economic loss by reason of the vicissitudes of life is 10 per cent.

There is no dispute between the parties that Mr Meli’s future economic loss is $766,524.20 (based on net weekly wage of $1,469 x 521.8). Applying a 10% deduction for vicissitudes result in future economic loss of $689,812. Past economic loss is agreed at $694,985 and Fox v Wood damages at $90,062. The result is a total of $1,474,919 for past and future economic loss. This is in excess of the statutory cap of $1,374,370.

The apportionment of liability of HRX and Ceva under the Wrongs Act

Section 23B(1) of the Wrongs Act 1985 permits a tortfeasor (liable in respect of any damage suffered by another person) to recover contribution from any other person (liable in respect of the same damage). Section 24(2) provides:

Subject to subsections (2A) and (2B), in any proceedings for contribution under section 23B the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the jury or the court if the trial is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

Ceva and HRX claim contribution from each other.

Apportionment of liability requires ‘a comparison both of culpability and the relative importance of the acts of the parties in causing the injury, requiring the whole of the relevant conduct of each of the negligent parties to be subject to comparative examination.’[96]
[96]Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112 [86].

The fundamental cause of the accident was HRX’s failure to properly secure the stack of gates. The gates were tied off with one rope. This was a radical departure from HRX’s usual practice of tying off the gates in sets of two. Had that usual practice been followed, the gates would not have fallen on Mr Meli and he would not have sustained injury.

Ceva admits that it owed a duty of care to Mr Meli which it breached. Mr Scanlon submitted that as between Ceva and HRX liability should be apportioned ‘at the lower end’: 20 per cent – 80 per cent and ‘at the absolute upper end’: 25 per cent – 75 per cent.[97] HRX submits that it is entitled to an order pursuant to s 24(2) of the Wrongs Act that the contribution to be recovered by HRX from Ceva shall amount to a full indemnity. Alternatively, it submits that its liability should be limited to not more than 10 to 15 per cent responsibility for having caused or contributed to Mr Meli’s injury, loss and damage.[98]
[97]Transcript 1486 line 6–10.
[98]Second Defendant’s outline of closing submissions, 21 November 2017, [41]–[43].

During the trial considerable attention was directed to the position of the gates in the rear of the trailer on the morning of 31 January 2007. On the one hand, both Mr Meli and Mr Burrows gave evidence that prior to 31 January 2007 neither had ever seen gates tied up in the rear of a HRX tautliner. Their evidence was that gates would always be tied up at the front of the tautliner with the extensions removed, tied up and place on the floor towards the front of the trailer. This positioning of the gates permitted both rear doors of the tautliner to be opened, which in turn enabled a forklift to be positioned on the loading dock to shine light into the trailer. Both Mr Meli and Mr Burrows gave evidence that the position of the gates at the rear of the trailer on the morning of 31 January 2007 meant that only the driver side rear door could be opened. If both doors had been opened there was a risk that all of the gates at the rear of the trailer would have fallen out.

On the other hand, Mr Horrex gave evidence that throughout the period Mr Meli was employed by Ceva up until 31 January 2007 trailer 226 was only used to transport refrigeration units from Orford in Toowoomba. The refrigeration units would be loaded on the trailer in Toowoomba from the side and would completely fill the trailer. Gates were always tied at the rear of the trailer with extensions fitted in the top of the gates. His evidence was that it was not possible to have gates with extensions tied at the front of the trailer because the height of the trailer at the front was lower than at the rear.

I accept Mr Horrex’s evidence that trailer 226 carried a load of refrigeration units to Melbourne immediately prior to being delivered to the Somerton plant on 30 January 2007. Polystyrene foam packaging is clearly evident in the photographs of the trailer which were taken on 31 January 2007. The unchallenged evidence before the Court is that this packaging was placed between the pallets on which the refrigeration units were loaded.

On 2 March 2007 HRX was provided with a Standard Operating Procedure developed by Ceva for setting up HRX tautliners for loading. Clause 3 of the Standard Operating Procedure provided:

Gates must be tied in sets of “no more than 3” and extensions must be removed to reduce gates being top heavy.[99]

[99]Exhibit P4, 16.

At 6.04 pm on 2 March 2007 Brian Horrex emailed Frank Francalanza, including the following:

However, a further problem if we have to conform with Ceva’s request is that SOMEONE will have to compensate us for the loss of two pallet spaces on all our tautliner loads to Melbourne, if the extensions have to be packed down as we have been instructed … The approximate cost of those two pallet spaces would be $110 plus fuel levy plus GST.[100]

[100]Ibid 18.

The demand for payment set out above for lost pallet space is consistent with Mr Horrex’s evidence that prior to 31 January 2007 all floor space in trailer 226 was taken up with refrigeration units. As the front section of trailer 226 was at a higher level than the rear this did not allow for extensions to remain in the top of the gates when they were tied up. They could only remain in the gates if they were tied at the rear of the trailer.

Trailer 226 was one of two tautliner trailers and five open deck trailers which were operated by HRX during the period leading up to 31 January 2007 collecting tyres from SPT Somerton.[101] Trailer 226 made a weekly pick-up from SPT’s Somerton depot. HRX did seven to 10 pick-ups from Somerton during the course of the week.[102] It is quite possible that neither Mr Meli nor Mr Burrows loaded trailer 226 during the period between November 2006 and 31 January 2007 when Ceva employees were solely responsible for setting up the gates inside the trailer. Thus, the evidence of Mr Horrex that gates and extensions were always tied in the rear of trailer 226 can be reconciled with the evidence of Mr Meli and Mr Burrows that they have no recollection of ever having seen gates in the rear of a tautliner. What is relevant for present purposes is the fact that Mr Meli and Mr Burrows were confronted with an unprecedented situation when they opened the rear door of trailer 226 on the morning of 31 January 2007 and were confronted with a set of gates. Not only was the situation unprecedented, the lighting was poor. It was 5.15 am. There was no natural daylight. Whilst there was some artificial lighting from the loading dock adjacent to where trailer 226 had been parked, this was not good. The curtains on the side of trailer 226 had not been pulled back. Mr Burrows estimated that the light inside was at 70 per cent. Plainly, the light was not good enough for Mr Meli to make an assessment of how the gates had been tied off.
[101]Ibid 1047 line 7.
[102]Ibid 1106 line 7.

Both Mr Meli and Mr Burrows assumed that as per the usual practice the gates in the rear of the trailer had been tied off in sets. This explains why Mr Meli, notwithstanding the poor light, proceeded to untie the one rope which secured the eight gates.

The fact that Mr Meli and Mr Burrows were confronted with an unprecedented situation in poor light contributed significantly to the hazardous situation which had been created by the inadequate securing of the gates prior to the arrival of trailer 226 at Somerton on 30 January 2007. If, prior to 31 January 2007, Ceva had put in place the operating procedures which it subsequently implemented in early March 2007, it is likely that the accident would not have occurred. Those procedures provided as follows:

1.After truck backs up to dock, wheels must be checked and driver must be out of cab with engine turned off.
2.Open curtains all the way to appraise loading and securing gates.
3.Gates must be tied in sets of ‘no more than 3’ and extensions must be removed to reduce gates being top heavy. If they are not tied in sets of 3 or less and extensions not removed the set up process ‘must not proceed’ – report it immediately to a team leader.
4.If gates are tied correctly you must pull gates forward at floor level to reduce possibility of gates falling forward.
5.Once gates are leaning back against rear of truck you can now untie only the first set of 3.
6.After the gates are untied you can pick them up 1 at a time and place them into the lugs on side of the truck.
7.Proceed with this process until all gates are set up.
8.Do not put extensions on gates until they are required during the loading process where the load supports the gate.

Clause 2 of the Standard Operating Procedure required the curtains of the tautliner to be opened all the way to allow for Ceva employees to conduct an appraisal of the loading and securing of the gates. Clause 3 required that the gates to be tied off in sets of no more than three with extensions removed to reduce gates being top heavy. Significantly, clause 3 also required that if the gates were not tied off in sets of three or less with the extensions not removed the set up process was not to proceed.

If the procedures set out above had been in place on 31 January 2007 and Mr Meli had been trained to implement them, it is unlikely that he would have sustained injury.

Each individual gate with an extension weighed approximately 40 kilograms and had the potential to cause serious injury to any employee repositioning the gate. This risk was magnified in circumstances where there was potential for multiple gates to fall on an employee. The risk was further increased when, as on the morning of 31 January 2007, employees were working without the benefit of natural daylight or any effective artificial lighting. Ceva’s failure, prior to 31 January 2007, to have undertaken a risk assessment of the task of untying and repositioning gates in the rear of a tautliner, as well as its failure to implement standard operating procedures mandating an evaluation by employees of the manner in which gates had been tied off, significantly contributed to the risk that Mr Meli would sustain injury on the morning of 31 January 2007. The capacity for Mr Meli to undertake a proper risk assessment prior to untying the gates was exacerbated by the poor light in which he was working.

The manner in which the gates had been secured by HRX was something entirely within its control. The tying off of 300 kilograms of gates with one rope was a radical and dangerous departure from its usual practice of tying off the gates in sets. Equally, the absence of appropriate procedures and directions to employees of Ceva for the untying of the gates and the provision of appropriate lighting were matters entirely within the control of Ceva.

The manner in which the gates were secured in the rear of trailer 226 was an accident waiting to happen. However, it was an accident which could have been avoided if Ceva had put in place appropriate procedures governing the untying of gates, coupled with the provision of appropriate lighting.

HRX submitted that a Jones v Dunkel[103] adverse inference should be drawn against Ceva for failing to lead any evidence without explanation from the following employees:
[103](1959) 101 CLR 298.

(a) Greg Davis – Ceva National Risk Manager;

(b) James Stephens – Ceva Health & Safety Representative;

(c) Craig Landy – Ceva Business Manager;

(d) Alex Grimson – Ceva Vic/Tas Regional Manager;

(e) Mark Woolard – Ceva Vic/Tas Regional Sustainability Manager;

(f) Mike Davies – Ceva Vic/Tas Regional Manager.

HRX submits that the failure to call these Ceva employees ‘gives rise to an inference that had they or one of them, given evidence it would not have helped Ceva’s case in defending HRX’s claim for contribution and/or indemnity inclusive of contesting the correctness of the ‘HRX fastening system’, the ‘Ceva loading duties’ and the ‘Ceva Directions’.[104]
[104]Second Defendant’s outline of closing submissions, 21 November 2017, [19], [20].

No adverse inference arises from Ceva’s failure to lead evidence from the nominated Ceva employees in respect of the correctness of the ‘HRX fastening system’. The court has concluded that HRX did not secure the loan in trailer 226 in accordance with its usual practice of tying gates off in sets of two. Any evidence that the nominated employees may have given regarding the correctness of the usual practice would be of no consequence. The usual practice was not followed.

To similar effect, any evidence given by the nominated individuals regarding ‘Ceva loading duties’ and the ‘Ceva Directions’ would be of no consequence. I have concluded that prior to November 2006 HRX drivers did participate in loading trailers at the Somerton depot, including repositioning of gates. In November 2006 a direction was given by Ceva that HRX drivers were no longer to participate in the loading of trailers. Any evidence given by the nominated employees would have made no difference to these findings. Similarly, any evidence would not have altered the Court’s conclusion that HRX owed a duty of care to Mr Meli by reason of the total control which it exercised over the fastening of the gates in the rear of trailer 226. Further, it exercised that control in circumstances where it knew that the unfastening of the gates would be solely the responsibility of Ceva employees.

Finally, any evidence from the nominated individuals would not have altered the Court’s conclusion that HRX has primary liability for causing the gates to fall upon Mr Meli because the 300 kilograms of metal gates were secured by only one rope.

Mr Scanlon properly acknowledged in his final submissions that Ceva had ‘failed’ Mr Meli on the morning of 31 January 2007 and that this failure had contributed to the injuries which he sustained. Section 24(2) of the Wrongs Act requires the Court to make an assessment of what is just and equitable having regard to the extent of the respect of responsibility of HRX and Ceva for the damage suffered by Mr Meli. I have concluded that primary responsibility for the injuries sustained by Mr Meli rests with HRX. However, the failings of Ceva were significant. A just and equitable apportionment of liability as between HRX and Ceva results in HRX being liable to the extent of 65 per cent and Ceva to the extent of 35 per cent.

Conclusion

Mr Meli is entitled to an award of damages commensurate with the statutory maximum of $598,360 for pain and suffering and $1,374,370 for economic loss. The amount of $1,374,370 will need to be adjusted to take account of compensation payments of approximately $430,000 which have been received by Mr Meli since 31 January 2007. The respective liability of Ceva and HRX for the damages payable to Mr Meli is 35 per cent/65 per cent. I shall provide the parties with an opportunity to make submissions on the final form of the orders to give effect to this judgment, as well as on the question of interest and costs.

Annexure: Two photographs from Exhibit D2F

Attachment A

Attachment B

Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227 [108]–[110] citing Browne v Dunn (1893)

6 R 67.

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Citations

Meli v Ceva Logistics (Australia) Pty Ltd [2017] VSC 739

Cases Citing This Decision

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Cases Cited

7

Statutory Material Cited

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Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258

J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157

[2017] VSC 739

12 December 2017