Nudrill Pty Ltd v La Rosa [No 3] - [2011] WADC 178

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NUDRILL PTY LTD -v- LA ROSA [No 3] [2011] WADC 178

CORAM: KEEN DCJ

HEARD: 1-4 AUGUST 2011

DELIVERED : 1 NOVEMBER 2011

FILE NO/S: CIV 1523 of 2008

BETWEEN: NUDRILL PTY LTD
Plaintiff
AND
GIUSEPPE LA ROSA
ROSINA LA ROSA
Defendants

Catchwords:

Contract: parties to the contract of carriage and the effect of the Partnership Act 1895 - Incorporation of terms by prior dealings between the parties

Estoppel: whether the plaintiff is estopped from denying the incorporation of terms

Vicarious immunity: whether the defendants can take the benefit of exclusion of liability clause in a contract to which the defendants were strangers

Bailment for reward: whether there was a bailment of goods to the defendants - The bailee's obligations and duty of care

Negligence: whether the defendants or either of them owed the plaintiff a duty of care

Breach: of contract, bailment and duty of care and burden of proof

Standing to sue: whether the plaintiff has a sufficient interest in the goods damaged to sue

Legislation:

Nil

Result:

Judgment for the plaintiff against the first named defendant. Action against the second named defendant dismissed

Representation:

Counsel:

Plaintiff: Mr J Thomson
Defendants: Dr P R MacMillan

Solicitors:

Plaintiff: SRB Legal
Defendants: Friedman Lurie Singh & D'Angelo

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

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Bridges & Salmon Ltd v The Swan (Owner); Marine Diesel Service (Grimsby) Ltd v The Swan (Owner) (The Swan) [1968] 1 Lloyd's Rep 5
Bryan v Maloney [1995] HCA 17; (1995) 128 ALR 163
Celthene Pty Ltd v WKJ Hauliers Pty Ltd [1981] 1 NSWLR 606
Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (in liq) (1992) 28 NSWLR 338
Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427
Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Commonwealth v Verwayen (1990) 170 CLR 394
Elder, Dempster & Co Ltd v Paterson, Zochonis & Co Ltd [1924] AC 522
Herrick v Leonard & Dingley Ltd [1975] 2 NZLR 566
Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749
Legione v Hateley (1983) 152 CLR 406
McCutcheon v David Macbrayne Ltd [1964] 1 WLR 125
Morris v CW Martin & Sons Ltd [1966] 1 QB 716
New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154
Nudrill Pty Ltd v La Rosa [2010] WASCA 158
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Rinaldi & Petroni Pty Ltd v Precision Mouldings Pty Ltd [1986] WAR 131
Roman Catholic Archbishop of Perth v Bishop (Unreported, WASCA, Library No 950470, 7 September 1995)
Scruttons Ltd v Midland Silicones Ltd [1962] AC 446
Sterns Trading Pty Ltd v Shteinman (1988) NSW ConvR 55‑414
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43

KEEN DCJ: On 30 August 2001 Giuseppe La Rosa was transporting, on a low‑loader, a drilling rig (the rig), owned by Drill Hire Pty Ltd (Drill Hire) but used by Nudrill Pty Ltd (Nudrill) in its business, from Gnangara to a mine site near Kalgoorlie. Whilst negotiating a roundabout on the outskirts of Kalgoorlie the wheels on the right-hand side of the low‑loader lifted from the road surface causing the rig to fall from the low‑loader and to suffer damage.
From that simple factual scenario a myriad of legal issues arise. In order to put those issues into context it is necessary to set out some of the background.

Background

Nudrill and Drill Hire are companies which have common directors and shareholders in Michael Norburn and Brian Webster. Nudrill was a drilling contracting company primarily involved in water well drilling and dewatering for mining companies. Nudrill was the trading arm of this enterprise and Drill Hire was the holding company for most of the assets of the enterprise.
The rig itself is a 1981 Drilltech DH1 water well rig on a CCC 8 x 4 crane carrier, registration 8FA‑018. This rig was acquired by Drill Hire pursuant to a chattel mortgage loan agreement made on 26 February 1998 between Drill Hire and Textron Financial Corporation (Australia).
The property of Nudrill and Drill Hire and others (not relevant for the purposes of the current proceedings) was insured on a Motor Fleet policy of insurance with Zurich Australian Insurance Ltd. Specifically that policy was expressed to include cover for the rig.
For some time Nudrill, in one corporate form or another, contracted for haulage of equipment used by it in the enterprise to various sites. That haulage included the use of the services of Mr La Rosa in the sense that he was the operator of the haulage vehicle.
Prior to 16 September 1988 there existed a company called Tortola Nominees Pty Ltd (Tortola). On 16 September 1988 Tortola changed its name to Nudrill Pty Ltd. That company changed its name to Norburn Drilling Pty Ltd on 23 December 1992.
At 23 December 1992 there was in existence another company, Jaybourne Pty Ltd and on that date it changed its name to Nudrill Pty Ltd (the present plaintiff). Accordingly, it can be seen that two companies at one time had the name Nudrill Pty Ltd but not at the same time. They were both companies owned and operated by Mr Norburn and Mr Webster.
Drill Hire Pty Ltd was registered on 15 March 1991.
From time to time Mr La Rosa carried on a cartage business either on his own account or in partnership with his wife, Rosina La Rosa (the partnership), and/or through the medium of Rojo (WA) Pty Ltd (Rojo). That business operated under various names. The evidence discloses that in 1989 it operated under the name of Joe's Tilt Tray & Crane Service; in 1990 and 1991 under the name of Joe's Tilt Tray Crane & Loader Service; and from 1987 under the name J‑Can Transport Service. Under each of those trading names carriage of equipment was carried out for Nudrill.
After each job an invoice was sent by the carrier to Nudrill specifying the equipment carried, the location of the pickup and the place of delivery and the cost of the works, whether by reference to a quoted sum or an hourly rate.
At the foot of the obverse of the invoices (exhibits 15, 16 and 17) there was indorsed a short section in relation to 'TERMS'. On the invoices (in exhibits 15 and 16) for Joe's Tilt Tray & Crane Service and Joe's Tilt Tray Crane & Loader Service there was indorsed:
TERMS: payment within 14 days of receipt of invoice – no statements issued.
The terms and conditions set forth on the reverse side of this invoice are fully acknowledged and understood.
On the invoices for J-Can Transport Service (exhibit 17) there appeared the following:
TERMS: Payment within 30 days of receipt of invoice – no statements issued.
Our terms and conditions are set forth on the reverse side of this invoice. Goods are not insured unless requested in writing.
Those terms were indorsed on all of the invoices in exhibit 17 from J‑Can Transport Services save that from invoice 1788 dated 2 March 2000 the payment time was reduced to 14 days.
The invoices in exhibit 15 from Joe's Tilt Tray & Crane Service comprise eight invoices from 14 January 1989 to 3 May 1989. Those in exhibit 16 from Joe's Tilt Tray Crane & Loader Service comprise two invoices dated 23 January 1990 and 3 September 1991. Those in exhibit 17 from J‑Can Transport Services comprise 17 invoices dated from 7 July 1997 to 20 June 2001.
Each of the terms and conditions printed on the reverse of the invoice contain an identical clause in terms:
4.All goods are handled, lifted or carried at owner's risk. The Contractor shall not be liable for any loss or damage of property and/or goods of the Client whether such damage was caused by any act, default or negligence on the part of the Contractor, and/or his servants.
The conditions also provided for a definition of contractor:
1.In these conditions the 'Contractor' shall mean the name of which appears on the face of this document.

Issues arising

The issues arising comprise:
1.The identity of the contracting parties to the contract that was formed for the transportation of the rig; that is whether Nudrill contracted with Rojo, Mr La Rosa or the partnership.
2.The terms of the contract; that is to say whether the terms and conditions endorsed on the invoices from prior dealings were incorporated into the contract.
3Whether Nudrill is estopped from denying the incorporation of these terms into the contract.
4.If the terms were incorporated into the contract of carriage and that contract was with Rojo, whether Mr La Rosa or the partnership could obtain the benefit of them.
5.Whether there was a bailment of the goods by Nudrill to the carrier and, if so, what rights and obligations arise as between Nudrill and the carrier out of that bailment.
6.Did Mr La Rosa or the partnership owe Nudrill a duty of care either by reason of bailment, contract or at common law?
7.What were the circumstances of the accident giving rise to the damage to the rig and whether, that damage arose from a want of care giving rise to a breach of contract, bailment or the duty of care; and
8.The standing of Nudrill to sue for damage caused to the rig and ancillary expenses. In this regard the quantum of the claim is not in issue and is, subject to liability, agreed at $191,725.90.

Evidence

The contract

Geoffrey John Webster

Mr Webster was employed by Nudrill from 1993 to May 2011 and as at 2001 he was the operations manager responsible for, amongst other things, the movement of equipment of Nudrill from site to site.
In his capacity as operations manager he had dealings with Mr La Rosa for the transporting of equipment. He said that if equipment needed to be moved he would telephone Mr La Rosa, ask for a quote and his availability. He said that he always spoke to Mr La Rosa. He said that the quotation would be
given either verbally or then it would be – if I can recall, he sent it through in a faxed form … As far as I can recall then the fax would come through verifying the quote.
In relation to those facsimiles he said that he did not recall any terms and conditions thereon.
He said that after a job had been performed an invoice would come in and go to Mr Norburn. He would be asked to go through it to pull out any necessary rechargeable items or back‑chargeable items to clients and Mr Norburn would then pay the account. He would check the invoice to ensure that it expressed the correct figure.
As at 2001 he was responsible for transportation of the rig. He said that he arranged the transport about two weeks prior to mobilisation of the rig on site. He said that he made a phone call to Mr La Rosa but could not remember the precise words used. He said that he asked Mr La Rosa if he was available and to send a quote to move the rig from 'point A to point B'.
He said there was no discussion about terms and conditions. He said he did not recall any discussion concerning the company Rojo. He said he just dealt with Joe as J‑Can Transport. He said that he had never had a discussion with Mr La Rosa about a company called Rojo or a family trust. As far as he was concerned he was dealing with Mr La Rosa as 'J‑Can'. He believed that Mr La Rosa was the operator of J‑Can.
He did not recall any quote being provided for this contract.
Under cross‑examination he was not challenged on how this contract came into being but was questioned generally about quotations, terms and conditions and invoices received. Indeed it appeared to be common ground from the evidence of Mr Webster and Mr La Rosa that the contract came into being in the manner described by Mr Webster. In his evidence Mr La Rosa said that he was to pick up the rig from the Ampol Roadhouse in Gnangara Road, Gnangara and deliver it to the mine site. Delivery was to be effected some time in the afternoon of 30 August 2001. Further under cross‑examination he agreed that the contract had been made orally over the telephone with Mr Geoffrey Webster. He agreed he was told where to pick up the rig and the destination and that he provided a price for the work. It was put to him that that was the substance and the entire substance of the conversation. He agreed that it was apart from the time to pick up the rig. He agreed that there was no discussion of any terms upon which he would take the contract apart from the price, destination, pick‑up and time. He agreed that he did not send any quote or invoice before performing the contract.
Mr Webster said he did not know at the time who the entity was that operated the trading name of J‑Can Transport; he merely assumed that it was Mr La Rosa and agreed it could have been a company. He said that it was something that did not concern him.

The prior dealings and terms of the contract

Brian Webster

Brian Webster's evidence was that his role was to take care of the drilling rigs, repairs and ordering.
He said that he had dealings with Mr La Rosa prior to 2001 regarding the transportation of drill rigs. He said that this would occur with mainly himself or Geoffrey Webster or Mr Norburn telephoning Mr La Rosa, asking for a price and specifying where the rig had to go. He said that Mr La Rosa would give a price and they would agree on it. He would deal with these things over the telephone and he never received any documentation. The invoicing from Mr La Rosa would be Mr Norburn's department and in cross‑examination he said he had nothing to do with it.
He said that in the course of arranging transport on any occasion he did not talk to Mr La Rosa about terms and conditions on which he, Mr La Rosa, would provide his services.
In examination‑in‑chief Mr Webster was asked if prior to August 2001 and the contract for the cartage of the rig, he had heard of the company Rojo. He said 'Rojo? I've seen it before. I don't know what it's in connection with'. He was asked if he recalled discussing with Mr La Rosa any matter concerning his family trust and he said that he did not.
In cross‑examination he was asked about having heard of Rojo and said 'I've heard of Rojo. I thought that was Joe's – one of his company's or something'. He did not recall where he heard of it. In re‑examination he said that the basis for his knowledge was that he had seen it written on the side of Mr La Rosa's truck and by reference to a photograph of the side of the truck (photograph 3 in exhibit 2) where it shows the name 'J‑CAN TRANSPORT SERVICE'. He said that he did not know anything about that company.

Geoffrey Webster

I have already set out Mr Geoffrey Webster's evidence as to his prior dealings with Mr La Rosa. In addition he said that in these prior dealings Mr La Rosa had not said that he was not going to be liable or that he excluded liability for carrying goods nor did he draw Mr Webster's attention to any term or condition or contractual document to that effect. Further, prior to the contract in August 2001, he did not recall seeing a clause about excluding liability.
In cross‑examination he was taken to the invoices in exhibit 17. He said that he did not read the whole document – he read the dollar value. Specifically, he said that he did not read the conditions on the reverse that he could recall.

Michael Norburn

Mr Norburn's evidence was that it was Brian Webster who looked after the cartage contracts and he looked after payment of the invoices. He said that he never received invoices prior to a job being performed by Mr La Rosa.
He said that he never spoke to Mr La Rosa about the terms and conditions upon which transportation for Nudrill occurred nor did he speak to Mr La Rosa about precisely whom the entity was that he had to pay. He had never heard of Rojo nor had he spoken to Mr La Rosa about a family trust.
In cross‑examination he was taken to the invoices (exhibits 15, 16 and 17) and recalled that he dealt with carriers and their terms for payment and was aware that these were on the front of the invoices and he had read them. However he said that Nudrill paid within terms that it could manage. Nevertheless he expected J‑Can Transport Services payment terms to be payment within 30 days.
Mr Norburn said that he did not think that he read what followed the payment terms, i.e. that there were terms and conditions on the reverse, and he did not read the terms and conditions that appeared. He said:
… this was, with respect, an invoice for work carried out. So when the work was carried out, we received the invoice and I paid it. I mean, there was no reason to look at anything else beyond that, apart from the terms of payment, because the work had been done successfully. My partner had agreed to the payment and I paid the cheque in the time that we could do it in.
… there was no reason to look beyond that. (ts 96)
But you didn't have any particular interest in reading what appeared on the reverse side of each of those invoices, did you? - Because they were in - it was historical. The job had been done. (ts 101)
When questioned about other carriers and whether they had standard terms and conditions, Mr Norburn said:
And you were aware that carriers commonly include in their documentation standard terms and conditions, I suppose? - I paid the invoices.
Yes, but? - As far as I was concerned, the conditions are set prior to any contract; where it's going to go and how much price it's going to cost to get there. (ts 106)
And you had dealt with invoices provided by carriers other than J‑Can Transport Services - Yes.
And as an experienced businessman or, if you like, a businessman who had run this business for 20 years, you were aware that carriers commonly include standard terms and conditions in their documentation - I presume so, yes.
And you had no reason to presume that that didn't apply to J‑Can Transport Services, did you - All I can say is I never read conditions on any of the ones we did because all the invoices I got were retrospective. They were work carried out and I paid the bills. (ts 107)
As to the invoices at exhibit 17 and the notation 'Goods are not insured unless requested in writing', Mr Norburn agreed that that was not of concern to him as the goods were insured in any event.
Mr Norburn agreed that the only documents received from J‑Can Transport Services were the invoices in exhibit 17. Despite being pressed as to whether he regarded each invoice as an important document all he would say was:
I - importance is subjective. No, I didn't. It's just - it is a receipt. I mean, I - we received probably a hundred invoices a month into our company. All those are invoices and I paid them. They're creditors. (ts 109)

Mr La Rosa

Mr La Rosa gave evidence as to the invoices the subject of exhibits 15, 16 and 17. He said they were in respect of work carried out on behalf of Nudrill.
He was asked how these jobs were arranged and he said that he would receive a phone call asking if he was available to transport certain equipment. He would be asked either for a firm quote or an hourly rate depending upon the cartage. If that was agreed he would then be instructed to pick up the equipment and transport it.
In his evidence‑in‑chief Mr La Rosa gave evidence about the ownership of the equipment that he used for this job. The prime mover was a Mack truck; it was registered in his name. There was a dolly which was registered in his wife's name and a tri‑axle low‑loader, again registered in his name. They were not owned by Rojo.
He agreed in cross‑examination that on all the prior occasions when there had been a cartage contract it had followed the same course, that is to say someone from Nudrill would ring and he would provide a price for performing the contract based upon the destination and other relevant particulars and that after the contract was performed he would send an invoice.

Mr La Rosa gave evidence that he initially started his carrier service in 1988. That continued until about 1996 when J‑Can Transport Services was formed along with the company Rojo. He said that from that point it ceased to be a partnership between his wife and himself and he became the sole employee of J‑Can Transport working as its coordinator and driver.
Mr La Rosa produced a number of documents comprising a certificate of registration of business name of J‑Can Transport Services showing that the business was registered on 25 October 1996 (exhibit 23). In addition, he produced a deed of settlement of the La Rosa Family Trust dated 9 December 1996 showing Rojo as the trustee of the family trust (exhibit 24). A certificate of registration of a company in respect of Rojo (WA) Pty Ltd was produced showing the commencement date as 9 December 1996 (exhibit 25).
A company's extract for Rojo (exhibit 26) shows that Mr La Rosa was a director of the company and his wife the secretary and each held one share in the company.
A business name's extract in respect of J‑Can Transport Services (exhibit 5) shows that the business commenced on 1 November 1996. The persons carrying on the business were noted to be Mr and Mrs La Rosa with a start date of 25 October 1996 and a cease date of 15 October 2002. After 15 October 2002 the extract notes that Rojo carried on the business.
In cross-examination Mr La Rosa was taken through the business name's extract for J‑Can Transport Services and he agreed that after Rojo was registered the registration of the business name was renewed in the names of Mr and Mrs La Rosa on 2 November 1999. Mr La Rosa's explanation was that the registration was renewed by his wife. He was not aware of that at the time but when the registration was renewed again in 2002 the appropriate correction was made to show Rojo as the proprietor.
In re‑examination he said there was no partnership in existence between him and his wife as of August 2001 when the contract the subject of these proceedings was entered into.
Mr La Rosa said that he and his wife in partnership were the proprietors of Joe's Tilt Tray & Crane Service. He said that that was also the case in respect of Joe's Tilt Tray Crane & Loader Service.
Mr La Rosa said that the invoices in exhibit 17 in part carried an ABN and that that ABN belonged to Rojo. Mr La Rosa said in relation to the invoices that had been sent to Nudrill that Nudrill had never objected to the conditions on the invoices nor raised the issue of them with him. He said that nothing was raised by Nudrill as to what appears on the front and the back of those invoices at any stage.
Under cross‑examination he agreed that no quote or invoice was sent to Nudrill before performing the work under the contract the subject of these proceedings. He further agreed that the invoices that had been sent in the past did not show the name of Rojo or mention a family trust and that he had never told anyone at Nudrill that the company Rojo existed. His response was he was never asked. He agreed that he had never told them about the company or the family trust because he felt there was no need to.
He also agreed that he never expressly discussed the terms and conditions with anyone at Nudrill nor did he tell them that there was an exclusion of liability clause on the reverse of the invoice. It was put to him that the purpose of the invoice was for him to inform Nudrill the charge which they had to pay for performing a job. He agreed that that was so and that was the primary purpose of the invoice. In re‑examination he said that the purpose of the invoice was mainly for payment but also that the invoices stipulated his terms and conditions of carrying out the contracts.

The estoppel

The only evidence that was led relevant to this issue was that of Mr La Rosa when he said that J‑Can Transport Services had carried out numerous jobs for Nudrill and in each instance an invoice had been issued to Nudrill and on such invoices there were standard terms and conditions and that Nudrill did not raise any objection to those standard terms or conditions. He said that as a result he took it for granted that Nudrill accepted the terms and conditions with nobody questioning them or asking anything about them. He presumed that Nudrill agreed to those terms and conditions and as a result he kept trading with Nudrill.

The circumstances of the accident

The photographs in exhibit 2 show the prime mover which was used by Mr La Rosa, the low‑loader and the dolly that was used. The configuration of these three pieces of equipment can best be seen by the diagrammatic logo on the side of the prime mover in photograph number 3. It is also depicted in the diagram which became exhibit 39 which also shows the rig on the low‑loader. Suffice it to say that immediately behind the prime mover is the dolly to which there is then attached the low‑loader. The drill rig itself is depicted in exhibit 3.
Mr Brian Webster had delivered the rig to Mr La Rosa at the Ampol Roadhouse at Gnangara. It was he who drove the rig onto the low‑loader by reversing it onto the low‑loader and placed it where instructed by Mr La Rosa. He took no part in securing the rig to the low‑loader.
The low‑loader is constructed so that its width may be extended to accommodate wider loads. Mr Webster did not think that it was extended on this day. When he got out of the rig he said that there was no toe room to get his feet on.
Mr Webster said that the rig was 8 foot 2 inches wide and that the low‑loader was the same width as the wheels on the drill rig. Nevertheless when it was put to him that it may have been extended from 2.5 m to 2.7 m wide he said he would not quarrel with that because he was not sure; he was in a hurry. In re‑examination he said he could not remember it being extended at all.
The balance of Mr Webster's evidence in relation to the transportation is that after the accident he went to Kalgoorlie. I will come to that part of his evidence shortly.
Mr La Rosa said that he arrived at the Ampol service station at Gnangara on 29 August 2001 at approximately 2.00 pm. He had a Ms Leesa Pegus with him. She had done some piloting work for Mr La Rosa in the transport of loads. She accompanied Mr La Rosa on this journey to Kalgoorlie to observe and pick up hints on driving as she wanted to get a truck driver's licence.
Mr La Rosa's evidence was that the drill rig was 2.6 m wide. He had transported it previously. He said that the low‑loader was, in normal travel, 2.5 m wide and for this rig he opened it to 2.7 m. According to Mr La Rosa the reason for widening the low‑loader was to stabilise it better on the road. When extended the wheels also extend with the pontoon. By extending the low‑loader to 2.7 m the rig could sit on the low‑loader without any overhang.
Mr La Rosa said that because the load exceeded 2.5 m a permit was required and was obtained (exhibit 36).
Mr La Rosa estimated that the prime mover weighed in the order of 9.5 tonnes, the dolly 3.5 tonnes, the low‑loader 10.5 tonnes and the drill rig weighed between 36 and 38 tonne. This would give a total weight in the vicinity of 60 tonnes.
At the Ampol service station Mr La Rosa prepared the load for travel. Once Mr Webster had the rig on the low‑loader Mr La Rosa had him lower the stabiliser legs or jacks to stabilise the rig on the low‑loader. There were three stabilisers, two at the rear and one at the front of the rig. Again these can be seen in the series of photographs in exhibit 3.
Once that process was completed Mr La Rosa chained the drill rig to the low‑loader. There were two chains at the front of the drill rig and two at the rear and they were placed in cross‑action. This was to help to eliminate any movement in the load. The position of the chains was shown in a diagram (exhibit 37.1).
Having ensured that the chains were correctly tensioned and after carrying out a visual inspection Mr La Rosa commenced his journey. For the purposes of these reasons it is not necessary for me to go through all of the journey. It is sufficient to note that from time to time Mr La Rosa stopped to check his load and its security. Everything was in order.
Just east of Merredin he stopped for the night. The next morning he again checked his truck before setting off for Kalgoorlie. Again on the way there were stops and checks on the load. The only other aspect of the journey that needs comment is that under cross‑examination Mr La Rosa agreed that part of his route leaving Perth was to travel along the Roe Highway and onto the Great Eastern Highway which involved a left‑hand turn of approximately 90 degrees and on approaching Kalgoorlie on the Great Eastern Highway a further 90‑degree turn to the right into Anzac Drive. He had no difficulty negotiating either turn.
He arrived at Kalgoorlie at approximately 11.30 am to midday on 30 August 2001.
The accident itself occurred on a roundabout at the junction of Anzac Drive, Lane Street and Goldfields Highway at Boulder (exhibit 19 is a map that depicts the area). That point was approximately 50 km from Mr La Rosa's final destination. He had no other business to transact and was not in any hurry. The arrangement was that he had to be on site sometime in mid to late afternoon and he was ahead of schedule.
He said that he travelled along Anzac Drive, on his approach to the roundabout, at approximately 60 km per hour. About 300 to 350 m from the roundabout he started his usual procedure which was to switch on the engine brake and to change down in gears to reduce speed. Mr La Rosa gave an explanation as to how the engine brake operates on the exhaust valves bringing the engine revolutions down. This has the effect of retarding the speed.
He then said that he changed gears. The truck had an 18‑speed gearbox and he went down through the box to the point where he was in low range fourth gear as he approached the roundabout.
He said that this procedure on this day was his normal procedure. He had driven this roundabout perhaps 50 or 60 times previously and with heavy equipment. In cross‑examination he thought 10 or 15 times was a reasonable figure.
He estimated his speed at approximately 15 km per hour as he entered the roundabout which he said was not abnormally low considering the weight of the rig, its height and the weight distribution. This estimation of speed came under scrutiny in cross‑examination where he said that it came from his general experience of the vehicle and how the surroundings flashed passed him and the gear that his truck was in. As to that last element, he said in re‑examination:
I was in fourth gear. That is in low range of the transmission and that would be the speed that - the gear I would need to maintain that speed. The speed being any higher would stall the vehicle because the wrong gear was engaged. The speed any lower would stall the vehicle because a lower gear would be required. (ts 304)
He said that he approached the roundabout, swung to the left into the roundabout and then started to swing to the right. He said it was a windy day and there were several gusts of wind but nothing terrible. On swinging right he said that he glanced into his mirror and saw the rig and trailer leaning to the left. He recalled remarking to Ms Pegus that he thought they were in trouble and to brace herself. He kept the vehicle in the turn in preparation to go left again to exit the roundabout. At this time just prior to starting to turn to the left again the trailer lifted and the rig fell off and the trailer fell back onto its wheels. He said that the right‑hand wheels of the low‑loader left the road surface.
The rig came adrift from the low‑loader. The chains going from the left side of the rig to the right side of the trailer snapped and the other two just proceeded to fold over with the drill rig and follow it. The rig itself fell onto its right‑hand side. It was approximately two‑thirds off the road and one‑third on the road.
Under cross-examination Mr La Rosa said that Anzac Drive sloped downhill towards the roundabout possibly on a gradient of 5%, maybe a little less. He said that on the day in question the visibility was good and the traffic flow was of no great significance.
He was taken to his evidence of what he observed in the rear view mirror of his truck. The cross‑examination proceeded:
And you saw that the low‑loader and the drill rig were leaning off to the left‑hand side? – Were leaning to the left, yes.
And you also said, I think, that you saw the wheels of the low‑loader had lifted off the ground? – Were in a position to lift off the ground, yes.
Earlier in examination‑in‑chief, after saying that he told Ms Pegus to brace herself, he said:
I braced myself by grabbing the steering wheel and just keeping the vehicle as best I could into the turn that I was going, in preparation to turn left again to exit the roundabout. At which point, just prior to starting to turn to the left again, the rig and the trailer – the trailer lifted and the rig fell off and the trailer fell back on its wheels.
Now it's the case, isn't it, the right‑hand wheels of the low‑loader left the road surface? – Yes.
In cross‑examination it was suggested to Mr La Rosa that if he had been proceeding too fast that is exactly the movement that he would have expected as he pulled to the right. There then appeared the following passage:
Mr La Rosa, based on your experience as a truck driver, if you were driving too fast, is that not the exactly [sic] movement that would happen as you pulled to the right? - Well, you've got to take into consideration that entering the roundabout, I'm swinging to the left, so the load is swinging to the right.
Yes? - If I'm swinging to the right, the load then changes direction and goes to the left.
Yes? - So bearing all that in mind, and having negotiated numerous numbers of roundabouts previously, I was travelling at the speed which I considered.
I'm not asking you what speed you were travelling at. I'm just putting to you that if you had been travelling too fast, and this is based on your experience as a truck driver, is it not the case that if you pulled to the right as you were travelling too fast, the effect of it would be that the low‑loader would swing to the left and the wheels would lift off the ground? - Well, the low-loader would swing to the left in any case, but I don't really know - you wish to admit - me to admit that I was travelling too fast, and in my opinion, I was not.
The question was put again:
Now, based on your experience as a truck driver, if you were driving a truck which was going too fast and you pulled to the right, is it not the case that what would occur is that the low-loader with its load on it, of the drill rig, would lean to the left? - Yes, I would.
And if you were going quite a bit too fast, that would produce the effect, in your experience, of the wheels of the low-loader lifting off the ground? ‑ At a substantial speed, yes.
In his evidence Mr La Rosa clarified that the wheels of the low‑loader which would have lifted off the ground in that scenario would have been those on the right‑hand side of the loader.
That line of cross‑examination was concluded with:
So what occurred on the occasion when the accident occurred is a movement of the low-loader and the drill rig which is exactly consistent with what would have happened if you had been driving too fast? ‑ Perhaps, yes.
And it is the case, is it not, that the drill rig fell onto the outside of the roundabout? - Yes.
Finally, in relation to Mr La Rosa's evidence as to the accident, he confirmed that the photographs of the scene in exhibit 1 were a fair representation of the roundabout at the material time.
The only other evidence relevant to the accident is that of Mr Brian Webster. Having heard of the accident he immediately went to Kalgoorlie. His evidence was about the scene and where the rig was in relation to the roundabout about which there was little dispute.
Mr Webster was taken to exhibit 1, being the photographs of the scene. He marked photograph 12 with an 'X' next to a lamp post on the edge of the roundabout where he said the low‑loader was lying.
Mr Ian Brandis was a private investigator instructed by Zurich Insurance to investigate the accident.
He visited Mr La Rosa's premises at Wangara where he took a number of photographs of Mr La Rosa's truck, low‑loader and dolly which became exhibit 2.
He said that Mr La Rosa had told him that he could not drive at night because he did not have the side extensions extended on the occasion of the accident. He had to stop at Merredin or Coolgardie. When questioned further about this he said that he really could not recall whether Mr La Rosa had said anything about whether the side extensions were used.
Mr Brandis also said that he visited the scene of the accident. He was taken to exhibit 1, which is a bundle of photographs of the scene. Some of those, being photographs 11 and 12, have endorsed on them a date stamp of '4.12.01'. He said that he did not take those but he took the other photographs. However, he said that those photographs do correspond with his recollection.

Nudrill's standing to sue

This issue arises because Mr La Rosa contends that Drill Hire hired the rig to Nudrill and Nudrill was a bailee of the rig pursuant to a contractual bailment. It is said that as such Nudrill had a right to immediate possession of the rig as between Drill Hire and itself and therefore must rely upon its liability to Drill Hire in relation to the damage to the rig on the basis of bailment, the hire agreement or negligence before it is able to claim against La Rosa. It is argued that absent such a liability all that Nudrill had was a superior possessory title to that of Mr La Rosa which gives rise to a right to claim indebtenue only. It is argued that the rig was insured by Drill Hire or Nudrill, that the insurer paid for the repairs to make good the rig and the plaintiff did not pay any relevant sum, the plaintiff did not make good any loss and was not liable to Drill Hire for the loss and therefore did not have the requisite interest as to the loss to enable it to sue.
I have already dealt with the formations of the companies Nudrill Pty Ltd and the changes of name and also Drill Hire.
Mr Norburn said that the relationship between the two companies was that Drill Hire was an asset owning company and Nudrill was the contracting company. Drill Hire's only business activity was to hire its equipment to Nudrill. There were commercial reasons for this; principally, in the event of any major debt not being able to be paid by Nudrill, the assets would be protected.
Mr Norburn gave evidence that Nudrill would pay a hire cost to Drill Hire to match the amount of lease payments and other costs involved in owning the equipment. Drill Hire never made a profit and was never used to hire equipment to anyone else. Those costs included running costs, wages, repairs and freight. He said that everything came through to Nudrill's account.
In cross‑examination he agreed that nothing was put in writing in relation to these arrangements.
During the course of his evidence Mr Norburn was taken to a number of documents, being profit and loss statements and other financial documents, which showed payments for plant hire charges in various years from Nudrill to Drill Hire. Those payments included payments to cover Drill Hire's cost of acquiring the rig under the chattel mortgage with Textron Financial Corporation (Australia) (exhibit 7).
This equipment that was owned by Drill Hire was insured by it under a Motor Fleet policy with Zurich Insurance (exhibit 18). The closing advice tax invoice to that policy shows the insured to be Nudrill Pty Ltd, Drill Hire Pty Ltd, Poldor Pty Ltd and Dashfore Pty Ltd. In his evidence Mr Norburn said that the majority of the major equipment was owned by Drill Hire and some of the smaller equipment was owned by Nudrill but that the rig was owned by Drill Hire. That rig appears as item 3 under sch A to the policy.

After the accident a claim was made on Zurich. The claim form (exhibit 14) was in the name of Nudrill as insured.
Mr Norburn said that Nudrill had made the claim on the policy and it had paid an excess of approximately $6,500 on the insurance.

Legal principles

Bailment

Bailment occurs when a bailor delivers possession of goods to a bailee with a right to the return of the goods at the end of the bailment. It includes as an element an assumption of responsibility by the bailee to keep the goods safe, that is to say to take reasonable care of the goods: Morris v CW Martin & Sons Ltd [1966] 1 QB 716, 738.
It is well established that a bailment may be for reward and where the goods are within the bailee's custody and control and loss or injury has resulted to the goods during the bailment the onus is upon the bailee to show that he exercised reasonable care and skill in the circumstances of the case: Roman Catholic Archbishop of Perth v Bishop (Unreported, WASCA, Library No 950470, 7 September 1995).
A private carrier of goods may be a bailee for reward. Such a private carrier for reward is, subject to the terms of the contract, liable for damage to the goods of which it is the bailee unless it can establish that the damage occurred without want of reasonable care on its part: Nudrill Pty Ltd v La Rosa [2010] WASCA 158 [16] (Murphy JA).

Contractual parties

Ascertaining the parties to a contract may involve ascertaining the objective intention of the parties from all of the circumstances and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 40.
Further, in Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Campbell JA, in the context of an issue as to whether a contract was made with a particular party, adopted as 'totally orthodox' the judgment of Brandon J in 'The Swan' (Bridges & Salmon Ltd v The Swan (Owner); Marine Diesel Service (Grimsby) Ltd v The Swan (Owner) (The Swan) [1968] 1 Lloyd's Rep 5, 12) which included the passage:
The intention for which the court looks is the objective intention of both parties based on what two reasonable businessmen making a contract of that nature in those terms and in those surrounding circumstances must be taken to have intended.
In Pethybridge the court also had regard to the provisions of the Business Names Act 1962 (NSW). That Act is (relevantly) identical in terms to the Business Names Act 1962 (WA) which provides for the registration of business names. Section 5 provides that the name of a person consists of in the case of a corporation, the corporate name of the corporation and that:
(1)A person shall not either alone or in association with other persons, carry on business in the State under a business name unless –
(a)…
(b)the business name is registered under this Act in relation to that person …
Section 5(5) of the Act provides:
Notwithstanding anything in this Act, a contravention of or failure to comply with any provision of this Act does not operate to avoid any agreement, transaction, act or matter.
Section 6 of the Act provides for the keeping of a register of business names. Section 7 of the Act provides for registration of the business name, setting out the name of the business and the names of each individual or corporation that applies for registration and the date of commencement of the carrying on of the business. Section 11 provides for the registration to remain in force for a period of three years after which it may be renewed by lodging a statement in prescribed form 'signed by the person or one of the persons in relation to whom the name is registered'.
Finally in relation to the Act, s 24 provides that a document purporting to be a certificate of registration issued under the Act or a copy or an extract from the register or part of the register is in all courts prima facie evidence of any matter contained or set out therein.
In the present case invoices in exhibit 17 from invoice number 1682 dated 18 July 2000 carried details of an ABN (ABN 82 683 727 873). The evidence of Mr La Rosa is that an ABN was acquired for the business and that the number belongs to Rojo. The use of an ABN was brought in by a New Tax System (Australian Business Number) Act 1999. The objects set out in that Act at s 3 were, amongst other things, expressed to be:
(1)The main object of this Act is to make it easier for businesses to conduct their dealings with the Australian Government. This is done by establishing a system for registering businesses and issuing them with unique identifying numbers so that they can identify themselves reliably:
(a)in all their dealings with the Australian Government; and
(b)for all other Commonwealth purposes.
It can readily be seen that the object of the Act is to give an identification number for a business in its dealings with government or quasi‑government entities.
Section 8 of the Act provides that entities carrying on an enterprise as defined in a New Tax System (Goods & Services Tax) Act 1999 is entitled to have an Australian business number. Accordingly, that entity may be either an individual, a partnership or a corporation.

Incorporation of terms into a contract

To constitute a term in a contract the term must have been incorporated into the contract at the time of its formation. Typically this may occur in a number of ways including by reason of prior dealings between the parties.
In Cheshire & Fifoot's Law of Contract (9^th Aust ed, 10.72) the learned authors note that where parties have previously contracted with each other notice of terms limiting liability may have been previously given and may then be implied in a new contract of the same kind between the parties even if specifically in relation to that contract no notice of them was given. The learned authors then go on to note that a limiting term in a document such as a receipt, acknowledgment or invoice used in a previous transaction is not necessarily implied in subsequent contracts. If the document is not clearly contractual in character, no amount of previous usage can convert its content into terms (citations omitted).
In Rinaldi & Petroni Pty Ltd v Precision Mouldings Pty Ltd [1986] WAR 131 the court was faced with just this situation. In that case the appellant had carried goods for the respondent on 9 or 10 prior occasions. Each contract was entered into orally. The contracts were either at an agreed price or a reasonable price based on an hourly rate. The relevant documentation comprised cart notes. Those cart notes contained an exclusion of liability printed on the reverse.
The cart notes provided for a signature by the consignee. Some of the notes were signed by or on behalf of the respondent and some were not. The respondent's copy of the cart note was received by the respondent with an invoice after the work was carried out for payment, if correct.
At first instance the trial judge found that there was a course of dealing which in each case was conducted on the basis of an oral contract followed by delivery of a cart note containing the terms and conditions on the reverse side. The finding was that the consignee by its servants or agents knew of the practice to deliver cart notes by attaching them to an invoice and that they contained conditions on the reverse. Those conditions were identical in each case. The appellant's case was that the respondent had constructive knowledge of the condition by way of exclusion and that was enough to sustain a finding that that condition became a term of the contract of carriage.
On appeal Burt CJ noted [135]:
The difficulty in making good that proposition on the facts of this case is evident enough. Once it is conceded that the use of the cart notes in the way in which they were used could not sustain a finding that the contract first entered into contained as a term clause 5 of the conditions, how does one then establish the relevant course of business which leads to the conclusion that without the respondent being fixed with actual knowledge of that term it is to be implied in subsequent contracts.
His Honour went on to consider a number of cases including McCutcheon v DavidMacbrayne Ltd [1964] 1 WLR 125 in which the House of Lords had noted that if two parties had made a series of similar contracts each containing certain conditions, and then they make another without expressly referring to those conditions, it may be that those conditions ought to be implied. However, their Lordships went on to note that there was no established course of dealing in that case and hence the implication could not be made. As to this Burt CJ noted in Rinaldi [136]:
On the facts of this case, as it seems to me, to contend that the conditions ought to be implied for that reason begs the question to be asked because you must first find an earlier contract or contracts containing that term.
It can therefore be seen on the authority of Rinaldi and also Hill & Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749 that at the very least there must be a prior contract containing the terms which are later sought to be incorporated in a subsequent contract.

Duty of care in contract and tort

I have dealt with the liability that arises in bailment: see also Nudrill Pty Ltd v La Rosa [16].
Independent of the question of bailment in the present case Nudrill seeks to imply terms into the cartage contract. That is pleaded in the statement of claim as:
5.Further or alternatively, it was an implied term of the Contract that:
(a)the Defendants, alternatively the first‑named Defendant, would load and secure the Drill rig carefully and skilfully on the low loader ('the Low Loader') attached to the defendants' Mack truck registration number 9EP 726 ('the Truck');
(b)further and in the alternative the Truck's driver would exercise the level of care, skill and expertise reasonably expected of an experienced truck driver;
(c)further and in the alternative the Truck's driver would maintain a level of control over the Truck in accordance with the level of control reasonably expected of an experienced truck driver;
(d)further and in the alternative the Defendants, alternatively the first‑named Defendant, would deliver the plaintiff's Drill rig to the Savo mine destination undamaged;
(e)further and in the alternative in delivering the Drill rig the Defendants, alternatively the first-named Defendant, would take reasonable care and skill to avoid causing the Plaintiff loss.
PARTICULARS
Each term is implied in that:
(a)it arises out of the nature of the Contract, a Contract for the delivery of goods;
(b)it is obvious to both parties that the driver must load and drive reasonably carefully and skilfully so as to get the goods to the destination undamaged;
(c)each are capable of clear expression;
(d)each are necessary give business efficacy to the Contract in that the object of the business contract was to get the goods to the destination undamaged; and
(e)none of them are unreasonable or contrary to or inconsistent with any express terms of the Contract.
It is well recognised that obligations may be implied to a specific contract to give it business efficacy. The High Court in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 and in other authorities has adopted and endorsed the principles set out in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266. That statement of principle is:
For a term to be implied, the following conditions (which may overlap) must be satisfied:
1.It must be reasonable and equitable.
2.It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it.
3.It must be so obvious that it goes without saying.
4.It must be capable of clear expression.
5.It must not contradict any express term of the contract.
In relation to the implied terms pleaded by Nudrill, and if allowed, there is still the effect upon Nudrill of the terms sought to be incorporated into the contract by way of exclusion of liability.
Independently of bailment it is said by Nudrill that Mr and Mr La Rosa owed a duty of care in tort to exercise reasonable skill and care in transporting the rig so as to avoid causing loss and damage to Nudrill (pars 6, 7 and 8 of the statement of claim).
The pleaded case is that Mrs La Rosa is also liable as she was in partnership with Mr La Rosa in the carrying on of the business. Nudrill relies upon the Partnership Act 1895. Section 17(1) provides:
Where by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his copartners, loss or injury is caused to any person not being a partner in the firm, … the firm is liable therefore to the same extent as the partner so acting or omitting to act.
Section 19 provides:
Every partner is liable jointly with his copartners, and also severally, for everything for which the firm while he is a partner therein become liable under either of the 2 last preceding sections (including section 17).
Section 26 of the Act provides;
… the acts of every partner who does any act necessary for or usually done in carrying on the business of the kind carried on by the firm of which he is a member shall bind his partners to the same extent as if he were their agent duly appointed for that purpose; unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing:
(a)knows that he has no authority; or
(b)does not know or believe him to be a partner.
As was noted in Nudrill v La Rosa at [25] foreseeability of harm is generally sufficient to ground the duty of care in cases involving damaged to property: Bryan v Maloney [1995] HCA 17; (1995) 128 ALR 163, 617.
As is noted, one of the issues in this case is as to who contracted for this cartage with Nudrill, that is to say whether it was Rojo or Mr La Rosa or the partnership. If the contract was between Nudrill and Rojo then an issue arises, if the exclusion clause is incorporated into the contract, as to whether Mr La Rosa and/or the partnership can take the benefit of that exclusion clause.
This type of issue was dealt with by the House of Lords in Scruttons Ltdv Midland Silicones Ltd [1962] AC 446. The question is whether or not the protection given by an exclusion clause can extend to protect third parties, that is to say strangers to the contract. In the Midland Silicones' case the way was opened to give some protection to third parties subject to four conditions being met, namely:
(1)that the relevant bill of lading (in that case) made it clear that the intention was to protect the stevedores;
(2)that the bill also made it clear that the carrier was contracting as agent for the stevedores in regard to the exempting provisions;
(3)that the carrier was so authorised by the stevedores or the carrier's action was ratified by the stevedores; and
(4)that any difficulties about consideration moving from the stevedores were overcome.
There have been inroads into the strict confines of the protection laid down in Midland Silicones. The learned authors of Cheshire & Fifoot at 7.38 enter into a discussion of various cases including New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 where such matters as agency and commercial expectation of parties have been used as a tool. In Celthene Pty Ltd v WKJ Hauliers Pty Ltd [1981] 1 NSWLR 606 the court held that the principles in those cases was not limited to carriage by sea and applied these principles to a contract of carriage by road. In that case Yeldham J gave careful consideration to each of the four criteria in Midland Silicones and it is pertinent to note that the conditions there defined 'carrier' to mean 'the company the name of which appears on the face of this document (a consignment note) its servants and agents'. The conditions also went on to define 'subcontractor' which also included a servant, agent, employee or sub-contractor of the listed identities that fell within the definition of subcontractor.
The learned authors also note that the four conditions must be considered in the context of each case and that it may be possible to argue that a particular clause is not sufficiently well drafted to cover the negligent third party: Herrick v Leonard & Dingley Ltd [1975] 2 NZLR 566.
In an earlier decision, Elder, Dempster & Co Ltd v Paterson, Zochonis & Co Ltd [1924] AC 522 the notion of vicarious immunity was considered whereby the exclusion clause would extend to a third party. That did meet with approval: Wilson v Darling Island Stevedoring & Lighterage CoLtd (1956) 95 CLR 43 and Midland Silicones.
The diverging views as to whether a particular clause can extend to a third party, and how they might be extended, were explored by Malcolm J in an address 'The Negligent Pilot and the Himalaya Clause: A Saga of Disagreement' (67 ALJ 14) which highlights the difficulties that the various cases throw up.
By reason of the finding that I make in this matter it is not necessary for me to descend into those arguments but to adopt so far as it is necessary the criteria laid down in Midland Silicones.

Standing to sue

This issue arises from Nudrill's pleaded case that by reason of the defendants' breach of bailment, negligence and/or breach of contract Nudrill has suffered loss and damage (par 15 statement of claim); an allegation denied by the defence at par 12.
Nudrill pleads that it had an obligation to Drill Hire to make good or compensate Drill Hire for any loss or damage to the rig (par 2 statement of claim) and had an immediate right to possession of the rig (par 2A).
If Nudrill makes out a duty of care based in part on the allegation of foreseeability of loss and damage (par 6 statement of claim) and vulnerability (par 7 statement of claim) then that would be sufficient to give it standing to sue for damages in bailment, contract or tort irrespective of its own right to possession vis‑à‑vis Drill Hire.

Findings of fact

The contracting parties

The defence's position is that Nudrill did not know who was behind the three trading names under which the cartage business operated. It was argued by the defence that whilst Nudrill dealt with Mr La Rosa, it was of no moment to Nudrill who it was dealing with.
The defence argues that it is a question of fact who or what was the proprietor of the trading name at any particular time. That is undoubtedly true. However the issue in this case is, objectively, between whom was the contract made. Some documents might suggest that Rojo was carrying on the business from some specific time. Those documents include the insurance policy which covered the prime mover, low‑loader and dolly, bank documents, other financial documents and the registration of the business name.
The plaintiff's argument is that Rojo and the family trust were never disclosed to Nudrill and it had no knowledge of them.
Further, whilst the later invoices, being those in exhibit 17, carried an ABN not one carried an Australian Company Number (ACN). Section 153 Corporations Act 2001 provides that a company must set out its name and ACN on all its public documents. Public document is widely defined in s 88A as including an instrument that is issued in the course of or for the purposes of a particular transaction. Again, the word 'instrument' is widely defined to include any document. Nudrill's argument is that there was no such reference to the company Rojo either by its name or its ACN on these invoices.
Nudrill also argues that the defence pleaded that Nudrill knew that it had dealt with Rojo and intended to contract with Rojo for the cartage in question. Nudrill says that that assertion has not been supported by evidence. The assertion relied upon is one based upon pars 6.4(a), 6.4(d) and 6.4(e) of the defence. That assertion arises from a misreading of the pleading in my view. The pleading refers to the position where the contract with Nudrill was made by conduct which can be inferred from the fact that 'at all material times the plaintiff well knew that Rojo used a standard printed form of invoice which contained printed terms and conditions'. In my view the pleading is one that, with a contract made with Rojo, the plaintiff knew that there were printed terms and conditions on the invoices. On a proper reading of the pleading it is not one that alleges that the plaintiff (Nudrill) knew that it was contracting with Rojo. Accordingly, that reliance by Nudrill falls away.

I find as a fact that the representatives of Nudrill did not know of Rojo or of the family trust at the time of entering into the contract. In cross‑examination Mr La Rosa accepted that at no time had he told Nudrill of Rojo, nor of the family trust. He said nobody asked him and it was not necessary to say.
Mr La Rosa produced a number of financial and other documents of the business which in my view did not help to resolve the issue of the contracting parties.
Exhibit 29 was an insurance advice from Graham S Knight showing the insured as Rojo (WA) Pty Ltd trading as J‑Can Transport Services. It listed the prime mover, the low‑loader and the dolly as being insured property. The evidence of Mr La Rosa was that the prime mover and the low‑loader were registered in his name and the dolly was registered in his wife's name. He produced as exhibit 28 the relevant registration papers. In my view that policy says nothing as to who was operating the business and by whom the contract was made, and is entirely neutral.
Mr La Rosa produced banking documents. They became exhibits 41.1, 41.2 and 42.
Exhibit 41.1 is a bank statement from the National Australia Bank addressed to J‑Can Transport Services for a period ending 13 March 2001 showing the account detail as 'Rojo (WA) Pty Ltd, ACN 076 703 458, ATFT La Rosa Family Trust trading as J‑Can Transport Services business cheque account'. That page is said to be statement number 2 from 14 March 2001 to 2 March 2001. It shows a number of debits and credits.
Exhibit 41.2 is a bank deposit slip dated 19 February 2001 in the name of J‑Can Transport for account number 526180018 which is the account number for J‑Can Transport Services on exhibit 41.1. On that bank deposit sheet there is shown a deposit for payment by Nudrill in the sum of $3,025.
Mr La Rosa said that from 1997 all payments from Nudrill were paid into this account.
Exhibit 42 is also a bank statement at the foot of which there are the words 'Page 2 of 2'. The first page is not produced and the page that is produced gives no details of the account holder. It covers a period 31 May 2000 to 13 June 2000. At the foot of the statement it is expressed that it is statement number 77.
Mr La Rosa's explanation as to these documents was unconvincing. His evidence was that the business ceased to be run as a partnership but was run by Rojo from 1996. I have noted that his evidence was that from 1997 all payments for Nudrill were paid into this bank account. He was unable to provide any explanation as to why the bank statement (exhibit 41.1) was numbered 2 and yet exhibit 42 was numbered 77. No earlier bank statements were produced. They were not discovered and he said that they had been destroyed.
He agreed in cross‑examination that exhibit 42 was a long‑running account. He was unable to give any further explanation in relation to that and said that the account for Rojo, being 52‑618‑0018, had been opened in 1998 but again could give no other explanation as to why exhibit 41.1 was statement number 2.
Mr La Rosa also produced a number of financial documents. The exhibit comprised a number of financial statements
Exhibit 30 comprised financial statements for 'La Rosa G & R trading as Joe's Hiab & Low Loader Service' for the year ending 30 June 1997.
Exhibits 31 to 35 comprised the financial statements for 'La Rosa G & R trading as G & R La Rosa'; exhibit 31 to 30 June 1998, exhibit 32 from 1 July 1998 to 31 March 1999, exhibit 33 to 30 June 2000, exhibit 34 to 30 June 2001 and exhibit 35 to 30 June 2000.
In his evidence‑in‑chief he said that in 1998 they did not have a partnership and he merely earned a wage.
In cross‑examination it was put to Mr La Rosa that these documents demonstrated that a partnership continued to exist between himself and his wife. He said that after the partnership ceased they continued to receive money from Rojo to cover the costs of the vehicles and to pay off leases on them. It was put to him that the partnership had continued. He said he was not aware it was a partnership and he would have to ask his accountant.
What those financial statements show from 1997 onwards is a change in the name of the partnership and a diminishing income being received by the partnership. In 1997 it is expressed as 'income' but thereafter it is expressed as 'rent received' said to be the monies paid by Rojo for the use of the equipment. The financial documents tend to suggest that from the year ended 30 June 1997 the partnership of Mr and Mrs La Rosa (trading under a different name) was no longer earning income directly from the transport business. That is further borne out by the later profit and loss accounts showing no costs for expenses which one would expect in connection with a cartage business including such things as fuel, oil, licences, permits and the like.
Nevertheless, the issue still remains as to who the contracting parties were. I have come to the conclusion that the business name extract does not assist in this regard. Whilst that of itself suggests that Rojo did not become the proprietor of J‑Can Transport Services until 15 October 2002, that is not conclusive and I have noted that s 5(5) of the Business Names Act 1962 provides that a contravention or failure to comply with the provisions of the Act does not operate to avoid any agreement transaction, act or matter. Further, in my view the failure to note the name of Rojo and its ACN on the invoices (whilst perhaps a contravention of the Corporations Act) could not operate to otherwise prevent a contract between the company and Nudrill coming into existence.
The financial statements would suggest that from 30 June 1997 the partnership no longer traded as the cartage business.
Irrespective of the manner in which Mr La Rosa operated his business and the entities through which he did operate the business, I am satisfied that the contract was made between Mr La Rosa and Nudrill. Given my findings of fact, which include the fact that there had been a number of transactions between Nudrill and Mr La Rosa prior to the coming into existence of Rojo and that subsequent thereto Nudrill had no knowledge whatsoever of the existence of Rojo or the family trust, adopting what was said in The Swan, I find that two reasonable businessmen in those circumstances must be taken to have intended to have contracted the one with the other, that is to say Nudrill with Mr La Rosa.
Whilst Mr La Rosa had failed to incorporate the name of the company and its ACN into its documents, I find that that would not have been fatal to the formation of a contract between Rojo and Nudrill. Nevertheless, the mere use of an ABN on those documents does not in my view fix Nudrill with knowledge that it was dealing with a corporate entity. There is no evidence that Nudrill knew that the ABN belonged to Rojo and indeed both corporations and individuals carrying on business at a certain level are required to register for and obtain an ABN and use that ABN in its financial dealings. Further, whilst Brian Webster said that he thought he had seen the name Rojo on the side of the truck the photographs in exhibit 2 demonstrate that the name was not used on the vehicle to indicate that Rojo existed or operated the business.
I am satisfied and find that the contract was made between Nudrill and Mr La Rosa.
This leads to the next question and that is whether or not the contract was between Nudrill and the partnership. I find that so far as a haulage trading partnership is concerned that partnership came to an end by, at the latest, 30 June 1997. Thereafter it existed as a partnership merely to receive rent, that is to say payment from Rojo for the use of the equipment belonging to Mr and Mrs La Rosa. Accordingly, it was no longer a trading partnership and in my view Mr La Rosa was acting on his own behalf in entering into this contract and therefore the provisions of s 17, s 19 and s 26 of the Partnership Act do not apply. The work carried on by him under this contract was not at that stage work usually done in the carrying of the business of the kind carried on by a firm of which he was a member at that time.

The incorporation of terms

I find that the terms and conditions endorsed upon the rear of the various invoices comprising exhibits 15, 16 and 17 were not incorporated into the contract made between Mr La Rosa and Nudrill.
Mr La Rosa's case is that these invoices spanned a long period of time and Mr Norburn for Nudrill would have had a long acquaintance with them. It is argued that Mr Norburn was evasive about his recollection of having read the terms or not.
In my view whether he was evasive on this point or not is irrelevant. Even if he had read the terms, unless and until at least one prior contract had come into existence which contained the terms which are now sought to be incorporated into the present contract those terms are a thing writ in water. I respectfully adopt what was said by Burt CJ in Rinaldi, that you must first find an earlier contract or contracts containing the term. There is no evidence to show that at any time a contract was preceded by any quotation or other paperwork containing terms intended to form part of a contract then to be formed. These terms were merely endorsed on invoices after a contract had been made and performed. I adopt what has been said in Cheshire & Fifoot, that a limiting term in a document such as an invoice is not necessarily implied into subsequent contracts and in this case in view of the absence of any such incorporation in the past cannot be so implied.
Mr La Rosa relied on a number of authorities in which it is said that if reasonable notice of a proposed clause has been given and there has been a course of dealing between the parties then a clause may be incorporated into a contract.
In Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (Receiver Appointed) (in liq) (1992) 28 NSWLR 338 the issue related to the passing of property and retention of ownership. A clause relating to this was contained in invoices that were sent to the plaintiff. The trial judge found that there was no evidence that the plaintiff was sent a copy of the defendant's terms and conditions for purchase. There had been some discussion between representatives of the parties wherein the defendant said that it did not recognise the Romalpa clause and the plaintiff would have to remove it from its invoices. The defendant's representative was told that he would have to talk to a Mr Gascoigne about this but it appears that this did not happen and there was no further objection to the term or a requirement for variation. The judge held that the regularity of the dealings indicated that in the absence of objection the condition must be taken to have been accepted.
To the extent that Chattis would appear to be in conflict with Rinaldi, I am bound by and follow Rinaldi. In any event the two may be distinguished. In Chattis there was a specific discussion about the term. That did not occur in Rinaldi or the present case. Indeed it was conceded in Rinaldi that the appellants did not have actual knowledge of the term.
Circle Freight International Ltd v Medeast Gulf Exports Ltd [1988] 2 Lloyd's Rep 427 was also a case where there had been a series of transactions between the parties. The plaintiff sought to incorporate the Standard Trading Conditions of the Institute of Freight Forwarders Ltd (IFF) which incorporation was allowed on appeal. The manner of contracting followed closely the course in the present case with the only document being the invoice which followed the oral order. The invoices carried the notation that the business was transacted under the terms of the IFF a copy of which was available on request; it was not requested. Issues of knowledge of the terms arose but it is not necessary for me to explore them. The Court of Appeal found at (433) that there was a course of dealing in which 11 invoices had been sent giving notice that the business was conducted on the IFF terms. Taylor LJ noted at (433) that for incorporation of terms
[i]t is sufficient if adequate notice is given identifying and relying upon the conditions and they are available on request' and 'it is not necessary that notice of the conditions should be contained in a contractual document where there has been a course of dealing.
What sets Circle Freight apart from Rinaldi is that in the former there had been a change in the ownership of the plaintiff trading name and the defendant was notified of that change and at the same time advised that the business was being carried out under the IFF conditions (429). Accordingly, Circle Freight is distinguishable from Rinaldi on the basis that subsequent contracts could be seen to have been entered into against that position so that the first contract after such notice could be seen to have included the conditions which were then repeated by the course of conduct.
Notwithstanding these cases and others referred to by Mr La Rosa, in any event I am bound by Rinaldi and I follow the same.

Estoppel

The other limb of the defence case for the incorporation of these alleged terms is that Nudrill is estopped from denying the incorporation of the terms. Mr La Rosa's case is put on the basis that Nudrill knew of the existence of these terms on the invoice, Mr La Rosa conducted business with the plaintiff between 7 July 1997 and August 2001 and on each occasion Nudrill had been invoiced with an invoice bearing those terms and all carriage of goods had been undertaken by Mr La Rosa on those terms. It is alleged in the defence that within that period of time Nudrill did not indicate to Mr La Rosa that it did not accept the terms and conditions contained on the standard form of invoice and by reason of all of those matters Mr La Rosa assumed that Nudrill had accepted and agreed to the terms and conditions as forming part of the terms and conditions of contracts for carriage of goods by Mr La Rosa. It is said that Nudrill induced that assumption in Mr La Rosa and intended him to act thereon. The allegation is that the assumption was false, Mr La Rosa acted upon the basis of the assumption and will suffer detriment if he is precluded from relying upon the terms and conditions set out on the invoice and it would therefore be unconscionable to allow Nudrill to deny those terms and conditions and Nudrill is estopped from so doing.
In his evidence‑in‑chief Mr La Rosa said that he had received no objection from Nudrill in relation to the terms and conditions on the invoices. He said there had been these numerous previous jobs and in each case an invoice was issued with those standard terms and conditions. He himself was aware of those terms and conditions and Nudrill did not raise any objection to them. Mr La Rosa said that he took it for granted that Nudrill accepted the terms and conditions and presumed it agreed and so he kept trading with them.
The defence argues that if one party has induced another to assume that a contract between them has a certain content that party may be estopped from denying that assumption: Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
In Walton Stores Mason CJ and Wilson J said (404):
One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has 'played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it': per Dixon J in Grundt v Great Boulder Pty Goldmines Ltd (1937) 59 CLR 641. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.
Nudrill's case is that there has to be a representation and in the present case the primary purpose of the invoice was to record work that was done. It was not to set out conditions and these conditions were never mentioned or brought to the attention of the parties as being contractual obligations. Accordingly, Nudrill says that there cannot be any representation or common assumption which would found an estoppel for the purpose of incorporating by previous dealings the terms and conditions.
I accept Nudrill's arguments. Once it is shown that these conditions are clearly not incorporated because there was no prior contract then it is artificial in my view to suggest that mere knowledge of certain terms and conditions and a failure to comment upon them when they have no bearing on a transaction can give rise to an estoppel and it defies logic. If these conditions are such as can be ignored by Nudrill as is the case, then it is not open to Mr La Rosa to say that he assumed because Nudrill had remained silent on the matter that it had accepted those terms. It would be a situation that arises by reason of parties being at cross‑purposes as to a particular term rather than one party allowing the other party to assume that a particular state of affairs exists.
I am not satisfied that Nudrill made any representation in relation to these terms by reason of its silence. I have found that the terms were not incorporated into the contract. That being the case Nudrill was entitled to ignore the terms endorsed on the back of the invoice. In those circumstances it would be unrealistic to expect Nudrill to take the initiative to expressly deny those terms and specifically on each occasion when an invoice arose. If Mr La Rosa intended to place reliance on such terms, it was for him to bring them expressly to the attention of Nudrill for that purpose, cf Circle Freight. Whilst a representation may be implied by silence, it must still nevertheless be clear and unequivocal.
Further, even if it could be argued that a representation was made by silence, I am not satisfied that Mr La Rosa placed any reliance upon that silence. Reliance must be reasonable given the circumstances of the representation. It has been said that the conduct of a party acting upon an assumption could simply be seen as one of the circumstantial factors assisting in determining whether it would be unconscionable for the person to depart from the assumption: Commonwealth v Verwayen (1990) 170 CLR 394, 445. In cases such as Legione v Hateley (1983) 152 CLR 406 the representation was placed into context which in that case was the fact that the vendors had displayed a consistent attitude in the past of requiring observance of contractual rights. Representations which are made casually or informally may operate to deny the representee's claim that his reliance was reasonable: see for example the circumstances in Sterns Trading Pty Ltd v Shteinman (1988) NSW ConvR 55‑414.
Accordingly, having regard to the context of the representation as described above, in my view it would not have been reasonable for Mr La Rosa to rely upon silence as a representation upon which he could rely in contracting with Nudrill.
Accordingly, I find that the claim to estoppel must fail and therefore the terms are not incorporated.

Whether the terms (if incorporated) would have assisted Mr La Rosa

I have already determined that the contract was not with Rojo. Accordingly, the terms, if incorporated, would be terms relative to Mr La Rosa and no question of vicarious indemnity as discussed earlier would arise. However, if that had not been the case and Rojo was the contracting party in my view there would not have been vicarious indemnity in favour of Mr La Rosa. In my view the exclusion clause does not satisfy the conditions set out in the Midland Silicones' case. The wording of the exclusion is that:
The contractor shall not be liable for any loss or damage of property and/or goods of the client whether such damage was caused by any act, default or negligence on the part of the contractor, and/or his servants.

I am satisfied that the conditions do not make it clear that the intention was to protect the employees or servants of Rojo. Further, Rojo is not expressed to be an agent for the servants or agents. In addition the clause is not sufficiently drafted to cover a negligent third party such as Mr La Rosa. What is clear from the wording of the clause is that it is the company, Rojo, that is to be excluded from liability whether that arises by its own default or by that of its servants. The clause on its proper construction does not extend to afford protection to the employee himself.
In the circumstances I am satisfied that even if Rojo had been the contracting party the clause would not have assisted Mr La Rosa.

Bailment and obligations

Having found that Mr La Rosa was the contracting party, that is to say he contracted to take delivery of the goods and to deliver them, he was a bailee for reward. I also find that as such he was liable for the damage to the goods unless he could establish that the damage occurred without want of reasonable care on his part.

Duty of care

I have found that it was Mr La Rosa who contracted with Nudrill and became bailee for reward and I find that the contract that was entered into for the purposes of the transportation of the rig did contain implied terms such as those set out in pars 5(a), 5(b), 5(c) and 5(e) of the statement of claim. I am not satisfied that a term such as that set out in par 5(d) would be implied. This is a contract for carriage of goods. It is in effect a bailment. Under such a contract of bailment the bailee is obliged to keep the goods safe and to take reasonable care of the goods and is liable for loss and damage which results to the goods unless he can show that he exercised reasonable care and skill in the circumstances of the case. To imply a term such as that in par 5(d) of the statement of claim would be contrary to or inconsistent with that form of contract. Paragraph 5(d) as currently expressed requiring delivery of the rig to the mine undamaged would result in absolute liability on the part of Mr La Rosa.
Otherwise I am satisfied that the terms sought to be implied are necessary to give business efficacy to the contract.
I am satisfied that Mr La Rosa also owed to Nudrill a duty of care in tort. I am satisfied that the pleaded conditions leading to the establishment of a duty of care have been made out, that is to say that it was reasonably foreseeable to Mr La Rosa that if he failed to exercise due skill and care in transporting the rig Nudrill would suffer loss and damage and that Nudrill was in a position of vulnerability as alleged in pars 6 and 7 of the statement of claim.
Whilst on the pleadings the duty of care was denied, it seems to me that that denial arises more as a denial in relation to Mr La Rosa in the context of his position that it was Rojo that contracted rather than a denial of the general principle that, whoever was the contracting party to carry these goods, that carried with it a duty of care as described in pars 6 and 7 of the statement of claim.

The accident

There is no issue that the rig fell from the low‑loader driven by Mr La Rosa whilst it was negotiating the roundabout at Kalgoorlie. Further, on the evidence of Mr La Rosa I find that the right‑hand wheels of the low‑loader left the road surface and lifted just before the rig fell from the low‑loader.
There is no evidence to contradict the evidence of Mr La Rosa that at the time of negotiating the roundabout he had changed down the gears on the truck so that he was in low range fourth gear. Further, there is no evidence to contradict his evidence that his estimated speed at that time was approximately 15 km per hour.
There is no independent or expert evidence before the court as to any cause for the wheels of the low‑loader to have lifted from the road surface so as to cause the rig to fall from the low‑loader other than the evidence of Mr La Rosa.
In considering my findings in relation to liability for the accident there are two positions. The first is that under the claim in bailment where it is for Mr La Rosa to prove that the damage was not caused by reason of want of care on his part. The second is that under contract or in negligence where it is for Nudrill to prove that the damage to the rig occurred by reason of the breach of contract or want of care on the part of Mr La Rosa.
It is appropriate that I deal with the question of liability arising in bailment first.
All that Mr La Rosa has said is as to the way in which he approached this roundabout and entered the roundabout. He has given no explanation as to why the wheels of the low‑loader lifted causing the rig to fall from the low‑loader. In cross‑examination he acknowledged that travelling too fast and pulling to the right would cause the wheels to so lift. Further, he acknowledged that what occurred was exactly consistent with what would have happened had he been driving too fast.
In the circumstances Mr La Rosa has failed to satisfy me that the damage to the rig was not caused by want of care on his part. There is nothing before me to suggest that the rig was properly secured immediately before the accident other than Mr La Rosa's own explanation of the use of chains, or that the speed at which he was travelling around the roundabout was in fact a reasonable and safe speed in all the circumstances which includes the nature of the load he was transporting and the equipment that he was using to transport that rig. There is simply no other explanation for the accident.
In the circumstances I find that Mr La Rosa is liable in bailment.
I turn now to the question of liability arising in contract and negligence. In my view it is not necessary to distinguish between the two in view of the findings that I have made as to the implied terms to be incorporated into the contract between Nudrill and Mr La Rosa.
As I have noted, there is no evidence to contradict Mr La Rosa as to the gear that he was in or the speed he was travelling at the time when the rig parted company from the low‑loader. Mr La Rosa's further evidence was that any speed higher or lower than 15 km per hour, in the gear that he was in, would have caused the vehicle to stall.
I accept the evidence of Mr La Rosa as to the speed of the vehicle and the gear that he was in and what he has said about any variation in that speed causing the vehicle to stall. Nevertheless I find that that speed of 15 km per hour was excessive in the circumstances.
I accept that prior to setting out on this journey Mr La Rosa had properly positioned and secured the rig on the truck. I accept that during the course of the journey he made frequent stops in order to check the load and it was secure. If the rig had not been properly positioned or secured one might have expected there to be some evidence of this during the course of this long journey from Perth to Kalgoorlie.
With regard to securing the load I accept Mr La Rosa's evidence of the manner in which he chained the rig. There was no evidence to suggest that chaining in any other way would have been more effective or indeed that chaining in this way was in any way improper.
I also accept Mr La Rosa's evidence that he extended the low‑loader from 2.5 to 2.7 m. I also accept his reasons for widening the low‑loader, that is to say, to accommodate the rig and to better stabilise it on the road.
Mr La Rosa also said that he had Mr Webster activate the stabilisers on the rig to stabilise it on the low‑loader and I accept his evidence in this regard as well.
As I have noted, Mr La Rosa completed the bulk of this journey from Perth to Kalgoorlie without incident. During the course of such a journey apart from the two 90‑degree angled turns that he had to make, there would have been many corners and turns that he would have had to have negotiated between Perth and Kalgoorlie. I accept that the journey to this point was uneventful.
Why then at the roundabout did the wheels on the low‑loader lift causing the rig to move with the attendant breaking of the chain and the rig falling from the low‑loader and being damaged?
The only explanation for such an event, given my findings that he had properly secured the drill rig to the low‑loader, had engaged the stabilisers and had extended the width of the low‑loader to give further stability, is that he was travelling at excessive speed.
A speed of 15 km is not of itself a great speed. However whether it is excessive depends upon all of the circumstances and conditions. It is telling that Mr La Rosa accepted that the movement of the low‑loader and the drill rig was exactly consistent with what would have happened if he had been driving too fast. I repeat the passage of evidence noted earlier which is telling (emphasis added):
And if you were going quite a bit too fast, that would produce the effect, in your experience, of the wheels of the low-loader lifting off the ground? ‑ At a substantial speed, yes.
That concession as to the wheels lifting, being consistent with speed, i.e. as a result of centrifugal force, was made by him after earlier cross‑examination attempting to elicit this concession and in respect of which he was, in my view, evasive. I find that he was evasive because he did not want to admit that even travelling at 15 km per hour with this load on this roundabout was an excessive speed.
Accordingly, I find in all the circumstances that he did fail to exercise and/or maintain proper control over the truck and low‑loader, drove it without due care and attention and at a speed that was excessive in the circumstances.
That finding leads to a finding that Mr La Rosa was in breach of the implied terms of the contract to exercise the level of care, skill and expertise expected of an experienced truck driver and maintain control over the truck in accordance with such expertise. He has also breached the contract by failing to take reasonable care and skill to avoid the loss to Nudrill.
Further, my findings result in the defendant being negligent for the same reasons.
Some time was spent at trial as to how a court may draw inferences to offer an explanation for the accident, in other words, in relation to the maxim res ipsa loquitur. In view of my findings it is not necessary for me to explore that aspect further.
Further, Nudrill sought to draw adverse inferences against Mr La Rosa by reason of his failure to call Ms Pegus to give evidence. Ms Pegus was living in Queensland. Mr La Rosa contacted her in order to have her attend the trial to give evidence. She had given evidence at the first trial of this matter. Mr La Rosa produced two emails from her (exhibits 40.1 and 40.2). The first is dated 8 July 2011 in which she said:
Please be advised that due to my work commitments I will not be able to attend WA on any other day except 1 August as was previously arranged.
The second dated 31 July 2011 said:
Please accept my apologies, I am unable to attend on Monday, 1 August due to my work commitments running over their scheduled end date due to unforeseen and unchangeable circumstances. My sincere apologies, Leesa Pegus.
I am satisfied that there is an explanation for her non‑attendance and I do not draw any adverse inference nor is it necessary for me to do so against Mr La Rosa by her failure to attend to give evidence.

Standing to sue

Notwithstanding the casual nature of the arrangement between Nudrill and Drill Hire as to the use by Nudrill of the equipment belonging to Drill Hire including the rig, I am satisfied that that agreement would have implied into it between those companies a term that Nudrill would make good or compensate Drill Hire for any loss or damage to the rig. I accept the term's implication as being obvious, reasonable and necessary to give business efficacy to the agreement and arrangement between these two companies. Further, the possession of the rig by Nudrill from Drill Hire would constitute Nudrill as bailee of the rig it would be subject to its obligation to keep the goods safe and to take reasonable care of them and be liable for any loss or injury unless it could establish that the damage occurred without want of reasonable care on its part.
I am satisfied and find that Nudrill had an interest over and above an interest in mere possession of the rig. It had an interest in the preservation of the equipment because of its obligations to Drill Hire in this regard.
Further, as I have noted Nudrill has made out its duty of care based upon the foreseeability of loss and damage and its vulnerability.
I do not accept the arguments put by Mr La Rosa that Nudrill did not have sufficient interest in the rig so as to have standing to sue. The closing advice renewal for Nudrill's insurance (exhibit 18) expresses the insured to be Nudrill, Drill Hire and two other companies. The policy is expressed to extend to include all vehicles owned, used or operated by the insured or for which the insured is responsible including vehicles leased, hired, on loan or purchased by the insured during the currency of the policy. Accordingly, the insurance policy was one which covered both Nudrill and Drill Hire in respect of its or their liabilities and potential losses arising out of damage to the equipment which included the drill rig.
I am satisfied the insurer has (save for an excess paid by Nudrill) paid for the repairs to make good the rig. Nevertheless in my view the insurer had relevant rights of subrogation in respect of Nudrill so as to enable this action to be brought in the name of Nudrill in respect of the loss and damage to the drill rig.
Accordingly, I am satisfied and find that Nudrill does have appropriate standing to sue.

Conclusion

In view of my findings there should be judgment for Nudrill against Mr La Rosa for the agreed quantum of $191,725.90. Nudrill also seeks interest thereon pursuant to s 32 of the Supreme Court Act from the date of the incident until the date of judgment at 6% per annum. I will hear counsel as to the relevant period and calculation. It seems to me that whilst the damage was done at the time of the accident, Nudrill did not suffer any loss until the time came to effect and pay for repairs. Nudrill is not seeking to be compensated for any loss of use of the drill rig. Accordingly, subject to hearing argument to the contrary, it seems to me that the appropriate period should be for some time after the accident when the repairs were completed and paid for to the date of judgment.
My findings are that Mr La Rosa made the contract and was responsible for the damage in bailment, breach of contract and in negligence. I have found that at the material time a trading partnership between himself and Mrs La Rosa in the cartage business no longer existed. Accordingly, the action as against Mrs La Rosa should be dismissed.